Transfers and Deliveries

by Eugene Kontorovich

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!)

http://opiniojuris.org/2009/07/16/transfers-and-deliveries/

9 Responses

  1. As I’m finishing up the summer session of school I have precious little time to say all the things on my mind about this (and previous posts on the subject) so I’ll confine myself to a few points.

    The remark that “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,'” is more than a tad disingenuous and certainly obfuscatory if only because it ingores the role played by successive Israeli governments and the military (at bottom, motivated by a particular Zionist ideology that claims the land in question belongs to Jews as ordained by God; as Gabriel Piterberg has explained, this ideology pivots around three ‘foundational myths:’ the ‘negation of exile,’ the ‘return to the land of Israel,’ and the ‘return to history’) in overtly or implicitly promoting, encouraging and facilitating settlements in the Occupied Territories. For instance, it was the military that “became the conduit for land appropriation through its organization of the system of land expropriation and settlements construction. During the first decade of the occupation, the military issued a number of decrees for acquiring land, mainly by declaring them state or absentee land (military orders no. 58 and 56).” In its control of land administration and planning it

    created a special department for the transactions of land and registration of settlements (military order 569). Moreove, it prevented Palestinians from registering their land, and from investing in it without obtaining military approval. The military was able to take direct control of what was declared as state land, nearly 35-40% of the West Bank and Gaza Strip, declaring it as a ‘public good’ It was thereby able to supervise the whole settlement movement with whom it remains closely tied. [....]

    As Moshe Dayan put it in 1971, Israeli settlements in the occupied territories are essential ‘not because they can ensure security better than the army, but because without them…the IDF would be a foreign army ruling a foreign population.’ While illegal under the 4th Geneva Convention and numerous UN resolutions, Israel built over 178 settlements between 1972 and 2003, and allowed the transfer of 400,000 Israeli citizens into the occupied terrritories, half of which were transferred during the Oslo peace process years.

    The peculiarity of Israeli settlements as a central element in Israeli colonization of the West Bank and Gaza Strip stems in part from the fact settlers did not come, or were brought in, to exploit the Palestinians or in search of economic gains. Unlike the settlers in Algeria, the whites in Kenya or Zimbabwe or the unionists in Northern Ireland, Israeli settlers did not make a living in the occupied territories as much as used it as a subsidized dormitory. Still in 2000, less than 48% of settlers worked in the settlements in the West Bank and Gaza Strip, with the majority commuting to Tel Aviv or Jerusalem. Yet settlers remain a central pillar of Israeli colonial structure. They provide a means to create a claim over Palestinian land, as well as allowed the institutionalization of a legal system of segregation, which is a common feature of most colonial projects. The Israeli military instituted two different legal systems in the West Bank and Gaza Strip: one for the settlers and the other for the Palestinians. [....] [S]ettlements became administered like any town in Israel, including rights to local planning, levy taxes, right of zoning and urban planning, all of which were forbidden to Palestinians.

    The Zionist ideology at work here is the very same one documented at play by the so-called new historians (among others) in the comprehensive expulsion of the Palestinians from their homes in 1948 (as a species of ethnic cleansing detailed in the scholarship of Ilan Pappe). Settlements only make sense against this ideological, historical and political backdrop. The converse status of Arabs as refugees is the Israelis as settlers in the Occupied Territories, a process that was concretely facilitated by such measures as the Law of Absentees’ Properties in 1950 which, in Piterberg’s words, “legalized the plundering of their possessions:”

    The looting of Arab property was given the guise of a huge land transaction that the state had conducted with itself. A thinly disguised official entity called ‘The Custodian’ was authorized to sell absentees’ land (defined in Clause 1(b) of the Law) to the Development Agency, a government body created specifically to acquire it. The agency then sold it to the Jewish National Fund (JNF). At the end of the chain these lands were privately farmed out to Jews only (this was the procedural significance of the JNF), and gradually became de facto private property, while remaining de jure in the keeping of the state.

    Consider the fanciful political and legal maneuverings that encouraged and facilitated settlements as enshrined in the principles of the “Drobles Plan.” Under the Begin government (1977-1984) , concern with the number of settlements became a preoccupation (i.e., they were insufficient in number), but “while numbers were important, the physical configurations of settlements across territory could be just as significant–specifically, settlements should be place around densely populated Palestinian areas to obstruct their physical contiguity and should be placed in areas to attract a wider Israeli population base.” Therefore, in contrast to earlier disconnected and largely rural settlements, the new goal was the creation of “suburban or bedroom settlements.” “This meant creating mega-settlements with road infrastructure connected directly to Israeli metropolitan centers that could attract larger number of Israeilis in search of a better quality of life. These would be placed both straddling the green line and around main Palestinian metropolitan centers:”

    What this set in play, was the first step in the process of fundamentally transforming Palestinian territory into Israeli space. The profound innovation of Sharon [as Minister of Agriculture] was not simply stepping-up ‘facts on the ground,’ but of creating an infrastructure along with these facts that created a context in which Israelis living in the new suburban colonies would feel as if they were still located inside Israel proper. [....] Settlements were now a new ‘neighborhood’ within reach of Jerusalem or Tel Aviv where average Israelis could enjoy a better quality of lfie suddenly made affordable through generous government subsidy.

