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“International Law Expert: Israel Is Not an “Occupier.”


A few days ago, a video interview with Alan Baker, Israel’s former ambassador to Canada (as well as military prosecutor and senior legal adviser in the Israeli army’s international law division), was released, under the title: “International Law Expert: Israel Is Not an “Occupier.”
In the interview, released by the Jerusalem Center for Public Affairs, Baker makes the essential claim that Israel is not an occupier, because he says that international law defines occupation as “one power occupying the lands of a foreign sovereign”. But Article 42 of the 1907 Hague Regulations (HR) states that a “territory is considered occupied when it is actually placed under the authority of the hostile army,” and according to their common Article 2, the four Geneva Conventions of 1949 apply to any territory occupied during international hostilities. Baker calls the West Bank “disputed territory,” as does Israel’s Prime Minister Benjamin Netanyahu.
Baker uses the claim that “Jordan was never recognised as a sovereign in the area,” that is, that its annexation was not recognised. But Jordan was de facto controlling the West Bank. Take Israel’s annexation of East Jerusalem, which is deemed illegal by the UN. If any state would act in aggression against Israel and conquer East Jerusalem from it, would we be in doubt that it was Israel that was being attacked, just because its annexed territory was not recognised?

Then Baker goes quasi-religious, very early into the video. “Anyone who reads the bible can appreciate the fact that there are very solid historic and legal bases to the claim of Israel with respect to the territory.”
Not only is the bible not a history book – it is certainly not a legal deed of any relevant kind in the modern legal world.
It is interesting, indeed astonishing, how quickly Zionist pundits and leaders jump to the bible in their attempts to justify the claim to the land at the expense of its actual inhabitants; as I have noted, David Ben-Gurion referring to the bible as “our deed” (speaking to the Royal Peel Commission late 1930’s).
Baker refers to occupied land that is not private: “If the land is not private, the administering power can use the land and enjoy the fruits of the land, for as long as the area has been finally determined with respect to its sovereignty”. Here he extends on the claim that it is not “occupied”, merely “administered”. In so doing, he downplays the fact that Israel plunders the resources literally under the feet of the Palestinians it is obliged to provide for as an occupying power (even if it were only “administering”). One of the most extreme examples of this is water. Israel exploits roughly 85% of the West Bank aquifer. Whilst settlers consume about 300 liters each per day (about double the London average), Palestinians have to make do with about 70 liters, well under the WHO minimum. Amira Hass wrote recently: “Israel Incapable of Telling Truth About Water It Steals From Palestinians – Water is the only issue in which Israel (still) finds it difficult to defend its discriminatory, oppressive and destructive policy with pretexts of security and God.”
“Nobody can claim [the settlements] are illegitimate, and nobody can claim that they are illegal,” Baker says, after noting the American Secretary of State’s critique. But indeed, the whole world sees the settlements as illegal and illegitimate – with the US applying the softer term of “obstacle to peace.” They are not only violating the Fourth Geneva convention’s article 49 (which Baker suggests doesn’t apply here), they are creating facts on the ground. If settlements were such a “temporary issue,” merely some adventurous people building weekend huts to enjoy Palestine whilst it lasts and whilst negotiations take place – why do the settlements appear every time in these negotiations as matters which the Palestinian must offer “concessions” on? Why not just evacuate them all at once, if it was so easy?
Finally, Baker ends his tour de force with “There is no such thing as 1967 borders.” On this point he is completely right. He notes that these are ceasefire lines, and claims that the Jordanians wanted them to be so, requiring that the armistice demarcation lines not be regarded as final borders, awaiting peaceful negotiations. But the mirror image is worth looking into:
Israel has never declared its borders publicly. In 1948, just before the Declaration of Independence, Jewish Agency Eliahu Sasson communicated very clearly to President Truman that the borders of Israel would be those of the 1947 UN “Partition Plan.” Truman was clearly worried about the designs of the Zionists. Israel lightly referred to the UN Partition Plan in its Declaration, but not to its borders. By 1949 it took on an additional 22% of Palestine (the Partition Plan had appropriated 56% of the territory), reaching 78% of historical Palestine. No borders were delineated – also because Israel had not “finished the job”. The “whole of Eretz Israel” was the clear ambition of Ben-Gurion and the Zionists, and in 1967 they got a chance to “finish the job”.
