User talk:Harlan wilkerson/Israel-Palestine Articles

Israel's settlements violate Article 8(2)(b)(viii) in the War Crimes subsection of [http://untreaty.un.org/cod/icc/STATUTE/99_corr/cstatute.htm the Rome Statute for the International Criminal Court]. States have the right to vest universal jurisdiction in their national courts over war crimes. see the [http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/customary-law-rules-291008/$FILE/customary-law-rules.pdf ICRC List of Customary Rules of International Humanitarian Law, Rule 157]

The EU Council has decided to prohibit dissemination or distribution of material, as well as the act of publicly condoning, denying or grossly trivialising crimes as defined in the Statute of the International Criminal Court (Articles 6, 7 and 8) directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin, and crimes defined by the Tribunal of Nüremberg (Article 6 of the Charter of the International Military Tribunal, London Agreement of 1945) directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin. Member States will ensure that these conducts are punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment. see [http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/misc/93739.pdf Framework decision on Racism and Xenophobia]

Plundering personal or public property was stipulated as a war crime in both of the instruments mentioned in the EU decision. Ha'aretz recently reported on a Defense Ministry database which revealed that many settlements mentioned in the Sasson Report had been built on illegally expropriated privately-owned Palestinian land. The State of Israel directly facilitated these settlements by displacing the lawful Palestinian inhabitants and providing roads, utilities, and other infrastructure. The gentleman who compiled the datatbase, Baruch Spiegel, said that government legal experts had been employed in the creation of the database. Spiegel mentioned that the settlements were "illegal", not merely unauthorized. The article mentions portions of the Ofra outpost, which the High Court of Justice ordered to be razed. see [http://www.haaretz.com/hasen/spages/1060043.html "Secret Israeli database reveals full extent of illegal settlement"] The Jerusalem Post also reported on the Ofra structures, and quoted a spokesman for Defense Minister Barak and the state's representative, attorney Avi Licht as saying the construction of the houses and their occupation were illegal. See [http://www.jpost.com/servlet/Satellite?cid=1237727509452&pagename=JPost%2FJPArticle%2FShowFull Barak: I won't demolish Ofra houses now]. see also [http://haaretz.com/hasen/spages/954967.html A third of settlements on land taken for 'security purposes'].

Neither the Basic Laws nor ordinary statutes of the Knesset contain provisions relating to the status of international law in the domestic legal system. The Israeli Courts have held that customary international law is automatically absorbed as part and parcel of the common law of the land. Treaty-based conventional (aka contractual) international law is not self-executing. The Knesset is supreme in the field of legislation. Any law enacted by it is valid, even if it is incompatible with the state's international law obligations. In the absence of enabling legislation, the Geneva Conventions are applicable, but not justiciable in Israeli Courts. see [http://ssrn.com/abstract=1290714 International Law in Domestic Courts: Israel, by David Kretzmer]

The fact that internal law does not impose a penalty for an act which constitutes a crime under

international law does not relieve the person who committed the act from responsibility under

international law. It is a well settled principle of international law that a state cannot avoid compliance with its international obligations by invoking its municipal laws. see [http://books.google.com/books?id=WNoUVZ9WDBgC&pg=PA8&lpg=PA8&dq=&source=bl&ots=LxJBt9TrAy&sig=1GwJRCBrLpG2Kcaj27qlB0NHqSM&hl=en&ei=IAX1Sf61FYqUMrvC5cQP&sa=X&oi=book_result&ct=result&resnum=1 International Law Reports, By E. Lauterpacht, et. al. page 8] Israel can choose not to ratify treaty agreements or declare that they are non-self-executing, but only to the extent that the provisions do not form a part of customary international law. see [http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_1_1950.pdf Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal], and the [http://www.reliefweb.int/rw/rwb.nsf/db900sid/EVIU-69HJYR?OpenDocument Harvard International Humanitarian Law Research Initiative briefing on the legal status of Israeli settlements under international humanitarian law]

• In 1944 Raphael Lemkin wrote about the problem of colonists settling on properties of dispossessed persons and state lands in Axis ruled Occupied Europe. He explained that the Occupying power had no right to dispose of the property or to convey title to other persons. In 1946 he wrote "The Fourth Hague Convention establishes a rule of law in the protection of civilian populations which an occupant must respect. Within the purview of this law comes the protection of the honor, liberty, life, family rights and property rights of the population in the occupied country." He proposed an international treaty, which would include the following principles:

  "Whoever, while participating in a conspiracy to destroy a national, racial or religious group, undertakes an attack against life, liberty or property of members of such groups is guilty of the crime of genocide."

