International Law

03.15.13

Of Course Settlements Are Illegal

One of the most tiresome things about a long-term engagement with the Israeli-Palestinian conflict is the endless need to push back against those who insist on living in a more pleasurable but entirely fictive alternate reality. For many on both sides, the realities on the ground, or the legal and political facts, are simply too painful or disruptive to be acceptable. So they neurotically retreat into an alternate universe in which everything feels better.

There are innumerable examples of this on the Palestinian side, but among hard-core supporters of Israel, one of the most persistent imaginary realities is that there is no occupation and/or Israeli settlement activity is not prohibited by international law. Writing in the Jewish Journal, the reliably hawkish David Suissa has just engaged in an extended exercise in this kind of sophistry.

The reason this is such a persistent shibboleth of hawkish pro-Israel propaganda is that occupying powers are bound to abide by the extensive international law and treaty obligations delineating the rights and responsibilities that accrue to this status. And the problem is that so much of what Israel has been doing in the occupied Palestinian territories is in direct and undeniable contravention of international law.

Like so many before him, Suissa makes two manifestly false claims. First, he flatly denies the territories are occupied. Second, he asserts that Israel has "a legal right to settle in the West Bank." He urges Israel to find a good lawyer to make these claims. But no serious attorney is going to take on this case, because it can't possibly be maintained.

The fact that the territories seized by Israel in the 1967 war are occupied and that Israel is the occupying power is affirmed by a mountain of United Nations Security Council resolutions (the very body authorized by the U.N. Charter to make such determinations). These resolutions were all voted for or permitted, and sometimes drafted, by the United States.

They begin with Security Council Resolution 242 of November 22, 1967. 242 begins by “Emphasizing the inadmissibility of the acquisition of territory by war," which means that Israel cannot claim to have acquired any territory in the 1967 war. This is a central pillar of the U.N. Charter itself. Second, 242 calls for the "Withdrawal of Israel armed forces from territories occupied in the recent conflict."

So the very first Security Council resolution following the 1967 war clearly identifies the territories as occupied, and Israel as the occupying power. There followed a mountain of subsequent Security Council resolutions—all voted for or approved by the United States—which reiterate that the territories are occupied and Israel is the occupying power.

Of particular note is Security Council Resolution 476 (1980), which "Reaffirms the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem." So the U.N. Security Council was thoughtful enough to clarify that not only is Israel the occupying power in all the territories conquered in 1967, and obliged to end its occupation of them, but also specified that this includes Jerusalem.

There are many other aspects of international law that affirm the occupation as a legal and political fact, including the advisory opinion issued by the International Court of Justice on the West Bank separation barrier. The bottom line is that it is a legal and political fact, not an opinion or subject of dispute, that the territories seized in 1967 are under occupation and Israel is the occupying power. One may have one's own opinions, but not one's own facts. And in the matter of law, we have competent authorities that serve as arbiters of international legal and political fact, including the Security Council and the ICJ. Indeed, no competent authority has ever challenged this idea, although biased individuals have tried to argue against it with any amount of spuriousness.

Having established that the territories are occupied, and that Israel is indeed the occupying power, there can be no question that settlement activity is strictly prohibited. The clearest prohibition comes from the Fourth Geneva Convention, Article 49, Paragraph 6, which reads: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."

Some apologists for the settlement project have tried to argue that "transfer" in Paragraph 6 only refers to involuntary transfer, not voluntary settlement. This is clearly false. First, there are numerous other provisions in the Convention that prevent involuntary transfer of civilians. Second, the concurrent Red Cross commentary intended to serve as a contemporaneous explanation for the thinking informing each aspect of the Convention deals with Paragraph 6 at length.

This vital commentary demonstrates that Paragraph 6 was adopted to protect the human rights of the civilian population living under occupation, not civilian citizens of the occupying power: "It 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."

As a further clarification, the commentary adds, "It should be noted, however, that in this paragraph the meaning of the words ‘transfer’ and ‘deport’ is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power."

In other words, according to the Red Cross, which oversaw the drafting of the Convention, Article 49, Paragraph 6 is intended as a human rights protection for people living under foreign military occupation who have the right not to have their land colonized. This is precisely what Israel is doing, and as noted above, as an occupying power they are fully bound to respect all of the Fourth Geneva Convention, including Article 49, Paragraph 6. The settlement project is thus not only strictly prohibited, it is illegal because it is a direct violation of the human rights of Palestinians living under Israeli occupation.

From the outset of the occupation and the settlement project, the Israeli government has been aware of this. A top-secret memorandum from September 18, 1967 by T. Meron, a Legal Adviser to Israel’s Ministry of Foreign Affairs, is blunt about the legal situation facing the prospect of settling the occupied territories. 

Meron determined that, "The prohibition [against settlement activity in Article 49] therefore is categorical and not conditional upon the motives for the transfer or its objectives. Its purpose is to prevent settlement in occupied territory of citizens of the occupying state. If it is decided to go ahead with Jewish settlement in the administered territories, it seems to me vital, therefore, that settlement is carried out by military and not civilian entities. It is also important, in my view, that such settlement is in the framework of camps and is, on the face of it, of a temporary rather than permanent nature.”

So, from the outset, the Israeli government was fully aware that, at least from the point of view of international law and the unanimous consensus of all other governments, its settlement project was, by definition, illegal.

The final refuge that Suissa and many others, including some he cites, seek in trying to deny the legal and political fact of occupation and the prohibition against settlement activity and so much of the rest of what Israel has done in the occupied Palestinian territories, is to claim that there is no occupation because there was no clear sovereign in the territories in 1967. However, there is no aspect of international law that requires a clearly established prior sovereignty for a territory to be considered under military occupation. These arguments have never held any water in the Security Council, at the ICJ or any other international or multilateral legal or diplomatic body, or with any government outside of Israel.

Indeed, even the government of Israel itself is ambiguous about whether the territories are occupied or not. Sometimes it openly cites the ongoing occupation to justify military activities—such as some instances of the seizure of land for military purposes—or other measures that are, in fact, consistent with the rights of an occupying power under international law. But it simultaneously denies there is any occupation when it comes to settlement activity and other human rights abuses against Palestinians prohibited to occupying powers under international law.

Suissa insists there is no occupation but a "dispute." We hear this a lot from supporters of the occupation, settlements and annexation. But if there is a “dispute,” it is not between Israel and the Palestinians or the Arabs. It is between Israel and every single other government and international authority in the entire world.

It's a little bit like proclaiming that while everyone else observes the sky is obviously blue, I insist it is green, and therefore this somehow constitutes "a dispute." This is not a dispute. It is a willful and manipulative distortion of clearly established facts in a self-serving manner by an interested party that is trying to rationalize actions that are manifestly illegal. These actions—especially settlement activity in areas under military occupation—have been prohibited specifically because they are a gross human rights violation.

The experience of World War II demonstrated that peoples living under occupation must be protected from having their lands seized from them and colonized through force of arms. In the immediate aftermath of that terrible conflict, this was explicitly and categorically codified in the Fourth Geneva Convention, to which Israel is a signatory.

That's not an opinion. That's a legal and political fact.