Elder Of Ziyon - Israel News

Friday, July 13, 2012

Friday links

From Ian:

IDF Blog: Our Heroes: IDF Soldiers in Action

"At every hour of every Day, IDF soldiers are protecting the borders of Israel's, doing everything they can to keeping our citizens safe."

Caroline Glick: Obama's spectacular failure

“By calling for Abdel-Rahman's release, Mursi has aligned himself and his government with the US's worst enemies. By calling for Abdel-Rahman's release during his unofficial inauguration ceremony, Mursi signaled that he cares more about winning the acclaim of the most violent,
America-hating jihadists in the world than with cultivating good relations with America.
And in response to Mursi's supreme act of unfriendliness, US President Barack Obama invited Mursi to visit him at the White House.” (also covers Levy Report)

Walsh Withdraw Egypt Aid

“Thirty-five Republican members of Congress are calling on House leadership to “withhold all U.S. aid to the Egyptian government” until its new Muslim Brotherhood-affiliated president agrees to abide by “Egypt’s treaties, promote peace with Israel, and continue to recognize Israel’s right to exist as a Jewish state.”

Former Mossad Chief: Israel Must Prepare for Possible Military Action in Syria, Cites Bio-Chemical Threat

“The reports yield a bleak prognosis that is difficult to strategize against. Syria’s weapons are excessive in number, pervade the entire region, and are heavily defended by the Syrian army which is said to number 100,000 troops. According to a Pentagon study, uprooting Syria’s arsenal would require troops numbering 75,000.

Lifestyles of the Rich and Palestinian

“Palestinian Authority President Mahmoud Abbas has allegedly deposited nearly $13 million in U.S. taxpayer aid into a secret bank account, and routinely uses his political connections to profit from the stagnant peace process, according to testimony presented to Congress Tuesday by several Middle East experts.”

Iran warns media against reporting impact of sanctions

Genocidal Sudan to Win Seat on U.N.’s top human rights body

Echoes of Roman Legion style decimation orders.
Syrian troops ordered to kill 5% of participants at all protests, ‘ex-commander’ tells The Times of Israel

The Attacks on Israelis You Won’t Read About Anywhere Else, July 10-12

French Synagogue Vandalized For Third Time in Ten Days

Federal complaint alleges hostile environment against Jewish students at UC Berkeley

Alleging that "Jewish students have been subjected to a pervasive hostile environment and that the university has failed to take effective measure to cure the situation."

MEMRI French “Comic” Dieudonne: 'Muslims and Christians Should Unite' Against The Jews

"Together We Will Be Able To Fight This Satanic Spirit Which Now Heads The Highest International Institutions"

Jordan refuses entry to Israeli Islamist official

"Sheikh Kamal Hatib, deputy leader of radical Islamic Movement, had been invited to conference by Jordan’s Muslim Brotherhood"

Turkey: Oldest Christian monastery at risk

"The lawsuit also claimed that the sanctuary was built over the ruins of a mosque, forgetting that Mohammed was born 170 years after its foundation."

'I was forced to hunt Jews', claims terror trial wife

Slain Terrorist Plotted Attack on London Jews

“Documents detailing a plot to attack Jewish neighborhoods in London were found on the
body of an African leader of al-Qaida.”

One more:
Born on the Fourth of June (Brett Stephens)

While exaggerated, this is a funny take on how critics of Israel refuse to actually answer the arguments given in the Levy report:

Days after the report was produced, no news organization or NGO felt it necessary to translate it into English. I had to get one of my Israeli readers to do it.

Apparently, the media and the NGOs are more interested in pushing their narratives rather than allowing people to read the source materials to make up their own minds.

MI6 chief: 'We foiled Iranian nuclear weapons bid in 2008'

Lots of people have been trying to claim that Iran's nuclear weapons drive is some Zionist fantasy.

Well, now they'll probably think the MI6 is Zionist.

From the Daily Telegraph:

Sir John Sawers said that covert operations by British spies had prevented the Iranians from developing nuclear weapons as early as 2008.

However, the MI6 chief said it was now likely they would achieve their goal by 2014, making a military strike from the US and Israel increasingly likely.

Sir John gave a secret briefing to the Cabinet in March about Iran’s growing military threat but this is the first time his views on the issue have been made public.

It is extremely rare for the head of MI6 to disclose details of operations by the intelligence service.

Sir John made the remarks at a meeting of around 100 senior civil servants in London last week in only his second public speech since he was appointed to the post in 2009.

Sir John said that without MI6’s work dealing with the threat, “you’d have Iran as a nuclear weapons state in 2008 rather than still being two years away in 2012.”

Sir John said it was up to MI6 to “delay that awful moment when the politicians may have to take a decision between accepting a nuclear-armed Iran or launching a military strike against Iran.”

Juan Cole will not be pleased. He was so sure that the Ayatollah's "nuclear fatwa" was proof that Iran would never, ever, ever even consider thinking about the possibility of perhaps one day starting down the path of anything remotely approaching a semblance of a nuclear weapons program.

