Responses to: Frequently Asked Questions about Hebron
Responses to: Frequently Asked Questions about Hebron and Shuhada Street
http://goo.gl/kswi
Introduction: International organizations declared Thursday, February 25, 2010 as 'Open Shuhada Street Day.' Shuhada, in Arabic, means martyr. This is, according to the Arabs, a road named in memory of 'martyrs' who have murdered Jews. The street's real name is King David Street, in honor of King David, who began his monarchy, the Kingdom of Judea, and later the Kingdom of Israel, in Hebron, over 3,000 years ago. Parts of this road have been closed to Arab traffic for security reasons. Gadi and Dina Levy were murdered on this road by a homicide bomber. Aharon Gross was stabbed to death on this road. Sixteen year old Eliya Meshulam was stabbed and critically wounded on the road. Six men were killed and twenty others wounded on the road in a major terror attack on this road. Two retired men were stabbed by an Arab terrorist on the road. Three young men had acid thrown at them on this road. Others were attacked, but escaped injury.
The following document includes responses to claims against Hebron's Jewish community and the continued closing of King David Street to Arab traffic. The original FAQs are in a lighter font; my responses are in a black font, preceded by 'Response.'
The document is lengthy; if the reader prefers to skip certain questions and answers, it is still worthwhile to jump to the last few pages, depicting an official PA map ofPalestine.
1. The settlers say they only have 3% of Hebron. They say they’re not allowed to go to H1 or most of H2. Given that they are restricted from the vast majority of the city, why shouldn’t Palestinians be restricted from the tiny portion of H2 that the settlers claim?
Hebron is a city deep inside the Palestinian territories. Israeli settlements in any of these territories are illegal according to the Fourth Geneva Convention. The issue is not that the settlers have only 3% of the city, but rather that they are controlling part of an occupied city.
H1, an area which consists of about 80% of Hebron, is controlled by the Palestinian Authority. H2, the remaining 20%, is controlled by Israel. Israeli settlers, who make up less than 1% of the population of Hebron, control 20% of the city, which is not only incredibly disproportionate but also illegal.
In order to allow the settlers to live in a small part of H2, the Israeli army exerts control over a much larger proportion of the city in order to secure a buffer zone for the settlement. While the settlers themselves do not travel around most of H2, the Israeli military does patrol the entirety of H2, thereby placing restrictions on Palestinian movement throughout this part of Hebron. If Israeli settlers were allowed to walk in all of H2, the Israeli military would likely control an even larger percentage of the city in order to keep them safe.
Although H2 is a relatively small portion of the city, it is Hebron's true city centre where the industrial and commercial zones, as well as the most important landmarks, are located. H2 is an important passageway between the northern and southern parts of the city. Therefore, restricting movement in H2 significantly affects the freedom of movement of all residents of Hebron.
1. Response:
a) Concerning H1 and H2: Israelis presently have access to three percent of Hebron. Arabs have access to 98% of Hebron. Jews are forbidden from entering H1. Arabs may travel freely between H1 and H2.
Concerning the city center: As can be seen above, Hebron city center is certainly not in H2. Arab Hebron is a large, thriving city, with continued construction, factories, businesses, markets, and all elements of metropolitan life. This area, much larger than H2, is certainly more conducive to businesses and markets; therefore the claim that H2 is actually the city center is false.
Concerning access to all areas of Hebron, Hebron's Arab population has access to over 98% of the city. All areas can be accessed without any major issues.
b) Israeli Settlements and International Law
(Government of Israel, Policy Guidelines, March 2001- http://goo.gl/7tJV)
(See also: http://goo.gl/KCiR)
The Historical Context
Jewish settlement in West Bank and Gaza Strip territory has existed from time immemorial and was expressly recognised as legitimate in the Mandate for Palestine adopted by the League of Nations, which provided for the establishment of a Jewish state in the Jewish people's ancient homeland. Indeed, Article 6 of the Mandate provided as follows:
"The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish Agency referred to in Article 4, close settlement by Jews on the land, including State lands not required for public use".
Some Jewish settlements, such as in Hebron, existed throughout the centuries of Ottoman rule, while settlements such as Neve Ya'acov, north of Jerusalem, the Gush Etzion bloc in Judea and Samaria, the communities north of the Dead Sea and Kfar Darom in the Gaza region, were established under British Mandatory administration prior to the establishment of the State of Israel. To be sure, many Israeli settlements have been established on sites which were home to Jewish communities in previous generations, in an expression of the Jewish people's deep historic and religious connection with the land.
For more than a thousand years, the only administration which has prohibited Jewish settlement was the Jordanian occupation administration, which during the nineteen years of its rule (1948-1967) declared the sale of land to Jews a capital offense. The right of Jews to establish homes in these areas, and the legal titles to the land which had been acquired, could not be legally invalidated by the Jordanian or Egyptian occupation which resulted from their armed invasion of Israel in 1948, and such rights and titles remain valid to this day.
International Humanitarian Law in the West Bank and Gaza Strip
International humanitarian law prohibits the forcible transfer of segments of the population of a state to the territory of another state which it has occupied as a result of the resort to armed force. This principle, which is reflected in Article 49 of the Fourth Geneva Convention, was drafted immediately following the Second World War. As International Red Cross' authoritative commentary to the Convention confirms, the principle was intended to protect the local population from displacement, including endangering its separate existence as a race, as occurred with respect to the forced population transfers in Czechoslovakia, Poland and Hungary before and during the war. This is clearly not the case with regard to the West Bank and Gaza.
The attempt to present Israeli settlements as a violation of this principle is clearly untenable. As Professor Eugene Rostow, former Under-Secretary of State for Political Affairs has written: "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there" (AJIL, 1990, vol. 84, p.72).
The provisions of the Geneva Convention regarding forced population transfer to occupied sovereign territory cannot be viewed as prohibiting the voluntary return of individuals to the towns and villages from which they, or their ancestors, had been ousted. Nor does it prohibit the movement of individuals to land which was not under the legitimate sovereignty of any state and which is not subject to private ownership. In this regard, Israeli settlements have been established only after an exhaustive investigation process, under the supervision of the Supreme Court of Israel, designed to ensure that no communities are established on private Arab land.
It should be emphasized that the movement of individuals to the territory is entirely voluntary, while the settlements themselves are not intended to displace Arab inhabitants, nor do they do so in practice.
Repeated charges regarding the illegality of Israeli settlements must therefore be regarded as politically motivated, without foundation in international law. Similarly, as Israeli settlements cannot be considered illegal, they cannot constitute a "grave violation" of the Geneva Convention, and hence any claim that they constitute a "war crime" is without any legal basis. Such political charges cannot justify in any way Palestinian acts of terrorism and violence against innocent Israelis.
Politically, the West Bank and Gaza Strip is best regarded as territory over which there are competing claims which should be resolved in peace process negotiations. Israel has valid claims to title in this territory based not only on its historic and religious connection to the land, and its recognized security needs, but also on the fact that the territory was not under the sovereignty of any state and came under Israeli control in a war of self-defense, imposed upon Israel. At the same time, Israel recognizes that the Palestinians also entertain legitimate claims to the area. Indeed, the very fact that the parties have agreed to conduct negotiations on settlements indicated that they envisage a compromise on this issue.
