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.