Transfers and Deliveries
The international insistence on banning natural growth in Israeli settlements is ironic because it is this population that is most clearly legal under the Geneva Convention. After all, babies are born, not “transferred.”
The discussion must begin with the text of the Fourth Geneva Convention. We will assume that the Convention applies to the West Bank (the Art. 2 issue), that the League of Nation’s Mandate is a dead letter, etc, so that we can focus on Art. 49(6), which is said to make all settlements illegal. It provides that “the occupying power shall not deport or transfer parts of its own population into the territories it occupies.” The meaning of the term transfer was unclear to the drafters, as the official commentary itself admits. The International Committee for the Red Cross commentary does explain that the intent of the provision was to prevent population movements that “worsened the economic situation of the native population and endangered their separate existence as a race.” Neither applies to the Palestinians in West Bank, whose prosperity grew at unprecedented rates since 1967, and who are more clearly a separate group now than they were then.
Crucially, the Convention only bars action by the “occupying power” — in other words, the government and public authorities of the country. It does not apply to the movements and real estate decisions of private individuals. Various other parts of the Convention distinguish between “nationals of the occupying Power” and “the occupying power” itself; the prohibitions of Article 49 fall exclusively on the latter.
The birth of babies to civilians – we’re not talking Hitlerian birthing homes – is not a “transfer … of its own population” by any plausible definition. Indeed, the newborn is not even part of the previous population of the occupying power! So a significant proportion of settlers never “settled.”
Nothing in the text or history of Art. 49 suggests that it becomes illegal for nationals of the occupying power to reside in the occupied territory. People want to read Art. 49 as saying “the occupied territory shall be prohibited to nationals of the occupying power for residence.” This is a far cry from what it says. It goes against the GC’s humanitarian principles to read it as a restrictive covenant. The precise meaning of transfer – how much government action is required – is undefined by any source I know of, though the Rome Statute’s addition of an “indirect transfer” prohibition only underlines how absent such language is from Art. 49(6).The relevant Security Council resolutions only condemn “the policy and practices of Israel in establishing settlements” (S.C. 446). This seems to support my view.
Given the ambiguities about the scope of the transfer ban, one might look to other incidents of state practice to see how such situations were handled. If there is a general rule that an occupation makes not just the “transfers” by the government themselves, but the continued residence of the transferees and their descendants illegal forever, I am surprised we have not heard of it in other contexts. None of the proposals for ending the occupation of Northern Cyprus, Western Sahara, etc. contemplate removing a single Turk or Moroccan, as far as I know. And while there are not any proposals for ending Chinese occupation of Tibet and Russian occupation of Georgia, no one has suggested that the presence of occupying nationals in those countries is a continued violation of international law. Yes, China violates the GC by shipping Han en masse to Tibet to demographically overwhelm the native population. But has even a law professor suggested their deportation back?
When America occupied Iraq, would it have been illegal for Americans of Iraqi ancestry to move back? I believe some did and no one made an issue of it. Would it matter if they flew there on a U.S. plane? If they moved to a neighborhood that people had moved out of as a result of the war? No one was even asking such questions.
All of this means two things. First, there is nothing illegal about nationals of the occupying power residing in the occupied territory if they get there without being sent by the government, without being “transferred.” The scope of this category is unclear but must certainly include those born in the West Bank. Israel has no affirmative obligation to prevent migration, or to deny municipal services to migrants. Second, even those have been transferred are not themselves doing anything illegal. (I will respond to criticisms of this point from earlier comments in a separate post, really!)