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The forced transfer of Palestinian detainees — why it matters

International law is clear that prisoners should not be transferred outside of an occupied territory — both to allow their families access to them and to prevent forced population transfer. But that’s not all that’s at stake.

By Gerard Horton

Ayalon prison facility, near the city of Ramla (photo: Activestills)

Israel’s Ayalon prison facility, inside the Green Line. (File photo by Activestills)

Palestinian children detained in the Israeli military detention system should be held in facilities located in Palestine, as opposed to Israel, in accordance with international law, UNICEF recommended in its 2013 report, Children in Israeli Military Detention (2013).

The latest figures released by the Israeli Prison Service (IPS) indicate that since UNICEF made this recommendation the percentage of Palestinian children being transferred to prison facilities inside Israel has actually gone up. To make matters worse, the military authorities have informed the UN agency that they have no intention of changing the policy.

Does this matter?

To answer the question – does it matter? – it is worth briefly considering the legal provisions that prohibit transfer and understand why they were thought necessary in the first place. Article 76 of the Fourth Geneva Convention (the Convention) (see also Article 49) specifically prohibits the transfer of protected persons accused or convicted of offences from occupied territory.

It is unnecessary to consider whether or not the Convention applies to the Israeli/Palestinian conflict or the status of Palestine as occupied territory as both these issues have been authoritatively determined by the UN Security Council in legally binding resolutions putting the question beyond any reasonable dispute.

The articles of the Convention are accompanied by a commentary provided by the International Committee of the Red Cross (ICRC), whose role includes monitoring compliance of warring parties with the Convention. The commentary makes it clear that the prohibition against transferring protected persons from occupied territory, for whatever reason, stems from the experiences of the Second World War when mass transfers in Europe were commonplace.

Determined to avoid repeating these experiences, the authors of the Convention voted unanimously in favor of prohibiting unlawful deportation or transfer, including the transfer of detainees, and designated the practice as a “grave breach” of the Convention requiring severe penal sanctions as a deterrent.

In order to appreciate just how serious some signatories to the Convention view the practice of unlawfully deporting or transferring protected persons, legislators have passed laws which provide that any person who commits, or aids, abets or procures the commission by any other person of a “grave breach” is liable to imprisonment for a term not exceeding 30 years if convicted.

Similarly, the Rome Statute of the International Criminal Court, acceded to by Palestine earlier this year, lists the unlawful deportation or transfer or unlawful confinement of protected persons as a war crime requiring heavy sanction.

Anyone considering this issue with an open mind will be curious to know how the Israeli authorities justify a policy that commenced in 1967 and which currently affects between 7,000 to 8,000 detainees, including minors, each year.

The explanation can be found in two decisions of the Supreme Court handed down in 1988 (Sejadia case) and 2010 (Yesh Din case). In both cases the Court rejected the petitions filed on behalf of the detainees based on the primacy of Israeli domestic law (which authorises transfer) over provisions of international law (which prohibits transfer) where the two bodies of law directly contradict each other – as in this case. However, the position taken by the Court is unsustainable under international law by virtue of Article 27 of the Vienna Convention on the Law of Treaties which states that a party may not invoke the provisions of its internal law as justification for a failure to perform a treaty obligation.

But again, why does any of this matter?

Putting aside the question of whether the policy makes it more difficult for Palestinian families from the West Bank to visit loved ones held in detention facilities inside Israel, the issue matters because a violation of the Convention of this magnitude and duration undermines the credibility of the international legal order and its institutions with adverse implications for the rule of law in the region and beyond.

Alleged war crimes should either be investigated without fear or favor wherever they occur, or we must accept the risk that inaction will eventually destroy the legal order established at the end of the Second World War, and abandon whatever lessons we may have learned from that conflict.

