For those who have missed it, a impressive debate on the legality of West Bank settlements has been in progress for the past week between several of South Jerusalem’s readers. To find it, look in the comment section of my post, The Paper Trail: Settlement Land Theft. The dueling writers have remained civil – no small thing in blogland. Meanwhile, they’ve provided a thoughtful, articulate and footnoted overview for anyone interested in this issue.
That said, it’s an unequal battle. Beginning at comment No. 14, David (with some assists from Fiddler) lays out the basics of international law on occupation and the prohibition of settlement. On the other hand, commentator aliyah06 (with some assists by others) summarizes the arguments that have been used by defenders of settlement.
Sorry, aliyah06 et al. Outside of the pro-settlement echo chamber, these positions are considered quirky. While the Israeli government has used them for PR purposes abroad, it takes entirely different positions when arguing real legal cases before the Israeli Supreme Court. I’m sorry. The government has treated you, and others who quote its PR arguments, as useful idiots.
Here are some key points for understanding the illegality of settlement:
– International law changed in the years World War II. By the time of the Six-Day War in 1967, acquiring territory through conquest had been banned – even if the conquest took place in a defensive war. Historical examples from earlier times – even from Israel’s War of Independence are irrelevant.
– A particularly significant change in international law was the Fourth Geneva Convention of August 1949. Article 49 bars an occupying power from transferring “parts of its own civilian population into the territory it occupies.” As the official commentary explains, this is to prevent the occupier from colonizing the occupied territory to the detriment of the population living there.
– The West Bank is occupied territory, as it was occupied in an armed conflict and lies outside territory over which Israel has recognized sovereignty. It does not matter that no other country is recognized as sovereign there. As its name – “Convention relative to the Protection of Civilian Persons in Time of War” – testifies, the Geneva Convention wasn’t written to protect the rights of states, but of civilians. In our case, it protects the people who were living in the West Bank and found themselves under occupation, and who are harmed by the steady expansion of Israeli settlement..
Arguing about whether the West Bank is “disputed territory” or “occupied territory” is silly, because it is both those things. As long as its disputed, it’s not sovereign Israeli land.
– A government can transfer its citizens to occupied territory without putting a gun to their back. Israeli settlement in the West Bank – and in the Golan – was and is a massive government project. It’s cheaper to live in settlements because the government subsidizes life there, in more ways than most settlers can see.
– The Israeli government knew at the outset that it was violating the Geneva Convention by creating civilian settlements. In a secret memo dated October 15, 1968, proposing massive settlement, Defense Minister Moshe Dayan wrote, “Settling Israelis in administered territory, as is known, contravenes international conventions, but there is nothing essential new about that.” Arguments that settlement was legal came after the fact in an unsuccessful effort to blunt international criticism.
– The Israeli government administers the West Bank (except for unilaterally annexed East Jerusalem) as land under military occupation. Before the Supreme Court, it argues that settlement is temporary, like the military occupation itself. The argument is disingenuous, because every settlement is intended to create permanent changes and alter final borders. Nonetheless, the position taken before the Court utterly undercuts the claim that the West Bank isn’t under occupation.
Of course, there’s a wider political context to this legal debate. The Palestinian residents of the West Bank live under military occupation because Israeli governments since 1967 have understood that formally declaring Israeli sovereignty over the territory would require giving the Palestinians full rights in Israel, including the right to vote. At that point, Israel would become a binational state.
On the other hand, Israel could have ruled the West Bank in accordance with the laws of occupation: maintaining military control until peace, while refraining from moving its civilians into the territory.
Instead, Israel encourages Israelis to move into the territory, and treats them there as if they were living in sovereign Israeli territory. They vote, and pay taxes, and appear before civilian courts, exactly like other Israeli residents, while their Palestinian neighbors live under occupation. This dual policy makes a farce of any defenses of the legality of settlement.
OK, the shouts from the echo chamber can resume now.
