The Legal Case for Israel
2,981 views Jul 15, 2013
What is international law and how does the history of Israel reflect it?
Professor Eugene Kontorovich gives a clear explanation of which legal bodies have the power to influence the borders of countries, and more importantly, which do not.
This fascinating video gives a different perspective on the boundaries of Israel.
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Transcript
hi I'm Professor Eugene kovich it's a great pleasure to be here to talk to you about this very important subject I know
you've heard a lot about these issues on campus the goal of our talk today let me just set up the parameters of what we're
going to discuss is to talk about the legality of Israel's presence in the area called the West Bank and also the
Goan from the perspective of international law and it's import that's an important qualification from the
perspective of international law does not mean who's right who was there first
who does God want to have this land there are other people in this building who are better suited for addressing
those questions and international law may not coincide with those answers there's absolutely no reason that
international law which as we'll see is made by the countries of the world is
necessarily going to coincide with what is wrong what is moral what God wants that would be nice if it were true it's
not necessarily the case so I make no advertisements for the goodness of international law why talk about it
because I'm sure as you've heard discussions about
Israel the West Bank settlements are inevitably framed in terms of
international law you've heard about illegal settlements illegal occupation
apartheid these are all legal claims and as such we should be able to assess
their validity by looking at International legal sources and that's what we're going to do today we're going
to look at what are the international legal sources the authoritative International legal sources that govern
this question that's what we're going to do so let me take a step back and what
is international law so that's that's a good question unlike you know what American law is there's Congress and
they pass laws there is a legislature and Talahassee and they pass laws who is
the international legislature it's not the United Nations they don't pass laws there is no International Congress and
there is no International Ru making body rather there are two main ways International Agreements are made
treaties and custom just like in Jewish law custom minog can become binding if
countries do things if all countries regularly do things with a sense of legal obligation that creates a rule a
customary rule of international law what do these two things have in common international law is made by countries
that is to say countries can only be governed when they agree to a rule that will govern them treaties custom so what
is not international law why do I have to give you this little mini Shia in what's international law because not
everything that has the word International in it makes international
law so for example you will hear many General Assembly
resolutions calling not just Israel's presence in the West Bank illegal the
general assembly has famously called The Very existence of the state of Israel illegal in its Zionism is racism
resolution so if the general assembly was a lawmaking body I could save my
voice and step down now and say we're done General Assembly has said it's illegal the general assembly does not
make international law how do I know that is it because I don't don't like what they say no it's because the United
Nations Charter the Constitution of the United Nations which creates the general assembly spells out its powers and
making rules is not one of them making laws so what what's it mean when the general assembly votes has anyone anyone
know about politics about Congress you know how sometimes a house will make a one- housee resolution like the House of
Representatives will vote to make Tuesday you know uh Chinese food day and
Wednesday Like a Pirate Day they have these one house votes those votes aren't
laws because a law has to be passed by both houses and Sound by the president so why do they make these sense of the
Senate resolutions or one house res resolutions to express their opinion that's what they're doing same with the
general assembly so General Assembly resolutions you could have a thousand of them and you do have a thousand of them
on the subject uh and they do not have legal status what else does not have
international legal status that you might hear about a lot so you may know that the international court of justice issued an
opinion in a case involving Israel's wall that was being built in the West
Bank largely in which it declared Israel's occupation to be illegal and a
violation of international law it did not offer much analysis for that point why is this not a binding statement of
international law it's the international court of justice so the opinion is what's called
an advisory opinion what's an advisory opinion it's an OP opinion in a case in which the court by its own Constitution
does not have the authority to issue a binding resolution what's an advisory opinion it's
advice advice and by the way let me tell you something about this advisory opinion The Advisory opinion was a
response who can ask for an advisory opinion I can't go to the icj and say I'm having a problem writing my
international law article can you give me some an advisory opinion on what international law is the general
assembly of the United Nations asked for this advisory opinion and if any of you are planning to go to law school which
uh Jews tend to do uh you you'll see there's this amazing trick when you're
arguing in court the way you frame the question is crucial for the answer a
court really can't answer outside of the framework of the question listen to the question that the general assembly submitted to the icj bearing in mind
that Israel the occupying power continues to refuse to comply with international law Vis its construction
of the above mentioned wall with all its detrimental implications and consequences what are the legal
consequences from the construction of the illegal wall being built by Israel so and the court said illegal uh which
uh so the input is not the output is indistinguishable from the uh input there was no value added again it's an
advisory opinion we're going to look to binding sources of international law that is to say actual treaties things
that countries have made authoritative Security Council resolutions of certain kind fall into this um uh into this uh
category why Security Council resolutions of a certain kind and not General Assembly resolutions because the treaty that created the United Nations
which all the countries have signed says the security Council can make binding decisions because of the way it's
constructed the general assembly is just like a town hall meeting everyone gets up and says their opinion okay so I said
we're not going to talk about who was where first who came first but so this is this is this is
just going to be a blink of an eye in Middle Eastern terms let's just go back to 1516 not long so what's great about
this is I can cover 400 years in one slide from 1516 to 1917 all of the area
we're talking about Lebanon and Syria Israel and everything around Israel belonged to the Ottoman Empire which was
based in Turkey Islamic non-arabic empire and it ruled much of the Middle
East and up to 1917 all all of this clearly belonged to the ottoman Turk uh
those different colored areas are internal administrative divisions of the area of Palestine you see they divided
it into three districts North and South which do not look by the way as you may notice like the division between Israel
and the West Bank they look more like the division between the northern Central and Southern commands of Israel
uh nobody argued that there was any problem with ottoman sovereignty up to 1917 so up to
1917 we are clean that's easy so we're going to cover the first few thousand years of the world without any concern
everyone agrees it belonged to the otoman Turks was that good was that nice wasn't a question ottoman Turks up
to 1917 what happened in 1917 and this is crucial the Ottoman Empire along with
Germany and Austria were on the losing side of World War
I and as a result of World War I all of the large l
multiethnic Empires were broken up as part of the peace process so the Allies
had a peace conference you may have heard of it in versai in 1919 and they said the problem with austr Hungary
remember they shot the the serbs killed the arch Duke Ferdinand so was there were all these ethnic minorities living
in one panethnic Empire they didn't they thought that's a problem we're going to give each country we're going to make
