^I U.S. v. Rice, 17 U.S. (4 Wheat.) 253 (1819) held that the laws of the United States were only sus- pended in the portion of the United States under British occupation during the War of 1812. Shanks v. DuPont, 28 U.S. (3 Pet.) 243 (1830) held that the capture of Charleston, South Carolina by the British during the Revolutionary War did not permanently change the allegiance or national charac- ter of the inhabitants. ² 32 U.S. (7 Pet.) 82 at 86-87 (1833). ³ Article 3 of Instructions for the Government of Armies of the United States in the Field (24 April 1863), U.S. Army General Order 100, codified the customary law rule that the pre-existing domestic law may only be suspended and provides further that the existing "civil and penal law" may be con- tinued in force. These Instructions are also known as "Lieber's Code" for their principal author, Pro- fessor Francis Lieber of Columbia college, New York. It is reprinted in THE L_Aws OF ARMED C_ON- _FLICTS : A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 3 (Schindler and Toman eds., 1981). See D. G_RABER, THE DEVELOPMENT OF THE L_AW OF BELLIGERENT OCCUPATION 1863-1914 192-216 (1949); G. VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY : A COMMEN- TARY OF THE LAW AND PRACTICE OF BELLIGERENT OCCUPATION 45-80 (1957). ⁴ Hague Convention II with Respect to the Laws and Customs of War on Land and Annexed Regula- tions of 18 October 1907, 36 U.S. Stat. 2227, Gt. Brit. For. St. Papers 1898-1899, p. 988. ⁵ Hague Convention IV Respecting the Laws and Customs of War on Land and Annexed Regulations of 18 October 1907, 36 U.S. Stat. 2227, Gt. Brit. Tr. Ser. No. 9, Cmd. 5030 (1910).

⁶ Schindler & Toman, supra note 3 at 25. ⁷ 2 O_PPENHEIM, INTERNATIONAL L_AW: DISPUTES, WAR AND NEUTRALITY 229 (7th ed., Lauterpacht ed., 1952). ⁸ The textual paragraph is based upon TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE I_NTERNA- _TIONAL MILITARY TRIBUNAL AT N_UREMBERG (42 vols., 1947-1949) [cited hereafter as I.M.T.], and L_AW REPORTS OF TRIALS OF W_AR CRIMINALS (UN War Crimes Comm., 15 vols., 1947-1949) [cited hereafter as Reps. UN Comm.]. ⁹ Judgment, 1 I.M.T. 171 at 254 (1947); Trial of GauleiterArtur Greiser, 13 Reps. U.N. Comm. 70 at 1 l2-14 (Supreme National Tribunal of Poland, 1946).

¹0 1 LM.T. 171 at 243-47 (1947). ¹¹ 75 U.N.T.S. 31, Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. ¹² 75 id. 85, Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. ¹³ 75 id. 135, Geneva Convention (III) Relative to Treatment of Prisoners of War. ¹⁴ 75 id. 287, Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War. The date of each of the four Geneva Conventions is 12 August 1949. 15 Supra note 9. ¹⁶ See the text accompanying infra note 78. 1� U.N. Charter Art. 51 authorizes the use of force in self-defense. ^1$ Id. Arts. 1(2) and 73. See W.T. M_ALLISON & S.V. M_ALLISON, AN INTERNATIONAL L_AW ANALYSIS OF THE MAJOR UNITED NATIONS RESOLUTIONS CONCERNING THE P_ALES_TINE QUESTION 42-48 (UN Doc. ST/SG/SER.F/4, 1979).

¹⁹ 20 ISRAEL DIGEST (At�tex. E_D.) No. 16, p. 5, col. 2 (August 12, 1977), [published by the World Zion- ist Organization-Amer. Sec.]. ²⁰ Amendment 1 to the U.S. Constitution prohibits the government from making any distinctions between individuals on the basis of their religious identification. ²¹ Chapter 2, Sec. IIA supra. The Zionist "Jewish people" concept has been rejected by the U.S. Gov- ernment as a concept of intemational law in the letter of April 20; 1964. from Asst. Sec. of State Tal- bot to Dr. Elmer Berger, Exec. Vice Pres. of the Amer. Council for Judaism, printed in 8 Whiteman, DIGEST OF I_NT'_L L_Aw 35 (U.S. Dept. State, 1967). This Zionist juridical concept is appraised in W.T. Mallison, The Zionist-Israel Juridical Claims to Constitute "The Jewish People" Nationality Entity and to Confer Membership in it, 32 G_EO. WASH. L. R_EV. 983 (1964). ²² U.S. Constitution, Amendment 1.

