Australia / Israel Review

By David M. Phillips

The conviction that Jewish settlements in the West Bank are illegal is now so commonly accepted, it hardly seems as though the matter is even open for discussion. But it is. Decades of argument about the issue have obscured the complex nature of the specific legal question about which a supposedly overwhelming verdict of guilty has been rendered against settlement policy. Yet, while one may debate the wisdom of Israeli settlements, the idea that they are imprudent is quite different from branding them as illegal. Indeed, the analysis underlying the conclusion that the settlements violate international law depends entirely on an acceptance of the Palestinian narrative that the West Bank is “Arab” land. Followed to its logical conclusion – as some have done – this narrative precludes the legitimacy of Israel itself.

These arguments date back to the aftermath of the Six Day War. When Israel went into battle in June 1967, its objective was clear: to remove the Arab military threat to its existence. Following its victory, the Jewish state faced a new challenge: what to do with the territorial fruits of that triumph. While many Israelis assumed that the overwhelming nature of their victory would shock the Arab world into coming to terms with their legitimacy and making peace, they would soon be disabused of this belief. At the end of August 1967, the heads of eight countries, including Egypt, Syria, and Jordan (all of which lost land as the result of their failed policy of confrontation with Israel), met at a summit in Khartoum, Sudan, and agreed to the three principles that were to guide the Arab world’s post-war stands: no peace with Israel, no recognition of Israel, and no negotiations with Israel. Though many Israelis hoped to trade most if not all the conquered lands for peace, they would have no takers. This set the stage for decades of their nation’s control of these territories.

The attachment of Israelis to the newly unified city of Jerusalem led to its quick annexation, and Jewish neighbourhoods were planted on its flanks, in the hope that this would render unification irrevocable. A similar motivation for returning Jewish life to the West Bank, the place where Jewish history began – albeit one that did not reflect the same strong consensus as that which underpinned the drive to hold on to Jerusalem – led to the fitful process that, over the course of the next several decades, produced numerous Jewish settlements throughout this area for a variety of reasons, including strategic, historical and/or religious considerations.

Over the course of the years to come, there was little dispute about Egypt’s sovereign right to the Sinai, and it was eventually returned after Nasser’s successor, Anwar Sadat, broke the Arab consensus and made peace with Israel. Though the rulers of Syria have, to date, preferred the continuance of belligerency to a similar decision to end the conflict, the question of their right to the return of the Golan in the event of peace seems to hinge more on the nature of the regime in Damascus than any dispute about the provenance of Syria’s title to the land.

The question of the legal status of the West Bank, as well as Jerusalem, is not so easily resolved. To understand why this is the case, we must first revisit the history of the region in the 20th century.

Though routinely referred to nowadays as “Palestinian” land, at no point in history has Jerusalem or the West Bank been under Palestinian Arab sovereignty in any sense of the term. For several hundred years leading up to World War I, all of Israel, the Kingdom of Jordan, and the putative state of Palestine were merely provinces of the Ottoman Empire. After British-led Allied troops routed the Turks from the country in 1917-18, the League of Nations blessed Britain’s occupation with a document that gave the British conditional control granted under a mandate. It empowered Britain to facilitate the creation of a “Jewish National Home” while respecting the rights of the native Arab population. British Colonial Secretary Winston Churchill later partitioned the Mandate in 1922 and gave the east bank of the Jordan to his country’s Hashemite Arab allies, who created the Kingdom of Jordan there under British tutelage.

Following World War II, the League of Nations’ successor, the United Nations, voted in November 1947 to partition the remaining portion of the land into Arab and Jewish states. While the Jews accepted partition, the Arabs did not, and after the British decamped in May 1948, Jordan joined with four other Arab countries to invade the fledgling Jewish state on the first day of its existence. Though Israel survived the onslaught, the fighting left the Jordanians in control of what would come to be known as the West Bank, as well as approximately half of Jerusalem, including the Old City. Those Jewish communities in the West Bank that had existed prior to the Arab invasion were demolished, as was the Jewish Quarter of the Old City of Jerusalem.

After the ceasefire that ended Israel’s War of Independence in 1948, Jordan annexed both the West Bank and east Jerusalem. But, as was the case when Israel annexed those same parts of the ancient city that it would win back 19 years later, the world largely ignored this attempt to legitimise Jordan’s presence. Only Jordan’s allies Britain and Pakistan recognised its claims of sovereignty. After King Hussein’s disastrous decision to ally himself with Egypt’s Nasser during the prelude to June 1967, Jordan was evicted from the lands it had won in 1948.