Each of those acts were defined as War Crimes or Crimes Against Humanity in the Charter of the Nuremberg International Military Tribunal. see [http://books.google.com/books?id=y0in2wOY-W0C&pg=PA45&lpg=PA45&dq=&source=bl&ots=m_dp2MEzWa&sig=M50Gy0L3jDOK-KuJqdQK_pNO3Lw&hl=en&ei=L4_1SeyvJJrMMJ21-K0P&sa=X&oi=book_result&ct=result&resnum=1 Axis Rule in Occupied Europe, By Raphael Lemkin, page 45] [http://www.preventgenocide.org/lemkin/americanscholar1946.htm Genocide, Raphael Lemkin] and [http://avalon.law.yale.edu/imt/imtconst.asp#art6 Article 6 of the Nuremberg Charter].

• [http://avalon.law.yale.edu/imt/judlawre.asp The Judgement of the Nuremberg Tribunal: The Law Relating to War Crimes and Crimes Against Humanity] ruled that the regulations regarding belligerents, military occupations, and armistices annexed to the Hague IV Convention of 1907 were declaratory of customary international law and binding on all parties to an armed conflict.

• Article 13 of the UN Charter assigns functions regarding the progressive development and codification of international law to the General Assembly. The General Assembly has the authority under article 22 to create subsidiary organs. It established the International Law Commission (ILC) in 1948.

• In 1949 Paragraph 6 of Article 49 of the Fourth Geneva Convention imposes an obligation that suffers no exceptions. It states that:

  "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."

• In 1950 the ILC promulgated its [http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_1_1950.pdf 'Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal'] and began work on proposals for a permanent international criminal tribunal.

• In 1960 the [http://www.fordham.edu/halsall/mod/1960-un-colonialism.html Declaration on Granting Independence to Colonial Countries and Peoples] affirmed that the permanent locus of sovereignty is the indigenous population.

• In 1967 the Foreign Ministry legal counsel, Theodor Meron, was asked whether international law allowed settlement in the occupied territories. He replied: "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention." He explained that the Convention prohibited an occupying power from moving part of its population to the occupied territory. see [http://www.nytimes.com/2006/03/10/opinion/10gorenberg.html?_r=1&ex=1142830800&en=3151d8bd5af2cbc1&ei=5070 Israel's Tragedy Foretold, By Gershom Gorenberg]

• In 1976 the International Law Commission, in its draft articles on State responsibility, approved an article characterizing as an international crime "a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination".

• In 1979 the [http://www.hrweb.org/legal/cpr.html International Covenant on Civil and Political Rights (CCPR)] entered into force. It has been signed by 174 countries and ratified by 166 states including Israel. Article 1 provides that all peoples have the right of self-determination including the right, for their own ends, to freely dispose of their natural wealth and resources. The states parties to the Covenant having responsibility for the administration of non-self-governing territories are legally obligated to promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

• The 1979 United Nations Security Council Resolution 446 affirmed that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem. It also determined that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 had no legal validity.

• In the 1979 Elon Moreh Case, (aka "Seventeen Residents of the Village of Rujerib v. Gov't of Israel et al., HCJ 390/79). The Israeli High Court unanimously held that the expropriation of privately-owned Palestinian land for use by Israeli civilian settlements was a violation of article 46 of the Hague regulations governing the military occupation of the West Bank.