Israeli-Palestinian Agreements
The agreements reached between Israel and the Palestinians contain no prohibition whatsoever on the building or expansion of settlements. On the contrary, it is specifically provided that the issue of settlements is reserved for permanent status negotiations, which are to take place in the concluding stage of the peace talks. Indeed, the parties expressly agreed that the Palestinian Authority has no jurisdiction or control over settlements or Israelis, pending the conclusion of a permanent status agreement.
It has been charged that the prohibition on unilateral steps which alter the "status" of the West Bank and Gaza Strip, which is contained in the Interim Agreement and in subsequent agreements between the parties, implies a ban on settlement activity. This position is disingenuous. The building of homes has no effect on the status of the area. The prohibition on unilateral measures was agreed upon in order to ensure that neither side take steps to change the legal status of this territory (such as by annexation or unilateral declaration of statehood), pending the outcome of permanent status negotiations. Were this prohibition to be applied to building, it would lead to the ridiculous interpretation that neither side is permitted to build homes to accommodate for the needs of their respective communities.
It is important to note, that in the spirit of compromise and in an attempt to take constructive confidence building measures in the peace process, successive Israeli governments have expressly recognized the need for territorial compromise in West Bank and Gaza Strip territory and have voluntary adopted a freeze on the building of new settlements. In this regard, the present National Unity Government, under Prime Minister Ariel Sharon, has officially declared that it will not build any new settlements, while remaining committed to the basic needs of the existing settlement communities (Government of Israel, Policy Guidelines, March 2001).
2. The Israeli military says that Palestinians are allowed to walk anywhere other than Shuhada Street. Is it really such an inconvenience to have one street closed to pedestrians?
It is not for the Israeli military to decide whether it is convenient or inconvenient for the Palestinians, yet this attitude of entitlement and legitimacy is the by-product of prolonged foreign occupation of a local population. The Palestinian residents of Hebron are not considered or consulted regarding whether or not the closure of their streets is in their security interest. Rather, the Israeli army makes decisions on their behalf and thus dictates the way Palestinians are allowed to live in their city. Shuhada Street is Hebron’s main street; traveling on it and crossing over it are essential to vibrant life and commerce in the area.
2. Response
First, Israel is not 'occupying a foreign city.' In 1967 Israel came back home to Hebron, where Jews had lived for hundreds and thousands of years prior to the 1929 riots, massacre and expulsion.
Second, it must be noted that Arafat and the PLO (PA) accepted the legitimacy of a Jewish presence in Hebron when he signed and agreed to implementation of the 1997 'Hebron Accords' which transferred some 80% of Hebron to the total control of the PA.
Third, let it be known that until the advent of 'peace' Hebron was an open city, the Jews and Arabs were able to access the entire city. That ended in 1997 when the H1 PA controlled area of Hebron was closed to Jews, despite the fact that according to the accords, Hebron was to be an 'open city.'
Fourth, unfortunately, since the advent of Oslo, Jews must now travel kilometers out of their way in order to reach various destinations, being that many areas are now 'closed to Jews' and 'open to Arabs only.'
The 'inconvenience' to Arabs in Hebron is miniscule, as compared to the distances Jews have to travel throughout Israel.
3. Wasn’t Shuhada Street closed as a response to terrorism?
No. Shuhada Street was initially closed to Palestinian shops and vehicular traffic in 1994 after the Israeli settler Baruch Goldstein killed 29 and injured 150 Palestinians when he opened fire in the Ibrahimi Mosque (Tomb of the Patriarchs) during prayers. The army cited fear of Palestinian revenge attacks as its rationale for closing the street. This main artery of the street and the former sight of the market place was reopened to traffic (but not commerce) in 1997 in accordance with the Hebron Protocol. In 2000, Shuhada Street was closed completely to traffic and partially to pedestrians. The street was effectively "sterilized" in 2002 by closing it off to all forms of all Palestinian movement.
How does the closure of Shuhada Street work legally?
It doesn’t. In 2004, Palestinians appealed to the Israeli Supreme Court about restrictions on their movement in H2. In November 2005, the State replied that Shuhada Street is open to all regular traffic, only closed to shops and vehicles, admitting that there were legal problems during the preceding years with the closure of areas all over Hebron without warrants. (Since 2005, the State has produced warrants to impose various restrictions of movement on 21 areas around the city.) In reality, areas marked on State and military maps as open to various forms of traffic and commerce are actually closed. A 2005 'Children of Abraham' video demonstrated that soldiers regularly prevent Palestinians from walking in areas that are indicated as open to traffic, and that some areas without any indications of closure on the maps are actually sealed with barbed wire and concrete blocks. A letter of complaint received a reply from the military in December 2006 stating that the street had been closed by mistake. The next Friday, the street was opened and on that Sunday, Palestinians were allowed to cross but only after being detained for two hours in both directions while international volunteers escorting them were arrested for disturbing the peace. The street was closed de facto by military orders and it was later revealed, via soldiers’ testimonies, that soldiers received orders to prevent people from wanting to be there. In 2007, the Supreme Court discussed the case again but the night before the decision was made the military unsealed the welding on the doors to homes on Shuhada Street and gave the families special permission to come out of their houses. They declared that by oral warrant from a General in the central command, the street is generally closed to Palestinian movement because all business and homes are closed anyways, therefore, there is nothing to see there.
Isn’t the policy of separation necessary to protect Jews from terrorism?
There is a real fear of terrorism which is supported by hundreds of successful and attempted Palestinian attacks on Israeli settlers, soldiers and police officers in Hebron. The separation policy responds to this fear by insisting that it is a necessary measure for protecting the Israeli settlers as long as they are inhabiting the center of the Palestinian city of Hebron. However, this security policy of separation reflects the political reality in the city, and not vice versa. As long as there is a policy that allows for Israeli settlement in Hebron, infringement of Palestinians' civil and human rights necessarily follows. Our focus is on bringing Palestinian life back to Hebron and we believe that there is no way to ensure a dignified life for Palestinians if the foreign presence in the city remains in control.
3. Response
In the early 2000s the Israeli courts required that the road be reopened to Arab traffic. As a result, during the first-stage, public transportation (Arab taxis) and municipal vehicles) were permitted to travel on the road. Pedestrian traffic was allowed on the entire road.
During this period of time, Israeli women were constantly accosted, physically and verbally, primarily by Arab teenagers and young adults. Arab taxis filled the road, causing constant traffic issues. However the road remained open.
Following the beginning of the second intifada in October, 2000, Arab terrorist forces began constant shooting attacks at the Jewish neighborhoods in Hebron from the hills surrounding the community, hills which were transferred to PA control as part of the Hebron Accords in January, 1997. Shalhevet Pass was murdered, and others were wounded. The Levi couple from Kiryat Arba was murdered by a homicide bomber who exploded next to them on the road.
Israeli security forces decided that the road must be closed to Arab traffic as a necessary security measure. According to continued examinations of the situation, they maintain this opinion.
It must be said: The 2nd intifada was a declared war by the PA against Israel, Jewish communities in Judea, Samaria and Gaza, and in our case, against Hebron's Jewish community in particular. Had the war not begun, the street would probably still be open. However, there is a price for war. When shooting began, with the intention of killing and maiming Jews, in an attempt to again force us from our homes, Israel decided not to 'turn the other cheek,' leading to mandatory security measures, some of which are still enforced at the present.
4. Who gets to pray in the Tomb of the Patriarchs and when?
The Tomb of Patriarchs is divided into a Muslim and a Jewish section. On most days, each group is allowed to pray in its designated area, although access to the tomb is difficult for Palestinians, as they must pass several checkpoints before reaching the Ibrahimi Mosque. For ten days a year, each group has access to the entire site while the other group is not allowed to enter.