independent nation states they did that in Europe breaking up AUST Hungary into Poland into Austria czechoslovak half
the countries you've heard of in Europe now and they did the same in the Middle East breaking up the Ottoman Empire into
new independent nation states and this was finally agreed to at
a big International Conference called Sano this was not a colonialist thing every country in the world was there
China Japan Ethiopia and they all voted unanimously to create this system in the
Middle East of new nation states unlike in Europe where there was
some history of parliamentary democracy in these new countries Poland Czechoslovakia none of the Middle Eastern countries had a history of
democracy so they were going to be overseen by certain European powers as
they transitioned to democracy right so America occupied Afghanistan until they set up a government same type of thing
it's a transition occupation and different European powers were assigned different parts of the
former Ottoman Empire to steer to statehood and this was called the mandate system
the mandate system and what is central for our purposes is the League of Nations
mandate for Palestine you've often heard of it referred to perhaps as the British
mandate and the League of Nations what is the League of Nations it was the predecessor to the security
Council between the wars and it had by its Constitution when it was created
after World War I the authority to make binding International decisions all the countries agreed to this and then this
body created by all the the countries came to the following resolution to favor The Establishment in
Palestine of a national home for the Jewish people Palestine was going to be
a national home for the Jewish people because of the historical link of the
Jews to Palestine no other people's historical rights to Palestine were
noticed were recognized the Jewish people the International Community recognizes the historical connection who
is the League of Nations you have to understand the League of Nations is everyone the whole world voted for this
the whole world approved this and Britain was going to create a Jewish state in Palestine what is
Palestine that whole thing in blue is Palestine and you'll see it includes the
area of Israel the West Bank Gaza Goan Heights and the entire area that is now
called the hashemite kingdom of Jordan that was all supposed to be used for the creation of a Jewish State under an
authoritative International resolution of the Border issue now today in college a lot of
people would say to why should we care about this League of Nations mandate
this British mandate first of all it's old it was like a hundred years ago who
cares about that and it sounds like European colonialism because it has the word British in it and it takes place in
the Middle East so this was just like some favor from like Britain to the Jews
so scratch out that last possibility the British didn't like the Jews nobody liked the Jews this was part of a much
larger settlement so here's the thing the only thing you will ever hear about probably in your lives unless you
specialize in this area is the British mandate for Palestine the British mandate for Palestine was one of a
gazillion mandates issued for the same purposes to create countries on the same
day in Sano as part of the same process so as you Syria was actually called the French
mandate for Syria from which was created Syria and Lebanon Iraq was called the
British mandate for Mesopotamia and there were other mandates created in other places there were I believe 26
different mandates created all of which later became countries or multiple
countries what does this mean every border that we have here all of these
lines dividing up all of the countries in the Middle East all of them owe themselves to to the League of Nations
mandate process that is to say how do we know that this is the border between uh Syria
and Israel or Syria in Iraq or Syria and turkey up here those were all the
borders that were drawn in the league of mandate process and in no other context do we say oh that was 100 years old and
has the word British in it let me give you an example so what France did with this mandate they did something like
what Britain was going to do here they cut it up into two countries Lebanon was going to be a majority Christian Arab
country and Syria was going to be a majority Muslim Arab country now Syria
today if you look in Syria's Maps Lebanon is not does not exist in Syria's maps and that's why Syria occupied
Lebanon for a long time because Syria always said no no no lebanon's part of
us because we can't go by this 100-year old mandate thing not a country in the world accepted that argument do you
remember when Saddam Hussein invaded uh Kuwait no you don't uh Saddam Hussein invaded Kuwait and he said this is part
of Iraq now he wasn't just being mean and making things up he said before the Mandate process this was a province of
Iraq and just based on the maps that they drew for the British Mandate of Mesopotamia they took that away from us
so it's part of not a single country in the world said oh yeah who cares about those 100-year old mandates with the word British in it they said no these
borders are the borders so if you call into question the borders of the Mandate period you actually call into questions
the border of every single country in the Middle East none of these all of these countries were created through the
Mandate process and the questions only seem to be raised in the area of Israel
article 25 of the Mandate specifically says if there are not enough Jews to
have a country in this whole big thing Britain can cut this cut this part off
and make a separate thing there it's a little bit more complicated than that but anyway Britain did that right away
and here they created the hashemite kingdom of Jordan uh the League of Nations mandate doesn't actually say
that they can make a different country there they said they can suspend the Mandate which suggests maybe it's temporary but Britain cut this off and
said okay that's no longer Palestine so all we're left with from 1925 is this
part and that's where that's Palestine Israel the West Bank and Gaza and that is where under the League of Nations
mandate the Jewish state is supposed to arise so if the jordanians for example why does Jordan exist the British
mandate for Palestine the very same mandate and no one ever doubts Jordan's right to exist or it's particular
borders okay what is a mandate a mandate is like a trustee ship you know
sometimes people have parents with a lot of money God forbid the parents die they hire a trustee to make sure the person
doesn't get the money until he gives up fast cars and things like this okay that's what this is by the way this
system this mandate system which sounds old and kind of um Colonial it continued to exist into the United Nations system
uh after World War II they just renamed it the trusteeship council and America was Trustee of several countries well
into the 90s uh so usually in trustee law what's the concern usually you're
worried that the trustee the guy who's sitting around guarding the money is going to run away with it while the young guy is driving the fast cars
normally so the guy you're afraid the trustee Will Take the Money and Run what happened with the British
mandate is very unusual the trustee left the money and ran what's that mean Britain said Britain after World War II
Britain was supposed to create a country here and they they said look we know that the Arabs and the Jews are going to
go at it as soon as we say there can be a Jewish State Britain was supposed to turn over the keys to the Jews so to
speak but they said as soon as we do that we're going to get caught in the middle of this big Arab Jewish war
and indeed that's uh you see they've cut off the Jordan they've cut off Jordan and
they gave another part to France uh so they said indeed there's going to be a big war here we're getting out of here
Jews if you want your own State take it yourself we're not setting anything up we're they were broke after World War II
we're out of here and they took off now when it became clear when the British
announced that they were leaving the world understood that there was going to be a big war here and so the general
assembly the newly created general assembly and this is very important you're going to hear this quoted all the
time sent fact finders experts to the area to try to propose some kind of
solution and they said look here's what we're going to do we're going to take okay so remember this is Palestine at
first then Britain cuts it in half so and they say we're going to take this what's left of it and we're going to cut
it into six little pieces and we're going to give the Jews three pieces which touch at a corner and we're going
to give the Arabs three pieces that touch at the corner so all that will be left of the Jewish state is this this
