The 'West Bank is occcupied' meme
If anyone ever claims to you that Israel's Supreme Court said that the 'West Bank' is occupied, here is how you should respond. The Israeli Supreme Court has never ruled that the West Bank is occupied. It has assumed it arguendo because the Israeli government decided in 1967 to grant residents of the West Bank all humanitarian protections in the laws of belligerent occupation as a matter of good will. While the cases of the Supreme Court sometimes say that the law that applies to the West Bank is the law of belligerent occupation without further explanation, there is not a single case where they have examined the issue and come to the legal conclusion that the West Bank is belligerently occupied territory.File that one somewhere.
It is true that the Israeli Supreme Court has been increasingly sloppy about this in recent years (the last 6-8 years), and one can therefore find lots of sentences like “the West Bank is occupied territory,” these are not and never have been sentences that are part of the holding of the court. To repeat: there is not a single case where they have examined the issue, considered pro and con arguments, and come to the legal conclusion that the West Bank is belligerently occupied territory.
Additionally, the question of whether the laws of belligerent occupation apply to the West Bank is legally distinct from the question of sovereignty. The argument that the International Court of Justice used to apply the laws of belligerent occupation to the West Bank is that belligerent occupation laws apply whenever territory is captured in war, no matter what its sovereign status. In fact, the ICJ specifically threw up its hands when it came to ruling what the sovereign status of the West Bank is.
In other words, the only way for serious international lawyers to argue that the laws of belligerent occupation apply to the West Bank is to concede that laws of occupation have nothing to do with sovereignty, and therefore to concede that they cannot use the laws of occupation to argue against Israeli sovereign rights, or in favor of alleged Palestinian sovereign rights.
Labels: Judea and Samaria, occupation
posted by Carl in Jerusalem @ 8:45 AM
4 Comments:
"The argument that the International Court of Justice used to apply the laws of belligerent occupation to the West Bank is that belligerent occupation laws apply whenever territory is captured in war, no matter what its sovereign status...:"
If Geneva applies, sovereignty not disposed of, but that sovereignty (imputed to Israel) would then contradict the belligerent occupation restrictions on settlement--so you'd end up annulling the very concept of occupation.
Israel, unlike Jordan, has never renounced its claim of sovereignty over Yesha. At the most, it has said its willing to share the land with the Arabs. The rights of lawful military occupation have never precluded a valid Israeli claim of sovereignty.
Under the Oslo Accords, Israeli presence was agreed to by the PA in areas B & C to provide security. They are there with the palestinian's approval. There's no justification for calling that "occupation"
well, whose military occupation? If you apply Geneva standards to Palestinian populated territories you limit the right of Israelis to repopulate (a no no)--Article 49 of Fourth Convention: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies".
If you want to assert the right to permit Israeli citizens to return to Yesha and E. Jerusalem (because of disputed sovereignty or fundamental Israel sovereign claims) is this a conventional military occupation? a hybridized occupation? A unique situation? Should we call it an occupation?
With Oslo, Israel no longer has a Military Occupation or Civil Occupation services office, AFIK--the Palestinians can say what they want but Oslo itself implicitly permits Israeli citizens to live and operate within the Israeli zones of control.
Post a Comment
<< Home