Monday, May 21, 2007

Take Your Olive Branch and Shove It! - Part 4

Today is Day 14,282 of the Maintenance of the Immoral (and Illegal) West Bank Settlements and almost the 40th anniversary of the start of the immoral (and illegal) occupation of the West Bank and Gaza.

Take Your Olive Branch and Shove It! Part 4
Olive Trees and Olive Harvesting

Human and Civil Rights Violations by GOI under International Law

Rabbi Akiva said, “ ‘Love your neighbor as yourself’ Lev. 19:18 - is the major principle of the Torah.”

Isn’t it enough to give factual accounts of vicious, violent JIS attacks on farmers and of indifferent IDF soldiers casually plunging families into poverty by cutting off access to their critically important agricultural crop for most reasonable people to be able to conclude that what is being done to the Palestinians is simply wrong and unjust?

Perhaps, but for some of us, it is important to also point out that what is being done is in violation of a secular laws and/or the laws (teachings, values, etc.) of Judaism.

In this Part 4 I will look at this from the perspective of international law.

THE OCCUPATION ITSELF VIOLATES THESE UN RESOLUTIONS.

One way to begin is to recall that when Israel was admitted to the United Nations, it agreed to be subject to the UN Charter. Article 2 member renounces the acquisition of territory by force.

Based on the “grave situation in the Middle East”, the UN Security Council passed Resolution 242 (1967) on November, 22 emphasizing that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 by which members renounce the acquisition of territory by force. It affirmed that the establishment of a just and lasting peace included the application of these principles: the withdrawal of Israel armed forces from territories occupied in the recent conflict; the respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force; and the necessity for achieving a just settlement of the refugee problem.

Six years later after the Yom Kippur/Ramadan War, the UN Security Council passed Resolution 338 of October 22, 1973 calling upon all parties concerned to start immediately after the cease-fire the implementation of Security Council Resolution 242 (1967) in all of its parts.

It is nearly 40 years since the 1967 war and the GOI of Israel, in violation of these UN Resolutions, continues to be an occupier of territories.

Extensive planning are underway for a mobilization to take place in Washington DC on June 10-11 to protest the occupation coordinated by the US Campaign to End the Israeli Occupation, Jewish Voice for Peace and United for Peace and Justice . Although I will be attending a family function, I encourage all who want to voice their objection to the occupation to attend. Here is an invitation sent by Jewish Voice for Peace. “We want to invite you to participate in the most important Israel-Palestine mobilization ever in Washington, D.C. on June 10 and 11, marking the 40th anniversary of Israel's occupation of the West Bank, East Jerusalem and Gaza. Thousands of people from across the country will converge in front of the Capitol and the White House to say No to U.S. support for the Occupation, a set of violations of international law which have taken a devastating toll on human life. Jewish Voice for Peace is working closely with the march organizers, the US Campaign to End the Occupation and United for Peace and Justice, to make sure there is a strong Jewish presence at the march. That's why we want to invite you to march together with Jews and other Jewish Voice for Peace supporters, and to come with us on the 11th to lobby Congress.”

THE SETTLEMENTS THEMSELVES VIOLATE INTERNATIONAL LAW.

Article 49 of the Fourth Geneva Convention Relative to Civilian Persons in the Time of War, of 1949 states, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Article 35 is similar.

I have already written about the Theodor Meron, legal counsel to the Foreign Ministry, who, in 1967, was asked whether international law allowed settlement in the newly conquered land wrote,

“In a memo marked “Top Secret” Meron wrote unequivocally, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention." In the detailed opinion that accompanied that note, Mr. Meron explained that the Convention, to which Israel was a signatory, forbade an occupying power from moving part of its population to occupied territory. The Golan, taken from Syria, was "undoubtedly 'occupied territory,' " he wrote. Mr. Meron took note of Israel's diplomatic argument that the West Bank was not "normal" occupied territory, because the land's status was uncertain. The prewar border with Jordan had been a mere armistice line, and Jordan had annexed the West Bank unilaterally. But he rejected that argument for two reasons. The first was diplomatic: the international community would not accept it and would regard settlement as showing "intent to annex the West Bank to Israel." The second was legal, he wrote: "In truth, certain Israeli actions are inconsistent with the claim that the West Bank is not occupied territory." For instance, he noted, a military decree issued on the third day of the war in June said that military courts must apply the Geneva Conventions in the West Bank.” New York Times, March 10, 2006, Op-Ed Contributor, Israel's Tragedy Foretold By Gershom Gorenberg

In 1980 the UN Security Council passed Resolution 465 "Settlements and International Law Determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel's policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and .. a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East.”

