TRUMP IS KEEPING THE PROMISE MADE AT SAN REMO IN 1920. WHY?

Article Source: Jerusalem Post

There is one place in the Middle East where the international community takes the entirely opposite position about Mandatory borders. And that, of course, is Israel. While the Pompeo statement did not say anything about borders, it did reclaim the San Remo principle that Jewish settlement is not illegal. The legal basis for this deserves some discussion. Pompeo repudiated the conclusions of a 1978 memorandum by the State Department legal advisor Herbert Hansell. The memo’s conclusions had already been rejected by then-president Ronald Reagan, but it had never been formally retracted. The four-page memo jumped in broad strokes across major issues and cited no precedent for its major conclusions. Indeed, in the decades since, its legal analysis of occupation and settlements has consistently not been applied by the US, or other nations, to any other comparable geopolitical facts. It was always what lawyers call a “one-ride ticket” applicable just for Israel. Hansell’s memo had two analytic steps. First, he concluded that Israel was an “occupying power” in the West Bank. That triggers the application of the Geneva Conventions. He then invoked an obscure provision of the Fourth Geneva Convention that had never been applied to any other situation before (or since). It says the “occupying power shall not deport or transfer its civilian population” into the territory it occupies. Hansell, without much discussion, concluded that Jews who move just over the Green Line have somehow been “deported or transferred” there by the State of Israel. In short, he read a prohibition on Turkish-style population transfer schemes as the requirement that Israel permanently prevents its Jews from living in those areas that Jordan had ethnically cleansed during its administration.
Under international law, occupation occurs when a country takes over territory that is under the sovereignty of another country. This is why the borders of countries arising in former Mandatory territories are those of the relevant Mandate. That, for example, is why Russia is considered an occupying power in Crimea, even though most of its population is Russian and it has historically been part of Russia. Yet due to internal Soviet reallocations, when Ukraine became independent, Crimea was incorporated into the borders of its predecessor, the Ukrainian Soviet Socialist Republic. For international law, this establishes clear Ukrainian sovereignty, even over the self-determination objections of a local ethnic majority. BUT THE West Bank was never part of Jordan. On the contrary, it was a territory that Jordan itself had seized in 1949. Moreover, a country cannot occupy a territory to which it has a sovereign title. Israel has the strongest sovereign claim to the territory. In international law, a new country inherits the borders of the prior geopolitical unit in that territory. In this case, that unit was the League of Nations Mandate for Palestine. Hansell’s memo fails to even discuss this globally-applied principle for determining borders.
The Hansell memo also failed the test of history and of generalizability. The State Department has not applied its definition of “occupation” to Moroccan-controlled Western Sahara, Dutch New Guinea, or any other situation where territory that changed hands in the war did not have a clear prior sovereign. But even by its own terms, the memo’s conclusions no longer apply. Hansell specifically stated that the state of occupation would no longer exist if Israel entered into a peace treaty with Jordan. That is because the law of occupation is part of the law of war; it has no applicability in time of peace. Jordan signed a full and unconditional peace treaty with Israel in 1994, making the memo moot. The separate notion that occupation creates an impermeable demographic bubble around the territory has no basis in the history or subsequent application of the Fourth Geneva Convention. In an academic study, I have shown that almost all prolonged occupations of territory since 1949 – including America’s 40-year administration of West Berlin – have seen population movement into the occupied territory. In some of these cases, like Western Sahara and Northern Cyprus, the demographic effect has been huge. In none of these cases has the US, or the UN, claimed a violation of the Geneva Conventions.The writer is a professor at George Mason University Antonin Scalia Law School, and the director of its Center for International Law in the Middle East, and a scholar at the Kohelet Policy Forum in Jerusalem.