In recent months, there has been a renewed prevalence of arguments claiming that settlement activities by the State of Israel are compatible with international law. Proponents of such arguments often allege that the assertion by foreign officials of the illegality of the Israeli settlements is questionable and accompanied by little or no explanation.
Is Israel an occupying power?
It might be useful to recall the basis of the incompatibility of settlement activities with international legal norms.
The rejection of the very existence of an occupation is based, among others, on the assertion that Israel cannot be an occupying power within the West Bank, including east Jerusalem, because when Israel established its presence, the aforementioned territory was not subject to the sovereignty of any country. The proponents of this line base themselves on a particular reading of Article 2 common to the four Geneva Conventions of 1949, insinuating that the second paragraph of that article defines whether an occupation exists or not, and further contending that for such an occupation to exist, Article 2 requires as a condition that the territory occupied belongs to a State Party to the Geneva Conventions.
Since the West Bank, including east Jerusalem, did not belong to Jordan in June 1967, the argument goes, and since there was no Palestinian party to the Geneva Conventions, there could not be an occupation.
The assertion that there is no occupation in the West Bank is rejected almost unanimously, including by most Israeli legal authorities. With reference to Israeli scholarship in the field of international humanitarian law, reference can be made to the work of leading international law experts such as Yoram Dinstein. Dinstein has described the official Israeli interpretation of Article 2 as “patently sterile” and “disjunctive.”
In addition to his work, professors Eyal Benvenisti, Yuval Shany and David Kretzmer, all leading Israeli international law scholars, unambiguously affirm the existence of an occupation at law in the West Bank, including east Jerusalem.
In addition to these scholars, it would be remiss not to recall that in September of 1967, the legal adviser to the Israeli Foreign Ministry, Theodore Meron, himself a leading international law scholar and currently serving as the president of the International Criminal Tribunal for the Former Yugoslavia, opined in an internal memo that Israeli settlement building violates occupation law and in particular the relevant provisions of the Fourth Geneva Convention of 1949. While this view ultimately did not win the day in terms of official Israeli policy, the presence of such an opinion within the official internal Israeli discourse – so close to the end of the war in 1967 – is significant.
Indeed, in this regard, it is worthwhile recalling that there is significant jurisprudence of the Israeli Supreme Court in the field of occupation law. While the Israeli Supreme Court has not directly affirmed the applicability of the Fourth Geneva Convention or expressed its legal reading on settlement activities as such, it has in no uncertain terms, in a well-established line of case-law spanning decades, unambiguously accepted that the West Bank is occupied territory and that Israel is the occupying power there.
The reason, we would submit, why the above-mentioned assertion denying an occupation is so roundly rejected is because it tries to underpin a political objective with a legal argument that cannot be sustained.
It fails to interact with the first of all occupation law norms, namely, the correct definition of an occupation. Pursuant to the law of occupation, a power becomes an occupying power in accordance with a purely factual criterion, namely, that the relevant territory has actually been placed under its authority (occupation is defined by Article 42 of the Hague Regulations of 1907 and not Article 2 of the four Geneva Conventions of 1949). This definition does not depend on the territory having belonged to the power that was in control in the relevant territory on the eve of the said territory actually being placed under the authority of another power.Are settlement activities legal?
Now, an occupying power is prohibited, as is expressly stipulated in Article 49(6) of the Fourth Geneva Convention, from transferring parts of its own population into the territory it occupies. Again, some reject that this prohibition applies to Israeli settlement activities in the West Bank, asserting that it would only apply to forcible population transfers.
By arguing that the transfers must be forcible, those who propose the argument assume that this prohibition aims to protect the nationals of the occupying power from being transferred into the occupied territory. This explanation does not sit with the fundamental purposes of the law of occupation. In regulating situations of armed conflict, including occupation, international humanitarian law, and in particular the Fourth Geneva Convention, is primarily concerned with the treatment by a party engaged in such a conflict of the nationals of its adversary, and not in fact with the relations between such a belligerent party and its own nationals, as the aforementioned explanation would suggest.
It is the nationals of the adversary, and in this context, the local population of the occupied territory, who primarily require the protection of international humanitarian law when they fall into enemy hands.
This is why the prohibition on settlement activities does not require that the transfers it envisages are “forcible.” It was intentional that the negotiators did not mention the term “forcible” in paragraph 6 of Article 49 of the fourth Geneva Convention. It should also be noted, that the foregoing does not relieve an occupant from a duty to protect the life, integrity and dignity of other people in the occupied territory as part of its obligation to maintain law and order.
Maintaining law and order comprises a duty to protect any person from violence.
Without prejudice to the prohibition of settlement activities by the occupant, this would include nationals of an occupant who are present in the occupied territory.
The prohibition of settlement activities seeks to protect the population in the occupied territory from the changes resulting from nationals of the occupying power populating the territory. These changes can be far-reaching, and can profoundly affect the demographic characteristics of the territory, the fabric of the entire society there and all aspects of life.
There are now hundreds of thousands of Israeli settlers living in areas occupied in 1967. This influx has resulted in large-scale confiscations of land, which has been appropriated for the various purposes of building settlements and populating them, building the roads which serve them, and for securing the areas surrounding them. It would seem evident that this could not but have a profound impact on the lives of Palestinians living in the occupied territory, resulting in denial of access to land, depriving them of their property rights and severely restricting movement, including for very basic human needs, such as accessing services for health and education, work or even just family life.The purpose for prohibiting settlement activities
The states who negotiated the Geneva Conventions in 1949 aimed to prevent these very aforementioned changes from occurring in occupations which might arise one day in the future. Among those states that enshrined the prohibition of settlement activities by an occupying power in the Fourth Geneva Convention was the State of Israel. It may be interesting to recall that these states were in fact codifying a legal norm that already existed under the law governing occupation, dating back to the nineteenth century and already principally codified in the 1907 Hague Regulations.
Settlement activities are incompatible with the very purpose of the International Law of Occupation. The law of occupation aims to ensure that occupation – by definition a temporary situation during which the occupant administers the territory, but does not acquire it – does not unduly affect or modify the characteristics of the said territory, including in as far as demographic composition, traditions and culture are concerned.
As alluded to at the outset, those who claim that there is no occupation and that settlement activities are legitimate seem to do so for reasons that cannot be sustained – or even explained – by means of law. The politically charged environment, in which these questions are often addressed, is already prone enough to distortions and half-truths, which offer little help for the reader seeking to sort out the legal arguments at stake. Worse even, such an environment tends to blur the picture of a reality being imposed on the lives of millions – millions who depend on respect of international humanitarian law, including the law of occupation – just so that they can live as normal a life as is possible. Unfortunately, this objective is often absent from the debate.
The writer is the head of the legal department of the International Committee of the Red Cross, Israel and the Occupied Territories.