• In response to the Elon Moreh settlers defense that the territory wasn't occupied, Justice Witkon noted: It is a mistake to think (as I read recently in a newspaper) that the Geneva Convention does not apply to Judea and Samaria. It applies even though it is not 'justiciable' in this court. see [http://books.google.com/books?id=_Thjg-0dut0C&pg=PA93&lpg=PA93&dq=&source=bl&ots=ihYFV9EoFv&sig=_Kz9qRnY2IU8xvPZGkKo6Rre3r0&hl=en&ei=GQneSdWbNYzwMoLHiO8J&sa=X&oi=book_result&ct=result&resnum=1#PPA38,M1 The Occupation of Justice, By David Kretzmer].

• In 1993 the UN Security Council unanimously approved a binding Chapter VII resolution approving the [http://www.un.org/icty/legaldoc-e/basic/statut/s25704.htm#IIA Report of the Secretary-General] and the [http://untreaty.un.org/cod/avl/ha/icty/icty.html Statute of the International Tribunal for the former Yugoslavia] which concluded that beyond any doubt the Fourth Geneva Conventions had become a part of customary international law. see [http://books.google.com/books?id=qLKF0LCPlsIC&pg=PA232&dq=&ei=-TbsSeifKoyuMv_1ZQ&client=#PPA212,M1 War crimes law comes of age, By Theodor Meron, page 212] When a possible conflict arose with the legal system of the Federal Republic of Germany, the Tribunal drew attention to the obligations of states under the Security Council resolutions. see [http://books.google.com/books?id=WNoUVZ9WDBgC&pg=PA8&lpg=PA8&dq=&source=bl&ots=LxJBt9TrAy&sig=1GwJRCBrLpG2Kcaj27qlB0NHqSM&hl=en&ei=IAX1Sf61FYqUMrvC5cQP&sa=X&oi=book_result&ct=result&resnum=1 International Law Reports, By E. Lauterpacht, et. al. page 8]

• In 1995 the United Nations Diplomatic Conference of Plenipotentiaries met to debate and codify international criminal law in [http://untreaty.un.org/cod/icc/STATUTE/99_corr/cstatute.htm the Rome Statute of the International Criminal Court]. see [http://www.dfat.gov.au/treaties/workshops/treaties_global/moraitis.html Sources of International Law – The Place of Treaties] The Plenipotentiaries agreed to subdivide war crimes into four categories. Under "Other serious violations of the laws and customs applicable in international armed conflict" they included Article 8(2)(b)

  (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

• In September 1995 the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip was signed. Israel acknowledged the existence of the "Palestinian people" and their "legitimate rights."
• In December 1995, the 26th International Conference of the Red Cross and Red Crescent officially mandated the ICRC to prepare a report on customary rules of international humanitarian law applicable in international and non-international armed conflicts.
• In 1997 the final report of a Special Rapporteur on Human rights and population transfer concluded that population transfer, including the implantation of settlers and settlements is, prima facie, unlawful and violates a number of rights affirmed in human rights and humanitarian law for the receiving population. [http://domino.un.org/unispal.nsf/2ee9468747556b2d85256cf60060d2a6/480844b6ec1f52a905256500004ccf31!OpenDocument E/CN.4/Sub.2/1997/23, 27 June 1997]
• In 2000 the Geneva Academy of International Humanitarian Law and Human Rights' [http://books.google.com/books?id=C3NlRejwfUwC&pg=PA20&dq=&ei=fe9OSeKkLoysNq76yY0M&client=#PPA95,M1 Palestine Yearbook of International Law 1998-99] editors observed that the United Nations Diplomatic Conference of Plenipotentiaries had adopted the Rome Statute. They noted:

  "in particular, that Article 8, which provides that the "transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory" amounts to a war crime. This is obviously applicable to Israeli settlement activities in the Occupied Arab Territories."

