Are the Israeli Settlements “War Crimes”?

by Julian Ku

I realize that discussing the international law aspects of the Israeli-Palestinian dispute is not exactly a new and fresh topic likely to inspire thoughtful and reasonable thinking, and yet I was struck by the aggressive tone of this NYT editorial from a representative of the Palestinian Authority.

It is universally recognized that Israeli settlements are illegal under international law, and that without a full cessation of all settlement activity, Palestinian-Israeli negotiations and the two-state solution are both doomed. In spite of the dilution of American public statements, the United States still recognizes settlements as illegal. Not only are they a violation of the Fourth Geneva Convention; under the Rome Statute, they are considered a war crime.

Where to start? It is “universally recognized” that settlements are illegal?  Really? Even in Israel, or in certain majorities of the U.S. Congress?  More surprisingly, I didn’t realize that the “settlements” themselves constitute a violation of the Rome Statute? Settlements are war crimes or crimes against humanity?  I sort of understand this argument, but does any one think this argument is self-evident or even highly persuasive?

I realize this excerpt is a political claim, not a legal one.  But it is a good example of how certain types of international conflicts actually undermine whatever integrity and usefulness international law might have in shaping the analysis of those conflicts.

http://opiniojuris.org/2011/01/21/are-the-israeli-settlements-war-crimes/

38 Responses

  1. Dear Mr Ku,

    I have recently been writing a paper on related questions so I think I am in a position to provide you some useful information.

    1. It is, to my knowledge, recognized that law and politics are non exclusive categories (already see, e.g., Hans Morgenthau, « The Machiavellian Utopia », AJIL 55, 1945, p. 145). Therefore it is pointless to pretend that claiming that a political argument is supported by law would undermine the law. Claiming that the settlements are lawful or unlawful is a legal argument that cannot be motivated by political opinion. We certainly all agree that for any international lawyer with a pretention to professionalism, the demonstration should only be based on legal considerations. But once the determination that an act is unlawful has been reached on purely legal consideration, there is no problem with exploiting its benefits on the political level. Adopting your logic, would lead to the conclusion that making any pronouncement about the legality of a politicized situation undermines international law. This would render international law absolutely pointless since political tensions very quickly arise in connection with contested questions of legality on the international level.

    2. The most authoritative indication about the legality/illegality of the settlements is to be found in the institutions created by the international society for that effect: the ICJ, which declared the settlements in breach of the IVth GC (Legal  Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, § 120). The fact that the SC also declared the settlements unlawful is maybe more persuasive for the adepts of power politics.

    3. Numerous Israeli lawyers have affirmed the illegality of the settlements from their very beginning in 1967. See the Opinion written in a secret memo by Theodor Meron as he was working as legal adviser to the Israeli government: http://www.soas.ac.uk/lawpeacemideast/resources/file48485.pdf. The illegality of the settlements has been admitted by Eyal Benvenisti, Yoram Dinstein, David Kretzmer writes that the ICJ “not surprisingly, adopted the position taken in the past by virtually the entire international community” (“The Advisory Opinion: The Light Treatment of International Humanitarian Law”, AJIL 99, 2005, p. 90). I could continue citing many Israeli scholars…

    I hope these few elements could reinsure you and strengthen you faith about the integrity and usefulness international law.

    Kindly yours,

    Etienne Henry

  2. Yes, where to start? Maybe by providing a link to the actual op-ed piece (I always thought an “NYT editorial” would rather be written by the New York Times editors) by Hanan Ashrawi? This can be found at http://www.nytimes.com/2011/01/21/opinion/21iht-edashrawi21.html.

    By the way, I thought that international law was meant to help settle conflicts, not to shape their analysis.

  3. Julian,

    Article 8(2)(b)(viii) of the Rome Statute prohibits “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.”  There are some difficult interpretive issues involved in the war crime, particularly concerning whether the settlers themselves violate the provision by settling in occupied territory.  But the idea that (many of) the settlements constitute war crimes is anything but frivolous. Indeed, scholars agree that the inclusion of that part of Article 8(2)(b)(viii) in the Rome Statute was one of the primary reasons Israel refused (and still refuses) to ratify the treaty.

  4. As for the ‘illegality’ portion (which does not automatically translate into criminality, of course), all ICJ Judges agreed in the Wall Opinion that the settelements are indeed unlawful (para. 120, but see also Declaration of Judge Buergenthal, para. 9). This is one of the very few times that a thorny legal issue such as this one has found a unanimous bench, so I would agree that this is universally recognized (except by the perpetrators, of course – but this is the same for every violation of the law: the perpetrator hardly ever agrees with the ‘universally recognized’ view that the conduct in question in unlawful)

  5. In Wall, ICJ also held that “any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory’ constitute violation of Art. 49(6) of GC IV.

    While drafting AP I, pretty much all states (except the perpetrator, as duly noted above) agreed that settlements are a war crime. “Settlements” themselves are “a war crime” in a sense that Israel is under obligation to make sure they do not exist.