    To repeat, the Israeli government is the driving force behind the settlement movement:

    In 1979 a new legal definition was put into play that made available another 26% of the West Bank for settlement by defining “miri” lands as “state” land–bringing the total area of the West Bank made ‘legally available’ for settlement up to a full 46% of the territory. Significantly, the new legal definition involved a new mode of seizure; land could be expropriated without anyone being informed until physical work began–thus no one might know of tracts [that] changed ‘ownership’ for years. This strategy enabled long-term planning and development of huge tracts to be undertaken without invoking mass opposition.

    Furthermore, infrastructural developments effectively empowered the settlements as “centers of governance and therefore long-term planning and growh–as territiorial extensions of the Israeli state.”

    There’s so much more to be said here (especially about the settlements and IHL) to dispel the “innocent” portrait of the Israeli settlements painted by Professor Kontorovich and perhaps I’ll find the time to do so but for now this will have to suffice as a quick and partial response to the letter and spirit of this remarkably disturbing post. 

    Arabs are sytematically denied a “right of return” yet Israelis are allowed to build settlements in the Occupied Territories and therefore we need to appreciate the latter’s actions as legal and innocuous because they were not “sent by the government.” That is an exquiste logical exposition of the highest order, almost as imaginative, resourceful, perverted–and dangerous–as Anselm’s satisfaction theory of atonement in the Middle Ages.  

    [I'll document the quoted material later today after I return from school.]

  2. Yes, you are right that if settlers having babies is not a violation of the Fourth Geneva Convention.  Congratulations for refuting an argument that NO ONE is making.  Your perseverance in attempting to confuse the issues is truly impressive.

  3. Patrick — glad you posted, I was worried about you! Michael — I’m glad you agree with me on the natural growth issue.  I believe many would say that “natural growth” is illegal. Also, that even those born in the WB are illegal settlers.  Certainly the Obama Administration has said that all settlement activity is “illegitimate,” and has included births in that that.  (It is possible that illegitimate does not mean illegal, thought they are often taken as synonymous in this context.)

    Now you might say he is talking about building houses to accommodate births – though that is not his language. But it is puzzling why that would be a problem if the births themselves not “transfers.” Art 49(6) is not anti-construction, it is anti-transfer. So it could apply to construction to promote transfer. But not to construction to promote births.

    Does this mean all Israeli settlement activity is legal, given the assumptions made above? For sure not. It does mean that it depends on a variety of highly localized facts, not suspesptible to blanket bans. And it means that not all demographic phenomenon in the WB are “Israeli settlement activity.”

  4. Eugene,

    I must say, with respect, that I have to agree with some of the other commenters on your previous posts, particularly with Andreas Paulus’ last comment. It appears to me to that you are setting up a series of straw man argument that you then proceed to demolish, but that are (as far as I am aware) far outside the mainstream of international legal scholarship or the legal position on the Israeli settlements.

    (1) I don’t think it is seriously contended that the settlers themselves are violating international law. As private persons, they simply are not; they are in no way bound by GC IV. It is only the state of Israel that is potentially in breach of international law. It is likewise not contended, to my knowledge, that the mere fact that the settlers have Israeli nationality renders their presence in occupied territory unlawful.

    (2) As for Art. 49(6) GC IV, it has been interpreted by the ICJ as not only prohibiting actual transfers of population, but also any measures taken by the occupying Power to encourage transfers of its own population into occupied territory (Wall AO, para. 120).

    Thus, it is not the private decision by a large number of Israeli nationals to move, of their own free will, into the Palestinian occupied territories that is a violation of international law. It is the state policy of Israel to encourage such movements of population that is a violation of Art. 49(6) GC IV. This interpretation of Art. 49(6) is not only that of the ICJ, but also that of the UN Security Council and practically every other state but Israel.