(h/t Josh)

Hamas brags of its achievements: "The Gaza beach is Islamic"

Hamas prime minister Ismail Haniyeh spoke at the inauguration of a new mosque in Gaza today. Here are the highlights of his speech:

Even though nothing has been said officially, he is certain that Egypt's new leader Mohamed Morsi will "lift the siege on Gaza."
Since Hamas took over Gaza, it closed cabarets, cafes and casinos where people could drink wine.
Hamas opened numerous mosques.
"We made the Gaza beach an Islamic beach we can be proud of."
The religious ministry also opened up Islamic chapels for vacationers.

The mosque that was opened was named after Said Seyam, former interior minister of the Gaza government, a major Hamas leader - and a former UNRWA teacher.

Israeli prisoner Tarabin plans to sue Egypt

We've discussed the plight of Israeli citizen Ouda Tarabin before, but he is hoping that the new Egyptian regime might treat him better than the last.

From Egypt Independent:

Ouda Tarabin, a dual Egyptian-Israeli citizen [sic] currently serving time for espionage, plans to file a lawsuit against the Egyptian government at the International Criminal Court for unlawful arrest. He demands to be released and to receive compensation of US$100 million.

Tarabin was found guilty of spying for Israel and sentenced to 15 years in prison at the Ismailia Military Court in 2000. He has been imprisoned in Egypt ever since.

In April, Al-Masry Al-Youm reported that Israel and Egypt were allegedly in talks to release Tarabin in exchange for the release of 60 Egyptian prisoners held in Israel, but the deal fell through.

According to an Israeli television channel, a team from the United Nations Commission of Human Rights has investigated Tarabin’s case, and recently stated that Tarabin was subjected to arbitrary arrest and had not received a fair trial.

The channel added that Tarabin’s lawyers are planning to use that recommendation to support their case against the Egyptian government.

Tarabin’s defense team sent a letter to President Mohamed Morsy demanding his release during Ramadan, or at least a retrial, the TV station claimed.

The channel reported that a delegation from the Israeli Embassy in Cairo has visited Tarabin twice in prison. They quoted the detainee as saying, “I lay all the hopes of my release on the new regime, and I am sure they will realize that my arrest was not fair.”

As far as I know, he is an Israeli Arab but he is not a dual Egyptian-Israeli citizen. (I don't think that is even possible.)

It is a disgrace that Tarabin's plight has not been publicized more. He should have been released as part of the Ilan Grapel deal last year. In fact, I have much more sympathy for Tarabin than for Grapel, whose naivete was reckless and ultimately dangerous.

UPDATED: The document above states he was born in the Sinai in 1981, Israel handed over control of the area in 1982 but it is unclear how or when his family ended up in Israel. (h/t Prof Ginzburg)

Debunking "The Map that Lies"

From Fox News:

Advertisements at train stations in suburban New York depicting shrinking Palestinian territory in Israel are riling some critics who say they are “deliberately misleading and inaccurate,” FoxNews.com has learned.

The ads, which were purchased by The Committee for Peace in Israel and Palestine, show the “Palestinian Loss of Land” from 1946 to 2010. An accompanying headline reads: "4.7 million Palestinians are classified by the U.N. as Refugees."

Henry Clifford, co-chairman of the group, told FoxNews.com he paid $25,000 to display posters at 50 Metro-North Railroad stations for 30 days. They are to “educate and inform people” on the proper historical context of the region, he said.

“There’s always room for discussion of different sides of every story, but there’s no room for discussion on fact,” Clifford said. “Anyone who challenges these maps and the content of these ads, it’s they’re obligation to show that they’re historically wrong. The ball is in their court.”

Excellent! This gives me the chance to repost this:

This map is a lie.

The first panel of the traditional version of this map has the biggest lie:

While I presume that the white sections are indeed the land that was privately owned by Jews, the land in green was not privately owned by Arabs.

Only a tiny percentage of land in Palestine was privately owned. The various categories of land ownership included:

Mulk: privately owned in the Western sense.

Miri: Land owned by the government (originally the Ottoman crown) and suitable for agricultural use. Individuals could purchase a deed to cultivate this land and pay a tithe to the government. Ownership could be transferred only with the approval of the state. Miri rights could be transferred to heirs, and the land could be sub-let to tenants. If the owner died without an heir or the land was not cultivated for three years, the land would revert to the state.

Mahlul: Uncultivated Miri lands that would revert to the state, in theory after three years.

Mawat (or Mewat): So-called “dead”, unreclaimed land. It constituted about 50 to 60% of the land in Palestine. It belonged to the government. ...If the land had been cultivated with permission, it would be registered, at least under the Mandate, free of charge.

By the early 1940s Jews owned about one third of Mulk land in Palestine and Arabs about two-thirds. The vast majority of the total land, however, belonged to the government, meaning that when the state of Israel was established, it became legally Israel's. (I believe that about 77% of the land was owned by the government, assuming 6 million dunams of private land as shown in this invaluable webpage on the topic from which I got much of this information.)

To say that the green areas were "Palestinian" land is simply a lie.