If the settlement isn’t there, will Jews (and other non-Muslims) be able to access the Cave of the Patriarchs?
For 700 years, non-Muslims were denied access to the Tomb of the Patriarchs. They were only permitted to pray as high as the 7th step of a staircase on the Southern wall of the building. There is a justified fear that if Israel were not in control of the religious site non-Muslims would again be denied access. We believe in freedom of access to holy places all over Israel and Palestine for adherents of all religions. In any future agreement, we would call for the Palestinian Authority to allow open access to the Tomb of the Patriarchs as we would call for Israel to offer open access to holy sites within its borders.
4. Response:
1. Kamal Dweck, formerly deputy mayor of Hebron, declared that Ma'arat HaMachpela, the tomb of the Patriarchs and Matriarchs, should it ever again fall under Moslem control, would be accessible only to those of the Islamic faith.
Yesterday I spoke with Mustafa Barghuti, former minister of information for the PA, and asked him who may worship at this holy site. He refused to answer the question. (See: http://goo.gl/mld0)
Note that the structure above the authentic caves was built by Herod, King of Judea, 2,000 years ago, which is 600 years prior to the birth of Muhammad.
Also, Jews and Christians must undergo the identical security examinations prior to entrance to the site as to Muslims.
5. Would Jews be allowed to live in Hebron if it were under Palestinian control?
It would be ideal if under some future agreement neither Israel nor the Palestinian Authority would restrict residence in cities or neighborhoods based on ethnicity or religion. The decision about the make-up Palestinian cities in the Palestinian territories would be made by the Palestinian Authority.
Response:
Clearly the answer to the question is NO. A Jewish presence in Hebron without the presence of an Israeli security force would inevitably lead to results similar to those of 1929.
6. Are the Israeli settlers of Hebron representative of the whole movement?
The Israeli settlers in Hebron are the extreme in the movement in terms of their disregard for Israeli law. The policies that protect and allow the expansion of their settlements are the same as those throughout the entire occupied Palestinian territories.
Why are there both Israeli police and Israeli soldiers in Hebron?
In the occupied Palestinian territories, there are two systems of law in operation. Israeli martial law is imposed on the Palestinians in the territories because they are under military occupation. The Israeli settlers in the occupied territories are under the jurisdiction of the much more advanced Israeli civil legal system, which applies also to Israeli citizens living in Israel. The Israeli soldiers in Hebron enforce martial law on the Palestinian population and the Israeli police in Hebron are mandated to enforce Israeli law on Israeli citizens in the city. Neither of the two separate legal systems, which are enforced by a single government over two different populations that live in the same physical space, have the interests of Palestinian security or legal stability in mind.
The Israeli Supreme Court is the highest court of appeal for Palestinians, but regards itself as an Israeli court being used by Palestinians rather than the high court for all the residents of Israel and Palestine. Two illustrative examples:
· Stone throwers: An Israeli child throwing stones in Hebron is considered a criminal offense and falls under the Israeli legal system. Children under 12, however, are channelled through social services rather than through the court system. A Palestinian child throwing stones in Hebron is considered a security offense. The police investigates and then the case is tried in military court. Palestinian children are generally held in custody until sentencing, considered a danger to society. Children regardless of age can end up in jail.
· Protesters: Israeli and Palestinian protesters detained at the same demonstration undergo two very different legal proceedings. After arrest, Israelis must be brought before a judge within 24 hours in order to extend the detention. Palestinians arrested for the same offense can be held for eight days before seeing a judge.
Response:
See: http://goo.gl/snx4
7. How many soldiers and police officers are there?
There is a single battalion of 500 soldiers stationed in Hebron. There are about 140 border police, who control the Tomb of Patriarchs, and 30-50 police officers in the city.
For 600 Israeli settlers and 200 Jewish students in the city, why are there so many soldiers in Hebron?
Enforcing security regulations in a dense, urban area in the midst of a hostile population requires significant force. Because of the lawless nature of the inhabitants of the Israeli settlements in the city, these soldiers and police officers are sometimes engaged in protecting Palestinians and Palestinian property from settler violence as well.
Response:
Israeli security forces provide multiple services.
a) They offer protection to Hebron's residents against constant terror threats. (Since the beginning of 2010 thirteen Arabs have been apprehended with knives in the vicinity of Ma'arat HaMachpela, admitting that they intended to kill soldiers or civilians. One Arab attempted to stab an Israeli soldier and was shot and killed.)
b) They offer protection to over half a million people who visit Hebron annually.
c) They offer protection to Israelis throughout Israel. When Israel withdrew from the H1 – PA-controlled area of Hebron, Hebron terrorists planned attacks throughout Israel, killing, maiming and injuring scores of people. See Newsweek: The Jihad Soccer Club: They Were The Best Soccer Club In Hebron- http://goo.gl/tvsB.
B’Tselem, The Hebron Rehabilitation Committee, Breaking the Silence, Children of Abraham, The Tel Rumeida Popular Committee, Yesh Din, Association for Civil Rights in Israel, The Ecumenical Accompaniment Program in Palestine and Israel
are all pro-active pro-Arab organizations, without any attempt at objectivity, impartiality or neutrality. See: http://goo.gl/GGyt
For a graphic timeline of the Jewish history of Hebron see: http://goo.gl/WO28
For more information see: Frequently asked questions about the Jewish Community of Hebron - http://goo.gl/d7tR
In conclusion: the original FAQ document prepared, dealing with King David Street and the Jewish presence in Hebron was written by people who obviously reject, not only the Jewish presence in Hebron, but also throughout Judea and Samaria. It stands to reason that many of them also question the legitimacy of the State of Israel and the Jewish presence in Eretz Yisrael. This is obvious, as is written in the following question and answer: Why focus on Hebron? By building a focused campaign around a single issue in a particular locality, we hope to define achievable goals that will set a legal and political precedent for change in other areas of the occupied Palestinian territories as well.
According to most 'Arab-palestinian leaders' all of Israel is 'occupied Palestinian territory.' (See following pages: 'Palestinian Tourist Map' printed by the Palestinian Authority Ministry of Tourism and Antiquities. Note the borders of 'palestine' – and Tel Aviv.) The conclusions reached are obvious.
This map can be downloaded in pdf format at: http://goo.gl/G30d
Thursday, March 18, 2010
Wednesday, September 5, 2007
"Geneva Accord" -Model for a Permanent Israel-Arab Agreement
"
Accord"
Alternative Version
Model for a
Permanent Israel-Arab Agreement
by
Rabbi Dr. Chaim
Simons
Kiryat Arba-Hebron
November 2003
Proposal
Mandatory
will be divided into two states to be called
and
of the land area and will be situated east of the
River
remaining 23% and will be situated west of the
River
together with the whole of Judea,
the
Arabs at present living in the designated
recognising
as a Jewish state, be allowed to remain. Otherwise they will move to
Likewise Jews living in the designated
state, be allowed to remain. Otherwise they will move to
Endeavors
Part 1 - Background
The Mandate for
In April 1920, the San Remo Conference decided to assign the Palestine Mandate
under the League of Nations to
was confirmed by the Council of the
in July 1922[2]. The aim of the Mandate, as stated
in its preamble and Article 2 was to prepare the area for "the
establishment in
of a national home for the Jewish people.[3]" There is no mention of the
establishment of a national home for the Arabs. In fact, the term Palestinian
Arabs, is completely absent from the various documents of this period.
