The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six-Day War

By Theodor Meron (The American Society of International Law, 2017)

Judge Meron’s 19-page article is available here to download.

Rarely does a jurist have the opportunity to render a legal opinion twice on the very same case or controversy fifty years apart.

Theodor Meron

Theodor Meron

Theodor Meron was 37 when he was appointed the Legal Adviser of the Israel Ministry of Foreign Affairs shortly after the Six-Day War. He was asked to address some of the international legal implications that followed from that war.

He opined on September 14, 1967 that “the establishment of civilian settlements in the occupied West Bank and other conquered territories violates the Fourth Geneva Convention related to the protection of victims of war and, specifically, its prohibition on settlements (Article 49(6)).” This prohibition is categorical, he wrote, and “not conditioned on the motives or purposes of the transfer, and is aimed at preventing colonization of conquered territory by citizens of the conquering state.”

In March 2017, his opinion has not changed. Given the inexorable demographic change in the West Bank over the past fifty years; the adoption by the Security Council of Resolution 2334 on December 23, 2016; John Kerry’s unprecedented speech delivered on December 28, 2016; and Netanyahu’s immediate rejection of the “shameful UN resolution” — Judge Meron felt compelled to speak up again in support of international law and its requirements and application to the settlements in the occupied West Bank.

Judge Meron’s career is noteworthy and worth recounting here because his opinion carries weight, except with Israeli leaders.

Meron

Theodor Meron – President of the International Criminal Tribunal for Rwanda

Judge and President of the United Nations Mechanism for International Criminal Tribunals; Judge and Past President of the United Nations International Criminal Tribunal for the former Yugoslavia; former Judge of the United Nations International Criminal Tribunal for Rwanda; Charles L. Denison Professor Emeritus and Judicial Fellow, New York University School of Law; Visiting Professor, University of Oxford, since 2014; past Co-Editor-in-Chief of the Journal; past Honorary President of the American Society of International Law.

Settlements in the Occupied West Bank

What is the scope of the problem? The Palestinian president says there will be no negotiations until Israel ends the expansion of settlements in the occupied West Bank. The Israeli prime minister says the Palestinians must come to the bargaining table with no preconditions, but he demands that the Palestinians first recognize Israel as a Jewish state. There have been no negotiations since 2010.

2016-mena-israel-overviewmap

Today there are nearly 600,000 Israeli settlers living in the West Bank and East Jerualem. There are 127 government-sanctioned Israeli settlements (not including East Jerusalem and Hebron), and approximately 100 “settlement outposts”. According to the Central Bureau of Statistics, the annual growth rate for the settler population (excluding East Jerusalem) in 2015 was more than two times higher than that of the overall population in Israel: 4.1% and 2% percent, respectively.  Translated: there are more Israelis today moving to Palestine than to the State of Israel.

Check out this segment on NPR from December 2016 about the settlements.

The Jewish settlements were illegal in 1967 and they remain illegal today.

The Fourth Geneva Convention, adopted in 1949 to protect civilians in a war zone, is considered the “gold standard of humanitarian law.” While 196 countries have signed on, the United Nations concluded in 1993 that the Geneva Conventions had passed into customary law and therefore everyone is bound by them.

What does the Fourth Geneva Convention require of the occupying power (Israel) towards the protected persons (Palestinians) in the territories it occupies?

  1. No collective punishment (article 33) – including no pillage, intimidation, or terrorism. Collective punishment is considered a war crime.
  2. May not forcibly deport protected persons or transfer part of its own civilian population into the occupied territory (article 49).
  3. Must facilitate the proper working of all institutions devoted to the care and education of children (article 50).
  4. No destruction of property belonging to the protected persons or to public authorities (article 53).
  5. Maintain the public health and hygiene along with the medical facilities in the occupied territories (article 56).

Nakba refugees

Despite clear and strong opinions from the International Court of Justice, supported by a score of Security Council resolutions, the International Red Cross, and a rare consensus of the international community on the applicability of the Fourth Geneva Convention to the occupied Palestinian territories, the State of Israel has built a 50-year record of parsing the Fourth Geneva Convention, applying provisions it likes while rejecting others. “This opacity is made worse,” Judge Meron writes, “by the reluctance of Israel to divulge in public the list of the Fourth Geneva Convention’s humanitarian provisions which it is prepared to apply.”

Disrespect for international law is, alas, not unusual in the affairs of states. It is rare, however, that disrespect of an international convention would have such a direct impact on the elimination of any realistice prospects for reconciliation, not to mention peace. And it is rarer still that such disrespect of internatioal law should subsist given the number of pronouncements on the matter.