In the case of this version of the map, the lie is even worse, as the implication is that pre-1948 Palestine was an entirely Arab country with no Jews and no Jewish land ownership. Of course, before 1948 the word "Palestinian" more often than not referred to Palestinian Jews, not Palestinian Arabs. For example, the Palestine exhibit at the 1939 World's Fair was entirely Jewish, the Palestine Orchestra was entirely Jewish, the Palestine soccer team was almost entirely Jewish, and so forth.

Now the next one:

While this is a somewhat accurate representation of the partition plan (with the notable exception of Jerusalem, which was meant to be an international city,), it has nothing to do with land ownership. The entire purpose of this map is to make it appear that Israel has been grabbing Arab land consistently, to serve as a bridge between maps 1 and 3. What is not said, of course, is that Israel accepted the partition and the Arabs did not, so as a result Israel in 1949 looked like it does in map 3.

Map 3 is still a lie, however, because in no way was the green land "Palestinian" at that time. Gaza was administered by Egypt and the West Bank annexed by Jordan. No one at the time spoke about a Palestinian Arab state on the areas controlled by Arab states - only in Israel.

In other words, this progression of maps is a series of lies meant to push a bigger lie, and it is tragic that a lot of people believe them to be the truth.

Here is a small attempt on my side to show a more accurate picture of Israel's giving land it controlled up for peace since 1967:

This map shows that Israel gave up control of the Sinai, Gaza, Southern Lebanon and much of the West Bank over the years. Rather than falsely accusing Israel as a land-grabbing rogue state, it accurately shows Israel as perhaps the only state in history that has voluntarily given up more than two-thirds of the areas it controls in exchange for nothing more than a paper agreement - or sometimes not even that. All at the risk of serious security concerns for her people, no less.

This is all because Israel wants, desperately, to live in real peace with her neighbors. This desire is not reciprocated by those neighbors, unfortunately.

The real map shows the truth of Israel's incredible concessions in the often vain hope for peace.

Now, as far as the right-hand side of the ad goes, I have debunked that as well; my most recent one was this post from less than a month ago.

So, Mr. Clifford, I've shown how every pixel in your posters are historically wrong.

Will you answer me, or admit the truth?

The ball is in your court.

(By the way, as of two days ago, the webpage for the organization named in these ads has received fewer hits total in its history than I receive an hour.)

Israelis saving the world, again

From Israel21C:

Sepsis, a blood infection, causes more than 200,000 deaths in US hospitals every year. A non-invasive monitoring device from Israel is changing that.

“Sepsis is a huge issue — one of the top killers, often as a complication of pneumonia or urinary tract infection and at times due to an infection acquired in the hospital,” says Dr. Yoav Avidor, CEO of Tel Aviv-based Cheetah Medical. “It progresses rapidly and is difficult to treat. In advanced sepsis, all the body’s organs start to fail. Septic shock sets in and the mortality rate is about 40 percent.”

Doctors can reduce mortality up to 40 percent by treating each case of sepsis right away with exactly the amount of intravenous fluids needed to correct imbalances of oxygen and other nutrients being delivered to the organs through the bloodstream.

“The physician must stabilize the hemodynamic system so that all the organs get exactly what they need — not too much and not too little,” explains Avidor, a urologist by training.

But until Cheetah’s NICOM device came along, the only way to determine the right amount was through an expensive and invasive procedure that can itself cause infection. Since doctors prefer not to do this, a better way was clearly needed.

As soon as NICOM’s uniquely non-invasive system received FDA and CE Mark approval four years ago, it was bought by hundreds of hospitals in the United States, United Kingdom, Italy, South Korea, Israel and France for ICU and anesthesia units. Just by sticking four sensors to the skin on the patient’s chest or back, the staff can continuously collect all the data needed to determine how much fluid to administer.

Now, trials at a dozen US hospital emergency departments are testing the assumption that using NICOM earlier would keep more patients from the ICU. This would save both lives and money, since one in four hospital deaths is caused by sepsis, and it’s the reason for about half of the admissions to medical ICUs.

...The COMMIT (Cardiac Output Monitoring Managing Intravenous Therapy) study begun in February could significantly enhance Cheetah’s marketing position.

“NICOM provides an effective method of optimizing fluid treatment in the emergency department, a vital step in the management of sepsis,” says Avidor.

In 12 leading US hospital emergency departments for the next year or two, half of the sepsis patients will randomly get the standard of care (no hemodynamic monitoring), while the other half get the protocol based on NICOM. The Israeli system will help determine whether the patient can handle the large amounts of fluids that can prevent progression of sepsis. If not, extra fluids would dangerously overwhelm the heart the way a car engine gets flooded.

Avidor expects that COMMIT will show a reduction in deterioration of sepsis; the number of admissions to the ICU; intubations; and kidney and liver failure that are common complications of sepsis.

“In general, I hope to see significant reductions in the cost of treatment for these patients, as well as mortality and complications,” he says.

Cheetah is based in Tel Aviv, but I wonder, if some of these companies making life-saving medical equipment o rmedicines happened to be headquartered on the other side of the Green line, whether they would be boycotted....

English translation of the legal arguments in the Levy Report (updated)

Since the Levy Report was released, there has been a lot of heat but little light about its legal reasonings, which were in Hebrew. The only part that was released in English were its conclusions and recommendations.

