Reply #80: Settlements and Internationl Law

[Jack Rabbit]

EDITED to add link to original post

(Reposting from about ten days ago.)

The territories are occupied; the only dispute rests in the minds of Israel's rightwing and their friends abroad. The settlements are illegal under Article 49, paragraph 6 of the Fourth Geneva Convention (1949); more importantly, they're simply a roadblock to any meanignful peace agreement.

We will take first the issue of the legality of the serttlements. Article 49 of the Fourth Geneva Convention reads:

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.
The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.
The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.
The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

The last paragraph is the relvant one in this case. If I am wrong, then I am in good company. In 1978, a US state department opinion held that the settlemests were illegal under Article 49. The Mitchell Report says:

(C)ustomary international law, including the Fourth Geneva Convention, prohibits Israel (as an occupying power) from establishing settlements in occupied territory pending an end to the conflict.

In addition, Amnesty International, Human Rights Watch and the International Committee for the Red Cross all support the position that the Israeli settlements in the occupied Palestinian territories violate this clause. The commentary from the ICRC on Article 49 is most instructive here. It reads:

Article 49 is derived from the Tokyo Draft which prohibited the deportation of the inhabitants of an occupied country (2). As a result of the experience of the Second World War, the International Committee of the Red Cross submitted this important question to the government experts who met in 1947. On the basis of the text prepared by the experts the Committee drafted detailed provisions which were adopted in all their essentials by the Diplomatic Conference of 1949 . . . .
(Paragraph 6) was adopted after some hesitation, by the XVIIth International Red Cross Conference (13). It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.
The paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words "transfer" and "deport" is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power.
It would therefore appear to have been more logical -- and this was pointed out at the Diplomatic Conference (14) -- to have made the clause in question into a separate provision distinct from Article 49, so that 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.

It would seem from this that the situation that the authors of the Convention wished to prohibit is one where an occupying allows parts of its own population to colonize the occupied territory or supplant the population of the occupied territory. While the word transfer in the other five paragraphs of Article 49 definately has a meaning of forced transfer, the meaning of transfer in paragraph 6 may be either voluntary or involuntary transfer.

The fact that Israel has not forced any individual settler to move to the territories is irrelevant to the legality of the settlements. The fact that the Government of Israel has done nothing to discourage the growth of these settlements, and in fact has promoted them and continues to promote them, is in fact what makes them illegal. Were these in fact settlers moving independently on their own without the GOI subsidizing their housing and if the settlers were providing their own infrastructure and security, rather than the Israeli taxpayer, the case for the legality of the settlements might be a better one. As it is, the settlements are illegal.

How did this situation come about?

Israel fought a war against her Arab neighbors in 1967. Although some on this board will dispute the matter, I hold that Israel's posture was defensive in this war. By the end of the war, Israel had seized much territory from her adversaries. Among these was the West Bank and Gaza Strip, areas that were designated to become a Palestinian state in the late 1940s when Israel was born.

The convention since the end of the second World War has been to reespect national sovereignty. Resolution 242, passed by the United Nations Security Council in the wake of the 1967 war, speaks of "the inadmissibility of the acquisition of territory by war". In short, Israel could use the territory taken from her adversaries to bargain for peace agreements, but winning a war, even in a defensive posture, gave her no right to make any permanent claim to one square centimeter of land beyond her recognized borders.

However, not everybody wanted to abide by a land-for-peace formula when it came to the Israel and the Palestinian Territories. Jordan had annexed the West Bank in 1950 and didn't reliquinsh its claim on the Palestinian Territory until 1988. The Palestinians themselves refused to recognize Israel and sought to destroy the Jewish state and replace it with what would have been at best a secular Palestine. Arab nations also rejected Resolution 242 after it was passed in 1967.

Nevertheless, the relevant part of our story begins in 1977 with the Likud victory in Israeli elections, bringing Menachem Begin to power as Prime Minister. Until this time, Israel held the land captured in the 1967 for the purpsoe designated. A few sparse settlements were constructed, including one at Ekon Moreh in the West Bank, but nothing that could not be easily dismantled should a peace settlement with the Arabs about. Begin, however, considered the West Bank and Gaza to be an integral part of Israel. He referred to the West Bank by it ancient names, Judea and Samaria, and soon after his election as Prime Minister traveled to Ekon Moreh to call it part of "liberated Israel."

Begin's plan, announced before the Knesset in December 1977, was for Israel to extend its soveignty over the West Bank and Gaza while granted Arabs living in the region a degree of autonomy. Begin allowed Israelis to purchase land in the Occupied Territories and settle there and began the program of encouraging such activity.

One of the biggest supporters of this program was General Ariel Sharon, Begin's Minister of Defense. Sharon shared Begin's vision of a Greater Israel stretching from the River to the Sea. He has in the past expressed his intransignece on matters concerning peace with the Palestinians on nationalist rather than practical grounds.