Israeli leaders rejected Meron’s opinion in 1967 and, undoubtedly, reject it today. They hinge their position on the argument that the territories are not occupied because conquered territory only becomes occupied territory when it belongs to a legitimate sovereign that was ousted. This theory disputes the status of Jordan as such a sovereign of the West Bank in 1967 which, in the opinion of Israel makes the Geneva Convention inapplicable de jure. The government has simply decided, in the absence of an international obligation to do so, to act de facto in accordance with the humanitarian provisions of the Convention.

Judge Meron rejects this argument summarily, asking “what would prevent every conquering state from contesting the sovereignty of every defeated state, even where no legitimate doubts about the sovereignty arise?” In a nutshell, the status of the lands conquered in the Six Day War has no bearing on the applicability of the Fourth Geneva Convention to Israel, as the conquering power.

While the Fourth Geneva Convention bestows rights on the “protected persons” (Palestinians in this case), the Hague Convention No. IV establishes responsibilities on the occupying power, and Israel’s Supreme Court has recognized the applicability of the Hague Convention No. IV as customary law to the West Bank.

There is the requirement to respect private property (Article 46), and the property of municipalities, and that of institutions dedicated to religion, charity and education, and arts and sciences. (Article 56). The occupying power must also safeguard and administer the real estate in accordance with the rules of usufruct.

With the construction of the “security wall” encroaching on Palestinian lands, and a record number of housing demolitions in the West Bank in 2016, the reasonable question Palestinians and the rest of the world might ask is “Who is going to hold the State of Israel accountable for its violations of international law?”

12794787_10208838393703043_5184863994902971158_o Judge Meron concludes his 2017 opinion:

Those of us who are committed to international law, and particularly to respect for international humanitarian law and the principles embodied therein, cannot remain silent when faced with such denials or self-serving interpretations.

But if the continuation of the settlement project on the West Bank has met with practically universal rejection by the international community, it is not just because of its illegality under the Fourth Geneva Convention or under international humanitarian law more generally. Nor is it only because, by preventing the establishment of a contiguous and viable Palestinian territory, the settlement project frustrates any prospect of serious negotiations aimed at a two-state solution, and thus of reconciliation between the Israelis and Palestinians. It is also because of the growing perception that individual Palestinians’ human rights, as well as their rights under the Fourth Geneva Convention, are being violated and that the colonization of territories populated by other people can no longer be accepted in our time.

 

 

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Senators should not build unity on the backs of Palestinians

When do U.S. Senators stand lockstep together?

When the American Israel Public Affairs Committee (AIPAC) convinces them that the United Nations is biased against the State of Israel.

The Wall Street Journal notes:

It’s rare, especially these days, for all 100 U.S. Senators—from Bernie Sanders to Ted Cruz, from Elizabeth Warren to Mitch McConnell—to agree on something. But the scourge of anti-Israel bias at the United Nations is such an issue.

So all of them, including Senators Warren, Sanders, and my two Senators from New Mexico signed on to the letter undoubtedly written by AIPAC, the pro-Israeli lobbying operation ensconced in Washington DC.

The letter is a warning note to Secretary-General Guterres – “reform your agencies from within or pay the consequences.”

Although, as Republicans and Democrats, we disagree on many issues, we are united in our desire to see the United Nations improve its treatment of Israel and to eliminate anti-Semitism in all its forms.

My response sent to my two U.S. Senators follows.  I hope they hear from many other constituents.

May 10, 2017

RE:   April 27 letter to Secretary-General Antonio Guterres – Israel & Palestine

Dear Senators Udall and Heinrich,

I’m very disappointed with your signatures on the letter (likely drafted by AIPAC) to the United Nations regarding Israel.

Senator Martin Heinrich

Sen. Martin Heinrich (D-NM)

You, along with your colleagues in the Senate, have adopted Israel’s strategy of deflecting legitimate and worldwide criticism of Israel’s brutal 50-year occupation by focusing criticism on the messenger, the United Nations. We’ve all seen this same “strategy of deflection” coming from the White House in the form of childish Tweets. Your letter is just as childish.

Threatening the United Nations and demanding internal “reforms,” based on false assertions that the U.N. is unfairly targeting Israel, belies the fact that the community of nations stand together in their condemnation of Israel’s long-term, illegal occupation of Palestine.

A quick online review of recent actions in the United Nations reveals that the U.S. stands alone with the Marshall Islands, Federated States of Micronesia, Nauru, Palau (and sometimes Canada) in supporting Israel in the U.N. General Assembly. Every other nation is united in speaking the truth about Israel’s continuing violations of international humanitarian law and the law of occupation. Your letter’s bullying demands to the Secretary-General reflect poorly on the United States, but it’s certainly a testament to AIPAC’s power over the U.S. Senate.