Palestinian Arabs, who now claim a history extending over thousands of years,
were never heard of 70 years ago!
The area known as
in this Mandate document extended from the Mediterranean to the eastern border
of what is today known as
Article 6 of this document stated that an aim of the Mandate was to
"encourage, in co-operation with the Jewish agency,... close settlement by
Jews on the land[4]."
Article 25 allowed the Mandatory Power, with the
consent of the League of Nations, "to postpone or withhold
application" of certain articles of this Mandate in the area known as
Jewish settlement organised by the Jewish agency could no longer take place in
excluded[6]. It must however be stressed
that Transjordan was always part of the British Mandate over Palestine[7].
In March 1946, Britain acting unilaterally and contrary to Article 5 of the
Mandate, detached the area of Transjordan from the Mandate and set up "a
sovereign independent State" named Transjordan[8]. This act had no foundation in
law and thus the legality of the country of Transjordan has always been
very questionable[9].
The United Nations
Resolution of November 1947
On 29 November 1947, the United Nations General Assembly passed a resolution
dividing up Palestine west of the Jordan River into two independent states, a
Jewish one and an Arab one[10]. The Arabs rejected this
resolution and as soon as Israel was born, five Arabs countries attacked in
order to destroy her. Thus begun the War of Independence. In this war Israel
succeeded in acquiring a large part of the area allocated by the United Nations
to the Arab state. This included West Jerusalem, Beersheba, Ramla, Lod,
Nazareth, Acre, Nahariya, Jaffa, Ashdod and Ashkelon[11]. The area of Judea and Samaria,
(described by the world as the "West Bank") was occupied and annexed
by Jordan, and Egypt captured the area known as the Gaza Strip. The only
countries in the world to recognise Jordan's annexation were Britain and
Pakistan[12].
The Six Day War.
In June 1967, Egypt, Jordan and Syria made an unprovoked attack on Israel. As a
result of this attack, the Six Day War broke out. During the course of this
war, Israel succeeded in acquiring Judea and Samaria, the Gaza Strip, the Sinai
Peninsula and the Golan Heights.
In the following years, leading international lawyers discussed Israel's
international rights to Judea, Samaria and the Gaza Strip, and they concluded
that Israel has a better title to these areas than any other country in the
world. These legal authorities included, Professor Julius Stone[13], Professor Stephen Schwebel[14], Professor Yehuda Blum[15], Dr. Benjamin Halevi[16] and Alan Levine[17].
Israeli Settlements
in Judea, Samaria and the Gaza Strip
Since the Six Day War, Israel has built settlements in these areas (including
east Jerusalem) and towards the end of 2003, there were about 400,000 Jews
living there[18].
The world as well as the Israeli Left has been condemning these settlements as
illegal. What in fact is their status?
The late Eugene Rostow, who was Professor of Law at Yale University and U.S.
Assistant Under-Secretary of State, wrote, "Since the Palestine Mandate
conferred the right to settle in the West Bank on the Jews, that right has not
been extinguished, and, under Article 80 of the [United Nations] Charter,
cannot be extinguished unilaterally[19]."
It follows that one therefore cannot describe any Jewish settlement in these
areas as illegal. This naturally includes "outposts" which the
Israeli Government is in the process of dismantling in response to American
pressure. It should be pointed out that President Bush's actions in condemning
settlement building and demanding the demolishing of the outposts, are a
flagrant breach of the U. N. Charter to which his country is a signatory.
Jews from Arab
Countries
Jews have lived in Arab countries for thousands
of years. They were often persecuted and such persecution greatly intensified
from the end of 1947. Three quarters of a million Jews fled to Israel, either
having their property and assets confiscated or having to abandon them[20]. This property and assets have
been valued at one hundred billion dollars[21].
Transfer of
Population
Transfer of population has been successfully put
into practice in the 20th century in different parts of the world. Here are
some of examples of such transfers:[22]
Following World War I there was a compulsory
transfer of population involving nearly two million people between Greece and
Turkey. This transfer had been proposed by Nobel Peace Prize Winner, Fridtjof
Nansen.
At about the same period there was an exchange
of population between Greece and Bulgaria.
After Pakistan split from India in August 1947,
8 million Hindus went from Pakistan to India and 6 millions Muslims in the
reverse direction. This was an operation which had broad international support.
A discussion of the advantages and moral aspects of transfer of population is
given in Part 3 of this paper.
A Historical Survey
on Transfer of Arabs from Eretz Israel
It is a common misconception that the idea of transfer of Arabs from Eretz
Israel originated with Rabbi Meir Kahane. In fact this idea stems from Theodor
Herzl himself. In his private diary entry in June 1895, he wrote regarding the
indigenous non-Jews in the Jewish State, "We shall try and spirit the
penniless population across the border by procuring employment for it in the
transit countries whilst denying it any employment in our own country.[23]" Further, his Charter for
Palestine of 1901, gave the right to transfer Arabs from Palestine to any other
part of the Ottoman Empire[24].
Herzl was not the only Zionist leader to make such proposals. David Ben-Gurion
repeatedly made such proposals in his private diary[25] and in closed meetings[26]. He even said "I favour
compulsory transfer [of Arabs]. I see nothing unethical in it[27]." Immediately after the
establishment of the State of Israel, he gave the order to expel the Arabs from
Lod and Ramla[28]. He was also angry that they had
not been expelled from Nazareth[29],
and that Abba Hushi, who was later the Mayor of Haifa, tried to persuade them
to remain[30].
Chaim Weizmann, the liberal, told the British
Colonial Secretary that "the Jews ... will help in getting Arabs out of
Galilee[31]." In fact, the majority of
the Zionist leaders - for example, Berl Katznelson[32], Leo Motzkin[33], Nachman Syrkin[34], Menachem Ussishkin[35], Yosef Weitz [36]- put forward proposals for such
transfer.
In 1937, the Jewish Agency Executive set up a
Committee[37] whose function was to
"prepare a programme for the transfer of [the Arab] population and to
coordinate the information required for this[38]."
The Six Day War with its consequent large
increase of Arabs under Israel's jurisdiction, spurred on further transfer
proposals. In a Cabinet meeting held a week after the war, Abba Eban and
Pinchas Sapir called for the transfer of the Arab refugees residing in Judea, Samaria
and the Gaza strip to the neigbouring Arab countries[39]. In 1970, Chaim Herzog stated at
a seminar, "Were it possible for us to take a million Arabs and move them
out, it would be good[40]."
Such proposals were not limited to Jews. It was President Franklin Roosevelt
who stated that "Palestine should be for the Jews and no Arabs should be
in it[41]." His predecessor President
Herbert Hoover worked on a plan to resettle the Arabs from Palestine in Iraq[42]. The pro-Arabist Harry St. John
Philby, worked for several years on a transfer plan and said that "Western
Palestine should be handed over completely to the Jews, clear of Arab
population....[43]."
In 1939, Mojli Amin,, a member of the Arab Defense Committee for Palestine, put
forward a proposal to transfer the Arabs of Palestine to Arab countries in
exchange for Jews then living in Arab countries. This proposal was published in
Damascus and distributed among the Arab leaders[44].
