Are the West Bank settlements illegal?…asks Ian Lacey

September 15, 2016 by Ian Lacey
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One of the original elements of the continuing “lawfare” against Israel , which is still resurfacing , is the assertion that the settlements are “illegal”.

Despite its widespread uncritical acceptance it is a self-evidently false assertion which is based entirely on Paragraph 6 of Article 49 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in time of War. 

Ian Lacey

Ian Lacey

That paragraph reads as follows: “The occupying Power shall not deport or transfer parts of its own civilian population into territory it occupies.”

There are a number of reasons why this provision simply does not apply to the settlements:

  1. Professor Julius Stone, the renowned author of the authoritative Legal Controls of international Conflict, pointed out that the Geneva Conventions were framed in the context of the then recent experience of the Nazi war crimes. In particular he noted that “In the drafting history, Article 49 as a whole was directed against the heinous practice of the Nazi regime… of forcibly transporting populations… into and out of occupied territories for the purpose of liquidating them with minimal disturbance of its metropolitan territory or to provide slave labour, or for other inhumane purposes.”
  2. The Fourth Geneva Convention provides protection for civilians, when a state which has signed the Convention occupies the territory of another such State. Since Jordan has renounced any claim to its “West Bank” and no state of Palestine yet exists, it follows that Israel is not occupying the territory of any other State, and that the Convention does not apply.
  3. The present position is that until a peace treaty is concluded, the West Bank is correctly described as “disputed territory”. Indeed under the Oslo Accords it is contemplated that the presence of the settlements is just one of a number of issues to be negotiated in the “final status agreement”. A future Palestinian state might well agree to have Jewish residents or Jewish enclaves if the conditions were satisfactory, or it might not, and a final status agreement under the Oslo Accords might or might not be eventually concluded.
  4. The activity prohibited by Article 49.6 is that the occupying power shall not “deport” or “transfer” parts of its own population into occupied territory. That means that an occupier must not compel elements of its own population to move into the occupied land. As such this is clearly an extension of the protection of the civilians of the territory provided by paragraphs 1-5 of Article 49 which prevent the deportation of civilians out of the territory. As a provision aimed at protecting the citizens of the occupying state, the paragraph obviously does not apply to a completely voluntary and historically motivated population movement.

It follows that the Jewish settlements, while they may or may not be considered desirable depending on the observer’s viewpoint, are certainly not in breach of any international law.

Ian Lacey

Ian Lacey AM, BA, LLB is the editor of the booklet International Law and the Arab-Israel Conflict, comprising extracts from Israel and Palestine – Assault on the Law of Nations by Julius Stone, and extracts from the international agreements made after the date of its publication in 1980.

Comments

8 Responses to “Are the West Bank settlements illegal?…asks Ian Lacey”
  1. Leon Poddebsky says:

    Mike, you’re hilarious.

  2. Leon Poddebsky says:

    What a shame that Mike Gold has not read the determination of the International Court
    of Justice and the UN Security Council regarding Namibia,a determination that unequivocally asserted the continuing validity of all of the Mandates of The League of Nations, including the 1922 Mandate for ‘Palestine, which endorses the Jewish right to close settlement in the whole of ‘Palestine’, including the heartland, Judea and Samaria.

    But then, we have some Jews who will bend over backwards in their futile attempts to
    show that Israel is the bad guy.

  3. Eion Isaac says:

    The Settlements are proof that there was room in Mandatory Palestine to save millions of the Jews of Europe from Genocide and this is their Justification.
    The Arabs rejected partition before the Hololocaust and this would have saved millions of Jews-from
    Genocide and created a Jewish Arab confederation that would be technologically advanced with superb medical care and huge numbers of infrastructure jobs while allowing continued agricultural productivity by Jewish Arab and even some International Research Farms .

  4. Serge Sztrajt says:

    Yes, much modern humanitarian international law comes out of the reaction of the world to the plight of Jews during the 1930’s and 40’s. To imply that it only applies in those situations is ridiculous. If that was the case nearly all current Refugee and Human Rights International law would be irrelevant.

  5. Mike Gold says:

    What a shame that dating back to just three months after the Six-Day War the Israeli foreign ministry issued the exact opposite opinion. It was clear to Israelis even then that legally (a) the territories are occupied, not merely disputed, and (b) settling civilians there contravenes the Geneva Convention

    http://www.nytimes.com/2006/03/10/opinion/israels-tragedy-foretold.html

    Not only does this article have Mr Lacey ignoring Israeli opinion, but also the opinion of 90% of international law experts.