  6. Pardon me but hopefully you can quell my curiosity. I am not entirely satisfied by the answers above, yet I would like to be convinced.

    In particular, I have my reservations considering how Israel (i.e. the ‘perpetrator’) would violate an obligation stipulated under the Rome statute, which you all agree it has not signed?

    And ‘big kahuna’ has referred to Israel violating Art. 49 of the GC IV, which reads:

    Art. 49. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

    So my question is:
    How do the Israeli settlements violate International Law, first specifically, and then universally?

    I am only in the beginnings of my studies on IL so I apologize for any obvious oversight. A considerate response would be appreciated.

  7. Response…
    The last para. of Article 49 of the Geneva Civilian Convention states: “The Occupying Power shall not … transfer parts of its own civilian population into the territory it occupies.”  Further, “unlawful deportation or transfer” is listed in Article 147 as a “grave breach” of the Convention.  Article 148 adds: “No High Contracting Party shall be allowed to absolve itself or any other … of any liability incurred by itself or by another High Contracting Party in respect of breaches refered to in the preceeding article.”

  8. Response…
    The U.N. G.A. has also condemned the settlements.  I know of this resolution, U.N. G.A. Res. ES-10/6 (9 Feb. 1999), there must be others as well. 

  9. First of all, UNGA Resolutions are not binding, so they are not indicative of International Law (beyond evidence towards the creation of customary International Law), per se. Thus the content of UNGAR ES-10/6 (1999) is not of a binding nature on Israel.


    As for the last line of the GC IV (which I interpret as the basis from which the rest of the argument stems), Israel has not ‘transferred‘ parts of its population; the Israeli Settlers do so very gladly & of their own accord.

    Does this qualify as ‘transfer’?

    To answer this, I thought it might be best to take the word ‘transfer’ in the context of the beginning of the article, which reads

    Art. 49. Individual or mass forcible transfers … are prohibited, regardless of their motive. (emphasis added) (see supra)

    In this light, I would interpret Art. 49 as inapplicable insofar as the settlers are not ‘forcibly’ transferred.

    I do appreciate the response so thank you very much! I look forward to more on the matter.

  10. I’d like to give an opinion regarding some points mentioned earlier and latter in the comment section.

    As to start, I want to refer to Kevin Jon Heller‘s reaction when mentioning Article 8(2)(b)(viii), obviously, the text is clear and means that direct transfer of part of the occupier’s population in the occupied territories is a War Crime and because it does mentions if the population is voluntary or not, to my opinion, it is applicable to both cases, so it would be right.
    BUT I have to mention another Article of the Statute of Rome and by the same occasion react to the assumption that Israel didn’t sign it because of this issue.


    Article 11 “Jurisdiction ratione temporis” (1) “The court has jurisdiction only with respect to crimes committed after the entry into force of this statute.”
    –> All the settlements were built before 2002, and it could be arguable with respect to new building of settlements but it is not the case, as the reason advanced by the Israeli Government for building in the occupied territories is for the purpose of the growth of the population of the settlers living there, as you might know they are mainly religious people who do a lot of children…

    paragraph (2) goes even stronger, saying that the jurisdiction of the court will refer to the time when the country becomes a party to the treaty and whatever happened before, stays before.
    I would then argue that the settlements are not War Crimes under the Statute of Rome.

    Whereas, my second point would be an answer to Curious George’s post over the debate concerning Article 49 of the GC IV, as I see a Majuscule letter at the beginning of each paragraph and no direct link between the paragraph, (it is unfortunate that on my copy of the above mentioned convention there is no number per paragraph), so my opinion would be to take each paragraph separately and in this case, I have to disagree on the implication of there free will.
    “The occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies
    –> This is a very problematic issue as “deporting” is, as you say subject to a measure imposed by force but not transfer otherwise the distinction would not be made.

    I do think that the issue of Art.49 of the GC IV is worth research to determine if the settlements are illegal.

  11. I am sorry for the typing mistake in the second Paragrah

    “because it does mentions if the population is voluntary or not”

    I meant “it does not mention if …” I am sure you understood but just to be sure no doubt remains…

  12. After careful consultation with the commentaries on Art. 49 GC IV (as well as some other very helpful sources), I am happy to declare my curiosity satisfied:

    The Israeli settlements are indeed a violation of the object of Art. 49 of the GC IV.

    Thus, the question of the ‘universal recognition’ of the illegality of Israeli settlements is no longer important to me; that Israel has signed the GC IV is enough to placate my doubts.

    On the way out, I am still not convinced that this constitutes a “War Crime”, which I recall is one of the two sources of conflict in Julian Ku’s comment, for the same reasons above (i.e. Israel & the non-applicability of the Rome statute on her).

    If anyone would like to enlighten me to that end I would appreciate it.

    Thank you all for the insightful comments.

  13. Just one little insight.

    Yes according to the GC IV the settlements are illegal (as detailed here above) but  they do not  constitute a “War crimes” according to the Statute of Rome.