A group of lawyers recently raised these concerns in a letter to various diplomatic missions. We believe the letter deserves an answer because unlike most issues related to the Israeli/Palestinian conflict, this one includes no dispute of fact. It is also apparent that if politics and the law continuously fail to deliver just solutions, societies will inevitably look elsewhere for answers.

Gerard Horton is a lawyer and co-founder of Military Court Watch.

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    COMMENTS

    1. Ginger Eis

      Dear Gerard Horton,

      This has got to be one of one of the worst legal analysis by a lawyer I have ever read. The legal basis/premise of your article is FALSE, while the correct legal basis and the analysis thereof are completely absent! As such, the conclusions you drew are unsupported by legal science and without legal merit. Embarrassingly enough, my learned friend, Gerard Horton, you also cite no Authority, but instead relied on “the recommendations” of UNICEF (!) for guidance as to the applicable law and the interpretations thereof.

      Unlike Articles 41 and 42, GC IV, Article 78(1) relates to people who have not been guilty of any infringement of the penal provisions enacted by the OP (Occupying Power), but that Power may consider them dangerous to its security and is consequently entitled to restrict their freedom of action only within the frontiers of the OT (Occupied Territory).

      Articles 41, 42 and 43, GC IV, specify the circumstances under which a party may resort to internment. Article 41 provides: Should the Power in whose hands protected persons may be consider the measure of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordant with provisions of Article 42 and 43. Assigned residence consist of moving people from their domicile and forcing them to live, as long as the circumstances justifying such action continue o exist, in a locality which is generally out of the way and where supervision is more easily exercised.

      Article 42, GC IV provides: The internment or placing in assigned residence op protected person may be ordered only if the security of the Detaining Power makes it absolutely necessary. Internment is permitted only in cases of absolute necessity, and is, to a large extent, up to the Party exercising this right to determine the (apolitical!) activities that are prejudicial to the external or internal security of the State.

      Civilians interned in accordance with Articles 5, 27 or 42, GC IV, should be granted the procedural rights set forth in Article 43, GC IV. Palestinian Arabs detained in the Jewish State for criminal/security offences are entitled to MORE rights than the rights guaranteed in Article 43, GC IV. That’s to be applauded.

      ACCORDINGLY,

      Your claim that, under International law, internment of protected person is not allowed WITHIN the territory of the Protecting Power is unsupported by legal science, completely lacks legal merit and is, as such, flat-out nonsense! The rest of your claim re the “territory of Palestine” is of political nature. I will leave it un-discussed since no legally binding determination has been made as to what constitutes that territory, (see in this regard: UNSC Resolution 242).

      Reply to Comment
      • Yeah, Right

        So many mistakes….

        GE: ….”Articles 41, 42 and 43, GC IV,”… do not relate to an occupied territory, and therefore those articles (which relate to “internment”) are inapplicable to the detention of any protected persons in the West Bank accused of crimes against the occupying power.

        GE: ….”Your claim that, under International law, internment of protected person is not allowed WITHIN the territory of the Protecting Power is unsupported by legal science,”…. hands up anyone who can identify the howler in that sentence?

        You. Yes, you up the back.

        Correct! Israel is the “occupying power”, and where it detains those who are subject to its belligerent occupation then it is also the “detaining power”.

        But it is not the “protecting power”. That Ginger can make such a glaring mistake tells us pretty much all we need to know regarding her competence.

        NB: note that Ginger is also incorrect in claiming that this article is “unsupported by legal science”. The article itself points to the relevent court cases i.e. the Sejadia case and the Yesh Din case.

        In both cases no less an authority than the Israel High Court of Justice accepted that International Law says exactly what this author claims it says i.e. that international law prohibits the forcible transfer of detainees out of an occupied territory.

        Apparently that point eluded Ginger’s rant.

