Essays on war in international law

essays on war in international law

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In 1997 the civil Administration's legal adviser gave his opinion: The custodian of Absentee property in the west Bank is nothing but a trustee looking after the property so it is not harmed while the owners are absent from the area. The custodian may not make any transaction regarding the asset that conflicts with the obligation to safeguard the asset as stated, especially his obligation to return the asset to the owner upon his return to the region. 71 Israel contends that the geneva convention only applies in the absence of an operative peace agreement and between two powers accepting the convention. Since the Oslo Accords leave the issue of settlements to be negotiated later, proponents of this view argue that the palestinians accepted the temporary presence of Israeli settlements pending further negotiation, and that there is no basis for declaring them illegal. Israel has justified its civilian settlements by stating that a temporary use of land and buildings for various purposes appears permissible under a plea of military necessity and that the settlements fulfilled security needs. 74 It is further argued that United Nations Security council Resolution 242 calls for "secure and recognized boundaries and that neither the 1949 armistice demarcation lines, nor the 1967 cease-fire lines have proved themselves secure. 75 In 2002, the Israeli ministry of Foreign Affairs reiterated that the settlements were being developed consistently with international law and that they did not violate any agreements with either the palestinians or Jordan. They added that the settlements in the west Bank and gaza strip were recognised as legitimate by the mandate for Palestine adopted by the league of Nations, and that the only administration that completely prohibited Jewish settlement was that of Jordan from 1948 to 1967.

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Under this reasoning the fourth Geneva convention prohibits forced population transfers, something that Israel is banking not engaged in since jewish settlers move to resume the disputed territories on an individual, voluntary basis. In 1967, Theodor Meron, legal counsel to the Israeli foreign Ministry stated in a legal opinion to Adi yafeh, the political Secretary of the Prime minister, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the fourth Geneva convention.". In 2007, judge meron stated that "I believe that I would have given the same opinion today." 65 nevertheless, Israel considers its settlement policy to be consistent with international law, including the fourth Geneva convention, while recognizing that some of the smaller settlements have been. 66 In 1998 the Israeli minister of Foreign Affairs produced "The International Criminal court Background Paper". 67 It concludes International law has long recognised that there are crimes of such severity they should be considered "international crimes". Such crimes have been established in treaties such as the genocide convention and the geneva conventions. The following are Israel's primary issues of concern ie with the rules of the icc: The inclusion of settlement activity as a "war crime" is a cynical attempt to abuse the court for political ends. The implication that the transfer of civilian population to occupied territories can be classified as a crime equal in gravity to attacks on civilian population centres or mass murder is preposterous and has no basis in international law. Israel also argues that some of the settlements are built in areas where jewish settlements existed before the 1948 Arab-Israeli war and violence prior, when many west Bank settlements were destroyed and the residents massacred or expelled, such as Hartuv, kfar Etzion, hebron, and the. Some argue that according to international law Israel is the custodian of absentee property in the west Bank and may not give it to settlers.

Although President Barack Obama and diplomatic officials in his administration have stated, "the United States does not accept the legitimacy of continued Israeli settlements in February 2011 the. Vetoed a security council resolution that would have declared the settlements illegal. 62 In December 2016, the. Abstained on a security council Resolution that declared that Israeli settlements are illegal and deemed their continuing construction a "flagrant violation" of international law. Ambassador Samantha power stated, "Today the security council reaffirmed its established consensus that the settlements have no legal validity. The United States has been sending a message that settlements must stop privately and publicly for nearly five decades." 63 Israel The Israeli government's essential position is that rather than being "occupied territory the west Bank is "disputed territory." given that the Arab states prevented. Moreover, since the league of Nations Mandate for Palestine, with the intent to form entry a jewish state between the sea and the jordan river, included the area now known as the west Bank, israel has at least as legitimate claim to the territory as any. Under the views of Howard Grief and others, according to Article 6 of The Anglo-American Treaty of 1924, jewish Settlements are not illegal. The rights granted to and guaranteed by mandate for Palestine survived the league of Nations and the Anglo-American Treaty of 1924 still has the force of law pursuant to Article 80 of the un charter by virtue of the 1969 vienna convention on the laws.

essays on war in international law

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The permissive attitude taken by America accelerated the pace of Israel's settlement programme. 57 reagan's view on the settlements legality biography was not held by the State department. 47 The george. Bush, Clinton, and george. Bush administrations did not publicly comment on the legality of Israeli settlements, but spoke publicly against them. 59 Since the Clinton administration, the. Has continued to object to the settlements, calling them "obstacles to peace" and prejudicial to the outcome of final status talks.

