A failed memo

Why the con­clu­sions of a 1978 US State Depart­ment mem­o­ran­dum have been repu­di­ated

The Jerusalem Post - The Jerusalem Post Magazine - - CONTENTS - • By EU­GENE KONTOROVIC­H

Afull cen­tury af­ter the in­ter­na­tional com­mu­nity met in Paris and San Remo to es­tab­lish a post-im­pe­rial world or­der founded on in­de­pen­dent na­tion states, the in­ter­na­tional com­mu­nity has, un­der the lead­er­ship of US Pres­i­dent Don­ald Trump, be­gun to fully im­ple­ment the prom­ises and un­der­tak­ings they made then.

At San Remo, the Jews were promised a “na­tional home” in Pales­tine, and an ex­plicit right to “set­tle” through­out the ter­ri­tory, which in­cluded Judea and Sa­maria. The in­ter­na­tional com­mu­nity did noth­ing to im­ple­ment this prom­ise, or en­sure its ful­fill­ment in the face of re­luc­tance by the Manda­tory govern­ment and grow­ing anti-im­mi­grant xeno­pho­bia by lo­cal Arabs. It was left en­tirely up to the Jews to trans­late the in­ter­na­tional prom­ises into facts on the ground, and in 1948 they par­tially did so, though with much of the ter­ri­tory, in­clud­ing the holy sites, fall­ing to the Jor­da­ni­ans.

Af­ter Israel re­took these ter­ri­to­ries in 1967, much of the in­ter­na­tional com­mu­nity pre­tended its ear­lier guar­an­tees did not ex­ist. Far from al­low­ing Jewish “set­tle­ment,” they claim that the ar­eas Jor­dan eth­ni­cally cleansed of Jews in 1948 must in­def­i­nitely re­main Jew-free zones, po­liced by Is­raeli to pre­vent any He­braic in­fil­tra­tion.

Yet 100 years af­ter the Paris Con­fer­ence, a leader emerged who was pre­pared to ac­tu­al­ize the com­mit­ments the League of Na­tions had then made. Pres­i­dent Trump’s recog­ni­tion of a united Jerusalem, and Sec­re­tary of State Mike Pom­peo’s con­clu­sion that Jewish com­mu­ni­ties in Judea and Sa­maria are not war crimes rep­re­sent a proper un­der­stand­ing of the le­gal sig­nif­i­cance of the League of Na­tions Man­date. More im­por­tantly, they are per­haps the first lead­ers who refuse to sub­or­di­nate Israel’s le­gal rights to po­lit­i­cal black­mail from Arab states.

The post-World War I peace ar­range­ments, be­gun in Paris in 1919 and cul­mi­nat­ing in San Remo the fol­low­ing year, gave rise to the states of Syria, Le­banon, Iraq, Jor­dan and Israel, as well as the bor­ders of those coun­tries and all of their neigh­bors.

It is easy to crit­i­cize the ar­ti­fi­cial­ity of the coun­tries es­tab­lished by the League of Na­tions. But in a world, and par­tic­u­larly a re­gion, where eth­nic and re­li­gious groups live in­ter­mixed and not sep­a­rated into grid-like boxes, some ar­bi­trari­ness of bor­ders is in­evitable. Ev­ery League of Na­tions-man­dated ter­ri­tory lumped an un­happy mi­nor­ity in with a ma­jor­ity: the Mus­lims in with Le­banon’s Chris­tians, the Kurds with Iraq’s Arabs, ev­ery­one with ev­ery­one in Syria. The process was im­per­fect, but the known al­ter­na­tives are what ex­isted be­fore – a vast pan-eth­nic em­pire – or ev­ery group try­ing to carve out its own sliver of ter­ri­tory, which ends up look­ing like Syria over the past eight years.

THIS IS why the post-World War I bor­ders are over­whelm­ingly ac­cepted as the bind­ing sov­er­eign bor­ders of the coun­tries that arose in the Bri­tish Manda­tory ter­ri­to­ries. Both Kur­dish se­ces­sion and Syr­ian an­nex­a­tion of Le­banon get no in­ter­na­tional sup­port be­cause they would call into ques­tion Manda­tory bor­ders.

There is one place in the Mid­dle East where the in­ter­na­tional com­mu­nity takes the en­tirely op­po­site po­si­tion about Manda­tory bor­ders. And that, of course, is Israel.

While the Pom­peo state­ment did not say any­thing about bor­ders, it did re­claim the San Remo prin­ci­ple that Jewish set­tle­ment is not il­le­gal. The le­gal ba­sis for this de­serves some dis­cus­sion.

Pom­peo repu­di­ated the con­clu­sions of a 1978 mem­o­ran­dum by the State Depart­ment le­gal ad­vi­sor Her­bert Hansell. The memo’s con­clu­sions had al­ready been re­jected by then-pres­i­dent Ron­ald Rea­gan, but it had never been for­mally re­tracted.

The four-page memo jumped in broad strokes across ma­jor is­sues, and cited no prece­dent for its ma­jor con­clu­sions. In­deed, in the decades since, its le­gal anal­y­sis of oc­cu­pa­tion and set­tle­ments has con­sis­tently not been ap­plied by the US, or other na­tions, to any other com­pa­ra­ble geopo­lit­i­cal facts. It was al­ways what lawyers call a “one-ride ticket” ap­pli­ca­ble just for Israel.