    • david singer says:

      Mike

      The opinion you refer to was given by Theodor Meron the legal counsel to the Foreign Ministry.

      In March 2010 I wrote an article dealing with Meron’s opinion in which I stated:

      “Meron’s opinion, and others that support him, certainly must be considered but they are not the be all and end all of legal opinions on the right of the Jews to build settlements in the West Bank.

      There are other legal opinions, by people of similar status to Meron, that take the contrary view and who determine that the settlements are legal based on the provisions of the 1922 League of Nations Mandate for Palestine and Article 80 of the 1946 United Nations Charter: two crucial pieces of international law that were not even considered by Meron or as far as I am aware by any of those supporting Meron‘s opinion.

      These opinions include:

      1. the International Court of Justice in an advisory legal opinion on the effect of article 80 on June 21, 1971;

      2. Professor Paul Riebenfeld, an international lawyer who spent his life researching the Mandate Archives in Geneva and was present at the debates that took place at the San Francisco Conference in 1945 that led to the inclusion of Article 80 of the United Nations Charter;

      3. Judge El Araby, a member of the International Court of Justice; and

      4. Eugene Rostow former Dean of Yale Law School and Undersecretary of State for Political Affairs in the Johnson Administration and Director of Disarmament and and Arms Control in the Reagan Administration.”
      http://www.onlineopinion.com.au/view.asp?article=10242&page=0

      You can add to the above list the late Howard Grief and Professor Jacques Gautier who produced seminal works including their opinion that article 6 of the Mandate for Palestine and article 80 of the UN Charter vested the legal right in the Jewish people to reconsitute the Jewish National Home in Judea and Samaria (the West Bank).

      • Mike Gold says:

        If you really want, here is yet more proof that the Israeli government knew that creating settlements was illegal under international law – but tried to find BS arguments like the ones you cite to get around. They knew it was obfuscation, but tried it anyway. It seems it worked only a few (e.g. you).

        http://www.haaretz.com/israel-news/.premium-1.742757

        • david singer says:

          Mike

          Dismissing the opinions of the ICJ, Riebenfeld, El Araby, Rostow, Greif and Gautier as “BS” shows your inability to argue your case with any authority or conviction.

          I must sincerely thank you however for bringing this latest article in Haaretz to my attention because it confirms the accuracy of my previous response to you.

          The same Meron who wrote the opinion in September 1967 on the applicability of the Geneva Conventions is now shown to have co-signed a secret cable sent to Yitzchak Rabin – Israel’s then Ambassador in Washington – in March 1968 “to tell the Americans that there are unique aspects to the status of the territories and to our status in the territories. Before the Six-Day War, the Gaza Strip wasn’t Egyptian territory, and the West Bank, too, was territory that had been occupied and annexed by Jordan without international recognition. Given this ambiguous, indeterminate territorial situation, the question of the convention’s applicability is complex and unclear prior to a peace agreement that includes setting secure and recognized borders.”
          read more: http://www.haaretz.com/israel-news/.premium-1.742757

          What were the unique aspects of the status of the territories and Israel’s status in the territories that Meron was referring to?

          They were obviously the right of the Jews to legally reconstitute the Jewish National Home within those territories under article 6 of the Mandate for Palestine and article 80 of the United Nations Charter.

          Jews kicked out of those territories in 1948 and denied their rights under the Mandate and the UN Charter had fortuitously been able to return to those territories as a result of the Six Day War in 1967.

          The 1922 Mandate and the 1945 UN Charter were territory-specific provisions created for the benefit of the Jewish people well before the 1949 Geneva Conventions were a twinkle in anyone’s eyes.

          Relying on the Geneva Conventions to try and strip the Jewish people of their vested legal rights is a pure con job and is reprehensible.

          Regrettably it has been swallowed hook line and sinker by people prepared to believe that the settlements are illegal in international law

          Where and whether Israel should exercise those rights is a political matter for proper discussion and debate.

          But Israel’s right to do so is legally unassailable as the International Court of Justice and the experts I have referred to are concerned.

          Indeed the architect of the opinion on the applicability of the Geneva Conventions argument to the territories – Theodor Meron – apparently had had a change of heart when he co-signed this secret cable to Rabin.
          Of course he had never even considered the Mandate when he wrote his initial opinion as I had previously pointed out.

          I can now add Meron to the list of those who support the legal right of Jews to close settlement on the land, including State lands and waste lands not required for public purposes in Judea and Samaria.

          Thanks once again.

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