and this these little Parts touching at the corners note that yafa have you all been to yafa very beautiful place in
southern Tel Aviv you should go uh that was supposed to be an Arab City in
southern T Aviv and as you see Jerusalem and everything around Jerusalem Shish was this was all going to be Arab and
Jerusalem was going to be an international City supervised by these kind of like um Canadian police people
um they never arrived actually because while they were on the boat they heard that there was like actually fighting in
Jerusalem and they said oh we didn't understand this was like a shooting job and they turned around and uh they went
home so everywhere around Jerusalem was going to be uh Arab country this was the
jerus the partition proposal what legal status does this partition proposal have
none why because it's the general assembly firstly secondly there's another article in the United Nations
Charter that says that they cannot change the rights of people under mandates uh through the United Nations
so Israel by the way accepted this deal the leadership of the Jewish community in Israel said
okay and the Arabs said no if everyone had said okay then it would probably
become binding international law because how does international law get made by the agreement of countries so if two
countries agree to this is going to be our border that's a binding decision but but they don't agree and you will often
hear that Israel was created where Israel's legitimacy was recognized by the general assembly partition proposal
or that in 1947 the UN authorized or recognized Israel far from the truth was
Israel was already recognized from the League of Nations mandate everything in international law with Israel begins
with the League of Nations mandate this doesn't recognize the Mandate it tries to Chisel away at the
Mandate now the so the Arabs say no and a war immediately
Begins by the way there had been other partition proposals the Jews in the 30s even s accepted this suggestion from
Britain where only that tiny little kind of Orange area would be Jewish uh and
the Arabs also said no okay here we're getting we're getting to the so-called 1967
borders which as we'll see have nothing to do with 1967 and are not borders
uh okay so this looks familiar probably the Arabs invaded Israel five Arab
armies Egypt coming up here trans Jordan led by the British right the people who love the Jews the Jordanian Army was led
by British officers the syrians the Lebanese the Iraqis walked across Jordan to participate in the fund the Saudis
came everyone was there okay this is what the fighting this is
what the situation looked like when the fighting stopped this is the what this line is what you call the green line
right every time you hear the first the West Bank Gaza occupied territory Israel
territory that Israel is occupying settlements across the green line it is this line that we're talking about and
there are a few very important observations to make here firstly this line never
existed in the history of the world before 1949 what does that mean that means this
line does not track any underlying demographic
historical political topographic or any other kind of
realities that's why it goes through a city right it's not an it's not a historic it's not a historical division
into administrative units it doesn't look like any of the maps I showed you before where did this line come from why
did they decide to draw a line like this this line is simply where how far back
the Jews managed to push the Arabs so remember the Arabs invade from here their goal is to conquer this whole
thing so the Egyptians get all the way to the suburbs of T Aviv and then the hag the Israeli Army
pushes them back this far but can't push them all the way out the Arab Army
surround Jerusalem push all the way up onto the hill here and then they get stopped and pushed back a little and
pushed halfway out of Jerusalem but not all the way in other words this is simply where the fighting stopped this
is and indeed these borders these so-called borders how were they fashioned they were an Armistice
agreement between the Waring armies what's a Armistice agreement it's not a peace agreement it's not a border agreement it's a we're going to stop
shooting here for a little bit this is like the ceasefire line and this is what
the armus demarcation lines like this is the very document that created those lines for the first time in the history
of the world says it is not to be construed in any sense as a political or
territorial boundary that's the Israeli Jordanian Armistice line why do the jordanians not want it to be construed
as a boundary because they're saying uh we're not done trying to conquer the rest of it and Israel says well we're
not done trying to win back this we see a few a few important things
the occupation of the West Bank the military occupation of the West Bank began in 1949 by Jordan so in 19
remember League of Nations mandate up to 1948 all of this area was Palestine
reserved as a Jewish state by the League of Nations mandate Jordan comes and in a
war that was at the time universally regarded as an aggressive War chops off
this part in an attempt to conquer the whole so from 1949 to 1967 these areas were
under Arab occupation under the occupation of Egypt and uh Jordan
respectively how many United Nations resolutions are there from so every year
there's I would say a few dozen United Nations documents and resolutions condemning the occupation of the West
Bank the Jewish occupation how many United Nations resolutions mentioned the
Egyptian and Jordanian occupation and in the case of Jordan purported annexation they
claim to conquer it and make it part of Jordan of the West Bank zero so it's an interesting thing so apparently
occupation is not always a bad thing
um so what do we see here first of all why are they not 1967 borders well first of all they're not
borders and they were established in 49 67 is when they were
erased they were established in 49 as an Armistice line between the Israeli and
Jordanian and Israeli and Egyptian forces nothing
more an important Point emerges only two countries in the world
Britain and Pakistan recognized Jordan's claim to the West Bank between 1949 and
1967 to say that this green line this line as is in any way sticky that is to
say that is the beginning of the basis for Palestinian territorial
claims that Israel's rights are somehow limited or suspended in that area the Jewish rights are limited or suspended
in that area what does it mean it is to retroactively
legitimize the Arab conquest of 1949 that is that in 1949 no one thought that
Jordan was entitled to take this but to say now that that is in any
way Palestinian territory or that Israel's claims have been weakened to it is to retroactively say
you know what the Arabs get to keep what they tried to what they want in their War to destroy Israel that's a it seems
hard to see why one would want to do that
1967 Israel there's a Israel launches a war after Egypt tries to close off
shipping to Israel and makes amazing Conquest amazing Conquest they take Gaza
in the West Bank the go on Heights from Syria and the Sinai Peninsula wow that's a it's a lot for six days
um crucial Point Israel's International legal claim
to the Sinai Peninsula and the Goan Heights is going to be different and perhaps weaker than its claim to Gaza
and the West Bank why why is
that they weren't included in the Mandate what is the West Bank in 1967 what is the status was it Jordanian
territory no was it Palestinian territory no because no one had ever heard of them what's what was it it was
that part of the British mandate for Palestine for a Jewish state in Palestine that was illegally occupied by
Jordan so Israel has a very good claim to that what's the international legal basis for Israel's right to this
territory in blue why does Israel get to have that under international law British mandate and so it's so it's
it's the same not the Armistice line the British mandate so the West Bank and Gaza Strip that either belonged to
nobody or belonged to Israel and it was taking it back those are the two possibilities I think under international law was not the recognized
territory of any other Sovereign the Sinai Peninsula was undisputedly Sovereign Egyptian territory there was
no doubt that is if in 1966 you said who does the Sinai Peninsula belong to everyone would say Egypt if you said who
does the West Bank belong to nobody would say Jordan the Arabs say it's under Arab occupation so those are very
different legal statuses very different legal statuses that is not to say that Israel is
without a basis in international law for holding on to the uh Goan and the Sinai
Peninsula what is the basis defensive Conquest no no so in
1917 they didn't give the Sinai and the go on just what defense of Conquest so in international law you are forbidden