Public bodies also put forward transfer proposals. The British Royal Commission
under the Chairmanship of Lord Peel thoroughly studied the situation in Palestine
in 1936/7, interviewed over one hundred witnesses and in their detailed 400
page report unanimously included the recommendation for the transfer of Arabs,
if necessary by compulsion, from the proposed Jewish state[45].
Another British public body to propose transfer
was the British Labour Party who, in a Resolution at their Annual Conference of
1944, overwhelmingly voted for the encouraging of the Arabs of Palestine to
move out[46].
Part 2 - The
"Accord"
Borders of the two
states
Palestine will receive 77% of the area of Mandatory Palestine and its borders
will be those of the country today known as Jordan..
Israel will receive the remaining 23% of this
area and its borders will be those of the area at present under Israeli law and
order, together with the whole of Judea, Samaria and the Gaza strip.
Both Palestine and Israel will have constitutions and an unalterable paragraph
in the constitution of Palestine will be that it is an Arab state. Likewise an
unalterable paragraph in the constitution of Israel will be that it is a Jewish
state.
Population of the
two states
All Jews will be allowed to live in Israel.
An Arab wishing to remain in Israel will have to sign a declaration that he
fully recognises Israel as a Jewish State and that he will always act in
accordance with his declaration. This declaration would then be published twice
in a newspaper in both Israel and Palestine, with an interval of one month
between each publication.
Such an Arab will then be allowed to remain in Israel. However, should at any
time in the future, he not honour his declaration, he will immediately be
transferred to Palestine, without any compensation whatsoever for his assets.
A similar procedure would apply to a Jew wishing to remain in Palestine.
Those Arabs in Israel not wishing to sign such a declaration, will, within
three months of the establishment of the State of Palestine, move to Palestine.
They will be able to take all their movable assets and all their removal and
transport facilities will be provided at public expense. They will be given
every assistance in packing their effects and other arrangements involved with
their moving.
Arabs having immovable assets within the borders of Israel will be compensated
with the assets of Jews who left the Arab countries leaving their assets
behind. Such Jews will have to sign a waiver for such assets and in return will
receive immovable assets of the transferred Arabs. It goes without saying that
these Jews will be able to sell or otherwise dispose of these assets in any way
they desire.
A similar procedure will be implemented for Jews moving from Palestine to
Israel.
Part 3 - Answers to
Objections to "Accord"
Introduction
It is naive
to expect that there will be no objections to this "accord" from the
world and from the Israeli Left. Let us therefore try to anticipate these
objections by giving our answers here.
Is not transfer
"racial cleansing"?
a) Many people erroneously believe, that
population transfers originated with the Nazis who adopted large-scale transfer
of national minorities as part of their "New Order" in Europe[47]. Such transfers are undiluted
"racial cleansing" and must be highly deplored.
In fact, well before the Nazi era, successful and beneficial population
transfers took place. The reason for such transfers was summed up in an article
on the exchange of populations appearing in the "Encyclopaedia Britannica:
"The mixture of populations had led to so much political trouble in modern
times that this unmixing process must be regarded as a very considerable
advantage[48]."
A classic case of such a transfer took place between Greece and Turkey soon
after World War I. This transfer was proposed by the Nobel Peace Prize winner,
Fridtjof Nansen and it involved the transfer of about two million persons.
It was so successful that the British Royal Commission, under the Chairmanship
of Lord Peel, when considering the Palestine problem in 1936/7, introduced it
as a precedent[49]. They unanimously recommended
that a similar population transfer, compulsory if necessary, be implemented in
Palestine. They felt that this was the only constructive and permanent solution
of the Arab-Jewish conflict over Palestine.
This Commission was comprised of six distinguished Englishmen[50] with highly respected backgrounds
and it could not be suggested that their motives were "racial
cleansing." Since then a further three Nobel Peace Prize Winners[51], two American Presidents[52] and many distinguished Jews[53] and non-Jews[54] have proposed the transfer of
Arabs from Palestine.
Over 65 years have passed since the Royal Commission made this recommendation.
Today relations between the Arabs and the Jews are no better than they were
then. If anything, terrorism and the negative relation of Arabs to the State of
Israel are increasing from year to year. In the early years of the State of
Israel, there were two Arab parties in the Knesset allied to the dominant Mapai
(Labour) party. These two parties had a total of 5 seats[55]. However, as time went on they
disappeared and were replaced by Arab nationalistic parties, each trying to be
more extreme than the next!
b) Of course, mass transfer of population, or,
for that matter, transfer of individuals is not to be undertaken lightly, but
it is sometimes the only solution to a problem. It was a former director of the
Pan-European Union who wrote of population transfer, "To cut the cancer
from a sick body is not cruel, it is necessary[56]."
Let us not pretend that transfer is not painful. People are uprooted from their
homes, moved to a different location and then have to reorganise their lives.
But what is the alternative? Continual wars, terrorism, numerous people who are
killed and maimed for life. As the Jewish writer Israel Zangwill wrote on this
question, "One single act of compulsion is better for both sides than
perpetual friction[57]."
c) One should mention here that the Government
of Israel has forcibly transferred Jews. This was done with the full support of
the Left, who made no suggestion that it was "ethnic cleansing"! This
occurred in 1982 when Israel transferred the thousands of Jews living in the
various settlements in the Sinai peninsula, including the entire city of Yamit.
This was absolutely against the will of those settlers and they were even
removed in cages! They were given no option to remain[58].
d) Section 4 paragraph 5 of the
"Geneva Accord" of Beilin et al.. states that 100,000 Jews at present
living in Judea. Samaria and the Gaza strip will be compulsorily transferred to
within the borders of their intended State of Israel[59]. They obviously do not consider
such compulsory transfer of all the Jews from their intended State of
Palestine to be "ethnic cleansing." There is no option included
for these Jews to remain in the intended State of Palestine. In contrast, no
Arab would be required to leave the intended State of Israel.
Why not the pre-1967
borders?
One might well ask why not make the borders of Israel identical to those prior
to the Six Day War and those of the Palestine state the areas of Judea, Samaria
and the Gaza Strip?
There are a number of answers to this question:
a) In the partition plan of November 1947,
Palestine west of the River Jordan was divided into two states, an Arab state
and a Jewish state, and the plan precisely defined the borders of each of these
states. As a result of the Arab attack on the emerging Jewish state, the War of
Independence followed and Israel acquired part of the area of the intended Arab
state, (we shall call the resultant borders the "1949 borders"). As a
result of a further attack in 1967, Israel acquired the remainder of the area
allocated to the intended Arab state, (and we shall call the resultant borders
the "1967 borders").
One could call the United Nations 1947 borders, borders which were recognised
by this world body. However, the areas acquired in the War of Independence and
in the Six Day War, have the same status - namely, areas acquired during
a war. One could therefore understand (although not agree with) those wanting
to fix the borders of the Jewish and Arab states according to the 1947 borders.
But why should those on the Left choose the 1949 borders, rather than the 1967
borders, for the future borders of Israel?
b) One does not require a degree in War Studies
to realise that the 1949 borders of Israel were indefensible. There was the
very narrow waist - a mere 15 km[60].
- on the coastal strip, making it easy for an enemy to bisect Israel. There was
also the narrow Jerusalem corridor, surrounded on three sides by Jordan making
it easy to besiege Jerusalem.
c) A few weeks after the end of the Six Day War,
the United States Secretary of Defence asked Earle Wheeler, the Chairman of the
American Joint Chiefs of Staff, to put forward "the minimum territory, in
addition to that held on 4 June 1967, Israel might be justified in retaining in
order to permit a more effective defense against possible conventional Arab
attack and terrorist raids." In Wheeler's secret memorandum, he considered
that this minimum area included about two thirds of the area of Judea
and Samaria and the entire Gaza Strip[61].
d) The Security Council Resolution 242 of
November 1967 states that Israel has the "right to live in peace within
secure and recognized boundaries[62]."