20 thoughts on “On Settlement Legality, With Thanks to Our Readers”
I am not an international law expert, but I have some questions:
(1) If it is obvious that the settlements are illegal, why hasn’t the Israeli Supreme Court ruled that way? Please don’t say “because no one has brought the case to them”. I am sure Peace Now would be glad to, and we all know what the political leanings of the large majority of the justices is. So why not have them rule they are illegal and be done with it?
(2) I still clearly remember that Jimmy Carter said the settlements were illegal, and they turned to the international law department of the State Dept. and they said they are not illegal. So Reagan changed the line to “they are not helpful” and that is where it lies to this day. No doubt there are differences of opinion in the State Dept over the matter, but there is at least one opinion that they are not illegal.
(3) Finally, SO WHAT? So let’s say they are illegal. What are you going to do about it?
On (2), I think you have misremembered both the position of the US State Department under President Carter and the subsequent sequence of events. The State Department’s legal adviser, Herbert Hansell, issued an opinion in April 1978 directly saying that the settlements were illegal. That opinion was (as far as I know) never reversed: the State Department’s legal office has never asserted that settlements are legal.
After President Reagan’s election, since he had directly claimed that settlements were legal during the election campaign, the State Department, in order not to undermine the new President, deliberately came up with a new formula that would leave the question of legality aside while asserting official US opposition to settlements – the “obstacles to peace” formula. That then formed the official stand of the US under President Reagan (and of course later too) – not directly asserting the illegality of settlements, but not asserting their legality either, instead focusing on their political effects. But even then the State Department’s earlier opinion occasionally emerged, as when Nicholas Veliotes, then assistant Secretary of State, testified to Congress in October 1981 that settlements were illegal.
As I say, the issue of illegality has been carefully ignored in almost all official statements of successive US administrations since 1980; but the State Department directly asserted their illegality under President Carter, and that has never (as far as I know) been officially reversed.
YBD, you have remembered history in photo negative, the opposite of how it happened.
The position of U.S. administrations, from Johnson through Carter, was that settlement was illegal. That view was expressed, for instance, in a State Department cable to the embassy in Israel on April 8, 1968 (see: http://www.state.gov/r/pa/ho/frus/johnsonlb/xx/2667.htm, document 137.)
Reagan broke with this view. His position might be termed “voodoo law” to go with his economic ideas.
Reagan put the State Department legal office in a bind. It couldn’t disagree with the president, but no lawyer was willing to write an opinion that agreed with him either. See the New York Times, August 25, 1983, “STATE DEPARTMENT; ABOUT THE WEST BANK AND THE EMPEROR’S CLOTHES”:
“It happens so often in Washington that it could be called ”The Emperor’s New Clothes Syndrome.” A President makes a statement that his aides know is questionable, at best, or wrong, at worst. But because the remark is made by the President, his aides devote their energies not to correcting it, but to trying to find some way of substantiating it or glossing it over…
“…when the question is asked whether the State Department’s legal office has an opinion on the matter, a reporter is told that the only document on the subject remains Mr. Hansell’s three-page opinion, which was drafted and sent to Congress at the request of two subcommittees of the House. It was also published in the State Department’s Digest of United States Practice in International Law 1978. Said one official: ‘It has never been repudiated, because none of the lawyers wants to write a paper saying the settlements are ”not illegal” because they know they will have too much trouble proving it.’
There is only fact that is important: the Jewish settlers in Hebron vote in Israeli elections. The Arab residents of Hebron do not. When the Arabs of Hebron finally get around to demanding the vote in Israeli elections -and they will- what will YBD tell them? That only Jews can vote? Will he say to them, what are you going to do about it? When does YBD want Israel to acknowledge openly that it is a racist country? Because on that day Israel is finished – not because the West will turn its back on Israel, although it will, but because the secular Jews who are the source of Israel’s economic and military strength will leave. They and their children are not interested in living in a racist totalitarian fundamentalist state.
The end is already in sight, isn’t it? The children of the secular Jews who create the wealth of the country already are showing that they are tired of fighting and dying for the fundamentalists who demand to live in Hebron. The army is in crisis over the fundamentalist demands that they be protected from their own violations of the law.
