.

Tuesday, August 28, 2007

Huffington Post publishes a great legal history of the "territories"

Sorry for quoting the whole thing, but it is as good and accurate a history of the disputed territories as one will ever find. By Robert Eisenman:

Christiane Amanpour in her "God's Warriors: The Jews" broadcast on CNN this weekend - aside from giving voice to as many anti-Israel and anti-"settlement" critics as one might imagine and almost no "Jewish" (really?) God's Warriors, except to portray them in the most trivialized manner - must have used the term "Occupied Territories" an endless number of times at every juncture in her narrative from start to finish, so much so that one could be left in no doubt that this was a critique of Israel's or "the Jews"' pre-sence in them (whatever one might mean by "them") and not about supposedly "Jewish" "Warriors for God" at all.

But it was an altogether too-easy victory. If you start by assuming what in the end you wish to prove, then you have really only indulged in an endless propaganda exercise ostensibly dealing with concepts you haven't really seriously investigated at all. A case in point - the highpoint of her investigation was clearly a revelation of a supposedly secret Israeli legal memorandum written by someone identified as a "legal adviser" alerting the then 1967 Government to the "illegality" of settlements and their potential violation of the Geneva Conventions and an actual interview (on the streets of London) with the now evidently-retired lawyerly Jewish author some forty years later (had he retired to London?) verifying, though a little more hesitatingly, that he still held the same view today.

That was all Amanpour needed. She then proceeded to run on with a series of cut-ins from a Jimmy Carter interview - as if he with his callow sophistries about Israeli "Apartheid" were some sort of expert too - interspersed with some "B-roll" of shots of James Baker and his Carlyle Group partner George Bush Sr., even the long-vanished Chuck Percy of Illinois! But where was the counter-indicative position stated in any depth to what was after all just another "legal opinion" (though in the sensationalist manner in which she was presenting it to a presumably legally-unsophisticated and unsuspecting public it was being given the appearance of the force of "a finding" or "a legal fact")? There was none.

Nor was there any serious background to how one came to the Six-Day War as if that was the be-all and end-all of the political situation. History began in 1967 - period. Or, for instance, of the Ottoman Empire previously or the British Mandate, or even the results of the Jordanian Annexation of the West Bank in the early 1950's, transforming what was once the British-named "Transjordan" (with obvious implications) into "The Hashemite Kingdom of Jordan," i.e., "Jordan" on both sides of the River. No nothing - just bald statements nurturing present propagandistic fantasies.

"The Occupied Territories" -- let us start with that. When was the legal status of the territory in between the present territory of Jordan (now back on the other side of the River where it began) ever resolved? This is a good term for popular journalism or congenial conversation. Afterall, people must communicate, but it has no real presence in legal fact. That is what we meant by saying Ms. Amanpour achieved an all-too-easy victory on this point - from the beginning assuming what she had set out to prove, but the language you use from the beginning and throughout cannot contain the seeds of what you are going to conclude. You must give all sides to an argument or legal discussion a hearing.

In the first place, in Ottoman times, this whole area was part of the "Wilayet" or "Province of Damascus." There was never a "Province" called "Palestine," a name which like "Iraq" (i.e., the newly-discovered archaeological "Uruk") came from the British love of classics - in this instance, their love of classical literature which their professional bureaucrats learned at elite "Public Schools" and which was the legally-designated Roman term for the area after the Jewish presence had been largely eradicated following two Uprisings in 66-70 and 136 CE (interestingly enough, this was based on the Biblical term "Philistia" - the "Mycenaean" or "Greek" area of the Coast occupied by "the Philistines" which even modern Arabic has picked up for the name for its present-day extension - "the Philistinin"/"the Palestinians", the implications of which should be clear even though these aren't "Philistines," or are they?).

Jerusalem only became a separate quasi-administrative entity within this 'Wilayet" as Western Christian tourism and pilgrimage picked up during the Nineteenth Century and the Ottomans had to deal with Western Consulates that had started to grow up in it. There was never a "Palestine" per se except in late Roman times and there was never one again until the British came in 1917-18.

So it is best to start here with the First World War and its aftermath. The "Mandate" for Palestine and other "Mandates" were awarded to Britain and France by the League of Nations (basically as spoils of war) from the decomposing Ottoman Empire and German colonial possessions in Africa after the Conference of San Remo in 1920 and the Peace Treaty of Lausanne in 1923. This has to be considered the first "legal" building block if one wants to start with anything - whether colonial-minded or non-colonially-minded depending on the observer is besides the point.

