Author Archive for
Eugene Kontorovich

Remedies for Settlements: A Return to What Status Quo?

by Eugene Kontorovich

Nothing in the Geneva Conventions suggests the remedy for Art. 49(6) transfers is the deportation of the transferred population. In response to my earlier posts, Kevin, Marko and other commenters argued that since the creation of settlements was illegal, the remedy is their undoing, a return to status quo ante. In a discussion with Marko in my previous post, I argued that even if this is true, Israel is not responsible for all the settlements/ers in the WB, and would not have to do anything about those. Here I’ll address that general principle of reverting to the status quo, and hopefully later talk about various conventions Kevin says specifically authorize large-scale ethnic deportations.

The idea that illegality requires removing “removing the consequences of the breach” is a very general one. So is the idea of reliance interests of innocent third parties (ie Israelis born there). I do not know any sources that apply the former principle in a way that requires the removal of mass populations, and there are certainly many places where it could be applied this way.(Western Sahara, Tibet and other Chinese conquests, N. Cyprus, and more). In particular, the UN sponsored Baker peace plan for Western Sahara contemplates Moraccan settlers, who actually outnumber the inigenous population — precisely the situation 49(6)’s commentary says it designed to address — not just staying in place, but voting on the Western Saharan plebiscite! While the UN has declared Turkish occupation and settlement of Northern Cyprus illegal in similar language to its position on Israel, its own peacep plan for the island allows all the Turkish settlers (and troops) to stay. Indeed, there was not even discussion as far as I know of the obligation to deport that has been asserted in our discussions here. So there appears to be alot of flexbility in this rule.

But lets say the others are right: the remedy is to reverse the illegal situation in all of its particulars, to ‘67. Let us play out the implications. From ’49-67, part of historic Palestine was occupied by Jordan. There was not much international pressure on Jordan to reverse this illegal situation, let alone to return Jews to return to their homes. In any case, Israel in ‘67 reverses this situation through force of arms. So if we “go back” to ’67, we still have an illegal situation. Should Israel restore Jordanian occupation?

Indeed, by the logic of the commenters, when Israel took the WB in ’67, it could have deported all Jordanian nationals who moved to or were born in the WB during Jordanian occupation. Since the occupation was illegal, their presence was illegal. This seems like an absurd suggestion. No one ever proposed this because it is not how we understand the Geneva Conventions, except potentially in the case of Israel’s presence in the West Bank. Time does change things, as Peter notes.

So lets go further back still, to the “prior” situation, before Jordanian occupation – an unfulfilled but unrequited international mandate for the creation of a Jewish state in Palestine, and a strong but nonbinding (i.e, GA resolution) international preference that the area be partitioned into Jewish and Arab states.

Jordanian occupation was imposed on an inherently undetermined international situation. Thus for Israel to “revert” to the situation of ’67 does not mean to revert to a Palestinian state in all of the area from which it expelled Jordan. That was not the status quo. Rather, it would be to revert to, at best, a state of indeterminacy.

The West Bank as an entity was created not through Israeli occupation, but through the illegal act of Jordanian occupation. If occupation cannot create new legal rights, they cannot entitle the Palestinians to the full extent of Jordan’s illegal conquests. This is why the international community has long favored a negotiated solution between Israel and the Palestinians – because while favoring a Palestinians state for self-determination and other reasons is quite reasonable, the borders of that state are not self-evident, and it would quite perverse to identify them as the furthest extent of illegal Arab aggression in ’48-49.

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!)

Response to Kevin and commenters

by Eugene Kontorovich

I thank Kevin for his extensive and thoughtful response to my post. You touched on many issues which I hope to address systematically in subsequent posts, such as the illegality of the settlers presence. I’m going to try to avoid getting into those issues right now, since this post (like yours before it) is already quite long. I apologize in advance for typos.

Two points of clarification. What prompted my post is a comment by Sen. Mitchell that the administration wants to see a freeze in settlement growth as measured by births. If, as you suggest, the settlers accepted increasingly crowded conditions and their population continued to grow apace, I do not think this would be considered as satisfying a settlement freeze. If the Administration made clear that Jewish population growth through births was not a problem — they don’t mind if the Jewish population doubles so long as the live on top of each other — I would agree with my critics that this is not about genocide/ethnic cleansing. The problem is Jews not Jewish houses. The Palestinians want a state free of Jews, not of Jewish-built houses. Note that all peace plans contemplate the removal of the Jews, not of the roads, houses and other facilities they have built. This is the significance of Mitchell’s comment about births. If there are still births, that means the screws have not been twisted tightly enough.

