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Legal Status of Israel's Border and its Defensive Barrier:

Below is a list of statements of law and fact regarding Israel's border, and its right under international law to build a defensive wall. I invite commenters to advance the discussion on these issues in terms of international law. I don't claim to be an expert on the issues of international law raised below, so comments from readers with expertise would be particularly welcome. Please do not use the comments to re-argue general issues about Zionism etc.

1. In November 1947, the United Nations partitioned the British mandate of Palestine. The partition gave the Jews only territories which were already owned by Jews, or which belonged to the British crown.

2. Many Palestinians began a war against Israel as soon as the partition was announced.

3. In May 1948, Israel declared its independence. In response, five Arabs nations immediately declared war on Israel.

4. In 1949, Israel and Jordan signed an armistice which specifically stated that the armistice lines were "without prejudice to future territorial settlements or boundary lines." Jordanian-Israeli General Armistice Agreement, April 3, 1949, Art. VI, sect. 9.

5. In 1967 Israel was attacked by Jordan, which at the time ruled the West Bank and East Jerusalem. Israel had no obligation, under international to vacate any territories until its foes entered into a meaningful peace agreement.

6. Later in 1967, the United Nations Security Council adopted Resolution 242, Notably, the resolution calls for Israel to withdraw from "territories" (not "all territories" or "the territories") as part of a peace agreement by which Arab states would end their belligerence against Israel. Today, most Arab states remain in a declared state of war against Israel.

7. Having acquired the West Bank in a defensive war, Israel later began building settlements on the West Bank. The settlements were built solely on land belonging to the Jordanian government, and not land belonging to individual Arab owners.

8. As a general rule, international law forbids the permanent annexation of territory, even after a defensive war. However, Israel's settlements did not violate this rule, because they were built in areas where no internationally-agreed international border existed. (See points 4 and 6).

9. Later, Jordan signed a peace treaty with Israel, and renounced all claims to the West Bank and East Jerusalem. Jordan's renunciation of the West Bank necessarily included a renunciation of all claim to West Bank land which had been owned by the Jordanian government. The renunciation therefore perfected Israel's legal ownership of the former Jordanian government lands in the West Bank.

10. Even if the last sentence of point 9 is incorrect, a nation has no obligation under international law to surrender control of territory to an entity which is in a state of war with the nation. The constitution of the PLO and the Hamas charter both explicitly call for the destruction of the state of Israel. Accordingly, Israel has no international law obligation to give any territory to a government controlled by the PLO or Hamas. (Had the PLO followed through on its promises in the Oslo Accords, and actually ended its war against Israel, the legal situation might be different.)

11. Under international law, including the Fourth Geneva Convention, nations may build defensive structures in enemy territory which the nation has captured. The defensive structures may be maintained as long as the enemy remains in a state of belligerence.

12. Israel's right to build a defensive barrier in the West Bank is clear under item 11, since the wall is being constructed while the enemy (PLO/Hamas) is in a declared and actual state of war against Israel. (A temporary truce, subject to unilateral revocation, does not end a state of war.)

13. Israel's right to build the barrier is even stronger under international law, since (pursuant to points 4 and 6 above), the barrier does not extend beyond a legal international border, because the 1949-67 armistice line is not a legal border.

14. International law forbids the permanent annexation of enemy territory, but this point is irrelevant to the defensive barrier, for the reasons listed in items 4, 6, and 13.

15. If and only if the 1949-67 armistice line were a legal border, then Israel's construction of the barrier would be illegal under international law if the purpose of the barrier were for annexation. The barrier would not be illegal if the purpose were for defense (item 11).

16. The Israeli Supreme Court ruled that the barrier is primarily for defense, and accordingly, legal. The International Court of Justice--in a purely advisory and non-binding opinion--stated that the barrier is for annexation, and therefore illegal. The ICJ opinion was defective as a matter of law because it did not properly consider Israel's defensive rights under the laws of war, nor did the opinion acknowledge the legal implications of Security Council 242, which refutes the notion that the 1949-67 armistice line is a permanent, legal international border.

Again, I'm not claiming expertise on the subject-matter of this post, and one major purpose of this post is find out if there are any flaws with the above reasoning, in terms of international law. In your comments, please focus on international law; this means, inter alia, don't waste time by citing UN General Assembly resolutions, statements by diplomats, or other sources which (while important from a policy sense) do not have the authority to create binding international law. Please focus on clear, relevant international law, such as treaties which have been ratified by Israel, or Security Council resolutions.

Related Posts (on one page):

  1. Is Israel in Violation of International Law?
  2. Legal Status of Israel's Border and its Defensive Barrier:
Observer25 (mail):
Depends whose law you are talking about:

http://www.memritv.org/search.asp?ACT=S9&P1=1052
2.27.2006 8:25pm
David Gross (mail) (www):
The International Court of Justice--in a purely advisory and non-binding opinion--stated that the barrier is for annexation, and therefore illegal. The ICJ opinion was defective as a matter of law because it did not properly consider Israel's defensive rights under the laws of war, nor did the opinion acknowledge the legal implications of Security Council 242, which refutes the notion that the 1949-67 armistice line is a permanent, legal international border.

This, to me, sounds very much like the sort of legal logic I associate with such perpetually losing causes as the "tax protester" movement: "Yes, I know the court with the highest authority in this area has ruled that we have to pay taxes and that we're not immune sovereign citizens and that the 16th Amendment was ratified correctly and that 'income' means income and that even though I'm a citizen of Texas I'm also a citizen of the United States and so on and so forth... but the court's opinion was defective as a matter of law because it didn't consider all of my terribly important arguments otherwise."





[DK: The point is that the ICJ isn't the highest legal authority. It has authority only on certain disputes between nation-states. The P.A. has no right to bring a case to the ICJ; the ICJ heard the case only as the result of a referral from the General Assembly. The ICJ opinion plainly stated that it was advisory and non-binding, as you would have seen had you bothered to read the opinion.]
2.27.2006 8:52pm
MikeWDC (mail):
The problem is that for decades after the 1967 seizure of the territory in a defensive war (which is justified) Israel announced its intention to annex all of Judea and Samaria, as the area of the West Bank is known in Israel. In fact, East Jerusalem was, and remains, permanently annexed, which is why most nations have their embassies in Tel Aviv in protest. If territory is captured in a defesive war, but then is deliberately populated as part of an announced plan to permentently annex that territory, then a defensive wall begins to seem somewhat less defensible.

