Response to Kevin and commenters

by Eugene Kontorovich

I thank Kevin for his extensive and thoughtful response to my post. You touched on many issues which I hope to address systematically in subsequent posts, such as the illegality of the settlers presence. I’m going to try to avoid getting into those issues right now, since this post (like yours before it) is already quite long. I apologize in advance for typos.

Two points of clarification. What prompted my post is a comment by Sen. Mitchell that the administration wants to see a freeze in settlement growth as measured by births. If, as you suggest, the settlers accepted increasingly crowded conditions and their population continued to grow apace, I do not think this would be considered as satisfying a settlement freeze. If the Administration made clear that Jewish population growth through births was not a problem — they don’t mind if the Jewish population doubles so long as the live on top of each other — I would agree with my critics that this is not about genocide/ethnic cleansing. The problem is Jews not Jewish houses. The Palestinians want a state free of Jews, not of Jewish-built houses. Note that all peace plans contemplate the removal of the Jews, not of the roads, houses and other facilities they have built. This is the significance of Mitchell’s comment about births. If there are still births, that means the screws have not been twisted tightly enough.

Second, I don’t want to sell the Genocide point too strongly because I agree that it might “just” be ethnic cleansing. I’m quite open to the possibility that this is not the actus reus of genocide, but rather just flirting with it. Why that makes any liberal-minded person feel better is beyond me, as we well explore below as I engage some of Kevin’s points, grouped into two headings: 1) does it prima facie violate the Genocide Convention; 2) is there some warrant or excuse for sometimes violating it?

1. Human Rights Originalism.

We are not discussing whether Israel can forcibly remove them for military necessity – though by the way, I think invocations of such Art, 49 provisions applied to only one ethnicity would be highly suspect these days. We are talking about whether the U.S. can seek their removal for diplomatic reasons.

You argue that the Genocide Convention’s ban on “measures designed to prevent births” is limited to the kind of methods used in World War II by the Germans. That’s a fair point and not one that I would rule out. It depends on whether we are human rights treaty Originalists or Textualists. I know many of my conservative friends would be delighted to find Originalism alive and well in international law. But keep in mind that the same kind of questions arises with the Geneva Convention itself. An originalist approach to both treaties would say neither the settlements nor the ban on their natural growth violates international law.

The official commentary to Art. 49(6) makes clear that it was also designed to respond to the official German policy of sending massive waves of Germans into foreign countries to demographically overwhelm the local population. If we care about the “original intent” the document had in mind, it is quite clear that the voluntary movement of Jews in relatively small numbers into Mandatory territory where many had lived until being expelled is pretty far from the WWII German colonization the Geneva Convention seemed to contemplate. Indeed, I believe supporters of applying 49(6) to the settlements say it is not limited by the original historic context, or push the historic analogy to the maximum.

I’m more of a textualist myself. A complete moratorium on “births” may not be the original problem the Genocide Convention responds to, but I believe fits at least as plausibly as a “measure.” The words “transfer” and the words “measure” are quite indeterminate in their meaning, and I hope to explore this more in a subsequent post.

Not building schools or clinics is not inherently genocidal, just like contraception is not inherently genocidal. If the goal of a government policy banning such construction is to remove the population, that changes its nature. I’m not suggesting that anyone has an affirmative right to housing – just to be free of policies that forbid them housing.

I find much more difficult the easel with which you’re to countenance ethnic cleansing the theory that they had it comin.’ You think international law provides a warrant for ethnic cleansing in these circumstances because of language in the Rome Convention. That language only says the deportation is illegal when permitted by international law, and does not provide any independent authority to do so. I any case, the Rome Convention is irrelevant, as it was obviously drafted with three decades of Israeli presence in the West Bank under the bridge, and seeks to specifically target it. Which is why Israel is not a party. Note that the ICTY’s anti-deportation provision has no similar qualifications – it was never thought to apply to Israel. In any case, even if the “deportation and transfer” of a population into occupied territories is illegal, I cannot see how that means the very fact of their continued presence their constitutes is “illegal” on the level of the individual and not the government – but that is the subject of a subsequent post.

Note also in this regard that the Geneva Convention forbids “transfer” by the Occupying Power– and the Rome Statute expands on this, prohibiting “transfer, directly or indirectly.” Art 8(8). I wonder what they had in mind? I also see this as quite strong corroboration that 49(6) itself can be comfortably read to not cover “indirect” transfer of the kind that much of Israel’s government-backed settlement represents (and which is still only a portion of settlement).

You suggest the Jews of the West Bank are not a group. This is like saying the Palestinians of the West Bank and non-contiguous Gaza are not a group, they’re just Arabs. The Jews are a distinct ethic group in a distinct geographic area. They are certainly always treated as a distinct group – settlers.