This left open the question of the sovereign authority over the West Bank. The legal vacuum in which Israel operated in the West Bank after 1967 was exacerbated by Jordan’s subsequent stubborn refusal to engage in talks about the future of these territories. King Hussein was initially deterred from dealing with the issue by the three “no’s” of Khartoum. Soon enough, he was taught a real-world lesson by the Palestine Liberation Organisation, which fomented a bloody civil war against him and his regime in 1970. With the open support of Israel, Hussein survived that threat to his throne, but his desire to reduce rather than enlarge the Palestinian population in his kingdom ultimately led him to disavow any further claim to the lands he had lost in 1967 on July 31, 1988.

Thus, if the charge that Israel’s hold on the territories is illegal is based on the charge of theft from its previous owners, Jordan’s own illegitimacy on matters of legal title and its subsequent withdrawal from the fray makes that legal case a losing one. Well before Jordan’s renunciation, Eugene Rostow, former dean of Yale Law School and undersecretary of state for political affairs in 1967 during the Six Day War, argued that the West Bank should be considered “unallocated territory,” once part of the Ottoman Empire. From this perspective, Israel, rather than simply “a belligerent occupant”, had the status of a “claimant to the territory.”

To Rostow, “Jews have a right to settle in it under the Mandate,” a right he declared to be “unchallengeable as a matter of law.” In accord with these views, Israel has historically characterised the West Bank as “disputed territory” (although some senior government officials have more recently begun to use the term “occupied territory”).

Because neither Great Britain, as the former trustee under the League of Nations, nor the since deceased Ottoman Empire – the former sovereigns prior to the Jordanians – is desirous or capable of standing up as the injured party to put Israel in the dock, we must therefore ask: On what points of law does the case against Israel stand?

International law arguments against the settlements have rested primarily upon two sources. First are the 1907 Hague Regulations, whose provisions are primarily designed to protect the interests of a temporarily ousted sovereign in the context of a short-term occupation. Second is the 1949 Fourth Geneva Convention, the first international agreement designed specifically to protect civilians during wartime.

While Israel was not and is not a party to the Hague Regulations, the Israeli Supreme Court has generally regarded its provisions as part of customary international law and hence applicable to Israel. The regulations are transparently geared toward short-term occupations during which a peace treaty is negotiated between the victorious and defeated nations. The “no’s” of Khartoum signalled that there would be no quick negotiations.

Nonetheless, Israel established and maintains a military administration overseeing the West Bank in accordance with the Hague Regulations, probably the only military power since World War II other than the United States (in Iraq) that has done so. For example, consistent with Article 43 of the Regulations, which calls on the occupant to “respect… unless absolutely prevented, the laws in force in the country,” Israel has for the most part continued to follow Jordanian law in the West Bank, despite its position that Jordan itself had illegally occupied it.

Article 46 of the Hague Regulations bars an occupying power from confiscating private property. And it is on this point that the loudest cries against the settlements have been based. Israel did requisition land from private Arab owners to establish some early settlements, but requisitioning differs from confiscation (compensation is paid for use of the land), and the establishment of these settlements was based on military necessity. In a 1979 case, Ayyub v. Minister of Defence, the Israeli Supreme Court considered whether military authorities could requisition private property for a civilian settlement, Beth El, on proof of military necessity. The theoretical and, in that specific case, actual answers were affirmative. But in another seminal decision the same year, Dwaikat v. Israel, known as the Elon Moreh case, the court more deeply explored the definition of military necessity and rejected the tendered evidence in that case because the military had only later acquiesced in the establishment of the Elon Moreh settlement by its inhabitants. The court’s decision effectively precluded further requisitioning of Palestinian privately held land for civilian settlements.

After the Elon Moreh case, all Israeli settlements legally authorised by the Israeli Military Administration (a category that, by definition, excludes “illegal outposts” constructed without prior authorisation or subsequent acceptance) have been constructed either on lands that Israel characterises as state-owned or “public” or, in a small minority of cases, on land purchased by Jews from Arabs after 1967. The term “public land” includes uncultivated rural land not registered in anyone’s name and land owned by absentee owners, both categories of public land under Jordanian and Ottoman law. Inversely, the term excludes land registered in the name of someone other than an absentee owner (regardless of whether the land is presently cultivated), land to which a title deed exists (even if the deed is unregistered), and land held by prescriptive use. The last stipulation requires continuous use of the land for a period of 10 years.

