Additional Thoughts on Eugene’s Post

by Kevin Jon Heller

Thanks, Eugene, for the thoughtful reply.  I look forward to your subsequent posts and will leave a more substantive reply until then.  For now, I just wanted to offer a few thoughts.

1. I don’t think anyone should feel “better” if removing the settlers qualified “only” as a crime against humanity, instead of as genocide.  Both are incredibly grave crimes, and I am always dubious of attempts to rank international crimes in terms of their gravity.  That said, it is difficult to deny that calling something genocide carries more rhetorical force than calling it a crime against humanity.  I think it is important, therefore, to keep the two types of crimes analytically distinct.

2. I would love to discuss originalism vs. textualism in treaty interpretation.  I am absolutely not a textualist, although I am no more comfortable with various orginalisms, such as “original public meaning” or “original expected application.”  I suppose you would describe me as an intentionalist, no doubt reflecting the fact that Stanley Fish was my mentor when I was a literature grad student.  That said, I made clear in my previous post that I have no problem with the ICTR’s extension (in Akayesu) of the “measures intended to prevent births” form of genocide, because I believe that extension was consistent with the intent of the drafters of the Genocide Convention.  My point was simply that it is very unclear whether prohibiting natural growth would satisfy the actus reus of genocide even under Akayesu‘s far more capacious definition.

3. I am bothered by your claim that it is “easy” for me to countenance ethnic cleansing.  That claim presumes that “forcing” the settlers to leave the settlements by prohibiting natural growth would be ethnic cleansing — which is exactly the conclusion that I was questioning.  If it would qualify as ethnic cleansing, I would certainly not countenance it.  Indeed, I would hope the responsible government officials would be prosecuted for their crimes.

4. I also think that your claim reinforces my point that how we label certain actions matters a great deal.  It is completely plausible to argue that it would be fundamentally immoral to “force” the settlers to leave by prohibiting natural growth.  But you obviously want that result to be described as ethnic cleansing, because you quite rightly understand that it is more rhetorically powerful to label something a crime against humanity than to label it an immoral act.  Fair enough.  But is it not also fair to ask whether, as a matter of law, prohibiting natural growth qualifies as ethnic cleansing?  Should you be allowed to harness the rhetorical force of a crime against humanity if the act of which you complain is not actually such a crime?

5. I don’t quite understand what you mean when you write that the Rome Statute “only says the deportation is illegal when permitted by international law, and does not provide any independent authority to do so.”  I assume you mean that the ICC has no jurisdiction over Israel’s actions, even if criminal, which is clearly correct.  I would point out, though, that the Rome Statute’s definition of forcible transfer is the same as the ICTY’s.  In Stakic, for example, the Appeals Chamber held (para. 278) that “the actus reus of deportation is the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure state border or, in certain circumstances, a de facto border, without grounds permitted under international law.”  Even at the ICTY, then, ethnic cleansing/forcible displacement is only a crime against humanity if the displaced persons are both lawfully present in the area and international law does not permit their displacement.  (I will put off discussing the illegal transfer of settlers into occupied territory until your post on that issue.)

6. For the record, I questioned the idea that the Jews of the West Bank are a cognizable group for purposes of genocide; I did not reject that idea.  I simply wanted to point out that, from a doctrinal perspective, the issue is far more complicated than it might initially appear — my attempt at the kind of “nuanced” discussion of international law that, as you rightfully comment, is often all too lacking when Israel’s actions are being scrutinized.

7. I’m sorry, but your claim that the Rome Statute “provides no warrant for rendering an area free of a particular ethnic group” is simply incorrect.  Perhaps Article 8(2)(b)(viii) is irremediably flawed; perhaps forcible transfer should be a crime even if the displaced ethnic group has no lawful right to be in the area and even if international law permits their displacement for security, military, or humanitarian reasons.  But that is not what the Rome Statute says, and that is not what ICTY jurisprudence says.  So again, if the settlements are illegal, or if they are legal but Israel has the right under international law to displace the settlers anyway, such displacement would not, as a matter of law, qualify as a crime against humanity.  And that is true even if the net result of prohibiting natural growth leads all of the settlers to abandon the West Bank.