Incidentally, land ownership is somewhat different in countries that emerged from the Ottoman Empire. The short version is the government owns the land, while the people lease, or have easements or rights to the land. It's closer to the Anglo-American model now, but until the 19th century was basically feudal, and it evolved erratically (and many argue unfairly) through the 19th century, the British Mandate and Jordanian control.

"Jordanian control" is better than Jordanian ownership, because Jordan's claim to the West Bank following the 1948 war was only as an occupied territory. Jordan did annex West Bank, but its claim was only recognized by one county, Pakistan. So to speak of Jordanian ownership or permission is irrelevant, because it was never Jordan's land to give.


[DK: Very useful observations. Especially the 3d para., which isn't widely-known.]
2.27.2006 8:54pm
dunno:

Today, most Arab states remain in a declared state of war against Israel.

You mean there are countries so backward as to declare war againt those they attack? Heathen!
2.27.2006 9:06pm
GMUSL 2L (mail):
Six, did you actually READ Kopel's restriction at the end? You know, the part where he requests a focus on international law?


[DK: This comment refers to now-deleted quotes from a commenter who tried to re-argue the case against Zionism and its American supporters.]
2.27.2006 9:24pm
Nephtuli (mail) (www):
1) Security Council resolutions are not automatically binding international law. Only Security Council decisions, which are passed under Chapter VII of the Charter are binding international law according to the Charter.

2) There is a debate whether land can be annexed when captured in a defensive war. Since the reasoning behind the prohibition of annexing territory is to deter war, and annexing territory captured in a defensive war would further that aim, some scholars believe the general prohibition of annexation only applies to aggressors. If I recall correctly, this argument was made by Julius Stone.

3) A classic pro-Israel argument is that the British Mandate for Palestine is the relevant legal document, rather than the Partition Plan because the partition plan is not binding. The Mandate defined the borders of the mandate and gave the Jews settlement rights in the territory. Since no subsequent binding document has modified the Mandate, the Mandate is still in force in the territories. Therefore Israel might have legal claims to the land that trump the Palestinian claims. Eugene Rostow made this argument.

4) You ignored the issue of the application of the Fourth Geneva Convention to the West Bank. Recognizing that it allows defensive structures in the occupied territories is important but if the convention applies, one could make a strong argument that Article 49(6) prohibits settlements (there are good arguments both ways on this point). The position of the State of Israel is that the convention does not apply because the territories were not the territory of a high contracting power, since Jordan's annexation was invalid due to the prohibition of annexing territory captured in war.


[DK: Superb stuff. Just what I was hoping for.]
2.27.2006 9:29pm
Ubertrout (mail) (www):
I had this basic argument with a very eccentric international law professor when I was doing my JD. I took Prof. Kopel's side. However, the gist of the response was simply that while the Palestinians and the rest of the arab world may have refused to accept the UN partition, the partition was neither theirs nor the Jews to accept - it was partition by fiat. When I pointed out that this would draw Israel to borders substantially smaller than those of 1967, the response was that the UN's acceptance of the armistice lines constituted the de jure border at that point.

It's worth noting that the arab (and I use the term specifically here) demand is not for the 1948 borders but for the 1967 borders. This is because in 1963 (I beleive) Syria annexed some strategically important hills on the Golan border. How one justifies this is unclear, but it remains the unified demand of the Syrians and Palestinians.


[DK: Thanks. I hadn't known about 1963
2.27.2006 9:30pm
Nephtuli (mail) (www):
David Gross,

You analogy might be more apt if 1: Israel had the right to have a representative on the ICJ, and 2: The ICJ's decision was binding.
2.27.2006 9:34pm
Richard Bellamy (mail):
Rather than politicking, let us consider the logical conclusion of Facts 1-16.

In 2008, Jordan invades Northern Israel, capturing the cities of Nazareth and Haifa. Jordan alleges that the war was "defensive" because their spies told them that Israel was planning an invasion. The evidence on this point is mixed, with lots of evidence pointing in both directions. Concurrently, a makeshift army of the West Bank invades to the South, capture Beersheba.

Under Point 4, there is no final border settled with Jordan.
Under Point 9, Jordan has not renounced any right to Nazareth or Haifa. What right does Israel have under International Law to reclaim their cities?

Put another way -- if power in the region shifts, and the Palestinians wish to place a wall separating Israeli-owned government buildings from the rest of the city, will International Law -- as you have described it -- stop them? A wall cutting deep into the West Bank seems to be just as legal/illegal as a wall cutting Jewish-Jerusalem in half.

To that extent, if International Law allows whoever is in power to do whatever the heck they want when there is no recognized final border, then International Law strikes me as a particularly bad source to look for the appropriate answer.


[DK: Your point about the inutility of international law may well be correct. I'm just interested, in this post, in clarifying the applicable international law. Whether anyone should care about international law is a different question.]
2.27.2006 9:37pm
jrose:
If the settlements are illegal, then the fact the Green Line isn't a recognized border is not sufficient to conclude that the barrier is legal. If the location of the barrier East of the Green Line is only to defend the settlements, the barrier is illegal.

Security Council resolution 446 declared the settlements illegal because the Fourth Geneva Convention applies in the West Bank. Kopel would likely argue this resolution is "defective as a matter of law" because the Convention does not apply in disputed territories.

I disagree with Kopel because it is reasonable that a disputed territory should be treated under the Fourth Convention the same as an occupied territory. To do otherwise would allow the victor to take actions which unilaterally manipulate the outcome of the dispute.


[DK: Although there are various arguments which could be made about 446, as you recognize, the resolution is, at the least, an arguably relevant source of international law on the issue. Thanks for supplying it.]
2.27.2006 9:43pm
jgshapiro (mail):
Is there a reason why a General Assembly resolution has no legal impact but a Security Council resolution does? The SC is a part of the whole. It has exclusive authority over the use of military force by the UN, but it does not follow that it has exclusive authority to decide questions of international law. (Note to Nephtuli: I did not find anything in Article VII that stated that SC resolutions (whether called decisions or otherwise) were law but GA resolutions were not.)

