Palestine - United Nations Perfidy Exposed

[Published 20 July 2012]



The canard - supported by countless United Nations General Assembly Resolutions - that Jewish settlements in the West Bank are illegal in international law - has been dealt a crushing blow with the the recent release of the Levy Committee Report in Israel rebutting that claim.

The Committee comprised a retired Supreme Court Judge - Edmund Levy - a Tel Aviv District Court Judge - Tchia Shapira - and a former Foreign Ministry legal adviser Alan Baker. They were appointed by Israeli Prime Minister Benjamin Netanyahu in January 2012 to consider among other matters the legality of Jewish settlements established in the West Bank.

The San Remo Conference held in Italy in April 1920 was the Committee’s starting point.

That Conference had laid the grounds for the eventual creation of the Mandate for Palestine as part of a Mandate system involving the disposition of vast tracts of territory held by the Ottoman Empire for 400 years - but lost by it following its defeat in World War I.

Whilst Arab self-determination was to occur in 99.99% of the captured territory - the right of the Jewish people to reconstitute the Jewish National Home was limited to the remaining 0.01%. of that territory.

The Levy Report elaborates:

“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”

The International Court of Justice had failed to consider the Mandate and article 80 when it delivered its non-binding advisory opinion on 9 July 2004 that Israel had no legal right to erect part of Israel’s security barrier in the West Bank.

That decision has since been used by the United Nations and detractors of Israel to repeatedly discredit and delegitimise Israel’s right to maintain its claim to sovereignty in any part of the West Bank and for Jews to live there.

Surprisingly it was Egyptian appointee to the International Court - Judge El-Araby - who in fact had cautioned the other 14 Justices against ignoring an examination of the legal effect of the Mandate:

“The international legal status of the Palestinian Territory (paras. 70-71 of the Advisory Opinion), in my view, merits more comprehensive treatment. A historical survey is relevant to the question posed by the General Assembly, for it serves as the background to understanding the legal status of the Palestinian Territory on the one hand and underlines the special and continuing responsibility of the General Assembly on the other. This may appear as academic, without relevance to the present events. The present is however determined by the accumulation of past events and no reasonable and fair concern for the future can possibly disregard a firm grasp of past events. In particular, when on more than one occasion, the rule of law was consistently side-stepped. The point of departure, or one can say in legal jargon, the critical date, is the League of Nations Mandate which was entrusted to Great Britain.”

Regrettably Judge El-Araby’s sage advice was ignored - as the Levy Report now makes very clear.

In one respect the International Court could be excused for failing to consider the Mandate and Article 80 - since the then Secretary General of the United Nations - Kofi Annan - had failed to include these vital documents in the dossier of 88 documents he was required to submit to the Court that were “likely to throw light upon the question” - as he was legally required to do under Article 65 of the Court‘s statute.

The International Court’s decision was fatally flawed as a result.

If you only submit half the relevant documents - you are sure to get only half an answer.

Those persons who prepared the dossier of documents and Mr Annan himself now need explain how documents - deemed so relevant by the Levy Committee - were omitted from the dossier submitted to the International Court.

The Levy Committee - after having considered the Mandate and Article 80 - concluded:

“.. we have no doubt that from the perspective of international law, the establishment of Jewish settlements in Judea and Samaria is legal”

The Levy Committee dismissed the opinion of the International Court that the legal status of this tiny sliver of land between Jordan and Israel - the size of Delaware - was solely governed by the provisions of the Fourth Geneva Convention 1949 - when stating:.

“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

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”

It would surely be the height of folly for the United Nations and Israel’s denigrators to continue to categorically spruik that Israel’s presence in the West Bank is illegal following the release of the Levy Report.

The United Nations needs to come clean and investigate why highly relevant documents to support the legal claim of Jews to settle in the West Bank were withheld from the International Court.

Will the egg splattered all over the United Nations following the release of the reasoned and considered Levy Report deter it from conducting such an investigation?

The continuing use of the International Court decision and the Fourth Geneva Convention to assert that Israel has no legal right to remain in even one square meter of the West Bank must now be seriously questioned.

Ironically Judge El-Araby is now the Secretary General of the Arab League and meets with Mr Annan frequently in Mr Annan’s new job with the United Nations trying to stop the slaughter in Syria.

Maybe Mr Annan can explain the cover up to Judge El-Araby over a cup of Turkish coffee.

Don’t hold your breath waiting

Palestine - Ulpana Decision Answers Israel's Detractors

[Published 6 June 2012]


Israel has effectively answered its detractors in its measured response to a ruling by Israel’s High Court ordering the demolition of five stone structures in the West Bank settlement of Ulpana - erected on what the Court deemed to be private Palestinian land.

Firstly - in agreeing to remove these structures and relocate the 30 families affected to the nearby neighbourhood of Beit El - Israel’s Prime Minister Benjamim Netanyahu announced:

“Even though for some people the High Court decision over Ulpana is hard, we have to respect it,”

Israel’s respect for the rule of law stands in stark contrast to the defiance of the rule of law by the Palestinian Arabs - - as evidenced in Article 20 of the PLO Charter which states:

“The Balfour Declaration, the Mandate for Palestine, and everything that has been based upon them, are deemed null and void.”

The silence of the international community in demanding acceptance of this body of settled international law by the Palestinian Arabs has been one of the principal stumbling blocks to ending the 130 years old conflict between Arabs and Jews.

Israel’s stance also effectively exposes the failure of large parts of the international community itself to respect the law when admitting Palestine as a member state of UNESCO last October - contrary to the well established principles of customary international law as laid down in the Montevideo Convention 1933.

Many of those UNESCO member states cynically continue to claim that Israel’s settlements are illegal in international law. Such claim is no more than an opinion that has never been properly tested in any Court.

