The Israeli Settlements: Whose Land Is It Anyway?

According to the Washington Post, it all seems very cut and dried:

Thirty years ago, the State Department legal adviser issued an opinion in response to an inquiry from Congress: The establishment of Israeli settlements in occupied Palestinian territories "is inconsistent with international law."

The opinion cited Article 49 of the Fourth Geneva Convention, which states that an occupying power "shall not deport or transfer parts of its own civilian population into the territory it occupies." Israel has insisted that the Geneva Convention does not apply to settlers and broadly contests assertions of the settlements' illegality.

Despite the passage of time, the legal opinion, issued during the Carter administration, has never been revoked or revised...

..."As far as I know, I don't think it has ever been rescinded or challenged by any legal officer of the United States government," said Herbert J. Hansel, the former legal adviser who wrote the opinion. "Ronald Reagan expressed his opinion. But whatever you think of him, he was obviously not a lawyer. It still stands as the only definitive opinion of the U.S. government from a legal standpoint."

Unfortunately, the article is incomplete insofar as it fails to provide the other side of the argument. While the article mentions in passing that Israel does not believe the Geneva Convention is applicable to the issue of the settlements, at no point does the article address the basic question: "why not?"

The complete text of Hansell's opinion is available online [PDF; see paragraph 84]. Among the sources he refers to is Julius Stone--the author of 27 books on jurisprudence and international law who was Challis Professor of Jurisprudence and International Law at the University of Sydney from 1942 to 1972. Hansell quotes from Stone's book, Israel and Palestine: An Assault on the Law of Nations, in the context of the limitations placed upon the occupying power, particularly that

the Occupant’s acts will not have legal effect, although they may in fact be unchallengeable until the territory is liberated. He is not entitled to treat the country as his own territory or its inhabitants as his own subjects...

However, in that very same book Stone himself writes that the attempt to claim Israel's settlements illegal is a "subversion. . . of basic international law principles."

Stone addressed this issue in another book, International Law and The Arab-Israel Conflict. An extract of the book is available online [PDF].

Stone describes there Israel's rights vis-a-vis the West Bank:

International law, therefore, gives a triple underpinning to Israel's claim that she is under no obligation to hand back automatically the West Bank and Gaza to Jordan or anyone else. In the first place, these lands never legally belonged to Jordan [because its grabbing the land in 1948 was never recognized]. Second, even if they had, Israel's own present control is lawful [because Israel fought a defensive war], and she is entitled to negotiate the extent and the terms of her withdrawal. Third, international law would not in such circumstances require the automatic handing back of territory even to an aggressor who was the former sovereign. It requires the extent and conditions of the handing back to be negotiated between the parties.

The crux of Hansell's argument is

Article 49 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 UST 3516, provides, in paragraph 6:

’The Occupying Power shall not deport or transfer parts of its own
civilian population into the territory it occupies’.

Paragraph 6 appears to apply by its terms to any transfer by an occupying power of parts of its civilian population, whatever the objective and whether involuntary or voluntary.

Hansell also addresses the fact that Egypt's and Jordan's occupation of Gaza and the West Bank had no legal standing:

It has been suggested that the principles of belligerent occupation, including Article 49, paragraph 6, of the Fourth Geneva Convention, may not apply in the West Bank and Gaza because Jordan and Egypt were not the respective legitimate sovereigns of these territories. However, those principles appear applicable whether or not Jordan and Egypt possessed legitimate sovereign rights in respect of those territories. Protecting the reversionary interest of an ousted sovereign is not their sole or essential purpose; the paramount purposes are protecting the civilian population of an occupied territory and reserving permanent territorial changes, if
any, until settlement of the conflict.

Stone does in fact differ with Hansell on the relevance of Jordan's illegal control of the West Bank and put forward the argument that the language of Article 2 specifically states that the Convention applies--

“to cases of … occupation of the territory of a High Contracting Party, by another such Party”.

The implication is that the Convention would not apply where the "High Contracting Party" has no actual claim to the territory.

While Hansell dismisses the argument, claiming the intent is focus on the civilian population, Stone also examines the context of the Geneva Convention:

It is clear that in the drafting history, Article 49 as a whole was directed against the heinous practice of the Nazi regime during the Nazi occupation of Europe in World War II, of forcibly transporting populations of which it wished to rid itself, into or out of occupied territories for the purpose of liquidating them with minimum disturbance of its metropolitan territory, or to provide slave labour or for other inhumane purposes.

[whereas]...Israel's position in Judea and Samaria (the West Bank) is merely that of an occupying power...

Hansell does note this argument and claims there is no reason to limit the Convention to mass population transfers.

However, there is an issue that Hansell does not address--he sidesteps the issue of who has title to the conquered territory. Is Hansell seriously suggesting that the land should automatically be returned to the country that took it illegally? Every limitation that he cites as applying to Israel as an occupying power should apply equally to Jordan--and more.

Stone quotes What Weight to Conquest? by Professor Stephen Schwebel--an American jurist and expert on international law who served at various positions in the U.S. Department of State, Legal Adviser Office and was a member of the UN International Law Commission. He was elected to the International Court of Justice in and was re-elected twice, and served as the President of the Court. Schwebel writes that the UN Charter--

makes necessary a vital distinction “between aggressive conquest and defensive conquest, between the taking of territory legally held and the taking of territory illegally held”:

“Those distinctions may be summarized as follows:

a) A state acting in lawful exercise of its right of self-defence may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defence.

b) As a condition of its withdrawal from such territory, that state may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use force against it of such a nature as to justify exercise of self-defence.

c) Where the prior holder of the 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.”

Again, Hansell never addresses this key issue of who has the better title to the territory--and today, as per the Peace Treaty of 1994, Jordan has already relinquished any claim of sovereignty over the West Bank--which is why Israel has also argued that the change in the situation necessitates a reevaluation.

The point is not that these are all of the arguments that can be marshaled on either side.

The point is that the issues are complex--and they are not being fully addressed.

Crossposted on Soccer Dad

Technorati Tag: Israel and Settlements and Herbert Hansell and Julius Stone.