I think the ICJ opinion is defective because the ICJ can only rule on disputes where the parties have agreed to grant it jurisdiction, and Israel did not do so with respect to the wall. On the other hand, I don't think you can say its ruling is defective because it discounted arguments you found compelling. If that were the case, virtually no court ruling would ever be legitimate in the eyes of the losing party. No losing party ever thinks a court gave their arguments due consideration.

One argument that I have heard before, and that is addressed above by MikeWDC, is that the land that was given to the Jews by Britain in the Mandate was not really Britain's to give, because of the feudal arrangements that were in effect thereon. Since the Arab residents had some sort of interest in the land, irrespective of whether there was a Jewish or British owner of record, the subsidiary interest had to be respected. However, I don't know hgow international law deals with subsidiary interests, such as easements or long-term leases, when large regional tracts are transferred (or partitioned). Nor do I know whether the Arabs had some sort of adverse possession interest in the land that would have essentially made them owners.
2.27.2006 10:07pm
gerry (mail):
In 1962 I got a very high grade in an International Law exam by starting my essay answer to (whatever was) the first question by saying: "There is no such thing as the Law of International Law." Right then, worse now.

The problem faced by those defending Israel (which is to say..myself and...all Americans?) is that our skirts are not clean, and the policy of the United States as regards the Palestinians vs. the Israelis(a) has been insensitive to palestinian arguments which might have been given more credence, and (b) has been inordinately influenced by lobby money, to the extent that the rigors of political correctness have sometimes muzzled dissent. Which by the way was OK until the political results began significantly to threatent the lives of my grandchildren, as they are threatened today. I love Israel, and have loved her for half a century, but I love my grandchildren more. How do you law professors parse that?
2.27.2006 10:09pm
Dave Hardy (mail) (www):
Whenever looking at international "law," I am struck by Neitzsche's observation that justice is merely what the stronger part accords the weaker. It really has gone downhill since the 18th century, when nation-states so cynically made war upon each other, but as gentlemen observed certain rules in doing so.
2.27.2006 10:21pm
GMUSL 2L (mail):
Six, again, you FAILED TO READ THE POST.

This topic is not for "forward-looking thought" or "consequences". Kopel is only looking for STRICT LEGAL ARGUMENTS. THIS IS NOT ABOUT POLICY. Even assuming arguendo that your arguments were correct, THEY HAVE NO PLACE IN THIS THREAD BECAUSE THIS THREAD IS ABOUT LEGAL ARGUMENTS.

But by all means, if you have something ON POINT to say, then say it. Otherwise, please do us all a favor and shut up.
2.27.2006 10:29pm
Confused:
@ Gerry: "I love Israel, and have loved her for half a century, but I love my grandchildren more. How do you law professors parse that?"

I suppose the facile way is by reference to Pastor Niemoller ("First they came for . . . .").
2.27.2006 10:47pm
isthisnamefree (mail):
"Six of one":
Isn't it rather bad form to usurp someone's blog with comments he's explicitly stated lie outside of its scope? At least you could have restricted yourself to one post/vent, as the rest of us are rather interested in the legal issues at hand.
2.27.2006 10:52pm
Donald Meaker (mail):
My understanding is that, while a war continues, each of the warring parties can take what ever they can. Only after peace is agreed do the terms of peace adjust territorial boundaries. Since the Arabs have not agreed to peace terms, then Israel has legal right to take anything they can, to include Damascus and Amman.


[DK: That's my understanding too, on the general rule. But the Israelis can't take Amman, because Jordan has signed a peace treaty with Israel.]

The usual approach is to keep fighting until someone sues for peace. Consider the precedent of the Bolsheviks refusal to discuss peace terms with the Germans during WWI. The Germans continued to advance, town by town, until the Bolsheviks returned to the table. That was how the Latvian, Estonian, Lithuanian, Bylorussian and Ukrainian entities were carved from Russia.

The treaty after WWII gave part of East Prussia to Russia, part that had not been part of Lavia, or Lithuania. It is still there, a dismembered piece of East Prussia. Peace treaties adjust or clarify borders all the time. Israel is free to seize, evacuate, fortify any territory occupied or claimed by powers hostile to it, and powers which have not signed a treaty setting the borders. So long as you will not make peace, and can not win, well, then you get no protection from "International Law" and you get to lose. This is all the more fitting when one supports terrorism, ie, attacks which focus on noncombatants, launched by illegal combatants, defined by the Geneva Convention as combatants who do not have a uniform recognizable at a distance.
2.27.2006 11:00pm
ebbe (mail):
If one feels that Israel is illegitimate because England did not have the right to give that land to the Jews, then how legitimate is the country of Jordan which is actually half of the same land that the Balfour letter gave to the Jews. At least the Jews have biblical rights to the land while the hashemites were losers from Arabia.
While we are looking at near east countries- with what legitimacy did France give Lebanon to the Christians? How did England and France give carved up parts of the Ottoman Empire (taken at the end of WW1 by military means) to the rulers of Syria and Iraq?

There is not one country in the area that has any legal right to exist!
2.27.2006 11:01pm
tanstaafl (mail):
I was wondering what the authority was for the changes in international boundaries in Europe at the end of WW2, and how that compares with this case.
2.27.2006 11:12pm
o' connuh j.:
Six of one, please. You are NOT addressing the legal issues and you are NOT adding to the international law analysis the rest of us are interested in. You are ranting. Please stop.

Dave Kopel - feel free to delete this post and please remove Six of one's. Thanks.
2.27.2006 11:15pm
Pio (mail):
Parts 1, 4, and 8 seem to point pretty clearly at the 1948 borders being the correct borders, no? They were the last "legal" borders, and any expansion by either side across those borders would amount to annexation, which point 8 claims is illegal even in a defensive war. Now, I have no idea what those borders are or how feasible a return to them would be, but thats another issue.
2.28.2006 12:02am
Defending the Indefensible:
Donald Meaker,

It seems to me you are arguing that under international law, if Country A goes to war with Country B, and B defends itself to the extent of its insufficient ability but does not sue for peace, A is entitled to keep taking territory of B until it has swallowed B entirely. Alternately, B could sue for peace, but if A were militarily superior enough to swallow B anyhow, it could require terms of unconditional surrender.

Does your understanding of international law distinguish between who fired the first shot and/or who first declared war against the other? What if B were provoked by a trade embargo that was crippling to B.

