Every once in a while, an article is published regarding Israel’s colonisation of Palestine, and how it isn’t really illegal after all. Normally they are filtered out as noise, but sometimes they take a prime time spot and require some fisking.

I was introduced to the article by CifWatch, a blog dedicated to promoting anti-Arab racism and devaluing the term “anti-Semitism”. I mention CifWatch’s introduction if only because it is amusing:

“Eric Rozenman, the Washington DC director of CAMERA, in an essay published today…concludes that settlements are not, in fact, illegal under international law.”

CAMERA, for those of you not aware, forms part of what we quaintly term “The Israel Lobby”. So the introduction from CifWatch is as ridiculous as writing:

“Pope Francis, the the newly elected head of the Catholic Church, in an essay published today…concludes that God, in fact, exists.”

In other words, Rozenman would not be able to hold the position he does without being able to make arguments for Israel. Now before I am accused of bashing CAMERA, I should say that I like them. Their corrections are often very factual (if biased and selective), well sourced and well argued. This, however, is one of those occasions were ideology forces Mr Rozenman to write something foolish.

Rozenman’s first assertion:

“The San Remo Treaty of 1920, in which the victorious World War I allies dealt with the remnants of the defeated Ottoman Turkish Empire, created an entity called Palestine along both sides of the Jordan River. The powers intended it as the land on which Great Britain would turn its 1917 Balfour Declaration from aspiration to reality, assisting the Zionist movement in re-establishing the Jewish national home.”

Hmmm, this is certainly a very selective interpretation of events.

Palestine of often referred to as “The Thrice Promised Land”, and there is some truth to this. Over the course of 1915/1916, via their High Commissioner in Egypt, the government of Great Britain entered into a legally binding agreement with the Sharif of Mecca which promised an area of land for Arab independence, an area of land which, according to the British Foreign Office, included Palestine.

In 1917, in a letter to a private British citizen published in a newspaper, Lord Balfour expressed the British Government’s support for the notion of creating a Jewish national home in Palestine, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine.

Note that the declaration speaks of a Jewish national home in Palestine, not a Jewish state over all of Palestine. It’s important to note also that anything which prejudiced the civil and religious rights of the indigenous non-Jews would be contravening the Balfour declaration, and hence the mandate into which it was incorporated.

There was also a French interest in Palestine, stemming from the Sykes-Picot agreement.

So we have three competing claims on Palestine.

So what of democracy? Well, it was a non-starter. Palestine was 93% non-Jewish in 1917 when Lord Balfour callously rode roughshod over the will of the indigenous majority. It is simple mathematics, if the British had allowed for democratic rule in 1917, it would have got in the way of British plans for Jewish colonisation of Palestine, or in Churchill’s words – “the creation at this stage of a national Government would preclude the fulfilment of the pledge made by the British Government to the Jewish people”.

Britain certainly has form in this area, an established track record of supporting white, minority rule in former colonies. Balfour, for example, supported minority rule in Ireland because he viewed the protestant, unionist minority as superior to the catholic nationalists. He also told Parliament in 1909 when the South Africa Act was being debated:

“All men are, from some points of view, equal; but, to suppose that the races of Africa are in any sense the equals of men of European descent, so far as government, as society, as the higher interests of civilisation are concerned, is really, I think, an absurdity which every man who seriously looks at this most difficult problem must put out of his mind if he is to solve the problem at all”

Britain duly supported white, European minority rule in South Africa after independence, and was quite happy to see the 3% white, European minority rule over the 97% black majority in the British colony of Southern Rhodesia.

Rozenman’s summary of Article 6 is very selective. Article 6 of the Mandate reads as follows:

“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.” [Emphasis mine]

So whilst Mr Rozenman wants you to come away with the belief that Article 6 gives carte blanche for Jewish colonisation across Palestine, it clearly does not. The suggestion that annexing and colonising Palestinian land does not prejudice the rights and positions of the indigenous Arabs is a pretty cold one. And suggesting that colonising another state classes as “under suitable conditions” is also a very tough sell.

Rozenman’s invocation of Article 80 of the UN charter is similarly flawed. Whilst he is correct in his citation, he is conveniently ignoring an important word, which I will highlight: “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”.

Existing. When the UN Charter was crafted in 1945, the Mandate was still functioning. Britain terminated the mandate in 1948 – it was no longer an “existing international instrument”, therefore article 80 no longer applies. It is also worth noting that, as stated in Article 80, nothing in the UN Charter may alter “the rights of any states or any peoples” – not only Israel and not only Jews. Palestinians have an undeniable right to self determination, and the state of Palestine (as recognised by the UN) has a right to territorial integrity. Article 80 protects Palestinian rights, it does not detract from them.

Rozenman then goes on, bizarrely,  to invoke UNSC resolutions 242 and 338 as being in support of Israeli colonisation. Resolution 242 stresses the inadmissibility of territory acquired by war, and as commentary by its author explained, the intention was to negotiate minor and mutual land swaps, guided by the inadmissibility principle to rationalise the border. The intention was never to have Israel acquire territory by war.

The next points regarding Article 4 of the Geneva conventions can only be described as quite desperate. He states that “Mr. Ban’s recent statements on settlements were echoing a report by the obsessively anti-Israel U.N. Human Rights Council.” No. This is part dishonesty, part misdirection.

Mr Ban’s statements are echoing the position of every single institution of international law. Nothing less. There is no controversy on this.

In a fit of dishonesty, he then goes on to state that the 4th Geneva Convention “was adopted to prevent crimes like the Nazi deportations of European Jews from conquered countries to death camps.”

Let’s be specific. Colonisation of occupied territory contravenes Article 49, which states that “[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” It’s pretty clear. And according to the commentary, it was not adopted to protect Jews from being transferred to death camps, as Mr Rozenman suggests, rather:

“It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.” [Emphasis mine]

Again, this is the position of every single institution of international law, and, incidentally, it was the position of Israel’s own legal adviser in 1967.

With regards to how Israel came to be the military occupier of Palestine, Rozenman suggests that Israel “gained the territories in 1967 in a war of self-defense.” I will ignore the obvious point regarding the “war of self-defence” and concentrate on what he means by “gained”-  it is a fundamental principle of international law that states cannot acquire territory by war. This is stressed by the resolution (242) that Rozenman cites. Israel did not “gain” Palestine, it became the military occupier – which is, by definition, a temporary situation.

Whilst Mr Rozenman’s article does not hold water, it does serve as a useful foil to explore some of the techniques used to obfuscate what is a trivial and uncontroversial aspect of international law.