By Ted Belman, Israpundit

Prof Talia Einhorn writes:

…under public international law, Israel is not obliged to accept or support the establishment of a sovereign Arab state west of the Jordan River.

But GERSHOM GORENBERG, in an NYT article, Israel’s Tragedy Foretold, wrote:

[...] (after the ‘67 war) The legal counsel of the Foreign Ministry, Theodor Meron, was asked whether international law allowed settlement in the newly conquered land. In a memo marked “Top Secret,” Mr. Meron wrote unequivocally, “My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.”

In the detailed opinion that accompanied that note, Mr. Meron explained that the Convention — to which Israel was a signatory — forbade an occupying power from moving part of its population to occupied territory. The Golan, taken from Syria, was “undoubtedly ‘occupied territory,’ ” he wrote.

Mr. Meron took note of Israel’s diplomatic argument that the West Bank was not “normal” occupied territory, because the land’s status was uncertain. The prewar border with Jordan had been a mere armistice line, and Jordan had annexed the West Bank unilaterally.

But he rejected that argument for two reasons.

The first was diplomatic: the international community would not accept it and would regard settlement as showing “intent to annex the West Bank to Israel.”

The second was legal, he wrote: “In truth, certain Israeli actions are inconsistent with the claim that the West Bank is not occupied territory.”

For instance, he noted, a military decree issued on the third day of the war in June said that military courts must apply the Geneva Conventions in the West Bank.

There is a subtext here. In treating the West Bank as occupied, Israel may simply have been recognizing legal reality. But doing so had practical import: if the land was occupied, the Arabs who lived there did not have to be integrated into the Israeli polity — in contrast to Arabs within Israel, who were citizens.

Eshkol and other Israeli leaders knew that granting citizenship to the Arabs of the West Bank and Gaza Strip would quickly turn Israel into a binational state. In effect, the Meron memo told Eshkol: you cannot have it both ways. If the West Bank was “occupied” for the Arab population, then neither international law nor Israel’s democratic norms permitted settling Jews there.

Before accepting that opinion holus bolus one must read the opinion of Professor Talia Einhorn, Adjunct Professor of Law, Tel Aviv University Faculty of Management/Professor of Law, Sha’arei Mishpat College of Law, Hod Ha-Sharon, Israel; former Editor-in-Chief, as of 2003 member of the Advisory Board of European Business Organization Law Review (2000-). She published a contrarian opinion in Nativ, The Status of Palestine/Land of Israel and Its Settlement Under Public International Law

In 1967, following the Six Day War, the territories of Yesha, which had been originally designated for the Jewish national home according to the Mandate document, returned to Israeli rule. Leading international law scholars opined that Israel was in lawful control of Yesha, that no other state could show better title than Israel to Yesha’s territory, and that this territory was not “occupied” in the sense of the Geneva Convention, since those rules are designed to assure the reversion of the former legitimate sovereign which, in this case, does not exist.11 Israel was therefore entitled to declare that it has exercised its sovereign powers over Yesha. In practice, however, for political and other reasons, Israel exercised its sovereign powers only with respect to East Jerusalem. Regarding the rest of Yesha, Israel’s official position was that Israel was entitled to annex them, and that, since they had not been taken from a legitimate sovereign, the Fourth Geneva Convention and the Hague Regulations 1899/1907 were inapplicable there. Nonetheless, Israel chose voluntarily to observe and abide by the humanitarian provisions included therein.12

Continue reading…