I'm trying to frame this in a circumstance where B has absolutely no survival condition, though you might find loopholes in my hypotheticals. Still, if the real casus belli is simply that A wants to annex B, what rights does B have under international law.

Presume also for the sake of my argument that one or more members of the UN Security Council are aligned with A and will veto any resolution proposed on B's behalf.
2.28.2006 12:26am
Robert Schwartz (mail):
Under "International Law" is there any nation on earth whose boundaries are lawful? Isn't it time that everyone but the Native Americans left the United States?
2.28.2006 12:28am
JB:
Britain aquired the rights to Palestine by conquest in 1917, a war that began when the Ottoman Empire joined the Central Powers. If it matters who the aggressor is, then the legal status of Palestine hinges on Germany's overhasty declaration of war against Russia and France in July 1914, or maybe England's later decision to uphold its Entente obligations to France.

And if the British conquest of 1917 is illegitimate, then we have to go back to 1517, when the Ottoman Empire was the aggressor in the war against the Mamluks in which they won Palestine. The Mamluks were, of course, the aggressors in the wars against the various Ayyubid princes which they waged to gain control of Palestine in the first place. The Ayyubids, in turn, were descended from Saladin, who fortunately put an end to this chain by lawfully being designated successor to the last Fatimid.

International law is cute, but neither sufficiently binding nor sufficiently coherent.
2.28.2006 12:42am
logicnazi (mail) (www):
So I went out and read the ICJ ruling and I have to say I was very disappointed with the quality of the legal reasoning. Even when I read a SCOTUS opinion that I think is plainly in error I am impressed by the clarity and logical analysis of legal arguments (though of course sometimes this is biased by policy preferences as Raich evidenced). However reading the ICJ ruling I felt I was reading a policy/moral deciscion thinly veiled as law. Frequently it seemed important points were passed over without any attempt to address potential problems or promulgate tests/distinctions that could be generally used. I think a key requirement to be a good judicial body is to give reasoning that could be applied generally regardless of a judges feeling on the particular issue that comes before them and the ICJ seems to fail at this.

For instance consider the ICJ treatment of the question of whether the Palestinians constitute a 'people' and thus have a right of self-determination (sec 118). The court gives about a paragraph to this issue deciding that Israel's letters stating recognition of the PLO as the representative of the palestinian people constitute acceptance of the palestinians as a people in the relevant sense and that the parts of various peace agreements that mention the palestinian people further support this position.

Yet this completely ignore the complex questions involved in this issue. If Spanish government documents talk about the Basque people and decide to view their locally elected representatives as representing the Basque people does this automatically require that Spain give the Basque independence on the word of those representatives (or a vote)? If the US government chooses to use the terminology "The Alaskan people" in some official document does Alaska gain a right to secede under international law?

It seems preciscely the difference between policy and real law that legal deciscions focus on technical issues and promulgating generally applicable principles of deciscion. It seems the ICJ makes little it any attempt to do this and istead seems to act much more like a policy body.

To be fair it might not be entierly the ICJ's fault. The 'laws' they are interpreting were not really enacted to be laws in the sense we normally think of them. They aren't even vague principles like the constitution includes but seemed to more resemble something like the declaration of independence. The ICJ opinion in this case seemed a great deal like some US court interpreting the declaration of independence and deeming drug laws unconstitutional because they interfere with the 'pursuit of happiness.'

I find this very unfortunate because I think there would be great hope for real international law. However, in order to establish legitamacy such a court would need to keep to narrow technical matters, avoid contentious (all) advisory opinions and establish a clear focus on technical matters of law not policy questions. At first such a system should only include the most broadly accepted and narrow laws and would necessarily be unable to touch much horrific conduct but I get the sense the people who want a system of international justice and advocate for the ICJ aren't willing to start this small.

But it is possible that my inexpertise is making me miss something basic.
2.28.2006 1:39am
John Rambo (mail) (www):
International law is the antithesis of Law.

International law has no moral authority, it cannot command the spirit. Not unlike bankruptcy law, there is an argument and a historical precedent for any action, even genocide (of one's creditors to stretch the comparison).

The mistake is to cloak international law in any sailor suit of legitimacy.

The opinion of the ICJ is stated to be advisory and non-binding because all ICJ opinions are so. Worse, ICJ opinions specifically have no precedential effect - imagine, a court whose decisions have no stare decisis effect on posterity. Its situational ethics as satire.

International law has no legitimacy, and much like bankruptcy court, there is an argument and a historical precedent for any action, including genocide.

The mistake is to cloak international law in a sailor's suit of legitimacy.

History belongs to the bold, those who plan for the future, and to those who fight for a cause they believe in heart and soul.
2.28.2006 1:47am
Katherine:
I always thought what gets Israel into trouble is less the boundary per se--it's not the only country to acquire land in a war and keep it, and most of its wars were actually legit self defense unlike many countries--than the combination of an attempt to permanently annex land, and the refusal to offer citizenship to the people living there.
2.28.2006 1:58am
Defending the Indefensible:
There seems to be a general agreement that international law is a fiction without commonly accepted predicates. So neither legitimacy nor illegitimacy can be established on that ground.
2.28.2006 2:44am
Evelyn Blaine:
On Resolution 242: I don't think any weight should be placed on the fact that the resolution "requires ... withdrawal from territories occupied in the recent conflict" rather than "from the territories" or "from all the territories". The construction is awkward in English, but one would not generally interpret the absence of an article to mean "some but not all". If I sign a contract agreeing to "return funds sequestered from the other party since October", I will probably be expected both by the other party and by any court enforcing the contract to return all the funds, not just some of them. Moreover, the French version, which has equal authority, is far more naturally phrased and not ambiguous at all: "retrait des forces armées israéliennes des territoires occupés au cours du récent conflit". It seems to be an obvious principle of interpretation that, given two versions of equal authority, one offering two possible interpretations and the other offering only one, the reader should choose the interpretation that accords with both texts (particularly when the other interpretation is strained even in the one text where it is possible).
2.28.2006 3:51am
Anonymous Jim (mail):
I think these areguments are well formed for both the border and for the "wall". Politically speaking, the repercussions as they relate to the border are more far reaching than the "wall". If Isreal believes it is entitled to and should control all the areas, they should so say and not pretend that the areas are in dispute.
2.28.2006 8:17am
Barry P. (mail):
I'm not a lawyer, but...in my layman's opinion, a law is meaningless without (1) a court to adjudicate that law, and (2) a police entity to enforce that law and impose any punishments prescribed by the aforementioned court. Neither of those things exist. At least not with any sort of meaningful statutory authority.