    The question is to determine if there is another source of law to define war crimes, other than the Statute of Rome?
    What about breach of the Geneva Convention?

  14. The breach in question might indeed amount to a grave breach.
    Israel is of course not bound by the Rome Statute. However, the Rome State can be considered in many aspects as codifying customary law, which in turn is binding on Israel and the whole of the international community. Whether this specific provision of the Rome Statute is indeed codification of custom is open to debate.

  15. See for instance also the SC resolutions 446, 452, 465. 446: “the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East”. 452: “the policy of Israel in establishing settlements in the occupied Arab territories has no legal validity and constitutes a violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949” and “calls upon the Government and people of Israel to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem.” Adopted by 14 votes to none, with 1 abstention.

    “All special rapporteurs on the situation of human rights in the Palestinian territories occupied by Israel since 1967 consider Israel’s settlement policy to be a serious violation of international law and the stumbling block in the Middle East peace process.”, Paul de Waart, “Israel’s Settlement-Policy Stumbling-Block in the Middle East Peace Process”, Leiden Journal of International Law, 20 (2007), pp. 825–839

  16. Israel High Court has rulled a couple of times about the legality of settlements. For instance:

    “In Duikat, at 17, this Court discussed whether it is possible to seize land in order to build a Jewish civilian town, when the purpose of the building of the town is not the security needs and defense of the area (as it was in Ayoob), but rather based upon a Zionist perspective of settling the entire land of Israel. This question was answered by this Court in the negative.  The Vice-President of this Court, Justice Landau, quoted the Prime Minister (the late Mr. Menachem Begin), regarding the right of the Jewish people to settle in Judea and Samaria. In his judgment, Justice Landau stated:

    The view regarding the right of the Jewish people, expressed in these words, is built upon Zionist ideology.  However, the question before this Court is whether this ideology justifies the taking of the property of the individual in an area under control of the military administration. The answer to that depends upon the interpretation of article 52 of the Hague Regulations.  It is my opinion that the needs of the army mentioned in that article cannot include, by way of any reasonable interpretation, national security needs in broad meaning of the term.

    In the same spirit I wrote, in Jam’iyat Ascan, at 794, that

    The military commander is not permitted to take the national, economic, or social interests of his own country into account . . . even the needs of the army are the army’s military needs and not the national security interest in the broad meaning of the term.

    In Jam’iyat Ascan, we discussed whether the military commander is authorized to expand a road passing through the area. In this context I wrote, at 795:

    The military administration is not permitted to plan and execute a system of roads in an area held in belligerent occupation, if the objective is only to construct a “service road” for his own country.  The planning and execution of a system of roads in an occupied territory can be done for military reasons . . . the planning and execution of a system of roads can be done for reasons of the welfare of the local population.  This planning and execution cannot be done in order to serve the occupying country.”, Israel High Court Ruling Docket 2056/04, Beit Sourik Village Council v. The Government of Israel

  17. Whether or not the Rome Statute provision(s) are directly applicable or not is not the most important or the only question here. Israel mentioned at the Rome Conference that it didn’t ratify the Statute because of the inclusion of the transfer of the occupying powers’ own population INTO occupied territory. However, as some have pointed out, the Geneva Convention grave breaches regime clearly applies to the situation and also prohibits things like illegal appropriation of property. This is of course not to say that ALL settlements are by definition illegal appropriations, but some probably are. Moreover, the prohibition of transferring parts of your popoulation into an occupied territory does not have to be ‘forcible’ (as is the case for transfers of the occupied population OUTSIDE or WITHIN occupied territory). If a government provides strong incentives (and Israel seems to do so at least to a certain extent), this may suffice for state attribution – of course each case has to be viewed individually. This is a grave beach, but of Additional Protocol I, also not ratified by Israel.  However, there are solid arguments to be made that the prohibiton of transfering your own population into occupied territory is part of customary law, at least as far as international armed conflicts are concerned. After all, this is a correllary of the fact that interantional law bans the use of force and the annexation of territory by force.
    In sum, we can have a fair debate about the qualification of settlements under international law and aggressively disqualifying claims from one side in my view doesn’t seem to help the ‘integrity of international law’.

  18. The State Department’s legal advisor also issued an opinion in 1978 that the settlements were illegal under international law.  That opinion has never been revised or withdrawn.

  19. This conversation ignores the major question at issue; i.e. are the territories occupied?  How can there be occupation of an area which is still disputed?  The major flaws of the foregoing arguments are that they ignore the sui generis nature of the territories.  Quoting sections of the Rome Statute and the Geneva Convention do not address the territories’ unique status.  Tracing ownership of the areas in question will lead us back to the Ottoman Empire, a defunct entity, thereby rendering the region a true “no-man’s land.”

    Resolution 242 (legally binding) calls on the parties to continue peace negotiations and permits Israel to administer the territories gained in 1967 until “a just and lasting peace in the Middle East” is achieved. When that peace is reached, Israel must withdraw “from territories” it occupied during the Six Day War.