The International Criminal Court’s Rome Statute (1998) defines “the transfer directly or indirectly by the Occupying Power of parts of its own civilian population into the territory it occupies” as a War Crime indictable by the International Criminal Court.

So the settlements continue to be acknowledged by international law as illegal and possibly an indictable war crime.

ILLEGALITY OF THE SETTLER INTERFERENCE WITH THE OLIVE HARVEST AND THE ISRAELI SECURITY FORCES INACTION

So we have settlers attacking Palestinians, uprooting olive trees and setting up barriers that keep them from harvesting the olives and Israeli security forces not preventing this violence.

THE HAGUE CONVENTION

Article 23 “It is forbidden ..To destroy or seize the enemy’s territory, unless such destruction or seizure be imperatively demanded by the necessities of war. Article 55 The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct. (A right to the use and enjoyment of the fruits or profits of another’s property, without fundamentally changing its substance). Article 56 provides “All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings,”

For example, should there be a war and the travelling soldiers be hungry, they would be allowed to take olives from an olive tree. The Israeli security forces, however, would be prohibited from doing any harm to the trees and would have an affirmative obligation to safeguard the trees.

THE FOURTH GENEVA CONVENTION

Article 53 of the Fourth Geneva Convention provides that “any destruction by the Occupying power of real or personal property belonging individually or collectively to private persons, or to the State, or other public authorities or social or cooperative organizations is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

Article 147 of the Fourth Geneva Convention considers “extensive destruction and appropriate of property, not justified by military necessity and carried out unlawfully and wantonly” as a grave breach of the Convention and thus constitute a war crime.

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human. Article 17 provides: “Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property.”

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

This covenant, adopted by a UN General Assembly Resolution in 1966, was one of two conventions under the Universal Declaration of Human Rights, the other being the International Covenant on Civil and Political Rights.

Article 1 provides “All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.”

Article 2 provides “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Article 11 provides “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

THE UN INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

This convention was adopted by General Assembly Resolution 2106 (XX) of December 21, 1965, Entry into Force January 4, 1969
Date signed by Israel: 7 March 1966 Date ratified by Israel: 3 January 1979

Article 5 - In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution; The right to freedom of movement and residence within the border of the State; The right to own property alone as well as in association with others; The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration; The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks.

UNEDITED VERSION OF THE CONCLUDING OBSERVATIONS OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION’S COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION’S HEARINGS ON THE 10TH TO 13TH PERIODIC REPORTS OF ISRAEL ADOPTED ON MARCH 6 & 8, 2007

32. The Committee reiterates its concern about the position of the State party that the Convention does not apply in the Occupied Palestinian Territories and the Golan Heights. Such a position cannot be sustained under the letter and spirit of the Convention, or underinternational law as also affirmed by the International Court of Justice. The Committee also recommends that the State party ensures that Palestinians enjoy full rights under the Convention without discrimination based on citizenship and national origin.

33. The Committee, while noting that the Supreme Court has recommended that the course of the wall be changed to prevent disproportionate harm on specific Palestinian communities, is concerned that the State party has chosen to disregard the 2004 Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territories. The Committee is of the opinion that the wall and its associated regime raise serious concerns under the Convention, since they gravely infringe a number of human rights of Palestinians residing in the territory occupied by Israel. These infringements cannot be justified by military exigencies or by the requirements of national security or public order. The Committee recommends that the State party cease the construction of the wall in the Occupied Palestinian Territories, including in and around East Jerusalem, dismantle the structure therein situated and make reparation for all damage caused by the construction of the wall. The Committee also recommends that the State party take action to give full effect to the 2004 Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territories.

Interestingly enough, as I wrote previously in the account of the Palestinian farmers, the Israeli Defense Force uprooted trees for the illegal wall without warning and without enabling the farmers to go to court to appeal the decision. In addition, when their trees were uprooted, the farmers did not receive any compensation for their losses, thereby losing their property arbitrarily.

34. The Committee is deeply concerned that the severe restrictions on the freedom of movement in the Occupied Palestinian Territories targeting a particular national or ethnic group, especially through the wall, checkpoints, restricted roads and permit system, have created hardship and have had a highly detrimental impact on the enjoyment of human rights by Palestinians, in particular their rights to freedom of movement, family life, work, education and health. The State party should review these measures to ensure that restrictions on freedom of movement are not systematic but only of temporary and exceptional nature, are not applied in a discriminatory manner, and do not lead to segregation of communities. The State party should ensure that Palestinians enjoy their human rights, in particular their rights to freedom of movement, family life, work, education and health.

