Recently, the Israeli Supreme Court refused to reconsider a decision to demolish the unrecognized Bedouin village of Umm Al-Hiran, and ordered to evict all its residents, Adalah centre reported on Sunday. Adalah, the legal centre for Arab minority rights in Israel, reported that the Supreme Court rejected its extraordinary motion for a second hearing on the case. They requested that the court reconsider its decision to approve Israel’s plane to evict the village’s 1,000 Palestinian Bedouin residents, in order to build Jewish town of Hiran, and expand the Yatir Forest over its ruins.
The Court’s refusal to reconsider its 5-May-2015 ruling effectively means that the eviction and demolition procedures against the village can proceed. In response to the decision, Adalah emphasized, according to Al-Ray, that “The Court, today, wrote yet another chapter – the fourth, to be precised – in the history of expulsion and displacement of the Bedouin families since 1948, despite the fact that they were moved to these villages by the Israeli military government in 1956’’.
What About the Netanyahu Policy?
There is no iota of doubt to say that Netanyahu’s policy on the settlement issue is a reflection on political hedonism. Though the disposition of settlements is a matter for the final status negotiations, the question of where the final border will be between Israel and a Palestinian entity will likely be influenced by the distribution of these Jewish towns in Judea and Samaria (the border with Gaza was unofficially defined following Israel’s withdrawal). Israel wants to incorporate as many settlers as possible within its borders.
Israeli Withdrawal From Gaza
On 6 June 2004, the Israeli government adopted a decision on Israel’s unilateral disengagement plan from the Gaza Strip. The decision was passed by the Knesset in the Disengagement Plan Implementation Law, 5765-2005, and in August-September of 2005 Israel withdrew unilaterally from the Gaza Strip.
In January 2006, the Islamic Hamas movement won the elections to the Palestinian Legislative Council. Several rounds of confrontations between PLO activists and Hamas in the Gaza Strip ended with Hamas gaining control over the Strip in June 2007, after taking over military installations that had previously been under PLO control, followed by the execution of officers of the PLO security forces.
In response, PA leader Abu Mazen dismissed the Palestinian Unity Government. Since then, control of Arab towns in the West Bank has been in the hands of Fatah (the largest PLO faction), while Hamas controls the Gaza Strip. A number of reconciliation agreements have been declared between Fatah and Hamas, but none so far has reached the point of being able to establish a united Palestinian leadership.
Israel’s withdrawal from the Gaza Strip did not contribute to peace between the parties either. The disengagement was followed by the firing of thousands of rockets from the Gaza Strip at Israel, resulting in Israel’s decision to take military action in the Gaza Strip twice – first in Operation Cast Lead in 2008, followed by Operation Pillar of Defence (in the Hebrew original, “Pillar of Cloud,” after Exodus 13:21) in 2012.
Backdrop to the Israeli Adopted Policy
The West Bank and Gaza were all part of British Mandate territory until 1948. In the War of Independence Egypt invaded and occupied (in violation of international law) the Gaza Strip, and Jordan – the West Bank. Egypt has not claimed title to the Gaza Strip. Jordan, on the other hand, purported to annex the West Bank in 1950, but the annexation was not recognized in international law.
Only Great Britain – subject to a reservation regarding East Jerusalem – and Pakistan recognized the annexation attempt, which was also opposed vehemently by all Arab states.
In May 1950, Egypt, joined by Syria, Saudi Arabia and Lebanon, demanded the expulsion of Jordan from the Arab League on these grounds.
Eventually, a compromise was reached and on 12 June 1950 the Arab League declared that Jordan was holding the territory as a “trustee”.
In 1967, following the Six-Day War, the territories, which had originally been designated as part of the Jewish national home according to the Mandate document, reverted to Israeli control.
Israeli Government’s Misuse of Schwebel’s Indoctrination
Stephen M. Schwebel, former State Department Legal Advisor, who later headed the International Court of Justice in The Hague, notes that a country acting in self-defence may seize and occupy territory when necessary to protect itself. Schwebel also observes that a state may require, as a condition for its withdrawal, security measures designed to ensure its citizens are not menaced again from that territory.
As for the Jews, Israel was in lawful control of those territories, that no other state could show better title than Israel thereto, and that these territories were not “occupied” in international law. Indeed, Israel was entitled to declare that it has applied its sovereignty thereto.