Since the de facto international police force is the US military, international law is basically whatever the POTUS decides it is.
2.28.2006 9:28am
jrose:
My understanding is that, while a war continues, each of the warring parties can take what ever they can. [DK: That's my understanding too, on the general rule.]
That understanding conflicts with Article 47 of the Fourth Geneva Convention (no annexation of territory occupied during a war) as affirmed by Security Council Resolution 242 (inadmissibility of the acquisition of territory by war).
2.28.2006 9:35am
Rational Actor (mail):
This is a very lengthy debate which seems to completely miss the point that most children learn long before they could take the LSATs, which seem to cloud the minds of many previously intelligent people -- possession is nine tenth's of the law.... You can try to deny it if you like, but that is not just international law -- it is universal law.
2.28.2006 9:49am
sir mix a lot:
see,

http://www.jcpa.org/jl/vp513.htm

Laurence E. Rothenberg and Abraham Bell, Israel's Anti-Terror Fence: The World Court Case (15 February 2004).
2.28.2006 10:01am
DAWeinstein (mail):
Two comments:

1. I hope I am not violating the rules by pointing out clear factual errors in the premises, but it is difficult to have a legal debate without doing so. Points 1 and 8 are simply false. As to #1, about 6.5% of the area allocated to the partitioned Jewish state was owned by Jews; the majority of the rest was state land, but a significant percentage (much larger than the Jewish share) was owned by Arabs. Does the author really believe that Arabs, who made up about 40 odd percent of the area allocated to the Jewish State, owned no land?

I must admit, I was surprised that someone would assert point 7. Much land used for West Bank settlement, and for accompanying infrastructure, was expropriated, including private land taken from individual owners. (See
http://www.btselem.org/Download/200205_Land_Grab_Eng.pdf at 47-65)

2. On to the legal issue, I must quibble with 8, since it is misleading. I do not know about whether Israeli settlements violate the prohibition on annexation, but many (see above) violate the prohibition on expropriation and they seem to me to violate article 49 of the Fourth Geneva Convention, which states:

"The occupying power shall not deport or transfer parts of its own population into the territories it occupies."

I don't know that this necessarily requires rejection of some of your other arguments. To the extent the barrier is constructed to defend Israel itself, I think it does not. To the extent it is constructed specifically to defend settlements (and in some areas, it clearly is) then the illegality of such settlements would seem to undermine your arguments.


[DK: Good comments. My statements in points 1 & 7 was based on other reading I've done, so I will definitely check out the sources you cited.]
2.28.2006 10:34am
Erasmussimo (mail):
I can offer nothing in the way of insight into international law, but I can offer two comments on the logic of some of the key points. First, Item #10 refers to the PLO and Hamas as warring parties. Neither of these parties has standing as a sovereign state; they are political parties, not sovereign states. I would think that the PA is the relevant party to consider -- and the PA is officially at peace with Israel. Therefore, the various points that hinge on the continuing state of war are not relevant to the occupied territories. No state of war exists between the relevant parties.

Second, I think the logic is a little sloppy in referring to the continuing state of war between Israel and some Arab nations. The existence of a state of war between states A and B does not justify the application of wartime international laws to the relationship between states A and C.
2.28.2006 1:00pm
dweeb:
"As a general rule, international law forbids the permanent annexation of territory, even after a defensive war."

What about Danzig?

Seems this one is largely a function of how decisive the outcome of the war is.
2.28.2006 1:13pm
Soccer Dad (mail) (www):
I realize that this is slightly off topic. But there is a Summary legal position of the Palestine Liberation Organization (scroll down a bit) listed among the supporting documents asking for the advisory opinion.

Unless I am wrong the PLO was supposed to cease to exist in 1993 after the Oslo Accords. The PLO was a terrorist organization and pledged itself to pursue its goals using legal means only. The Palestinian Authority was the successor organization to the PLO. And yet it is the PLO that had standing before the ICJ.
2.28.2006 1:53pm
Steve Rosenbach (www):
Very interesting discussion...some clarificaion for some of the commenters:

to "Defending the Indefensible" - Jordan fired the first shot. Jordan did not participate in the very first days of the conflict, but Nasser and the Syrians convinced him that they were winning the war big-time, and that if he joined in, he would get the territory of Israel as the prize. Israel counter-attacked into East Jerusalem and Judea/Samaria (West Bank) only after Jordan artillery shelled across the Green Line.

to Evelyn Blaine - there is a whole history about the leaving out of the "the" in Resolution 242 (at least in the English version.) The US made sure that it did *not* say "the territories" or "all the territories" - it's well-documented, and something that is analogous to reading Federalist Papers to understand the intent of a consitutional phrase.

Question: did any Israeli government ever state an intention to annex the entire West Bank? My understanding is that this never happened, and that it was on purpose- something held back in the hopes of a peaceful settlement with Jordan in the years after '67. I thought the official Israeli position was that Jews have the *right to settle* anywhere in the West Bank.
2.28.2006 1:54pm
Gordo:

Having acquired the West Bank in a defensive war, Israel later began building settlements on the West Bank. The settlements were built solely on land belonging to the Jordanian government, and not land belonging to individual Arab owners.


As has already been pointed out, this statement seems counterintuitive to the many, many stories given to us in the press about various Palestinians being forced off "their" land. While the occupants may not have owned their land in a technical, Western sense, they clearly were long-time occupants with many accoutrements of ownership, who would have had clear prescriptive rights in a Western system of law (assuming the true owner of the land was a private entity, not the State).

As to the security barrier, my understanding is that its primary purpose is the defense of pre-1967 Israel, and that the armistice boundaries would be very difficult to defend on their own. #11 is clearly justified. I would suggest that Israel would certainly dismantle the wall if it was assured of peaceful coexistence with a Palestinian state on its borders. Given events, I would also suggest that Israel will need to wait decades, if not centuries, before it can get such assurances.
2.28.2006 2:04pm
Passing By:
I would venture that both of your assumptions are 100% wrong, based upon such facts as the actual path of the wall, the generational military lead that Israel enjoys over its neighbors, and the express statements of the wall's proponents. But then, if Israel does intend otherwise, it would be easy enough for its government to say so.
2.28.2006 2:27pm
logicnazi (mail) (www):
DAWeinstein,

I'm skeptical of both your points. As for 1 your arguments seem to be unrelated to the claim. Yes, of course some Palestinians owned land in what is now Israel when the country was founded. However, this doesn't deny the fact that this land was a territory of the UK government and was (to the extent this means anything) transfered to the government of Israel in agreement with international law.