Palestine was a "Class B" Mandate meaning, unlike some others ("Iraq" and "Syria" for Instance), its eventual independence was considered to be a ways off in the future. Whether one likes it or not, the fabled "Balfour Declaration" was appended to the Mandate for Palestine as a preamble. It is too bad it was never really observed, not even in spirit, because if it had been, history's first recorded "Holocaust" (or perhaps its second if one considers the Armenians and Turks) in which some six million were systematically annihilated might never have occurred. But, never mind, this is merely 'water over the dam' as it were.

It was at this point that all these results or positions were incorporated into the Palestine-Order-in-Council of 1922, which set forth the legal structure of the new "Mandate" absorbing all previous law including the League of Nations' Mandate and its controversial rider, "The Balfour Declaration." I needn't go into the terms of these. They are pretty obvious. By contrast "Transjordan" (as it was called) received an "Organic Law" after the British unilaterally cut away about two-thirds of the Mandate which originally applied to both sides of the river and gave it, presumably for 'services rendered,' to the Hashemite family of Mecca which coincidentally or otherwise was itself being thrown out of the Arabian Peninsula by "the House of Saud" - a dislodgement which had to do with "Arabian" legal affairs and nothing to do with "Palestinian" at all.

Moreover, it is hard to say if this was ever legally recognized by anyone but it didn't matter, as legal Mandatee, Britain presumably had the right to do this. In any event this threw the whole "Jewish-Palestinian" problem onto the Western Side of the Jordan River while at the same time making the eventual emergence of "Three States" (now possibly "Four") from the old Mandated Territory inevitable. Be this as it may, events eventually overtook this as well, though the establishment of "The Kingdom of Jordan" out of the old Palestine Mandate became more-or-less an unquestioned legal "fact" over the next 80 years.

Responding to various "Arab" uprisings in the Nineteen Twenties and Thirties (to some extent themselves responding to the rise of Nazism on continental Europe and elsewhere - the Baath Party in Syria, for instance, and further East), the British Administration in Palestine ("the man on the spot" as it was often called) became more and more anti-Jewish immigration - in contradistinction to the terms of the Balfour Declaration which in the end became more or less a dead letter - and came up with various "Partition" plans and finally "The White Paper" of 1939 which cut off Jewish immigration in Palestine (of course, just when it was most needed!).

In any event, after the Second World War and all the horrific events everyone is familiar with in connection with that, the legal question of "Palestine" ( though not of "Jordan" which had become an established "fact" as already explained) was once again 'on the table' of the heir of this League of Nations - the illustrious, still-functioning "United Nations." A version of one of these "Partition" plans was eventually adopted in 1947 but was immediately rejected by all of the surrounding "Arab States" by then themselves (several formerly "Class A Mandates") all independent: Egypt, Syria, Jordan, Iraq, etc. - only Lebanon does not seem to have been legally clearly regulated, nor does it seem to be today (let's leave present-day "Iraq" aside) - who immediately invaded looking forward to an easy victory.

What followed was the so-called Israeli "War of Independence," whose "Cease-Fire Lines" became the eventually demarcations of the 20-year "Truce" that then descended - the official name of which dropped into popular parlance as "the Old Green Lines." But where was the legal or "official" regulation here? There was none. What followed too was the eventual annexation of "the West Bank" (Jordanian parlance meaning the west bank of their Jordan River) in 1951 by the Hashemite Kingdom of Transjordan making it "Jordan" on both sides of the River. But where was the legal outcry here? There was none. But equally, where was the legal recognition or basis in international jurispru-dence? There was none - no more than the annexation by Israel of the City of Jerusalem and its surroundings after the Six-Day War in 1967 fifteen years later.

In other words, the status of the area in between Israel and Jordan, which had been part of the original Mandate for Palestine which had been legally recognized, was in a kind of legal limbo and was still to be regulated. This has to be done by Treaty and negotiations. Two such negotiations have occurred for better or for worse between Israel and Egypt and Jordan in the 1970's and 1990's. Ok, those situations are more or less legally defined and regulated whether rightly or wrongly.

But what of "the Occupied Territories"? These have not been defined in any legal sense and not even the famous Resolution 242 after the Six Day War in 1967 which called upon the Israelis to "withdraw from territories" in exchange for Peace drew back from doing this and did not - and this apparently purposefully - define which "territories" were to be so regarded and to what extent. This again was to be resolved by negotiations, but these "negotiations" are what are supposedly taking or not taking place; and, in any event have been marred by violence (from whatever the direction or from whosever's point-of-view) on a continuing basis.