• In 2001 The High Contracting Parties called upon "the Occupying Power" to fully and effectively respect the Fourth Geneva Convention in the Occupied Palestinian Territory, including East Jerusalem, and to refrain from perpetrating any violation of the Convention. They reaffirmed the illegality of the settlements in the territories and any extensions. [http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList325/D86C9E662022D64E41256C6800366D55 Conference of High Contracting Parties to the Fourth Geneva Convention, Declaration Geneva, 5 December 2001]

• In 2001 Israel reported that it administers non-self-governing territories and peoples, but claimed that it has no responsibility to respect or promote the people's right to self-determination or sovereignty over their resources because the West Bank is outside of its sovereign territory and jurisdiction. see [http://www.yale.edu/lawweb/avalon/un/unchart.htm#art55 Article 55 and 56 of the UN Charter] and [http://domino.un.org/unispal.nsf/fd807e46661e3689852570d00069e918/44cf316e24accd8b85256c4f00502fd3!OpenDocument CCPR/C/ISR/2001/2].
• The 2003 International Court of Justice majority opinion concluded that the Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, had been established in breach of international law. The court cited Article 49 paragraph 6 of the Geneva Convention as black letter international law that prohibits any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory. The court ruled that an erga omnes obligation required all state parties to obtain Israeli compliance with international law. The obligation to respect and ensure respect for international humanitarian law does not depend on reciprocity. see the [http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/customary-law-rules-291008/$FILE/customary-law-rules.pdf ICRC List of Customary Rules of International Humanitarian Law, Rule 140].
• In 2004 the Israeli Supreme Court, sitting as the High Court of Justice, agreed to a stipulation by the defendants and plaintiffs that Israel has been holding the areas of Judea and Samaria in belligerent occupation, since 1967. The court ruled that the International Law of Occupation contained in Hague IV, of 1907, is applicable. In that same decision, the court held that the legal authority of the Military Commander is anchored in the Fourth Geneva Convention (page 14). see [http://domino.un.org/unispal.nsf/f45643a78fcba719852560f6005987ad/380fd102b1711ea48525705a00524cf6/$FILE/HCJ%20ruling.pdf Beit Sourik Village Council v. The Government of Israel, HCJ 2056/04] and Israeli Supreme Court opinions on the West Bank Barrier.
• In 2005 the ICRC published a monumental study on Customary International Humanitarian Law that identified 161 rules of customary international humanitarian law. [http://www.icrc.org/Web/Eng/siteeng0.nsf/html/customary-law-publication-140907 Custom as a source of international humanitarian law] including:

  Rule 130. States may not deport or transfer parts of their own civilian population into a territory they occupy.

• In 2005 the Israeli Government published the Sasson Report concluded that Israeli state bodies had been discreetly diverting millions of shekels to build West Bank settlements and outposts.

Israel's Absentee Property Law violated customary international law norms. The law of nations recognized the need to protect the private property of ethnic minorities in cases of state or territorial succession. see for example [http://books.google.com/books?id=LkAJAAAAIAAJ&pg=PA244&lpg=PA244&dq=&source=bl&ots=TmhnSHv1xI&sig=gf_zcpVQ2D0FGwZYnQuRvRyCAe0&hl=en&ei=UCb1SfviMIvEMbeDtbQP&sa=X&oi=book_result&ct=result&resnum=1#PPA244,M1 Mr. Burke's Motion For An Inquiry Into The Seizure And Confiscation or Private Property In The Island Of St. Eustatius], [http://supreme.justia.com/us/32/51/ United States v. Percheman, 32 U.S. 51 (1832)], [http://wwi.lib.byu.edu/index.php/Section_I,_Articles_1_-_260 Article 144 of The Treaty of Sèvres], and [http://avalon.law.yale.edu/imt/imtconst.asp#art6 Article 6 of the Nuremberg Charter].

UN General Assembly Resolution 181 on the partition of Palestine conditioned state recognition on the protection of minorities and demanded that the states each have a formal constitution that would prohibit discrimination of any kind between the inhabitants on the ground of race, religion, language or sex; and required that all persons within the jurisdiction of the State would be entitled to equal protection of the laws.