Hansell’s memo had two an­a­lytic steps. First, he con­cluded that Israel was an “oc­cu­py­ing power” in the West Bank. That trig­gers the ap­pli­ca­tion of the Geneva Con­ven­tions. He then in­voked an ob­scure pro­vi­sion of the Fourth Geneva Con­ven­tion that had never been ap­plied to any other sit­u­a­tion be­fore (or since). It says the “oc­cu­py­ing power shall not de­port or trans­fer its civil­ian pop­u­la­tion” into the ter­ri­tory it oc­cu­pies.

Hansell, with­out much dis­cus­sion, con­cluded that Jews who move just over the Green Line have some­how been “de­ported or trans­ferred” there by the State of Israel. In short, he read a pro­hi­bi­tion on Turk­ish-style pop­u­la­tion trans­fer schemes as re­quire­ment that Israel per­ma­nently pre­vent its Jews from liv­ing in those ar­eas that Jor­dan had eth­ni­cally cleansed dur­ing its ad­min­is­tra­tion.

Un­der in­ter­na­tional law, oc­cu­pa­tion oc­curs when a coun­try takes over ter­ri­tory that is un­der the sovereignt­y of an­other coun­try. This is why bor­ders of coun­tries aris­ing in for­mer Manda­tory ter­ri­to­ries are those of the rel­e­vant Man­date. That, for ex­am­ple, is why Rus­sia is con­sid­ered an oc­cu­py­ing power in Crimea, even though most of its pop­u­la­tion is Rus­sian and it has his­tor­i­cally been part of Rus­sia. Yet due to in­ter­nal Soviet re­al­lo­ca­tions, when Ukraine be­came in­de­pen­dent, Crimea was in­cor­po­rated into the bor­ders of its pre­de­ces­sor, the Ukrainian Soviet So­cial­ist Repub­lic. For in­ter­na­tional law, this es­tab­lishes clear Ukrainian sovereignt­y, even over the self-de­ter­mi­na­tion ob­jec­tions of a lo­cal eth­nic ma­jor­ity.

BUT THE West Bank was never part of Jor­dan. To the con­trary, it was ter­ri­tory that Jor­dan it­self had seized in 1949.

More­over, a coun­try can­not oc­cupy ter­ri­tory to which it has sov­er­eign ti­tle. Israel has the strong­est sov­er­eign claim to the ter­ri­tory. In in­ter­na­tional law, a new coun­try in­her­its the bor­ders of the prior geopo­lit­i­cal unit in that ter­ri­tory. In this case, that unit was the League of Na­tions Man­date for Pales­tine. Hansell’s memo fails to even dis­cuss this glob­ally-ap­plied prin­ci­ple for de­ter­min­ing bor­ders.

The Hansell memo also failed the test of his­tory and of gen­er­al­iz­abil­ity. The State Depart­ment has not ap­plied its def­i­ni­tion of “oc­cu­pa­tion” to Moroc­can-con­trolled West­ern Sahara, Dutch New Guinea, or any other sit­u­a­tion where ter­ri­tory that changed hands in war did not have a clear prior sov­er­eign.

But even by its own terms, the memo’s con­clu­sions no longer ap­ply. Hansell specif­i­cally stated that the state of oc­cu­pa­tion would no longer ex­ist if Israel en­tered into a peace treaty with Jor­dan. That is be­cause the law of oc­cu­pa­tion is part of the law of war; it has no ap­pli­ca­bil­ity in time of peace. Jor­dan signed a full and un­con­di­tional peace treaty with Israel in 1994, mak­ing the memo moot.

The sep­a­rate no­tion that an oc­cu­pa­tion cre­ates an im­per­me­able de­mo­graphic bub­ble around the ter­ri­tory has no ba­sis in the his­tory or sub­se­quent ap­pli­ca­tion of the Fourth Geneva Con­ven­tion. In an aca­demic study, I have shown that al­most all pro­longed oc­cu­pa­tions of ter­ri­tory since 1949 – in­clud­ing Amer­ica’s 40-year ad­min­is­tra­tion of West Berlin – have seen pop­u­la­tion move­ment into the oc­cu­pied ter­ri­tory. In some of these cases, like West­ern Sahara and North­ern Cyprus, the de­mo­graphic ef­fect has been huge. In none of these cases has the US, or the UN, claimed a vi­o­la­tion of the Geneva Con­ven­tions.

A coun­try can­not oc­cupy ter­ri­tory to which it has sov­er­eign ti­tle

The writer is a professor at Ge­orge Ma­son Univer­sity An­tonin Scalia Law School, and the di­rec­tor of its Cen­ter for In­ter­na­tional Law in the Mid­dle East, and a scholar at the Ko­helet Pol­icy Fo­rum in Jerusalem.

(Wiki­me­dia Com­mons)

THE ‘BIG Four’ world lead­ers at the Paris Peace Con­fer­ence on May 27, 1919. From left: UK Prime min­is­ter David Lloyd Ge­orge, Ital­ian premier Vit­to­rio Orlando, French premier Ge­orges Cle­menceau and US pres­i­dent Woodrow Wil­son.

Newspapers in English

Newspapers from Israel

© PressReader. All rights reserved.