    Notice there is no modifier for “territories;” not all, not most, just the word “territories.”

    Perhaps Israel has already fulfilled this obligation by withdrawing from Sinai, areas of the West Bank, the Golan Heights, and the Gaza Strip.  The following analysis by the late Prof. Julius Stone provides a further compelling argument to buttress the claim that the areas are not occupied:

    Israel‘s presence in all these areas pending negotiation of new borders is entirely lawful, since Israel entered them lawfully in self-defence.  International law forbids acquisition by unlawful force, but not where, as in the case of Israel’s self-defence in 1967, the entry on the territory was lawful. It does  not so forbid it, in particular, when the force is used to stop an aggressor, for the effect of such prohibition would be to guarantee to all potential aggressors that,  even if their aggression failed, all territory lost in the attempt would be  automatically returned to them. Such a rule would be absurd to the point of lunacy. There is no such rule….

  20. Of course, the situation does not fall within the law – just like the war in Iraq, extraordinary renditions, detentions in Guantanamo: they are all new situations, so the Powers in question can do what they want. How satisfactory this is! The difference between jus in bello and jus ad bellum is indeed meaningless – since Israel entered the territories lawfully 45 years ago, its presence is still meaningful, no issue of proportionality vis-a-vis the changed situation arises. How strange that even a memo from Israel’s own foreign service says otherwise, though…this Ted Meron must have been a pro-Arab extremist, surely not a respected international lawyer who ended up being nominated by a US Republican administration as Judge at the ICTY.

  21. Article 147 of the fourth Geneva convention refers to the unlawful deportation or transfer of protected persons. Since Israeli citizens are not protected by the convention it does not apply to the relevant paragraph in article 49.

    To get some more perspective (though most people commenting here are probably aware of it) the ICRC interpretation says” “t is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.” Even WWII deportations wouldn’t constitute a war crime according to the convention.

  22. 2 Yaniv:

    Article 49(6) of the Convention states that ‘[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’. Where does it say anything about protected persons requirement? You are confusing two different issues.

  23. Unfortunately, much of the above discussion is foolish and ignorant of history. Before getting into historical issues related to the law, we can dispense with the Int’l Court of Justice at the Hague. Its members are appointed by governments and indeed habitually represent the positions of their own governments. Obviously, no justice can be expected from the Int’l Court of Justice, anymore than from the UN general assembly or the security council.

    Then there is the issue of whether or not the areas in question are indeed “occupied”. What in Israel are called Judea and Samaria, indeed the land on both sides of the Jordan, were part of the Jewish National Home juridically erected by the San Remo Conference [1920], endorsed and spelled out in detail by the League of  Nations in 1922, agreed to by the USA in the Anglo-American Convention on Palestine in 1925, and confirmed by the UN charter [Article 80 in 1945]. The UN GA partition plan voted on 29 Nov 1947 was a mere  recommendation as are all UN GA resolutions on political matters [UN charter, articles 10-14]. So the partition recommendation, against which the Arab states and the Palestinian Arabs made war, by the way, did not change the legal status of the whole country as the Jewish National Home. There was never a peace accord between Israel and any Arab state from 1948 to 1967. There were only armistice agreements [Isle of Rhodes 1949]. The Arabs simply refused to make peace in that 19-year period and did not recognize any borders with Israel, as the Jordanian UN delegate stated officially a few days before the Six Day War of 1967. Recently, Allan Baker, former legal advisor to the Israeli foreign ministry wrote –correctly– that there were no “borders” between Israel and Arab states before the Six Day War. Hence, the status of Judea-Samaria, what Jordan called the “West Bank” remained as part of the Jewish National Home.

    Israel in the 6-Day War recovered territory that legally belonged to it. Neither the UN Security Council nor the ICJ can legislate away the Jewish National Home in an ex post facto manner after it had come into Israel’s possession, nor can the ICJ legislate away Israel’s recovery of territory envisaged by San Remo and the League as territory of a future Jewish state.

    Some commenters above have referred to Theodore Meron. But no one has referred to Prof. Eugene Rostow who agreed with the legality of settlements in a number of publications. Nor has anyone mentioned a legal memorandum drawn up by Judge Simon Rifkind, Abraham Fortas and others in 1946 [see the reference in the notes to my modest article on this issue at http://www.think-israel.org/green.sanremo.html ]. Other legal experts, including Jacques Gauthier, Prof. David Ruzie, Howard Grief and others have weighed in on the side of the legality of settlements. See several articles on this issue at this link: http://theisraelisettlements.blogspot.com/p/settlements-legal-issues.html 
    The fact that this legal history is so often disregarded in contemporary discourse about Israel and Israeli settlements attests to the pervasiveness of anti-Israel mania.

