(Editor's note: This essay, originally written on April 6, 1979, and later published in Shmuel Katz's book Battletruth, is just as relevant today as when it was first written.)
[The claim by the State Department's legal adviser] that Jewish settlements in the "occupied Arab lands" are illegal is a distortion both of the relevant facts and of the international agreement Israel is alleged to have contravened: the Fourth Geneva Convention of 1949, "Relative to the Protection of Civilian Persons in Time of War."
The primary fact about this convention is that it is not relevant to Jewish settlements in Judea, Samaria and Gaza nor, indeed, to the Israeli presence there. The convention's applicability is defined precisely in its second article: "The present convention," it says, "shall apply to cases of partial or total occupation of the territory of a High Contracting Party."
Now Israel did not and does not occupy the territory of a High Contracting Party. True, she wrested the territories from Jordan and Egypt, but these territories did not belong to them.
They acquired them in an act of naked aggression in their invasion of Western Palestine in 1948.
This pact does rather create a dilemma for the [State Department's] legal adviser. It leaves him without a case.
To insist that Article Two is applicable would mean explicitly to condone the 1948 aggression (about whose political and genocidal purpose the invaders made no secret at the time).
What's he to do? The Jewish settlements have to be illegal. Otherwise the Arabs will be annoyed, oil prices might go up, who knows--Saudi Arabia might initiate an embargo.
The solution turns out to be simple: Ignore Article Two, do not quote it, do not mention it, erase it.
The legal adviser consequently boldly insists that the "principles" of the convention "appear applicable whether or not Jordan and Egypt possessed legitimate sovereign rights in respect of these territories." He then announces that the paramount purpose of the convention is "protecting the civilian population of an occupied country."
Having cleared the ground of the unhelpful text of the convention itself, and having amended it to suit his purpose, the legal adviser might now reasonably be expected to follow up with his proofs that Israeli settlements do indeed interfere with, or prevent, or reduce the protection of the Arab population in Judea, Samaria, and Gaza. The reader will wait with bated breath for the lurid details. He will wait in vain. After all his labors, the legal adviser obviously discovered that Jewish settlement has not had any adverse effect on the protection of civilians in the areas. He could, of course, make some up. That kind of thing has been done before. But this is apparently no job for a legal adviser. Therefore he simply leaves the subject, claims nothing, makes no charge, and goes on to the next "proof" of Israeli illegality.
Now indeed comes his tour de force: and here he advances from mere obfuscation to somewhat blatant misrepresentation.
His "exhibit" is Article 49 of the convention-made particularly famous by much debate among international lawyers.
Article 49 had a special history and a specific purpose. It was designed to proscribe actions of a specific nature that had characterized the Nazi occupation in Europe. They had deported people, sometimes whole communities, some to Germany, others to occupied territory, some to labor as slaves, some to be killed.
The first paragraph of Article 49 therefore lays down that: "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motives."
In some cases, the Nazis transferred Germans into the occupied territories to replace and "inherit" from the expelled local population.
The last paragraph of the Article, therefore, proceeds to prohibit this type of action. Paragraph 6 says: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
It is on this sixth paragraph of Article 49 that the U.S. Government hangs its charge of illegality against Jewish settlement in Judea, Samaria, Gaza, Sinai and the Golan Heights.
The legal adviser obviously realizes that the bare text itself (about deportation or transfer of parts of a civilian population) is hardly a reasonable description of how the groups of young Jewish men and women went up to the Golan Heights, and down to the Jordan Valley and on to the bare hills of Samaria.
Without noticeably blinking an eyelid, he, there-
(Continued on p.12)
July-August 1999 - 11 - Outpost