It is no answer to say they can move out of the West Bank. Of course, that is the point of a genocidal/ethnic cleansing! The Kosovars could move out of Kosovo, the Tibetans out of Tibet… The idea that one can avoid measures designed to prevent births by leaving the defined geographic area makes those measures – when target in a discriminatory way at only one ethnoreligious group — less objectionable is callous.

As I said, the Rome treaty provides no warrant for rendering an area free of a particular ethnic group. You also invoke general equitable principles – they stole the land, so they can be “forced” to give it back.

2. They Stole It

The land is certainly not stolen in the conventional sense. It did not belong to a Palestinian state, so it is not stolen on a “national” level. Nor did most of it belong to private Palestinians, simply because most land in historic Palestine did not belong to private individuals but rather to the government. This remained the case under the British, Jordanians, and Israelis. I believe (but am not sure) that this is why so many settlements are built on former Jordanian army bases, which were themselves generally built on state land. Indeed, in Israel proper something like 90% of the land remains under this regime. Usually when people speak of “Palestinian land,” I believe they mean land that should belong to a Palestinian state. Similarly, one would not say Europeans “stole” all of North America from the natives in a conventional sense. To be sure, some settlements may be built on private Palestinian land – and some Palestinian housing maybe be built on Jewish land – but this is a matter of property law not international law.

The argument for Palestinian statehood – a serious one – is not one of restoration, but of using the happy occasion of Israel’s victory in ’67 to effectuate Palestinian self-determination. Sovereignty and property rights are separate questions. The West Bank may not belong to Israel, but that does not mean the homes Jews built on non-privately owned land do not belong to them, or they illegally occupy them. For example, Mexicans illegally come to the U.S. clearly this does not give Mexico sovereignty over the U.S., even if the Mexicans became a majority in a county or state adjacent to the border. However, if Mexicans bought or built houses there, it does belong to them. The question of the underlying ownership of land in historic Palestine is an extremely odd and confused one, and best not to mix with international law questions of sovereignty. To put it mildly, title searches are not as easy there as here.

In any case, the settlers certainly had a good faith basis for their presence. You may disagree with the Mandate/242 argument for Israel retaining some of the West Bank, or the view that the GC does not apply at all, but they are serious arguments. It really is not so obvious – see Stephen Schwebel, Rostow, myself. Surely disagreement on a nonobvious point of law with no genuine precedent is not a warrant for the ethnic cleansing of half a million civilians. One might say Israel could be similarly purged at a later date since its population was on notice for decades that “Zionism is Racism,’ and that the Palestinians regard the Jewish state as one big land theft, and have maintained a live claim against it.

Assume their very presence – as opposed to the governmental policy of transferring them – is illegal. Do you think that international law authorizes expulsion after 40 years? 80? How many other rights have they forfeit? You say they can be “forcibly” removed – with deadly force? Does this apply to Russians in Abkhazia and Transdniester; Turks in Cyprus; Indians and Pakistanis in Kashmir, Senghalese in Sri Lanka? If so, it is big news. Where did this remedy come from? Has reputable international lawyer ever suggested those civilian populations can be purged? If a country democratically elects a genocidal leadership, can the victims wipe out that regime because it was acting illegally?

http://opiniojuris.org/2009/07/09/response-to-kevin-and-commenters/

9 Responses

  1. This elaborate argument distracts from a basic fact: The fundamental problem with the settlements is that they represent inequality.  They are built for Israeli Jews only and are part of an elaborate regime of discriminatory privileges in the West Bank in terms of legal rights and access to resources that favors Israelis over Palestinian residents of the West Bank.

    There are two ways to end this inequality: Either for the settlers to leave, or for them to give up their privileges.  Concretely, this would mean the Israeli government giving settlers a choice between evacuation or loss of state sponsorship/protection (and by extension, their privileges).

    The author is wrong in recasting the debate as being about the mere presence of Jews when it’s fundamentally about ending inequality.  This is obvious when one considers the fact that it has not occurred to anyone — even Hamas — to call for the expulsion or exclusion of the (admittedly few) non-settler Jews living freely in Palestinian communities in the West Bank, including international aid workers, journalists (such as the Israeli journalist Amira Hass), and of course Palestinian Arabs of the Jewish faith.  That is because these people, although they are Jews, do not avail themselves of the discriminatory privileges offered by the settlement system.

    At the end of the day, this is about telling a group of people who enjoy the fruits of discrimination that they can either leave a territory or accept equality.  The author wishes to call this “ethnic cleansing,” but most people in the world would probably use another term: decolonization.

  2. The Palestinian Authority has a law banning the sale of property to Jews. This is a continuation of the pre’67 Jordanian policies. The penalty is death. I doubt anyone would countenance expelling the Palestinians who enjoy the fruits of this inequality.