And still, borders were not delineated – for Israel would not annex West Bank and Gaza, because of the “demographic issue.” East Jerusalem – yes. Golan – yes (in 1981, after an initial ethnic cleansing campaign of about 124,000 out of the 130,000 Syrians, and destruction of 200 villages). So Israel is not done expanding. This is really the whole issue. And Baker is right on the 1967 borders: Israel simply has no borders, it never marked them.
The whole world recognizes that Israel is an occupying power. This is completely uncontroversial. We could discuss this at length, but to blow out of the water once and for all Baker’s bizarre twist, we could just cut through to the following: Israel’s leading judicial authorities, such as former Supreme Court Justice Meir Shamgar (see the documentary The Law in These Parts), distinctly regard Israel’s occupation as a belligerent occupation. Without this definition under international law, Israel could not be applying the network of military rule that it applies, with all its inherent subjugation. As Shamgar notes, you cannot annex a territory without its people. In other words, were the occupied territories to be annexed (as Israel did unilaterally with East Jerusalem), Israel would have to take its people with the territory. In terms of civilian governance, that means, make them citizens of the state (in East Jerusalem this was also compromised with the special “residence permit” given to East Jerusalem Palestinians and not Jewish settlers).
But as is widely understood, and as reflected in Israel’s second prime minister Moshe Sharett’s words, the absorption of a “”substantial Arab [Palestinian] population” is unwanted by Zionists. As “centrist” Member of Knesset Yair Lapid bluntly puts it: “maximum Jews on maximum land with maximum security and with minimum Palestinians.”
“Wenn ihr wollt, ist es kein Märchen” – “If you will it, it is no dream”, wrote Zionist founder Theodore Herzl in his 1902 novel Altneuland (Old, New Land).
This has become the most famous mantra for the Zionist adventurism. An adventurism which Sharett regarded with the following, candid statement: “I have learned that the state of Israel cannot be ruled in our generation without deceit and adventurism. These are historical facts that cannot be altered” (in Simha Flapan, The Birth of Israel, Myths and Realities). In a meeting in 1950, when Moshe Dayan aired the desire to conquer the West Bank from Jordan, Sharett said that “The State of Israel will not get embroiled in military adventurism by deliberately taking the initiative to capture territories and expand. Israel would not do that, both because we cannot afford to be accused by the world of aggression and because we cannot, for security and social reasons, absorb in our midst a substantial Arab population…We cannot sacrifice Jewish fighters, nor can we harm other in arbitrary fashion merely in order to satisfy the appetite of expansion.”
Oh, but all that did happen. And the adventurism is not only about expansion – it is about spinning and twisting international law to serve this adventurism – with deceit.
In 1967 Israel took on the adventurism which even some of its own leaders first feared (after having ethnically cleansed most of the territory from most of the Palestinians in 1948) – the conquering of further territory with a large Palestinian population, one which now, with Israel’s Palestinian citizens combined, counts as many Jews as non-Jews, despite various and ongoing campaigns of ethnic cleansing since.
Israel tries to hide these occupations in various ways, with various spins.
In 2005, Israel, under PM Ariel Sharon, did the famous “disengagement” from Gaza, the “significance” of which was elucidated by Sharon’s security adviser Dov Weisglass as “the freezing of the peace process.” Yet even this “disengagement” proved to be mere spin.

Whilst the Israeli government claims that Gaza is no longer occupied, both the UN, and even the United States regard it as “occupied”. 

Israel also seeks to obscure its Golan occupation. After a promising oil test drill last year, Israel worked arduously to try to have the United States endorse its illegal annexation of the Syrian Golan, also conquered in 1967. In his meeting with Obama, Netanyahu reportedly claimed that Syria was no longer a functioning state, allowing “for different thinking.” In a bizarre, first-ever cabinet meeting atop the Golan heights earlier this year, Netanyahu simply vowed that “the Golan will always remain in Israel’s hands. Israel will never withdraw from the Golan Heights.”

There’s nothing to be in doubt of regarding the Golan – it’s Syrian territory. Not “disputed territory.” Not “disengaged from” territory as Israel would have it spun in other locations it occupies. And yet, we are told in no uncertain terms – that this Syrian territory, occupied in an uncontroversial way (and illegally annexed in 1981), is part and parcel of Israel.