        Reply to Comment
        • Merkava

          This donkey-head who posts as Johnboy but now oddly enough calls himself “yeahright” is still as confused as ever. Though having ZERO formal knowledge of the law, he however wallows in his delusions that his personal and underbelly feelings expressed in rowdy and incoherent mumbo jumbo are in fact the law. Lets take a look at just two of his ramblings:

          1. “yeahright”
          “Articles 41, 42 and 43, GC IV,”… do not relate to an occupied territory, and therefore those articles (which relate to “internment”) are inapplicable to the detention of any protected persons in the West Bank accused of crimes against the occupying power”.

          Apparently, donkey-head thinks that those provisions relate to the Mars and to the Marsians. Indeed this donkey-head is extremely smart – a genius!

          2. “yeahright”
          “NB: note that Ginger is also incorrect in claiming that this article is “unsupported by legal science”. The article itself points to the relevent court cases i.e. the Sejadia case and the Yesh Din case. In both cases no less an authority than the Israel High Court of Justice accepted that International Law says exactly what this author claims it says i.e. that international law prohibits the forcible transfer of detainees out of an occupied territory.”

          BUT the article itself CONTRADICTS “yeahright”. Here is what the article says:
          “The explanation can be found in two decisions of the Supreme Court handed down in 1988 (Sejadia case) and 2010 (Yesh Din case). In both cases the Court REJECTED the petitions filed on behalf of the detainees based on the primacy of Israeli domestic law (which authorises transfer) over provisions of international law (which prohibits transfer) where the two bodies of law directly contradict each other – as in this case.”

          Does “yeahright” not understand that the Supreme Court in the Sejedia case or any other case NEVER – as he claims – “ACCEPTED that International Law says exactly what this author claims it says i.e. that international law prohibits the forcible transfer of detainees out of an occupied territory”, and that the judgment of the Supreme Court is NOT – as the author claims – “based on the primacy of Israeli domestic law (which authorises transfer) over provisions of international law (which prohibits transfer)?

          What kind of a fool are you, “yeahright”?

          Reply to Comment
          • Yeah, Right

            Merkava: “Apparently, donkey-head thinks that those provisions relate to the Mars and to the Marsians”

            No, actually. Articles 1 through 46 relate to:
            a) GENERAL PROVISIONS (Art 1 – 12)
            b) GENERAL PROTECTION OF POPULATIONS AGAINST CERTAIN CONSEQUENCES OF WAR (Art 13 – 26)
            c) STATUS AND TREATMENT OF PROTECTED PERSONS (Art 27 – 34)
            d) ALIENS IN THE TERRITORY OF A PARTY TO THE CONFLICT (Art 35 – 46)

            It’s not until you go past all those articles that you get to:
            e) OCCUPIED TERRITORIES (Art 47 – 78)

            Get it?

            The Geneva Conventions relate to ARMED CONFLICT, and a belligerent occupation is merely one aspect – a very particular aspect, because it is the only one that continues to apply After The Shooting Stops.

            And because a belligerent occupation is such a peculiar aspect of ARMED CONFLICT it is one where different provisions of the convention (i.e. articles 47 – 78) are uniquely applicable.

            You *have* read it, haven’t you?

            Apparently not….

            Reply to Comment
          • Yeah, Right

            I’m genuinely curious, Merkava: why did you think that the IHCJ had to make the point that “Nevertheless, there is no dispute that when a provision of specific law in the internal Israeli law stands against the rules of international law, including when the reference is to customary law, the Israeli law prevails”?

            No,really, I’d like to know what you understand to mean by the phrase “stands against the rules of international law”?

            Because my understanding is that this means “OK, fine, it’s prohibited by int’l law, but that’s Okey-Dokey because Israel has overridden that prohibition by a piece o’ domestic legislation”.

            You think it means something else? Pray tell….

            Reply to Comment
          • Merkava

            Your capitalized rambling mumbo jumbo does not make sense. Lets simplify it for you. You claimed:

            ”Articles 41, 42 and 43, GC IV,”… do not relate to an occupied territory, and therefore those articles (which relate to “internment”) are inapplicable to the detention of any protected persons in the West Bank accused of crimes against the occupying power”.

