March 31, 2011
What a perfectly ridiculous rejoinders by Messrs Bloom amd Millis to my original post. The capacity for denial of Israel’s rights on this issue is breathtaking.
So how can something that was legal in the first instance, become illegal the next. The answer in this case is that it can not.
No less than four Prime Ministers of Israel, Barak, Sharon, Olmert and Netanyahu have indicated that in the interests of peace they have every intention of withdrawing from territory captured in the Six day War and making painful concessions. In fact Israel has already withdrawn from a majority of land captured when it made its peace treaty with Egypt which gives the lie to Mr Bloom’s claims as does the withdrawal from Gaza.
I note that Mr Bloom goes in for verbal acrobatics by reading into the 4th Geneva Convention words that were never meant to be there. He knows or should know that the convention was put in place to deem it a war crime for the forcible deportation of the civilians of a country which is occupied by a foreign invasion force and was notably aimed at what the Nazis did principally to the Jews who were transported to the concentration camps in Eastern Europe. It does not refer to the creation of Jewish communities in land liberated by Israel in the 1967 Six day War. How one can say that “indirectly” which by the way was added to the original convention some thirty years after the original convention was passed (at the behest no less of the Arabs) refers to Jews moving back to the Etzion Bloc that was captured and illegally annexed by the Jordanians in 1947 after they slaughtered the people lawfully living on Jewish owned land, beggars belief.
Further, Mr Bloom states that resolution 242 requires withdrawal from territories occupied in the 1967 war. Neither the Security Council nor the General Assembly, which met in an Emergency Special Session, called upon Israel to withdraw to the armistice lines established in 1949 – in common parlance the 1967 borders. Now as Mr Bloom concedes some say that the absence of the word “the” means it requires withdrawal from just some of the territories. Unfortunately Mr Bloom does not also mention that the framers of this resolution notable among them Lord Carradon clearly indicated that whilst the Arabs and the Russians wanted the word “the” it was deliberately left out because the parties were aware that Israel would not be expected to retreat back to the 1949 Armistice Line which was the position at the outbreak of hostilities in June 1967 but would in all probability retain part of the land liberated in that War. The Park Notice analogy employed by Mr Bloom might have had some relevance if it had been framed by UN Ambassadors following a war as it was not it is irrelevant in trying to understand the position here.
Furthermore as Professor Ruth Gavison pointed out in a paper on Resolution 242 the effect of this particular resolution was discussed by the Secretary General of the UN in a press conference given on March 19, 1992. Replying to a question, the Secretary General said that “[a] resolution not based on Chapter VII is non-binding. For your information, Security Council Resolution 242 (1967) is not based on Chapter VII of the Charter.” In a statement of clarification it was said that “the resolution is not enforceable since it was not adopted under Chapter VII.” Thus it would seem that the resolution was a mere recommendation. Oh dear Mr Bloom fails again.
Professor Gavison continues: The exact meaning of Resolution 242’s preamble is hotly debated: does the statement therein on “inadmissibility of the acquisition of territory by war” imply that, in the opinion of the Security Council, Israel’s retention of the territories occupied in 1967 was, and is, illegal? To answer this question, it is necessary to draw attention to the fundamental difference between military occupation and the acquisition of territory. The former does not entail any change in a territory’s national status, although it does give the occupier certain powers as well as the responsibilities and the right to stay in the territory until peace has been concluded. Mere military occupation of the land does not confer any legal title to sovereignty. Israel has not annexed Judea and Samaria.
Due to the prohibition of the use of force under the UN Charter, the legality of military occupation has been the subject of differing opinions. It is generally recognized that occupation resulting from a lawful use of force (i.e., an act of self-defence) is legitimate. Thus, the 1970 UN General Assembly “Declaration on Principles of International Law concerning Friendly Relations and Cooperation” It is generally recognized that occupation resulting from a lawful use of force (i.e., an act of self-defense) is legitimate among States,” and its 1974 “Definition of Aggression” Resolution, upheld the legality of military occupation provided the force used to establish it was not in contravention of the UN Charter. These two resolutions are considered to be based on customary law or on UN Charter principles.
In the words of Prof. Rosalyn Higgins, “[t]here is nothing in either the Charter or general international law which leads one to suppose that military occupation pending a peace treaty is illegal.” The preamble of this Security Council resolution denounces “the acquisition of territory by war,” but does not pronounce a verdict on the occupation under the circumstances of 1967.
Professor Gavison indicates that it is revealing to compare the version finally adopted with the formula used in the draft submitted by India, Mali, and Nigeria: there the relevant passage read that “[o]ccupation or acquisition of territory by military conquest is inadmissible under the Charter of the United Nations.” It is, therefore, of some significance that the version of the preamble finally adopted, while reiterating the injunction against the acquisition of territory, offers no comment on military occupation. Consequently, it cannot be argued that the Security Council regarded Israel’s presence in these territories as illegal. As an act of self-defence, this military occupation was and continues to be legitimate, until a peace settlement can be reached and permanent borders defined and agreed upon.
Other interpretations of the passage — suggesting, for example, that the passage was intended to denounce any military occupation — contradict not only its wording, but also the established rules of customary international law.
Its form, its place in the preamble rather than in the body of the resolution, and a comparison with the subsequent passages all clearly indicate its concern with the implementation of existing norms rather than an attempt to create a new one.
Finally to address the outrageous claim that Israel is involved in ethnic cleansing in the Jordan Valley. What it is doing is maintaining the rule of law. Whether the parties be they Arab or Jew who unlawfully set up “outposts” on state land are removed from those areas if necessary by force. Mr Bloom would be hard pressed to prove that Israel does not also destroy Jewish illegal outposts and forcibly remove Jewish settlers as well as Arab ones.
Unfortunately for both Mr Millis and Mr Bloom International Law makes a clear distinction between land “occupied” during a war of aggression and land taken as a result of a defensive war. The failure or refusal to admit this distinction explains why so many enemies of Israel falsely claim that Israel unlawfully occupies the "West Bank".