    The changing interpretations of GC IV since the Six Day War show the same domination of politically motivated anti-Israel mania. The ICRC is often accredited as the authorized interpreter of the laws of war, including GC IV. In an authorized [by the ICRC] account of the Red Cross movement, La Croix-Rouge Internationale, by Henri Coursier [Paris: PUF 1959] we read [pp 42-43]:
    “The 4th Convention is new in the law of Geneva. It “completes” the dispositions of the Hague law on the protection of civilians in time of war. . . . It [Geneva IV] principally forbids:
    a) Harm to the lives and bodily integrity of human beings, notably torture. . . cruel treatments. . .
    b) hostage taking. . .
    c) deportations;
    d) harm to the dignity of persons, notably humiliating and degarding treatments and discriminatory treatment based on . . . race, color, nationality, religion. . . .sex. . .
    e) [sentences and executions not approved beforehand by a regular court {here I summarize}]”

    Therefore, of the five classes of action forbidden by Geneva IV, one is deportations , that is,  transfers [deportations  in French refers to forcible migration, particularly transfers to the German concentration camps from other countries]. There is no hint here that persons are forbidden to move across a border of an occupied country in order to live on the other side of that border. This was the ICRC’s own interpretation of Geneva IV, art 49, as of 1959. The later interpretations of the ICRC, as well as those of Scobbie, and of Hansell were purely meant to strike at Israel. The word “transfer” in Geneva IV, art. 49, does not apply to non-compulsory, voluntary migration or movement. The use of “deportations and transfers” together in GC IV is not meant to distinguish between them but to strengthen the idea of forcible migration.

    The ICRC now agrees with the fashionable Israelophobic interpretation of Geneva 4. The ICRC as a semi-official agency of the Swiss govt, is not neutral nor is it immune to making political judgements. Ironically, during the Holocaust the ICRC avoided helping Jews or even informing the world of the ongoing mass murder of Jews. That was done on the grounds that informing the world of mass murder by Germany would violate the ICRC’s “neutrality.” Then the ICRC interpreted international law to the detriment of the Jewish victims. Again today, it interprets international law to the detriment of Jews.

    It seems that various commenters have, like the ICRC, reinterpreted the word “transfer” from its original meaning of compulsory migration to now mean any movement across the border of an “occupied” territory. It seems that both the claim that Judea-Samaria is “occupied” and the claim of free migration as a “war crime” are  both politically motivated, although not always recognized as such by those who make such claims.

  24. Actually, the Anglo-American Convention seems to have been signed in December 1924
    http://myrightword.blogspot.com/2009/11/that-anglo-american-convention-of-1924.html.

    I think what should have been noted is that not only did the local Arabs engage in war and 7 Arab states as well joined in the fray but the 1947 Partition recommendation was rejected by the Arabs of the Mandate and so it is a dead letter.

    Moreover, as regards the Geneva Convention, “Palestine” could not have been, and wasn’t, a “High Contracting Party” to that 1949 Convention so that too is problematic for the application of its terms to a country/state that never existed.

    I will not enter into another problem: that the leader of the Arab community in the Palestine Mandate himself committed war crimes in aligning the Arab movement in Palestine with the Nazis, engaging in war crimes and sending agents back into the Palestine Mandate to fight the Allies there.

    Another legal concern is that the League of Nations decision was to “reconstitute” a Jewish national home, acknowledging the former existence of a Jewish state in history, something that the Arabs never managed to create in all the 1300 years they were occupiers in that part of the Middle East, having conquered it in 638 CE.

  25. I refer to article 147 Roth and you direct me to 49. Please pay attention to what I wrote: violation of the paragraph you cite is not a grave breach of the convention (like  Eva, for instance, claims above)

  26. Shorter Green: anyone who disagrees with Israel is politically biased.  Anyone who agrees with Israel isn’t.  Got it.


  27. Two points:

    1. It strains credibility when claims are made that settlement activity is on par with torture, forced deportation, hostage-taking and the willful killing of civilians.  This is particularly the case when such claims are made in regard to a state that came into possession of territory in the course of a defensive war against, inter alia, a state (Jordan) which has since renounced any claims to the land in question.

    2. To say that settlement in the West Bank is even unlawful is to put the cart before the horse.  Any rule regarding settlement in occupied territories must have regard to underlying title, which in this case is anything but settled.  There must be an agreement between the relevant parties concerning the boundaries of the state of Israel (and any future Palestinian state) before it even makes sense to suggest that settlement is unlawful because Israel may have a better claim on the land in question than any other people or state.  Note that I do not say “has”, but “may have”.  But that question can only be settled by agreement.  There is no such agreement.  Israel has yet to relinquish any claim it has on the West Bank.  The Arab states and PA have yet to relinquish their claims to the de facto boundaries of pre-1967 Israel.  The West Bank, in particular, is the subject of competing territorial claims that can only be resolved by negotiation.

  28. @Allison and Elliott Green: You mention that the territories are not ‘occupied territories’ in the sense of international law. This is a well-known argument of the Israeli government and it has already been answered times and again, most authoritatively by the International Court of Justice in the advisory opinion on the construction of the wall, para. 78.