            QUESTIONS

            1. What is YOUR source for that idiotic claim?

            2. If ”Articles 41, 42 and 43, GC IV,”… do not relate to an occupied territory”, to which territory do they relate?

            Pls. answer ONLY the questions. Long tell tales are not needed. We will get to all your questions one-by-one, step-by-step.

            Reply to Comment
          • Yeah, Right

            *chortle* Too funny. My argumentative little friend insists on outing himself as A Person Who Won’t Read The Convention But Insists On Being An Expert On Them.

            Witness…..

            Merkava: “QUESTIONS”

            “1. What is YOUR source for that idiotic claim?”

            Well, gosh, my source is the document that is called “Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12, 1949”

            You know, the one that puts articles 41-43 in the section that is headed “Aliens in the Territory of a Party to the Conflict”, whereas Article 49, Article 76 and Article 78 are in the section that is headed “Occupied Territory”.

            But if the source text itself isn’t good enough for you (and why, exactly, wouldn’t that be good enough for anyone) I’ll point him to another nifty-neat-o
            source i.e. The Israel High Court of Justice, who in the Ajuri case (2002) mulled how and why an occupying power can intern and/or “assign residence” to a protected person inside an occupied territory.

            Their ruling?

            They ruled that the source of authority for an occupying power resides in Article 78 of Geneva Convention IV, while Article 41-43 get Not One Single Mention anywhere in that ruling.

            Merkava: “2. If ”Articles 41, 42 and 43, GC IV,”… do not relate to an occupied territory”, to which territory do they relate?”

            I’ve just told you: they relate to “Aliens in the Territory of a Party to the Conflict”, which in this case would be “Aliens in Israel”.

            Get it?

            No, of course you don’t, because you can’t read.

            Here, let me spell it out: Articles 41-43 (indeed, all of Section II) deal with What Israel Can Do With Aliens Inside Israel When Israel Goes A’ Marching Merrily Off To War.

            As in: Israel can intern them for the duration of that conflict.

            But Israel can’t point to Articles 41-43 to “Ginger-Justify” taking a Palestinian and shoving them inside a prison inside Israel.

            It can’t, because THAT is covered (IHCJ-style) by the authority that resides in Article 78, which IN TURN is constrained by the prohibition on forcible transfer (Art 49) and the provision that all prisoners must serve their sentence inside the occupied territory (Art 76).

            Merkava: “Pls. answer ONLY the questions”

            Done And Dusted.

            Reply to Comment
          • Merkava

            1. “Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12, 1949” – does NOT make the idiotic claim you make!

            2. The Israeli Supreme Court – does NOT make the idiotic claim you make!

            3. In fact, The Commentaries relied on by the Gerard Horton CONTRADICTS you:

            Commentary to Article 4 states:

            “A.-On the territory of belligerent States :protection is accorded under Article 4 to all persons of foreign nationality and to persons without any nationality. The following are, however, excluded :
            (1) Nationals of a State which is not bound by the convention ;
            (2) Nationals of a neutral or co-belligerent State, so long as the State in question has normal diplomatic representation in the State in whose territory they are ;
            (3) Persons covered by the definition given above under A who enjoy protection under one of the other three Geneva Conventions of August 12, 1949.
            B.-In occupied territories; protection is accorded to all persons who are not of the nationality of the occupying State. The following are, however, excluded :
            (1)Nationals of a State which is not party to the Convention.
            (2) Nationals of a co-belligerent State, so long as the State in question has normal diplomatic representation in the occupying State.
            (3) Persons covered by the definition given above under B who enjoy protection under one of the three other Geneva Conventions of August 12, 1949. “

            Commentary to Articles 41, 42 and 43 states:

            “These three Articles apply solely to protected persons as defined in Article 4 of the Convention”.