from acquiring territory by conquest by aggressive Conquest unless you are Arabs
trying to conquer the West Bank in Gaza from Israel that seems to be a major exception but other than that or North
Vietnam conquering South Vietnam or China conquering Tibet or Russia conquering Jordan but okay other than that you're not allowed to if you're
Israel you're not allowed to conquer that's clear international law says Israel is not allowed to conquer
territory in aggressive Wars how do we know that the UN Charter basic
International document Pro prohibits War as a weapon of State as a tool of statecraft it says war is illegal you're
not allowed to have aggressive War so if war is illegal obviously if you break the rule and have a war you shouldn't be
allowed to keep that which you unlawfully take everyone with me so Saddam Hussein gets kicked out of Kuwait
Etc is there any exception to the illegality of War are they like Quakers
where where they just won't have War at all under the United Nations no article 52 of the United Nations has an
exception to the illegality a very fundamental exception self-defense says the right of self-defense it's not just
an exception it's inherent it's basic you can always defend yourself so not all war is illegal what
kind of war is legal a defensive War 1967 was at the time almost
universally regarded as a defensive War afterwards people wanted to say different because Israel won so
miraculously basically the people the people said the Arabs couldn't have had hostile intent because they got wiped
out but that was an unexpected circumstance a highly unexpected
circumstance so if it's a defensive War why would you have the rule prohibiting
Conquest remember why do we have the rule against Conquest because aggression is illegal so you couldn't should not
keep what you get illegally but what if you get it legally then it seems the rule should not apply now if you ask an
international law laer if you ask all the other International lawyers is defense of
Conquest permitted they would say no it is not also forbidden why is it
forbidden they would say because then people would claim
self-defense to mask an aggressive Conquest they say self-defense aggression you can't really tell them
apart that's the argument what's the problem with that argument there are a few problems one I would like to mention
if you can't tell self-defense and aggression apart then the entire United Nations Charter peace
system is incoherent because it is based on aggression being illegal and
self-defense being legal and if those two things are just fundamentally indistinguishable then the UN Charter
has some really basic problems um so defensive War now interestingly so
while Israel's legal claim to the Goan is weaker you don't hear as much controversy about the Goan even though
the claim to the is much weaker than the claim to the West Bank which is much stronger
um okay remember that the Arab states were on the side of the Soviet Union Israel was on the side of America so
this was like a big superpower standoff and the whole world was in a tizzy about The Six Day War the United Nations
security Council met for a long time and they tried to figure out what to do about this and they really wanted some kind of
agreed upon solution to have like um to avoid a superpower stand off and they
went through many drafts and this is what they came up with this is a very important resolution
242 this the United Nations passed this uh subsequently in a way that would make
make it legally binding because the security Council can do that and this document becomes the basis
of all future un documents so all future un documents basically call for implementing
242 so my voice is going a little and it's good because it seems 242 now we're at the end of the story read that
withdrawal of Israel from territories occupied in the recent conflict what
territories are those that's the whole West Bank Gaza Strip Jerusalem's right here go on and Si okay so the security
Council says Israel has to give it all back now what if I told you what if I
told you well look maybe it doesn't have to give everything back because it doesn't
say withdraw of the Armed Forces from all the territories you'd say I've been spending
too much time in the gamar right this is like a a a little bit too much causest
too much Tomic logic it doesn't say all of the maybe it just means some of the
okay what if I so what if I told you something even more
interesting when this resolution was first proposed by one of the Soviet aligned
countries United States it it actually said all of the territories that's what it first said
and it went through five different drafts that said versions of the territories all of the territories and
in each case America and Britain said we're going to veto that Israel shouldn't have to withdraw
from all the territories first of all it's never going to do it so it's just going to make the UN look stupid this was before people routinely stopped
doing what the UN suggested uh there going to be one of those resolutions that get ignored and Israel it would be
suicidal for Israel to do it and they'll never never give up the temple and like uh this is not something that can happen
too much to ask for so let's say some of the territories and then the Soviet Arab countries said no no no that's not
enough then they could maybe just like withdraw from a few feet and we're not happy with that and so finally they did
what diplomats do they said let's not say some of the and not let's let's not say all of the let's just say gen
territories so what did they actually agree to in this document nothing they agreed to disagree
by the this should not be surprising this is the typical diplomatic outcome you know we're about to have now in
Congress this sequestration thing where like the budget gets slashed by massive amounts of money it's because they had
an agreement like a year ago to not agree and now we're so so they agreed to
disagree this is normal diplomatic stuff by the way has Israel complied with this
resolution well if it had just withdrawn from one
foot and said haha territory that might be a breach of bad faith but they have
withdrawn from uh hold on they have withdrawn from 99% of the territory captured that is to
say the Sinai Peninsula Gaza uh and much of the West Bank
okay in short Israel has a strong legal claim to the West Bank based in the uh
League of Nations mandate and uh even
242 uh and basic principles of international law uh you will hear many people try to argue why these things
don't apply in the case of Israel the League of Nations mandate doesn't apply
the question to always ask is show me another case where you apply the rule like
this I would challenge anyone to find another case for example where a defensive Conquest has been called
illegal right so how do we make rules in law a basic when you hear people talking about Israel and international law
people make very strong statements international law clearly says now
international law rarely says anything clearly because there's no Central promulgating
Authority and there usually are a thin number of precedents what is a law a law
is a rule phrased in general terms applicable to unknown future
situations show me a the the rule that gets get generally applied that says any of these things
you'll note what I said about the title to West Bank that either it belongs to No One disputed territory or Israel has
clear sovereignty why did I say that because there's no clear rule in international law to pick between those
two possibilities the situation in which um a mandatory power abdicates and leaves
it up for grabs it's not clear does that mean that the title automatically vests in the country that has the rest of the
territory it's not clear that's usually the answer in international law and if someone is telling you something is a
bit too clear they're probably selling you something okay settlements what are
settlements we hear so much about the settlements settlements are a popular
expression to refer to Jewish civilian presence in the West Bank after
1967 there was no Jewish civilian presence between 1949 and
1967 uh because they were all kicked out by the jordanians there was a Jewish presence before
1949 they don't get discussed so much after 67 Jewish presence becomes called
settlements and settlements are supposed to be illegal under international law
and the root of all our problems okay first thing to understand the
entire discussion about settlements boils down to one word in one
treaty and what it means the idea that they're occupying anyone
the idea that building houses is a problem the idea that s is having babies is a problem all comes down to one word
which we're about to see in one treaty which may not even apply to the conflict and what it
means you will see that a meaning is tried to be put on that word which I
