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Le Mont de Sisyphe
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Location: Zurich, Switzerland

Je suis beau et intelligent. À part cela, je suis juriste helvète, libéral-conservateur, amateur d'armes, passionné d'histoire et de politique. Je suis libéral et capitaliste convaincu car je pense que c'est cela l'état naturel de l'homme. Je parle le "Schwiizerdütsch" avec un accent zurichois, j'adore la bonne musique, la bière et surtout la femme avec qui je vis.

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Wednesday, January 04, 2006

About those "occupied" territories...

Here's an interesting paper that's been written four years ago in January 2002 by former Israeli Ambassador to the U.N., Dore Gold. Remember, that was at a time when the so-called "Second Intifada" was becoming worse every day, following Arafat's concept that deadly terror was a valuable substitute to negotiation. Dore Gold argues that the so-called "occupied territories" that Israel entered during the Six-Day War in 1967 are erroneously seen as belonging to the Arabs more than to Israel. Hence he suggests to drop the term "occupied" and to use "disputed" instead (this is what I generally do on this blog). He also reaches the conclusion that the Geneva Conventions are not applicable in these territories. Therefore, it couldn't be argued that the "occupation" is illegal as critics state when they base themselves on the Fourth Geneva Convention.

Another important point to take into account is the history of these territories: In 1947, the partition plan of the U.N. attributed half of the remaining British mandate to the Arabs (the major part of the original mandate after WWI having already been "cut off" much earlier and given to the Arabs - they then called it Jordan). The Arabs however didn't accept to live next to a Jewish State and wanted all territories. Thus, they started a war to throw back the Jews to the sea and they lost. At least the "Palestinians" lost. Egypt caught the opportunity and occupied Gaza, Jordan swallowed what is called today the "Westbank" (in opposition to "Transjordan"). Both the Egyptian and Jordanian actions were completely illegal. In the war of 1967, which was started by the Arabs, Israel occupied lands from its aggressors mainly for strategic reasons.

Could Germany claim lands it lost in a war it started? The Palestinians however, although having always been on the side of the loser in history (a few examples: the Mufti of Jerusalem, the Arab aggression wars since 1948, solidarity with Saddam or with Osama...) and their sympathizers behave as if they had stronger ties or rights to these territories.

How often is the chronically losing aggressor offered land as it was to the Arabs in 1937, 1947 and in 2000? However, the "Palestinians" always refused and prefered to try to get "their" lands entirely judenrein instead.

But let's get back to Dore Gold:

From "occupied" territories to "disputed" territories

"Occupation" as an Accusation

At the heart of the Palestinian diplomatic struggle against Israel is the repeated assertion that the Palestinians of the West Bank and Gaza Strip are resisting "occupation." Speaking recently on CNN's Larry King Weekend, Hanan Ashrawi hoped that the U.S. war on terrorism would lead to new diplomatic initiatives to address its root "causes." She then went on to specifically identify "the occupation which has gone on too long" as an example of one of terrorism's sources. In other words, according to Ashrawi, the violence of the intifada emanates from the "occupation." (...)

Writing in the Washington Post on January 16, 2002, Marwan Barghouti [who in the meantime has been sentenced to life emprisonnment by an Israeli court for charges of terrorism -ed.], head of Arafat's Fatah PLO faction in the West Bank, continued this theme with an article entitled: "Want Security? End the Occupation." (...)

Three clear purposes seem to be served by the repeated references to "occupation" or "occupied Palestinian territories." First, Palestinian spokesmen hope to create a political context to explain and even justify the Palestinians' adoption of violence and terrorism during the current intifada. Second, the Palestinian demand of Israel to "end the occupation" does not leave any room for territorial compromise in the West Bank and Gaza Strip, as suggested by the original language of UN Security Council Resolution 242 (see below).

Third, the use of "occupied Palestinian territories" denies any Israeli claim to the land: had the more neutral language of "disputed territories" been used, then the Palestinians and Israel would be on an even playing field with equal rights. Additionally, by presenting Israel as a "foreign occupier," advocates of the Palestinian cause can delegitimize the Jewish historical attachment to Israel. This has become a focal point of Palestinian diplomatic efforts since the failed 2000 Camp David Summit, but particularly since the UN Durban Conference in 2001. Indeed, at Durban, the delegitimization campaign against Israel exploited the language of "occupation" in order to invoke the memories of Nazi-occupied Europe during the Second World War and link them to Israeli practices in the West Bank and Gaza Strip.

The Terminology of Other Territorial Disputes

The politically-loaded term "occupied territories" or "occupation" seems to apply only to Israel and is hardly ever used when other territorial disputes are discussed, especially by interested third parties. For example, the U.S. Department of State refers to Kashmir as "disputed areas." [In addition, the author mentions, among others, the Western Sahara and Cyprus -ed.] (...)

No Previously-Recognized Sovereignty in the Territories

Israel entered the West Bank and Gaza Strip in the 1967 Six-Day War. Israeli legal experts traditionally resisted efforts to define the West Bank and Gaza Strip as "occupied" or falling under the main international treaties dealing with military occupation. Former Chief Justice of the Supreme Court Meir Shamgar wrote in the 1970s that there is no de jure applicability of the 1949 Fourth Geneva Convention regarding occupied territories to the case of the West Bank and Gaza Strip since the Convention "is based on the assumption that there had been a sovereign who was ousted and that he had been a legitimate sovereign."

