Legal Perceptivity Exercised by Israeli Chief Court
The Supreme Court of Israel held that the fundamental rules of international law accepted as binding by all “civilized” nations were incorporated in the domestic legal system of Israel. The Nuremberg Military Tribunal determined that the articles annexed to the Hague IV Convention of 1907 were customary law that had been recognized by all civilized nations.
In the past, the Supreme Court argued that the Geneva Convention insofar it is not supported by domestic legislations, “does not bind this Court, its enforcement being a matter for the states which are parties to the Convention.” They ruled that “Conventional international law does not become part of Israeli law through automatic incorporation, but only if it is adopted or combined with Israeli law by enactment of primary or subsidiary legislation from which it derives its force.” However, in the same decision the Court ruled that the Fourth Hague Convention rules governing belligerent occupation did apply, since those were recognized as customary international law.
The Doctrine of Belligerent Occupation & International Law
In its June-2005 ruling upholding the constitutionality of the Gaza disengagement, the Court determined that “Judea and Samaria” [West Bank] and the Gaza area are lands seized during warfare, and are not part of Israel:
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The Judea and Samaria areas are held by the State of Israel in belligerent occupation. The long arm of the state in the area is the military commander. He is not the sovereign in the territory held in belligerent occupation. (See The Beit Sourik Case, p. 832)
The commander’s power is granted to him by public international law regarding “belligerent occupation”. The legal meaning of this view is twofold: First, Israeli law does not apply in these areas. They have not been “annexed” to Israel. Second, the legal regime, which applies in these areas, is determined by public international law regarding belligerent occupation.
In the centre of this public international law stand the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations). These regulations are a reflection of customary international law. The law of belligerent occupation is also laid out in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention).
Despite the fact that Israel has at all times been a military occupier, it has acted in Jerusalem as if it was a sovereign power. It has annexed both the modern section and the Old City, transformed its demography, physical features and historic character and taken several other measures in violation of the city’s legal status, of international law and of United Nations resolutions. The succession of illegalities, which Israel has committed in Jerusalem, culminated on 30 July 1980, when Israel adopted a law proclaiming the city as its eternal capital. This action was condemned by the Security Council resolution no. 478 on 20 August 1980.
The Palestinian position is that Jerusalem should be the capital of the State of Palestine. The Declaration of Independence adopted by the Palestine National Council in 1988 declared “the establishment of the State of Palestine in the land of Palestine with its capital at Jerusalem”. In the Palestinian view, that claim necessarily involved an assertion of sovereignty over the city. The Palestinian position has received overwhelming support from the Arab and non-aligned countries. The sixth conference of heads of state (governments of non-aligned countries) affirmed a number of basic principles for a comprehensive solution of the conflict, including that “the city of Jerusalem is an integral part of occupied Palestine. It must be evacuated in its entirety and restored unconditionally to Arab sovereignty.”
The Third Islamic summit conference “the Palestine and Al-Quds Al-Sharif session” held in Mecca in January 1981, stressed “the determination of the Palestinian people to maintain their eternal right to the Holy City of Al-Quds or East Jerusalem as the capital of their homeland Palestine, and the insistence of Muslim Governments and peoples alike on their eternal right to the Holy City of Al-Quds, in view of the permanent political, religious, cultural and historical importance of Al-Quds to all Muslims”, and affirmed “the commitment of Islamic States to liberate Al-Quds to become the capital of the independent Palestinian State, and to reject any situation which might infringe on the Arab right to full sovereignty over Al-Quds”. This declaration was adopted in September,1982 at Fez, Morocco.
The Approach International Law Upholds
It is appropriate, therefore, to examine the legal status of Jerusalem under international law and under United Nations resolutions, and to determine whether Israel’s actions have affected its status.
In this examination of the legal status of Jerusalem, it is incumbent to consider the juridical effect of three facts: The right of sovereignty of the people of Palestine over Jerusalem; the internationalization of Jerusalem by the General Assembly of the United Nations in 1947, and the occupation and annexation of the city since 1948.
Not only Israel’s occupation and annexation of Jerusalem lack any legal basis; they also violate international law, the resolutions of the United Nations and the rights of the Palestinians.