Here, for the first time, is an English translation of its legal arguments. Those who try to downplay the report must find reasons why these arguments are invalid, rather than the proof by assertion that they usually resort to.

[...]

Having considered the approaches presented before us [from the Left and from the Right], we think a reasonable interpretation of the standard term of "occupation", with all the obligations arising from it, in the provisions of international law is intended to apply for short periods of occupation of a territory of a sovereign state until the end of the conflict between the parties and the return of the land or any other negotiated agreement regarding it.

But the Israeli presence in Judea and Samaria is significantly different: the possession of the territory continues for many decades, and no one can predict its end, if at all; the territory was conquered from a state (the Kingdom of Jordan) whose sovereignty over the territory has never been firmly legalized, and in the meantime it even renounced its claim of sovereignty; the State of Israel claims sovereign rights to the territory.

As for Article 49 of the Geneva Convention, many have interpreted it, but it seems the dominant view is that the article indeed was meant to resolve the harsh reality imposed by some states during the Second World War, when they expelled and forcibly transferred some of their inhabitants to the territories they had occupied, a process which was accompanied by a substantial worsening of the condition of the occupied population (see this HCJ ruling and this article by Alan Baker).

This interpretation is supported by a number of sources: the authoritative interpretation of the International Committee of the Red Cross (ICRC), responsible for implementing the Fourth Geneva Convention, which states regarding the purpose of article 49 of the Convention:

It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.

Lawyers Prof. Eugene Rostow, Dean of Yale Law School in the US, and Prof. Julius Stone confirmed that Article 49 is intended to prohibit the same inhuman acts committed by the Nazis, i.e. a massive transfer of people into the occupied territories for the purpose of extermination, slavery or colonization:

[T]he Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War - the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example....The Jewish settlers in the West Bank are most emphatically volunteers. They have not been "deported" or "transferred" to the area by the Government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva Convention to prevent. (Rostow)

Irony would...be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that...the West Bank...must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49(6.) (Julius Stone)

We do not believe that one can draw an analogy between this legal provision and those who sought to settle in Judea and Samaria not as a result of them being "deported" or "transferred" but because of their world view - to settle the Land of Israel.

We did not ignore the view of those who think that one should interpret the Fourth Geneva Convention as also prohibiting the occupying state to encourage or support the transfer of parts of its population to the occupied territory, even if it did not initiate it (on this issue see note 13 here).

But even if this interpretation is correct, we would not change our conclusion that no analogy should be drawn between Article 49 of the Fourth Geneva Convention and Jewish settlement in Judea and Samaria, in light of the status of the territory under international law, and for that matter a brief history is required.

On 2 November 1917 Lord James Balfour, the British foreign minister, issued a declaration that "His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people", the document which was addressed to Lord Rothschild read:

His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

This declaration appeared, in a different version, in the declaration of the San Remo peace conference in Italy which laid the grounds for the Mandate for Palestine which acknowledged the Jewish people's historic connection to Palestine (see Preamble):

The Mandatory will be responsible for putting into effect the declaration originally made on November 2, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country...

Recognition had thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.

It should be emphasized here that in the Mandate (as well as in the Balfour Declaration) only the "civil and religious" rights of the inhabitants of Palestine are mentioned as rendering protection, but there is no mention of the national rights of the Arab people. And concerning the actual implementation of this declaration article 2 of the Mandate says:

The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self -governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.

And in article 6 of the Mandate it says:

The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency. referred to in Article 4, close settlement by Jews, on the land, including State lands and waste lands not required for public purposes.

In August 1922 the League of Nations approved the Mandate which was given to Britain, and thus the Jewish people's right to settle in the Land of Israel, their historic homeland, and to establish their state there, was recognized in international law.

To complete the picture, we'll add 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:

Except as may be agreed upon in individual trusteeship agreements...nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.

In November 1947 the General Assembly adopted the United Nations committee's recommendation to divide the Land of Israel west of the Jordan river into two states: one Arab and one Jewish.

But the plan was never implemented, and therefore was not binding under international law, since the Arab states rejected it and started a war to prevent its implementation and the establishment of a Jewish state.

The outcome of the war set the political reality from now on: the Jewish state was established within the lines drawn after the war.

However, the Arab state was not established, and Egypt and Jordan controlled the territories they occupied (the Gaza Strip, Judea and Samaria).

Later, the Arab states, which did not recognize the consequences of the war, demanded the armistice agreement include a statement [*] saying that the cease-fire line should not be construed in any way as a political or territorial border.

Nevertheless, in April 1950, Jordan annexed the West Bank, unlike Egypt, which has never claimed sovereignty over the Gaza Strip.

However, Jordan's annexation was not accepted on any legal basis, and most Arab countries opposed it, until 1988 when Jordan renounced its claim to the territory (on this issue see chief justice M. Landau's comments in this HCJ ruling; and this HCJ ruling).

Thus the original legal status of the territory was restored, namely, a territory designated as a national home for the Jewish people, who had a "right of possession" to it during Jordanian rule while they were absent from the territory for several years due to a war imposed on them, and have now returned to it.

