Remedies for Settlements: A Return to What Status Quo?

by Eugene Kontorovich

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.

7 Responses

  1. I will wait to respond to Eugene’s later post, but I want to emphasize that I never claimed ” various conventions… specifically authorize large-scale ethnic deportations.”  Eugene claimed that such deportations might be criminal, as either genocide or as forcible transfer.  I responded by arguing (1) that there is no way such deportations would qualify as genocide; and (2) they would only qualify as forcible transfer if the settlers were lawfully in the area and Israel did not otherwise have the right under IL to remove them.  I did not address whether either of the latter points were satisfied, because — as I said — those issues are beyond my competence.

    Particularly given how passionate people are about this issue, I think it is critically important to keep in mind the difference between arguing that an action is unlawful and arguing that an action is criminal.  As a commenter noted earlier, no one is arguing that the settlers themselves can be criminally prosecuted for forcible transfer.  They can’t, for the reasons Marko explains — and that is true even if the settlements are unlawful and Israel has incurred state responsibility for encouraging them.

  2. Instead of clarifying the previous posts, this one just conflates two entirely different issues: the legality of Israeli settlements in the West Bank and the legality of the Israeli occupation.

    These Israel posts have gone from “freezing settlements might violate the Genocide convention” to “settlers themselves don’t violate IHL” to “settlements shouldn’t be evacuated because Palestinians don’t deserve a state.”  This is not international law scholarship, it’s just a series of compounding non sequitirs, which have only one thing in common: advocating on Israel’s behalf in the face of an international legal consensus.

  3. Perhaps not what the author of this post intended, but I now have a better appreciation of the case for a “one-state” solution to the Israeli-Palestinian conflict. See, for instance, recent arguments and comments by Tony Judt, Saree Makdisi, the late Edward Said, Ilan Pappe, Virginia Tilley, Helena Cobban, Haim Hanegbi and Daniel Gavron, among others (Judt, Makdisi, and Tilley in particular have proffered sound if not persuasive arguments). No need, then, to worry about the borders of a possible Palestinian state.

  4. Whoa, “confused”! For the record, and so casual perusers of the comments are not mislead, the first and third “quotes” the previous commenter attributes to me are claims I not only did not make, but took pains to make to disclaim. Yes, the legality of settlements and occupation are different issues. Not surprisingly, in the course of our discussion we have touched on several issues.  Commenters said Israel must, as part of going back to ’67 borders, dismantle settlements. I responded to that.

    I’m quite certainly not advocating for Israel anymore than I am advocating for Morocco, Turkey, or China, whose legal status I discuss in this post. If I said Turkey should remove its settlers from Cyprus, Israel should keep its settlers in WB, that would seem partisan. Obviously my posts discuss Israel more than Turkey, etc. because that is where international attention is disproportionately focused. If it it refocuses on, say, Morocco or Russia, expect consistency.

  5. Eugene,

    Thanks for the various clarifications. I’ll reply to all of them in this thread, just so we don’t have to jump from post to post.

    (1) As for your reply to my previous comment: I agree entirely that many of the issues raised are not controversial only politically, but that there is quite a bit of room for reasonable disagreement. It is, for instance, non-obvious that Art. 49(6) GC IV prohibits the encouragement by a state of population transfers, and not just the transfers themselves, as the ICJ held. Ditto with the applicability of GC IV to the OPT. So again, I completely agree that many of the legal issues are underdetermined by the relevant legal provisions, and that those on either side of the debate who state their position in categorical terms quite frequently overstate their case.

    But this is not a specificity of the Israeli-Palestinian conflict. That is how the law works generally, in all of the ‘hard’ cases. In such cases, clarity can be provided only by some sort of authoritative interpretation that ultimately manages to settle a dispute. As we all know, there is no such single authoritative interpreter in the diffuse international legal system. It is by necessity a much broader group of people – most importantly states through their official positions, but also international organizations, courts, and yes, scholars – who serve this interpretative role. So, to say, as you do, that a consensus or a near-consensus in this wide community is merely political sort of misses the point. In the decentralized international system that we have, there is no other way of settling disputes on the interpretation of any even remotely ambiguous legal norm.

    (2) Which brings me to the authority of the ICJ. Sure, the Wall advisory opinion is by definition non-binding. But this would equally be the case with a judgment, which only binds the parties to the case, but doesn’t even bind the ICJ in a future case, let alone anybody else. Thus, an ICJ pronouncement on a general point of law has exactly the same authority regardless of whether it was made in a judgment or in an advisory opinion. The question, of course, is what this quantum of authority should be, and this is where we obviously differ.

    (3) As for the ICJ’s interpretation that Art. 49(6) does not only prohibit transfers, but also the state encouragement of (private) transfers, I agree entirely with you that it is not sufficiently reasoned by the Court. But again, this is not something specific to the Israeli-Palestinian dispute. The Court is notorious for at times making Delphic pronouncements without providing sufficient reasons for them (and is not the only international court to do so).  I disagree, however, that this means that the authority of the particular pronouncement is zero – precedent etc. aside, you wouldn’t say that the authority of a particular US Supreme Court pronouncement was zero merely because it was insufficiently reasoned, would you now? – but this goes back to (2).

    (4) That interpretation is btw entirely contradictory to your line of reasoning. The Court explicitly holds that the various Israeli policies constitute the ‘encouragement’ prohibited by Art. 49(6) as interpreted. On the facts, the Court thought that the Israeli policies were such that they satisfied the (some not entirely clear) level of reasonable directness required by Art. 49(6), and that they were therefore a breach thereof.

