There are a number of flaws in the legal
arguments presented by Daniel Steiman. I
address here only one. Mr Steiman argues in effect that the settlements (necessarily
those outside Jerusalem and her suburbs) can be seen as a transfer by Israel of
her citizens into occupied territory, because the facilitation of them constitutes
“a transfer by the Government of Israel.
The flaw is simply demonstrated. One
can offer a person a subsidy to move house, but is that transferring them?
Hardly. The person who is offered the incentive makes their own decision to
move. The person can decline to move. The word “transfer” in this context
requires a Government decision that effects the move, and facilitation would
have to cross that line to constitute transfer by the Israeli Government.

Whether it is good policy for the State
of Israel to encourage settlement growth depends on a number of factors, all of
which should be debated, but to say, without qualification as Mr Steiman does, that
all Jewish settlements in areas captured by Israel in 1967 are illegal is wrong
in law and actually acts as barrier to sensible political compromise.

Contrary to its pompous and misleading introductory statement, what is abundantly clear to those who really understand the relevant aspects of International law is that the article is a transparent attempt to misrepresent the absolutely unquestionable legitimacy of Israel's legal right to the territory in terms of international law.

The author appears to be oblivious to the fact that shortly before the publication of his false and superficial article a detailed legal explanation signed by over 1,000 prominent international jurists and legal scholars from over 20 countries was presented to Katherine Ashton and other EU leaders. This paper sets out the relevant aspects of international law which totally refute the assertions in the current article. If the author wasn't aware of the paper and the glaring deficiencies and faults in his explanation, the editors of the Jerusalem Post certainly should have been aware of these problems. In these circumstances the publication of such a misleading article was a serious mistake.

By totally disregarding Israel's undeniable rights to the territory as confirmed by the League of Nations in 1922 and affirmed in article 80 of the UN Charter, the article has effectively presented a concoction of false and unjustified accusations, which only compound the unjustified damage that has been caused by numerous ignorant and confused attempts to address the situation in the past.

The assertions regarding the security aspects of the settlements are also misleading as those assertions totally disregard the reality that without continued Israeli control which is assured by the settlements, the areas in question which are strategically crucial to Israel's security would fall under the control of terrorists as already happened following Israeli withdrawals from Sinai, Lebanon and Gaza.

From a positive perspective, if the article is an indication of the only argument that Israel's enemies can dig up, we can look forward to a time when the international legal community will finally come to its senses and recognize the unquestioned legal basis of Israel's rights so that the false and damaging accusations that have been raised in the past can be properly abandoned in the dirt-bin of history where they belong.

It is sometimes claimed that Jordan, because of its “unlawful acquisition” of the West Bank, was entitled at most to claim the status of belligerent occupant. In its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the matter of occupation applied to any armed conflict between High Contracting Parties and that it was irrelevant whether territory occupied during that conflict was under their sovereignty. The Israeli High Court of Justice itself established that the application of the regulations depends on the effective military control exercised from outside the nation’s borders, and not from previous sovereignty over the territory of a specific state (HCJ 785/87). Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law - does not justify the use of the expression “disputed territories” in place of “occupied territories.” Even more so considering that Israel, in Allan Gerson’s words, “never challenged the lawfulness of Jordan’s control of the West Bank” and tried to reach a peace treaty after the Six-Day War which would have returned, with modified borders, the West Bank to Jordan.

Contrary to what you have suggested regarding the relevance or otherwise of the status of Jordan's illegal occupation prior to 1967, Israel's legal rights to the territory are solidly established in International law arising out of rights created in the framework of the League of Nations.

If you want to read an excellent brief explanation I recommend the paper by Howard Grief entitled: "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law"

Ian, I beg to disagree. I know Howard Grief's work quite well: it is not a serious academic work.