Together with the international commitment to govern the territory and ensure the rights of the local population and public order, Israel also had the full right to claim sovereignty over these territories, and all Israeli governments believed so, but they chose not to annex them and take a pragmatic approach in order to allow for peace negotiations with representatives of the Palestinian people and the Arab states.

Israel therefore did not see itself as an occupying power in the classical sense of the word, and so never saw itself committed to the Forth Geneva Convention in relation to Judea, Samaria and Gaza.

It should be added here, that the Israeli government did indeed ratify the Convention in 1951, but since it was not adopted by the Knesset (on this issue see this and this HCJ rulings) it merely issued a statement saying it will voluntarily implement the humanitarian provisions of the Convention (here, here, here and here).

As a result, Israel implemented a policy that allows the Israelis to live voluntarily in the territory in accordance with laws prescribed by the Israeli government and supervised by the Israeli legal system, while their continued presence is subject to the outcome of the negotiation process.

In light of the aforesaid, we have no doubt that from the perspective of international law, the establishment of Jewish settlements in Judea and Samaria is legal, and therefore we can proceed to discussing this question from the perspective of domestic law.

[...]

NOTE:

[*] According to article II (2) of the Armistice Agreement with Jordan:

...no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations.

According to article VI (9) of the agreement:

The Armistice Demarcation Lines defined in articles V and VI of this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.

Many, many thanks to Yoel who provided this translation. (He made some minor corrections 7/15.)

I received a somewhat revised translation with paragraph numbers from Hadar, via Emet from CiFWatch. Her comments:

I've tidied up the translation of the part of the Levy Report which was posted on EoZ.
I've made some slight adjustments to the translation of the text itself which I deemed necessary in order to clarify the points made.
I've reinstated the paragraph numbers - makes it easier to refer back to the original.
I've reinstated the footnotes with their original numbers appearing as they do in the text.
Where footnotes relate to websites, I've provided a link.
In the text, I've provided some links which do not appear in the original report - eg links to HCJ court cases referred to in the text by name/number as examples.

So here it is:

Translation Levy Report

http://www.pmo.gov.il/NR/rdonlyres/E155A1D6-96A7-4143-8233-F126AC9288BF/0/doch090712.pdf

http://elderofziyon.blogspot.co.il/2012/07/english-translation-of-legal-arguments.html

(starting page 6, section 5, para 2)

Having considered the approaches presented before us, we think a reasonable interpretation of the standard term of "occupation", with all the obligations arising from it, in the provisions of international law is intended to apply for short periods of occupation of a territory of a sovereign state until the end of the conflict between the parties and the return of the land or any other negotiated agreement regarding it. But the Israeli presence in Judea and Samaria is significantly different: the possession of the territory continues for many decades, and no one can predict its end, if at all; the territory was conquered from a state (the Kingdom of Jordan) whose sovereignty over the territory has never been firmly legalized, and in the meantime it even renounced its claim of sovereignty; the State of Israel claims sovereign rights to the territory.

This interpretation is supported by a number of sources: the authoritative interpretation of the International Committee of the Red Cross (ICRC), responsible for implementing the Fourth Geneva Convention[2], which states regarding the purpose of article 49 of the Convention:

"It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race."

"[T]he Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War - the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example....The Jewish settlers in the West Bank are most emphatically volunteers. They have not been "deported" or "transferred" to the area by the Government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva Convention to prevent. "(Rostow)

"Irony would...be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that...the West Bank...must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49(6.)" (Julius Stone)

6. We do not believe that one can draw an analogy between this legal provision and those who sought to settle in Judea and Samaria not as a result of them being "deported" or "transferred" but because of their world view - to settle the Land of Israel. We did not ignore the view of those who think that one should interpret the Fourth Geneva Convention as also prohibiting the occupying state to encourage or support the transfer of parts of its population to the occupied territory, even if it did not initiate it[5]. But even if this interpretation is correct, we would not change our conclusion that no analogy should be drawn between Article 49 of the Fourth Geneva Convention and Jewish settlement in Judea and Samaria, in light of the status of the territory under international law, and on that matter we will open with a brief historical overview.

7. On 2 November 1917 Lord James Balfour, the British foreign minister, issued a declaration that "His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people", the document which was addressed to Lord Rothschild read:

"His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country."[6]

In this declaration Britain recognized the Jewish people's right to the Land of Israel, and even expressed its willingness to advance a process that will eventually lead to the establishment of a national home for them in this part of the world. This declaration appeared, in a different version, in the declaration of the San Remo peace conference in Italy which laid the grounds for the Mandate for Palestine which acknowledged the Jewish people's historic connection to Palestine (see Preamble):

"The Mandatory will be responsible for putting into effect the declaration originally made on November 2, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country...

Recognition had thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country."[7]

It should be emphasized here that in the Mandate (as well as in the Balfour Declaration) only the "civil and religious" rights of the inhabitants of Palestine are mentioned as subject to protection, but there is no mention of the national rights of the Arab people. And concerning the practical implementation of this declaration, article 2 of the Mandate says[8]:

"The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self -governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion."

