Comment: This piece demonstrates the danger of anti-Israel professors , under the guise of "academic freedom", being allowed to manage the discourse of Israel's legal position with regard to the disputed territories.Left unchallenged for more than a decade,these "students" assume positions in the legal system, including becoming judges who end up ruling against Israel's rights to land guaranteed under UN 242.It is no wonder why our enemy has gained so much traction adopting the mantra "It is the illegal occupation that is the root cause of the Israeli-Palestinian situation". After all, if Israel's "legal elite" say we are breaking the law, it must therefore be true. I agree with the author of this piece that the Israeli Knesset must act now. The unmentionable truth is that all Israeli administrations from 1967 to the present have lacked the courage to stand up to the international community and especially to the USA and declared what is not only right (morally and ethically),but also within Israel's international right-the territories are disputed and given nothing but intransigent behavior by our enemy for 40 years, we now annex ...


Israel must end the “occupation” by act of Knesset
A Legal Discourse on Occupation
by Howard Grief (Canadian Lawyer who made aliya many years ago.)

It was a nerve-racking experience to attend an international conference of distinguished jurists on “Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context”, held on June 5-7, 2007 in Jerusalem and Tel-Aviv. This event was sponsored by three organizations promoting international humanitarian law, human rights and Israeli-Arab co-existence: The Minerva Center for Human Rights, based at the Hebrew University of Jerusalem, the International Committee of the Red Cross and the Konrad Adenauer Foundation. All the speakers and panelists referred repeatedly to Israel’s “occupation” of “Palestinian territory”, and alleged that the “West Bank” and Gaza are “occupied territories” under international law and that Israel’s legal status in those territories is that of an “Occupying Power”.

No dissenting voices were heard, though one jurist, Prof. Yaffa Zilbershatz of Bar-Ilan University did say that the “occupation” was legally established within the framework of international law. I came to the conference as an observer to witness in person the folly and self-flagellation of Israel’s legal elite who give vent to the most anti-Zionist and pro-Arab contentions in scholarly fashion. It was disgraceful to hear speaker after speaker holding the same unshakable assumption, that Israel is in serious breach of the laws of belligerent occupation, as laid down in the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949, particularly as regards the establishment of “illegal” settlements in the “occupied territories” and its unmet obligations as an “Occupying Power” towards the Arabs.

The only conclusion that can be drawn from this Conference is that the Law Faculties of Israeli Universities are filled with professors and legal scholars who advocate the Arab case concerning the “occupation”, and who have indoctrinated their impressionable students with the same injurious views. By railing against the “occupation”, the legal scholars who populate the law faculties libel and berate their own country and encourage foreign scholars to join in the castigation of Israel for perpetuating the “occupation”. Not least of all, they give aid and comfort to Israel’s enemies.

It is becoming more and more difficult to refute the falsehood of “occupation”, because this unfounded accusation has been given credence by no less an august institution than the Supreme Court of Israel. Beginning principally with the 1979 Eilon Moreh case and extending to recent cases involving the erection of the security fence and the Disengagement Implementation Law, the Court has affirmed that Israel is indeed an Occupying Power in Judea, Samaria and Gaza and governs these territories by virtue of the rules of belligerent occupation, exactly as Arab leaders have maintained. To overturn this libelous falsehood, it would require a special law to be passed by the Knesset, a law affirming Jewish legal rights to all parts of the Land of Israel, especially the so-called areas under “occupation”. Such a law must state specifically that Israel does not occupy – in the legal sense – any area of the Land of Israel.

The idea that Judea, Samaria and Gaza are under Israel’s “occupation” was born on June 6-7, 1967, when the Israel Defense Forces overran and repossessed these territories in the Six-Day War and the National Unity Government headed by Levi Eshkol instantly applied Article 43 of the Hague Regulations to keep the existing laws in force. The invoking of this article of international law by the Government was based on the legal advice of then Military Advocate General and future Supreme Court President Meir Shamgar, as well as several others who concurred in that decision.

