In his November 21 article on “Humanitarian law vs. political choices,” Juan
Pedro Schaerer, head of the local delegation of the International Committee of
the Red Cross (ICRC), repeats the longstanding point of view that Judea and
Samaria, what some refer to as the “West Bank,” is “occupied
In fact, Mr. Schaerer is so certain of this opinion, he
invites a public debate on the issue.
However, before stating a contrary
point of view, it would be pertinent to begin by debunking Schaerer’s own
statements. In the article Schaerer starts, as many opinions do, by quoting
Article 42 of the Hague Regulations of 1907, writing: “The facts on the ground
were such that they fell squarely into the definition of occupied territory,
which is codified in Article 42.”
Yet to preempt an argument frequently
used by Israeli authorities, Schaerer states that “international humanitarian
law does not require that the territory occupied by a foreign army must belong
to a sovereign state.”
This is an astounding interpretation of Article 42
of the Hague Regulations, primarily because it actually falls under a category
titled, “Military Authority Over the Territory of the Hostile State.”
final word in the title of the category specifically explains the type of
territory in question.
In international law, as in any type of law, one
should render an interpretation only if the wording is somehow unclear or vague.
The fact that the article falls under a category which completely contradicts
the root of Schaerer’s argument appears to be lost on the author.
the confusion rests in the fact that the ICRC, which was pretty quick to brand
Israel’s acquisition of the territory in 1967 as an “occupation,” made no such
appellation during the 19 years of illegal Jordanian rule.
In fact, one
would be hard-pressed to find the ICRC assert that a territory is “occupied” by
a particular nation in the dozens of other territorial disputes that have yet to
find a resolution.
Schaerer’s next argument about Israeli communities
over the 1949 armistice lines is well-traveled and repeated ad nauseum, even
though its popularity does not make it any less redundant.
transfers for the purpose of establishing settlements are forbidden under
international humanitarian law, regardless of whether people are being directly
transferred or indirectly transferred through incentives, encouragements or
other measures facilitating their settlement in the occupied territory,”
Schaerer writes. “This is explicitly addressed in the Fourth Geneva Convention,
for good reason.”
In fact, according to Article 49 of the Fourth Geneva
Convention, taken from the ICRC’s own website, “The Occupying Power shall not
deport or transfer parts of its own civilian population into the territory it
occupies.” The terms “deport” and “transfer” are active, meaning that civilians
are not acting on their own behest.
I am not sure where Schaerer conjures
the idea that his interpretation of voluntary relocation, even if aided by
government assistance, is explicitly addressed in this article of the
Nonetheless, to really understand what the article was meant,
to achieve the incentive to write these provisions should be
In a 2009 speech, Philip Spoerri, ICRC director of
international law and cooperation, said: “The decision to draft the Geneva
Conventions of 1949 was sealed by the tragedy of World War II, and that the
conventions were intended to fill the gaps in international humanitarian law
exposed by the conflict.”
Specifically, the article relevant to this
discussion was drawn up in the wake of the Nazi policy of forcibly transferring
parts of its own population into territories it occupied before and during the
war. The most infamous of these forcible transfers or deportations was the
masses of Jews who were sent to occupied territories to be murdered en masse in
Poland and elsewhere.
To suggest that an incentive by the Israeli
government to live in the ancient cradle of Jewish civilization is somehow akin
to the genocidal Nazis sending Jews to forced labor and death is as ludicrous as
it is deeply insensitive.
While I am not certain that Schaerer intended
to make this comparison, a cursory reading of the preparatory discussions for
the drafting of the Fourth Geneva Convention clearly demonstrates the intentions
of its drafters, as during the draft deliberations the terms “forced transfers”
and even “deportations” were used – providing greater clarity to the wholly
inappropriate rendering of his interpretation.
This provision of the
Geneva Convention regarding forced population transfer cannot possibly be viewed
as prohibiting the voluntary return of individuals to the cities, towns and
villages from which they, or their ancestors, had been ousted.
throughout the years, there have been many opinions clearly opposed to the idea
that Israel “occupies” Judea and Samaria, and that Israeli settlements are
illegal according to international law.
Julius Stone, professor of
jurisprudence and international Law, wrote in 1980: “Because of the ex iniuria
principle [unjust acts cannot create law], Jordan never had nor now has any
legal title in the West Bank, nor does any other state even claim such title.
Article 49 thus seems simply not applicable. Even if it were, it may be added
that the facts of recent voluntary settlements seem not to be caught by the
intent of Article 49, which is rather directed at the forced transfer of the
belligerent’s inhabitants to the occupied territory, or the displacement of the
local inhabitants for other than security reasons.”
State Department legal adviser Stephen Schwebel, who later headed the
International Court of Justice in The Hague, wrote in 1970 regarding Israel’s
case: “Where the prior holder of territory had seized that territory unlawfully,
the state which subsequently takes that territory in the lawful exercise of
self-defense has, against that prior holder, better title.”
Prof. Eugene Rostow, former US undersecretary of state for political affairs,
wrote in 1991: “The Jewish right of settlement in the area is equivalent in
every way to the right of the local population to live there.”
three opinions, among others, demonstrate that Schaerer’s two main arguments
rest on very shaky ground.
Firstly, it is clear that Judea and Samaria
did not belong to any state before this, a fact necessary for the application of
Article 42 of the Hague Regulations, which fall under the title “Military
Authority Over the Territory of the Hostile State.”
Secondly, it is
abundantly clear that for an act to fall under the last provision of Article 49
of the Fourth Geneva Convention, an active transfer or deportation of its own
citizens has to be undertaken by the state occupying the area, which has clearly
never happened in the history of Israel’s control of the territories in
question. Exposing the inaccuracies contained in Schaerer’s opinions is no mere
The ICRC is considered the authority on the Geneva
Convention and other parts of international law, and the majority of the
international community relies on its interpretation – frequently without
rendering its own thorough investigation. Thus, what the ICRC, or its
representatives, claim has significance.
However, when its claims on the
conflict are based on false interpretations, and partial or wholly inaccurate
declarations, it does damage – not just to Israel, but also to the cause of
peace and reconciliation in our region.
I am in full agreement with Juan
Pedro Schaerer: It is time to “debate matters of significant humanitarian
importance.” But it is also time to return to the intentions and words of the
original drafters of international law, and rely less on specious
interpretations with little basis.
The writer is agriculture minister and
a member of Yisrael Beytenu.
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