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Friday, November 06, 2009

Palestinian Arabs are unique in international law

The Guardian says that accused Fort Hood murderer Nidal Hassan was "the son of Palestinians from a village near Jerusalem."

The New York Times says, "His mother’s obituary, in The Roanoke Times in 2001, said she was born in Palestine in 1952."

This got me to wondering about a contradiction in the standard pro-Palestinian Arab narrative that the world has swallowed whole.

We all "know" that Israel is considered the legal occupier of the West Bank. It was declared as such by the UN and the ICJ, among others.

The definition of occupation, however, is straightforward:

"Military occupation occurs when a belligerent state invades the territory of another state with the intention of holding the territory at least temporarily."

The original definition from the Hague Conventions of 1907 states:
Military authority over the territory of the hostile state

Art. 42. Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised.

The question that remains murky is, what is the state that Israel is occupying? It cannot be Jordan, because Jordan relinquished control in 1988, and the international community never recognized Jordan's annexation of the West Bank. It seems clear, from the aforementioned sources, that this "state" is "Palestine."

In other words, according to the UN and the ICJ, there is a legal entity called "Palestine" and it has existed since at least 1967, probably since 1948. This is remarkable in itself that international law is implicitly recognizing a state that was never declared or recognized. As a matter of fact, it may be against international law to prematurely recognize a state (note 26.)

(The ICJ takes the position that the intent of the Fourth Geneva Convention is not only between High Contracting Parties and that the intent of the drafters was to protect civilians even if they were not in a state beforehand. This is probably true: the Fourth Geneva Convention is specifically concerned with civilians. The advisory opinion is being extended way beyond treatment of civilians - the responsibility of which Israel voluntarily accepted in 1967 - and into the legal status of the territories themselves. That isn't defined by Geneva, but by the Hague. This brings up an entire other set of anomalies as Israel ceded day to day control of large parts of the territories to the PA, as a strict reading of "occupation" would imply that Israel has a much greater responsibility over West Bank Palestinian affairs than it exercises now, a position that would horrify the UN and ICJ.)

If we ignore these anomalies and assume that there is a legal entity called Palestine that is under occupation, then we come up to another problem: the definition of "refugees."

We have discussed a number of times in the past how Palestinian Arab "refugees" are the only ones in the world whose definition includes the descendants of the original people who fled a war. The UNRWA's operational definition has somehow become the legal definition.

But this definition has another dimension of exceptionalism: if one considers the West Bank to be legally "Palestine," then the original "refugees" who are there would normally be considered "internally displaced persons." After all, they just moved from one part of "Palestine" to another - if one accepts that "Palestine" is "occupied."

This analysis shows that the only way for the worldview of "occupation" and "refugees" to both be accurate and not contradictory is to redefine both words to accommodate a specific circumstance. To say that normal legal terms must be redefined for Palestinian Arabs - and only Palestinian Arabs - is to make a mockery of the idea of law itself.