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those territories "constitute an obstacle to peace." The statement called upon Israel to comply strictly with the provisions of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (TIAS 3365; 6 UST 3516; entered into force for the United States February 2, 1956, subject to a reservation and statement), and it asked Israel "to refrain from and rescind any measure that would violate them."
The United States dissociated itself from the statement. Ambassador William W. Scranton, U.S. Representative to the United Nations, in an address to the Security Council, expressed agreement with much of the statement but said that it lacked balance. He noted that it made no reference to the Geneva Convention's explicit recognition that the occupying power has the duty to maintain law and order and the right to protect its forces. An excerpt from Ambassador Scranton's statement follows:
We agree ... that the Fourth Geneva Convention relative to the protection of civilian persons in time of war is applicable to the territories occupied by Israel since 1967. We believe in the importance of following its prescriptions. In fact we made our position on this question clear during the March deliberations in this Council. From the unanimous agreement, therefore, of this Council that the Fourth Geneva Convention applies to occupied territories, it follows that all of its provisions apply. We also agree that Israel should scrupulously comply with all the provisions of that Convention. Our position about the Israeli settlements in the occupied territories is similarly well known.
We are concerned, however, that the statement of the majority view lacks balance, and it is the element of balance which should be the hallmark of the deliberations of a body charged, as this one is, with maintaining the peace. While the summary statement does contain references to certain provisions of the Fourth Geneva Convention describing the obligations of an occupying power. there is no corresponding reference in the statement to those provisions of the Convention which explicitly recognize that the occupying power has the duty to maintain law and order and the right to protect its forces. We object, furthermore, to the fact that the statement is unrelieved by any recognition of the many areas in which Israeli administration of the occupied territories has been responsible and just, as in its administration of the Holy Places in Jerusalem and in its substantial efforts to permit the population to choose their own elected representatives to local government.
In particular, we believe the statement's sweeping injunction to Israel to rescind measures is out of place in this context and at this time.
[We would be remiss if we did not call the attention of the Government of Israel to the fact that there are aspects of its policies in the occupied territories, in particular that involving the establishment of settlements, that are increasingly a matter of
concern and distress to its friends throughout the world and are not helpful to the process of peace
Press Release USUN-59(76), May 26, 1976; Dept. of State Bulletin, Vol. LXXIV, No. 1930, June 21, 1976, pp. 797-798. The text of the U.N. Security Council majority statement on the situation in occupied Arab territories follows:
Grave anxiety was expressed over the present situation in the occupied Arab territories; concern was also expressed about the well-being of the population of these territories.
The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War is applicable to the Arab territories occupied by Israel since 1967. The occupying Power was therefore called upon to comply strictly with the provisions of that Convention and to refrain from and rescind any measure that would violate them. In this regard, the measures taken by Israel in the occupied Arab territories that alter their demographic composition or geographical nature and particularly the establishment of settlements were accordingly deplored. Such measures, which cannot prejudice the outcome of the search for the establishment of peace, constitute an obstacle to peace.
The Security Council should continue to follow the situation closely.
The United States joined in a consensus statement by the U.N. Security Council on November 12, 1976, strongly deploring measures taken by Israel in the occupied Arab territories which altered their demographic composition or geographic nature. It deplored particularly the establishment of Israeli settlements in the territories. The statement affirmed that the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (TIAS 3365; 6 UST 3516) applies to the territories occupied in 1967, and it called upon Israel once again to comply strictly with the provisions of that convention and to refrain from any measure that violates them. It declared invalid the measures and actions taken by Israel which tended to change the legal status of Jerusalem, and it called on Israel to rescind them. In a section worded in general terms, it recognized that "any act of profanation of the Holy Places, religious buildings and sites or any encouragement of, or connivance at, any such act may seriously endanger international peace and security."