Settlement opponents more frequently cite the Fourth Geneva Convention these days for their legal arguments. They specifically charge that the settlements violate Article 49(6), which states: “The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies.”

Frequently, this sentence is cited as if its meaning is transparent and its application to the establishment of Israeli settlements beyond dispute. Neither is the case.

To settlement opponents, the word “transfer” in Article 49(6) connotes that any transfer of the occupying power’s civilian population, voluntary or involuntary, is prohibited. However, the first paragraph of Article 49 complicates that case. It reads: “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.” Unquestionably, any forcible transfer of populations is illegal. But what about voluntary movements with the antecedent permission or subsequent acquiescence by the occupant?

Even settlement opponents concede that many settlements closest to Palestinian population areas, on the central mountain range of the West Bank, were built without government permission and often contrary to governmental policy; their continued existence forced the government to recognise the settlement as an existing fact. Given this history, it is questionable to claim that Israel “transferred” those settlers.

The response of settlement critics is that certain tax subsidies and other benefits conferred by the Israeli government or the World Zionist Organisation that may have encouraged Jews to settle in the West Bank constructively amounts to a “transfer”. This interpretation would have greater traction under a 1977 protocol to the Geneva Convention or under the Treaty of Rome, which established the International Criminal Court, but Israel is a signatory to neither (both covenants were heavily influenced by anti-Israel nongovernmental organisations and the PLO).

To the extent that a violation of Article 49(6) depends upon the distinction between the voluntary and involuntary movement of people, the inclusion of “forcible” in Article 49(1) but not in 49(6) makes a different interpretation not only plausible but more credible. It’s a matter of simple grammar that when similar language is used in several different paragraphs of the same provision, modifying language is omitted in later paragraphs because the modifier is understood. To Julius Stone, an international-law scholar, “the word ‘transfer’ [in 49(6)] in itself implies that the movement is not voluntary on the part of the persons concerned, but a magisterial act of the state concerned.”

According to Stone, discussions at the 1949 Geneva Diplomatic Conference “were dominated… by a common horror of the evils caused by the recent World War and a determination to lessen the sufferings of war victims.” The various countries’ delegates considered a draft of the convention produced at a conference of the Red Cross Societies held in Stockholm during August 1948. Final Article 49 was the renumbered and revised successor to Article 45 of the Stockholm Draft.

At a legal subcommittee meeting at Stockholm seemingly attended by fewer than 10 active participants, a Danish Jew named Georg Cohn proposed the sentence, albeit with a wider scope, that became Article 49(6). Cohn’s initial sentence, in French, would have prohibited an occupying power from deporting or transferring a “part of its own inhabitants or the inhabitants of another territory which it occupies” into the occupied territory.

According to Cohn’s own report to the Danish Foreign Ministry, his language was directed at an event the aspects of which were little known outside Scandinavia. In the waning days of World War II, as the Russian military advanced westward through the Baltic states and the Germans retreated, the Germans rightly feared that the Russians would take retribution on all German citizens and ethnic Germans who had collaborated with the Nazis. The Germans evacuated more than two million people into boats, hoping to land them in northern Germany.

Many of the ports had been bombed, however, and the Germans began unloading the people wherever they could, including several hundred thousand people into Copenhagen. In the spring of 1945, German children comprised a majority of the pupils in Copenhagen’s schools. The Danes despised them and placed them in concentration camps after the war, waiting to deport them to Germany as fast as possible. That goal had still not been accomplished in August 1948, at the time of the Stockholm conference.

Cohn may also have been motivated to propose the language that later became Article 49(6) in light of his own strong Jewish identity. The original language on deportations presented to the Stockholm conference would not have prevented Germany from deporting its own Jews to slave and extermination camps in Poland and other occupied countries, nor would it have prevented the Germans from sending Danish Jews found in Germany to concentration camps in occupied territories, sending either Hungarian or Italian Jews to Auschwitz, and/or from transplanting Germans to portions of Poland and other occupied countries. Cohn’s original language would have criminalised all these practices.

Other participants in Stockholm, led by Albert J. Clattenburg Jr. of the United States, thought Cohn’s provision too broad. The phrase “or the inhabitants of another territory which it occupies” was deleted, and “civil” was inserted before “inhabitants.”