            Do you see why you are a complete idiot? I do not ask questions I do not know the answers to, but because your are as dumb as a rock, you scream, rant and ramble without thinking like a mad buffoon.

            Reply to Comment
          • Yeah, Right

            Merkava: “Commentary to Articles 41, 42 and 43 states: ‘These three Articles apply solely to protected persons as defined in Article 4 of the Convention’. ”

            I shall now ask members of the audience to spot the very, very crude sleight of hand that Merkava just pulled.

            Anyone?

            Correct! He asked me about the TERRITORY in which Articles 41, 42 and 43 applied, and when I shot him down in flames he suddenly decides to argue about the PERSONS to whom Articles 41, 42 and 43 applies.

            Apples and oranges. Obfuscation Counter Set To Maximum. Wave Your Arms About And Hope That Gets You Past Your Embarrasment.

            Regardless, I am correct on both counts i.e. Articles 41, 42 and 43 applies to “ALIENS IN THE TERRITORY OF A PARTY TO THE CONFLICT”.

            We know that for a fact, because the title of the section that contains those articles is…… “ALIENS IN THE TERRITORY OF A PARTY TO THE CONFLICT”.

            Those aliens are protected persons, I hear Merkava ask?

            Yep, they most certainly are, because they are not citizens of that “party to the conflict”.

            Because – du’oh! – if they were then they wouldn’t be “aliens”.

            Merkava: “Do you see why you are a complete idiot?”

            Oh, there is a complete idiot running around in this forum. Two, in fact, but neither of them is me.

            Look at the title again, stupid: ALIENS IN THE TERRITORY OF A PARTY TO THE CONFLICT.

            That section is – quite indisputably – talking about what a belligerent can do with the protected persons (= “aliens”) that it finds inside its own territory when a war breaks out.

            And that section says: that belligerent can intern those aliens, and/or it can “assign residence”, but it can not treat them as prisoners nor can it insist that they are criminals merely by dint of them being there.

            That’s **all** that that sections is about. Nothing more. No less.

            It is therefore completely inapplicable to a situation where the Persons Who Need Protecting happen to be subject to a belligerent occupation, and who They Need Protecting From is the army that has invaded their territory and imposed a belligerent occupation on them.

            In **that** situation then the relevent protections are to be found in Articles 47 to 78, and in particlar the rules pertaining to “detention” and “imprisonment” are Articles 64-77, and the article relating to “assigned residence” is to be found in Article 78.

            Or I can just give you the short version: Both Ginger And You Are Utterly And Completely Wrong.

            Reply to Comment
          • Israel

            “Both Ginger And You Are Utterly And Completely Wrong.”

            Ginger Lies and “Merkava” are the same person.

            Reply to Comment
          • Yeah, Right

            No I doubt it.

            But I don’t much doubt that Lion Of Judea and Merkava are cookie-cutter creations.

            Reply to Comment
          • Yeah, Right

            Merkava: “1. “Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12, 1949” – does NOT make the idiotic claim you make!”

            Read the section title: ALIENS IN THE TERRITORY OF A PARTY TO THE CONFLICT.

            Read it, dummy. Mull the meaning of the words.

            You. Are. Wrong.

            Merkava: “2. The Israeli Supreme Court – does NOT make the idiotic claim you make!”

            Read the judgment in the Ajuri case (2002): “Article 78 of the Fourth Geneva Convention empowers an occupying power to assign the place of residence of an individual for imperative reasons of security.”

            Not Article 41. Not Article 42. Not Article 43.

            No. The authority that an occupying power has to intern or assign residence derives from Article 78.

            You. Are. Wrong.

            Reply to Comment
          • Lion Of Judah

            The donkey is obviously rattled.

            Good take-down, Merkava. Combat 101 at its best!

            Reply to Comment
      • Yeah, Right

        The most glaring mistake of all…..

        GE: “Articles 41, 42 and 43, GC IV, specify the circumstances under which a party may resort to internment.”