Those of 1949 were certainly not "secure boundaries"!
e) A few days before the outbreak of the Six Day
War, Jordan, (who then thought she would conquer Israel!) told the Security
Council, "The [Armistice] Agreement [of 1949] did not fix boundaries; it
fixed the demarcation line[63]."
f) It was Abba Eban, who was on the left-wing of
the Israel Labour Party, who said, "We have openly said that the map will
never be the same as on June 4, 1967. For us, this is a matter of security and
of principles. The June map is for us equivalent to insecurity and danger. I do
not exaggerate when I say that it has for us something of a memory of Auschwitz[64]."
Conclusion
There have been enough wars, bloodshed, killing
and maiming during the last hundred years in the conflict between the Jews and
the Arabs.
The time has more than come to put an end to
this. It can be done by implementing this "accord" and in this way
both Arabs and Jews will be able to live unmolested by each other in their own
states.
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Tuesday, September 4, 2007
"OCCUPIED TERRITORIES" OR "DISPUTED TERRITORIES
FROM "OCCUPIED TERRITORIES" TO "DISPUTED TERRITORIES"
Dore Gold
"Occupation" as an Accusation / The Terminology of Other Territorial
Disputes / No Previously-Recognized Sovereignty in the Territories /
Aggression vs. Self-Defense / Israeli Rights in the Territories / After
Oslo, Can the Territories be Characterized as "Occupied"?
"Occupation" as an Accusation
At the heart of the Palestinian diplomatic struggle
against Israel is the repeated assertion that the Palestinians of the
West Bank and Gaza Strip are resisting "occupation." Speaking recently
on CNN's Larry King Weekend, Hanan Ashrawi hoped that the U.S. war on
terrorism would lead to new diplomatic initiatives to address its root
"causes." She then went on to specifically identify "the occupation
which has gone on too long" as an example of one of terrorism's sources.1 In other words, according to Ashrawi, the violence of the intifada emanates from the "occupation."
Mustafa Barghouti, president of the Palestinian
Medical Relief Committees and a frequent guest on CNN as well,
similarly asserted that: "the root of the problem is Israeli
occupation."2 Writing in the Washington Post on
January 16, 2002, Marwan Barghouti, head of Arafat's Fatah PLO faction
in the West Bank, continued this theme with an article entitled: "Want
Security? End the Occupation." This has become the most ubiquitous line
of argument today among Palestinian spokesmen, who have to contend with
the growing international consensus against terrorism as a political
instrument.
This language and logic have also penetrated the
diplomatic struggles in the United Nations. During August 2001, a
Palestinian draft resolution at the UN Security Council repeated the
commonly used Palestinian reference to the West Bank and Gaza Strip as
"occupied Palestinian territories." References to Israel's "foreign
occupation" also appeared in the Durban Draft Declaration of the UN
World Conference Against Racism. The Libyan ambassador to the United
Nations, in the name of the Arab Group Caucus, reiterated on October 1,
2001, what Palestinian spokesmen had been saying on network television:
"The Arab Group stresses its determination to confront any attempt to
classify resistance to occupation as an act of terrorism."3
Three clear purposes seem to be served by the
repeated references to "occupation" or "occupied Palestinian
territories." First, Palestinian spokesmen hope to create a political
context to explain and even justify the Palestinians' adoption of
violence and terrorism during the current intifada. Second, the
Palestinian demand of Israel to "end the occupation" does not leave any
room for territorial compromise in the West Bank and Gaza Strip, as
suggested by the original language of UN Security Council Resolution
242 (see below).
Third, the use of "occupied Palestinian
territories" denies any Israeli claim to the land: had the more neutral
language of "disputed territories" been used, then the Palestinians and
Israel would be on an even playing field with equal rights.
Additionally, by presenting Israel as a "foreign occupier," advocates
of the Palestinian cause can delegitimize the Jewish historical
attachment to Israel. This has become a focal point of Palestinian
diplomatic efforts since the failed 2000 Camp David Summit, but
particularly since the UN Durban Conference in 2001. Indeed, at Durban,
the delegitimization campaign against Israel exploited the language of
"occupation" in order to invoke the memories of Nazi-occupied Europe
during the Second World War and link them to Israeli practices in the
West Bank and Gaza Strip.4
The Terminology of Other Territorial Disputes
The politically-loaded term "occupied territories"
or "occupation" seems to apply only to Israel and is hardly ever used
when other territorial disputes are discussed, especially by interested
third parties. For example, the U.S. Department of State refers to
Kashmir as "disputed areas."5 Similarly in its Country Reports on Human Rights Practices,
the State Department describes the patch of Azerbaijan claimed as an
independent republic by indigenous Armenian separatists as "the
disputed area of Nagorno-Karabakh."6
Despite the 1975 advisory opinion of the
International Court of Justice establishing that Western Sahara was not
under Moroccan territorial sovereignty, it is not commonly
accepted to describe the Moroccan military incursion in the former
Spanish colony as an act of "occupation." In a more recent decision of
the International Court of Justice from March 2001, the Persian Gulf
island of Zubarah, claimed by both Qatar and Bahrain, was described by
the Court as "disputed territory," until it was finally allocated to
Qatar.7
Of course each situation has its own unique
history, but in a variety of other territorial disputes from northern
Cyprus, to the Kurile Islands, to Abu Musa in the Persian Gulf -- which
have involved some degree of armed conflict -- the term "occupied
territories" is not commonly used in international discourse.8
Thus, the case of the West Bank and Gaza Strip
appears to be a special exception in recent history, for in many other
territorial disputes since the Second World War, in which the land in
question was under the previous sovereignty of another state, the term
"occupied territory" has not been applied to the territory that had
come under one side's military control as a result of armed conflict.
No Previously-Recognized Sovereignty in the Territories
Israel entered the West Bank and Gaza Strip in the
1967 Six-Day War. Israeli legal experts traditionally resisted efforts
to define the West Bank and Gaza Strip as "occupied" or falling under
the main international treaties dealing with military occupation.
Former Chief Justice of the Supreme Court Meir Shamgar wrote in the
1970s that there is no de jure applicability of the 1949 Fourth
Geneva Convention regarding occupied territories to the case of the
West Bank and Gaza Strip since the Convention "is based on the
assumption that there had been a sovereign who was ousted and that he
had been a legitimate sovereign."
In fact, prior to 1967, Jordan had occupied the
West Bank and Egypt had occupied the Gaza Strip; their presence in
those territories was the result of their illegal invasion in
1948, in defiance of the UN Security Council. Jordan's 1950 annexation
of the West Bank was recognized only by Great Britain (excluding the
annexation of Jerusalem) and Pakistan, and rejected by the vast
majority of the international community, including the Arab states.
At Jordan's insistence, the 1949 Armistice
Line, that constituted the Israeli-Jordanian boundary until 1967, was
not a recognized international border but only a line separating
armies. The Armistice Agreement specifically stated: "no provision of
this Agreement shall in any way prejudice the rights, claims, and
positions of either Party hereto in the peaceful settlement of the
Palestine questions, the provisions of this Agreement being dictated exclusively by military considerations" (emphasis added) (Article II.2).