Nevertheless, the term "Occupied Territories" itself would appear to be a misnomer, however it is used in fact, since it is difficult to "occupy" a "territory" which has no legal status to begin with - except that conferred on it perhaps by the illegal annexation by Jordan - and, therefore, it is difficult to see how the Geneva Conventions should apply to it anymore than they earlier did to Jordan (are all Jordanian-constructed buildings, et. al., therefore, "illegal"?). This is especially true in the light of a finding that "settlement" activity on the part "Jews" (if not "Israelis") in such areas was permissible - in fact, "looked upon with favor" according to the first officially-recognized legal entity, the Balfour Declaration.

However these things may be, the terms of all such legally-binding resolutions or enactments have been systematically violated by all either responsible for or a legal party to them from the beginning up to the present day. The British violated the terms of the Balfour Declaration which had been appended to their "Mandate for Palestine" from the beginning, in effect, doing away with it from two-thirds of the territory appertaining to it in a unilateral manner as early as 1920-21 or thereabouts (no protests here) and abolishing it altogether in 1939. The Jordanians also violated the terms of this Declaration, prima facie (and, as a result therefore, the Mandate for Palestine) allowing no "Jewish Settlement" - which they would have seen as a contradiction in terms - on the territory allotted to them from the beginning on up to the present day. As a footnote to this, it should be observed that even "Palestinian" groups like "Black September" opposed the kind of sovereignty these Authorities were exercising on whatever side of the Jordan.

The British also violated the terms of the Mandate for Palestine by the various unilateral actions they took already enumerated above. All so-called "Arab States," such as Egypt, Syria, Iraq, and Transjordan (many - the last three the beneficiaries of "Class A Mandates" - whose independence had already been consolidated as already explained), absolutely rejected the internationally-adopted "Partition of Palestine," making this crystal clear by their immediate invasion. And even those who did not invade like Saudi Arabia, Lebanon, Kuwait, etc. supported this rejection and invasion in no uncertain terms. Even the so-called "Palestinians" themselves rejected this, rendering it too a dead letter - many making this clear by their flight whether by choice or involuntary (however one views this and whatever the claims involved) and even more so by their "National Charter" which unequivocally rejects it even to the present day.

So what is, therefore, the legal status of the so-called "Occupied Territories" and what is their extent? There is none. They are in a kind of legal limbo, that is, they are, strictly speaking, legally unrecognized and who knows their extent? This has yet to be determined by negotiation and, like most of the arguments one usually hears (including those on Amanpour's program), superficial. So how can the Geneva Conventions supposedly be applied to an area whose legal status was never legally or rightfully determined in any meaningful way in the first place, except for the Mandate for Palestine in 1920-23 by the League of Nations and manhandled ever since by all legal parties concerned but still rightfully recognizing a Jewish right of settlement all the way up to the Jordan River and, if the truth were told, beyond? This is one legal nicety which has never been gainsaid, whether one likes it or does not like it.

In any event, "Settlement" has to do with 'Lands" - "Dead Lands" as they were called in the Ottoman Empire previously, "Mewat." As in the American West and something in the manner of "Homesteading," these were and are (Ottoman Land Law having been absorbed into both Israel and Jordan Law) lands outside of cities and public spaces connected to cities whose title according to the Ottoman Land Law of 1856 (and, in fact, strict Islamic legal theory and customary practice upon which it was based) had never either been determined or registered by anyone, but which carried with it a right of "Vivification," that is, if you fenced off an uninhabited area of this kind with no registered legal title and cultivated it for three years continuously, you had the right to register it as "mulk" - freehold property. Anyhow, these are legal complexities for which the reader might wish to look at my book: Islamic Law in Palestine and Israel: A History of the Survival of Tanzimat and Shari'a in the British Mandate and the Jewish State, E. J. Brill, Leiden, 1978.

Another point, which perhaps should be emphasized for the unsuspecting reader - to call these "towns" or 'bedroom suburbs," which have been founded or mainly grown up on such lands ("Palestine," "the Wilayet of Damascus," "Transjordan," or whatever you want to call it being comprised of large swaths of such lands), "Settlements" at this point is also a misnomer - as any clear-eyed observer who has seen them might be able to understand - of immense and tendentious proportions whose basic purpose is to delegitimatize them (as clearly Christiane Amanpour was intent upon doing whether intentionally or otherwise) before their legal status even comes under consideration or is negotiated. She like many of her colleagues and confreres just seem to facilely assume these things are obvious without any in-depth examination - forgetting the ancient proverb that "the unexamined life is not worth living."