And in article 6 of the Mandate it says:

"The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews, on the land, including State lands and waste lands not required for public purposes."

In August 1922 the League of Nations approved the Mandate which was given to Britain, and thus was decided, as a norm anchored in international law, the Jewish people's right to settle in the Land of Israel, their historic homeland, and to establish their state there.

To complete the picture, we will add that with the establishment of the United Nations in 1945, established in article 80 of its charter [is] 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.

"Except as may be agreed upon in individual trusteeship agreements...nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties." (Article 80, paragraph 1, UN Charter)

8. In November 1947 the UN General Assembly adopted the recommendation of the committee it had established to divide the Land of Israel west of the Jordan river into two states: one Arab and one Jewish[9]. But the plan was never implemented, and therefore was not binding under international law, since the Arab states rejected it and started a war to prevent its implementation and the establishment of a Jewish state. The outcome of the war set the political reality from now on: the Jewish state was established within the lines drawn after the war. However, an Arab state was not established, and the territories which had been conquered by Egypt and Jordan (the Gaza Strip, Judea and Samaria) were ruled by those countries. Later, the Arab states, which did not recognize the consequences of the war, demanded the armistice agreement include a statement saying that the cease-fire line should not be construed in any way as a political or territorial border[10]. Despite that, in April 1950, Jordan annexed the area of Judea & Samaria[11], unlike Egypt, which has never claimed sovereignty over the Gaza Strip. However, Jordan's annexation was not accepted on any legal basis, and most Arab countries opposed it, until 1988 when Jordan renounced its claim to the territory (on this issue see chief justice M. Landau's comments in HCJ ruling 61/80 Haetzni against the State of Israel; and HCJ ruling 69/81, 493 Abu Aita against Commander of Judea & Samaria and others).

9. Alongside the international commitment to govern the territory and ensure the rights of the local population and public order, Israel therefore also had the full right to claim sovereignty over these territories, and all Israeli governments believed so, but they chose not to annex them and take a pragmatic approach in order to allow for peace negotiations with representatives of the Palestinian people and the Arab states. Israel therefore did not see itself as an occupying power in the classical sense of the word, and so never saw itself committed to the Fourth Geneva Convention in relation to Judea, Samaria and Gaza. It should be added here, that the Israeli government did indeed ratify the Convention in 1951, but since it was not adopted by the Knesset (on this issue see ruling 131/76 Kamiar against the State of Israel; and HCJ ruling 393/82 Jamat Iscaan against the Commander of IDF forces in Judea & Samaria) it merely issued a statement saying it will voluntarily implement the humanitarian provisions of the Convention (HCJ rulings 337/71 The Christian Association for Holy Places against the Minister of Defence; 256/72 The Jerusalem District Electricity Company Ltd against the Minister of Defence & others; 698/80 Qawasma & others against the Minister of Defence & others; 1661/05 Hof Azza Regional Council & others against Knesset Israel & others) . As a result, Israel implemented a policy that allows Israelis to live voluntarily in the territory in accordance with rules set by the Israeli government and supervised by the Israeli legal system, while their continued presence is subject to the outcome of the negotiation process.

[1] http://jcpa.org/article/the-settlements-issue-distorting-the-geneva-convention-and-the-oslo-accords/

[2] ICRC Commentary to the Fourth Geneva Convention, edited by Jean S. Pictet, [1958], p.3-9 http://www.icrc.org/ihl.nsf/COM/380-600056?OpenDocument

[3] American Journal of International Law, Vol 84, 1990, p. 719

[4] Phillips, "The Illegal Settlements Myth", Commentary, 2010 http://www.commentarymagazine.com/article/the-illegal-settlements-myth/

[5] On this issue see [note 13 in] Alan Baker's article mentioned above in note 5, [article here] on the subject of the addition of the words "directly or indirectly" in clause 8 of the constitution of the International Criminal Court.

[6] http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/The%20Balfour%20Declaration

[7] http://www.cfr.org/israel/san-remo-resolution/p15248

[8] http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/The%20Mandate%20for%20Palestine

[9] http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/UN+General+Assembly+Resolution+181.htm

[10] According to article II (2) of the armistice agreement with Jordan: "no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations."

According to article VI (9) of the agreement: "The Armistice Demarcation Lines defined in articles V and VI of this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto."

http://www.mfa.gov.il/MFA/Foreign+Relations/Israels+Foreign+Relations+since+1947/1947-1974/Israel-Jordan+Armistice+Agreement.htm

[11] http://www.jewishvirtuallibrary.org/jsource/arabs/jordanresolution.html

Here is the text of the conclusions, taken from UNISPAL:

Conclusions and Recommendations

(Translation from the original and authoritative Hebrew text)

After having considered the terms of reference set out in the Commission's mandate, and in light of what we have heard, as well as the considerable amount of material that has been presented to us by a wide range of bodies, our conclusions and recommendations are as follows:

Our basic conclusion is that from the point of view of international law, the classical laws of "occupation" as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel's presence in Judea and Samaria spanning over decades.