    (3) If (2) is correct, and you have, with respect, not shown that it is not (especially in the view of the authority supporting it) then Israel is in breach of international law. If so, it is (a) a general and entirely uncontested principle that it has a duty to cease the wrongful act if it is continuing; and it is an equally uncontested principle that it (b) has a duty to provide reparation for the breach. Therefore, Israel should cease any policy that it has of encouraging an increase of the settlements in the occupied territories, and provide reparation for the consequences caused hitherto by the implementation of its previous policies.

    (4) Further, the primary mode of reparation is restitution, which should be done whenever it is possible to remove the consequences of the breach as if it had never happened. Restitution is in principle possible in this case, as it would involve the removal of the settlements that were created in consequence of the Israeli state policy of encouraging settlements in the occupied territory. But there is, indeed, a possible qualification to that.

    (5) That qualification is that the settlers are human beings, who are entitled to their human rights, and they have these rights vis-a-vis the state of Israel (the Genocide Convention argument from one of your previous posts is, with respect, a stretch of monumental proportions, for reasons given by other commenters). Per the ICJ’s Wall AO, the ICCPR applies to the POT, and Art. 17 thereof prohibits arbitrary interferences with an individual’s home and private life. There is, therefore, clearly an Art. 17 issue if the state of Israel decides to use coercive means to eliminate the settlements, but such a removal would not automatically be arbitrary. At the very least, the settlers would be entitled to some form of compensation by the Israeli government, as well as to other measures that would assist in their adjustment to a new situation, etc. The settlers might also have more rights under Israeli domestic law, but I am not qualified to have an opinion on that.

    So, again, this is in my view how the argument on the illegality of the settlements goes in mainstream scholarship, ICJ and UNSC pronouncements, etc. I am not saying that there no room for reasonable disagreement on any of these points, legal or factual; but this is, however, where the disagreement should be directed if it is to be useful.

  5. It is incerdibly pretentious to argue that “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.””  These nationals of Israel who moved to the Occupied Territories did not move into Palestinians town and villages, bought apartments there, rented apartments, or got building permissions from local authorities.  They moved into new towns and villages that did not exist before 1967 (other then very few cases such as in Hebron old city).  In order for these towns and villages to exist, the government of Israel had to build infrastructure, create new municipalities, build everything from scratch.  These towns and village could not be build by private individuals even if they wanted to.  They needed city planners, permits, a whole state infrastructure in order to make this new towns exist.  So arguing that the state of Israel was not part of transfering these population to the West Bank but that it was the decision of individuals is simply twisting the facts so that they can fit whatever argument you want to make.  

    As for the babies argument, I feel sorry that someone with a legal education and law degree who teaches students can make such an idiotic argument.  They babies were not born there from the holy ghosts.  They were born to parents who are the ones violating the law with the permission of the government.  The parents cannot hide behind their babies and say that now that their babies are native to the land they are too.  Or if onlt the babies are native, let the paremts leave their babies there and come back to where they came from.  These whol babies argument is beyond pathetic.     

    and as for the asrgument “Israel has no affirmative obligation to prevent migration, or to deny municipal services to migrants.”  OK, so these migrants moved out of their own free will to territories that happen to be disputed, and you now argue that they can demand the gov’t of Israel to give them municipal services?  It is the most twisted argument.  What if they moved out of their own free will to Jordan? or to Tibet?  Or to the United States?  Still because they are Israeli nationalities they have the right to demand from the gov’t of Israel to give them municipal services?  Everywhere in the world where they go?  It’s ridiculous.  In this particular case, they moved into disputed/occupied territories, whatever you want to call it.  what is illegal is not that they moved there, but that the gov’t of Israel built cities for them.  These cities are under the responisbility of the govt of Israel.
    But for you it doesn’t matter what is written in the GC, SC resolutions, and even Israel’s own law.  You will twist whatever written to fit your own agenda.  

     

  6. The quoted material was from two articles, one by Leila Farsakh and the other by Remma Hamami with Salim Tamari, found in the MIT Electronic Journal of Middle East Studies, Vol. 8 (Spring 2008).

    I think Marko’s characteristically lucid legal analysis provides an appropriate complement to the historical, political and legal points I sketched above. but in particular the following point is apropos:

    Thus, it is not the private decision by a large number of Israeli nationals to move, of their own free will, into the Palestinian occupied territories that is a violation of international law. It is the state policy of Israel to encourage such movements of population that is a violation of Art. 49(6) GC IV. This interpretation of Art. 49(6) is not only that of the ICJ, but also that of the UN Security Council and practically every other state but Israel.