51 The johnson, nixon, ford, carter, 52 and Obama administrations all publicly characterized the settlements as illegal. The United States has never voted in favor of any un resolution calling the settlements illegal except for Resolution 465 in 1980, and in that case the carter administration subsequently announced that the vote had been cast in error 53 due to miscommunication and would. Three us ambassadors to the un have stated that Israeli settlements are illegal: george. Bush (later us president) on September 25, 1971, 54 William Scranton on may 25, 1976, 54 and Samantha power on December 23, 2016. 55 Secretaries of State cyrus Vance 54 and John Kerry 56 also said the settlements were illegal. In February 1981, ronald reagan announced that he didn't believe that Israeli settlements in the west Bank were illegal. 57 he added that "the un resolution leaves the west Bank open to all people, arab and Israeli alike". 58 Hoping to achieve a peace deal, he nevertheless asked Israel to freeze construction calling the settlements an "obstacle to peace".

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essays on war in international law

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16 The court's finding was based on the business provisions of the fourth Geneva convention and un security council resolutions that condemned the establishment of settlements and attempts by Israel to alter the demographics of the territories under its control. The United Nations General Assembly, which regards itself as having a chief role in the process of the codification of international law, has passed several resolutions with an overwhelming majority that denounce settlements as being illegal. Citation needed The United Nations Human Rights council has also called the Israeli settlements and related activities a violation of international law. 41 According to records of the 1998 meeting of Committee on the Elimination of Racial Discrimination, theo van boven said The status of the settlements was clearly inconsistent with Article 3 of the convention, which, as noted in the committee's General Recommendation xix, prohibited all. There is a consensus among publicists that the prohibition of racial discrimination, irrespective of territories, is an imperative norm of international law. 42 43 International Committee of the red Cross The International Committee of the red Cross (icrc) holds that the establishment of Israeli settlements violate fourth Geneva convention. 44 45 The icrc also holds that the displacement of Palestinians that may occur due to the settlements also violates Article 49 of the fourth Geneva convention.

46 countries United States An opinion by a legal adviser to the. Department of State found the settlements contrary to international law in 1978. On April 21, 1978, legal Adviser of the department of State herbert. Hansel issued an opinion, on request from Congress, that creating the settlements "is inconsistent with international law and against Article 49 of the fourth Geneva convention. 47 Hansell found that "while Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for the reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with.

Foreign policy 28 ) passed the jerusalem Embassy Act, 28 recognizing Jerusalem as the capital of Israel. Views that parts of Jerusalem are not in Israel 29 and the official. Position is that the status of Jerusalem must be resolved in negotiations. 30 The eu views that Jerusalem is a corpus separatum, 31 and the United Nations considers Israel's proclamation of Jerusalem as its capital to be "null and void". 32 Israel has signed peace treaties with Egypt (removing all Israeli settlements and returning the sinai peninsula to Egyptian sovereignty and Jordan (returning small sections to jordanian sovereignty there are currently no peace treaties governing Israel's borders related to the west Bank, the gaza strip.


Israel therefore asserts that the armistice lines (known as the Green Line) of 1949 have no other legal status. Palestinians object to this view as the IsraelJordan peace treaty was not to alter the status of any territories coming under Israeli control during the hostilities of 1967 (article 3(2) of the IsraelJordan peace treaty). 33 Article 8(2 b viii) of the International Criminal court Rome Statute defines "the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" as a war crime. 34 Israel did initially sign the statute, but later declared its intention not to ratify. 35 36 International legal opinions At present, based on the result of numerous un resolutions that cite Article 49 of the geneva convention, the consensus view of the international community is that Israeli settlements are illegal and constitute a violation of international law. According to the bbc, every government in the world, except Israel, considers the settlements to be illegal. 39 United Nations see also: Israel, palestine, and the United Nations In 19, numerous un security council resolutions, including 446, 452, 465, 471 and 476, considered the settlements as having "no legal validity" under the fourth Geneva convention. 40 Security council Resolution 2334, approved in December 2016 reaffirms the settlements lack of legal validity, and terms them "a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.".