think is extravagant the treaty first of all so there is no word called
settlements in international law you could like read every international law
treaty the word settlement is not used now in the Geneva Convention Geneva
Convention was passed in 1949 and it governs armed conflicts there is a
discussion about what's called population transfer now the Geneva Convention may not apply
at all to this conflict why not because the Geneva Convention applies to the occupation so we have occupying power
what is an occupation under the Geneva Convention it's when one country OCC occupies the territory of another
country so why would the Geneva Convention not apply to the West
Bank whose territory is it nobody so and to prove this point most strongly
between 1949 and 1967 when Jordan occupied the West Bank and the International Community didn't accept
that it belonged to Jordan but didn't accept that it was part of Israel either nobody thought that Jordanian
construction nobody said at least that Jordanian Construction in uh the West
Bank represents settlement or that the Geneva Convention applied there at all and I looked very hard I mean like
nobody in any kind of document that one could find with reasonable amounts of research certainly no
resolution so let's say the Geneva Convention applies which I think it does not so we get down article 49 is all
about attempts to change the demographic composition of occupied territory these were things that Nazi Germany had done
like deporting people from the territory moving colonists in most of it is about deporting people from the territory but
496 is the occupying power shall not Deport or transfer parts of its own
civilian population okay so nobody thinks that settlers are being deported so really
the question is transfer transfer first of all who can violate
the Geneva Convention who can commit a violation of the
496 the occupying power right it's a treaty treaties are about the conduct of countries so if a yid
decides to build himself a house in gu a neighborhood in Jerusalem considered occupied territory or wants to build
himself a house in a fra in the so in the West Bank it is very hard to see what article
496 has to say about it in the first place right this is about the occupying power this is about Mass organized
movements of people so if Jews want to move to these areas which they do and which they have
for a variety of religious and economic and normal reasons it doesn't seem that this addresses it at
all indeed in many cases the Israeli government was opposed to the creation
of settlements and people would come to a Hilltop set up some tents and they would get kicked out by the Army and the Army would kick them out again and they
would kick them out again and they would kick them out again and finally the Army say okay we give up you can stay nobody it's agreed that what the
word transfer means is not absolutely clear but other international law
professors want to read it to mean the occupying power shall not Deport or
transfer parts of its civilian population into occupying territory and if they wish to go there they shall lay
landmines they shall put up machine gun posts they shall block them they shall prevent them and anyone who sneaks
through they shall forcibly evict that's how they want to read it it doesn't seem that that's what TR it says it says the
occupying power can't take parts of its civilian population dump it in the in the occupied area it doesn't say
anything that has to stop them it it certainly doesn't say that occupation would
create a system of effectively an apartheid system of racially exclusive
zones where Nationals of the occupying country are not allowed to move into the other
area certainly certainly does not say that by the way it shall not transfer let me just
give you an example uh anyone been to Jerusalem before great okay so you know the central bus
station so you get to the central bus station you want to go to the cotel what do you do today you probably get on the
light rail but you used to take a bus so you get on the light rail and you ride over to the
kot under the under the leading World interpretation the way people want to spin this of 496 you have just violated
the Gena convention okay you're not the occupying power but we don't get why you have transferred yourself and I don't
mean the transfer from the bus to the uh to the train you have transferred yourself to occupied terto that's it
they should have stopped you they should have torn up the tracks They even want to say what about
people who are born probably at least a third or a half of the so-called settlers didn't settle they were just
born they want to read transfer to mean delivered how can someone who's born in
y how can they be considered to have been transferred it's very hard to [Music]
understand okay so settlements I think not such a problem I'm going to end on
one final note apartheid you're going to hear this all
the time what's the argument of AP paride Israel is occupying the Palestinians depriving them of the right
to vote Etc whatever and this is a problem okay
so the oso process that began in 1993 you know the Palestinian Authority it
used to not exist like I remember there used to be no such thing Israel said Palestinians you can have a
government and they have a government uh which controls the Palestinian Authority
government controls 95% of the Palestinian civilian population lives in the areas of the West Bank in Gaza
controlled by the Palestinian Authority you've heard one reason Israel should um give up land to the
Palestinians is because they have a democratically elected government yes Mamud abas he's legitimate because the
Palestinians democratically elected him okay so here's the question if the Jews
are depriving the Palestinians of the right to vote of the rights of citizenship how
did they democratically elect mmud abas that's the mystery to think about
that is to say what the the claim of a partide is that Israel is obligated to
let the Palestinians elect their own government and the Jewish government they want to vote twice they want to
vote in Palestinian elections and in the Israeli elections okay this is the Palestinians actually have a country in
which I mean I wouldn't say they vote like we vote but they vote as much as people vote in the Arab world okay do
you know what plus 970 is that's a country code to call up
Palestine PS top internet level domain name for Palestine they have an army
supplied by the United States they have a central bank they have Ministries they control the vast majority of the
Palestinian population they issue passports they have government they travel the world they have foreign
Ministries they have embassies these are the countries in the world that recognize Palestine as a
state almost as many as recognize Israel growing every day and they have
embassies there these countries have embassies Palestine they've elected I mean again I
I understand that aboss is in the like something like 100th month of his 48-month term but that's that's their
problem they did at one point elect him uh and can do so again
um they have a government this was given to them so it's very hard to understand
what the aparte is other than that Jews are not allowed to vote at all in the Palestinian elections or live there or
have any other kind of uh any other kind of land there um
===
제시해주신 <이스라엘에 대한 법적 근거(The Legal Case for Israel)> 강연 내용을 바탕으로 요약 및 평론을 작성하였습니다.
유진 콘토로비치 교수의 <이스라엘에 대한 법적 근거> 요약 및 평론
1. 내용 요약
본 강연은 국제법적 관점에서 이스라엘의 영토적 권리와 정착촌의 합법성을 옹호하는 논리를 전개한다
국제법의 기원과 성격: 국제법은 국가 간의 조약과 관습에 의해 형성되며, 유엔 총회 결의안은 법적 구속력이 없는 의견 표명에 불과하다
. 국제사법재판소(ICJ)의 자문 의견 또한 구속력이 없는 조언일 뿐이다 . 국제 연맹 위임통치령의 효력: 1917년 오스만 제국의 패망 이후, 국제 연맹은 팔레스타인 지역을 유대인의 국가 건설을 위한 위임통치 지역으로 지정했다
. 이 결정은 당시 전 세계 국가들의 만장일치로 승인되었으며, 현대 중동 국가들의 국경 확정 근거가 되는 법적 뿌리이다 . 1949년 휴전선(그린 라인)의 본질: 소위 <1967년 국경>으로 불리는 그린 라인은 역사적·인구학적 근거가 없는, 단순한 1949년 당시의 정전 협정 선에 불과하다
. 이 선은 정치적 혹은 영토적 경계로 간주되지 않는다는 점이 명시되어 있다 . 방어적 정복의 정당성: 이스라엘은 1967년 6일 전쟁이라는 방어적 전쟁을 통해 서안 지구와 가자 지구를 확보했다
. 공격적 전쟁을 통한 영토 확장은 불법이나, 자국을 보호하기 위한 방어적 전쟁에서 얻은 영토에 대한 권리는 국제법상 다르게 해석될 수 있다 . 정착촌과 아파르트헤이트 비판 반박: 제네바 협약 제49조 6항은 국가에 의한 강제 이주를 금지하는 것이지, 민간인의 자발적 거주를 금지하는 것이 아니다
. 또한 팔레스타인 인들은 자체적인 정부(PA)와 투표권을 가지고 있으며, 이스라엘이 이들의 시민권을 박탈했다는 아파르트헤이트 주장은 사실과 다르다 .
2. 평론
콘토로비치 교수의 논리는 국제법의 <형식적 요건>과 <역사적 연속성>을 강조하는 실증주의적 접근을 취한다. 대중적으로 통용되는 <불법 점령>이라는 프레임을 국제 연맹의 위임통치령이라는 근원적 문서로 반박하는 방식은 논리적으로 매우 치밀하다. 특히 현대 중동의 국경 체제 자체가 위임통치령에 기반하고 있음을 지적하며, 이스라엘의 국경만을 부정하는 것이 국제법적 일관성을 해친다는 주장은 설득력이 있다.
그러나 이 논의는 법적 정당성에 치중한 나머지, 수십 년간 지속된 실질적인 점령 상태에서 발생하는 인도주의적 문제나 인구 구조의 변화라는 <실질적 현실>을 과소평가하는 경향이 있다. 제네바 협약을 해석함에 있어 <국가에 의한 이주 방조>와 <자발적 이주> 사이의 모호한 경계를 이스라엘 측에 유리하게만 해석한다는 비판에서 자유롭기 어렵다.
결론적으로, 이 강연은 감정적·정치적 구호가 난무하는 이스라엘-팔레스타인 분쟁에서 철저히 법리적 잣대를 들이대며 논의의 지평을 넓혔다는 점에서 가치가 있다. 하지만 법이 정의와 항상 일치하지 않는다는 본인의 전언처럼, 법리적 승리가 곧 도덕적 혹은 정치적 해법의 완성을 의미하지는 않는다는 한계를 동시에 보여준다.