    Etc., etc. (i.e., nos. 3 & 4)

  7. Let’s not forget that

    A succession of Israeli governments has ordered five major waves of expropriation in and around Jerusalem, involving about a third of the area supposedly annexed to the city in 1967, taking land from its Palestinian owners and giving it over to areas of exclusively Jewish settlement. Palestinians today comprise a third of Jerusalem’s population, but they have access to less than 10 percent of the land within the redefined city limits. Ninety percent of the territory annexed to Jerusalem in 1967–all of it Palestinian land–is today off limits to Palestinian development because the land is already built on by Jewish settlements or being held in reserve for their future expansion. (Saree Makdisi)

    Here, as elsewhere, it is clear that the Israeli government has been involved in promotion and financing of the settlements. As stated in the policy brief on the “Legal Status of Israeli Settlements Under IHL” (2004) published by the Harvard Program on Humanitarian Policy and Conflict Research, 

    [M]any of the settlements in the West Bank…are defined as ‘national priority areas,’ which results in increased government funding as compared to other communities, including housing subsidies. The Israeli Ministry of Housing was reported at one period to be devoting 20% of its budget to housing for settlers. There are also various tax incentives and discounts available to individuals living in the settlements, as well as to businesses located there. Further, the Israeli government pays significantly more per capita to local government councils for settlements than it does to local government municipalities in Israel itself. 

    And of course for Palestinians, this is but one half of the picture: the other half is filled in with often arbitrary, senseless, and cruel “policies” and practices of “deportation,” “forcible transfer” and “assigned residence” in the OPT, not to mention thousands of home demolitions as part of the Israeli policy of “collective punishment.” Deportations and forcible transfers are both “grave breaches” of the Fourth Geneva Convention, while “assigned residency” frequently violates the procedural standards and norms of the Fourth Geneva Convention. In short, we have what Saree Makdisi has called “the double process of Jewish settlement and Palestinian unsettlement, [which] is played out on an intimately small scale, and on a daily basis, throughout the West Bank.” (For all the horrifying details regarding the settlements see Makdisi’s Palestine Inside Out: An Everyday Occupation (2008), especially 95-151.

    To exacerbate existing injustices as well as add insult to injury, the Israeli army frequently turns a blind eye to settler vigilantism: “Palestinian civilians are essentially defenseless against settler attack when it happens, and they have virtually no recourse after the fact. ‘Israeli security forces [make] few attempts to prevent settler violence or arrest offenders,’ notes B’Tselem. ‘Many acts of violence [are] not investigated, and in other cases, the investigations [are] prolonged and [have] resulted in no action being taken against anyone. In cases where settlers [are] tried and convicted, they [are] generally given extremely light sentences.’ This is partly because of the dual system of laws in the occupied territories: the Jewish population enjoys the benefits and protections of Israeli civil law, but the Palestinian population is governed by the much harsher system of Israeli military regulations; settlers are subject to the police (who rarely intervene), Palestinians to the army.”

    Sylvain Cypel has likewise written on settlement policy and settlements as “mechanisms of colonization.”

  8. I’d like to thank Marko, and earlier Andreas Paulus, for their comments, which help to focus the debate.

    I’ll refer primarily to Marko’s comments here, and the a bit to Andreas’. I’m glad Marko does not think “it is seriously contended that the settlers themselves are violating international law.” However, responses to my previous posts seemed to suggest just that. Moreover, when Jews have purchased/built on privately-purchased property, the international response has been to treat this as settlement” as well. Britian recently stopped inviting British citizens living in the WB to its consular functions in Jerusalem, suggesting the private presence of these individuals is problematic.  But if we’re in agreement on  point # 1, a good place to start — just back me up when other commenters question this point.

    Where we part company is #2, the idea that non-actual transfers are also illegal.  You cite the  ICJ’s recent advisory opinion. it is just that. An advisory opinion undertaken in response to an extraordinarily tendentious and and conclusory question from the General Assembly. (The GA asked, in short, what are the legal consequences of the illegal wall Israel is building in on occupied Palestinian land, and the threatens any prospect of peace. That is not a request for an opinion, it is a brief.)  Surely a scholar can question the wisdom of a binding judicial decree, to say nothing of one undertaken in an atmosphere that suggests a political exercise.

    But the ICJ opinion also does not say what you claim – that indirect encouragement counts as transfer. It says 49(6) prohibits the power to “organize or encourage transfers”.  Encourage is more indirect than organize, but one still seems reasonably direct.

    In any case, the ICJ opinion — which I don’t see as contradicting me on this particular point — is worth no more than its reasoning. Which is zero. Really. It declares this expansion of 49(6) without even a policy argument, let alone state practice, prior case law, etc. More on the lack of precedent below.