Second, I don’t want to sell the Genocide point too strongly because I agree that it might “just” be ethnic cleansing. I’m quite open to the possibility that this is not the actus reus of genocide, but rather just flirting with it. Why that makes any liberal-minded person feel better is beyond me, as we well explore below as I engage some of Kevin’s points, grouped into two headings: 1) does it prima facie violate the Genocide Convention; 2) is there some warrant or excuse for sometimes violating it?

1. Human Rights Originalism.

We are not discussing whether Israel can forcibly remove them for military necessity – though by the way, I think invocations of such Art, 49 provisions applied to only one ethnicity would be highly suspect these days. We are talking about whether the U.S. can seek their removal for diplomatic reasons.

You argue that the Genocide Convention’s ban on “measures designed to prevent births” is limited to the kind of methods used in World War II by the Germans. That’s a fair point and not one that I would rule out. It depends on whether we are human rights treaty Originalists or Textualists. I know many of my conservative friends would be delighted to find Originalism alive and well in international law. But keep in mind that the same kind of questions arises with the Geneva Convention itself. An originalist approach to both treaties would say neither the settlements nor the ban on their natural growth violates international law….

Freezing Natural Growth – “Measures Intended to Prevent Births”?

by Eugene Kontorovich

The U.S. and Europe have been vigorously insisting that Israel stop all “settlement growth,” including “natural growth.” There has been some question as to what those terms mean. In a June 16 press briefing, Sen. George Mitchell said that Israel must stop “natural growth” in settlements, and specified that he means “births” as well. Here is the State Department’s transcript (my emphasis):

QUESTION: Well, what does natural growth mean? I mean, can you just use it in –

MR. MITCHELL: I’m constantly asked by editors, you know, please give a plain explanation of what natural growth is….Well, of course, one of the issues is that there is no universally used and accepted definition. The most common definition is by the number of births, but there are many variations of that. I’ve had numerous discussions with many Israeli and other officials, and there are almost as many definitions as there are people speaking. But I think the most commonly used measure is the number of births.

QUESTION: (Inaudible) that number, please?

MR. MITCHELL: Yes. Yeah.

QUESTION: There seems to be a lot of focus on the talk about settlements, settlements.

MR. MITCHELL: Yeah.

This language is to my ear quite shocking. The Genocide Convention defines genocide as, among other things, “imposing measures intended to prevent births within the group.” To be sure, Mitchell is not saying the Jewish women in the West Bank should be required to have abortions. Yet the “measures” contemplated by the Genocide Convention are not limited to abortion. Demographic growth requires physical accommodation — bigger homes, new schools, and so forth. If one creates conditions in which there is nowhere to put one’s children — indeed where one is forbidden from making accommodations – one will not have “births” by Jews in the area. Indeed the point of the natural growth freeze is so that people who want to have “natural growth” move elsewhere.

Banning natural growth is designed to prevent, indirectly, births among the group, that group of being settlers, or more precisely Jews living in the West Bank.

I’m certainly not suggesting that anyone in the administration is guilty of genocide, or more precisely, genocidal conspiracy, complicity and incitement. I’m not a fan of accusing senior government leaders of high crimes regardless of how objectionable I find the conduct; it makes things personal and confuses debate. In any case, the requisite specific intent is quite difficult to demonstrate. Some supporters and some critics of a freeze speculate its goal is to slowly choke off or dry out these communities. If so, a freeze is to “destroy” the Jews of the West Bank as a group. But this would be difficult to demonstrate. The demographic effects could just be a side effect of the settlement freeze whose principal purposes are diplomatic. And much of it depends on whether “destroy” means the physical destruction of a people, or the destruction of the group as a group. In other words but the administration most likely is trying to promote — the removal of Jews as an ethnic group from the West Bank — is more like ethnic cleansing and genocide, and I believe there’s some dispute as to whether the Convention covers the latter, though I’m not an expert on how this has been applied by the ICTY or ICTR.