8. I will leave discussion of whether the settlements are illegal to others who know more about that area of international law than I.  I was simply responding to your claim that their illegality, if proven, would have no bearing on whether displacing the settlers would be ethnic cleansing/forcible transfer.

9. With regard to your question about how many “rights” the settlers have to forfeit if their presence is illegal — again, you are assuming precisely what you need to prove.  Do illegal occupants of territory have the “right” to stay there, as opposed to a moral claim?  Is there some kind of adverse possession doctrine in international law?  Do you believe that aboriginal groups in Canada, the US, Australia, and New Zealand have no claim to the land that was stolen from them simply because the illegal occupants have been there for a long time?  I don’t know the answers to those questions, but I think we need to address them.

10. No one that I know has ever suggested that civilians who can lawfully be displaced can also be lawfully “purged” — and your comment once again blurs the important distinction between ethnic cleansing and genocide.  I have no idea precisely how much force Israel could use to “forcibly” displace settlers who are not lawfully present in the settlements or who are otherwise subject to displacement under international law.  My point is simply that Israel could displace the settlers without committing a crime against humanity.  I would assume that Israel would rely on legal process to remove the settlers.  If the settlers resisted a court order to vacate with violence — as the Israeli settlers have threatened to do on more than one occasion — I would assume that Israel would then have the right to use force to remove them, perhaps even deadly force.  But that is very different than saying Israel has the right to “purge” settlers it has the right to displace.

11.  Finally, a question for you — and I’m genuinely curious to hear your answer.  Assume for the sake of argument that Israeli courts determined that all of the settlements in the West Bank were illegal and that all of the settlers had to vacate them.  If the settlers resisted that decision with violence, would you consider them terrorists or freedom fighters?

http://opiniojuris.org/2009/07/10/additional-thoughts-on-eugenes-post/

4 Responses

  1. Number 11 is a very strange question… First of all, if the settlers resisted they would most likely be doing so against the army. They would not start bombing random cafes in Jerusalem or firing rockets on Sderot. This is a major distinction. Hamas terrorists, in addition to attacking armed soldiers, attempt to harm civilian populations. When fighting soldiers, they use illegitimate means such as human shields and do not wear uniforms.

    Secondly, the term “freedom fighters” is a preposterous term which today is coined to give a human face to radicals who use violence against the “Israeli occupation” (another flawed term). 

    Your question in itself is one that suggests a moral equivalence between settlers and Palestinian terrorists. The two groups are incomparable and by doing such you are legitimizing the acts of violence of the terrorists.

  2. Marissa,

    I am not suggesting anything, and I am not legitimizing anything.  Perhaps I could have used different terms, but I think the question is a fair one.  Eugene obviously believes that prohibiting natural growth (to say nothing of prohibiting the settlements themselves) is “ethnic cleansing,” and perhaps even genocide.  And he ends his response to me by asking “If a country democratically elects a genocidal leadership, can the victims wipe out that regime because it was acting illegally?”  So I am genuinely curious as to whether he believes that the settlers would be justified in using violence to resist being displaced from their settlements by legal means.

    Also, as an aside, I am glad that you do not believe attacks on combatants can qualify as terrorist acts.  I agree with you — but many others don’t.

  3. A very interesting debate, but while not fluent in the ins-and-outs of this particular area of the law, a question I have is that amidst the debate about the settlements in the West Bank and the (il)legality of removing people, what about some place like the Jewish ‘settlement’ in Hebron.

    Originally, an area in which Jews resided until the 1929 massacre that wiped out the Jewish population, the settlement of Jews to Hebron many contend is not comparable to other parts of the West Bank.

    Finally, politically speaking, one point that should be kept in mind is the fact that the Palestinians are quite clear in their desire for a Jew-free state. The resolution of the Palestinian-Israeli conflict might be given some help if the Palestinians conceded this fact in negotiations. Sticking to the settlements as well as the seeking legal justifications for their continued survival become less important if the ultimate resolution of this conflict can proceed with the Palestinians agreeing that because they want no Jews in their state, they will accept the Israeli position wanting no Palestinians in their state.

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