Such claim is countered by the claim that the settlements are legal in international law under article 6 of the Mandate for Palestine and article 80 of the United Nations Charter. These two documents - read together - continue to this day to give the legal imprimatur to the Jewish people to reconstitute the Jewish National Home in the West Bank and Gaza on State land and waste land not required for public purposes.

Indeed Prime Minister Netanyahu has now indicated - following the Ulpana decision - that the pace of building activity will be increased in existing settlements built on state lands and waste lands in the West Bank.

The failure of the International Court of Justice (ICJ) to consider the legal force of the Mandate and article 80 of the UN Charter in its non-binding advisory opinion on the legality of Israel’s security barrier being erected in parts of the West Bank - has exacerbated rather than defused the settlements issue.

Regrettably the ICJ decision was reached on the basis of a brief submitted to the Court for judicial advice by then Secretary General of the United Nations - Kofi Annan. Such brief failed to include any reference to the Mandate for Palestine or article 80 of the UN Charter.

The ICJ ignored the warning made by one of the 14 judges in the case - Justice Elaraby - who wrote in his judgement:

“The international legal status of the Palestinian Territory (paras. 70-71 of the Advisory Opinion), in my view, merits more comprehensive treatment. A historical survey is relevant to the question posed by the General Assembly, for it serves as the background to understanding the legal status of the Palestinian Territory on the one hand and underlines the special and continuing responsibility of the General Assembly on the other. This may appear as academic, without relevance to the present events. The present is however determined by the accumulation of past events and no reasonable and fair concern for the future can possibly disregard a firm grasp of past events. In particular, when on more than one occasion, the rule of law was consistently side-stepped. The point of departure, or one can say in legal jargon, the critical date, is the League of Nations Mandate which was entrusted to Great Britain.

Secondly - Israel has rejected the temptation following the Ulpana verdict to resort to retrospective legislation to legalize the construction of the Ulpana houses.

Retrospective legislation is a course of action seldom undertaken in democratic countries. Israel’s refusal to break with that principle in the Ulpana case is to be commended.

A bill to legitimize the Ulpana houses was roundly defeated in Israel’s Knesset by a vote of 69-22 - when the principle of Cabinet solidarity - another feature of flourishing democracies - was successfully imposed by Prime Minister Netanyahu.

One cannot however rule out a change of heart in the future if exceptional circumstances arise - particularly if the number of successful cases of illegal building activity are found by the Court to have occurred. Compensation - rather than demolition and resettlement of the residents affected - may become the only practical option.

Thirdly - the frequently heard claims of Palestinian victimhood and denial of legal and human rights were again effectively answered with the Ulpana decision. Israel’s legal system has always been available to Palestinian Arab litigants and has found in their favour in many cases. The Ulpana decision affirms that Israel’s legal system will continue to protect their rights when supported by the facts and the law.

The case itself was funded and run by one of the many non-government organizations (NGO) in Israel- B’tselem - that act to protect the rights of the minority Palestinian Arab population. These NGO are financed by donations from foreign supporters such as the European Union and the Ford Foundation. Lack of finance to run cases for Palestinian Arabs residing in the West Bank is not a problem. They can - and do - hire top lawyers to present their cases.

Fourthly - the case highlighted the resilience of Israel’s democracy - as the press in Israel enjoyed free rein to criticise the Government’s policy in regard to Jewish settlements in the West Bank.

One of the leaders of the pack baying for the Government’s blood following the Ulpana decision was the daily paper Ha’aretz which propounded the following in one of its editorials:

“Promising to build new homes in the heart of the occupied territories, far beyond the 1967 lines, blatantly contradicts the commitment Israel made in the road map to freeze settlement construction and evacuate all the outposts built in the past decade.”

In fact no such commitments were ever made.

The Roadmap proposed by President Bush had expressly stated:

"Settlements
GOI (Government of Israel) immediately dismantles settlement outposts erected since March 2001.
Consistent with the Mitchell Report, GOI freezes all settlement activity (including natural growth of settlements)."

Israel however - made 14 reservations to the Roadmap - one of which provided:

“There will be no involvement with issues pertaining to the final settlement. Among issues not to be discussed: settlement in Judea, Samaria and Gaza (excluding a settlement freeze and illegal outposts); the status of the Palestinian Authority and its institutions in Jerusalem; and all other matters whose substance relates to the final settlement.”

An agreement to discuss a settlement freeze or illegal outposts is a far cry from a commitment to freeze settlement construction or illegal outposts.

The Ulpana decision once again established that there is no Government control of the media in Israel that prevents any claims or criticisms of Government policy - right or wrong - being made - that would threaten their newspaper offices being raided or closed down.

Fifthly - the unique role that Israel’s High Court plays in standing between the Government and its citizens and even non-citizens is bound to ensure that it will not be intimidated in dealing with future cases of illegal building - by either Jews or Arabs - on private lands,State lands or waste lands not required for public purposes.

Prime Minister Netanyahu confidently asserted:

“I have unequivocal legal opinions that say that the (Ulpana) verdict did not set any precedent and will not affect other cases.”

He may well find that the High Court will not agree with those opinions.

Israel’s Declaration of Independence proclaims:

”[The State of Israel] will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex;"

The High Court will be vigilant in ensuring this provision is scrupulously enforced.

The Ulpana decision has opened up a can of worms that will force it to review further claims of illegal building activities - not only by Jews but by Arabs as well.

It needs to act with fairness and impartiality to correct any infringements of the law - no matter who it is that is infringing.

As the international community grapples with its response to the slaughter and mayhem in Syria against every principle of international law - Israel stands tall in its respect for the law in contrast to those nations who only pay lip service to that principle - whilst ignoring it in practice..

It is about time those other nations followed Israel’s example.