Ambassador Albert W. Sherer, Jr., U.S. Representative, explained that the United States joined in the consensus because it believed it affirmed several important principles in regard to the occupied territories and reflected long-held and publicly stated U.S. positions. He observed, however, that the United States found the Israeli record in many respects positive, and that in particular Israel had carried out in good faith its obligations to safeguard the Holy Places.
See Note by the President of the Security Council, U.N. Doc. S/12233, Nov. 17, 1976. For Ambassador Sherer's statement, see U.N. Doc. S/PV.1969, Nov. 11, 1976, pp. 27-30; Dept. of State Bulletin, Vol. LXXV, No. 1954, Dec. 6, 1976, pp. 692-693. The Security Council consensus statement follows:
As a result of consultations over which I presided with all members of the Council, I am authorized as President to make the following statement on behalf of the Council.
Following the request submitted by Egypt on October 20. 1976, the Security Council held four meetings between November 1 and November 11, 1976, to consider the situation in the occupied Arab territories, with the participation of the representative of the Palestine Liberation Organization. After consulting all the members, the President of the Council states that the Council has agreed on the following:
(1) To express its grave anxiety and concern over the present serious situation in the occupied Arab territories as a result of continued Israeli occupation:
(2) Reaffirmation of its call upon the Government of Israel to ensure the safety. welfare and security of the inhabitants of the territories and to facilitate the return of those inhabitants who have fled the areas since the outbreak of hostilities:
(3) Its reaffirmation that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War is applicable to the Arab territories occupied by Israel since 1967. Therefore, the occupying power is called upon once again to comply strictly with the provisions of that Convention and to refrain from any measure that violates them. In this regard the measures taken by Israel in the occupied Arab territories that alter their demographic composition or geographical nature and particularly the establishment of settlements are accordingly strongly deplored. Such measures which have no legal validity and cannot prejudice the outcome of the search for the establishment of peace constitute an obstacle to peace (4) It considers once more that all legislative and administrative measures and actions taken by Israel, including expropriation of land and properties thereon and the transfer of populations which tend to change the legal status of Jerusalem. are invalid and cannot change that status, and urgently calls upon Israel once more to rescind all such measures already taken and to desist forthwith from taking any further action which tends to change the status of Jerusalem. In this connection the Council deplores the failure of Israel to show any regard for Security Coune.. Resolutions 237 (1967) of June 14, 1967, 252 (1968) of May 21, 1968, and 298 (1971 of September 25, 1971, and General Assembly Resolutions 2253 (ES-V) and 2254 (ES-V) of July 4 and 14, 1967;
(5) Its recognition that any act of profanation of the Holy Places, religious buildings and sites or any encouragement of, or connivance at, any such act may seriously endanger international peace and security.
The Council decides to keep the situation under constant attention with a view to meeting again should circumstances require.
On Nov. 16, 1976, Secretary of State Kissinger sent a letter to Senator Jacob Javits concerning the U.S. action in associating itself with the consensus statement. and the reasons for adopting that position. For the text of Secretary Kissinger's letter see Dept. of State Bulletin, Vol. LXXV, No. 1954, Dec. 6, 1976, pp. 693-695.
The Department of State announced on January 29, 1976, that it had approached the Soviet Government to request information about alleged war crimes, in German-occupied territory behind the Eastern Front during World War II, by three persons now residing in the United States. The request was made in a diplomatic note presented by the American Embassy in Moscow to the Consular Administration of the Soviet Ministry of Foreign Affairs on January 26, 1976. The Department stated that any information provided by the Soviets would be forwarded to the Department of Justice for use in possible Immigration and Naturalization Service administrative proceedings on whether these individuals concealed material information about their backgrounds in obtaining permanent resident status or naturalization in the United States. The State Department stated further that privacy and due process considerations would prohibit it from releasing any information about the individuals, or
any information about the alleged crimes which could lead to their public identification.
Dept. of State Press Release No. 39, Jan. 29, 1976. See ante, Ch. 3, § 3, p. 100, with reference to hearings on Nov. 15, 1976, before an immigration judge, regarding three resident aliens, two of whom were Latvians and one a Lithuanian.