35. The Committee notes with concern the application in the Occupied Palestinian Territories of different laws, policies and practices to Palestinians on the one hand, and to Israelis on the other hand. It is concerned, in particular, by information about unequal distribution of water resources to the detriment of Palestinians, about the disproportionate targeting of Palestinians in house demolitions and about the application of different criminal laws leading to prolonged detention and harsher punishments for Palestinians for the same offences. The State party should ensure equal access to water resources to all without any discrimination. The Committee also reiterates its call for a halt to the demolition of Arab properties particular in East Jerusalem and for respect for property rights irrespective of the ethnic or national origin of the owner. Although different legal regimes may apply to Israeli citizens living in the Occupied Palestinian Territories and Palestinians the State party should ensure that the same crime is judged equally not taking into consideration the citizenship of the perpetrator.

37. The Committee is concerned by the persistence of violence perpetuated by Jewish settlers, in particular in the Hebron area. The Committee recommends that the State party increase its efforts to protect Palestinians against such violence. The State party should ensure that such incidents are investigated in a prompt, transparent and independent manner, are prosecuted and sentenced, and that avenues for redress are offered to the victims.

I should say more but I am tired, tired of reading international human and civil rights laws that the GOI has chosen to ignore and to violate.

Deuteronomy 16:20 – “Justice, justice shall you pursue that you may live and inherit the land which God gave you” and the footnote in the 1980 Hertz Edition “(T)here is international justice, which demands respect for the personality of every national group, and proclaims that no people can of right be robbed of its national life or territory, its language or spiritual heritage.

2 comments:

webrand said...

This is bullshit.

"Individual or mass FORCIBLE transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive." [my emphasis]

This is from the desk reference on the Geneva Conventions as published on the Red Crescent website. http://www.palestinercs.org/IHL_Refrence... , 4th Geneva Convention, Article 49 Deportations, Transfers and Evacuations

The conclusion that the Geneva Convention makes voluntarily settlement in Judea and Samaria illegal is nonsense. The Geneva Convention prohibits FORCED transfers of population such as had been mandated by the Nazis in WWII. Those Jews settling in Judea and Samaria did so voluntarily, precisely in accordance with the provisions of Article 95 of the Treaty of Sevres which transferred sovereignty over the area to the British Mandate in trust for a national homeland for the Jews. The British were supposed to encourage "close settlement on the land".

This was a policy incorporated in the Balfour Declaration which became the policy of the WWI Allies in the San Remo conference of 1920 and was therefore adopted as Article 95 of the Treaty of Sevres. There is nothing in the 4th Geneva Convention which changes that policy although quite a few Arab and neo-nazi websites state the opposite.

Ron Fox said...

To: Webrand

Thank you for taking the time to comment on this post.

You have accurately quoted one sentence of Article 49 of the 4th Geneva Convention. This provision prohibits the individual or mass forcible transfer, as well as deportations of protected persons FROM occupied territories to the territory of the Occupying Power or to that of any other country, occupied or not.”

Because of this provision, if the government of Israel passes a Law of Return that would allow Palestinians to return to the homes in Israel for which they still have a key, the Palestinians could not be forced to return to the towns which their ancestors had lived in for centuries.

What you quoted, however, is only one sentence of Article 49 of the 4th Geneva Convention. I have copied all of Article 49 and reprinted it below.

What you did not include in your comment was the last sentence, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

This provision explicit prohibits the government of Israel from transferring Jewish Israelis into the West Bank.

It is this provision that Theodor Meron, legal counsel to the Foreign Ministry, was referring to when, in 1967, in response to the question whether international law allowed settlement in the newly conquered land wrote, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention."

It is this provision that the Legal Adviser of the United States Department of State was referring to in 1978 when he gave an opinion that “the establishment of the civilian settlements in those territories is inconsistent with international law.”

The government of Israel acted contrary to Article 49 and its own legal adviser when it did not forcibly remove: Rabbi Moshe Levinger from Hebron in 1968; 12,500 Jewish Israeli settlers in 53 settlements in 1980; the 100,500 settlers in 120 settlements in 1992; and the 245,000 settlers there now.

Thank you again for your comment.


Article 49, Fourth Geneva Convention

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons do demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated. The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.

The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.