Israel Matzav

On the legality of Israeli 'settlements'

On Thursday, I linked a Washington Post article that unearthed a 30-year old 'legal opinion' from the Carter administration's State Department Legal Adviser that claimed that Israeli 'settlements' are 'illegal' under the Geneva Convention. It seems that opinion was based on the writings of a legal scholar who vehemently argued that 'Israeli settlements' are completely legal (Hat Tip: Daled Amos).

Those who maintain that the settlements are illegal rely on Article 49 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, which states:

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…are prohibited…

and in the sixth paragraph:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

They interpret this as applicable to Israel’s settlement of the West Bank and Gaza, understanding Israel to have become a "belligerent occupant" of this territory through entry by its armed forces. They also argue that settlement policy leads to the violation of Palestinian rights under international humanitarian law–specifically, their right to self-determination, equality, property, freedom of movement, an adequate standard of living, and freedom of movement.Those who maintain that settlements are legal interpret Article 49 (6) of the 1949 Fourth Geneva Convention as inapplicable to Israel’s settlements.

For example, the late Professor Julius Stone—considered one of the premier legal theorists —maintained that the effort to designate Israeli settlements as illegal was a "subversion. . . of basic international law principles."

Among the 27 books he authored was Israel and Palestine: An Assault on the Law of Nations which dealt with the legal aspects of the Arab-Israeli conflict. In it, Stone set forth the central principles of international law upon which Israel’s right to settle the West Bank is based and discussed the inapplicability of Article 49(6) of the Fourth Geneva Convention to the case of Israeli settlement.

Stone drew upon the writings of Professor Stephen Schwebel, former judge on the Hague’s International Court of Justice (1981-2000), who distinguished between territory acquired in an "aggressive conquest" (such as Japanese conquests during the 1930s and Nazi conquests during World War II) and territory taken in a war of self-defense (for example, Israel’s capture of the West Bank and the Gaza Strip in 1967 war). He also distinguished between the taking of territory that is legally held by another nation (such as the Japanese occupation of Chinese territory and the Nazi Germany occupation of France, Holland, Belgium and other European lands) as opposed to the taking of territory illegally held. The latter applies to the West Bank and Gaza, which were not considered the legal territories of any High Contracting Party when Israel won control of them. The West Bank and Gaza were never the territory of a High Contracting Party; the occupation after 1948 by Jordan and Egypt was illegal and neither country ever had lawful or recognized sovereignty. The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate which encouraged Jewish settlement of the land.

Regarding Israel’s acquisition of territories in the 1967 war, Schwebel wrote:

Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. ("What Weight to Conquest," American Journal of International Law, 64 (1970))

Proponents of the view that settlements are legal further argue that Article 49 was intended to outlaw the Nazi practice of forcibly transporting populations into or out of occupied territories to death and work camps and thus cannot be applied to Israel because Israelis were neither forcibly transferred, nor were they intended to (nor do they) displace Arab residents of the territories. Arabs continue to live in these territories and their population continues to grow.

Those who believe settlements are legal also maintain that it is not the existence of settlements that have an impact on Palestinians’ standard of living, right to self-determination, equality, property, and freedom of movement. Rather, the impact upon their freedom of movement and standard of living is directly a result of the threat they pose to their Israeli neighbors and their governance by the Palestinian Authority.

Hansel's opinion was based in large part on and cited Professor Julius Stone's 1959 analysis, Legal Controls of International Conflict: a treatise on the dynamics of disputes- and war-law. Given that Stone himself adamantly argued that Israeli settlements are legal, it certainly suggests that Hansell's legal opinion was based on a misconstrual of the intent and meaning of Stone's earlier analysis.

Read the whole thing.

posted by Carl in Jerusalem @ 2:37 AM