In effect, because of political and other considerations, Israel applied its sovereignty only to East Jerusalem and the Old City.
This was done by the application of Israeli law, jurisdiction and administration by the government to these areas by virtue of Amendment No. 11 to the Law and Administration Ordinance, 5708-1948, which was adopted by the Knesset on 27 June 1967.
In this matter, Israel acted in the same way it did after the War of Independence, applying its jurisdiction, by virtue of the Area of Jurisdiction and Powers Ordinance, 5708-1948,60 to all Eretz Israel territories that were held by the Israel Defence Forces (IDF), whether within or beyond the boundary lines designated for the State of Israel by the United Nations Partition Resolution of 29 November 1947, among them large parts of the south and the Negev, as well as the Jerusalem Corridor, Acre, Nazareth, Jaffa, Lod, Ramle, Ashdod, Ashkelon, Beer Sheva and West Jerusalem.
Israel’s guiding perception since its establishment, expressed in this Ordinance, was that Israel does not “annex” territories that were part of the Mandate for Palestine prior to 1948, since it does not consider itself an occupying state therein.
On the same date, 27 June 1967, Israel also enacted the Protection of Holy Places Law, 5727-1967, which assured protection of these sites from desecration and any other violation, and freedom of access for “members of the different religions to the places sacred to them or their feelings.” On 30 July 1980 the Knesset enacted Basic Law: Jerusalem Capital of Israel, which stipulates that: “Jerusalem, complete and united, is the capital of Israel.”
Regarding the remaining areas of Yesha, the official position designates them as “disputed territories” to which Israel has a priority claim of right. Since they were not taken from any other sovereign state, The Hague Regulations 1899/1907 and the Fourth Geneva Convention do not apply to them.
However, Israel chose voluntarily to observe and abide by the humanitarian provisions of the Geneva Convention. On 13 July 1987, Israel announced its position in a letter to the International Committee of the Red Cross (ICRC), as follows: Israel maintains that in view of the sui generis status of Judea, Samaria and the Gaza Strip, the de jure applicability of the Fourth Convention to these areas is doubtful. Israel prefers to leave aside the legal questions of the status of these areas and has decided, since 1967, to act de facto in accordance with the humanitarian provisions of the Convention.
In 1967, Theodor Meron, legal counsel to the Israeli Foreign Ministry stated in a legal opinion to Adi Yafeh, the Political Secretary of the Prime Minister, “My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention. The legal opinion, forwarded to Levi Eshkol, was not made public at the time, and the Labour cabinet progressively sanctioned settlements anyway; this action paved the way for future settlement growth. In 2007, Judge Meron stated that: “I believe that I would have given the same opinion today”.
The Hugo Grotius Doctrine of Self-Defense vs. Israeli War
The father of international law, Hogo Grotius concludes that neither persons nor states have an absolute right of self- defence.
Prime facie, the fact of the matter is that Israel waged the war of 1967 on the false notion of invoking the doctrine of pre-emption or anticipatory self-defence.
ICJ’s Ruling Rejects Israeli Stance of Altering the Boundaries for Security Purposes
The Court made do with a general determination that the Fourth Geneva Convention applies to any occupied territory where there is an armed conflict between two or more contracting states. Israel and Jordan were contracting states to the Convention at the time when the armed conflict broke out in 1967. The Court therefore concluded that the “Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties. Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out.
The Court accordingly finds that that Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories” (emphasis added – TE). The Hague Regulations also apply as customary international law in occupied territories.
The Court’s conclusions are based on what the Court calls a “brief analysis” of the historical background to the status of the Occupied Palestinian Territory (paras. 70-77 of the Advisory Opinion), an analysis which is so imprecise that Judge Higgins, in her separate opinion, referred to the presentation of the facts by the Court as a “history” (in inverted commas) which, in her opinion, is “neither balanced nor satisfactory.”
According to the Court (para. 70), “[a]t the end of the First World War, a class ‘A’ Mandate for Palestine was entrusted to Great Britain . . . in the interest of the inhabitants of the territory.” The Court refers in this respect to its Advisory Opinion in the matter of the International Status of South West Africa. But this analysis is inaccurate. It will be recalled that Palestine was entrusted to Great Britain as a Mandate in the interest of the Jewish people, which at the time did not constitute a majority of the local population in the territory, a fact which distinguished this Mandate from all other mandates granted at that time.