The question of whether the Israelis inappropriately kicked out Palestinians from their land is a different issue than whether they have valid soverignty over that land. If international law is really law, not moral sentiment disguised as law, it is quite possible for the law to allow bad results(not a statement that this is a bad result...don't know enough).

As for point 7 I read the report you linked and it doesn't really provide a strong argument that what Israel did was technically illegal. Rather it suggests that Israel manipulated the law to get what it wanted, e.g., discouraging land registration and then using non-registration under a very old law to seize the land. This might be a shitty thing to do but is it actually illegal under international law? Not entierly clear.

As for 2 I understand that Israel never signed the 4th Geneva convention. Despite the ICJ's claims that israel has somehow tacitly accepted this as law by acting in accord with it I think this is overlooking the obvious difference between agreeing to be bound by a contract and generally thinking what the contract says is a good idea. (if I am wrong about the 4th convention someone correct me).

Also your point rests on the accuracy of your above points. If the settlments are lawful your criticism of 8 doesn't go through. Even if the settlements are not lawful is it clear that the criticism of 8 goes through? After all one is entitled to self-defense even if one is doing something illegal. If I trespass on my neighbors property to retrieve a frisbee and he comes at me with a gun I can still claim self-defense if I kill him. Just because the israeli settlements are illegal does this mean they no longer have the right to defend them? Unclear. Also doesn't this argument imply Any use of the US milatary to defend the continental US is unlawful as the US occupation of the terroitory is unlawful cesure(sp?) of land belonging to indian nations. It is issues like these which makes international law just silly.

Though this does raise a very interesting question. Does the right to self-defense trump other international laws. In our legal system claiming self-defense lets one get away with otherwise illegal acts (correct me if I'm wrong but even if congress passes a law outlawing any form of killing someone judges would still carve out a self-defense exception). Does it do so in international law? If Israel has a reasonable belief that the fence is necessery for defense does this make it legal even if it violates other international 'laws'?
2.28.2006 2:55pm
Adrian (mail):
Steve Rosenbach--I've never seen an explanation of what the US had in mind in rejecting "all". The obvious inference is they wanted to leave open the possibility of Israel keeping some, but the obvious inference isn't always correct. If they did think Israel could keep some, how much, and on what exception from the general principle cited in 242's preamble?

At any rate, unambiguous text in an equally authoritative language would trump the Federalist Papers. (Not to personally endorse the claim about the French text, which I don't speak.)
2.28.2006 3:08pm
Avi Bell (mail):
In re the original posting:

1. In Nov. 1947, if you read the relevant resolution (GA 181), the General Assembly recommended partition of the cis-Jordanian part of the British mandate of Palestine. Whether the GA had the authority to partition the mandate is an interesting academic question, but moot, as the GA did not purport to actually partition the mandate. The second statement is both incorrect and legally confused. The proposed partition would have allocated sovereignty over British mandatory land to a Jewish state and to an Arab state; it did not purport to reallocate private land ownership. The Jewish state would have had sovereignty over public lands and private lands owned by Jews and non-Jews; the Arab state would have had sovereignty over public lands and private lands owned by Arabs and non-Arabs.

2. The state of Israel was not declared until May, 1948; in 1947, Arab and Jewish citizens of the mandate were called Palestinians. It would be more precise to say that fighting between Jewish and Arab Palestinians broke out in primarily in areas designated by the resolution for the proposed Jewish state.

5. Jordan attacked after Israel had initiated hostilities with Egypt, with which Jordan had a collective defense pact. The relevant question is whether the Israeli actions against Egypt were legally self-defense on the basis of a number of hostile Egyptian actions including a blockade, expulsion of UN peacekeepers, mobilization of the Egyptian army at Israel's borders and statements by various Egyptian allies to the effect that Israel would shortly be destroyed. This one has been argued for many years and will no doubt be argued for many more. Personally, I think Israel has the stronger argument here.

6. Resolution 242 was adopted under Chapter VI, meaning it was a recommendation for pacific resolution of a dispute without binding legal force. Its legal relevance is only that the parties have agreed to use it as a touchstone for peace agreements while disagreeing about its meaning. The resolution did not and could not allocate or reallocate sovereignty.

7. Overwhelmingly, settlements were built on public land, though some were not. Some settlement land is privately owned Arab land requisitioned by the Israeli government. Some is privately owned Jewish land previously seized by the Jordanian government. Some is private land purchased by Jews from Arabs. Most settlements are built by the state of Israel, but some are privately built by Jewish Israeli citizens.

8. International law certainly permits permanent annexation of territory under specified conditions. One of these conditions, until somewhere during the 20th century, was military conquest. Most agree that today, conquest is not sufficient to justify annexation on the grounds that such annexation would violate article 2 of the UN charter. It has been argued that conquest would justify annexation were the military action consistent with article 2 (eg, where justified as self-defense). In any event, cession, occupation, accretion and prescription still provide good grounds for annexation. Thus, for example, one can argue that the absence of any other sovereign permits Israel to annex as a result of occupation, without need to resort to a claim of conquest.

