Monday 21 October 2013

West Bank Settlements Episode 1: Legal or Illegal?

These days, Israel’s critics appear to have developed a particular attachment to the expression “illegal Israeli settlements”.  This is not because they believe that some settlements are legal; in fact, they claim that all settlements are illegal.  And it is this repetitive use that spurred me into researching the issue.  Let me explain: being well acquainted with the practice of brainwashing employed by dictatorial regimes, I have a strong distrust for anyone trying to “persuade” me by endlessly repeating a “mantra”.  People who believe that the settlements are illegal are certainly at liberty to present their case.  But, if that case is so obvious and clear-cut, why the incessant repetition?  Nobody says “illegal theft”, “illegal robbery” or “illegal murder”.  Why is there a need to say “illegal settlements”?  Might it be, I wondered, that the case for illegality is not actually as persuasive as its promoters would have us believe?  Might it be that the repetition is meant to insinuate itself into the subliminal memory of people who are neither particularly knowledgeable of nor particularly interested in the facts?  I tend to think that such “subliminal messaging” is not just unethical, but also suspect: it is typically employed to “buttress” shaky arguments.

So let us examine, one by one, the arguments for illegality.


The case for illegality relies almost entirely on the Fourth Geneva Convention  (GC-IV), an international treaty signed in August 1949.  Because the document represents an agreement (i.e. a contract) among signatory states, the latter are referred to in the document by using the legal term “High Contracting Parties”.  The agreement opens, therefore, with the statement:
“Article 1: The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”
The Convention deals with situations of war and occupation and aims to set limits to the permitted acts undertaken by states in such situations.  In terms of the “settlements”, the paragraph cited as relevant is the following:
“Article 49: […] The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Obviously, no Israeli was ever “deported” into the West Bank.  As for “transfer”, the term is subject to much (and inconclusive) debate among legal experts.  Some say that “transfer” implies the use of coercion or threat thereof and is only marginally different from “deport”; indeed, that is the common interpretation of the term “population transfer”, to which the Convention appears to refer.  Others claim, however, that the offer of economic incentives (such as cheaper houses) amounts to “transfer”.  In the absence of legal precedents and of impartial courts (more about that later), the issue can only be argued endlessly.
But let us take a step back.  The first question legal scholars ask before debating the provisions of a contract or law is: is it applicable to the issue at hand?  The applicability of contracts and laws is usually defined in a preamble or in the first paragraphs.  The Fourth Geneva Convention is no different: Article 2 defines precisely to what type of “occupation” the Convention’s provisions apply.
“Article 2: In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party [emphasis added], even if the said occupation meets with no armed resistance.”

In other words, the “occupation” provisions are only applicable to cases in which territory belonging to a signatory state is occupied by another signatory state.
Even if we extend the applicability beyond signatory states, it certainly remains true that the Convention refers to occupation of a state’s sovereign territory by another sovereign state.  Control over a territory not part of a sovereign state may be called “occupation” if someone really wants to; but it is not “occupation” in the sense of the Fourth Geneva Convention.
The fact that in June 1967 the West Bank was not part of a sovereign state is beyond reasonable argument.  According to the recommendations included in UN General Assembly Resolution 181 (1947) most of the territory now known as the West Bank should have been part of the proposed Arab State, which was to be established on the territory of the former Mandate of Palestine, alongside a Jewish State.  But the Resolution was rejected wholesale by the Arab League and by the local Arab leadership – and it was never implemented.  Towards the end of 1947, portions of the local Arab population reinforced by various units of “volunteers” trained in and armed by the neighbouring Arab states launched a civil war against Jewish neighbourhoods, villages and road traffic.  Following the withdrawal of the last British troops in May 1948, the regular armies of all neighbouring Arab states (reinforced by contingents from several other Arab and Muslim states) invaded, with the declared intention of dismantling the newly-proclaimed Jewish State.  Hostilities ended in 1949, when Israel and the four neighbouring Arab countries (Egypt, Jordan, Syria and Lebanon) signed bilateral armistice agreements.  During the war, Jordan had occupied the West Bank, while Egypt occupied the Gaza Strip.  In 1950, Jordan unilaterally annexed the West Bank; but the act was rejected by the Arab League and all other countries except Great Britain.  In any case, Jordan formally cancelled  the annexation in 1988, declaring that the West Bank was not part of Jordan and that the 1950 annexation had only been meant “to safeguard the remaining Arab territory of Palestine from Zionist expansion”.
In summary, the West Bank is not part of any sovereign state.  Which renders the occupation-related provisions of the Fourth Geneva Convention inapplicable to this territory.
West Bank’s status as “territory with no established sovereignty” or “disputed territory” is by no means unique; nor is it very uncommon.  See this (incomplete) list of territorial disputes around the globe.

