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  1. INTERNATIONAL LAW: SOME DIFFICULT ISSUES Jonathan D.C. Turner UK Lawyers for Israel Manchester Limmud 3 February 2013

  2. WHAT OUR OPPONENTS SAY Illegal Occupation Illegal Settlements Illegal Settlement Goods AND WHAT THEY DO Discrimination / Victimisation

  3. OCCUPATION, SOVEREIGNTY OR SPECIAL STATUS? League of Nations Mandate for Palestine (1922) Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine … ; and Whereas recognition has 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 … 2. 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.

  4. OCCUPATION, SOVEREIGNTY OR SPECIAL STATUS? • UN Charter (1945), §80(1) • Except as may be agreed upon in individual trusteeship agreements … and until such agreements have been concluded, 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. • Oslo II Accord (1995) §XXXI • 6. Nothing in this Agreement shall prejudice or preempt the outcome of the negotiations on the permanent status.... Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions. • 7. Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.

  5. STATUS OF WEST BANK No UN trusteeship agreed; UNGA Resolution 181 not implemented Annexed by Jordan in 1950, relinquished in 1988 Under Israeli control since 1967 (subject to Oslo Accords 1993 & 1995, if still valid), but not annexed by Israel Occupied territory? UNSC 446 (1979) & others ICRC Declaration 2001 ICJ Opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory §78 Special status? Levy Report (2012)

  6. STATUS OF JERUSALEM UNGA 181 Corpus Separatum under international regime (with Bethlehem) Referendum after 10 years (Part III §D) - would support Israeli sovereignty then and now “East” Jerusalem under effective control of Jordan 1948-1967; annexed by Jordan in 1950, relinquished in 1988 Under effective control of Israel since 1967; annexed by Israel (1980 Basic Law), justified by Capture in lawful self-defence Stephen Schwebel What Weight to Conquest? (1970) Eli Lauterpacht Jerusalem and the Holy Places (1968) Self-determination, historical connection Rejected by UNSC 478 (1980) (& others) - “East” Jerusalem regarded as occupied territory: ICJ “Wall” case §78

  7. STATUS OF GOLAN Mostly outside Palestine Mandate Syrian territory until 1967 Under effective control & annexed by Israel (1981 Golan Heights Law) Captured in lawful self-defence Self-determination, historical connection? But annexation rejected by UNSC 497 (1981) (& others) - regarded as Syrian territory occupied by Israel

  8. ILLEGAL OCCUPATION? • Hague Regulations (1907) & 4th Geneva Convention (1949) presuppose that occupation can be legal • UNSC 242 1. Affirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:(i) Withdrawal of Israeli armed forces from territories occupied in the recent conflict;(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force; … 3. Requests the Secretary-General to designate a Special Representative to proceed to the Middle East … to promote agreement and assist efforts to achieve a peaceful and accepted settlement in accordance with the provisions and principles in this resolution • No UN Resolution has demanded unconditional Israeli withdrawal from West Bank, Jerusalem or Golan • No binding UNSC Resolution relating to Israel under Chapter VII - except 338?

  9. ILLEGAL OCCUPATION? – WEST BANK • Oslo II Accord (1995) • §XI.1: The two sides view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period (and see also §XVII.1, XXX1.8) • Area A: PA has jurisdiction and all civil powers and responsibilities • Area B: PA has jurisdiction and all civil powers and responsibilities, responsibility for public order; Israel has overriding responsibility for security • Area C: PA has specified civil powers and responsibilities not relating to territory; jurisdiction (inc. planning & zoning) to be gradually transferred to PA except for the issues that will be negotiated in the permanent status negotiations (i.e. Jerusalem, settlements, specified military locations, [Palestinian] refugees, borders, foreign relations and Israelis – see §§XVII.1.a, XXXI.5) • Original timetable of 18 months adjusted by Wye River Memorandum (1998), Sharm el-Sheikh Memorandum (1999) • Roadmap for Peace in the Middle East (2003) - restoration of status quo at 28/9/2000

  10. ILLEGAL OCCUPATION? • Jerusalem • Sovereign territory? - see above • Treated as separate from West Bank in Oslo II (Preamble + §§II.3, III.1, III.3, IV); no transfer of powers to PA • Final status issue • Golan • Sovereign territory? - see above • Conditions of UNSC 242 not satisfied • Continuing state of belligerency between Syria & Israel • Syria has not acknowledged sovereignty, territory or independence of Israel • Separation of Forces Agreement 1974

  11. ILLEGAL SETTLEMENTS? – WEST BANK • League of Nations Mandate for Palestine • §6 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 • §25 In the territories lying between the Jordan and the eastern boundary of Palestine as ultimately determined, the Mandatory shall be entitled … to postpone or withhold application of such provisions of this mandate as he may consider inapplicable to the existing local conditions • Eugene Rostow: the Jewish right of settlement in Palestine west of the Jordan river, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors. And perhaps not even then, in view of Article 80 of the U.N. Charter

  12. ILLEGAL SETTLEMENTS? – WEST BANK • Hague Regulations (1907) • Israel not a party but recognises as customary international law • §43 The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. • §46 … private property … must be respected. Private property cannot be confiscated • §52 Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. • Applied by Israeli Courts • Elon Moreh case (1979) (& others)