As noted above, in many other cases in recent
history in which recognized international borders were crossed in armed
conflicts and sovereign territory seized, the language of "occupation"
was not used -- even in clear-cut cases of aggression. Yet in the case
of the West Bank and Gaza, where no internationally recognized sovereign control previously existed, the stigma of Israel as an "occupier" has gained currency.
Aggression vs. Self-Defense
International jurists generally draw a distinction
between situations of "aggressive conquest" and territorial disputes
that arise after a war of self-defense. Former State Department Legal
Advisor Stephen Schwebel, who later headed the International Court of
Justice in the Hague, wrote in 1970 regarding Israel's case: "Where the
prior holder of territory had seized that territory unlawfully, the
state which subsequently takes that territory in the lawful exercise of
self-defense has, against that prior holder, better title."9
Here the historical sequence of events on June 5, 1967, is critical, for Israel only entered the West Bank after
repeated Jordanian artillery fire and ground movements across the
previous armistice lines. Jordanian attacks began at 10:00 a.m.; an
Israeli warning to Jordan was passed through the UN at 11:00 a.m.;
Jordanian attacks nonetheless persisted, so that Israeli military
action only began at 12:45 p.m. Additionally, Iraqi forces had crossed
Jordanian territory and were poised to enter the West Bank. Under such
circumstances, the temporary armistice boundaries of 1949 lost all
validity the moment Jordanian forces revoked the armistice and
attacked. Israel thus took control of the West Bank as a result of a defensive war.
The language of "occupation" has allowed
Palestinian spokesmen to obfuscate this history. By repeatedly pointing
to "occupation," they manage to reverse the causality of the conflict,
especially in front of Western audiences. Thus, the current territorial
dispute is allegedly the result of an Israeli decision "to occupy,"
rather than a result of a war imposed on Israel by a coalition of Arab
states in 1967.
Israeli Rights in the Territories
Under UN Security Council Resolution 242 from
November 22, 1967 -- that has served as the basis of the 1991 Madrid
Conference and the 1993 Declaration of Principles -- Israel is only
expected to withdraw "from territories" to "secure and recognized
boundaries" and not from "the territories" or "all the
territories" captured in the Six-Day War. This deliberate language
resulted from months of painstaking diplomacy. For example, the Soviet
Union attempted to introduce the word "all" before the word
"territories" in the British draft resolution that became Resolution
242. Lord Caradon, the British UN ambassador, resisted these efforts.10
Since the Soviets tried to add the language of full withdrawal but
failed, there is no ambiguity about the meaning of the withdrawal
clause contained in Resolution 242, which was unanimously adopted by
the UN Security Council.
Thus, the UN Security Council recognized that
Israel was entitled to part of these territories for new defensible
borders. Britain's foreign secretary in 1967, George Brown, stated
three years later that the meaning of Resolution 242 was "that Israel
will not withdraw from all the territories."11
Taken together with UN Security Council Resolution 338, it became clear
that only negotiations would determine which portion of these
territories would eventually become "Israeli territories" or
territories to be retained by Israel's Arab counterpart.
Actually, the last international legal allocation
of territory that includes what is today the West Bank and Gaza Strip
occurred with the 1922 League of Nations Mandate for Palestine, which
recognized Jewish national rights in the whole of the Mandated
territory: "recognition has been given to the historical connection of
the Jewish people with Palestine and to the grounds for reconstituting
their national home in that country." The members of the League of
Nations did not create the rights of the Jewish people, but rather
recognized a pre-existing right, that had been expressed by the
2,000-year-old quest of the Jewish people to re-establish their
homeland.
Moreover, Israel's rights were preserved under the
United Nations as well, according to Article 80 of the UN Charter,
despite the termination of the League of Nations in 1946. Article 80
established that nothing in the UN Charter should be "construed to
alter in any manner the rights whatsoever of any states or any peoples
or the terms of existing international instruments." These rights were
unaffected by UN General Assembly Resolution 181 of November 1947 --
the Partition Plan -- which was a non-binding recommendation that was
rejected, in any case, by the Palestinians and the Arab states.
Given these fundamental sources of international
legality, Israel possesses legal rights with respect to the West Bank
and Gaza Strip that appear to be ignored by those international
observers who repeat the term "occupied territories" without any
awareness of Israeli territorial claims. Even if Israel only seeks
"secure boundaries" that cover part of the West Bank and the
Gaza Strip, there is a world of difference between a situation in which
Israel approaches the international community as a "foreign occupier"
with no territorial rights, and one in which Israel has strong
historical rights to the land that were recognized by the main bodies
serving as the source of international legitimacy in the previous
century.
After Oslo, Can the Territories be Classified as "Occupied"?
In the 1980s, President Carter's State Department
legal advisor, Herbert Hansell, sought to shift the argument over
occupation from the land to the Palestinians who live there. He
determined that the 1949 Fourth Geneva Convention governing military
occupation applied to the West Bank and Gaza Strip since its paramount
purpose was "protecting the civilian population of an occupied
territory."12 Hansell's legal
analysis was dropped by the Reagan and Bush administrations;
nonetheless, he had somewhat shifted the focus from the territory to
its populace. Yet here, too, the standard definitions of what
constitutes an occupied population do not easily fit, especially since
the implementation of the 1993 Oslo Agreements.
Under Oslo, Israel transferred specific powers from
its military government in the West Bank and Gaza to the newly created
Palestinian Authority. Already in 1994, the legal advisor to the
International Red Cross, Dr. Hans-Peter Gasser, concluded that his
organization had no reason to monitor Israeli compliance with the
Fourth Geneva Convention in the Gaza Strip and Jericho area, since the
Convention no longer applied with the advent of Palestinian
administration in those areas.13
Upon concluding the Oslo II Interim Agreement in
September 1995, which extended Palestinian administration to the rest
of the West Bank cities, Foreign Minister Shimon Peres declared: "once
the agreement will be implemented, no longer will the Palestinians
reside under our domination. They will gain self-rule and we shall
return to our heritage."14
Since that time, 98 percent of the Palestinian
population in the West Bank and Gaza Strip has come under Palestinian
jurisdiction.15 Israel transferred 40
spheres of civilian authority, as well as responsibility for security
and public order, to the Palestinian Authority, while retaining powers
for Israel's external security and the security of Israeli citizens.
The 1949 Fourth Geneva Convention (Article 6)
states that the Occupying Power would only be bound to its terms "to
the extent that such Power exercises the functions of government in
such territory." Under the earlier 1907 Hague Regulations, as well, a
territory can only be considered occupied when it is under the
effective and actual control of the occupier. Thus, according to the
main international agreements dealing with military occupation,
Israel's transfer of powers to the Palestinian Authority under the Oslo
Agreements has made it difficult to continue to characterize the West
Bank and Gaza as occupied territories.
Israel has been forced to exercise its residual
powers in recent months only in response to the escalation of violence
and armed attacks instigated by the Palestinian Authority.16 Thus, any increase in defensive Israeli military deployments today around Palestinian cities is the direct consequence of a Palestinian decision
to escalate the military confrontation against Israel, and not an
expression of a continuing Israeli occupation, as the Palestinians
contend. For once the Palestinian leadership takes the strategic
decision to put an end to the current wave of violence, there is no
reason why the Israeli military presence in the West Bank and Gaza
cannot return to its pre-September 2000 deployment, which minimally
affected the Palestinians.
