Freezing Natural Growth – “Measures Intended to Prevent Births”?

by Eugene Kontorovich

The U.S. and Europe have been vigorously insisting that Israel stop all “settlement growth,” including “natural growth.” There has been some question as to what those terms mean. In a June 16 press briefing, Sen. George Mitchell said that Israel must stop “natural growth” in settlements, and specified that he means “births” as well. Here is the State Department’s transcript (my emphasis):

QUESTION: Well, what does natural growth mean? I mean, can you just use it in –

MR. MITCHELL: I’m constantly asked by editors, you know, please give a plain explanation of what natural growth is….Well, of course, one of the issues is that there is no universally used and accepted definition. The most common definition is by the number of births, but there are many variations of that. I’ve had numerous discussions with many Israeli and other officials, and there are almost as many definitions as there are people speaking. But I think the most commonly used measure is the number of births.

QUESTION: (Inaudible) that number, please?

MR. MITCHELL: Yes. Yeah.

QUESTION: There seems to be a lot of focus on the talk about settlements, settlements.

MR. MITCHELL: Yeah.

This language is to my ear quite shocking. The Genocide Convention defines genocide as, among other things, “imposing measures intended to prevent births within the group.” To be sure, Mitchell is not saying the Jewish women in the West Bank should be required to have abortions. Yet the “measures” contemplated by the Genocide Convention are not limited to abortion. Demographic growth requires physical accommodation — bigger homes, new schools, and so forth. If one creates conditions in which there is nowhere to put one’s children — indeed where one is forbidden from making accommodations – one will not have “births” by Jews in the area. Indeed the point of the natural growth freeze is so that people who want to have “natural growth” move elsewhere.

Banning natural growth is designed to prevent, indirectly, births among the group, that group of being settlers, or more precisely Jews living in the West Bank.

I’m certainly not suggesting that anyone in the administration is guilty of genocide, or more precisely, genocidal conspiracy, complicity and incitement. I’m not a fan of accusing senior government leaders of high crimes regardless of how objectionable I find the conduct; it makes things personal and confuses debate. In any case, the requisite specific intent is quite difficult to demonstrate. Some supporters and some critics of a freeze speculate its goal is to slowly choke off or dry out these communities. If so, a freeze is to “destroy” the Jews of the West Bank as a group. But this would be difficult to demonstrate. The demographic effects could just be a side effect of the settlement freeze whose principal purposes are diplomatic. And much of it depends on whether “destroy” means the physical destruction of a people, or the destruction of the group as a group. In other words but the administration most likely is trying to promote — the removal of Jews as an ethnic group from the West Bank — is more like ethnic cleansing and genocide, and I believe there’s some dispute as to whether the Convention covers the latter, though I’m not an expert on how this has been applied by the ICTY or ICTR.

Now one might say that the settlements are illegal, an obstacle to peace, amoral, etc. I do not think that bears on whether international law permits suppressing “natural growth” among the civilian population. It should be clear to international lawyers that this would not affect the human rights of the people living there one bit. That is the point of human rights — the only qualification is humanity. This is a theme I hope to explore in subsequent posts. Suffice it to say now that even if creating settlements violates IV Geneva Art. 49, the violation is committed by the State of Israel, not the settlers themselves. They are not in any way punishable for any illegality.

In other words, even if the creation of the settlements was illegal, once they have a permanent resident civilian population, that population may have a right under the Genocide Convention not to have measures taken to prevent its natural growth.

 

http://opiniojuris.org/2009/07/08/freezing-natural-growth-measures-intended-to-prevent-births/

7 Responses

  1. What about cases where settlements were formed illegally, yet the settlers themselves have refused to leave even under direction by the State of Israel to do so? I understand your general point that human rights are human rights, would the settlers’ complicity in the illegality of the settlements only affect possible action under Israeli domestic law? Hypothetically, what about settlements that did not enjoy the sanction of the State of Israel even at their inception?

  2. This analysis has at least three major flaws:

    First, the interpretation of the Genocide Convention’s prohibition on “measures intended to prevent births” as including a halt on construction of housing is simply not credible.  This provision of the Genocide Convention refers much more specifically to measures such as forced sterilization and abortions (see pp. 172-173 of Schabas’ treatise on genocide).  Indeed, under the laughably elastic concept employed here (“Demographic growth requires physical accommodation — bigger homes, new schools, and so forth. If one creates conditions in which there is nowhere to put one’s children — indeed where one is forbidden from making accommodations – one will not have “births” by Jews in the area”), Israel’s prevention of nearly _any_ construction materials from reaching the Gaza Strip in recent years would also be in violation of the Genocide Convention.  And no one is seriously suggesting that the siege of Gaza, however unlawful, is in violation of the Genocide Convention.