I particularly want to draw your attention to the letter’s outrageous claim about “UNRWA’s troubling anti-Israel bias and activities.” You write that “UNRWA must pursue reforms or risk significant consequences.” I’m personally familiar with UNRWA’s solid work in the Gaza Strip and I find this characterization and threat totally unacceptable. The Senate’s blind loyalty to Israel’s hasbara must end.

Udall

Sen. Tom Udall (D-NM)

I’m also astonished that you oppose the international call for Boycott, Divestment and Sanctions (BDS) as stated in the letter to the U.N.  Peaceful, nonviolent methods to end Israel’s occupation deserve your strong support, not condemnation.

Please learn the facts about the occupation, beginning with the fact that the Gaza Strip will be unlivable by 2020.

Israel’s leaders have proven over many decades that they are incapable or unwilling to end the occupation. If the United States cannot play a constructive role, then please support the United Nations and its constituent agencies in the work they are doing in the Middle East.

Finally, I invite you and your staff to join me in UNRWA-USA’s 5K run in Washington, DC in September.  Your support for this worthy cause would be greatly appreciated.

Sincerely,

Lora A. Lucero

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Nakba – The Catastrophe نكبة

May 15 … Justice delayed another year.

لماذا غزة؟ Why Gaza?

People who deny the Holocaust are despicable!

What should we call the people who deny the Catastrophe (known as Al-Nakba)  that occurred only three years after the Holocaust?

  • Deliberately ignorant?
  • Callously blind?
  • Despicable?
  • Uninformed?

I knew nothing of نكبة  Al-Nakba until recently (perhaps the past 10 years) and confess I feel ashamed of my ignorance. My world history classes in the 1960s in Minnesota certainly taught me about the Holocaust in WWII but the lessons about the Middle East always focused on the founding of Israel (Golda Meir and David Ben-Gurion), never about the horrific ethnic cleansing that occurred.

The Nakba is a crime of historic proportions, when an estimated 750,000 Palestinians were deliberately expelled from their villages, 1000s of men, women and children were murdered, homes and businesses were ransacked and destroyed, all to make room for the new state of Israel.  Historian Ilan Pappe describes the crime…

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How do I talk with you?

 

Four years …. its been four years since I left Gaza and returned home to friends and family. Little did they know that I was a changed woman.

After nine months in Gaza, my eyes and heart were open. I cannot unsee what I’ve seen. I certainly will not close my heart to the realities I learned about the occupation. And I’m not going to forget.

IMG_4249Although returning to Gaza is my first choice today, it appears that Egypt, Israel and even the U.S. government have their own ideas about travel to the Gaza Strip, so I’ve wondered if there’s perhaps another path I’m suppose to follow.

There’s certainly much I can learn about the occupation from books and others more knowledgeable. Maybe I’m suppose to share what I’ve learned with Americans, add my voice to the parade beating the drums for the U.S. government to change its obsequience and blind loyalty to Israel.

I’ve spent the past four years walking a tight rope, teetering from side to side, not wishing to offend anyone with my words about Israel and the occupation, but to speak the truth when the opportunities arise. My options for speaking out have been self-imposed and narrowly-constrained to carefully account for the “sensibilities” of those around me.

  • A friend told me bluntly, “don’t talk about politics. I want to keep things peaceful around here.” I suspect others feel the same way but don’t want to tell me to my face.
  • A family member called me an anti-Semite while another said my words about Israel hurt her to the core because Israel is like a brother.
  • Another family member said my conversation about Israel was the same as asking Jews who support Israel to “commit psychological suicide.”
  • Some have looked at me like I’m a broken record. “Get a life, there’s more than the occupation to worry about.” One friend recommended that I channel my “do gooder” nature into the issue of female trafficking!

I’ve “unfriended” family members on social media to avoid bursting their protective bubbles. I’ve bitten my tongue and kept quiet in the company of some who might be offended. I’ve rationalized to myself that it’s better to be strategic and use my words wisely. If my goal is to change public opinion, and ultimately U.S. foreign policy, then beating someone over the head with the hammer for peace and justice is counter-productive.

Today, however, I turned the corner. Something snapped.

I’m not the same woman-mother-sister-aunt you thought you knew in 2012.  Back then, I knew about oppression, occupation, inhumanity, and all the rest of the human condition from an intellectual point of view.  I was very well informed, better than the average American, or so I thought.

Today, I’m connected with the Palestinians at the cellular level. I feel the occupation in a way that words cannot begin to describe. This isn’t to say that my experience can replace the life experiences of Isra, Samir, Motasem, Mohammed, and the generations of Palestinians who have grown up and lived under occupation. Never!  Their shoes can never be my shoes, and vice versa.