Proponents of the "Missing Reversioner" legal theory base their argument on the lack of a "legitimate sovereign". The Chairman of the Knesset Constitution, Legislative, and Judicial Committee explained that the promulgation of a constitution was necessary in order to comply with the United Nations Resolution and for achieving international legitimacy. See the statement of MK Nahum Nir, DK (1950) 715 Knesset. Critics have subsequently pointed out that the legitimacy of Israel's title to its own territory is subject to serious question. The territory allocated to Israel was only allocated on condition that it carry out the duty imposed upon each state by adopting a constitution which guarantees to all persons equal and nondiscriminatory rights in civil, political, economic, and religious matters. see the testimony of Dr T.W. Mallison provided to the U.S. Senate Judiciary Committee on [http://www.loc.gov/law/find/hearings/pdf/00139297647.pdf The Colonzation Of The West Bank Territories by Israel] pages 49-50.

Israel has partnered with foreign businesses to profit from land and property which was wrongfully expropriated from Palestinian Arabs. The property rights of Arabs in Israel were placed under a UN guarantee in addition to guaratees contained in the 1949 armistice agreements. see for example [http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/07/08/BU162036.DTL Intel chip plant located on disputed Israeli land -Intel could face political, legal problems with chip plant in Israel], and [http://electronicintifada.net/v2/article9705.shtml The Nakba, Intel, and Kiryat Gat]

In 1950 the UN Secretariat noted that the General Assembly had established a formal minority rights protection system as an integral part of UN GAR 181(II) the 'Plan For The Future Government of Palestine'. It was cataloged during a review of minority rights treaties. The report is available via the [http://documents.un.org/welcome.asp?language=E Official Document System] using Symbol: E/CN.4/367, 7 April 1950. See Chapter III "United Nations Charter and Treaties Concluded After the War".

The civil, religious, and property rights of the Arab and Jewish national minorities in each state were placed under the protection of the United Nations. The enumerated rights cannot be altered without the consent of the General Assembly. Disputes involving interpretation or application are subject to the jurisdiction of the International Court of Justice. Recognition of the new states was conditioned on the entrenchment of those protections in a constitution. Acceptance of the international undertaking was made through a Declaration. Abba Eban supplied Israel's declaration and gave an assurance that, if Israel were admitted as a Member state, it would not invoke domestic jurisdiction under the terms of article 2, paragraph 7 of the UN Charter with regard to the settlement of frontiers, the internationalization of Jerusalem, or the Arab refugee problem see A/AC.24/SR.51 FIFTY-FIRST MEETING, HELD AT LAKE SUCCESS, NEW YORK, ON MONDAY, 9 MAY 1949 :AD HOC POLITICAL COMMITTEE, GENERAL ASSEMBLY, 3RD SESSION.

The Chairman-Rapporteur of the UN Working Group on Minorities, Mr. Asbjørn Eide, advised in 1996 that no competent UN organ had made any decision which would extinguish the obligations under the minority rights agreements. see [http://books.google.com/books?id=ZDMQllP5-zcC&printsec=frontcover#PPA119,M1 Justifications of Minority Protection in International Law, Athanasia Spiliopoulou Akermark] , see Chapter 7 Minority Protections in the United Nations, 7.1 The Validity of Undertakings Concerning Minorities After The Second World War, pages 119-122.

UN GAR 181(II) is also listed in the Table of Treaties, on Page xxxviii, of Self-determination and National Minorities, Oxford Monographs in International Law, Thomas D. Musgrave, Oxford University Press, 1997, ISBN 0198298986.

The Alien Tort Claims Act allows individuals to file lawsuits in US District Court against foreign governments and companies doing business with them for violations of customary international law. In 1996 Holocaust Victims filed lawsuits against Swiss Banks for violations of customary international law that have resulted in over 8 billion dollars in settlements. see for example [http://www.swissbankclaims.com/ the official website of the Swiss Banks Settlement: In re Holocaust Victim Assets Litigation], and see [http://www.foleyhoag.com/en/NewsCenter/Publications/Alerts/CSR/CSR_Alert-041309.aspx Alien Tort Statute Case Update: In Re South African Apartheid Litigation].