The YBD’s of the world, with their “what are you going to do about it?”, seem to think that Israel will succeed where South Africa failed. They think that with fences, and walls, and electronic surveillance, they can create and maintain an apartheid society indefinitely. What they don’t understand is that apartheid and democracy don’t go together. If you commit to apartheid, you are committing to fascism. And the Jews that Israel needs to grow and thrive – the engineers and programmers and the rest of the members of the modern world – will not choose to live in a country ruled by fascistic, fundamentalist theocrats.
I personally don’t care about the legalisms. And I don’t care about the rights of the Palestinians. I care about the survival of Israel. And from what I can see, the settlers are killing Israel.
I note you, like so many “liberal Zionists” put your head in the sand, and ignore the fact that the Arabs object to an Israel of any size, even within the pre-67 lines, view the Jewish towns and yishuvim as being on “stolen Arab land”. Withdrawal to those lines, as Olmert has proposed will only stoke Arab/Muslim extremism and make a big war only more likely.
The future of Judea/Samaria is an Israeli-Palestinian-Jordanian condominium. Jews will live under Israeli rule, Arabs under whatever Jordanian/Palestinian regime they work out together. At the beginning Israeli security would be predominate, but if a modus-vivendi is achieved and the violence ends, this security presence would be drawn down, the roadblocks removed, free movement restored for the Arabs (as it existed during the pre-Oslo Israeli occupation period). This arrangement is slowly being implemented today, as more and more people realize the Palestinians are not capable of setting up and running a state…they need to be associated with a larger, stronger, more stable state like Jordan. The Jordanians have always proven to be pragmatic and will cooperate, as they have since 1967 with Israel. HOWEVER, this arrangement will not be official, because the Arabs could never agree to it FORMALLY, just as they will not agree to any formal peace agreement with Israel, even for the mythical, unworkable “2-state solution”. This will only come about once Islamic radicalism, Iranian-HAMAS-HIZBULLAH-style is seen to be in decline and a failure…we are not at that stage yet.
The Islamists have promised that Israel is on its last legs and will disappear in 20 years or so (G-d forbid!) and all the withdrawals and statements from Olmert that “Israel can’t fight any more” simply strengthen them. However, there is no question things will change and everyone will eventually see that Islamic extremism is a political dead-end, just as Nasserite Pan-Arabism was eventually seen to be, after years of excitement.
It is interesting that the settlements of the Golan are on even weaker legal grounds than those of Judea/Samaria, because that territory is not “disputed” as is Judea/Samaria. It belonged to a sovereign state, Syria, and there was a recognized border between Israel and Syria before the Six-Day War. Yet, the Left doesn’t get as agitated about the “legality” of those settlement. There are several reasons why, one of which is that the settlement there was started by the “kosher” Labor Party, not the “primitive, religious” Gush Emunim people. Another is that there is not a large, hostile population there as there is in Judea/Samaria. But the clincher is, and I believe this also goes back to the situation in Judea/Samaria, the fact that the final status of all these territories is in a “holding pattern” defined by UN Security Council Resolution 242….meaning their future is to be determined by negotiations. Thus, should Israel agree to remove all these settlement, they will, or the Arabs could agree to give up these territories (a long shot today, but who knows what will be in the future?) and the settlements would stay. So I say again, the “legality” or not of the settlements is irrelevant.
Is Israel a signatory to the Fourth Geneva Convention?
If we go by international law, then there are a helluva lot of other countries that need to address this issue – and Israel need not be the first one to comply.
Of course, we could always claim we conquered territory as a result of a war of defense and end all the arguments.
As for Genvea, read the opening words on the document: “Article 1. The High Contracting Parties undertake…” Who was/were/are the High Contracting parties whose civilians Israel is supposed to be acting against?
And you cannot ignore San Remo, League of Nations.
Israel ratified the 4th Geneva Convention in 1951. See http://www.aiipowmia.com/legis/protocoles.pdf
As noted earlier in this discussion, the fact that a country occupied territory in a defensive war does not mean that it has the right under international law to annex it or settle its citizens there.