As to the question of legality of settlements, it centers on four issues: First, does the Fourth Geneva Convention apply to Israel in the West Bank? Second, if the Convention applies, does it apply in its entirety, or is Israel exempt from portions protecting the rights of the legitimate sovereign since there is none? Third, assuming that it applies in its entirety, does article 49(6) prevent an occupying power from allowing/encouraging voluntary movement by its citizens into the occupied territory? And, fourth, is article 49(6) overruled by the application of article 43 of the 1907 Hague Regulations regarding occupied territory in conjunction with article 6 of the Palestine Mandate requiring encouraging "close settlement by Jews on the land"? To explain: (a) According to article 2 of the Fourth Geneva Convention, the convention applies to territory of another treaty party occupied during armed conflict. The West Bank was mandatory territory, not Jordanian territory and was therefore not territory of another treaty party. (b) Even if the Convention applies in the absence of a prior sovereign, it would not be logical for the Convention to protect the rights of such a nonexistent sovereign; consequently, those provisions of the Convention such as 49(6) that protect sovereign rights rather than human rights would not apply. (c) The language of 49(6) ("deport or transfer") arguably refers to forcible population movements, whereas Jews living in the West Bank are living there of their own accord. (d) Article 43 of the Hague Regulations requires occupiers to respect "unless absolutely prevented" laws in force in the the occupied territory. Eugene Rostow argued that as mandatory law is still in effect in the West Bank, the occupier is required under Article 6 of the Mandate to encourage "close settlement by Jews on the land."

9. Jordan's peace treaty with Israel was signed without prejudice to the status of the West Bank. Jordan had already previously surrendered property ownership of public lands. However, once again, you are confusing issues of ownership and sovereignty. Israel may control public lands in the West Bank either as a sovereign or as an occupier. In the former case, Israel owns the public lands. In the latter case, Israel's property rights in public lands would ordinarily be restricted to usufructary (Incidentally, one might argue that in the absence of another superior claimant to sovereignty over the West Bank, Israel is entitled to ownership, rather than merely usufructary rights, even as an occupier.). Either way, however, Israel is building the barrier as sovereign, not owner. It may therefore requisition private property for the action. It may certainly use public property.

12. A state of war is not necessary to provide a legal right to build defensive structures. One may build defensive structures in one's sovereign territory essentially without limit. One may build defensive structures in belligerently occupied territory as needed for military necessity, with or without a state of war.

13. The question is not precisely whether the armistice line is a border. The question is whether Israel is bound by the restrictions of belligerent occupation in the West Bank. Absent another sovereign party's superior sovereignty, the answer is probably not.

14. Imprecise for reasons stated.

15. This is inartfully phrased. Israel would have a right to build a barrier in belligerently occupied in accordance with the needs of military necessity. Any attempt to acquire sovereignty through annexation associated with the barrier would fail. This would not erase the right to build in accordance with military necessity.

16. The ICJ opined that the barrier was illegal for a number of reasons. The ICJ's opinion is not binding as a matter of law because it was advisory and because it had no legal basis for legally obliging Israel (and did not claim any). The fact that the ICJ's opinion is incoherent, transparently biased, and both mistates and misapplies the law is irrelevant.

Some other points regarding comments by others:

- Israel never announced its intention to "annex all of Judea and Samaria, as the area of the West Bank is known in Israel." Incidentally, Judea and Samaria is also the name used by all prior to Jordan's purported annexation in 1949; for example see the above-mentioned 1947 General Assembly Resolution 181. Incidentally, too, Jordan's purported annexation was also recognized by Britain.

- There are several differences between the positions of the parties on the eve of the 1967 war and the location of the 1949 armistice lines. Syria, in particular, was very aggressive about moving into demilitarized areas in mandatory territory. Egypt and Jordan both agreed with Israel to adjustments in the armistice lines.

- Jordan has a border with Israel established by peace treaty. It therefore has conceded sovereignty over Nazareth, Haifa and Beersheba to Israel, even if it had any other claim to sovereignty, which it does not.

- Arguments that settlements are illegal do not render the barrier illegal. Even if Israel violated international law by "transferring" citizens to occupied territories, there still exists a military necessity to protect Israeli citizens from illegal terrorist attacks against them. Military necessity dictates placing the barrier so as to obstruct movement of potential Palestinian Arab terrorists into potential target areas.

- There is a reason that GA resolutions have no binding authority - the UN charter says so. Incidentally, SC resolutions under Chapter VII are not law. They are binding however.

- Parties at war do not have the right "to take anything they can." However, warring parties may hold territory in belligerent occupation as long as necessary.

- Article 47 of the Fourth Geneva Convention does not bar annexation of occupied territory. It simply preserves rights of residents of the territory in the event of annexation.

- The PLO was not supposed to cease to exist in 1993 as a result of the first of the "Oslo Accords." On the contrary, the PLO was the Palestinian signatory on all subsequent agreements with Israel. The Palestinian Authority was created as a self-governing authority in the West Bank and Gaza and is a sometimes alter ego of the PLO.

- The Palestinian claim against Jewish settlements in the West Bank is not based on perceived displacement of Palestinian private property rights. It is based upon a perceived right not to have Jewish immigration to the area.

- Palestinian mandatory territory was not sovereign territory of the UK, and it was not transferred to Israel by the UK. Mandatory territory was "trust" territory under the Mandate, designated as territory in which there should be a "Jewish homeland" guaranteed by international law. It was ultimately abandoned by the UK.

- Israel is a signatory of the Fourth Geneva Convention. It argues that the Convention does not apply to the West Bank because the latter was not territory of a signatory to the Convention, and therefore, under article 2 of the Convention, the Convention does not apply.
2.28.2006 4:06pm
Dilan Esper (mail) (www):
I may have missed some of the trolls, but I wanted to compliment everyone-- including David Kopel-- for a very good debate in this comment thread, which seems largely free of the often emotional and rarely productive argumentation that is often seen on this subject.

I do not have that much to say about the specific international law issues involved, but I do want to respond to those who are arguing that international law is of no use here or has no real force generally.

First, the fact that principles of international law may not be workable with respect to Israel/Palestine, even if true, doesn't indict the whole enterprise. Lots of international law works perfectly well and noncontroversially, e.g., extradition treaties, trade treaties, etc. And this is even true of customary international law not codified in treaties or agreements, such as the comity and respect that is given by countries to the judgments of foreign courts.

Even in the areas of human rights and war, where international law is more controversial, it still has a role to play. Maybe some disagree with the Convention Against Torture, for instance, but one would have to be a pretty vociferous opponent of international law to argue that it isn't even relevant to the debates over Guantanamo, extraordinary rendition, and detainee treatment in the war on terror.