Israel’s occupation of Jerusalem, whether in 1948 or in 1967, was an aggression and a flagrant violation of international law.
Israel’s excuse that its forces occupied modern Jerusalem during the war which broke out in 1948 between Israel and Arab states is baseless because Jewish forces had seized and occupied Arab quarters of modern Jerusalem in 1948 before the end of the British mandate and before any Arab armies penetrated Palestine.
Similarly, in 1967, Israel captured the Old City in what it sought to make the world believe was a defensive war when, in fact, it was clearly an aggression on its part. But regardless of whether Israel seized Jerusalem by way of aggression or in the course of a war, its occupation gives it no right to usurp and annex the city.
Furthermore, Israel’s occupation and annexation of Jerusalem violate the resolution of the United Nations, which laid down an international regime for Jerusalem. Israel cannot validly claim any territorial and political rights or benefits by violating a resolution of the United Nations – and, in particular, the very resolution to which it owes its existence.
Finally, Israel’s occupation and annexation of Jerusalem violate the sovereignty of the Palestinians. Such occupation and annexation do not, and cannot, affect or extinguish the inalienable rights of the Palestinians over Jerusalem. The sovereignty of the Palestinians is of a nature that cannot be legally lost or destroyed. As the French Constitution of 03 September 1791, pointed out: “Sovereignty is one, indivisible, inalienable and imprescriptible.”
Israel has not, as a result of its occupation and annexation, acquired sovereignty over Jerusalem. Its status is that of a military occupier. The United Nations has invariably referred to Israel as “the occupying power”. This description was emphasized in the last two resolutions of the Security Council, namely, resolutions no. 476 of 30 June 1980 and no. 478 of 20 August 1980. Both condemned Israel’s actions in Jerusalem.
It is a settled principle of the law of nations that an occupying power does not acquire sovereignty over the occupied territory, nor does its occupation destroy or extinguish the sovereignty of the legitimate sovereign. Belligerent occupation does not result in the transfer of sovereignty in favour of the military occupier, who merely acquires a temporary right of administration.
Findings Led by Irrefutable Academic Truth
Throughout 45 years of occupation, Israel has exploited the imbalance of power between the occupied and the occupier to create “facts on the ground”, with the intention that they would lead to the retention of settlements and their associated infrastructure. These settlements amount to the illegal annexation of territory, and fragment the West Bank, including East Jerusalem, into isolated geographical units. Coupled with the harsh restrictions on freedom of movement between the West Bank and the Gaza Strip, and the illegal regime of closures imposed on the latter, these policies have severely undermined the meaningful exercise of the Palestinian people’s right to self-determination by limiting the possibility of contiguous territory and the ability to freely dispose of natural resources, both of which are essential to the effective fulfilment and enjoyment of such a fundamental right. Recognised as a peremptory norm of international law, violations of the right to self-determination trigger Third State responsibility.
The international legal position that settlements breach international law—adopted by the United Nations Security Council, the European Union and many other international legal bodies, but rejected by Israel—is based on an interpretation of the fourth Geneva Convention article 49, paragraph 6, which states that an occupying power “shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Violations of the convention are considered “war crimes” under international law. Israel is a party to the convention and therefore bound by it.
The Israeli claim to sovereignty over Jerusalem has no substance. It has no basis in nonbinding UN General Assembly Resolution 181 since the resolution never envisaged that Jerusalem would form part of the proposed Jewish State, but a “corpus separatum” subject to an international regime. Nor can the Israeli claim that it acted in self defence in 1948 and 1967 form the basis for a claim to title.
Notwithstanding the Israeli expediency or dilemma – if Israel withdraws toward the 1949 armistice line unilaterally, or as part of a political settlement, many settlers will face one or more options: Remain in the territories (the disengagement from Gaza suggests this may not be possible), expulsion from their homes, or voluntary resettlement in Israel (with financial compensation) – there arises no prompt and warranted “justification” for the Netanyahu government to not follow the “conscience” of international law.
And the conscience of international law upholds the verdict: Israel does not have the right of ownership of the Palestinian territories and lands that it occupied after the 1967 Israeli-Arab Six Day War.