Describing the territories as "Palestinian" may
serve the political agenda of one side in the dispute, but it prejudges
the outcome of future territorial negotiations that were envisioned
under UN Security Council Resolution 242. It also represents a total
denial of Israel's fundamental rights. Furthermore, reference to
"resisting occupation" has simply become a ploy advanced by Palestinian
and Arab spokesmen to justify an ongoing terrorist campaign against
Israel, despite the new global consensus against terrorism that has
been formed since September 11, 2001.
It would be far more accurate to describe the West
Bank and Gaza Strip as "disputed territories" to which both Israelis
and Palestinians have claims. As U.S. Ambassador to the UN Madeleine
Albright stated in March 1994: "We simply do not support the
description of the territories occupied by Israel in the 1967 War as
occupied Palestinian territory."
* * *
Notes
1. CNN Larry King Weekend, "America
Recovers: Can the Fight Against Terrorism be Won?," November 10, 2001
(CNN.com/transcripts).
2. Mustafa Barghouti, "Occupation is the Problem," Al-Ahram Weekly Outline, December 6-12, 2001.
3. Anne F. Bayefsky, "Terrorism and Racism: The Aftermath of Durban," Jerusalem Viewpoints, no. 468, December 16, 2001.
4. See Bayefsky, op. cit. U.S. and
European officials may use the term "occupation" out of a concern for
the humanitarian needs of the Palestinians, without identifying with
the PLO political agenda at Durban or at the UN.
5. U.S. Department of State, Consular Information Sheet: India (http://travel.state.gov/india.html) November 23, 2001.
6. 1999 Country Reports on Human Rights Practices: Azerbaijan, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, February 25, 2000.
7. Case Concerning Maritime
Delimitation and Territorial Questions between Qatar and Bahrain, March
15, 2001, Judgment on the Merits, International Court of Justice, March
16, 2000, paragraph 100.
8. The Japanese Foreign Ministry
does not use the language of "ending the Russian occupation of the
Kurile Islands," but rather resolving "the Northern Territory Issue."
(www.mofa.go.jp/region/europe/russia/territory). U.S. Department of
State "Background Notes" describe the Turkish Republic of Northern
Cyprus as the island's "northern part [which is] under an autonomous
Turkish-Cypriot administration supported by the presence of Turkish
troops" -- not under Turkish occupation.
9. Stephen Schwebel, "What Weight to Conquest," American Journal of International Law, 64 (1970):345-347.
10. Vernon Turner, "The Intent of UNSC 242 -- The View of Regional Actors," in UN Security Council Resolution 242: The Building Block of Peacemaking (Washington: Washington Institute for Near East Policy, 1993), p. 27.
11. Meir Rosenne, "Legal Interpretations of UNSC242," in UN Security Council Resolution 242: The Building Block of Peacemaking, op. cit., p. 31.
12. Under the Carter administration,
Hansell's distinction led, for the first time, to a U.S. determination
that Israeli settlement activity was illegal since it purportedly
contravened Article 49 of the Fourth Geneva Convention which stated
that "the Occupying Power shall not deport or transfer parts of its own
civilian population into the territory it is occupying." Subsequently,
the Reagan and Bush administrations altered the legal determination of
the Carter period, changed the U.S. voting pattern at the UN, and
refused to describe Israeli settlements as illegal, even if American political
objections to settlement activity continued to be expressed. One reason
was that the Fourth Geneva Convention applied to situations like that
of Nazi-occupied Europe, which involved "forcible transfer, deportation
or resettlement of large numbers of people." This view was formally
stated by the U.S. Ambassador to the UN in Geneva, Morris Abram, on
February 1, 1990, who had served on the U.S. staff at the Nuremberg
trials and, hence, was familiar with the legal intent behind the 1949
Fourth Geneva Convention.
13. Dr. Hans-Peter Gasser, Legal
Adviser, International Committee of the Red Cross, "On the
Applicability of the Fourth Geneva Convention After the Declaration of
Principles and the Cairo Agreement," paper presented at the
International Colloquium on Human Rights, Gaza, September 10-12, 1994.
Gasser did not state that in his view the territories were no longer
"occupied," but he did point out the legal complexities that had arisen
with Oslo's implementation.
14. Foreign Minister Shimon Peres's
Address at the Israeli-Palestinian Interim Agreement Signing Ceremony,
Washington, D.C., September 28, 1995.
15. Ehud Barak, "Israel Needs a True Partner for Peace," New York Times, July 30, 2001.
16. The present intifada violence
resulted from a strategic decision taken by Yasser Arafat, as admitted
by numerous Palestinian spokesmen:
"Whoever thinks the intifada broke out because of the despised Sharon's
visit to the Al-Aqsa Mosque is wrong....This intifada was planned in
advance, ever since President Arafat's return from the Camp David
Negotiations," admitted Palestinian Communications Minister 'Imad
Al-Faluji (Al-Safir,
March 3, 2001, trans. MEMRI). Even earlier, Al-Faluji had explained
that the intifada was initiated as the result of a strategic decision
made by the Palestinians (Al-Ayyam, December 6, 2000).
Arafat began to call for a new intifada in the first few months of the
year 2000. Speaking before Fatah youth in Ramallah, Arafat "hinted that
the Palestinian people are likely to turn to the intifada option" (Al-Mujahid, April 3, 2000).
Marwan Barghouti, the head of Fatah in the West Bank, explained in
early March 2000: "We must wage a battle in the field alongside of the
negotiating battle...I mean confrontation" (Ahbar Al-Halil, March 8, 2000). During the summer of 2000, Fatah trained Palestinian youths for the upcoming violence in 40 training camps.
The July 2000 edition of Al-Shuhada
monthly, distributed among the Palestinian Security Services, states:
"From the negotiating delegation led by the commander and symbol, Abu
Amar (Yasser Arafat) to the brave Palestinian people, be ready. The
Battle for Jerusalem has begun." One month later, the commander of the
Palestinian police told the official Palestinian newspaper Al-Hayat Al-Jadida:
"The Palestinian police will lead together with the noble sons of the
Palestinian people, when the hour of confrontation arrives." Freih Abu
Middein, the PA Justice Minister, warned that same month: "Violence is
near and the Palestinian people are willing to sacrifice even 5,000
casualties" (Al-Hayut al-Jadida, August 24, 2000 -- MEMRI).
Another official publication of the Palestinian Authority, Al-Sabah,
dated September 11, 2000 -- more than two weeks before the Sharon visit
-- declared: "We will advance and declare a general intifada for
Jerusalem. The time for the intifada has arrived, the time for intifada
has arrived, the time for Jihad has arrived."
Arafat advisor Mamduh Nufal told the French Nouvel Observateur
(March 1, 2001): "A few days before the Sharon visit to the Mosque,
when Arafat requested that we be ready to initiate a clash, I supported
mass demonstrations and opposed the use of firearms." Of course, Arafat
ultimately adopted the use of firearms and bomb attacks against Israeli
civilians and military personnel. On September 30, 2001, Nufal detailed
in al-Ayyam that Arafat actually issued orders to field commanders for violent confrontations with Israel on September 28, 2000.
* * *
Dore Gold is President of the Jerusalem Center for
Public Affairs. Previously, he served as Israel's Ambassador to the
United Nations (1997-1999). This Jerusalem Viewpoints is based on an earlier Jerusalem Issue Brief on this subject.
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