However, this step was in direct contradiction to the existing Israeli constitutional law embodied in the law known as the Area of Jurisdiction and Powers Ordinance enacted by the Provisional State Council on September 16, 1948, and two proclamations that were issued by Prime Minister and Defense Minister David Ben-Gurion just prior to the enactment of this law. These two proclamations – the Jerusalem Proclamation of August 2, 1948 and the Land of Israel Proclamation of September 2, 1948 – required the application of the law of the State to areas of the Land of Israel re-conquered by the IDF outside of the recommended UN partition borders of November 29, 1947. Both the law and the two Proclamations were made retroactive to May 15, 1948, thus creating one legal aggregate upon which to base future annexations of re-conquered territory that was part of the Land of Israel.

In contrast to the practice followed by Ben-Gurion’s Government in 1948, the Eshkol government in 1967 applied not only the Hague Regulations relating to “occupied territories”, but also the provisions of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. This gave birth to the assumption in the eyes of the world and in Israel itself that the liberated territories of the Land of Israel and the Jewish National Home were indeed “occupied territories”. Israel chose to apply the Fourth Geneva Convention voluntarily and not to annex the liberated territories (except for eastern Jerusalem and the Golan Heights) out of demographic concerns and to keep alive the hope of signing peace treaties with the neighboring Arab states. But this provided no justification for the violation of the existing constitutional law or for failing to apply the law of the State to the liberated territories as Ben-Gurion did in 1948.

The term “occupation” is defined in article 42 of the Hague Regulations, where it states that “territory is considered occupied when it is actually placed under the authority of the hostile army and the occupation extends only to the territory where such authority has been established and can be exercised”. The premise of Article 42 is that the territory in question belongs to the Occupied Hostile State which lost this territory in a war with the Occupying State. Since Jordan was never the legitimate sovereign of Judea and Samaria – its occupation of this territory during the 1948-1949 Israeli War of Liberation has always been unacceptable under international law – there never was any “occupation” of Jordanian territory.
For the same reason, under neither the Hague Rules nor the Fourth Geneva Convention was there any “occupation” of the Gaza Strip, since Egypt was never the sovereign of that territory and, in fact, never claimed to be. Furthermore, the term “occupied Palestinian territory” is a non-sequitur, since with the termination of the Mandate for Palestine there is no state called “Palestine” from which any land was taken in war, and the laws of belligerent occupation apply only to independent states and not to non-state entities such as the “Palestinian Authority” and the so-called “Palestinian People”. In truth, the areas of Mandated Palestine that are said to be under Israel’s occupation are actually integral parts of the Jewish National Home and belong to the Jewish People under both Israeli constitutional law and international law as decided in the post-World War One global settlement and the carving-up of the Ottoman Turkish Empire.

The Jewish National Home is not merely a meaningless phrase or slogan. It was and still is a concept of international law that was accepted by the 52 member states of the League of Nations which confirmed the Mandate for Palestine on July 24, 1922. In addition, the United States approved the boundaries of the Jewish National Home, including Judea, Samaria and Gaza, when it signed a treaty with Great Britain respecting the Mandate on December 3, 1924; this treaty was then proclaimed by President Calvin Coolidge on December 5, 1925 as part of the law of the United States. The boundaries of Mandated Palestine were those previously set down in the Franco-British Boundary Convention of December 23, 1920 and embraced all the so-called “occupied territories” of today.

The first and most important speaker at the Conference was Prof. Yoram Dinstein of Tel-Aviv University. In his opinion, as stated personally to the present writer, the Arabs of Palestine inherited the rights of the ousted sovereign Jordan, which transferred those rights to the “Palestinians” as a result of King Hussein’s Declaration of July 31, 1988 dissolving Jordan’s legal and administrative links with the West Bank. Dinstein’s opinion is untenable since, as already noted, Jordan was never the recognized or legitimate holder of sovereignty over what it called its “West Bank”. It acquired this territory in May 1948 through an unprovoked act of aggression against the nascent Jewish State; it had no right to this territory and then illegally annexed it two years later. Only two countries recognized this illegal annexation, Pakistan and Great Britain, though the latter did not recognize the Jordanian appropriation of the eastern part of Jerusalem. Not even the Arab League of states recognized the Jordanian annexation of the conquered areas of Mandated Palestine.

There remains only one way to end the myth of Israeli “occupation” of lands that belong by law to the Jewish People. A future Government of Israel must abolish the military regime adopted in June 1967 for Judea, Samaria and Gaza, and replace the existing military laws and regulations with the law of the State of Israel.

http://www.israpundit.com/2006/
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