It is with this overview that we must look at Baker’s video, spin, and claim. Baker was part of the three-person committee (“Levy Committee”) appointed by Netanyahu in 2012 to consider the nearly 100 “outposts” in the West Bank, which the (also Likud government appointed) Sasson report of 2005 described as “all illegal.” To make this very clear, Sasson’s report treated outposts that thus even by Israeli legal authority are considered illegal, without consideration of the more established settlements which the whole world considers illegal but Israel considers legal. As Yesh Din notes:

On February 13, 2012, Prime Minister Binyamin Netanyahu and then Minister of Justice Yaakov Neeman decided to appoint a committee, chaired by the late former Supreme Court Justice Edmund Levy, to look into the status of Israeli construction in the West Bank. The background for the committee’s appointment was the GOI’s desire to find ways to avoid executing demolition and demarcation orders and “legalize” the illegal construction in the outposts.”

Whilst the earlier Sasson report critique was rather scathing, it related only to the outposts. But those settlements, which Israel has quite systematically confirmed post-facto, are part of the motor of the settlement venture as a whole. These “hilltop settlers” are part of the very “pioneering” spirit of the settlement adventurism, and resemble in no uncertain ways the “tower and stockade” method by which many Zionist settlements (which became kibbutzim and moshavim etc.) were formed. The whole spirit of the 1967 settlement was about creating facts on the ground – first “temporary” (as even Baker regards the supposedly non-existent occupation), and then permanent. Sasson’s report noted that “the government spoke in two voices on the issue of the outposts”, and that “public authorities and state agencies are involved in building unauthorized outposts” (as Yesh Din noted). Whilst not regarding the settlement project’s legality as a whole, the outposts did put the government in an uncomfortable light. If it would not implement the suggested dismantling of all these illegal outposts, this would add to its illegitimacy, and perhaps to the international sense of illegitimacy concerning Israel’s already widely condemned settlement project.

Thus the 2012 Levy committee appointed by Netanyahu was appointed to consider the issue anew. The members were former Supreme Court justice Edmund Levy, former Foreign Ministry legal adviser Alan Baker and former deputy president of the Tel Aviv District Court Tchia Shapira. In order to produce an “overview” that would divert from the aspect of the illegality mentioned by Sasson, as well as provide a more comprehensive, justifying spin on the settlement project as a whole, the committee went to criticize the whole notion of “occupied”, as Baker does in the video, and concluded that “Israelis have the legal right to settle in Judea and Samaria and the establishment of settlements cannot, in and of itself, be considered illegal”.

Whilst, as the Jerusalem Post noted, the committee acknowledged that “unauthorized Jewish building in Judea and Samaria was “carried out with the knowledge, encouragement and tacit agreement of the most senior political level – government ministers and the prime minister”, it stuck on a back door: “but, it added, the involvement of government offices and ministries in such activity means that ‘such conduct is to be seen as implied agreement.’” It concluded that this “implied agreement” opened the door for Netanyahu’s government to legalize this construction if it so chooses”.

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Schermata 2016 09 16 alle 14.35.37Last week, Al Marsad human rights organization operating in the Golan, noted the demolishing of the home of Mr. Bassam Jamil Ibrahim in the occupied Syrian Druze village of Majdal Shams, noting that “the Israeli authorities have justified the destruction of Mr. Bassam Ibrahim’s home on the basis that it was built without the necessary permit. This is the first time that the Israeli authorities have demolished a home in Madjal Shams. The destruction of this home marks the adoption of a new systematic policy of home demolitions by the Israeli authorities in the remaining Syrian villages in the Occupied Syrian Golan. The Syrian owners of dozens of other homes have been threatened with similar action.” 

The occupied Syrian Golan does not feature often in international focus upon Israel’s occupation. It seems that quite few are aware of the ethnic cleansing that took place there, too, in 1967 and shortly after, where some 124,000 out of 130,000 residents were forcefully evicted and 200 villages destroyed.

This is yet another typical picture of layer upon layer of ethnic cleansing and destruction, which characterizes the Israeli state. The destruction is not only physical, it involves a concerted campaign to destroy memory, and to spin history into oblivion. 

Tell the Palestinians in the West Bank that there’s no occupation. Tell the Gazans. Tell the Syrians. Tell everyone. There’s no occupation. Repeat it again and again. There’s no occupation. It all becomes “Israel”, and Herzl’s ‘dream’ is turned into ‘reality’ by brute force and propaganda.Schermata 2016 09 16 alle 14.36.47