    But I agree that it is conceivable that the settlers could stay under Palestinian sovereignty, but I doubt this would be acceptable to the latter.

  3. I’m sure someone with more time and energy than I can at this point expend will provide a point-by-point answer to your post, but one thing in your post did immediately leap out at me, and I think it’s a point that the first commenter, Abraham, touched upon. You wrote:
    ”  The Palestinians want a state free of Jews, not of Jewish-built houses.”
    Actually, I think what the Palestinians have most consistently ‘wanted’ throughout this conflict is citizenship, and the rights that automatically flow from that.  Recall that the initial goal of Fatah, the DFLP, PLFP and most all the other member groupss of the PLO initially wanted was one secular state of all its citizens in the area of mandatory Palestine.  They pointedly did not call for the expulsion of the Jews.  They did call for the destruction of Zionism- but not the Jews.
    Or, to put the issue a slightly different way, the Israelis could completely annex the West Bank and Gaza.  Then they could just give the Palestinians citizenship.  And the conflict would be (mostly) over, at least as the intial demands of the Palestinians are concerned.  But of course that would mark the end of the ZIonist project which was a state of the Jews. 
    The fundamental problem is not that the Palestinians want a Jew-free state, but that the Zionists want a substantially Arab-free Israel.
    The inequality and discrimination that the Palestinians suffer can only be ended by giving them citizenship.

  4. Kontorovich writes: “The Palestinian Authority has a law banning the sale of property to Jews.  This is a continuation of the pre’67 Jordanian policies

    What is the citation for this particular law?  According to the pro-Israeli media watchdog group CAMERA, the Jordanian law in question banned land sales to Israeli citizens, not Jews:
    http://www.camera.org/index.asp?x_article=39&x_context=2

    According to CAMERA, the Jordanian law was passed in 1973, when Jordan and Israel were still technically in a state of war.  For one state to ban land transfers to citizens of an enemy state in wartime is hardly surprising, even if the merits can otherwise be debated.  In any event, this purported law does not seem to support the proposition that the relevant issue is expelling Jews qua Jews.

    Also, as recently as last week PA Prime Minister Salam Fayyad announced that any settlers remaining in a Palestinian state would enjoy equal citizenship rights:
    http://www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=1097932

    One may question Fayyad’s ability to carry out such a promise, but the point is that Palestinian acceptance of Jewish is not as unthinkable as Kontorovich would have us think.

  5. Lars states, “They pointedly did not call for the expulsion of the Jews.  They did call for the destruction of Zionism- but not the Jews.”

    And the “Final Solution to the Jewish Question” was the number 2.  Oh wait . . .

  6. Here is an example of the PA’s policy against selling land to Jews in action (this sale happens to have been to an American Jew, not an Israeli, as far as I understand):
    http://www.ynetnews.com/articles/0,7340,L-3704752,00.html

    As far Fayad’s recent statement in Aspen that Jews can continue living peacefully in a Palestinian state, well, I’d like to see him say it an Nablus. I think there is every  reason to doubt his sincerity. However, it if is true that he would not mind a Jewish minority, then that tends to undermine the argument that some settler babies wil threaten the viability of a Palestinian state.

  7. this article just seems to prove hannahs point above: prohibiting land sales to israelis isn’t a shocker if palestinians are being colonized by israelis (also, where did you get the “understanding” that the sale is to an american jew?  doesn’t say so in the article).  it doesn’t mean that pals are all anti-semites like you keep wanting to suggest…

    abraham said it best: if there are jews who live openly and freely as non-settlers in the wbank, then being jewish is not the problem.  the problem is discrimination.

  8. Dear Eugene,
    with all due respect, this debate has an Alice-in-Wonderland quality. If the prevailing interpretation of Article 49 § 6 of the 4th GC is correct – and it is held by all States in the world except one which is a party to the conflict in question – the presence of the settlers is illegal under international law. According to the rules of State responsibility, the consequence of illegality is reparation – i.e., the establishment of the status quo, that is the status of 1967. Thus, the settlements have to go if there is no agreement between the parties – that is, Israel and the future State of Palestine – that some of them can stay.
    The settlers knew of the international situation when they settled. If anything, they may have a right to compensation by the Israeli government that made them go there, in full knowledge of the international illegality of the settlements.

    Of course, that does not imply that the settlers can be removed in a violent way. The problem is what happens when they resist. This is a question of domestic law and police powers. It is not an international problem as long as basic human rights are respected. There is no such a thing as a right to remain at a place where your presence is illegal under international including human rights law in occupied lands. Reestablishing legality in a legal way is neither genocide nor a crime against humanity.
    Best wishes,
    Andreas Paulus

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