Now one might say that the settlements are illegal, an obstacle to peace, amoral, etc. I do not think that bears on whether international law permits suppressing “natural growth” among the civilian population. It should be clear to international lawyers that this would not affect the human rights of the people living there one bit. That is the point of human rights — the only qualification is humanity. This is a theme I hope to explore in subsequent posts. Suffice it to say now that even if creating settlements violates IV Geneva Art. 49, the violation is committed by the State of Israel, not the settlers themselves. They are not in any way punishable for any illegality.

In other words, even if the creation of the settlements was illegal, once they have a permanent resident civilian population, that population may have a right under the Genocide Convention not to have measures taken to prevent its natural growth.

 

Introduction – Israel and Settlements

by Eugene Kontorovich

I would like to thank the Opinio Jurists for having me on board for this short blogging stint. I’ve previously written here about piracy and universal jurisdiction. There is something about the vestigial romance of piracy that makes people enjoy talking about it. It is a fun topic.

This time around I’ll be writing more about a topic that people certainly like to talk about, but could hardly be described as fun — Israeli settlements and international law. Given the intense feelings this topic generates, I hesitate to approach it; it is hard to have a genuinely academic discussion of the legal issues involved.

None the less, given that the question of Jewish communities in the West Bank has come to the fore given the Obama administration’s very high profile push for a settlement freeze, I thought I might try to explore it. One might ask what there is to say on the subject — the consensus amongst international lawyers is overwhelming that pretty much everything Israel is doing in the West Bank is illegal and must somehow be “reversed.” However, the certitude with which this position is advanced, and the lack of nuance, seems to me unwarranted given the ambiguity of the underlying legal texts. The legality of Israeli presence/settlements seems at least “complicated,” and the question of what to do with the “facts on the ground” once they are there even more so.

Some topics I  hope to explore might include:

1) The International Law of Illegal Immigrants and Reliance Interests

2) Applicability of Geneva Conventions and the Meaning of Transfer

3) Ethic cleansing and remedies for violation of anti-transfer rule.

4) Natural Growth and the Genocide Convention

But it is summer, and I’m hardly an expert in these questions, so I doubt I’ll get to all of it. Especially if I manage to squeeze in some pirates as I hope to also do.

 

Why the Piracy Police Isn’t Working

by Eugene Kontorovich

[Opinio Juris is pleased to present this essay by Professor Eugene Kontorovich of Northwestern Law School on the relationship between international law and anti-piracy efforts.  Please be sure to click “continue reading” to read the whole essay.]

The successful ransom by Somali pirates of a Ukrainian freighter laden with arms and armor is indicative of the broader failure of the massive international anti-piracy effort. Because of the important nature of the cargo, the seizure of theFaina was said to be a bridge too far for the pirates – the seized vessel was ringed in by a small flotilla; with the most powerful navies in the world bearing down on them, the pirates, it was said, could not win this one.

The ransom of the Faina can only be understood on the background of the pathetic spectacle playing out everyday in the Gulf of Aden. A naval force from over 20 powerful nations is there to put down a piracy problem that threatens to cripple world commerce – 1/3 of which transits through the Gulf. Western navies are finding and stopping the pirates, only to let them go —  in one case, even giving them a ride back to port. While pirates are international criminals that any nation can prosecute, none of the countries patrolling off Somalia has done so.

 Today international law seeks to resolve massive problems like genocide and decades-long ethnic conflicts, but is proving incapable of dealing with maritime mugging. It is important to understand why the piracy police is just twirling its baton. 

The Good, the Bad and the UNgly

by Eugene Kontorovich

Legitimate Conquests?

by Eugene Kontorovich

Specific Costs and Diffuse Benefits

by Eugene Kontorovich

Forgiving Amensty

by Eugene Kontorovich

Symposium: Kontorovich Reply to Guzman

by Eugene Kontorovich

[Eugene Kontorovich is a Visiting Professor at Northwestern University Law School and a contributor to the Opinio Juris On-line Symposium]



I would like the thank Peggy and the rest of the Opinio Jurists for providing this forum for the discussion of new work. I’m grateful to Andrew Guzman for providing comments, and even more grateful for providing charitable ones.



Andrew’s comments raise several important issues about the paper and its limitations.