요약된 내용 중 특정 부분에 대해 더 자세한 설명이 필요하시거나, 추가로 분석하고 싶은 자료가 있으신가요? 말씀해주시면 도와드리겠습니다.
==
아래는 업로드하신 <The Legal Case for Israel> (2013년 강연 트랜스크립트) 요약 + 평론입니다.
The Legal Case for Israel
<한국어> 요약
이 강연은 <서안지구(West Bank)·가자(Gaza)·골란(Golan)>에서의 이스라엘의 지위와 “정착촌 불법” 같은 주장들을 <국제법의 ‘권위 있는 출처’가 무엇인가>라는 질문으로 재구성한다. 발표자는 국제법의 법원(法源)으로 <조약과 관습>을 제시하고, 흔히 인용되는 <유엔 총회 결의>는 법을 만들 권한이 없으므로 구속력이 약하다고 주장한다. 또한 <국제사법재판소(ICJ)의 자문적 의견>은 “자문”일 뿐 구속력이 없다고 강조하며, 논의의 초점을 “구속력 있는 문서”로 옮긴다.
역사-법적 서사에서 핵심은 <제1차 세계대전 이후 오스만 제국 해체>와 <국제연맹(League of Nations) 위임통치(Mandate) 체제>다. 강연은 <산레모(San Remo) 체제와 국제연맹의 팔레스타인 위임통치>가 “팔레스타인에 유대 민족의 민족적 고향”을 승인했고, 이 틀 속에서 팔레스타인(당시 정의된 범위) 내에서 유대 국가의 형성이 국제적 결의로 뒷받침되었다고 말한다. 이후 영국이 요르단 지역을 분리한 과정을 언급하면서도, 위임통치 자체가 오늘날 중동 국경의 법적 기원이라는 점을 강조한다. 따라서 “위임통치가 낡았으니 무효”라는 태도는 이스라엘뿐 아니라 중동의 다수 국경 정당성도 같이 흔들 수 있다고 주장한다.
다음으로 1947년 <유엔 총회 분할안>은 총회 결의이므로 그 자체로 법적 구속력이 없고, 당사자 합의가 있었다면 관습 또는 합의로 법적 의미가 커졌겠지만 아랍 측이 거부했기 때문에 “분할안이 이스라엘을 합법화했다”는 통념은 부정확하다고 본다. 1949년의 이른바 “1967 경계”는 실제로는 <정전협정(Armistice) 선>이며, 문서 자체가 이를 “정치적·영토적 경계로 보지 않는다”고 했으니 국경선으로 절대화해선 안 된다고 설명한다. 또한 1949~1967년 동안 서안은 요르단, 가자는 이집트가 통제했는데 이 시기에 “점령 불법” 비난이 거의 제기되지 않았다는 점을 들어, 국제 담론의 선택성을 시사한다.
1967년 전쟁 이후에는 <안보리 결의 242>를 핵심 문서로 놓는다. 결의가 “점령한 영토들로부터의 철수”라고 표현하면서 <all the territories>처럼 전면 철수를 명시하지 않았고, 초안 협상에서 그 문구가 의도적으로 조정되었다는 설명을 통해, 242가 “전면 철수 의무”로 단정되기 어렵다는 해석을 제시한다. 더 나아가 “침략전쟁에 의한 영토 취득 금지” 원칙을 인정하면서도, 유엔헌장상 <자위권>이 있고, 자위전쟁에서 얻은 영토 문제는 단순 정복과 동일하게 취급하기 어렵다는 논리를 편다(다만 다수 국제법 학자들이 이를 쉽게 인정하지 않는 이유도 언급).
정착촌 문제는 <제네바 제4협약 49조 6항>의 “이주/이전(transfer)” 해석으로 환원된다. 강연자는 이 조항이 나치식 강제 인구이동 같은 국가 주도 행위에 초점이 있고, 개인의 자발적 이주까지 “국가가 막아야 한다”로 확장하는 해석은 과도하다고 본다. 마지막으로 “아파르트헤이트” 주장에 대해, 오슬로 이후 팔레스타인 자치정부가 주민 다수를 통치하고 선거·행정·여권 등 국가 유사 기능을 가지므로 “이스라엘이 팔레스타인인의 투표권을 박탈한다”는 프레임은 설명이 부족하다고 비판한다.
<한국어> 평론(비판적 검토)
<장점: 법원(法源) 구분을 통해 논쟁의 수준을 올린다>
이 강연의 가장 강한 부분은 “국제법”이라는 말이 붙었다고 다 같은 권위가 아니라는 점을 분명히 하는 대목이다. 특히 총회 결의, 자문적 의견, 안보리 결의, 조약을 같은 선상에서 섞어 말하는 토론 문화를 정리해주는 효과가 있다. <국제법 논증은 ‘문서의 위계’와 ‘구속력의 조건’을 먼저 따져야 한다>는 메시지는 유효하다.<약점: 위임통치 서사가 ‘현재의 권리’로 곧장 점프한다>
국제연맹 위임통치가 역사적으로 중요하다는 것과, 그것이 21세기의 영토·주권·자결권 문제를 거의 결정한다는 것은 별개다. 특히 1945년 이후 국제질서에서 <민족자결>과 <비점령지 주민의 권리>가 어떻게 법적으로 발전했는지, 그리고 그 발전이 위임통치 문서의 효력을 어떻게 “재해석”했는지를 강연은 거의 다루지 않는다. 핵심 논점(위임통치 권원 vs 자결권/인권 규범의 후발적 강화)을 건너뛰면, 듣는 사람에게 “옛 문서 한 장으로 결론이 난다”는 인상을 줄 위험이 있다.<“점령(occupation)의 성립”을 너무 협소하게 잡는다>
강연은 제네바 협약상 점령이 “타국 영토”를 전제로 하니 서안은 ‘무주지/분쟁지’라서 적용이 애초에 불명확하다고 말한다. 하지만 국제 실무에서는 “주권이 불명확해도 실효적 통제(effective control)가 있으면 점령법을 적용한다”는 접근이 널리 쓰여 왔다. 이 부분은 반대 견해를 요약 소개라도 해야 균형이 선다.<정착촌 49조 6항 해석은 ‘국가의 간접 관여’를 과소평가한다>
“transfer”가 강제 이주만 의미하느냐, 국가가 인센티브·인프라·행정으로 민간 이동을 촉진한 경우까지 포함하느냐가 쟁점인데, 강연은 후자를 “과도한 확장”으로 빠르게 처리한다. 그러나 실제 논쟁은 바로 거기에서 벌어진다. <국가가 조직적으로 이동을 촉진했는가, 그 정도가 어느 수준인가>를 사실관계와 함께 다루지 않으면 법조문 해석만으로는 설득이 제한된다.<242 해석은 ‘문언 논리’는 흥미롭지만, 목적·후속 관행을 덜 본다>
“the territories”에서 정관사 하나를 두고 논쟁이 생긴 건 사실이지만, 조약·결의 해석에서는 문언뿐 아니라 <목적과 취지, 당사자들의 후속 합의/관행>도 큰 비중을 갖는다. 강연은 초안 협상사를 근거로 문언 해석을 밀어붙이지만, 이후 수십 년간의 외교 관행이 그 문언을 어떻게 굳혀 왔는지도 함께 보지 않으면 한쪽으로 기울기 쉽다.<“아파르트헤이트” 논점은 ‘정치적 구호’와 ‘국제형사법 개념’을 구분해야 한다>
강연은 “팔레스타인 자치정부가 있으니 투표권 박탈 프레임은 이상하다”로 정리하는데, 아파르트헤이트를 주장하는 쪽은 보통 <분리된 법체계, 이동·토지·권리의 구조적 차등, 지배-피지배 관계> 같은 요소를 중심으로 논증한다. 즉 “선거가 있느냐 없느냐”만으로 성립/비성립이 결정되지 않는다. 강연은 상대 논증의 핵심을 약간 다른 지점으로 옮겨 놓고 반박하는 느낌이 있다.