        Ginger appears not to bother to read the section titles, because if she did then she’d notice that Article 41-43 lies in the section “Aliens in the Territory of a Party to the Conflict”.

        The West Bank is not, of course, “Israeli territory”.

        Therefore Israel can not use Articles 41-43 to “intern” or “assign residence” to Palestinians who reside in the West Bank.

        Israel only has resort to Article 78, because this is an occupied territory and Article 78 (unlike Articles 41-43) lies within the section “Occupied territory”.

        But then so does Article 49 (prohibits the forcible transfer out of an occupied territory), as does Article 76 (detention and/or imprisonment must take place inside the occupied territory).

        So while Article 78 allows internment or “assigned residence”, Articles 49 and 76 requires that any such be inside the occupied territory itself.

        Q: Says who?
        A: Says the Israel High Court of Justice (Ajuri case, 2002) “Judaea and Samaria and the Gaza Strip are effectively one territory subject to one belligerent occupation by one occupying power, and they are regarded as one entity by all concerned, as can be seen, inter alia, from the Israeli-Palestinian interim agreements. Consequently, ordering a resident of Judaea and Samaria to live in the Gaza Strip amounts to assigned residence permitted under art. 78 of the Fourth Geneva Convention, and not to a deportation forbidden under art. 49 of the Fourth Geneva Convention.”

        There is no question – none whatsoever – that according to that judgement the court considers that any military order that would “assign residence” anywhere outside of the occupied Palestinian territories to be “a deportation forbidden under art. 49 of the Fourth Geneva Convention”.

        With that Ginger’s entire argument falls to the ground i.e. she can’t argue that this current situation of imprisoning Palestinians inside Israel is merely a practice of “resorting to internment”

        Which leaves only the penal provisions of Section III, and that runs into Article 76 and its unambiguous statement that detention and imprisonment must take place inside the occupied territory itself – hence the IHCJ having to resort to its ludicrous “our laws trump your law” judgment in the Sejadia and Yesh Din cases.

        Reply to Comment
      • andrew r

        Wow Ginger, I bet you’re so not raving like this when – for example – someone argues the LoN Mandate for Palestine obligated Britain to permit unrestricted Jewish immigration. Or that Arab rejection of the UN Partition plan gave the Zionists carte blanche to create their own regime in Palestine which would deny citizenship and return to the Palestinian refugees. Or that Palestinian citizenship didn’t exist because there was never a Palestinian state.

        When have you ever given a crap about legal falsehoods that weren’t used to defend the Zionist ethnic cleansing of Palestine?

        Reply to Comment
    2. Ginger Eis

      “It is unnecessary to consider whether or not the Convention applies to the Israeli/Palestinian conflict or the status of Palestine as occupied territory as both these issues have been authoritatively determined by the UN Security Council in legally binding resolution putting the question beyond any reasonable dispute.”

      That is another quite embarrassing falsehood. (1) The Geneva Conventions are applicable in ALL international armed conflicts, incl. the Arab-Israeli conflict, because it is an integral part of CIL and, in the case of Arab-Israeli conflict, because Israel is Party to that Convention. (2) The UNSC has NO authority to declare the Geneva Conventions or any Conventions/Bilateral or Multilateral Treaties (e.g. the Rome Statute of the ICC, the ICCPR, etc.) binding on anyone or any State. The would be a major violation of UN-Chatter itself. (3)There is NO UNSC-Resolution stating that “the (Geneva) Convention applies to the Israeli/Palestinian conflict”. (4) the UNSC has not recognized “Palestine”.

      This article is simply put – a disaster. Beneath what would ordinarily be expected of a lawyer.