1. Multifactor tests.



I never thought I’d be guilty of multi-factor tests, but Andrew has caught me red-handed. The kinds of social context that lead welfare maximizing norms can be described, but reduced to an algorithm. Rather than an open-ended multi-part test, what the article may suggest is a flipped presumption. International law is based on strong presumption that customary practices of states lead to desirable norms. Without this presumption, we have no reason to reflexively adopt custom across the board. Once this presumption is dismissed and we are considering whether to adopt particular customs a la carte, we are already in a whole different world. That choice is difficult, but the very notion that such choice makes sense is what I hoped to get at.



Finally, perhaps the most important component of efficient-custom situations is the most easy to get a handle one – the question of whether states are likely to be on both sides of an issue over time.



2. Structural adjudication and the alternatives to custom.



The biggest question this paper runs in to is what the alternative to custom is and whether it is likely to be any better. In private law, custom is selectively incorporated by courts, based on something like the multifactor test just mentioned. If a court rejects a customary norm, it provides its own alternate rule. Of course, international law does not generally get made through courts.



Still, there may be some room for structural “adjudication” with the latter term broadly defined. The way I conceptualize customary international law – and this is going far outside the scope of the article – is that in IL “case” is a situation that arises between nations that is understood to be potentially within the scope of international law. The “original ruling” is made by the states themselves through their choice of action; and whether that ruling is subsequently followed or overruled depends on the reactions of other states. In this model, structural adjudication can be done by the states when choosing to follow a customary norm or not. There is an obvious self-judging problem here, but it is endemic to international law and perhaps offset by reputational or other sanctions.



3. Other grounds for international norms.



The argument of custom is that something should be done because everyone does it. On its face, this seems like childish mimicry. But Hayek and others have shown how in certain circumstances, the thing which winds up over time as the custom is welfare maximizing, though none of the participants in the process may see why or how.



This is the structure of an argument based on custom:



1. Everyone/lots of others have stopped doing x; it seems not doing x is a new custom.

2. Customary behaviors are generally efficient [thus we should not be deterred by an impression that not doing x is unwise].

3. Thus we should stop doing x.



If the major proposition (#2) is false, then arguments to adopt a norm because everyone else has loose much of their force. And such arguments are often made in relation many humanitarian norms, such as the death penalty, to take a prominent example.



Does this mean international humanitarian norms should be disregarded? Not at all. They just require a justification not rooted in practice, but in absolute notions of justice. Indeed, this may help humanitarian law. One need not be embarrassed by the disconnect between practice and theory with such well-established norms like torture, because “custom” was never an adequate basis for them in the first place. Thus those who wish to convince a state to adopt a norm should make a substantive case for the norm itself, rather than point to its customary status.

Symposium Paper 4: Inefficient Customs in International Law

by Eugene Kontorovich

Abstract



This Article explores whether and when rules of customary international law (CIL) can be expected to be efficient. Customary rules are often regarded as desirable because in certain circumstances, they promote the welfare of the group in which they arise. Unless these circumstances apply among states, the efficiency arguments for the legalization of customary norms do not apply.



The Article takes as its central observation the divergent treatment of custom in domestic and international law. In international law, if a customary behavior of states can be identified, it is automatically elevated to the status of legal obligation without any independent examination of whether the custom is a good one. International custom is customary international law. This reification of custom is in marked contrast to the treatment of custom in private law. No one doubts that customary behaviors exist in various societal subgroups, but tort law does not assume that customs are normatively desirable, and does not automatically transform customs into legally binding obligations. Thus tort law does not take custom to dictate the standard of care; the fact-finder must independently determine whether the practice is efficient, though its customary status has some positive evidentiary value.



Law and economics scholars have varied views about whether custom is presumptively efficient in the private law context. The most optimistic view holds that private custom will generally be welfare enhancing, and thus courts should give legal recognition to such practices. Yet even the optimistic view holds that efficient custom would only arise in certain circumstances: when there are thickly repeated dealings between members of an insular, homogenous group whose members play reciprocal roles.



The Article takes these earmarks of efficient custom and examines whether they apply to international custom. It finds that much of international custom should not be expected to be efficient even in the most optimistic view of custom. Some areas of CIL, like diplomatic privileges, might satisfy efficient custom criteria. This suggests that, contrary to current practice, CIL should not be treated as one undifferentiated phenomenon. Rather, the standards for establishing a CIL norm should vary across different substantive contexts and different groups of states.



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