A short article on the issue and on Howard Grief's thesis:

"A few days ago Australia’s Foreign Minister Julie Bishop released an
interview to The
Times of Israel suggesting that, contrary to conventional diplomatic
wisdom, the settlements may not be illegal under international law. In these
last few years a growing number of politicians and scholars have expressed similar positions.
Many of them argue that the results of the 1920’s San Remo Conference and more
than this the inclusion of the principles contained in the Balfour Declaration
in the text of the Mandate of Palestine, assured to the Jewish people the
exclusive right to create their “national home” on “the
whole country of Palestine, not a mere part of it”.

In this respect, the Levy Report – released on 9 July 2012
by a special committee appointed in late January 2012 by Israeli Prime Minister
Benjamin Netanyahu – has represented a sort of “watershed”. It clarified
that “with the establishment of the United Nations in 1945, the principle of
recognizing the validity of existing rights of states acquired under various
mandates, including of course the rights of Jews to settle in the Land of
Israel by virtue of the above documents, was determined in article 80 of its
charter”. According to the Levy Report, Article 80 of the UN Charter implicitly
recognizes the Mandate for Palestine.

The
late Eugene Rostow, former dean of Yale Law School, also known for being a key
draftee of the UN resolution 242, further clarified these aspects explaining
that “a trust” – as in Article 80 of the UN Charter – “does not end because the
trustee dies”. Rostow’s argument, which is repeated in the Levy report, is that
although the League of Nations had ceased to exist,
the commitments of the League of Nations remain binding.

These claims are marred by several inaccuracies, starting from the
fact that the term “national
home” had no mutually agreed upon meaning or scope and that the British
government was under no definite obligation, since the Mandate made any Jewish
immigration subject to “suitable conditions”
and contained safeguards for the rights and position of the non-Jewish
communities.

Furthermore, as David Ben-Gurion clarified
in July 1947 in front of the UNSCOP commission: “The Mandate, in fact, does not
exist because it was violated by the Mandatory. We are not in favour of
renewing it. […] we say that the original intention and the need, and what in
our conviction is just, should be decided upon by the United Nations […] I said
we do not ask for a Mandate any more, so it is not a question. The question
does not arise on the Mandate”.

Also
the assertion that article 80 of the UN Charter
implicitly recognizes the Mandate for Palestine is more complex than often
claimed. One of the legal advisors to the Jewish Agency, Jacob Robinson,
published a book in 1947 that presented a historical account of the Palestine
Question and the UN. He explained
that when the Jewish Agency learned that the Allied Powers had discussed at the
Yalta Conference (February 1945) a new system of international supervision to
supersede the system of mandates, the Agency decided to submit a formal request
to the San Francisco Conference (April-June 1945) to obtain a safeguarding
clause in the UN Charter. The proposed clause would have prevented a
trusteeship agreement from altering the Jewish right to nationhood secured by
the Balfour Declaration and the Mandate for Palestine. The UN Conference
ignored the Agency’s request and stipulated in article 80 of the Charter that
the UN organization did have the necessary power to conclude trusteeship
agreements that could alter existing rights held under a mandate.

Robinson
tried to portray a legal setback as a victory and make everyone think that
Article 80 of the Charter accomplished the Agency’s stated objective. Indeed,
the final text adopted by the working paper for international trusteeship
contained an exception that allowed trusteeship agreements to do exactly what
the Jewish Agency had tried to prohibit. In Article
80’s words:
“Except as may be agreed
upon in individual trusteeship arrangements placing each territory under the
trusteeship system, nothing in this chapter should be construed in and of
itself to alter in any manner the rights of any state or any peoples in any
territory”.

Article 1 of General Assembly resolution 24(I) reserved the right
of the UN to decide not to assume any function or power of the League of
Nations. On the 19th March 1948, during the 271st meeting of the Security
Council, US Ambassador Warren Austin cited UN General Assembly resolution 24(I)
and pointed
out: “The United Nations does not automatically fall heir to the
responsibilities either of the League of Nations or of the Mandatory Power in
respect of the Palestine Mandate. The record seems to us entirely clear that
the United Nations did not take over the League of Nations Mandate system”.