    I see no obvious reason to not apply standard legal doctrines of causation to the transfer question.
    I think it is clear that many of the settlements were directly established by the government. (Though subsequent population additiions may have been individual initiatives.) Others were vigorously opposed by the government, and established only after being destroyed numerous times. In the middle there are many grey areas that would depend on how direct a causation one requires.  And this all just applies to the original settlers — again, those born there have a right to stay.

    So under these principles, some settlements would be illegal, some legal, and many mixed. The analysis would turn on many individual, fact-specific facots of the kind Patrick cites but a blog is not the best place to explore. There would be no basis for treating some settlements/setlters as problematic.

    This proposition  — which turns on nothing more than a narrower view of how broad an “indirect” transfer prohibition one can read into 49(6) would contradict the dominant international scholarly opinion that settlements are uniformly and equally illegal, and that the same remedy is appropriate for all of them. That view is not a straw man, it is how settlers are uniformly described.

    You and Andreas both spoke of the uniform international view that settlements are illegal, and are surprised I do not take this is as conclusive. I regard this agreement, to the extent it is not articulated in binding legal sources, as political. Of course political views can create international law — but only if they are applied consistently to similar situaitons. This is why I cited numerous examples in my post where these principles have not been applied, or evne suggested.

    Discussing this in relation to Israel, we run into a problem that plagues the entire quesiton of Israel and international law. The meaning of transfer is not self-evident. Whether a rule against acquiring territory applies to defensive war is not obvious. Whether occupation rules apply to territory not belonging to a high contracting power is not obvious. 

    I do not believe any of these questions had clear answers in 1967.  All of these questions are discussed today not abstractly, but in the shadow of the Israeli-Palestinian conflict — which is the ONLY conflict that fairely raises some of these issues, and is the primary conflict where others are discussed. Today to discuss whether transfer needs to be direct etc. is not to decide an abstract question but principally to rule on the Israeli-Palestinian conflict.
    This itself would not be a problem if there were precedents, or if the rule applied here were applied elsewhere.
    If one is asked to rule on a particular legal question knowing in advance the only case it will apply to, it would be hard to divorce the answer from one’s view of the underlying equities.  To put it differently, it is easy produce  (nonbinding) international opinions on this question once one knows who the winners and loosers are. In 1967 it was far less clear, as evidenced by the number of serious people  who took Alice in Wonderland positions (Schwebel, Lauterpecht, Rostow). As the conflict continued past anything the GC could have contemplated, views of the merits shifted as did views of the legal rights.

    This is why I try never to say any of these provisions “mean” this or that; I think their meaning is often quite obscure and debatble. I’m not surprised that given the room for debate, most interpret them agaisnt Israel, but that does not affect the situaiton on the merits, or the underlying indeterminacy.

    More on your point 4  & 5, regarding remedies, in a subsequent post. And just to avoid becoming a straw man, if you read my post on the Genocide Convention, I specifically did not say advocating a settlement freeze violated the convention. 

  9. This interpretation of Art. 49(6) is not only that of the ICJ, but also that of the UN Security Council and practically every other state but Israel.
    Eugene’s comments make me am curious. Is there actually more than, say, half-a-dozen states which have in fact done anything to demonstrate their opposition to ‘transfer-by-encouragement’ in any context besides Israel? Off the top of my head, Russia and China are two security council members with either very recent or ongoing practices in this area. France is one with a storied history, albeit stopping about 30 years ago. India is a massive democracy but one which until rather recently practised transfers as State policy. Malaysia would be ill-placed to complain, and I think Thailand has some pretty recent form here too. Turkey certainly does. Perhaps the Balkan States as reconstituted can be absolved of the sins of their fathers? Iraq can fall under the same exception I guess. Has Iran practised this with respect to its Hazaris? Britain’s savage history is presumably old enough and sufficiently repudiated to ignore, and same with the ex-colonies such as Australia and Canada. At least some western and central African States appear to have done this kind of thing. Indonesia, the world’s third-biggest democracy, only stopped (if it really did) a few years ago. And America of course has only very recently suggested that it does not support Israel’s settlements in some form, which means that ‘every other State’ would really seem to exclude the world’s three biggest democracies and the world’s four biggest countries representing over a third of the world.

    Perhaps in some cases the difference is that the transfers were purely internal within undisputed borders (but not in Russia’s case with respect to South Ossetia and Abkhazia, or India’s with respect to Kashmir)?

    But ultimately I would be interested in knowing whether there is anything over than a tiny minority who
    a) have ever opposed or represented as illegal ‘transfer-by-encouragement’ by a State besides Israel, and
    b) have not condoned or practised it themselves at or around the same time?

    I know it is a bit heterodox to look to actual actions rather than platitudes as a source of international law, but I am usually happy to bet on the former in the long run, subject to the points raised by KA in his recent paper and posts.

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