16 Jul 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.
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.
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.
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.
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.
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.… Read more »
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.
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… Read more »