Remedies for Settlements: A Return to What Status Quo?
Nothing in the Geneva Conventions suggests the remedy for Art. 49(6) transfers is the deportation of the transferred population. In response to my earlier posts, Kevin, Marko and other commenters argued that since the creation of settlements was illegal, the remedy is their undoing, a return to status quo ante. In a discussion with Marko in my previous post, I argued that even if this is true, Israel is not responsible for all the settlements/ers in the WB, and would not have to do anything about those. Here I’ll address that general principle of reverting to the status quo, and hopefully later talk about various conventions Kevin says specifically authorize large-scale ethnic deportations.
The idea that illegality requires removing “removing the consequences of the breach” is a very general one. So is the idea of reliance interests of innocent third parties (ie Israelis born there). I do not know any sources that apply the former principle in a way that requires the removal of mass populations, and there are certainly many places where it could be applied this way.(Western Sahara, Tibet and other Chinese conquests, N. Cyprus, and more). In particular, the UN sponsored Baker peace plan for Western Sahara contemplates Moraccan settlers, who actually outnumber the inigenous population — precisely the situation 49(6)’s commentary says it designed to address — not just staying in place, but voting on the Western Saharan plebiscite! While the UN has declared Turkish occupation and settlement of Northern Cyprus illegal in similar language to its position on Israel, its own peacep plan for the island allows all the Turkish settlers (and troops) to stay. Indeed, there was not even discussion as far as I know of the obligation to deport that has been asserted in our discussions here. So there appears to be alot of flexbility in this rule.
But lets say the others are right: the remedy is to reverse the illegal situation in all of its particulars, to ‘67. Let us play out the implications. From ’49-67, part of historic Palestine was occupied by Jordan. There was not much international pressure on Jordan to reverse this illegal situation, let alone to return Jews to return to their homes. In any case, Israel in ‘67 reverses this situation through force of arms. So if we “go back” to ’67, we still have an illegal situation. Should Israel restore Jordanian occupation?
Indeed, by the logic of the commenters, when Israel took the WB in ’67, it could have deported all Jordanian nationals who moved to or were born in the WB during Jordanian occupation. Since the occupation was illegal, their presence was illegal. This seems like an absurd suggestion. No one ever proposed this because it is not how we understand the Geneva Conventions, except potentially in the case of Israel’s presence in the West Bank. Time does change things, as Peter notes.
So lets go further back still, to the “prior” situation, before Jordanian occupation – an unfulfilled but unrequited international mandate for the creation of a Jewish state in Palestine, and a strong but nonbinding (i.e, GA resolution) international preference that the area be partitioned into Jewish and Arab states.
Jordanian occupation was imposed on an inherently undetermined international situation. Thus for Israel to “revert” to the situation of ’67 does not mean to revert to a Palestinian state in all of the area from which it expelled Jordan. That was not the status quo. Rather, it would be to revert to, at best, a state of indeterminacy.
The West Bank as an entity was created not through Israeli occupation, but through the illegal act of Jordanian occupation. If occupation cannot create new legal rights, they cannot entitle the Palestinians to the full extent of Jordan’s illegal conquests. This is why the international community has long favored a negotiated solution between Israel and the Palestinians – because while favoring a Palestinians state for self-determination and other reasons is quite reasonable, the borders of that state are not self-evident, and it would quite perverse to identify them as the furthest extent of illegal Arab aggression in ’48-49.