    Second, this post is focusing on a complete distraction.  The phrase “natural growth” has been used by successive _Israeli_ governments in an attempt to carve out an exception to the absolute prohibition on colonization in art. 49(6) of the Fourth Geneva Convention.  Mitchell did NOT call for taking measures to stop ‘natural growth’ — indeed, as the transcript you cite points out, he is not using the term at all, precisely because it misleadingly recasts compliance with 4GC as basically against being Jewish babies when all that is needed is evacuation of settlements or at least cutting off state sponsorship of them.

    Third, the post inverts the logic of the Genocide Convention.  The Genocide convention does not create rights per se; it prohibits crimes.  Instead of cavalierly suggesting that settlers “may” have “rights” under the Convention (and thus insinuating that proponents of IHL compliance of support genocide or some kind of invidious discrimination while sneakily disclaiming such an accusation), a rigorous analysis would _first_ attempt to determine the existence of the requisite dolus specialis, then whether the measures in question met the definition of the prohibited acts.  Only after these two steps would it make sense to raise the issue of whether a “right” exists.  But of course proceeding in such logical order would required starting with the weakest part of the argument: the obvious lack of genocidal intent against Jews/Israelis/settlers/etc., to say nothing of the strained equation between construction freezes and measures to prevent births.

    The post is wrongheaded on so many levels.  [Edited by OJ]

  3. Am I missing something here? Mitchell’s statement doesn’t seem to have anything to do with trying to restrict settlers or jews of any stripe from having children. Rather, Mitchell and the administration are merely making clear that they view any settlement expansions as illegal and an obstacle to peace. Settlers can still have children, but either they or their children can’t live in the settlements since that would mean growth that added inhabitants to the already illegal existing settlement population.

  4. This posting about opposing natural growth settlements arrives at just the right time for my, admittedly more personal, experience in this vein.  Last year a couple broke into my home in Seattle and squatted the basement.  I tried everything I could to get them to leave, but they refused, claiming I was endangering the couple’s new pregnancy.  Finally, having lost my patience with them, the police, and the courts, I demanded that the couple leave before they actually started a family in my basement.  THEY then called the police and I was charged with infanticide.  I was furious every minute, lying here in jail, until I read this argument about Palestine.  I now see the light, thank you.   

  5. I expect that it is only 5% of the time that I would find myself on KJH’s side of this argument, but this is such a time. Whatever legal and moral arguments might be mounted against such policies, and I can certainly think of a lot of moral ones, neither genocide nor forced transfer seem to come into play.

    But I don’t find Student’s first rebuttal very persuasive either. The argument here appears to be with respect to banning births in a particular area. Theoretically, this would appear capable of constituting at least an ingredient in forced transfers/deportation and/or genocide, depending on other factors which I would respectfully suggest aren’t present, most obviously mens rea.

    Not allowing building materials (however little desirable) doesn’t seem in the same scale to putatively banning births, partly because it is a negative act with lots of diffuse consequences, requiring a proportionality analysis which will yield lots of different answers for different people. Blocking construction materials is probably never going to be more than an ancillary fact of any claim of genocide.

    Banning births, on the other hand, is a targeted action with prima facie intended harmful consequences.  it could easily be a part of a case for genocide, even prima facie evidence of mens rea. For that to be proportionate to something, the other thing would have to be extremely consequential indeed.

    Whilst I appreciate Israeli supporters trying to bend every crook and cranny of international law into their service, and indeed I think they should do so (I don’t believe in unilateral disarmement), this just seems like a crook too far.

  6. Eugene, on a technical point on the Genocide Convention is it not the case that measures intended to prevent births are only genocide if they are accompanied by the specific intent required by the Convention (i.e. the intention to destroy in whole or in part a particular group)? Thus, even if the talk of trying to stop ‘natural growth’ (by which I think is probably meant dissuading people from seeing the settlements as a place to start/raise/expand a family as opposed to anything more sinister) were to result in the introduction of measures intended to prevent births among Jewish people living in those settlements, I suspect any argument based on the Genocide Convention would run into a basic mens rea difficulty.

  7. Yes, it’s Auschwitz all over again. 

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