As I noted before, I think anyone can quote anything to spin their argument, and there is certainly no meeting of the minds here on what the Geneva Convention means vis-a-vis the West Bank, but as a practical matter all this legal wrangling is pointless.
Gershon, let’s assume you are correct, for the sake of argument — then what? Unilateral withdrawal? Didn’t work in Gaza, won’t work in the West Bank or Golan, either — and anyone who says it will is delusional. You’ll have Hezbollah batteries up on the Golan and Kassams being fired from Tulkarm and Kalkilyah into Netanya and Kfar Saba.
How about the Two-State solution? The Palestinians mostly don’t want it and it certainly isn’t working this week in India/Pakistan (the original two-state solution to Moslem sovreignty demands). What makes you think its going to work anytime soon in this neighborhood?
“the fact that a country occupied territory in a defensive war does not mean that it has the right under international law to annex it or settle its citizens there.”–please, this is circular reasoning; the “occupied territory” has to have belonged to another country to START WITH (emphasis, not shouting–I can’t underline here) and it did not. That’s why the territory is “disputed” and that’s why Resolution 242 calls for the fixing of bounderies–because there AREN’T (emphasis, not shouting) any bounderies and never have been.
Nu? Folks get so stuck on the intellectual gamesmanship of how to slice international law that they don’t look at the outcome. The Palestinians don’t abide by international law–I don’t hear any criticism of that. Why not?
Let’s have a ‘confidence-building measure’ — let’s start with Red Cross visits to Gilad Shalit, mandated under the Geneva Convention and wholly ignored by the Palestinians — on the grounds that they aren’t signatories to the Geneva Convention! Talk about double standards!
I have just perused Moshe Drori’s judicial decision regarding Noam Federman. Some short outtakes: the judge refuses to accept the legitimacy of the demand of the state to prohibit a Jews from living in the Land of Israel by exiling him without commensurate severity of a crime. The request to ban someone to live in a large area of Eretz Yisrael (note: Eretz Yisrael not Medinat Yisrael!) goes against the entire judicial system. It would seem to me that there is a difference of legal opinion on this issue you raised and that Drori follows the lead of Eugene Rostow, Yehuda Blum, Julius Stone, Howard Grief, Eliav Shochetman, L. Oppenheim & H. Lauterpacht, Stephen Schwebel and other professors of law and lawyers who justify the right of Jews to live, reside, etc. in Judea and Samaria and that their presence there is legal as are their homes, their fields, their institutions, etc. Geneva Convention Art. 49 simply does not prohibit “settlement” but protects against displacement and deportation. Israel does not mass deport Arab residents and surely does not to so within Israel proper. So, it would seem that your basing yourself on someone like Theodor Meron is at best just taking political sides, not legal.
“So, it would seem that your basing yourself on someone like Theodor Meron is at best just taking political sides, not legal”. No, that does not follow. The fact that there are two legal opinions does not mean that both are equally valid, or that one would only choose between them on a political rather than a legal basis. The view of Rostow, Blum et al. is not widely accepted among international lawyers, and indeed it has been repeatedly rejected in the judgments of international bodies whose rulings are regarded as authoritative, such as the International Court of Justice.
Look at it this way. If I argue a case before the US Supreme Court, and the Supreme Court rejects my arguments, there are certainly two legal opinions available, but the two opinions are not of equal legal value or authority. My opinion has lost, and the opinion that is taken forward in subsequent law is the one supported by the Court. Observing that the law is what the Supreme Court has ruled it to be is not a “political” choice, but simply the effect of their having ruled a particular way.
Something similar (mutatis mutandis) applies in cases of international law. It is true that no single body has the normative authority within the international system that the Supreme Court has in the US, but the cumulative weight of international judgments adds up to much the same effect. To state the majority opinion under those circumstances is not to “take political sides”, but simply to apply settled law.