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The public viewed the move as an annexation, but the law itself refrained from using the term officially. The gaza strip and West Bank form part of the areas offered by the un to a prospective arab state of Palestine in the partition Plan, which was rejected by the Arabs. From 19, The gaza strip was occupied by Egypt and the west london Bank was annexed by jordan. Together with the annexation of East Jerusalem mentioned above, jordan's annexation of the west Bank was not recognized internationally. Since 1967, the west Bank has been under military occupation. Gaza was also occupied in 1967, but after Israel's unilateral disengagement in 2005 the status has become disputed, with conflicting opinions on whether or not the occupation has ended. The jerusalem Law and the golan heights Law have both been deemed illegal by the un security council (resolutions 478 and 497 respectively and are not recognized by the international community. The United States abstained from the vote on Resolution 478 and the. Congress (which does not define.

essays on war in international law

Public lands' "possession cannot be alienated, nor its basic character transformed". 26 In 2004, an advisory opinion by the International court of Justice concluded that Israel had breached its obligations under international law by establishing settlements in the west Bank, including East Jerusalem and that Israel cannot rely on a right of self-defence or. The court also concluded that the Israeli régime violates the basic human rights of the palestinians by impeding the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens) and their exercise of the right to work,. 27 Status of the territories Further information: Status of territories occupied by Israel in 1967 Although all areas in question were captured by Israel in the 1967 Six-day war, israel has treated them in three different ways: " East Jerusalem "— jerusalem and its surroundings. In 1948, jordan captured and annexed the eastern half of Jerusalem, while Israel captured and annexed the west. Following the six-day war in 1967, Israel annexed the eastern part, together with several villages around. In 1980 the Israeli Knesset passed the jerusalem Law stating that "Jerusalem, manager complete and united, is the capital of Israel". The Israeli golan heights Law of 1981 applied Israel's "laws, jurisdiction and administration" in the golan heights, captured from Syria in 1967.

commanders was legal on the basis that they formed part of the territorial defense network and were considered temporary measures needed for military and security purposes. 25 After likud came to power in 1977, using land on the basis of the 1907 Hague regulations, which implied a temporary nature of Israeli presence, was not employed anymore as the new government declared land in the west Bank "state land". 25 In 19 the Israeli supreme court, prompted by the new government policies, ruled on two important cases that set out the requirements for Israeli settlement legality under international law. In ayauub. Minister of Defence (the beit-El toubas case the court determined that the hague conventions but not the geneva conventions could be applied by Israeli courts on land and settlement issues in the occupied territories. The following year the court ruled on Dwikat. The government of Israel (the Elon Moreh case outlining the hague conventions' limitations on Israeli land acquisition and settlements. Settlements, whether on private or public land, could not be considered permanent, nor could the land be permanently confiscated, only temporarily requisitioned. Settlements on private land were legal only if determined to be a military necessity; the original owner retained title to the land and must be paid rental fees for its use.

18 In practice, israel does not accept that the fourth Geneva convention applies de jure, but has stated that on humanitarian issues it will govern itself de facto by its provisions, without specifying which these are. 19 20 The majority of legal scholars hold the settlements to violate international law, while others have offered dissenting views supporting the Israeli position. 2 Contents Background Shortly after independence, the Israeli supreme court ruled that the fundamental principles of international law, accepted as binding by all civilized word nations, were to be incorporated in the domestic legal system of Israel. 21 In the aftermath of the 1967 Six-day war, israel was in control of the sinai peninsula, the gaza strip, west Bank and Golan heights. Immediately after the war, the Israeli government authorised the construction of military settlements for security purposes. They were built on the fringes of the territories, along the jordanian and Syrian frontiers and along the edges of the sinai peninsula. 22 At the same time, israel conveyed that it was willing in principle to return most of the newly captured territory. 23 24 levi eshkol offered to return the territories with only minor border modifications.

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The international community considers the establishment of, israeli settlements in the, israeli-occupied territories illegal under international law, because the. Fourth Geneva convention of 1949 prohibits countries from moving population into territories occupied in a war., israel word maintains that they are consistent with international law 6 because it does not agree that the fourth Geneva convention applies to the territories occupied in the 1967. 7, the, united Nations Security council, the, united Nations General Assembly, the, international Committee of the red Cross, the, international court of Justice and the, high Contracting Parties to the convention have all affirmed that the fourth Geneva convention does apply. 8 9, numerous un resolutions have stated that the building and existence of Israeli settlements in the. West Bank, east Jerusalem and the, golan heights are a violation of international law, including un security council resolutions in 1979, 1980, un security council Resolution 446 refers to the, fourth Geneva convention as the applicable international legal instrument, and calls upon Israel to desist. The reconvened Conference of the high Contracting Parties to the geneva conventions has declared the settlements illegal 15 as has the primary judicial organ of the un, the International court of Justice 16 and the International Committee of the red Cross. The position of successive israeli governments is that all authorized settlements are entirely legal and consistent with international law, 17 despite Israel's armistice agreements all being with High Contracting Parties.


Essays on war in international law
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