  13. ILLEGAL SETTLEMENTS? – WEST BANK • 4th Geneva Convention (1949) §49(6): • The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies • Based on proposal by Georg Cohn (Denmark), concerned to ensure the repatriation of Germans transferred to Copenhagen by retreating Reich forces • Eugene Rostow, Julius Stone, Levy Report • not occupied territory; remains subject to Mandate • “transfer” does not include voluntary settlement (cf §49(1) refers to “Individual or mass forcible transfers”) • §49(6) applies only to territory of a contracting state (see §2), so not to West Bank (and see also §4 on “protected persons”) • Superseded by Oslo II Accord (1995)? • permanent status issue so legal until status resolved by negotiation? • Ronald Reagan, Alan Baker in Israel’s Rights as a Nation-State in International Diplomacy

  14. ILLEGAL SETTLEMENTS? – WEST BANK • 4th Geneva Convention (1949) §49(6) • cf. ICJ Opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) §§95-101 • Obligation of the occupying state, not individuals • organisation / financing / promotion / encouragement of population transfer by Israeli authorities? • ICJ “Wall” case §120: “organise or encourage” • ICC Rome Statute §8(2)(b)(viii) (“directly or indirectly”) • “outposts” established in defiance of Israeli authorities • recognising existing ownership / purchases of land by Israelis / Jews • authorising construction and use of homes by owners of private land • Hague Regulations §43: laws in force should be respected • 4th Geneva Convention §67: The courts shall apply only those provisions of law which were applicable prior to the offence, and which are in accordance with general principles of law ...

  15. ILLEGAL SETTLEMENTS? – WEST BANK • Roadmap to peace in the Middle East (2003) • The following is a performance-based and goal-driven roadmap … aiming at progress through reciprocal steps … • GOI immediately dismantles settlement outposts erected since March 2001 • Consistent with the Mitchell Report, GOI freezes all settlement activity (including natural growth of settlements) • Accepted by Israel subject to reservations, including: • 2. … The first condition for progress will be the complete cessation of terror, violence and incitement • 6. In connection to both the introductory statements and the final settlement, declared references must be made to Israel’s right to exist as a Jewish state and to the waiver of any right of return for Palestinian refugees to the State of Israel • Still in force following UNGA 67/19?

  16. ILLEGAL SETTLEMENTS? • Jerusalem • If Israeli sovereign territory, Hague Regulations & Geneva Convention don’t apply • Otherwise see points above • Permanent status issue under Oslo II • If West Jerusalem not Israeli sovereign territory (EU position), therefore occupied territory, how can movement of population within Jerusalem be regarded as a transfer of population to occupied territory? • Golan • If Israeli sovereign territory, Hague Regulations & Geneva Convention don’t apply • Otherwise, see points above • But points based on League of Nations Mandate inapplicable (for most of the Golan)

  17. ILLEGAL GOODS? Hague Regulations (1907) §55 The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct. 4th Geneva Convention (1949) §49(6): Obligation not to transfer population - not an obligation to refrain from establishing businesses, making products, etc.

  18. ILLEGAL GOODS? Marking EU Unfair Commercial Practices Directive 2005/29 Implemented in UK by The Consumer Protection from Unfair Trading Regulations 2008 Prohibits commercial practices which (a) contain false information or are likely to deceive the average consumer and (b) are likely to cause him to take a transactional decision that he would not have taken otherwise Tariffs / Restrictions No EU preference: C-368/08 Brita (CJEU) But WTO rules apply, probably (GATT §XXVI.5, Gaza-Jericho Agreement, Annex IV §III, Prof Thomas Cottier Opinion, 1997) EU Regulation 260/2009 §1 … products originating in third countries … shall be freely imported into the Community §24(2) … this Regulation shall not preclude the adoption or application by Member States: (a) of prohibitions, quantitative restrictions or surveillance measures on grounds of public morality, public policy …

  19. DISCRIMINATION / VICTIMISATION • Cf. e.g. Northern Cyprus: UNSC 541, 550 • Public procurement • WTO Government Procurement Agreement: prohibits discrimination • EU Directives 2004/17 (Utilities), Public Sector Procurement 2004/18 • §2 Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way. • §45(2) Any economic operator may be excluded from participation in a contract where that economic operator … (d) has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate • Implemented in UK by The Public Contracts Regulations 2006, Utilities Contracts Regulations 2006 (as amended) • General EU law on non-discrimination: C-59/00 Bent Mousten Vestergaard • Local Government Act 1988, s.17 • General UK administrative law on irrelevant considerations

  20. DISCRIMINATION / VICTIMISATION • Equality Act 2010 • Prohibits discrimination on grounds of nationality e.g. by unions against members or by public authorities in the provision of services • Constitutions of organisations • e.g. Co-operative Group’s Rules §1.4.3: The Society is committed to ... treating all people fairly and with respect • Competition law • TFEU §101(1)(d), 102(c); UK Competition Act 1998 ss 2, 18 • … in particular those [agreements] which …apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage • Such abuse may, in particular, consist in: … applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage

  21. SOME SOURCES Prof Eugene Rostow AJIL 84, 717 (1990) Resolved: are the settlements legal? Israeli West Bank policies -The New Republic, October 21, 1991 Prof Julius Stone Israel and Palestine (1980) International Law and the Arab-Israel Conflict (Extracts edited and updated by Ian Lacey) (1990, 2003) Prof Stephen Schwebel What Weight to Conquest? AJIL (1970) 64 Prof Elihu Lauterpacht Jerusalem and the Holy Places (Anglo-Israel Association 1968) Prof Thomas Cottier The Israel-Palestine Protocol on Economic Relations and the Law of the World Trade Organisation (LSE, 1997)