And it has to be said that the opinion of Blum et al. always came across as something of a stretch (which is why most international lawyers rejected its reasoning even before it was specifically ruled against by bodies like the ICJ). The stretching can be seen in your own statement that “Geneva Convention Art. 49 simply does not prohibit “settlement” but protects against displacement and deportation”. This is not true, as can be seen if you look not only at the text of the Convention, but also at the official commentary, which makes it clear that the last paragraph is there to protect _the native population_ from having their economic and racial position worsened by having the occupiers’ civilians colonizing the territory around them. Nothing is said, and nothing is implied, that indicates that the natives have to be displaced or deported for that paragraph to take effect.
And as I said, that is not some weird minority view: it is the standard interpretation of the law. I am not surprised to find that there are still judges within Israel who rule otherwise (since after all, the Israeli government still officially holds to the Blum/Rostow etc. interpretation) but I would be very surprised if there were many international lawyers who thought this was a valid legal ruling in the international context.
David writes ofr the Geneva Convention’s 49 that it’s there so that ” _the native population_ from having their economic and racial position worsened by having the occupiers’ civilians colonizing the territory around them. Nothing is said, and nothing is implied, that indicates that the natives have to be displaced or deported for that paragraph to take effect.”.
Well, if we can prove that their economic position has vastly improved and in comparison with other Arab countries is also better, would the Convention then by applicable?
But to the point, I read that “This clause was adopted after some hesitation, by the XVIIth International Red Cross Conference.” Oh, gee. Hesitation. Well, I’m still hesitating then. And this: “the concepts of “deportations” and “transfers” in that Article could have kept throughout the meaning given them in paragraph 1, i.e. the compulsory movement of protected persons from occupied territory”. “Compulsory”? Is that what happened in Israel with Judea, Samaria and Gaza?
On another aspect, the deportation/transfer element was introduced only because of the German/Nazi practices in WW II since the Hague Convention had not included it. In other words, it’s not the principle but the practice – which means that “political” opinions of judges are also a part of what is legal, especially when one enters the field of “the interpretation” of the law.
There are many other countries who have parallel problems dealing with territory, etc. yet it seems that only Israel is being ganged up on. This is not law but the jungle. I have no desire to be part of this world of law and I suggest that all those who adhere to liberalism take the same stand.
Btw, as for the evacuation element in Geneva, since some of the Gush Katif residents were living in locations that had been established prior to 1947, why didn’t any liberal legal eagle suggest that those persons were protected by Geneva?
@Yisrael: the commentary makes clear the reason for the hesitation: as opposed to paragraphs 1-5, paragraph 6 refers to movements of the occupier’s own population into occupied territory, and in this context “transfer” and “deport” have quite a different meaning than in the first five paragraphs. Therefore this clause ought to have been made into a separate provision distinct from art. 49.
The Hague convention had not included similar provisions because it was thought then that the practice had fallen into disuse, not because deportations were deemed fine and dandy “in principle”. The Armenian genocide and WW II obviously proved that deportations were in fact still very much in use.
The eviction of 3/4 a million Palestinians from to-become Israel in 1948 would clearly have fallen under the prohibitions of art. 49, had it been in force then.
The “Israel is being singled out” argument begins with a guilty plea. That’s what you’re saying: yes, ‘we’re in the wrong, but other places are also in the wrong, why do we have to talk about Israel?’
There’s two solid answers to this: we’re focussing on Israel, because unlike nearly every other similar situation, this is an injustice which ramifies well beyond the borders of Israel/Palestine. We ALL have a stake, because we’re all dealing with the consequences of this particular injustice. That’s true in a way that, say, the chinese occupation of Tibet is not.
And secondly, you’re guilty. You just confessed. If you want to stop taking heat, stop doing wrong. Your mother told you that two wrongs don’t make a right, and that what the other boys and girls are doing doesn’t make what you’re doing OK. It’s just as true now as when your mother taught it to you as a child.
And lastly, the inhabitants of Gush Katif were relocated by their own government to another place within their own country. Art. 4 of the 4th GC however defines:
“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”
In the context of the evacuation the settlers were “in the hands” of Israel – the Party to the conflict of which they *are* nationals, thus they were not protected persons.