He said, she said, they said, everybody said…

When challenged to prove the claim of settlement illegality, Israel’s critics often resort to that “infallible argument”: they are illegal because… everybody says they are.  Followed by a “list” starting with the United Nations, continuing with the International Court of Justice, politicians, law experts and ending perhaps with members of the Israeli political opposition.  Of course, that’s not “everybody”.  There are, for instance, very distinguished experts in international law who opine that the settlements are perfectly legal.  They include, among others:

  • Sir Elihu Lauterpacht CBE QC LLD, British International Law expert, Founder and Director of the Research Centre for International Law at Cambridge University.
  • Julius Stone, Professor of Jurisprudence and International Law, University of Sydney, University of New South Wales, Distinguished Professor of Jurisprudence and International Law, University of California. Author of 27 books on jurisprudence and international law.
  • Stephen M. Schwebel, Professor of International Law and Organization, Johns Hopkins University in Washington, D.C. Served as Judge at the International Court of Justice, on the Permanent Court of Arbitration, ICSID, etc.
  • Eugene V. Rostow, Dean of Yale Law School, Professor Emeritus of Law and Public Affairs.
  • Thomas Buergenthal, Professor of Comparative Law and Jurisprudence, Dean of Washington College of Law. Served as Judge at the International Court of Justice. Author of more than a dozen books and a large number of articles on international law, human rights and comparative law subjects. Recipient of the 2008 Gruber Prize for Justice for his contributions to the promotion and protection of human rights in different parts of the world.
  • Alan Dershowitz, Professor of Law, Harvard Law School (at age 28, the youngest Professor in the history of Harvard). Senior advocate, specialising in civil liberties and human rights.
However, if “everybody” HAD said that settlements were illegal, that still wouldn’t make it so.  The “everybody says so” assertion is nothing but the logical fallacy known as “argumentum ad populum” or “the bandwagon argument”.  The earth is not flat and pandemics are caused by neither witches nor Jews; yet at some point “everybody” believed those claims to be irrefutable truth.
United Nations” and its many anti-Israel resolutions figure prominently in “settlements-are-illegal” propaganda.  In such arguments, the organisation is portrayed as some sort of ultimate authority, a veritable Ministry of Truth.  But the UN is not some sort of abstract authority; it is a political organisation consisting of member states, each represented by its respective government – the majority of which are undemocratic and unrepresentative.  Moreover, it cannot seriously be claimed that these governments, in their activity at the UN, pursue some sort of ideal of truth and justice; rather, like all governments, they act in accordance with what they perceive as their national interest (at best) – or the interest of the ruling regime (at worst).  The UN itself can hardly boast a democratic structure: member state representatives are not elected, but appointed by their respective governments – themselves often not the result of democratic elections; each government (whether that of democratic Sweden’s or that of North Korea) gets one vote in the General Assembly – which given the current situation means that any General Assembly Resolution can pass if it is backed by enough totalitarian regimes.  A discussion of UN Ganeral Assembly’s composition would not be complete without mentioning the fact that circa 30% of UN member states are members of the Organisation of Islamic Cooperation; these states vote against Israel on every single issue.  As for the other 70% of UN membership, most are of course rather more interested in good relationships with the oil rich and populous Arab and Muslim countries than they are in supporting Israel or taking potentially costly moral stances.  Which led the great Israeli diplomat Abba Eban to quip: “If Algeria would propose a resolution stating that the earth is flat and condemning Israel for flattening it, the UN General Assembly would adopt it by 130 votes in favour, 10 against and 30 abstentions…”
But the real power does not reside in the General Assembly – its improperly named “resolutions” are in fact mere recommendations.  The only resolutions endowed with legal relevance are those adopted by the Security Council.  The latter includes five “permanent members” which have the right of “veto” – i.e. in practise can decide which resolutions are adopted and which are not.  The right of veto does not simply ensure that they can stop in its tracks any resolutions they don’t agree with; because nothing can pass unless they allow it, the five “permanent members” possess an invaluable asset, allowing them to wheel and deal in power and influence.  The ranks of the “permanent members” include such paragons of democracy and human rights as Russia and China.  As for the other 10 “non-permanent” members, they are elected by the General Assembly from their respective geographic regions.  The UN election rules specify that at least one of the “non-permanent” members has to be an Arab state.  There is no requirement in terms of democratic credentials or human rights record.  Hence, the representatives of Libyan dictator Muammar Gaddafi was elected twice to serve on the UN top decision-making body; the representatives of the Syrian “Assad dynasty” regime served three times; Iraq served twice; Egypt served four times; Morocco three times, Jordan twice, Lebanon twice, Yemen once, etc.  The Saudi gender-apartheid regime has recently been elected to “represent” mankind as a member of that “distinguished” Council.  Israel, needless to say, was never elected to sit on the Security Council.
Not every Security Council Resolution is legally binding.  While all may carry weight in terms of international relationships, only those issued under Chapter VII of the UN Charter (which refers to “Threats to the Peace, Breaches of the Peace, and Acts of Aggression”) are binding and can be enforced by coercion.  In the entire history of the United Nations, only 15 such resolutions have been issued; none of them dealt with the Arab-Israeli conflict.
Even Chapter VII Resolutions are, however, not laws – they can at most be described as decrees.  While the Security Council is endowed with power of decision and implementation, its undemocratic and unrepresentative composition denies it moral authority.  The Security Council is not a legislative assembly, nor is it a court of law.  It can neither legislate nor interpret law.