    The definition of occupation from the 1907 Hague Regulations Respecting the Laws and Customs of War on Land refers to military occupation because the drafters at that time thought that situations of occupation would be very temporary. However, the definition of occupaiton in customary international law has evolved and what matters is the situation on the ground, i.e. whether any power exercises control over a territory in such a way that this power actually places the territory under its authority. If Israel decides what goods enter the territory, who is allowed to enter and exit it, etc. that can be an indication of such control.

    @Yaniv, please read what I wrote, I mentioned the grave breach under additional protocol I (not ratified by Israel) and not under the GVA conventions.

  29. Eva, we disagree very sharply on the issue of the ICJ at the Hague. I say that it has no moral authority, being a political body, a group of judges appointed by govts, and most of those govts not being very respectful of democracy and human rights or not at all respectful of same. Since the ICJ is a political body, mainly representing govts, many or most of them hostile to the State of Israel, its claim that Judea-Samaria is “occupied” is only to be expected. The ICJ has disregarded the international law status of those territories. Even a judge or a panel of judges cannot adjudicate [or legislate] in an arbitrary fashion. Would you, Eva, accept the judgement of the US Supreme Court in the Dred Scott case? By your standards, you should have accepted that decision when it was issued before the US Civil War. Do you recall what that decision said? Quoting from memory, “The negro has no rights that a white man is bound to respect.”
    My position is that the ICJ decides according to ethnic & religious bias against Israel, just as the Supreme Court in the Dred Scott may be said to have decided according to racial bias.

    It seems that your 2nd paragraph is a sally in the controversy over whether Gaza is “occupied” or not by Israel. Gaza is under a partial blockade by both Egypt and Israel. Are you redefining a blockade as “occupation”? Anyhow, the ruling power in Gaza has been holding an Israeli soldier, Gilad Shalit, prisoner in Gaza for 4 1/2 years under conditions illegal under international law. That is, Shalit has not been allowed any visits by the ICRC since he was taken captive in July 2006. Israelis and the rest of the world don’t know whether he is dead or alive or in what state of mental and/or physical health he is in, if alive. Hence, the ruling power in Gaza, the Hamas Islamist movement, considered a branch of the Muslim Brotherhood, is in violation of international law by its cruel, inhuman treatment of Shalit. How should this violator of international law be treated?

    Furthermore, the Hamas charter celebrates the genocide of the Jews at Judgement Day [Article 7]. What would you say, Eva, if an Evangelical preacher in Tennessee, let’s say, said something similar? So Hamas is a pro-genocide violator of human rights and international law. Where do you stand on that?

    As to Judea-Samaria, I [in my above comment] and others have argued that Israel does not occupy these territories but rather recovered them from Jordanian occupation in June 1967. So I and others, including eminent jurists like Eugene Rostow, do not agree with the ICJ on the settlement issue. The ICJ is a contemptible expression of the usual hypocrisy of international relations. It is Orwellian in its pretense to decide “justice.” Further, even if those territories were “occupied,” voluntary settlement in them would not be illegal, as I argue above. This is so particularly in places like Hebron, Gush Etsiyon, the Old City of Jerusalem, parts of eastern Jerusalem outside the Old City walls, etc. This is because these are places whence Jews were driven out by Arab forces either early in the Israeli Independence War [as early as December 1947 for the Shimon haTsadiq Quarter of Jerusalem] or where Jews were living in the first 10 years of British mandatory govt in the country and were driven out by Arab mobs with British acquiescence or encouragement [such as Hebron] or whence Arab irregular forces or armies drove them out in the later stages of the war.

  30. To Green:
    So, a ruling by the ICJ – which is according to the Charter the principal judicial organ of the UN – is too political to be credible, even if it is one of the rare occasions of unanimity (and includes the vote of the US representative usually not really unfriendly to Israel). On the other hand, the final status is in your opionion conclusively decided by the San Remo Conference [1920], endorsed and spelled out in detail by the League of  Nations in 1922, agreed to by the USA in the Anglo-American Convention on Palestine in 1925, and confirmed by the UN charter. How exactly is this process less politicized than an ICJ ruling? Are we to simply just believe that these agreements were not reached on the basis of bias?
    Israel did agree to be a UN member state, it is therefore bound by its law. Even if the Opinion is just Advisory, this does not mean that its conclusions are not binding: the Opinion as such of course is not binding, but the law contained in it is – as all law is.
    This has of course nothing to do with Hamas (and others): if they are breaching the law, they should be (and routinely are) condemned in the same way. I fail to see why a breach by somebody else justifies Israel’s breaches. To use your example, if blacks had started slaughtering white Judges after the Dredd Scott case, it would not have made the Dred Scott judgment right, but it would also not have made it an excuse for the murders.