²³ E,g" The Law of Return, as amended, 4 Israel Laws (auth. transl.) 114 (1950). Rufeisen v. Minister of Interior (Brother Daniel Case), 16 P.D. 2428 (1962), Selected Judgments of Sup. Ct. Israel: Spec. Viol, p. 1 (1971) and Shalit v. Minister of Interior, 23 P.D. (II) 477 (1969), id. at p. 35 apply the statute to determine membership in "the Jewish people." 24 Supra note 14. ²⁵ International Commission of Jurists, Newsletter: Quarterly Report #4, 29 at 33 (January-March 1980). 26 Chapter 1, Sec. 4A supra. ²⁷ Id., Sec. 4B.

²⁸ J. Abu-Lughod, The Demographic Transformation of Palestine, in T_I-IF T_ltnrtsFOxMATIOrt OF PALES- _TmrE 139 at 153-161 (1. Abu-Lughod ed., 1971). ²⁹ W. C_LAIBORNE & E. C_ODY, THE WEST BANK: HOSTAGE OF HISTORY 1 (Foundation for Middle East Peace, Nov. 1980). This book is a reprint of articles originally published in the Washington Post. The figures cited in the text were updated in W. Claibome, Israel Opens 11 Settlements in Bid to Offset Sinai Withdrawal, WASI3INGTON POST, Apr. 29, 1982, p. A21, cols. 1-6 at col. 1: The new outposts bring to 94 the number of Israel settlements in the West Bank, or 29 more than two years ago, when Begin publicly declared that only 10 more new settlements were planned for the West Bank and Gaza Strip. The population of the settlements is estimated to be about 20,000. ³⁰ ISRAELI MIRROR, SUNI News Service, London, #558, p. 3, May 21, 1981 (reprint from the J_ERUSA- _LEM POST, May 10, 1981). ³¹ W. Claiborne, Israel Turns to West Bank: Israel Says Pullout (from Sinai Was Last Concession, WASHINGTON POST, April 26, 1982, p. A1, col. 2 at p. A19, col. 1.

³² NEW YORK T_LmEs, Jan. 25, 1982, p. 6, col. 2. ³³ UN Doc. A/34/605 Annex and U.N. Doc. S/13582 Annex (22 Oct. 1979). ³⁴ J. Abu-Lughod, Israeli Settlements in Occupied Arab Lands: Conquest to Colony, 11 J. PALESTINE STUDIES No. 2, 16 at 45 (1982). ³⁵ 4 Israel Laws (auth. transl.) 68 (1948). ³6 Supra note 34, at 22-24. 3� Supra note 29, at 2; supra note 34, at 50. 38 Supra note 29.

³⁹ JERUSALEM POST, I_NT'_L EDITION, 21 June 1977, p. 2, cols. 1-4 at col. 3. 4� Supra note 21. 1. ⁴¹ Seventeen Residents of the village of Rujerib v. Gov't of Israel et al., (The Elon Moreh Case). H.C.J. 390/79, at pp. 6-8 (Sup. Ct. Israel, 22 October 1979). The eitation to this case is from the English translation prepared by the Government of Israel and circulated at the United Nations Headquarters.