Relocation of Japanese-Americans in
In a proclamation issued on February 19, 1976, President Ford declared that all the authority conferred by Executive Order No. 9066 of February 19, 1942, under which over 1,000 persons of Japanese ancestry were removed from their homes, detained in special camps, and eventually relocated during World War II, terminated upon the issuance of Proclamation No. 2714, which formally proclaimed the cessation of the hostilities of World War II on December 31, 1946. He stated in his proclamation that the evacuation of the Japanese-Americans had been "wrong" and "a setback to fundamental American principles." He added:
The Executive order that was issued on February 19, 1942, was for the sole purpose of prosecuting the war with the Axis Powers, and ceased to be effective with the end of those hostilities. Because there was no formal statement of its termination, however, there is concern among many Japanese-Americans that there may yet be some life in that obsolete document. I think it appropriate, in this our Bicentennial Year, to remove all doubt on that matter, and to make clear our commitment in the future.
Proclamation No. 4417, Feb. 19, 1976, Fed. Reg., Vol. 41, No. 35, Feb. 20, 1976, p. 7741. For E.O. 9066, Feb. 19, 1972, see 3 CFR Cum. Supp. 1092. For Proclamation No. 2714, Dec. 31, 1946, see 50 U.S.C. app., note prec. § 1.
Neutrality and Nonbelligerency
Daniel Gearhart, an American convicted of being a mercenary by a tribunal in Angola, was executed on July 10, 1976, after President Agostinho Neto of Angola refused to commute the death sentence, despite numerous pleas for clemency made by the United States, other governments, international organizations, and individuals. At a press conference in the Department of State that day, Secretary of State Kissinger stated:
[T]here is absolutely no basis in national or international law for the action now taken by the Angolan authorities. The "law" under which Mr. Gearhart was executed was nothing more than an internal ordinance of the MPLA [Popular Movement for the Liberation of Angola] issued in 1966, when the MPLA was only one of many guerrilla groups operating in Angola. Furthermore, no evidence whatsoever was produced during the trial of Mr. Gearhart in Luanda that he had even fired a shot during the few days he was in Angola before his capture.
The decision by President Neto to ignore both the law and the facts can only be regarded by the United States as a deliberately hostile act toward this country and its people. As such, it cannot help but affect adversely the development of relations between the United States and Angola.
Dept. of State Bulletin, Vol. LXXV, No. 1936, Aug. 2, 1976, p. 163.
In testimony on August 9, 1976, before the House International Relations Committee Special Subcommittee on Investigations, Assistant Secretary of State William E. Schaufele, Jr., said:
The recruitment of mercenaries within the territory of the United States to serve in the armed forces of a foreign country is an offense under our Neutrality Laws
. . . [N]o Americans were recruited directly or indirectly by the U.S. Government to fight in Angola. Those men were there on their own, without our advance knowledge or approval. We attempted to discourage Americans from going to Angola as mercenaries. Anyone who called us was given that message clearly and distinctly
... [A] legally accepted definition of what constitutes a mercenary does not exist in international law. Nor is the act of serving as a mercenary a crime in international law, not to mention Angolan law where the Angolan authorities were forced to use a set of guidelines for their combatants the MPLA issued in 1966. The general international practice appears to consider mercenaries in the same status as other combatants and therefore to be treated as such under the terms of the Geneva Convention of 1949. This has certainly been American practice back to the Revolutionary War and was reflected in our treatment of captured Hessian troops. This was also the case in the Civil War when there were combatants on both sides who fought for hire, adventure, or beliefs and who could be considered by some as mercenaries.
We had been skeptical about the quality of the justice administered, and were appalled by the severity of the sentence given to Mr. Gearhart. . . . [T]he act of being a mercenary is not a crime in international law and mercenaries were entitled to the same status and protection as other combatants under the 1949 Geneva