    As to whether that interpretation was correct, I think that it was, as any other interpretation would allow states to circumvent their obligation not to transfer parts of their population to occupied territories merely by devising policies that would encourage people to move there of their own free will (e.g. the state will give you an X amount of money, a house, and a job if you move to the occupied territory, and so forth).

    And, for what it’s worth, it’s not true that the ICJ cites NO authority for what it says – it does cite consistent practice of the Security Council, which has taken exactly the same view.

    (5) As for the factual issue that you raise, namely whether some settlements were established as a consequence of the Israeli policy, while others were not, I am simply incapable of saying anything on the matter, as I am not sufficiently familiar with the facts. However, I do have to disagree with your statement that persons born in the settlements after they were established would have a right to stay in them. With respect, the distinction seems entirely arbitrary to me. If my parents had illegally moved to an apartment, and I was only  born thereafter, would I have a right to live in the apartment, while they would not? How so?

    More to the point, it is true that persons born in the settlements have themselves committed no international wrong. But this is equally true of ALL settlers, as I have explained in my previous post. It is the state of Israel that has committed the wrong, and which must repair it. As for the settlers, they ALL have some rights under both domestic and international law. The question is whether these rights can prevent their removal (with compensation, etc.), and if so under what circumstances.

    (6) As for restitution as the primary form of reparation, I’m sorry to say that your latest post does seem to set up and then tear down a bit of a straw man.

    Restitution does not require one to have a time travel device and to return the OPT to 1967. There is one particular wrong, the state policy which encouraged the creation of the settlements, and it is this particular wrong which must be repaired through restitution. This in no way entails that the OPT should be returned to Jordanian occupation, or that Israel must withdraw from the OPT in this particular way or that. We are discussing only one specific facet of the broader dispute, not the dispute itself.

    (7) As for your broader consistency argument, i.e. as to why restitution is only required in the Israeli-Palestinian settlement dispute, but not in others, I can only say this: first, the restitution rule is itself flexible – it is only required if it is not materially impossible and does not involve a disproportionate burden as compared to other forms of reparation (see Art. 35 ILC ASR). Israel can thus reasonably argue that it should not be expected to venture into restitution, and this same argument can be made more or less persuasively in respect of other situations, depending on their particular facts.

    But more broadly speaking, it is one thing to say what international law requires, and quite another to devise a realistic, practical solution – which necessarily has to be a negotiated one – for what is an ongoing conflict or crisis. Thus, I would certainly say that Turkey has a legal duty to provide reparation to Cyprus for its invasion, the creation of the TRNC, and the influx of Turkish nationals to the TRNC. But it is unlikely that this will practically ever be possible. It is far more likely that Cyprus, the TRNC and Turkey will reach a negotiated solution whereby Cyprus will have to accept less than it is formally entitled to under international law. This is the reality of things.

    The same goes for the Israeli-Palestinian conflict. There will eventually (I hope!) be a negotiated solution. I find it exceedingly unlikely that the Palestinians will under that agreement get all that they are entitled to (or think that they are entitled to) under international law, e.g. the dismantlement of ALL Israeli settlements, the right to return, etc. Their bargaining power is simply not enough to obtain all of that.

    It is a given that there will be no solution to the Israeli-Palestinian conflict without a negotiated settlement, no matter what international law might say. This does not mean, however, that international law is irrelevant. It provides arguments to both parties, influences the behavior of other states, as well as the possible outcomes. But it is not, of itself, powerful enough to impose the exact same solution to all similar conflicts around the globe, regardless of their political and other peculiarities. We all know that perfectly well, and I at least don’t expect anything of the sort.

  6. Marko,

    You mention in your point 5 that the distinction between settlers who move to the settlements and settlers who were born in the settlements seems arbitrary to you. It doesn’t seem that arbitrary to me; the immigration debate in the United States has had to confront that very issue of people in a place illegally who then give birth to children who have a legal right to stay (albeit one granted explicitly by U.S. citizenship rules). So the situation does arise, and it seems an argument can be made that the wrongs of the parents (though here I understand you’re arguing the parents are equally blameless as settlers, is that right?) should not be visited on and passed down to the children.

    Unfortunately, as in many situations, there isn’t going to be an outcome that satisfies everyone and where no one’s livelihood or living situation isn’t disrupted, so I tend to think it’s more an issue of figuring out what outcome would be least disruptive to the most people.

  7. Peter,

    Your point is well taken. Of course, how one constructs an analogy depends on one’s criteria of relevance. Your analogy with US immigration law only works because the US Constitution adopts the jus soli rule for nationality. But if it didn’t – as a large number of states don’t in fact have the jus soli rule – then the analogy would break down, as the mere fact of birth on the state’s territory would be irrelevant for obtaining its citizenship and the consequent right to remain.

    This is the case with the settlement situation, as there is no rule of international law that I am aware of that gives significance to the fact that the birth of a child happened after its parents moved into the settlement. The rule that is relevant is the one that reparation must first be implemented through restitution, which must, as far as possible, eliminate the consequences of the wrongful act. If the child’s presence in the OTP is a result of the Israeli state policy to encourage population transfers, as it necessarily would be if the parents moved into the OTP as a consequence of such policy, then I don’t see why the moment of the child’s birth (before or after the parents moved into the settlement) should be at all relevant.

    But again, I am saying that the settlers themselves, all of them, have committed no international wrongs, so these non-existent wrongs naturally cannot be passed to their children. It is the state of Israel that has committed an international wrong, and which has a duty to provide reparation for it. The settlers, on the other hand, have their rights as human beings, but these rights are not absolute, nor would limitations on these rights be permissible only if the settlers had themselves committed an international wrong.

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