  31. To Guy:  as to your first point, the San Remo decision, subsequently affirmed by the League of Nations decision,  expanded upon the Balfour Declaration to include the phrase “historical connection [connexion in the original]” so that it was based not only on interests, imperial or otherwise (and for sure, not all the countries supporting the “reconstitution” of a Jewish national home in Palestine were empires or colonial powers) but a rational analysis of history and not only law.  It wasn’t based on politics or biases but on what was true: only one people could have a national claim on that territory.  Moreover, the phrase “non-Jews” is used indicating that all others, Arabs, Muslims, Christians, Europeans, Turks, whatever/whomever, had rights in the country but only personal, civil and religious – not national.  Those were reserved for the Jews.   And since the local Arab residents did not apply to themselves the sobriquet of “Palestinians” but rather “Southern Syrians” in the early 1920s, how could the world have relaterd to them as “Palestinians”?  This is quite clear and has tremendous importance for arriving at a legal outlook on whether Jews could ever be “occupiers” in their country, even if a political or military situation results in a loss of territory or temporarily interfering with sovereignty.

    In addition, since Jordan illegally occupied and annexed the areas of Judea and Samaria (those are the terms used in the 1947 parition recommendation by the way, the “West Bank” only appearing in April 1950 when Abdullah I acted illegally in the matter), but that did not upset legalists, you must admit that to now selectively apply ‘law’ is problematic.

    In addition to the reversionary approach of Y. Blum and the opinions of Schwebel (himself an ICJ justice), Rostow, et al., the political track taken by the Arabs of the former Mandate of Palestine territory in constantly and unendingly waging terror against the Jewish civilians from 1920 on and then as fedyeen during 1949-56 and as PLO since 1964 would indicate that “law” cannot be an ninstrument in that the Arabs side will never recognize it.  So why go this route at all?  Israel was attacked for years leading up to 1967, war was declared in May 1967, the closure of Tiran and the expulsion of UN troops in Gaza were causis belli and Israel obtained the territories legally.  End of story.

    As Elliot Green pointed out, it was only under the British Mandate, perversely,  that Arabs succeeded in acts of ethnic cleansing by expelling Jews from Hebron, Gaza, Nablus, Jenin and later the Old City of Jerusalem, Gush Etzion, Bet HaAravah, Neveh Yaakov and Atarot.  This behavior does not warrant a legalistic approach because it is of no use.  If one side consistently refuses to accept internationally-sanctioned decisions, refuses to accept compromise or diplomatic mediation and also consistently emplys violence and terror-directed-solely-at-civilians, the legal route is perhaps not up to the task. 

  32. So, the ICJ ruling is not good because it is politicized, but all the rest you cite is good because it is politicized? I am sorry, I am too dumb to understand where this discission is going. I give up. You win.

  33. Guy, the ICJ ruling is not good because it disregards the international legal status of the Land of Israel [or “Palestine” if you like] which has a history. The ICJ disregards that history and judges falsely and unjustly. I don’t think that there is much to be done –that can be done– to correct the UN system, including the ICJ. Abraham Yeselson and Anthony Gaglione warned used years ago in their book, A Dangerous Place, The United Nations as a Weapon in World Politics [NY 1974], that the UN was about as relevant to peace as a battleship or an atomic bomb. Observers of the UN’s “human rights commission”, now rechristened the “human rights council,” have noted the absurdity of dictatorship-ruled countries sitting on the “human rights council” in judgment of others. To compound the absurdity, the council is dominated by members of the Organization of the Islamic Conference. This is a Muslim interstate body that promotes something called “The Cairo Declaration of Human Rights in Islam.” This Cairo declaration in fact vitiates human rights established in the 1948 Universal Declaration of Human Rights. True Muslim states adhere to shari`ah law which does not recognize universal human rights or equality, etc. And this shows up in the Cairo declaration, although it is subtly  worded. Yet the OIC has dominating influence over the UN HR Council.

    So the UNHRC does not defend human rights but state interests of anti-HR states. And the General Assembly and Security Council do not safeguard the peace, as Yeselson and Gaglione hold. They call the UN “a weapon in international relations.” They want it to be recognized as such.  So maybe it is time to look critically at the UN and dismantle these counterproductive UN bodies. Certainly the UN and the ICJ, not to mention the UNHRC, do not deserve the respect that they are regularly given.

    As to the Dred Scott decision, it was probably more based on law –unjust law to be sure– than current judgements alleging the “illegality” of Israeli settlements. So law can be unjust and courts can be unjust. What is also wrong is misrepresenting what the law is. And that is very common today in regard to the Israeli settlements issue.

    You could argue, Guy, that San Remo and the League of Nations were also political bodies. But many of the League’s members at that time were relatively disinterested –in terms of “interests.” There was more decency and honesty in those days, and certainly govts were more concerned with at least pretending or seeming to be decent and honest. As of 2011 there has been a great deterioration in international morality since the 1920s, and I suppose that those qualities were often lacking then too. But the situation today is very bad and govts more openly shameless. You recall perhaps that the UN secretary general 30 years ago about, was one Kurt Waldheim who was himself a Nazi war criminal. Kofi Annan was implicated in the Oil for Food scandal involving Saddam Hussein’s payoffs. So how should we view the UN nowadays?