On top
of all these considerations, the above mentioned
thesis of “exclusivity”, besides being unjustified from an historical point of
view – Palestine did not belong in an exclusive way to one single population in
its entire history – is incorrect also from the legal perspective imposed since
the early stage by London. Hubert Young, an important figure of the Foreign Office,
wrote in November 1920
that the commitment made by London “in respect of Palestine is the Balfour
Declaration constituting it a National Home for the Jewish People”. Lord Curzon
corrected him: “No. ‘Establishing a National Home in Palestine for the Jewish
people’ – a very different proposition”.

The
British White Paper of June 1922 – the first document that officially clarified the interpretation of the
Mandate’s text – clarified
that the Balfour Declaration does “not contemplate that Palestine as a whole
should be converted into a Jewish National Home, but that such a Home should be
founded ‘in Palestine’”. Furthermore, it stressed – and this is perhaps the
most relevant aspect – that the “Zionist congress”
that took place in Carlsbad in September 1921 had officially accepted that “the
determination of the Jewish people to live with the Arab people on terms of
unity and mutual respect, and together with them to make the common home into a
flourishing community, the upbuilding of which may assure to each of its
peoples an undisturbed national development”.

It is
only in light on these clarifications that the preamble as well as Article 2 of
the Mandate text can and should be understood. It is noteworthy that Zionist consent to such interpretation was requested, and
received, before the Mandate was
confirmed in July 1922. In Weizmann’s words:
“It was made clear to us that confirmation of the Mandate would be
conditional on our acceptance of the policy as interpreted in the White Paper [of
1922], and my
colleagues and I therefore had to accept it, which we did, though not without
some qualms”.

Israel’s right to
defend itself against fanaticism is something that any person interested in
peace cannot but support. Equally true is that the growing attempt to justify
the colonization of the Palestinian territories through a problematic
interpretation of history, international law, and international consensus is a dangerous threat that requires better public
understanding."

Under international law, Arabs who lost their homes in 1948 as part of the original 2 state solution are considered refugees - and yet thousands of Jews that were cleansed by Jordan from Jerusalem and from the West Bank and replaced with Jordanian citizens - who we today refer to as 'Palestinians' - in the same period are not similarly considered refugees. Explain?

Easy, peasy.

Refugees are no longer refugees when they take citizenship of a state other than that they left.

Jewish refugees took citizenship of Israel at which point they ceased to be refugees.

What about the Palestinian refugees in Arab lands who are purposely denied citizenship there? Because their fellow Muslims deny them recognition, they remain the only refugees in the world still in camps (and the reason the U.N. is going broke).

And I'd like to know what the international community had to say--if anything--when Jordan occupied the West Bank and expelled all the Jews?

Palestine refugees are far from being the only refugees in the world still in camps, as a look through the UNHCR website will quickly show you. Neither is it accurate to say that the UN is going broke because it supports Palestine refugees.

States that are hosting refugees are not obliged to offer citizenship to those refugees, it being the generally held consensus that they will return from whence they fled once it is safe so to do. Palestine refugees should have returned from whence they came decades ago, but have been prevented from doing so by Israel. It is not reasonable to blame host states for that which it remains between Israel and Palestine refugees to resolve.

I have no answer to your final question because I do not know.

How interesting that the author bases all his arguments on the Geneva conventions and conveniently ignores the fact that Jordan illegally occupied territory that, under international law, was supposed to be "closely settled" by the Jewish people. Israel cannot "occupy" territory that, by law, already belongs to it, even if she had not yet laid claim to it.

It is sometimes claimed that Jordan, because of its “unlawful acquisition” of the West Bank, was entitled at most to claim the status of belligerent occupant. In its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the matter of occupation applied to any armed conflict between High Contracting Parties and that it was irrelevant whether territory occupied during that conflict was under their sovereignty. The Israeli High Court of Justice itself established that the application of the regulations depends on the effective military control exercised from outside the nation’s borders, and not from previous sovereignty over the territory of a specific state (HCJ 785/87). Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law - does not justify the use of the expression “disputed territories” in place of “occupied territories.” Even more so considering that Israel, in Allan Gerson’s words, “never challenged the lawfulness of Jordan’s control of the West Bank” and tried to reach a peace treaty after the Six-Day War which would have returned, with modified borders, the West Bank to Jordan.

http://opiniojuris.org/2014...

