CHAPTER EIGHTEEN — Part 8 of 10

compensation. If he has appropriated and sold such private or public property, it may afterward be claimed from the purchaser without payment of compensation.''

The wrongful act of deprivation may pass possession of the property while the ownership remains in the private owner. For this reason the property is bound to be restored to the rightful owner when it is identifiable and capable of restitution.

THE PRINCIPAL JUDICIAL AUTHORITIES IN THE TRIALS OF WAR CRIMINALS

The principal judicial authorities on offenses against property in the trial of war criminals after World War II are those treated in Volumes IX and X of the Law Reports of Trials of War Criminals which dealt with the trial of the accused Flick, the accused Farben and the accused Krupp, The main conclusions of these judicial authorities can be summarized as follows:

1. The infringement of the property rights of the inhabitants of the occupied territory was considered a war crime.

2. The Hague Convention regarding private property relates to plunder, confiscation and requisition which, in turn, imply action in relation to property committed against the will and without the consent of the owner.

3. The Tribunal stated in the Krupp trial, "Spoliation of private property, then, is forbidden under two aspects; firstly, the individual private owner of property must not be deprived of it; secondly, the economic substance of the belligerently occupied territory must not be taken over by the occupant or put to the service of his war effort."

4. In dealing with public property, the United States Military Tribunals have relied upon Article 55 of the Hague Regulations according to which the occupying power has only a right of usufruct over such property, and that only for the duration of the occupation:

"Article 55: The occupying State shall be regarded only as administrator and usufmctuary of public buildings, landed property, forests and agricultural undertakings belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of such properties, and administer them in accordance with the rules of usufruct."

The Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August, 1949, made it illegal for the occupying power to transfer and settle its citizens in the occupied territory, The International Committee of the Red Cross commentary on the said convention states in its analysis of Article 49(6):

"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."

During the trials of Nazi and Japanese war criminals the defendants contended that they were not bound by the international law regarding military occupations because the occupied territories had been annexed to Germany and Japan. The International Military Tribunals which tried these war criminals rejected this argument and held that the purported annexations were invalid and that the provisions of the International Conventions regarding enemy properties are applicable.

The Israelis are alleging that the establishment of Jewish Colonies in the West Bank and Gaza are not illegal because the Geneva Convention of 1949 does not apply to the West Bank and Gaza. On April 25, 1982, Menahem Begin stated on the National Broadcasting Company's program Meet the Press that: "You can annex foreign land. You cannot annex your own country. Judea and Samaria are part of the land of Israel, where the nation was born."

Yitzhak Shamir stated in January of 1982, as reported by The New York Times of January 25, 1982: "We want peace, but only on conditions that will enable us to continue our existence, and this means the Golan Heights, Judea and Samaria within the boundaries of the land of Israel."

Moshe Dayan was reported by the Hebrew newspaper, Ha-aretz, of April 4, 1969, to have stated the following: "We came to this country which was already populated by Arabs, and we are establishing a Hebrew, that is a Jewish state here. In considerable areas of the country (the total area was about 6 percent) we bought the lands from the Arabs. Jewish villages were built in the place of Arab villages. You do not even know the names of these Arab villages, and I do not blame you, because these geography books no longer exist: not only do the books not exist, the Arab villages are not there either .... There is not one place built in this country that did not have a former Arab population."

The claim of the Israeli government that the Fourth Geneva Convention of 1949 does not apply to the West Bank and Gaza was rejected by all resoIutions of the United Nations General Assembly which were usually approved by 140 states members of the United Nations and by the resolutions of the Security Council which were unanimously supported by the votes of the 15 members of the Council.

Even the United States, which is aiding and abetting Israel in the commission of this war crime of confiscation of Palestinians' properties, the establishment of Jewish settlements and the transfer of Jews to the West Bank and Gaza, stated on many occasions that the establishment of these Jewish settlements are inconsistent with international law and a violation of the Fourth Geneva Convention of 1949.

On July 28, 1977, President Carter stated: "This matter of settlements in the occupied territories has always been characterized by our Government, by me and my predecessors as an illegal action ..."

On October 19, 1977, Alfred L. Atherton, Assistant Secretary for Near Eastern and South Asian Affairs, testified before the Subcommittees on International Organizations, Europe and the Middle East, and the Committee on Foreign Affairs of the House of Representatives concerning Israeli settlements in occupied territories. Portions of the text of his prepared statement was as follows: "Second, we see the Israeli settlements as inconsistent with international law. The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (dated August 12, 19491, which contains many of the internationally recognized rules under which military occupation should be conducted, states in article 49 the following: 'The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.'"

Herbert J. Hansell, Legal Advisor of the Department of State in a letter dated April 21, 1978, written to Chairman Lee H. Hamilton, subcommittee on Europe and the Middle East of the United States House of Representatives, stated "the legal considerations underlying the United States view that the establishment of the Israeli civilian settlements in the territories occupied by Israel is inconsistent with international law."

On the basis of the available information, the civilian settlements in the territories occupied by Israel do not appear to be consistent with these limits on Israel's 'authority as belligerent occupant in that they do not seem intended to be of limited duration or established to provide orderly government of the territories and, though some may serve incidental security purposes, they do not appear to be required to meet military needs during the occupation.

2. Article 49 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949,6 UST 35 16, provides, in paragraph 6:

"The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.''