      Reply to Comment
    3. bryan

      I defer to the legal genius of commentators here – though I have yet to see a legal-eagle so inarticulate that he is forced to refer to his opponent as “donkey-head” and repeatedly resorts to accusations of “rowdy and incoherent mumbo-jumbo”. However let me see if I have this right?: Israeli domestic law applies throughout the occupied territories – roll on the elections, the rule of law, a proper civilian policing of all inhabitants and just compensation for all victims of army violence. Well done guys – you have just solved a supposedly thorny and intractable conflict. Long Live the Single State Solution, Good Bye to archaic legal systems like the British emergency regulations that justified colonial oppression and the Ottoman and Jordanian land-ownership systems that permit the expropriation of public land for a privileged elite of colonisers. Hello Twenty-First Century!

      Please tell me that my fears that Israeli law only applies when government ministers want it to apply is misguided.

      Reply to Comment
      • Merkava

        Another rambling mumbo jumbo from BEN. Fortunately or unfortunately BEN, after taking in major hits after hits, has disappeared, melted away and metamorphose into his aliases Bryan alias Brian, alias “Israel” alias “AndrewR” alias BruceGould, alias etc. hallucinating and shouting “long live the Single State Solution”. Keep hallucinating, BEN…eh…sorry…BRYAN! But your anti-Semitic wetdreams are just what they are: dreams!

        All your Muslim-Arab brothers have to do is to accept Two States for Two Peoples: an ARAB State and a JEWISH State. ARAB-State means: “the Nation-State of the Arabs”. JEWISH State means: “the Nation-State of the Jewish people. Until the Arabs accept that, there will neither be a “One State” or “two States” and there is NOTHING you can do about it. You get that? Israel has offered the Palestinians (a) 100% of Gaza, (b) 100% equivalent of the West Bank, (c) Arab neighborhoods in East Jerusalem as their Capital, (d) shared sovereignty of the holy basin! There is no reason why the Palestinians cannot have their own state there. But, the Palestinian leadership rejected all that, because (e) they did not get to flood Israel with Arab refugees and use it to alter the demographic balance in the Jewish State and in the end achieve what they militarily could not: two states: one ARAB State and one ARAB State, with the Jewish State gone. Perhaps you can convince your Muslim-Arab brothers of the folly of their ways and their advantage in making peace by accept a Jewish state living side by side with an Arab State in peace?

        Reply to Comment
      • Yeah, Right

        Nah, the trick is more convoluted than that: the IHCJ accepts that Israeli domestic law does not apply inside the West Bank ( see Beit Sourik and also Alfei Menashe).

        So what the court is actually ruling on is whether an IDF Military Order is within the legal authority of the commander who issues that order.

        And if that military order is “legal” under the Hague Regs or GCIV then – great! – the court will simply say that and dismiss the case.

        But what if that Military Order is clearly and unambiguously prohibited by those int’l treaties?

        Then the court simply waves its hands and says that the Knesset has granted the IDF that authority. And since it is obvious – who could doubt this? – that an authority granted *by* the Knesset trumps a prohibition that is contained in an int’l treaty then – viola! -problem solved, case dismissed.

        So it’s not a matter of an Israeli law that is “applied to the West Bank” so much as it is an authority “granted to the IDF” which the commander carries with him wherever he goes.

        That’s the difference, and it is one that is i.n.t.e.n.d.e.d. to confuse.

        Reply to Comment
        • bryan

          Thanks for the clarification, Yeah Right. So are you saying that if an Israeli general, or corporal or private, turns up on British or American soil, he stills carries around Israeli law in his knapsack?: surely this is a recipe for anarchy and war crimes and gross injustice? Surely Israel has territoriality (however ill-defined the “state” may be) and crimes outside those borders must be answerable to some authority – or do they just have carte blanche to do whatever the hell they like?

          Reply to Comment
          • Yeah, Right

            No, not on British or US soil, precisely because the IDF does not claim to possess any “authority” over those territories.

            But anywhere that the IDF has invaded and subsequently holds onto at the point of a gun, yes, the same trick will apply there too i.e. according to the IHCJ the Knesset can grant absolution to any Israeli war crime by simply passing a law to that effect, because as far as the court is concerned that Knesset legislation absolutely trumps the Geneva Conventions.