What is closest to the truth is the statement by Morris Abram, who was involved in drafting the Fourth Geneva Convention, that stated that the convention was not designed to cover situations like Israeli settlements.

His opinion is more relevent than any agenda-orientated, narrow interpretation of international law which ignores the fact that Israel does apply the humanitarian aspects of the convention despite her interpretation of the convention and The Hague Regulations that her control of the territory is not an "occupation", is legal under international law and that Israelis have a right to buy land and build communities.

Steiman's mother is illegal and his birth is in contrast with international law

I do not have an MA in Int'l Law but I have read PhDers and professors who do. In any case, Steiman writes: "Belligerent occupation is a specific category under the international laws of war that comes into effect when a state captures territory from another state during the course of war" and I ask - what state exactly did Israel capture territory from? It wasn't "Palestine". It was Jordan. Was Jordan a legitimate power in those territories? No. It was an illegal occupier (only Gt. Britian granted recognition).so no matter how hard he tries further down, he's in a hole. Indeed, the phrase of Geneva is "High Contracting Parties" and even 242 refers but to "states".

He tries to get out by claiming that Geneva 49 is there "to protect the human rights of civilians". Well, Israel does that. Political rights, however, I would maintain, are another matter as are states. Moreover, the only international law decision on this matter, that of the League of Nations, does not recognize "political rights" for non-Jews in the territory of Palestine but only civil and religious ones.

Only a negotiated treaty can solve this and if the Arabs make those negotiations difficult, that does not preclude Jews from being engaged in "close settlement" on the land, another right guaranteed by international law.

P.S. I read that Steiman has interned at the New Israel Fund's Shatil and wrote for Muftah (for example, this: "the One-State Solution is an entirely unworkable and disastrous plan".) That would indicate a political motivation and extreme leftist orientation that should have been acknowledged.

It is sometimes claimed that Jordan, because of its “unlawful acquisition” of the West Bank, was entitled at most to claim the status of belligerent occupant. In its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the matter of occupation applied to any armed conflict between High Contracting Parties and that it was irrelevant whether territory occupied during that conflict was under their sovereignty. The Israeli High Court of Justice itself established that the application of the regulations depends on the effective military control exercised from outside the nation’s borders, and not from previous sovereignty over the territory of a specific state (HCJ 785/87). Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law - does not justify the use of the expression “disputed territories” in place of “occupied territories.” Even more so considering that Israel, in Allan Gerson’s words, “never challenged the lawfulness of Jordan’s control of the West Bank” and tried to reach a peace treaty after the Six-Day War which would have returned, with modified borders, the West Bank to Jordan.

http://opiniojuris.org/2014/01...

When he moved to Israel, I don't know whether he reduced the average intelligence and knowledge more in Israel, or raised it more at Geotown.

It is sometimes claimed that Jordan, because of its “unlawful acquisition” of the West Bank, was entitled at most to claim the status of belligerent occupant. In its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the matter of occupation applied to any armed conflict between High Contracting Parties and that it was irrelevant whether territory occupied during that conflict was under their sovereignty. The Israeli High Court of Justice itself established that the application of the regulations depends on the effective military control exercised from outside the nation’s borders, and not from previous sovereignty over the territory of a specific state (HCJ 785/87). Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law - does not justify the use of the expression “disputed territories” in place of “occupied territories.” Even more so considering that Israel, in Allan Gerson’s words, “never challenged the lawfulness of Jordan’s control of the West Bank” and tried to reach a peace treaty after the Six-Day War which would have returned, with modified borders, the West Bank to Jordan.

And Jordan gave up its control of these areas in their peace agreement with Israel. So your cut and paste exercise of a small splice of the ICJ "advisory opionion" (the ICJ did not rule anything, they do not set laws) is further proof that Israel is not an occupier. So thank you for your contribution to Zionism.....