Strik­ing out

Jerusalem Post - - COMMENT & FEATURES -

Yonatan Gher, in “No­body should buy this oc­cu­pa­tion” (The Fifth Col­umn, Fe­bru­ary 9), makes sev­eral points. One is that “Is­raeli set­tle­ments in the oc­cu­pied ter­ri­to­ries are il­le­gal ac­cord­ing to in­ter­na­tional law. The Fourth Geneva Con­ven­tion of 1949 pro­hibits coun­tries from mov­ing pop­u­la­tions into ter­ri­to­ries oc­cu­pied in a war.”

Gher is wrong on sev­eral lev­els pur­suant to in­ter­na­tional law.

First, the ap­pli­ca­ble sec­tions of the 4th Geneva Con­ven­tion are Part IV, Sec­tions 47-78, which do not ap­ply to Judea and Sa­maria. A re­view of these ar­ti­cles, as well as a re­view by the then-di­rec­tor-gen­eral for Gen­eral Af­fairs of the In­ter­na­tional Com­mit­tee of the Red Cross con­clu­sively show that “oc­cu­pied ter­ri­to­ries” refers only to sit­u­a­tions where these ter­ri­to­ries con­sti­tuted a prior le­git­i­mate power and not an amor­phous en­tity for which there was no clear ti­tle. This clearly was not the case with Judea and Sa­maria. Rather, it was clearly con­tested af­ter the ces­sa­tion of the Bri­tish Man­date.

Se­cond, Prof. Ye­huda Z. Blum, in his sem­i­nal 1968 Is­rael Law Re­view ar­ti­cle “The Miss­ing Rev­er­sioner: Re­flec­tions on the Sta­tus of Judea and Sa­maria,” states that “upon the ab­ro­ga­tion of the Man­date re­spon­si­bil­ity by Great Bri­tain, sovereignty was not cre­ated by the in­hab­i­tants of that ter­ri­tory .... The King­dom of Jor­dan never ac­quired the sta­tus of a le­git­i­mate sov­er­eign over Judea and Sa­maria .... Af­ter Is­rael se­cured the ter­ri­to­ries af­ter the Jor­da­nian ag­gres­sion, the le­gal stand­ing of Is­rael in the ter­ri­to­ries is that of a state which is law­fully in con­trol of ter­ri­tory in re­spect of which no other state can show bet­ter ti­tle .... Since no state can make out a le­gal claim that is equal to that of Is­rael, this rel­a­tive su­pe­ri­or­ity of Is­rael may be suf­fi­cient un­der in­ter­na­tional law to make Is­raeli pos­ses­sion of Judea and Sa­maria in­dis­tin­guish­able from ab­so­lute ti­tle.”

One can rea­son­ably posit that Gher has “struck out” on sev­eral le­gal lev­els in pre­sent­ing a pic­ture of his Amnesty trap­pings. The al­le­ga­tion that Judea and Sa­maria are oc­cu­pied ter­ri­to­ries is a ca­nard that can­not be ac­cepted on le­gal con­sid­er­a­tions. I. GENDELMAN Jerusalem

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