International law and the settlements

February 13, 2008

In the wake of President Bush’s recent trip to Israel, the administration has put great emphasis on the issue of Israeli settlements. Most controversial are the “unauthorized settlements.” Mr. Bush declared that the “illegal outposts … must go.”

Unauthorized settlements are communities that have been created against the wishes of the Israeli government. They may violate Israel’s building or zoning rules, and thus are sometimes called “illegal” settlements.

One might think from the controversy that these communities represent a gross affront to international norms. The opposite is true: whatever one may think of the legal status of Jewish communities in the West Bank in general, the “unauthorized” settlements raise no issues under international law.

The international law said by Israel’s critics to prohibit Jewish settlement activity in the West Bank is the Article 49 of the Fourth Geneva Convention. The article provides that “the occupying power shall not deport or transfer parts of its own population into the territories it occupies.” The dispute over the legality of Israel’s West Bank settlements mostly turns on the interpretation of this provision.

“Occupation,” as used in the treaty, seems to mean seizing territory belonging to another country. The West Bank, however, was not part of Jordan’s territory when Israel took it in 1967. At the time, the area was not the recognized as the territory of any nation.

Regardless of these arguments, what is clear is that the Convention specifically bars action only 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.

This makes sense given the convention’s purposes and background. The Geneva Conventions are treaties between nations outlining their legal responsibilities during war and its aftermath. The obligations they create apply only to nations and individuals exercising public power.

No one has ever suggested that the U.S. occupation of Iraq and Afghanistan banned American citizens from moving there.

Certainly the Geneva Convention is not a zoning law, or a Jim Crow ordinance preventing people of a certain nationality from living where they choose. Sixty years ago, in Shelley v. Kramer, the U.S. Supreme Court held that the government could not participate in any way in racial discrimination in housing. Yet in Mr. Bush’s interpretation, if an American Jew with Israeli citizenship were to buy a house from an Arab in a voluntary transaction, it would be an “illegal settlement” since not approved by the Israeli government. Apparently the administration does not feel the philosophy of Shelley has general applicability.

The “illegal” Jewish outposts exist despite the government’s best efforts, not because of them. They were created by private individuals, with the government often repeatedly destroying or threatening their homes or blocking their access. Residents continue to live in trailers and even send their children to classrooms built in the backs of trucks because the government would demolish permanent homes.

It is puzzling that international opposition to settlements begins with those that are illegal if at all, only under Israeli law. The international community is an unlikely champion of Israeli’s complex housing code — it certainly does not complain of the extensive illegal Arab construction.

Perhaps it is because the unauthorized communities represent the persistence of Jewish efforts to live in the area regardless of the government’s plans. The Palestinian Authority insists that the price of any deal be not only the withdrawal of Israeli sovereign force, but also the expulsion of all Jews from the area. Thus the outposts challenge the vision of a Jew-free state.

The Geneva Convention was designed to protect against governmental efforts to forcibly change the ethnic make-up of an area, efforts of the kind that occurred in World War II. It would be a bitter irony if it were misread as requiring that any territory be kept free of Jews, or any ethnic group.

Mr. Kontorovich is a professor at Northwestern University Law School, where he teaches international and constitutional law.

February 20, 2008 | 3 Comments »

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  1. It has been the mostly unstated position of all Israeli Governments to blink and unofficially help to aid and construct so called illegal settlements. Why? How? The How part is simple ea. settlement or outpost has a paved road leading from main roads to the settlement. Ea. settlement has been hooked up legally, to the electric grid, ea has telephone lines, water and sewage infrastructure. All of these supplied either by official Israeli Government ministries involved, or locale authorities.

    Then what might make them then illegal? simply either a cabinet decision or military commanders signature as Government agency responsible for the administration of the territories.

    Why ? Israel uses these settlements as a pawn to pressure the Palis to be nice and forthcoming as the more time that goes by without an agreement the more land the Palis loose. Thus the settlements become the leverage and the stupid settlers the unwitting political pawns, to be used and later if need be discarded,by cynical politicians and Governments .

  2. International Law?

    In the good old days before “international law”, the powerful countries did what they wanted because they could.

    Since liberals didn’t like this, they invented “international law”. So now, powerful countries do what they want and justify it using their ever-changing interpretation of “international law”.

    So Serbs living in their ancestral homeland of Kosovo are violating international law, and Jews living in their ancestral homeland of Judea and Samaria are violating international law.

    But Spain occupying the Basque homeland, England occupying Scotland and Wales, Turkey occupying the Kurds, India occupying Kashmir, the Russians committing genocide in Chechnya, the Chinese committing cultural genocide in Tibet, the massacres in Darfur and Kenya, none of these violate international law.

    That’s because in the ultra-fanatical religion called liberalism, white christian nationalists are considered “devils” who have to be destroyed, since they reject the teachings of the enlightened white liberals. South Africa was first, Serbia is second, and Israel (as the representative of America’s Republican Party and evangelical christians) is next, and the obsession of liberals with destroying Israel is so overwhelming and ferocious that it is comparable with Nazis and Muslims and traditional christianity.

    But don’t ever expect to hear this from any of Israel’s “leaders” (who are living proof of the saying “You can take an Israeli out of the ghetto, but you can’t take the ghetto out of an Israeli”).

    (And hey, I recently found this saying of George Orwell: “In a world of universal deceit, merely telling the truth becomes a revolutionary act”.)