But I cannot ignore and turn my back on them either. I can’t pull the wool over my eyes. I can’t fill my remaining days with other “do gooder” projects in an attempt to forget the truth I know in Palestine. And your ability to do just that really burns me.

How do I talk with you?

Your well-being is just as important to me as the well-being of the Palestinians. This isn’t a zero-sum game where my attention in one direction should harm or distract from another direction.

My personal growth and the love I found in Palestine should help me be a better person in every way, not just a better advocate on behalf of Palestinians’ rights.

But I feel you shut me down and disrespect me when you ignore me and prefer to remain in a cocoon of complacency with the status quo. The status quo is not OK!  Our government’s direct and obscene support of Israel is just as responsible for the Palestinians’ suffering and injustices as are the laws enacted in the Knesset and the orders given to the Israeli Defense Forces.

How do I talk with you?

Silence is no longer an option. But I’m willing to listen to you as deeply as I hope you will listen to me.

10682305_10205074594490415_7766625559446625498_o (1)

 

 

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Oceans of Injustice

Many first-time visitors to the Occupied West Bank & Gaza return home numb from the experience. How could man treat his neighbor this way in the 21st century?

The oceans of injustice we witness there impact each of us in different ways. After her first visit in 2013, Farah Nabulsi returned home to the UK and wrote down her feelings in a therapeutic attempt to come to grips with her experience.

Then she created Native Liberty, a not-for-profit media production company that aims to rehumanize the Palestinians and draw attention to the injustices they face.

The fruits of her labor gave birth to Oceans of Injustice. Check out her website here.

Baltimore Palestine Solidarity Oceans of Injustice

Thanks to Baltimore Palestine Solidarity, I viewed three of her short films (Oceans of Injustice, Nightmare in Gaza, and Today They Took My Son) and then skyped with the filmmaker afterwards. She told us what motivated her to create the films, and her future projects.

“The Palestinians have been suffering for such a long time on such a large scale that its become normalized.” She wants her films to humanize the Palestinians and show the rest of us that they are just like you and me.  The occupation is NOT normal.

Oceans of Injustice will be released on May 16.  If you want to help people around the world to begin to feel what it’s like to be a Palestinian under occupation, please follow these steps:

1. Visit http://thndr.me/Ll4c5p

2. Click on “Support”, then “Support with Facebook” Or “Support with Twitter” (on your phones or computers)

3. Confirm your support when prompted.

I’m in awe of Ms. Nabulsi’s actions when it’s so easy to fall into the trap of believing that we have no power to change the occupation.

power quote

 

 

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Signs of the Times

One day in the future, will we look back at the events in 2017 with a sigh of relief or a gasp of horror? We knew and we acted? Or we knew and failed?

This video was put together by organizers of the #PeoplesClimateMarch. The photos below are mine. Read about the March here.

 

Monarch message

moms clearn air force 2

18193730_10212957176910049_2041451883844289139_n

In Science We Trust

Crowd in front of white house

Librarian

No Sides again

Scott Pruitt

 

 

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I think we can, I think we can!

little red caboose

When I was a young child (1950s-1960s) there were no seatbelts. We rode around in the back seat without a care in the world, listening to my grandfather behind the wheel intoning “I think we can!  I think we can!” in the spirit of the Little Red Caboose as he chauffeured my sister and I up the hill to their house every Sunday afternoon.

We always made it up the hill.

When my children were young, cars routinely had seatbelts but there was no law requiring people to wear them until 1983. We could still get away without wearing them in the back seat until 1989.

Fast forward, thirty years later, and now it’s second nature for most everyone who jumps into a car to put on their seatbelts.

Science Keeping RBG alive

Can we do the same behavior modification to save our planet?

On Earth Day 2017, I worry whether Americans will be able to put on the proverbial seatbelt to curtail our profligate overconsumption and learn to live within the Earth’s finite limits.

youth

First, we don’t see the connection between our personal consumption patterns and the larger, scarier reality that we are directly contributing to the inevitable planetary wreakage.

Second, if we do see the connection, we probably don’t feel our solitary actions will make much of a difference.  So, why change?

Third, many of us believe our quality of life will suffer and the “sacrifices” will be too great.

Fourth, there surely must be a technological fix hiding somewhere given all of the creative geniuses populating Silicon Valley and elsewhere.

The short answer: It’s up to me, you and anyone else reading this blog, to change our consumption habits just as we changed our driving habits. Now, today. In every way. Lets put on our seatbelts!

“I think we can, I think we can” said the little Red Caboose. I think we can change our consumption habits and conserve, reduce, recycle, simplify, live with less, share more, and build a world where every child will make it up that hill.

 

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