In addition to the General Assembly and the Security Council, a large number of committees, commissions and working groups and other organisations operate under the UN umbrella.  One such organisation is the UN Human Rights Commission.  This commission – whose mandate was “to examine, monitor and publicly report on human rights situations in specific countries or territories, as well as on major phenomena of human rights violations worldwide” – included among its members the representatives of serial human rights abusers, such as the ruling regimes of Cuba, Libya, Saudi Arabia, Sudan, and Zimbabwe; a moral nadir was reached in 2003, when the representative of Libya’s dictator Muammar Gaddafi was elected Chair of the UN Human Rights Commission.

Promoters of the “everybody says argument” hold, however, a trump card; or so they believe.  When all their other arguments fail, they’ll always mention the decision of the “International Court of Justice”; usually, without mentioning that it was an advisory opinion – by no means a verdict.  The even bigger problem with the “International Court argument” is that, as I’ve already mentioned in another blog, ICJ is indeed international, but it isn’t a Court, nor does it have anything to do with Justice.  ICJ is just another UN commission; its members (it is highly improper to call them “judges”) may or may not have studied law before making a career as politicians or professional diplomats; who were nominated by a “UN member state” (read “regime”) and elected by the UN General Assembly as a result of horse trading between “member states”.  Which in practice means that each “judge” faithfully votes in accordance with the interests of his/her country/regime, with zero regard for “Justice”.
In desperation, promoters of the “everybody says” argument may even quote statements by various European politicians, blasting the settlements’ “illegality”.  But of course, the same promoters very often disagree with said politicians on pretty much every other issue; which renders the “argument” rather intellectually dishonest.

Kosher but stinks?

In summary, the “illegality” arguments are shaky indeed.  Like any mantra, the incessant repetition of “illegal” is meant to prevent free thinking; it’s nothing but a dishonest attempt to throw sand in our eyes.

But whether legal or illegal, are settlements a smart thing to do?  After all, just because something is kosher, it does not follow that a Jew should eat it!  Why are settlements needed?  Why does Israel insist on expanding settlements, when they seem to generate so much acrimony in her international relationships?

On that and other questions in future articles in the “Settlements” series.

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