결론적으로, 이 텍스트는 <친이스라엘 법적 변론>으로서 논점의 배열이 매우 명확하고, 청중 설득용 수사도 강하다. 다만 학술적 균형의 관점에서는 <반대 견해의 대표 논리와 국제 실무의 다수설을 더 정직하게 제시한 뒤, 그 위에서 반박>해야 “법률 케이스”라는 제목에 더 걸맞아진다.
<English> Summary
This transcript is a legal-advocacy lecture arguing that debates over Israel’s presence in the West Bank (and, secondarily, Gaza and the Golan Heights) should be assessed through <authoritative sources of international law>. The speaker defines international law mainly as <treaties and custom>, stressing that not everything “international” is legally binding. In particular, <UN General Assembly resolutions> are portrayed as political statements without lawmaking power, while <ICJ advisory opinions> are described as non-binding “advice.”
The core legal-historical narrative begins with the post–World War I settlement: the breakup of the Ottoman Empire and the League of Nations <Mandate system>. The speaker treats the <Mandate for Palestine> as a foundational legal instrument recognizing a Jewish national home in Palestine and as the juridical source from which later territorial claims must be understood. He argues that dismissing the Mandate as outdated would undermine the legitimacy of many Middle Eastern borders, since multiple states were formed through the same system.
He then reframes the 1947 UN Partition Plan as a General Assembly recommendation rather than a binding act conferring statehood. The “1967 borders,” he says, are misnamed: they are <1949 armistice lines> (the Green Line), explicitly not intended as permanent political borders. He highlights that the West Bank was controlled by Jordan and Gaza by Egypt between 1949 and 1967, and suggests that the selective condemnation of occupation reflects political bias.
After 1967, the lecture turns to <UN Security Council Resolution 242>. The speaker emphasizes the absence of “all the territories” in the text (“withdrawal from territories”), claiming the wording was a deliberate diplomatic compromise and therefore cannot be read as requiring full withdrawal. He also discusses the rule against acquiring territory by conquest, arguing that self-defense is a fundamental exception to the illegality of war, and implying that defensive war complicates the standard anti-conquest rule.
On settlements, the argument largely rests on the interpretation of one word in <Geneva Convention IV, Article 49(6)>: “transfer.” The speaker contends that the provision targets state-led population deportations and organized transfers (historically, WWII-era practices), and that extending it to voluntary civilian movement, or requiring the state to prevent such movement, is an over-reading. Finally, he challenges “apartheid” claims by pointing to the Oslo framework and the Palestinian Authority’s governance over most Palestinians, arguing it is incoherent to claim Palestinians lack voting rights if they can elect their own leadership.
<English> Review (critical assessment)
This is a clear, rhetorically effective advocacy piece with a strong pedagogical move: it forces listeners to separate <binding legal sources> from <political declarations>. That basic methodological reminder is valuable, especially in campus discourse where “international law” is often invoked as a slogan.
Its limitations come from how quickly it converts a plausible historical premise into a present-day legal conclusion. The Mandate system is undeniably relevant, but the lecture gives little space to how post-1945 international law elevated <self-determination>, <human rights>, and modern occupation-law practice, and how those later developments interact with older instruments. The result can sound like “one early document settles everything,” which is not how most legal systems reason across evolving normative regimes.
On occupation law, the lecture leans on a restrictive reading (occupation as one state occupying another state’s territory). Yet a major strand of international practice applies occupation-law protections based on <effective control> even amid contested sovereignty. Without directly engaging that line of reasoning, the “Geneva may not apply” claim remains under-argued.
The settlements discussion similarly downplays the hardest question: whether “transfer” can include <state-enabled or state-facilitated movement> (subsidies, infrastructure, administrative support), not only forced deportations. That is precisely where the mainstream dispute sits, and the transcript does not seriously test its own interpretation against the strongest opposing reading.
Resolution 242 is treated largely as a textual and drafting-history puzzle. That can be illuminating, but interpretation also turns on <object and purpose> and <subsequent state practice>. A fuller legal analysis would weigh those factors, not only the absence of a definite article.
Finally, the apartheid section arguably shifts the opponent’s claim. Contemporary apartheid allegations typically emphasize structural domination, dual legal regimes, movement and land restrictions, and enduring inequality—issues not reducible to whether Palestinians can vote in PA elections. Even if one rejects the apartheid characterization, refuting it requires engaging its legal elements more directly.
Bottom line: as advocacy, it is coherent and accessible; as a comprehensive “legal case,” it would be stronger if it more fairly presented the leading counterarguments, the evolution of international law since 1945, and the contested factual predicates (especially regarding state involvement in settlement expansion and the structure of governance and rights).
원하시면, 제가 이 강연의 주장들을 <쟁점별 찬반 표>로 정리해드릴 수 있어요. 예: <위임통치 권원>, <점령법 적용>, <242 해석>, <49(6) 해석>, <아파르트헤이트 법개념> 5개 항목으로 “주장/반론/핵심 쟁점/추가로 확인할 사실”까지 한 장으로요.
<쟁점별 찬반 표>로 정리해주세요
아래는 요청하신 <쟁점별 찬반 표>입니다. (강연의 주장 축을 “찬성(강연)”으로 두고, 대표적 반론·비판 축을 “반대/비판”으로 정리했습니다.)