In addition, the provisions of the 1949 Fourth Geneva Convention, regarding transfer of populations, cannot be considered to be applicable and were never intended to apply to the type of settlement activity carried out by Israel in Judea and Samaria.

Therefore, according to International law, Israelis have the legal right to settle in Judea and Samaria and the establishment of settlements cannot, in and of itself, be considered to be illegal.

With regard to the other issues considered, our recommendations are as follows:

1. The Government is advised to clarify its policy regarding settlement by Israelis in Judea and Samaria, with a view to preventing future interpretation of its decisions in a mistaken or overly "creative" manner. We propose that such government decision include the following principles:

a. Any new settlement in Judea and Samaria will be established only following a decision by the government or by a duly empowered ministerial committee.

b. Construction within the bounds of an existing or future settlement will not require government or ministerial decision, but such construction must be approved by the planning and zoning authorities after they have ascertained that the proposed construction is not contrary to the approved town/area plan applicable to the land in question.

c. Extension of an existing settlement beyond the area of its jurisdiction or beyond the area set out in the existing town plan, will require a decision by the Minister of Defense with the knowledge of the Prime Minister, prior to any of the following stages: commencement of planning and actual commencement of construction.

2. With regard to settlements established in Judea and Samaria on state lands or on land purchased by Israelis with the assistance of official authorities such as the World Zionist Organization Settlements Division and the Ministry of Housing, and which have been defined as "unauthorized" or "illegal" due to the fact that they were established without any formal government decision, our conclusion is that the establishment of such settlements was carried out with the knowledge, encouragement and tacit agreement of the most senior political level —government ministers and the Prime Minister, and therefore such conduct is to be seen as implied agreement.

Regarding these settlements, as well as those established pursuant to a government decision but lacking definition of their municipal jurisdiction, or without having completed the planning and zoning procedures, and as a result, have been described as "unauthorized" or "illegal", the remaining outstanding procedures should be completed as follows:

a. The area of municipal jurisdiction of each settlement, if not yet determined, must be determined by order, taking into due consideration future natural growth.

b. The administrative blockages imposed on the planning and zoning authorities must be removed immediately, so that they may fulfill

their function of examining plans that have been submitted to them by each settlement, without any further need for additional approval by the political level.

c. Pending completion of those proceedings and examination of the possibility of granting valid building permits, the state is advised to avoid carrying out demolition orders, since it brought about the present situation by itself.

d. With a view to avoiding doubt, it is stressed that all the settlements, including those approved pursuant to this proposed framework, may in the future, extend their boundaries in order to respond to their needs, including natural growth, without the need for additional government or ministerial decision, as long as the proposed extension is located within the jurisdiction of the settlement, within its boundaries as set out in the approved town plan, and has received due approval from the planning and zoning authorities.

e. Settlements established wholly or partially on land that is subject to examination as to whether it is public or private land ("seker"), are to be considered settlements whose legal status is pending. Most of these were established years ago, and it is thus necessary to accelerate the slow examination process ("seker") in all areas of Judea and Samaria, and to complete it within a fixed time period, and to this end, even consider, utilizing assistance by external bodies. Upon completion, the processing of each settlement will continue according to the results of the land examination ("seker") and determination of the type of land, in accordance with the framework proposed by us.

f. In the event of conflicting claimants to land, it would be appropriate to adopt a policy whereby prior to any determination by the state regarding petitions for eviction or demolition, a thorough examination of the conflicting claims be conducted by a judicial tribunal dealing with land issues. This is all the more necessary with respect to claims of prior purchase or prescription, or where the possessor acted in a bona fide manner. Pending such determination, state authorities should be instructed to avoid taking any position in land conflicts and carrying out irreversible measures, such as eviction or demolition of buildings on the property.

g. To this end and with a view to facilitate accessibility by local residents to judicial tribunals, we suggest the establishment of courts for the adjudication of land disputes in Judea and Samaria, or alternatively, extending the jurisdiction of district court judges in order to enable them to handle in their courts, land disputes in Judea and Samaria.

h. It is necessary to draft into the security legislation a right for the public to review data banks administered by the various official bodies, including the Civil Administration, concerning land rights in the area of Judea and Samaria.

i. With regard to the "Order concerning Interfering Use in Private Land" — we are of the view that this order must be cancelled. In the event that it is decided to keep it in force, we propose that it be amended such that any decision by an Appeals Committee will not be recommendatory but will obligate the Head of the Civil Administration to act pursuant to such decision. The Head of the Civil Administration and other interested parties may appeal the decision of the Appeals Committee before a Court for Administrative Issues, whose decision will be final. We propose that this arrangement be applied also to other decisions of the Appeals Committee, including concerning questions of "Primary Registration" of land in Judea and Samaria.

j. The composition of the Appeals Committee should be changed. It is presently manned by uniformed reserve officers, jurists, who are, of necessity, perceived at the least to be subordinate to, and even under the command of the Head of the Civil Administration. We feel that this situation is not proper, and therefore recommend that the Appeals Committee be composed of non-uniformed jurists, a factor which would contribute to the general perception of the Appeals Committee as an independent body, acting according to its own discretion.

k) The "Procedure for Dealing with Private Land Disputes" must be revoked. Such disputes must only be considered and adjudicated by a judicial body.

