No, Harriet, Jews living across the green line are not in violation of international law

The Guardian refrain that Jewish communities across the green line (including in “East” Jerusalem) represent a clear violation of international law is repeated so many times that even those who don’t possess antipathy towards Israel could be forgiven for uncritically accepting this as fact.

Indeed, Sherwood’s latest piece, “Israel and Palestinian negotiators meet for first time in a year“, Jan. 2, contains this characteristic throw away line about the “settlements”:

The Palestinians argue that there can be no meaningful talks while Israel continues expanding its settlements in the West Bank, which are illegal under international law.

Of course, Sherwood, as with the countless other Guardian reports alleging the “illegality” of such settlements, doesn’t bother citing a source for such an international adjudication, as no such determination has ever been reached or definitively codified.

What Palestinians, and their advocates at the Guardian, are likely referring to is the 1949 Fourth Geneva Convention, the first international agreement designed specifically to protect civilians during wartime.

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.”

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 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?

According to the International Committee of the Red Cross, Article 49 relates to situations where populations are coerced into being transferred. There is nothing to link such circumstances to Israel’s settlement policy.

Historically, over 40 million people were subjected to forced migration, evacuation, displacement, and expulsion, including 15 million Germans, 5 million Soviet citizens, and millions of Poles, Ukrainians and Hungarians.  The vast numbers of people affected and the aims behind such population transfers have no relation to Israeli policy.

International lawyer Prof. Eugene V. Rostow, a former dean of Yale Law School and U.S. Undersecretary of State, stated in 1990:

[T]he Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War – the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example….The Jewish settlers in the West Bank are most emphatically volunteers. They have not been “deported” or “transferred” to the area by the Government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva Convention to prevent.

Ambassador Morris Abram, a member of the U.S. staff at the Nuremberg Tribunal who was later involved in the drafting of the Fourth Geneva Convention, is on record as stating that the convention:

…was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people.

Similarly, international lawyer Prof. Julius Stone, in referring to the absurdity of considering Israeli settlements as a violation of Article 49(6), stated:

Irony would…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 excludes so tyrannical a reading of Article 49(6.)

Jews have lived in Judea and Samaria—the West Bank—since ancient times. The only time Jews have been prohibited from living in the territories in recent decades was during Jordan’s rule from 1948 to 1967.

So, characterizing any Jewish presence across the green line as illegal would seem to ipso facto endorse Jordan’s illegal ethnic cleansing of Jewish communities from these lands following the armistice agreement of 1949. 

As David M. Phillips noted:

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 block 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.

While reasonable people can of course disagree with Israeli settlement policy – in the context of efforts to one day reach a final status agreement with the Palestinians – lazily asserting that such settlements are “illegal” has, at best, a questionable basis in international law, and certainly no basis in morality.

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