Paragraph 6 appears to apply by its terms to any transfer by an occupying power of parts of its civilian population, whatever the objective and whether involuntary or voluntary. It seems clearly to reach such involvements of the occupying power as determining the location of settlements, making land available and financing of settlements, as well as other kinds of assistance and participation in their creation. And the paragraph appears applicable whether or not harm is done by aparticular transfer. The language and history of the provision lead to the conclusion that transfers of a belligerent occupant's civilian population into occupied territory are broadly proscribed as beyond the scope of interim military administration.

The view has been advanced that a transfer is prohibited under paragraph 6 only to the extent that it involves the displacement of the local population. Although one respected authority, Lauterpacht, evidently took this view, it is otherwise unsupported in the literature, in the rules of international law or in the language and negotiating history of the Convention, and it clearly seems not correct. Displacement of protected persons is dealt with separately in the Convention and paragraph 6 would be redundant if limited to cases of displacement. Another view of paragraph 6 is that it is directed against mass population transfers such as occurred in World War II for political, racial, or colonization ends; but there is no apparent support or reason for limiting its application to such cases.

The Israeli civilian settlements thus appear to constitute a "transfer of parts of its own civilian population into the territory it occupies" within the scope of paragraph 6.

4. It has been suggested that the principles of belligerent occupation, including Article 49, paragraph 6, of the Fourth Geneva Convention, may not apply in the West Bank and Gaza because Jordan and Egypt were not the respective legitimate sovereigns of these territories. However, those principles appear applicable whether or not Jordan and Egypt possessed legitimate sovereign rights in respect of those territories. Protecting the reversionary interest of an ousted sovereign is not their sole or essential purpose; the paramount purposes are protecting the civilian population of an occupied territory and reserving permanent territorial changes, if any, until settlement of the conflict. The Fourth Geneva Convention, to which Israel, Egypt and Jordan are parties, binds signatories with respect to their territories and the territory of other contracting parties, and "in all circumstances'' (Article I), in "all cases" of armed conflict among them (Article 2) and with respect to all persons who "in any manner whatsoever" find themselves under the control of a party of which they are not nationals (Article 4).

While Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for the reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with international law.

Israel, by means of tax-exempted, tax-deductible funds collected in the United States by the World Zionist Organization (the Jewish Agency), the United Jewish Appeal (the United Israel Appeal) and the Jewish National Fund, has established, during the years 1967- 1987, 130 Jewish settlements in the West Bank and Gaza and transferred more than 80,000 Jews to live in these Jewish settlements in the West Bank and Gaza.

Dr. Meron Benvenisti, a former deputy mayor of Jerusalem, made a study entitled, "Pilot Study Report," which was published in 1982 through the financial assistance of the Graduate School of the City University of New York and the International Center for Peace in the Middle East, Tel Aviv. Dr. Benvenisti states that the Israeli authorities issued a military order #783 which determined the boundaries of the Jewish settlements placing them under Israeli law as if they were an annexed part of the West Bank and Gaza. These Jewish settlements are not treated as parts of Israel. Dr. Benvenisti states that the lands confiscated by Israel amount to more than 55 percent of the entire area of the West Bank and Gaza. This figure has reached in 1987 sixty percent of the West Bank and Gaza. Dr. Benvenisti states further that the type of settlements built is more significant than the number of settlements. The emphasis now in enlarging the urban settlements which are suburbs of many Israeli cities. Housing in these suburban communities is being offered to Jews on such attractive terms and is drawing large numbers of young middle-income families to reside in these settlements. In an interview which was published in The Jerusalem Post International Edition, September 19-25, 1982, Dr. Benvenisti stated:

When President Reagan talks of '"freezing settlements" he displays an anachronistic approach to the problem. It is not the announcement or creation of eight more dots on the map but the increasing shift of Israel's urban population into areas which guarantees Israeli control over the West Bank and which creates perhaps an insurmountable political problem for any concession-oriented political party in the country.

CONCLUSION

The aforementioned facts confirm that Israel committed war crimes by confiscating millions of dunums of Palestinians' lands, by establishing 175 Jewish settlements in the occupied West Bank and Gaza, by transferring about 86,000 Jews to live in these settlements, by formally annexing the city of Jerusalem, and by annexing the areas of the Jewish settlements and making them a part of Israel and subject to Israeli law. Therefore, Israeli leaders, together with members of the Jewish Agency, the Jewish National Fund and members of the United Israeli Appeal should be tried by a Palestinian Tribunal or by an international tribunal for war crimes. The members of successive American administrations since 1967 should be tried also as accomplices for these war crimes for granting the above groups a tax-exempt status which has enabled them to collect several billion dollars since 1967 and to use a great part of that those funds for the establishment of Jewish settlements.

The United States Administration is under a legal duty to cancel the tax-exempt status of these organizations and to stop aiding and abetting the Israeli government in the commission of these crimes. Article 146 of the Fourth Geneva Convention of 1949 states:

"The HIGH CONTRACTING PARTIES undertake to enact any Legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present convention defined in the following Article.

"Each HIGH CONTRACTING PARTY shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons? regardless of their nationality, before its own Courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another HIGH CONTRACTING PARTY concerned, provided such HIGH CONTRACTING PARTY has made out a prima facie case.'"

APPENDIX I

JEWISH SETTLEMENTS IN THE WEST BANK AND GAZA

A. AREA OF JERUSALEM AND ENVIRONS

Givat Hamivtar

Go to part 9