Israel is accused of occupying the West Bank and formerly, Gaza, and these territories are described as “the occupied Palestinian territories.” Not only are they not occupied in a legal sense, they are not “Palestinian” lands in a sovereign sense..
The Fourth Geneva Convention (FGC) is a treaty between signatory states that are called High Contracting Parties (HCP). It regulates the obligations of one HCP who occupies the land of another HCP. It defines the terms “Occupying Power” and “Occupied State” only. Thus this convention does not apply to the territories because they were not the land of any HCP. They have never been the land of an HCP.
Prior to 1967, Jordon was in control of these territories, just as Israel is currently in control. Jordanian sovereignty over these lands was never recognized and ultimately Jordan relinquished any claims over these lands. The FGC was never applied when Jordan ruled the land and it shouldn’t be applied now that Israel does.
Yet the International Court of Justice, when it gave an advisory opinion on the Israeli security fence, “identified Jordan as the occupied power of the West Bank”. According to David Matas, an international lawyer of considerable repute, in his well argued book Aftershock http://www.amazon.com/Aftershock-David-Matas/dp/1550025538:
"The judgment moves on from this legal reasoning to labeling the West Bank as Palestinian occupied territory. But this labelling is based on the ethnic composition of the West Bank, not on its legal status...This assertion by the ICJ that the West Bank is occupied territory is a contortion the Court imposed on the law to get to its desired results of slapping the label “occupier” on Israel..shows that the primary concern of the court was to connect to pro-Palestinian rhetoric. As a result the Palestinians consider themselves the 'occupied power'”.
Matas notes “That the Geneva Conventions on the Laws of War do not recognize the legal possibility of the occupation of a people, only the occupation of the territory of a state.” A Protocol to these conventions does recognize such a possibility but Israel is not a signatory to it.
It must be clearly understood that Israel’s presence in Judea and Samaria is not illegal and the UN has never claimed it to be. In fact Resolution 242 permits Israel to remain until an agreement on “secure and recognized borders”.
The Palestinians have no greater claim to a state than any minority group in any other state that wants a state of their own. The Basques and the Kurds come to mind. Despite their ethnic culture, majority populations in the areas they claim and rebellions, no one is demanding that they be given statehood.
Matas also takes issue with Dore Gold and others for calling the land “disputed land”, because others argue that all of Israel is disputed land.
Israel has accepted the PA as the negotiating party. Nevertheless Israel knows the PA is currently an illegitimate government, having overstayed its mandate, and speaks for no one, much less Hamas.
The anti-Zionists argue the Jewish communities in Judea and Samaria are illegal and rely solely on the provisions of the Fourth Geneva Convention (FGC) which provides that an occupying power is prohibited from transferring civilian populations to occupied territories. They say that the prohibition against transfer includes a prohibition against encouragement to settle. The matter has never been put to a court for interpretation or determination. But the International Committee of the Red Cross (ICRC) explains “that this provision was intended to prevent a practice adopted during the Second World War in which certain powers transferred portions of their populations to occupied territories for political and racial reasons or in order, as they claimed to colonize those territories.”
Nazi Germany enforced two kinds of transfers but in both cases they were forced transfers. The victims were the persons being forced, not the people already there.
The anti-Zionists reject the notion that the proscription is against only forced transfers and argue that the FGC proscribes inducement to move as well. But how can there be a crime of inducement when the person committing the act and moving to the area, has done nothing wrong. How can you be guilty of a crime by inducing someone to do something which is not a crime?
Furthermore, this inducement is said to be be a War Crime on an equal footing with Genocide. The equation is ludicrous. And if the people relocate on their own volition and not due to inducements, what then? What
individuals would be held responsible?
Even if someone in Israel was convicted of offering inducements to relocate, the people themselves would not be affected and could remain in the communities they created if they wished.
Matas opines, “The interpretation defies the ordinary understanding of criminal responsibility where the person committing the act is the primary wrongdoer and the person inducing the act is only an accessory.”
Matas concludes. “There is all the difference in the world between forcible transfer, the offense of the Geneva Convention, and voluntary settlement, even where the settlement is encouraged (by providing inducements). Transfer is something that is done to people. Settlement is something people do.”
The Rome Statute of the International Criminal Court made it an offense to ”directly or indirectly” transfer populations. The ICRC has attempted to interpret “indirect transfers” as “inducements” thereby making them a crime. But the GC certainly does not do that and that currently is the prevailing opinion.
This did not prevent the International Court of Justice (ICJ), in its advisory opinion noted above, from finding that the 'settlements' violated international law. No reasons were given and no authority cited. But elsewhere it
expressed the opinion that the combination of the settlements and the fence amounted to de facto annexation. It ignored Israel argument that the fence was not intended to be the border but was merely a security measure. While actual annexation may be a violation of the FGC, the communities and the fence certainly were not.an annexation or a violation of the FGC. After all, what about the 'settlements' left 'outside' on the west side of the fence? Are they an annexation too?
The ICJ did not conclude that someone in Israel was guilty of inducing 'settlements' or in any other way of transferring populations.
Matas expands on his dim view of the advisory opinion. He considers it an attempt to discredit Israel that actually discredited the ICJ. He prays that the ICC will be more judicious. The ICJ, after all, is an organ of the UN who requested it to provide the opinion. Similarly the UN requested Goldstone to investigate Cast Lead and produce a report. This report, like the advisory opinion, was just what the UN "ordered”, but the opinion of the ICJ was just that, an opinion, and is not legally binding on anyone.
The US has traditionally, with the Carter administration being the only exception, refrained from describing the Judea and Samaria Jewish communities as illegal and instead has called them 'obstacles to peace'. In September 2009, Obama went before the United Nations and declared
“America does not accept the legitimacy of continued Israeli settlements.” This is closer to Carter’s position but falls short of declaring them illegal. Nevertheless, it prompted John Bolton http://www.aipnews.com/talk/forums/thread-view.asp?tid=8227&posts=2
to say “This is the most radical anti-Israel speech I can recall any president making.”
All this ignores the fact that the Palestine Mandate encouraged close settlement of the land by Jews. This right has never been rescinded and the UN has no right to rescind it. So Jews from anywhere actually have the right to settle in Judea and Samaria and the PA and UN have no right to say otherwise.
To demand that the future Palestinian state be Judenrein, free of Jews, is reprehensible and discriminatory. The West should not condone it, it would never condone it anywhere else or about anyone else, but it does here.
Baruch atem b'Shem, Yeshua