    Medad makes an important point. The legalistic approach is not always effective. We might say that it is often or usually not effective. Even 70 years ago around the time when WW2 began, the major power that the UK was then showed contempt for international law and its own international commitments. In early 1939, the UK govt adopted the “Palestine White Paper” which amounted to a repudiation of the UK’s commitments to foster the development of the Jewish National Home under the League’s mandate. The UK was found in violation of its mandate from the League by the League’s Permanent Mandates Commission. The White Paper in question drastically curtailed unilaterally Jewish immigration into the internationally designated Jewish National Home when the Jews most needed a home. The White Paper was found in violation of the mandate. Yet the UK continued with its illegal policy. It was one of the UK’s contributions to the Holocaust. And with the way history is written or rewritten today most well-informed people seem to be unaware of that.

    Medad raised that issue, Guy. How would you answer his judgement that the “legalistic approach” is not realistic?

  34. Just a clarification: EGreen notes the Holocaust and the White Paper. I would like to continue that thread as it is relevant to my objection that law is at all times correct.

    Not only did that 1939 White Paper restrict immigration and limit land purchases, it altered the terms of the League of Nations Mandate for Palestine by deciding, I quote, “His Majesty’s Government therefore now declare unequivocally that it is not part of their policy that Palestine should become a Jewish State”.  Now, one can argue whther that decision was correct or not from the Arab angle but in essence, that policy statement doomed the Jews of Europe.  And as we now know, that the Mufti was a Nazi collaborator as early as 1933 and that it was the terror he led that actually convinced the Bbritish to alter the Mandate, illegally as EGreen pointed out, I would put it to you that taking all this into consideration, either the law is an ass, to quote Mr. Bumble, or it has little relevance ot the Arab-Israel conflict, or at worse, interferes on the wrong side.

  35. It seems that even those advocating the illegality of the settlements would have to admit based on the above that it is far from a universally recognized or self evident matter. I believe that that was the question at hand.

  36. Jenny: according to your reasoning, the Shoah and its significance are far from a universally recognized matter – that however does not make it less true.

    Yisrael: as to whether the 1920s – with: colonialism, stalinism and racism rampant; Africa, India and other small places like those denied self-determination; no rights for women in most countries; no recognition of social and economical rights; no HR regional bodies… – was really the paradise of decency and honesty you submit, I remain with a few little doubts. As for the dichotomy between legalism and realism, I think international law generally strikes a good balance; it actually depends on how you define them. Legalism is arguably also looking too much at the history and the supposed titles, arbitrarily setting a date (if you go back enough, Italy might actually have a decent title to the whole Mediterranean coasts – why should we stop in the 1800s?). One could actually say that it is more realistic to accept that Judges elected by the only universal organization – to which, again, Israel has freely decided to be a member – are issuing a valid judgment; after all, this is what Judges are appointed to do…

  37. Guy, I understand your logic. But I don’t appreciate being likened to a Holocaust denier. My position was once the conventional position. Indeed, today’s conventional position on these issues has been carefully promoted by various govts and NGOs and press outlets over the years. Just as there is immense documentation on the Holocaust, so there is much documentation to confirm my position. You can go back to Ernest Frankenstein in 1944 in his Justice for My People, esp. pp 81-115. Then there are the Rifkind, Fortas memorandum of 1946; and Carl Friedrich, American Policy toward Palestine [Wash, DC: Public Affairs Press 1944]. Then we may cite as authorities Julius Stone [already cited by Allison], Stephen Schwebel, a State Dept legal advisor. Prof Rostow, et al.
    KJ Heller mentions that a State Dept legal advisor under Carter [Hansell] gave an opinion that settlements were illegal. But the Carter administration was highly hostile to Israel, and Carter’s recent charges against Israel indicate how very hostile he is and must have been then. In any event, legal advisors during the Reagan administration did not accept Hansell’s opinion and it has not been the official US position since then. Note that Pres. Obama in his Cairo speech called the settlements “illegitimate” but not illegal. My view is that that position too is itself illegitimate and can be seen as racism and an apartheid policy against Jews. The position held by the UK and the EU is that Jewish settlements are “illegal” which reflects the 2000 year heritage of European Judeophobia, inter alia. The UK’s conduct toward Jewish refugees during the Holocaust was both a violation of humanity and a legal violation of the Mandate [as I cited above]. That conduct defines the UK as a guilty party unfit to be an accuser.

    We should not forget that the Dred Scott decision may have been quite legal in terms of the law existing at that time but it still was racist. So too can we view the current hostility to Jews going to live in Judea-Samaria.

    It appears that many EU govts have taken positions on the legality of settlements reflecting economic interests and/or political interests, including the fact that there are many more Arabs than Jews in the world. And the wealthy Arab oil states have much money to spend on buying expensive goods from the EU [including the UK], including Airbus passenger planes and jet fighter aircraft [consider UK sales to Saudi Arabia]. Are the Euros really capable of shaping their positions on international law to fit their economic and political interests?? Do bears hibernate in winter?

    Think about it, Guy.

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