⁴² For Jewish religious perspectives see E. Berger, "An Examination of the Claim of Zionism to Divine Authorization for Establishing Settlements," 1 Arab Perspectives No. 3, p. 24 (May 1980). See also E. Marmorstein, Heaven at Bay: The Jewish Kulturkampf in the Holy Land, passim (Oxford, 1969) in which the author emphasizes the thesis that Zionism and the religion of Judaism are incompatible. 43 Supra notes 11-14. ⁴⁴ The states are: Angola, Belize, Bhutan, Burma, Cape Verde, Comoros, Equatorial Guinea, Guinea, Maldives, Mozambique, Samoa, Seychelles, Vanuatu, Zimbabwe (all United Nations members), and Antigua and Barbuda, Kiribati and Nauru (not United Nations members). LC.R.C., INFO/DIF Nr. 1/1, 1 March 1982-JJS/DE, p. 15. ⁴⁵ 3 ISRAEL L. R_Ev. 279 (1968). ⁴⁶ The then Attorney General of Israel, Mr. Meir Shamgar, set forth the same arguments used by Dr. Blum, including the inapplicability of the Civilians Convention in the occupied territories in The Observance of International Law in the Administered Territories, I ISRAEL Y.B. Human Rights 262, 263-64 (1971). A memorandum circulated by the Israeli Embassy in Washington, D.C. entitled Jew- ish Settlements in Areas Administered by Israel (25 October 1977) also repeats Dr. Blum's argu- ments.

⁴⁷ Supra note 45, at 292-93. 48 _Id. at 283-88. ⁴⁹ The same arguments which appear in Dr. Blum's article, supra note 45, were repeated by him in The Colonization of the West Bank Territories by Israel, Hearings Before the Subcommittee on Immigra- tion and Naturalization of the U.S. Senate Committee on the Judiciary, 95th Cong., 1st Sess., p. 24 (Oct. 17, 1977). Dr. Blum also stated: Coming now to the question of sovereignty, I would have to say this. Yes, indeed, I consider Israel as the potential sovereign over Judea and Samaria. Id. at 36. Dr. W.T. Mallison presented a different legal analysis in the same Hearings. Id. at 46. ⁵⁰ It appears unnecessary to cite legal authority to demonstrate the relevance of the text of an interna- tional agreement to the interpretation of that agreement. The negotiating history is useful as a means of providing context and background for the text. The importance of context is emphasized in McDO_UG_AL, LASSWELL, AND MILLER, THE INTERPRETATION OF AGREEMENTS AND WORLD AND PUBLIC ORDER, 119 et seq. and passim (1967).

⁵¹ The negotiating history of the Civilians Convention is in 4 volumes (numbered I, IIA, IIB, and III) of the FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 (Swiss Federal Political Department, undated). ⁵² THE OCCUPATION OF ENEMY TERRITORY: A COMMENTARY ON THE LAW AND PRACTICE OF BELLIGER- _ENT OCCUPATION (1957). ⁵³ Blum, supra note 45, at 293, appearing in _VON G_LAHN, supra note 52, at 273. ⁵⁴ Supra note 52, at 31-37 under the subheading The Problem of Sovereignty over Occupied Territory and passim. ⁵⁵ Lieber's Code, supra note 3, contained Arts. 1-10 concerning belligerent occupation which were applied by the United States Government. The U.S. Supreme Court stated in The Grapeshot Case: "The duty of the national government in this respect [during the Civil Warl was no other than that which devolves upon the government of a regular belligerent occupying during war the territory of another belligerent." 9 Wall. (76 US) 129, 132 (1870).

56 Supra note 45, at 290. ⁵⁷ The West Bank's Legal Status, 20 NEW OUTLOOK, No. 7, _P. 60 (Oct.-Nov. 1977). ⁵8 Supra note 45, at 283. 59 Id. at 288, 292-93. ⁶⁰ The Trial of Wilhelm List and Others, 8 Reps. U.N. Comm. 34 at 59 (U.S. Military Tribunal, 1948). ⁶¹ Dr. Blum states: The legal standing of Israel in the territories in question is tbus that of a State which is lawfully in control of territory in respect of which no other States can show better title. Supra note 45, at 294. ⁶² The basic humanitarian purpose of the Civilians Convention is pointed out in Israeli Settlements in Occupied Territories, INT'L Come. Jurists R_Ev. No. 19, 27, passim (Dec. 1977).

