Whose Alleged Settlement is Bigger?

[Eugene Kontorovich is Professor of Law at Northwestern Law. This post is cross-posted at The Volokh Conspiracy]

In response to my post about Turkey’s settlements, Kevin Jon Heller argues that from the perspective of International Criminal Court liability for “indirectly… deporting or transferring” its nationals into occupied territory, Israel would be more vulnerable than Turkey.

Although statistics are not easy to come by for Cyprus, a comprehensive 2006 study suggests that the overwhelming majority of the Turks in Cyprus arrived there between 1974 and 1979 — [before Cyprus’s ICC membership went into effect] and that the number of immigrants in the past decade has been relatively small, likely in the thousands. Contrast that with Israeli immigration: the number of Jewish settlers living in the West Bank in 2002 was around 214,000; there are more than 350,000 living there today — an increase of approximately 136,000 civilians.

[Prof. Heller seems to assume, as he has argued before, that ICC jurisdiction over Palestine could be retroactive to 2002, if it files an Art. 12(3) declaration. I think that position has real textual basis, but is not in my view the best reading of the text as a structural or policy matter. Let’s set this aside – just as we set aside big questions about territorial jurisdiction – and, since we’re talking about my original post, stick with my assumption of purely prospective jurisdiction.]

Now to the issues Prof. Heller raises. In fact, Turkey’s settlements are a far graver violation of the anti-transfer norm and its purposes.

1) How does one measure the gravity of civilian “transfer”? Typical war crimes are measured in the number of bodies — but that is because the purpose of the provisions is to protect lives. But this doesn’t seem the right way to measure “deportation or transfer.” It must be measured in light of its purposes – colonization, etc. Otherwise, if 1000 people are transferred into a territory of 500, it would be considered de minimis, whereas if 1 million were transferred into a territory of 100 million, it would be a big deal.

Turkish settlers constitute an absolute majority in N. Cyprus (and by many accounts the prior Turkish population is not so happy about the new arrivals). By contrast, Israeli civilians in the West Bank (not including Gaza) are under 20% of the total population, if you include E. Jerusalem (and follow Palestinian population figures). Throw in Gaza, and the percentage drops considerably.

Lets look at it another way. The total population of the island is 1.1 million. Turkish settlers in N.Cyprus constitute over 13% of the population of the island. In the unlikely event of reunification, the Greeks see this as a bitter pill. Population statistics for the Palestinians are also greatly in the dispute, but if one estimates the total population between the river and sea at 11 million, the Jews across the Green Line would be about 5% of the total. Given that Israel has had more time to cement its hold, and it doesn’t have far go to to “transfer” settlers, one might conclude it was not trying particularly hard, or that the Turks are just better at it.

2) In the same vein, In N. Cyprus, the influx of settlers has been accompanied by the collapse of the local population, ie had net emigration. That exacerbates the demographic effect, and is course part of the classic “move in, kick out” model where 49(6) violations were helped effectuate de facto 49(1) breaches. In West Bank, by contrast, population has grown rapidly. Similarly, the ICRC commentary mentions economic effects as one of the policies behind 49(6), and the WB has done in the past decade whereas N.Cyprus has stagnated.

3) That leaves the question of when the Turkish “transfer” happened, which is a real and important point Prof. Heller raises. The real is answer is we do not know for sure. Yes, the big surge was in the years after the invasion. But all these numbers are very disputed and we do not have the benefit of human rights groups like Peace Now or Foundation for Peace in the Middle East that have gone out of their way to track Turkish settlers with the precision of their Israeli counterparts.

However, in June 2003, the Parliamentary Assembly of the Council of Europe issued a recommendation that stated, in part:

“It is a well-established fact that the demographic structure of the island has been continuously modified since its de facto partition in 1974, as a result of the deliberate policies of the Turkish Cypriot administration and Turkey. Despite the lack of consensus on the exact figures, all parties concerned admit that Turkish nationals have since been systematically arriving in the northern part of the island.”

Based on the European Parliament’s estimates of the settler population a decade ago (115K) and conservative estimates today (150K), one can conservatively estimate an increase equivalent 16% of the territory’s population a decade ago.

More anecdotally, a quick Google search reveals news accounts that suggest non-trivial mainland influx in the past decade, and more importantly, it appears this period saw the significant out-flow of the previous locals.

Moreover, some portion of both populations are the children born to those who have allegedly been “transferred.” Israel has a higher fertility rate than N.Cyprus as a whole, and the Jewish civilian population across the Green Line is higher than the Israeli average. So more of the contested Israeli population was delivered, rather than transferred, than their Turkish counterparts. That is why “natural growth” allowance proposals for Israeli settlements were once more in vogue, and now not so much.

4) The bigger picture concerns the unit of analysis. The number of people on the island of Cyprus has changed drastically as a result of Turkey’s settlement program. The number of people between the river and the sea has not changed a whit. Thus, ultimately the effects cannot be measured independently of the proposed political solution. In the case of Cyprus, the international community favors a one-state solution, which makes the sending of external migrants relevant. If the dominant paradigm would be partition, no one would care how many Turks Ankara squeezed into their corner of the island.

Since the dominant paradigm for Israel involves a border demarcation that puts the vast majority of Israelis inside Israel, and kicks the rest out, the demographic implications are entirely unlike Turkey’s settlement program. And if the dominant paradigm were one-state – all the more so, the number of Jews between the river and sea has not increased at all, unlike the number of Turks on the island.

5) As for Kevin’s point that Israel has taken greater steps to facilitate transfer – well, that gets into the merits, which I wish to avoid at this point. I’ve assumed for the sake of argument that “transfer” has occurred on both sides. That is a highly fact specific question, and I am pretty sure I would not characterize some of the Turkish and Jewish migrants as “transferred.” I will observe that the WB is on the other side of an imaginary line, while N.Cyprus is on the other side of a body of water. The latter takes more getting to.