At the Geneva Conference itself, both the Final Report of the Committee charged with drafting the text of the Fourth Convention for consideration by the delegates as well as comments by delegates generally differentiated between transfers that were voluntary and therefore permitted and those that were involuntary and therefore prohibited. As the Final Report to the delegates stated while explaining the differences between various articles dealing with the right of an occupying power to evacuate an area, primarily in the interest of the security of the civilian population’s security: “Although there was general unanimity in condemning such deportations as took place during the recent war, the phrase at the beginning of Article 45 caused some trouble… In the end the Committee had decided on a wording that prohibits individual or mass forcible removals as well as deportations of protected persons from occupied territory to any other country, but which permits voluntary transfers.”

That is a key reason why Julius Stone termed the anti-settlement interpretation “an irony bordering on the absurd” and commented: “Ignoring the overall purpose of Article 49, which would inter alia protect the population of the State of Israel from being removed against their will into the occupied territory, it is now sought to be interpreted so as to impose on the Israeli government a duty to prevent any Jewish individual from voluntarily taking up residence in that area.”

There is simply no comparison between the establishment and population of Israeli settlements and the Nazi atrocities that led to the Geneva Convention. The settlements are also a far cry from policies implemented by the Soviet Union in the late 1940s and early 1950s to alter the ethnic makeup of the Baltic states by initially deporting hundreds of thousands of people and encouraging Russian immigration.

Nor can they be compared to the efforts by China to alter the ethnic makeup of Tibet by forcibly scattering its native population and moving Chinese into Tibetan territory. Israel’s settlement policies are also not comparable to the campaign by Morocco to alter the ethnic makeup of the Western Sahara by transferring Moroccan Arabs to displace the native Saharans, who now huddle in refugee camps in Algeria.

All these would seem to fit the offence described in Article 49(6) precisely. Yet finding references to the application of Article 49(6) to nations other than Israel is like looking for a needle in a haystack. What distinguishes a system of “law” from arbitrary systems of control is that similar situations are handled alike. The loose use of international law, disproportionately applied to Israel, undermines the notion that this is “law” entitled to authoritative weight in the first place.

Julius Stone referred to the absurdity of considering the establishment of Israeli settlements as violating Article 49(6):

We would have to say that the effect of Article 49(6) is to impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that… the West Bank… must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context exclude so tyrannical a reading of Article 49(6).

Stone’s pointed critique of what has since become “accepted” wisdom invites a hypothetical: Suppose a group of Palestinian Arabs who are citizens of Israel requested permission to establish a community on the West Bank. Further, assume that Israel facilitated the community’s establishment, without the loss of their citizenship, on land purchased from other Palestinian Arabs (not citizens of Israel) or on state land. Would establishment of this settlement violate Article 49(6)? If not, how can one distinguish the hypothetical Arab settlements from Jewish settlements?

Concluding that Israeli settlements violate Article 49(6) also overlooks the Jewish communities that existed before the creation of the state in areas occupied by today’s Israeli settlements, for example, in Hebron and the Etzion Bloc outside Jerusalem. These Jewish communities were destroyed by Arab armies, militias, and rioters, and, as in the case of Hebron, the community’s population was slaughtered. Is it sensible to interpret Article 49 to bar the reconstitution of Jewish communities that were destroyed through aggression and slaughter? If so, the international law of occupation runs the risk of freezing one occupier’s conduct in place, no matter how unlawful.

The idea that the creation of new settlements or that the expansion of ones already in place is an act of bad faith on the part of various Israeli governments may seem without question to those who believe those settlements constitute an obstacle to the ever-elusive solution to the Arab-Israeli conflict. Whether this argument is well-founded or not, the willingness of Israel’s critics to assert that these communities are not merely wrong-headed but a violation of international law escalates the debate over their existence from a dispute about policy into one in which the Jewish state itself can be labelled as an international outlaw. The ultimate end of the illicit effort to use international law to delegitimise the settlements is clear – it is the same argument used by Israel’s enemies to delegitimise the Jewish state entirely. Those who consider themselves friends of Israel but opponents of the settlement policy should carefully consider whether, in advancing these illegitimate and specious arguments, they will eventually be unable to resist the logic of the argument that says – falsely and without a shred of supporting evidence from international law itself – that Israel is illegitimate.

David M. Phillips is a professor at Northeastern University School of Law. Reprinted from Commentary magazine. © Commentary, reprinted by permssion, all rights reserved.