⁶³ Supra note 45, at 293, 301. It is surprising to note that Dr. Blum, after demonstrating to his satisfac- tion that the humanitarian law does not apply in the occupied territories, then states: "[Tlhat part of the law of occupation applies which is intended to safeguard the humanitarian rights of the popula- tion." Id. at 294. He does not, however, identify that part of the humanitarian law whieh is designed to protect "humanitarian rights" or distinguish it from the part alleged to protect "reversionary rights." " ⁶⁴ 4 I.C.R.C. COMMENTARY ON THE CIVILIANS CONVENTION 77 (Pictet ed. 1958). ⁶⁵ I_NT'_L R_EV. OF RED CROSS No. 225, 320-21 (Nov.-Dec. 1981). ⁶⁶ In the Senate Hearing supra note 49, at 34, Dr. Blum cited only one authority for this argument: Schwebel, What Weight to Conquest?, 64 A_M. J. I_NT'_L L. 344 (1970) which attempts to develop a concept of "defensive conquest." ⁶⁷ Supra note 49, at 34-35.

⁶⁸ R.Y. J_ENNINGS, THE ACQUISITION OF TERRITORY IN INTERNATIONAL LAW 55 (1963). 69 Id. at 55-56. � Supra note 49, at 42. ⁷¹ Article 2, para. 2.

⁷² This claim is set forth in supra note 62, at 33 and answered at 35. ⁷³ See generally J.L. B_RIERLY, THE L_AW OF N_ATioNS 59-62 (6th ed. Waldock, 1963) concerning the making of customary law. Supra note 7 at 45l characterizes, inter alia, Article 47 of the Civilians Convention as "to a large extent declaratory of existing International Law." Article 47 is summar- ized in the text accompanying supra notes 14, 15. �4 Supra note 5. ⁷⁵ The Elon Moreh Case, supra note 41, at 10-l5 tested the validity of Israeli municipal law under the Hague Regulations although the State of Israel is not a party to the Hague Convention IV of 1907. The I.M.T. at Nuremberg had previously held that the Hague Regulations were declaratory of the existing law. Judgment, 1 I.M.T. 171 at 254 (1947). ⁷⁶ See the text accompanying supra note 5.

77 Supra notes 30-33. ⁷⁸ Final Record, supra note 51, 113 at 121. 1. 79 Id. ⁸⁰ IIA id. at 760. 81 WQid. at 416.

^gz Id. at 348. ⁸³ The Government of Israel ratified the four Geneva Conventions of 1949 for the Protection of War Victims (including the Civilians Convention) on July 6, 1951. Schindler & Toman, supra note 3 at 491. ⁸⁴ Supra note 49, at 25-26. ^g5 See the testimony of Mrs. Ann M. Lesch in Israeli Settlements in Occupied Territories, Hearings Before the Subcommittees on lnt'1 Orgs., and Europe and the Middle East of the U.S. House of Representatives Comm. On lnt'1 Rels., 95^th Cong., 1^st Sess., pp. 7-42 (including appendices) (Sept. 12, 1977). Mrs. Lesch's testimony indicates the displacement of Palestinians and the permanence of the settlements. 86 Supra note 7, at 452.

⁸⁷ Judgment, 1 I.M.T. 171 at 243-47 (1947). 8⁸ Supra note 64, at 283. ⁸⁹ S.V. M_ALL1SON, ISRAELI SETTLEMENTS UNDER INTERNATIONAL L_AW 15 (Amers. for Middle East Understanding, 1981). ). ⁹⁰ Supra note 64, at 278-80, 283. ⁹¹ 'Palestinian Self-Determination': Possible Futures for the Unallocated Territories of the Palestine Mandate, 5 YALE STUDIES IN WORLD PUBLIC ORDER 147 at 159 (1979). ⁹² Opinion of the Legal Adviser of the U.S. Department of State [1978] DIGEST U.S. P_RAC. IN I_NT'_L L. 177 (1980).

⁹³ Supra note 91, at 160. Professor Rostow's last quoted sentence concerning "no forced transfers" or "deportations" is factually in error. Supra note 85 passim. See J. Yemma, Tightening the Grip on Gaza. Israel's Quest for a Secure Border, C_fnttsTtAN SCIENCE MONITOR, April 20, 1982, p. 3, cols. 2-3. "[T]he situation on the ground here indicates Israel is intent on keeping Gaza under its control and pressuring Palestinians to emigrate." Id. at col. 2. ⁹⁴ Supra note 91, at notes 34, 35, p. 160. 95 _Id. at 162. ⁹⁶ Press interview, Christian Science Monitor, Feb. 4, 1981, p. 22, col. 3. Professor Rostow has been appointed director of the U.S. Arms Control and Disarmament Agency by President Reagan. ⁹⁷ E.g., CHRISTIAN S_CŒ_NCE MONITOR, Nov. 10, 1942, p. 1, col. 1, cont. p. 9, cols. 2-3, at col. 2. ⁹⁸ ISRAEL AND PA_LES_TINE: ASSAULT ON THE LAW OF NATIONS 1�7-81 (1981�. 99 Id. at 180.