<한국어: 쟁점별 찬반 표>
| 쟁점 | <찬성: 강연> 주장 요지 | <반대/비판> 대표 논지 | 핵심 쟁점(법리) | 확인해야 할 사실(팩트체크) |
|---|---|---|---|---|
| 1. <국제법 ‘법원’(구속력) 구분> | 총회 결의·ICJ 자문의견은 구속력 약함. 논쟁은 <조약·관습·안보리 결의> 중심으로 해야 함. | 총회 결의도 관습 형성·해석에 영향. ICJ 자문도 국제적 권위로 작동, 실무에서 준구속적 효과가 있음. | <법원(조약/관습/일반원칙) vs 보조수단(판례/학설)>의 위계, “구속력”과 “권위/해석력” 구분 | 해당 문서들이 실제로 각국 정책·재판·UN 실무에 얼마나 인용되었는지(후속 관행) |
| 2. <국제연맹 위임통치(Mandate)와 권원> | 팔레스타인 위임통치가 유대 민족적 고향을 승인했고, 오늘의 권원 논의의 핵심 토대. 이를 무효화하면 역내 국경 정당성도 흔들림. | 1945년 이후 <자결권·인권규범>이 강화되며 과거 권원은 재해석되어야 함. Mandate만으로 현재의 주권/영토 권리 확정 불가. | <역사적 권원>과 <후발 규범(자결권, 강행규범 등)>의 충돌/조정, 법체계의 시간적 진화 | Mandate 문서 조항의 정확한 범위, 이후 UN 체제에서 관련 원칙(자결권 등)의 채택·적용 과정 |
| 3. <1947 분할안과 1949 정전선(‘1967 국경’)> | 분할안은 총회 결의로 구속력 약함. 1949 선은 정전선일 뿐 “국경”이 아니며 문서에 그렇게 명시. | 비구속이라도 분할안은 국제적 승인·정당성 형성에 기여. 정전선은 <사실상 기준선>으로 굳어졌고, 국경 협상의 출발점으로 중대한 법적·정치적 의미. | <비구속 문서의 법적 효과(정당성/관습/신의칙)>와 <사실상의 기준선>의 법적 지위 | 1949 협정 문구(“정치적 경계 아님”)의 정확한 내용, 이후 외교·협상에서 정전선이 사용된 방식 |
| 4. <점령(occupation) 성립과 적용범위> | 점령은 보통 <타국 영토> 전제. 서안은 주권이 불명확/분쟁지라 제네바 점령법의 기계적 적용이 곤란. | 주권이 불명확해도 <실효적 통제(effective control)>가 있으면 점령법(보호규범)을 적용한다는 것이 널리 쓰이는 접근. “적용 배제”는 보호 공백을 초래. | <점령 성립요건>과 <점령법 적용의 목적(민간인 보호)>: 주권 기준 vs 실효지배 기준 | 누가 어떤 범위·기간·강도로 통제했는지(군정/행정/치안/통행·토지 규제), 국제기구·법원·국가 실무의 적용 사례 |
| 5. <안보리 242 해석(철수 범위)> | 문언이 “all territories”가 아니라 “territories”여서 전면 철수 의무로 단정 불가. 초안 협상에서 의도된 모호성. | 해석은 문언만이 아니라 <목적·취지·후속 관행>도 중요. 장기 외교관행은 대체로 <1967 이전 선을 기준으로 한 철수/교환>을 상정해 왔다고 봄. | 결의 해석 방법: <문언+목적+후속 관행>, “안전하고 인정된 경계” 문구의 의미 | 242 관련 당사국·중재국(미·영 등) 발언/문서, 이후 협상문(캠프데이비드, 오슬로 등)에서 242가 어떻게 사용되었는지 |
| 6. <정착촌과 제4제네바 49(6) ‘transfer’> | 49(6)은 나치식 강제 이주 같은 국가 주도 “이전” 방지가 핵심. 개인의 자발 이주까지 불법으로 확장하는 건 과도. | “transfer”에는 강제만이 아니라 <국가가 조직적으로 촉진·지원한 민간 이동>도 포함될 수 있음(보조금, 인프라, 허가, 군 보호 등). | “transfer”의 의미(강제 vs 국가 관여 포함), 국가의 <직접·간접 관여>를 어디까지 볼지 | 정착촌 확대에서 국가 지원의 구체적 형태(예산·세제·도로·보호·행정), 공식 정책 문서·판례·군 명령 |
| 7. <‘아파르트헤이트’ 주장 평가 틀> | 팔레스타인 자치정부 존재·자치 선거 등을 보면 “투표권 박탈” 프레임은 단순화. | 국제형사법/인권법에서의 아파르트헤이트는 <구조적 지배, 체계적 차별, 분리된 법체계, 이동·토지·권리 제한>이 핵심. “선거 유무”만으로 결론 불가. | 아파르트헤이트의 구성요건(의도·체계·지배관계), <정치적 구호>와 <법적 개념> 구분 | 법체계 이원화(군법/민법), 통행·토지·주거·시민권/영주권 제도, 실제 권리 격차의 구조와 지속성 |
<English: Issue-by-issue Pro/Con Table>
| Issue | <Pro: Lecture> core claim | <Con/Critique> core claim | Key legal hinge | Facts to verify |
|---|---|---|---|---|
| 1. <What “counts” as binding international law> | GA resolutions and ICJ advisory opinions are weak/non-binding; focus on <treaties, custom, UNSC resolutions>. | GA/ICJ outputs can shape interpretation, contribute to custom, and have strong practical authority. | Hierarchy of sources; “binding force” vs “authoritative weight” | How states/courts/UN bodies actually relied on those instruments (subsequent practice) |
| 2. <Mandate-era title vs modern norms> | The League of Nations Mandate is a foundational legal title for Jewish national claims. | Post-1945 <self-determination/human rights> reshape how earlier titles operate; Mandate alone can’t settle today’s claims. | Intertemporal law; balancing historic title with later peremptory/structural norms | Exact Mandate provisions; timeline of self-determination’s legal consolidation and application |
| 3. <1947 Partition Plan & 1949 Armistice (“1967 borders”)> | Partition plan is non-binding; 1949 lines are armistice lines, not borders. | Non-binding instruments can still generate legitimacy; armistice lines became a de facto baseline in diplomacy. | Legal effect of non-binding acts; stabilization through practice | Armistice text; how later negotiations treated the Green Line |
| 4. <Occupation: when it applies> | Occupation law presupposes occupying another state’s territory; sovereignty is contested, so application is unclear. | Occupation law commonly applies based on <effective control> to ensure civilian protection even amid contested sovereignty. | Sovereignty-based vs control-based tests; protective purpose | Degree/duration of control; precedents and state practice on effective-control occupation |
| 5. <UNSC 242: scope of withdrawal> | Wording omits “all territories,” so full withdrawal isn’t legally required; ambiguity was intentional. | Interpretation also depends on <object/purpose and subsequent practice>, often read toward 1967-based land-for-peace frameworks. | Text + purpose + practice; meaning of “secure and recognized boundaries” | Drafting records; diplomatic usage of 242 across later agreements |
| 6. <Settlements & GCIV Art. 49(6) “transfer”> | Targets state-forced population transfers; voluntary civilian movement shouldn’t be captured. | “Transfer” can include <state-facilitated migration> through incentives, infrastructure, permits, and protection. | Meaning of “transfer”; threshold for state involvement | Concrete forms of state support (budgets, roads, security, legal/administrative measures) |
| 7. <“Apartheid” as legal claim> | PA self-governance and elections make “disenfranchisement” framing misleading. | Legal apartheid claims focus on structural domination, dual legal systems, movement/land restrictions, and systematic inequality. | Elements of apartheid crimes; slogan vs legal test | Dual legal regimes; mobility/land/citizenship rules; persistence and intent evidence |
원하시면, 위 표의 각 쟁점마다 <대표적 “반대 논증의 1~2개 핵심 문장”>과 <강연식 재반박(steelman)>까지 붙여서 “토론용 한 장” 형태로 더 압축해드릴게요.
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