Also, I am not sure if people have really proven that international law is unequipped to deal with Israel/Palestine, or whether there are simply conflicting principles at issue here. For instance, many of the principles at issue are are based on the idea that borders should be stable and that even unfairly drawn borders should not later be open to redrawing. Thus, Israel has its right to exist because of lines that were drawn on a map 30 years before its founding, and lines that were drawn again at the end of the 1948 war. Those lines should not be redrawn, goes the argument. On the other hand, Palestinians claim that Israel is itself trying to redraw borders with settlements and security fences to achieve something closer to Biblical Israel. Does any of this make the principle that borders should not be subject to continual redrawing based on alleged past injustices a bad principle? No. It just means that, like many laws in many situation, this is a hard principle to apply here, with good arguments on both sides.

Similarly, many claims are made regarding whether Israel has greater rights than it otherwise would have to annex territory because its neighbors (with few exceptions) have not recognized its right to exist and maintain, at least rhetorically, a state of war with Israel. The principle involved is that a country fighting a war has to occupy territory as part of the enterprise; that's not the same as continuing to occupy the territory after peace is achieved. Now, Palestinian advocates point out that the state of war is more metaphorical than real, and that Israel is using the declared state of war as an excuse to engage in old-fashioned colonization that goes beyond its legitimate need for defense. Again, the principle may be difficult to apply here, but that doesn't mean the principle that countries may occupy territories in wartime that they would not be permitted to occupy in peacetime is a bad principle or one that has no force.

International law is no different than any other sort of law. It's complicated. It's sometimes self-contradictory. There are questions as to whether to follow the letter of the law or its spirit, text or intent, jural acts or animating policies. Guess what-- we have these same disputes in interpreting domestic law. But we don't simply give up on the Fourth Amendment, for instance, and declare that it "isn't really law", just because it's extremely difficult to apply the general principle of what a "reasonable" search is to particular factual situations.

David Kopel has started a very important dialogue here. Whether or not one agrees with his conclusions, his premise-- that international law matters in the Israel/Palestine dispute-- is undoubtedly correct.
2.28.2006 5:47pm
Yehudit (mail) (www):
My understanding of Resolution 242 is that it also - and more importantly - states that Israel has the right to "secure and defensible borders."

The Green Line is not a secure and defensible border. Israel can trade land with whoever the legal authority in the territories is, to create a border that is defensible (if the trading partner will agree to abide by a treaty; does anyone think hamas or the Fatah would?). But by R 242, Israel has no legal obligation to retreat to the Green Line.
3.1.2006 4:25pm
Yehudit (mail) (www):
Another aspect of the legality of Israel's border: It is usually understood that a law which is not applied equally to all, is not a valid law and the legal system which imposes it is not credible. Also a legal system where the judges are biased cannot rule fairly.

Israel is being held to standards unlike any other country. Its judges have repeatedly demonstrated bias against it. Therefore they have no right to make rulings and the "international law" they cite has no authority.
3.1.2006 4:28pm
Yehudit (mail) (www):
"At least the Jews have biblical rights to the land while the hashemites were losers from Arabia."

I just wanted to say something about this before someone sneers at "believing the land was given by God." I don't know what the commenter meant, but to me, "biblical rights" refers to the fact that the last time there was a sovereign nation on that spot, it was the Jewish nation. Although the area was called "Palestine" subsequently by the Romans and those who came after, there was no state called "Palestine" and no "Palestinians" as an ethnic or cultural group or nation. It was just territory which occasionally changed hands for 2000 years.

The Jewish scriptures, like most national mythologies, are a mixture of myth, law, and history. Some of its history described in the actual land of Israel from about 900 BCE has been confirmed by archeological finds and documents from other nations (such as the Babylonian account of its seige and destruction of Jerusalem in 586 BCE or the Roman and Greek writings about the Jewish nation and Jews).

I don't think a religious claim for Israel is credible in today's world, nor should it be. But there was factually a Jewish nation there, and Jewish residence persisted after the Roman destruction, in fact the first version of the Talmud was redacted there roughly 200-400 CE.

Are there any other peoples - who are still around - who don't live on at least part of their historic land, or who are considered to have no claim to it whatsoever? Many people think the Tibetans - for example - will never get back their homeland from China, but most of us would say they have some right to it.
3.1.2006 4:51pm
Ben-David (mail):
Regarding the claim that land has been expropriated for settlements:

Shortly after 1967, a detailed map of land claims was prepared with the involvement of representatives of both left and right wing factions of Israel. This map formed the basis for further land use during Israel's administration of these territories.

As others have noted, large tracts of land were, since Ottoman times, held by the ruling authorities and leased to private citizens. In addition, large tracts of privately owned land were in fact owned by Arabs living outside of the area - in what is now Jordan, Syria, Lebanon. The British survey of the situation upon receiving their mandate indicates a large percentage of the local Arab population were sharecroppers, rather than landowners.

So in addition to Ottoman-era records, the Israeli map also related to currently farmed land in an attempt to accommodate the large segment of the remaining Arab population that did not officially own land it had been working for decades.

Still, that translated into large tracts of land that passed into Israeli government control.

Every settlement and road that has been built by the Israelis has first been checked against the map, and against documented deed claims of the Israel Lands authority. In addition, as part of the process of filing a Site Plan for approval, the groups founding the settlements often advertise in Arab newspapers or post notices soliciting any conflicting claims - I am not sure if this is an actual requirement of the process or not, but this was done by the founders of my own settlement, and by other groups.

As a result of this policy most of the Israeli settlements are located on rocky, non-arable hilltops while Arab farming of the fertile valleys and wadis of the West Bank continues largely unchecked - and aerial photographs clearly document an Arab "land grab" in which the sons of sharecroppers infringe and plant on land that was never theirs. (This is often the story behind news photos of settlement fences that seem to "cut through" Arab fields - the land was not farmed when the settlement was established!)

Only a handful of settlements have significant agricultural lands - in sharp contrast to the kibbutz settlements erected within Israel since 1948.

Several of the hot spots reported on the news are historically Jewish properties that were confiscated wholesale by the Jordanians in 1949 - the classic example of this being the Jewish presence in Hebron, which is almost entirely situated in the old Jewish Quarter of Hebron, on properties of impeccable Jewish pedigree.

DAWeinstein posts above a link to a report issued by btselem - an organization with a known hard-left political bias, and a vested interested in perpetuating myths such as the "land grab" to insure its own continued relevance and funding.

The reality is otherwise. The vast majority of Arab residents of the West Bank and Gaza were undisturbed. The vast majority of settlements were built on uncultivated land not owned by local Arabs.
3.2.2006 9:12am