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