[Sari Bashi is the executive director of Gisha, an Israeli human rights organization protecting the right to freedom of movement in the occupied Palestinian territory]

Last week, a committee appointed by Israeli Prime Minister Benjamin Netanyahu to recommend disposition of about 100 Israeli outposts in the West Bank established in violation of Israeli military zoning laws released its conclusions (English summary here). The committee members, hand-picked by Netanyahu, were expected to recommend authorizing the outposts retroactively, and they did.  What was less expected were 11 double-spaced pages in the report that renounced the existence of a state of occupation in the West Bank.

To be sure, official declarations denying Israel’s occupation of the territory captured in 1967 are not new, but thus far, they have been limited to the Gaza Strip, as this spring’s Opinio Juris symposium highlighted. This latest report, the work of a committee headed by former Supreme Court Justice Edmond Levy, is further reaching. Its recommendations have yet to be considered by the Israeli government.

The Levy Committee reverted to an old argument by the government, namely that the Fourth Geneva Convention’s rules on occupied territory do not apply in the West Bank and Gaza because they did not form part of the territory of a High Contracting Party, meaning a sovereign state, prior to being captured by Israel in 1967. However, it added a far-reaching and somewhat puzzling twist: the committee found that Israel…

I don’t mean to interrupt this great discussion of the “International Law in the Supreme Court” Book Discussion (to which I also made a very small contribution).  But I can’t resist a brief note on a case this term that promises to bring international law back to the Supreme Court, if only indirectly.  Here is the NYT write-up:

Menachem Zivotofsky was born in Jerusalem. But was he born in Israel?

Congress says yes. In 2002, it directed the State Department to “record the place of birth as Israel” in passports of American children born in Jerusalem if their parents ask.

President George W. Bush signed that bill about three weeks before Menachem was born. But Mr. Bush also said he would not obey it.

(Remember the controversy over Mr. Bush’s flurry of signing statements, in which he expressed reservations and disagreements with acts of Congress even as he signed them into law? This was an example of one.)

The 2002 law, Mr. Bush said, “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs and to supervise the unitary executive branch.”

This case nicely brings into focus the idea of an “exclusive presidential power” under the Constitution (which I’ve argued for here) and the power of Congress.  If there is any presidential power that has received broad support from across the political spectrum (and Supreme Court precedent), it has got to be the president’s power to recognize foreign governments.  But is it enough to override an explicit congressional directive? The administration is arguing for an exclusive presidential power,  essentially endorsing President Bush’s then-controversial signing statement announcing his refusal to follow this part of the statute.  This case could go in many different directions, so it will be worth following.

Alan Dershowitz has a very short but persuasive assessment of the legal issues arising out of the alleged Israeli assassinations of a Hamas leader in Dubai.

So if the Israeli Air Force had killed Mabhouh while he was in Gaza, there would be absolutely no doubt that their action would be lawful. It does not violate international law to kill a combatant, regardless of where the combatant is found, whether he is awake or asleep and whether or not he is engaged in active combat at the moment of his demise.

But Mabhouh was not killed in Gaza. He was killed in Dubai. It is against the law of Dubai for an Israeli agent to kill a combatant against Israel while he is in Dubai. So the people who engaged in the killing presumptively violated the domestic law of Dubai, unless there is a defense to such a killing based on international principles regarding enemy combatants. It is unlikely that any defense would be available to an Israeli or someone working on behalf of Israel, since Dubai does not recognize Israel’s right to kill enemy combatants on its territory.

There is an additional wrinkle here that Dershowitz doesn’t talk about, which is whether the presumptive assassins from Mossad are privileged combatants authorized to kill in an armed conflict.  This is the same problem faced by CIA officers directly involved in drone assassinations in Pakistan. Still, the bottom line seems right: There is no legal defense for the assassins under Dubai law and if caught there, they would likely be convicted.  If it is proved that the Israeli government ordered the killing, then the State of Israel is on the hook here for violating Dubai’s sovereignty.

So I wouldn’t look to see a legal defense offered by Israel here. There is no serious legal defense.  But the moral defense seems relatively powerful, as Dershowitz goes on to explore.

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….

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.