Stan, don’t be silly. I haven’t confessed to anything nor have I admitted any guilt. My arguments start from the positive and end that way. This is the Jewish land and it was intended, all of it that Israel now controls and administers post-1967, by recognized international legal framework, to become the “reconstituted Jewish national home” with no, no reference at all to “Arabs” but to “non-Jews” only. In the middle, I suggest that in a world that is imperfect in any case and prefers to pick on the relatively weak, that those who are for sure in the wrong and their situation doesn’t come close to the just one of Israel, that they refrain from sticking their noises in places they don’t belong.
And Fiddler (don’t you just love people who are so sure of themselves and their opinions hide behind nom de blog?): a) not all Arabs (and surely not 3/4 million) were evicted in ’48 and allow me to guess that if the Jews had lost that war – one that was launched by Arabs and Arab states in violation of the UN resolution to establish two states out of the British Mandate (that is, of course, the original sin which all seem to miss or ignore) – not one of you would be arguing in the favor of those left alive, refugees themselves.
And by the way, did you all know that the original 191 spoke of “Palestine refugees”, not “Palestinian”, and that therefore, in principle (had Israel not announced it was voluntarily withdrawing from UNRWA in 1953 or so), Jews from Gush Etzion, Bet Haarava, Atarot, and the Old City of Jerusalem, etc. should have been received funds as refugees and even UN monies to reestablish their homes in…the “occupied territories” – your lingo. Ha.
and b) we, living in Judea and Samaria, were not “transferred in”. Many Jews were here for hundreds of years and many until right before 1947-48. That’s the natural reality. Somehow, in your heat for the “Pals.”, you overlook that element of the equation which negates the applicability of Geneva 1949 to our situation.
And as for my mother, who is deceased over a decade, she asked to be buried here in Shiloh’s cemetery. She knew what was right: Jews belong in homes in their homeland.
1. First: on Resolution 194 (I presume you mean that, and not “191”). In fact it refers to neither “Palestine refugees” nor “Palestinian refugees”, but more generally to “refugees”, making no distinction by nationality or religion. So yes, you are absolutely right that IF put into effect, and IF not superseded by other overriding considerations of international law (see 3 below), it would give exactly the same rights to Jewish refugees who fled what are now Israeli-occupied territories the right to return to their homes as to Palestinian refugees to return to their homes in what is now Israel.
Can I please confirm with you that you support this? I have to say that I’m surprised, if so – your other postings on this site gave no impression that you support the Palestinian right of return to Israel, but I cannot see any interpretation of Resolution 194 which would give rights to Jews but not to Palestinians.
Of course, if you don’t support the Palestinian right of return under Resolution 194, then you are just playing with words, and the rest of your argument is a dead letter.
2. Assuming, however, you do accept this argument, then this would allow Jews who fled (or their legal heirs) to return to (or be compensated for) the pieces of property that they abandoned. It would not cover a single piece of property that was not Jewish-owned in 1947-8, nor would it cover a single Jew who could not show that they either fled themselves at that time or legally inherited the property from those who did. What proportion of the current occupants of the settlements do you think that applies to? My guess (admittedly rough and ready) is that it is less than 1% of them, but you may have fuller information.
3. But even that is assuming that the relevant portions of the Fourth Geneva Convention are superseded by the specific provisions of Resolution 194. In fact that is not the case, as is amply confirmed by the legal resolutions on the subject. The Geneva Conventions postdate Resolution 194, and provide the overriding framework for all the laws of war: if there is any conflict between Resolution 194 and the Geneva Conventions it is the latter that take precedence.
And like it or not, from a legal point of view “transferred in” is precisely what the settlers have been. Whatever the situation 20 or more years previously, they were not there in the years prior to the Israeli conquest of the territory, and they moved there subsequent to the conquest, not only with the permission of the Israeli government, but with that government actively working to plan, implement and support the settlements (as Gershon has documented in detail in his book). And, as is confirmed by repeated judgements of the relevant authorative legal bodies, every part of that is illegal, no matter the prior status of the settlers in question.
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