In fact, prior to 1967, Jordan had occupied the West Bank and Egypt had occupied the Gaza Strip; their presence in those territories was the result of their illegal invasion in 1948, in defiance of the UN Security Council. Jordan's 1950 annexation of the West Bank was recognized only by Great Britain (excluding the annexation of Jerusalem) and Pakistan, and rejected by the vast majority of the international community, including the Arab states. (...)

Aggression vs. Self-Defense

International jurists generally draw a distinction between situations of "aggressive conquest" and territorial disputes that arise after a war of self-defense. Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, wrote in 1970 regarding Israel's case: "Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title."(...)

[T]he temporary armistice boundaries of 1949 lost all validity the moment Jordanian forces revoked the armistice and attacked. Israel thus took control of the West Bank as a result of a defensive war.

The language of "occupation" has allowed Palestinian spokesmen to obfuscate this history. By repeatedly pointing to "occupation," they manage to reverse the causality of the conflict, especially in front of Western audiences. Thus, the current territorial dispute is allegedly the result of an Israeli decision "to occupy," rather than a result of a war imposed on Israel by a coalition of Arab states in 1967.

Israeli Rights in the Territories

Under UN Security Council Resolution 242 from November 22, 1967 -- that has served as the basis of the 1991 Madrid Conference and the 1993 Declaration of Principles -- Israel is only expected to withdraw "from territories" to "secure and recognized boundaries" and not from "the territories" or "all the territories" captured in the Six-Day War. This deliberate language resulted from months of painstaking diplomacy.(...)

Thus, the UN Security Council recognized that Israel was entitled to part of these territories for new defensible borders. Britain's foreign secretary in 1967, George Brown, stated three years later that the meaning of Resolution 242 was "that Israel will not withdraw from all the territories." (...)

Given these fundamental sources of international legality, Israel possesses legal rights with respect to the West Bank and Gaza Strip that appear to be ignored by those international observers who repeat the term "occupied territories" without any awareness of Israeli territorial claims. Even if Israel only seeks "secure boundaries" that cover part of the West Bank and the Gaza Strip, there is a world of difference between a situation in which Israel approaches the international community as a "foreign occupier" with no territorial rights, and one in which Israel has strong historical rights to the land that were recognized by the main bodies serving as the source of international legitimacy in the previous century.

After Oslo, Can the Territories be Classified as "Occupied"?

In the 1980s, President Carter's State Department legal advisor, Herbert Hansell, sought to shift the argument over occupation from the land to the Palestinians who live there. He determined that the 1949 Fourth Geneva Convention governing military occupation applied to the West Bank and Gaza Strip since its paramount purpose was "protecting the civilian population of an occupied territory." Hansell's legal analysis was dropped by the Reagan and Bush administrations; nonetheless, he had somewhat shifted the focus from the territory to its populace. Yet here, too, the standard definitions of what constitutes an occupied population do not easily fit, especially since the implementation of the 1993 Oslo Agreements.

Under Oslo, Israel transferred specific powers from its military government in the West Bank and Gaza to the newly created Palestinian Authority. Already in 1994, the legal advisor to the International Red Cross, Dr. Hans-Peter Gasser, concluded that his organization had no reason to monitor Israeli compliance with the Fourth Geneva Convention in the Gaza Strip and Jericho area, since the Convention no longer applied with the advent of Palestinian administration in those areas.(...)

Since that time, 98 percent of the Palestinian population in the West Bank and Gaza Strip has come under Palestinian jurisdiction.15 Israel transferred 40 spheres of civilian authority, as well as responsibility for security and public order, to the Palestinian Authority, while retaining powers for Israel's external security and the security of Israeli citizens.

The 1949 Fourth Geneva Convention (Article 6) states that the Occupying Power would only be bound to its terms "to the extent that such Power exercises the functions of government in such territory." Under the earlier 1907 Hague Regulations, as well, a territory can only be considered occupied when it is under the effective and actual control of the occupier. Thus, according to the main international agreements dealing with military occupation, Israel's transfer of powers to the Palestinian Authority under the Oslo Agreements has made it difficult to continue to characterize the West Bank and Gaza as occupied territories.

Israel has been forced to exercise its residual powers in recent months only in response to the escalation of violence and armed attacks instigated by the Palestinian Authority. Thus, any increase in defensive Israeli military deployments today around Palestinian cities is the direct consequence of a Palestinian decision to escalate the military confrontation against Israel, and not an expression of a continuing Israeli occupation, as the Palestinians contend. For once the Palestinian leadership takes the strategic decision to put an end to the current wave of violence, there is no reason why the Israeli military presence in the West Bank and Gaza cannot return to its pre-September 2000 deployment, which minimally affected the Palestinians.

Describing the territories as "Palestinian" may serve the political agenda of one side in the dispute, but it prejudges the outcome of future territorial negotiations that were envisioned under UN Security Council Resolution 242. It also represents a total denial of Israel's fundamental rights. Furthermore, reference to "resisting occupation" has simply become a ploy advanced by Palestinian and Arab spokesmen to justify an ongoing terrorist campaign against Israel, despite the new global consensus against terrorism that has been formed since September 11, 2001.

It would be far more accurate to describe the West Bank and Gaza Strip as "disputed territories" to which both Israelis and Palestinians have claims. As U.S. Ambassador to the UN Madeleine Albright stated in March 1994: "We simply do not support the description of the territories occupied by Israel in the 1967 War as occupied Palestinian territory."

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