I) Security legislation must be amended to enable Israelis to purchase land in Judea and Samaria directly, and not only through a corporation registered in the area. We also recommend that the procedures for "Primary Registration" of land rights be accelerated and completed within a reasonable and fixed time period.

m) The Civil Administration should be instructed that there is no prohibition whatsoever on additional construction within the bounds of a settlement built on land initially seized by military order,

and such requests should be considered at the planning stage only.

n) We also recommend advancing the planning and declaration procedures regarding nature preserves and parks in all those areas of Judea and Samaria under Israeli responsibility.

Finally, we wish to stress that the picture that has been displayed before us regarding Israeli settlement activity in Judea and Samaria does not befit the behavior of a state that prides itself on, and is committed to the rule of law.

If as a result of this report, the message is conveyed that we are no longer in the formative stages of the creation of our state when things were done in an informal and arbitrary manner, we will be satisfied.

The proponents of settlements, including at the most senior political levels, should internalize and acknowledge the fact that all actions on this matter can only be in accordance with the law. Similarly, official governmental bodies should act with alacrity and decisiveness in fulfilling their functions to ensure that the law is duly observed.

Moroccan liberals really making a splash

From Albawaba:

Moroccan Justice Minister Mustafa al-Ramid lashed out at a request submitted by a group of activists asking for the legalizing of sexual relations outside marriage and called the initiative a promotion of debauchery.

“Revoking the law that criminalizes sex outside marriage is a propagation of corruption that will deal a fatal blow to Moroccan values,” Ramid said Monday in parliament, answering a question about his response to the sexual freedom initiative.

A group of Moroccan activists called a few days ago for crossing out Article 490 of the Penal Code which punishes every man and woman caught having sex outside marriage even if the couple is consenting adults. According to those activists, adults should have the freedom to engage in sexual relations as long as there is mutual consent.

The harsh criticism directed at this demand was not confined to the parliament, but extended to clerics who saw the call for sexual freedom as a grave threat to the moral and spiritual wellbeing of Moroccans.

The Union for Quranic Houses, affiliated to the Salafi school of thought, issued a statement slamming the sexual freedom initiative which, it said, “came at a time when reformers and wise men are trying to rebuild the country and fight corruption.”

Al Arabiya obtained a statement by Moroccan Salafi Front in which it accused the activists behind the initiative of violating an indisputable law in the Quran.

...The reactions of Islamists, in turn, infuriated liberals. Secular activist Abdul Hamid Amin accused Islamists of ultra-conservatism and narrow-mindedness.

“They just attack anyone who has a different opinion; they want to impose their inflexible ideologies on society,” he said.

Of course, one of the people behind the sexual freedom initiative has gotten death threats:

Abdellah Nhari, an imam in the northeastern Oujda region, who is well known for his controversial pronouncements, declared in a recent sermon that Elmokhtar Laghzioui was a "dayoute," or cuckold in colloquial Arabic, and that in Islam "the 'dayoute' should be killed."

Nhari was reacting to Laghzioui's remarks, on a satellite television channel, indicating that he supported personal, and in particular sexual freedom, even in the case of one's "mother or sister."

And if having people in a Muslim country openly calling to legalize adultery isn't amazing enough...check this out:

A group of Moroccan activists launched a campaign calling for the right to break the fast publicly during the mornings of the holy month of Ramadan, as part of a larger initiative that aims at widening the range of personal freedoms in the country.

‘Mouvement Masayminch’ or ‘We Won’t Fast in Ramadan’ Movement, launched by a group that calls itself Moroccan Free Thinkers, demanded that citizens should have the right not to fast during the holy month, which falls on July 20 this year, and to eat and drink in public.

The anti-fast initiative -- which has been repeatedly launched in different forms for several years since 2008 -- calls for the cancellation of a law that criminalizes the public fast-breaking during daytime in Ramadan.

The movement made social networks as its main podium. “Eat and drink any time, place, or way you choose. Greetings to all irreligionists across the globe,” said the introduction to the movement’s Facebook page.

According to the organizers of the campaign, the main purpose of creating a Facebook page is not discussing religious matters but rather allowing people who adopt the same line of thought and call for the same sort of personal freedoms to get to know each other regardless of what their ideological views are.

This is worth watching.

Latest things that offend Islam: Playstation and Ikea

Kermalkom.com reports that a Saudi citizen was outraged at seeing a Playstation game -apparently Resident Evil 5 - where on one of the levels, the heroes are supposed to shoot a Koran.

The man was outraged that such a game was available for sale in the Kingdom, where chldren could easily buy it.

Maybe the Saudis should institute a ratings system.

In other news, Ikea is selling a wine carrier with one of those interesting Scandinavian names they like to use for their products.

The Omar wine shelf is being sold in the Ikea store in the UAE, causing a lot of consternation.

Omar was the name of a major caliph, and to associate him with forbidden wine is insulting.

The article about this lamented at other insults to Islam that happened in the UAE recently, like Madonna's concert .

(h/t Jihad Watch via Ian)