¹⁰⁰ The text accompanying supra note 84. ¹⁰¹ Dr. Blum's statement, supra note 49, of Israel as "the potential sovereign" over the West Bank; the Drobles Plan in the text accompanying supra note 33. ¹⁰² TRIAL AND ERROR: THE AUTOBIOGRAPHY OF C_HAIM W_EIZMANN 405 and passim (East and West Library, 1950). ¹⁰³ H_A-A_RETZ, April 4, 1969, quoted in E. SAID, THE QUESTION OF P_ALESTINE 14 (Vintage Books, 1979). ¹⁰⁴ Supra note 28 passim. 10⁵ TAKING ROOT is published by the Research Studies Press of John Wiley & Sons (1980).

106 _Id. at 138-39. 107 _Id. at 147. 108 _Id. at 149-51 and passim. ¹⁰⁹ This study, subcaptioned "Pilot Study Report," was published in photocopied typescript in 1982. The study was supported financially by the Graduate School of the City University of New York and the International Center for Peace in the Middle East, Tel Aviv. 110 _Id. at 42-43. ^III Id. at 104-05. 112 Id. at 43-47. ¹¹³ Id. at 48-49. J. K_UTTAB AND R. S_HEHADEH, CIVILIAN ADMINISTRATION IN THE OCCUPIED WEST BANK: ANALYSIS OF ISRAELI MILITARY GOVERNMENT ORDER No. 947, passim (Law in the Service of Man, an Affiliate of the International Commission of Jurists, Geneva, 1982) demonstrates that Order 947 is solely in the interest of the belligerent occupant and in violation of international law. 11⁴ TAKING ROOT, supra note 105, at 35. ¹¹⁵ Supra note 35. See also supra note 109, at 29.

¹¹⁶ Supra note 109, at 32. See als0 I. L_USTICK, ARABS IN THE JEWISH STATE: I_SRAEL'S CONTROL OF A NATIONAL MINORITY 170-82 (1980). 117 _Id. at 34. ¹¹⁸ 8 see the text accompanying supra notes 76 and 77. 11⁹ Supra note 109, at 33. ¹²⁰ Id. at 35-37. 121 _Id. at 62. 122 Id. at 66. ¹²³ Id. at 64. 124 Id. at 66. ¹²⁵ Creating Facts on the West Bank (interview with Dr. Benvenisti), JERUSALEM PosT, I_NT'L E_D., Sept. 19-25, 1982, pp. 14-15 at 15, col. 3.

¹²⁶ The Israeli violations of private property rights as detailed by Mrs. Lesch, supra note 85, passim, constitute violations of the customary law of belligerent occupation as it was developed in the nine- teenth century. See supra notes 1-3 and accompanying text. ¹²⁷ Probably the most fundamental principle of interpretation is that a treaty must be interpreted so as to effectuate its basic purpose. See e.g., Harvard Research, Draft Convention on Treaties, 29 Aut. J. INT'� L. Su^pp. 937 et sey. and especially Art. 19. 128 Supra note 57. ¹²⁹ 21 Israel Laws (auth. transl.) 131 (1967). ¹³⁰ Quoted in supra note 57, at p. 60. 131 Id.

132 Supra note 14. 133 Supra note 64, at 16. ¹³⁴ Only the State of Israel voted against this resolution. 135 Id.

¹³⁶ See e.g., G.A. Res. 34/90B (12 December 1979) which calls upon Israel to apply the Geneva Civil- ians Convention in the Palestinian and other Arab territories under occupation (operative para. 1). Only Israel voted against this resolution. 13� The sanctioning authority authorized by the U.N. Charter appears in Chap. VII (Arts. 39-51). McDOUGAL & FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER (1961), Chap. 4, Community Sanctioning Process and Minimum Order, analyzes the existing sanctions process.