            Reply to Comment
        • bryan

          @yeah right – to clarify: are you saying (though I know you are far too much a gentleman and a scholar to put it in such words) – as long as the lunatics keep control of the asylum, they can get away with murder?

          Reply to Comment
          • Merkava

            Knock off your idiocy, Bryan BEN “Zakkai” “Israel”, you psychotic lunatic. We know that you create fictitious “Israelis” to post what YOU consider strange stuff on this site in order to elicit responses and then come back to attack the fake persona YOU created! Donkey-head might get played by you, but we aren’t.

            Go take your meds, psycho!

            Reply to Comment
    4. Herbert Gotesborg

      Article 80 of the UN Charter preserves intact all the rights granted to Jews under the Mandate for Palestine, even after the Mandate’s expiry on May 14-15, 1948. Under this provision of international law, Jewish rights to settle in Palestine were not to be altered in any way unless there had been an intervening trusteeship agreement between the states or parties concerned (of which there were not).

      Therefore, Israel has the right to settle Jews on the entire mandate territory regardless of what the security council subsequently votes. Even the security council has no right to change the fundamental articles of the UN Charter.

      Reply to Comment
      • andrew r

        No international convention permitted the Haganah to shell Palestinian villages and its political leadership to bar the return of those who fled as a result.

        While we’re on the subject, you know how Israel’s defenders like to bitch and moan about UN Resolutions because the UN is stacked with Arab/Islamic states? No one should take the LoN seriously on the same basis, given that the imperialist powers which won WWI were simply awarding themselves territory. In fact France had not even physically occupied Syria when it was awarded that country in the San Remo conference. The Mandate system was a bad joke for which Middle Easterners are still paying the price.

        Reply to Comment
      • Yeah, Right

        I have two comments, Herbert.

        1) Even if we accept as true that there is a perpetual and irrevocable “Jewish right” to this land, why does that have any relevance to an ISRAELI practice of violating the Geneva Conventions with regard to its practice of the forcible transfer of Palestinian prisoners?

        2) There is no such “Jewish right” deriving from Article 80.

        After all, it contains this phrase: “nothing in this chapter”…..

        Q: Which chapter is that?
        A: The chapter detailing the transfer of LoN Mandates to UN Trusteeships.

        And since Palestine was not intended to be transferred to a Trustee then, so very sorry, ” nothing in that chapter” was ever applicable to Palestine including, inter alia, Article 80.

        You have read it yourself, correct? Or did you just Merkava-read it?

        Reply to Comment
        • Merkava

          Israel has every right to put to trial, convict and imprison in Israel those who come to Israel and commit crimes inside Israel regardless of whether they come from Lebanon, Gaza, Belgium, Egypt, West Bank, UK, etc. The Fourth Geneva Convention does not forbid that. You do not disagree with that, or do you, donkey-head?!

          Reply to Comment
          • Lion Of Judah

            I am afraid the donkey is still rattled and confused, Merkava. He might take a week to figure out simple answer to your very simple question and when he “answers”, he will not answer your question but instead repeat the same long monologue of the same tiresome story he has been telling all along over and over again. I suspect he realizes that there would be follow-up questions after he “answers”. That might explain his hesitation to enter the battle field once again. He is afraid of another take-down.

            Reply to Comment
          • Yeah, Right

            Yeah, LoJ that.must be the only possible explanation.

            After all,it’s not as if there are any significant religious holidays going on in December….

            And as for your “simple” challenge, the simple answer is that Merkava committed a non-sequitor.

            As in: these Palestinians are detained for crimes carried out inside the West Bank, which isn’t “in Israel”.

            Reply to Comment
          • Lion Of Judah

            I told you, Merkava! The donkey is still rattled, confused and afraid. He is refusing to answer your very simple question.

            Reply to Comment
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