A Response to Eugene

A Response to Eugene

First of all, welcome back!  I always enjoy your contributions to OJ (and your scholarship generally), even when I disagree with you.  So I hope you won’t think me too ungracious a host if I raise some (pointed) questions about your most recent post.  I would be genuinely curious to hear your responses.

I am, as I have pointed out ad nauseum, not an expert on international human rights law.  So I’ll limit my comments to whether any of the actions you discuss would qualify either as genocide or as forcible transfer (the technical name for intrastate “ethnic cleansing”).  I am very skeptical that they would.

I will go in order of the post.

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.

I think it is very difficult to argue that prohibiting “natural growth” in the settlements falls within the Genocide Convention’s prohibition of “imposing measures intended to prevent births within the group.”  As “Student” points out (rather ungraciously) in the comments, this prohibition was inspired by Nazi efforts to eradicate the Jews through forced sterilization, which no one (including you) is suggesting here.  In Akayesu, the ICTR expanded the “classical” definition of “measures intended to prevent births” to include things like sexual mutilation, forced birth control, separation of the sexes, and prohibitions of marriage. That’s an important and justifiable expansion — but prohibiting natural growth still seems to fall well outside of it.

Indeed, I question at least two of the basic premises of your argument here.  First, how can you say that prohibiting natural growth “creates conditions in which there is nowhere to put one’s children”?  Nowhere in the settlers’ preferred location, perhaps.  But they remain free to move back to Israel proper, where they have every legal right to build new houses or buy new ones.  You might think that is unfair, but even accepting your argument that limiting demographic growth could somehow run afoul of the Genocide Convention, I fail to see how state officials commit the actus reus of genocide by imposing conditions on where demographic growth takes place.

Second, I think it is even more questionable to suggest that prohibiting natural growth means that “one will not have ‘births’ by Jews in the area.”  Putting aside the fact that settlers who want more children could move out of the West Bank, do you really believe that settlers who insist on remaining in their settlements would rather not have children than live in closer quarters or put up with more crowded schools?  (I don’t have any statistics, but I’m guessing the population density is far higher in Gaza than in the West Bank.)  And where in the Genocide Convention does it say that depriving people of “bigger homes” and “new schools” is genocidal?

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.

I agree with you here.  But I think it is important to note that, even if it was possible to demonstrate that opponents of natural growth intended to destroy “the Jews of the West Bank as a group,” it is debatable whether such an intent would satisfy genocide’s mens rea requirement.  There is no question that specifically intending to destroy a group “in part” satisfies that requirement.  But I am not sure that “the Jews of the West Bank” qualify as a cognizable part of Jews as a whole for purposes of genocide.  The “Jews of the West Bank” are clearly not a cognizable group like the “Jews of Germany” during WW II, the classic “in part” situation.  The better comparison is probably to the “Bosnian Muslims of Srebrenica,” which the ICTY has held were a cognizable part of “Bosnian Muslims” generally.  Many scholars disagree with that interpretation — but even if we accept it, it is still not clear whether the “Jews of the West Bank” are a cognizable group.  In Krstic, the Appeals Chamber held that, to determine whether a targeted group is sufficiently “substantial” for purposes of genocide, we need to consider “the numeric size of the targeted part of the group… evaluated not only in absolute therms, but also in relation to the overall size of the entire group,” as well as “its prominence within the group… [and whether] a specific part of the group is emblematic of the overall group or is essential to its survival.”  Both factors, I believe, counsel against finding the “Jews of the West Bank” to be a cognizable part of Jews generally.  Quantitatively, Jews in the West Bank represent less than 4% of the Jews of Israel.  Qualitatively, Jews in the West Bank seem neither emblematic of Jews generally (though I confess I have trouble understanding what “emblematic” means) nor essential to Israel’s survival.

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.

This seems to be the crux of your argument: that prohibiting natural growth will lead to ethnic cleansing, because it will ultimately force the settlers to leave the West Bank.  I assume that the quote above contains two typos — that you meant to say the effect of the policy is “more like ethnic cleansing than genocide” and that there is some dispute as to whether the Genocide Convention covers the former.  (Please correct me if I’m wrong.)

As an initial matter, it is important to keep genocide and ethnic cleansing — more formally known as “deportation or forcible transfer” — analytically separate.  There are two primary differences: (1) forcible deportation (interstate displacement) and forcible transfer (intrastate displacement) do not require the specific intent to destroy; and (2) genocide does not require the forcible removal of the victims from an area in which they are lawfully present.  As a result, genocide can involve ethnic cleansing — such as the Armenian genocide, which involved displacing the Armenians in order to destroy them.  But it does not have to.

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 the claim with which I take the most issue.  Whether the settlements are illegal absolutely bears on whether displacing the settlers through prohibiting natural growth could qualify as ethnic cleansing/forcible transfer.  The Rome Statute (to take a typical example) defines forcible transfer as “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law” (emphasis mine).  There are thus two problems with your claim.  Most obviously, if the settlements are illegal, the settlers are not lawfully present in the area containing the settlements — in which case forcibly displacing them would not be criminal.

Moreover, although it is a more difficult question, even if the settlers are lawfully present in the area containing the settlements, it is far from clear that international law prohibits Israel from forcibly (i.e., against their will) displacing them.  IHL permits a state to displace lawfully-present individuals for a variety of reasons.  For example, Article 49 of the Fourth Geneva Convention — which you cite — explicitly permits an occupying power to “undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand.”  It is at least arguable that Israel is entitled to conclude that the security of the settlers and Israelis in general demand eliminating the settlements completely — to say nothing of simply prohibiting natural growth.  Israel may even be entitled to conclude that militarily necessity requires the same result.

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.

I question this argument.  Correct me if I’m wrong, but I do not believe that Israel forced the settlers to move to the West Bank.  Indeed, I believe that defenders of the settlements have argued (wrongly) that the settlements do not violate international law’s prohibition against an occupying power transferring its own population into occupied territory — Article 85(4)(a) of the First Additional Protocol and Article 8(2)(b)(viii) of the Rome Statute — precisely because the transfers have always been voluntary.  I think it is misleading, therefore, to say that the settlers have not done anything wrong by creating the settlements.

I would also question your definition of “punishment.”  Even if the settlers did not do anything wrong by moving into the West Bank, how is it “punishment” to require them to give up territory that does not legally belong to them?  If I buy property from someone that I know is not its rightful owner — which seems to be the case with regard to most of the settlements — I am not allowed to keep the stolen property when the real owner wants it back.  I’m often not allowed to keep the stolen property even if I did not know it was stolen.  Would you say that I am “punished” in either situation?  The second situation may seem unfair, which is why it makes sense to give the good-faith purchaser a remedy against the seller.  But is the purchaser being “punished” by requiring him to give up the property?  I’m not so sure.

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.

Finally, I am simply baffled by this claim.  Even granting all of the arguments I’ve questioned above — granting, in other words, that it is possible to view prohibiting natural growth as a form of genocide — the settlers still do not have a “right” to natural growth of the settlements if they are illegal.  The Genocide Convention, as “Student” points out, does not create individual rights.  A violation of the Convention entails state responsibility.  A violation of the various criminal provisions adopted to give effect to the Convention, such as Article 6 of the Rome Statute, entail individual criminal responsibility.  Nothing more.

I look forward to your thoughts.

Print Friendly, PDF & Email
Foreign Relations Law, International Criminal Law, International Human Rights Law, Middle East, National Security Law
No Comments

Sorry, the comment form is closed at this time.