Misconceptions about Israel, the territories, and international law

CiF Watch
08 January '11

This is cross posted by Matthew Ackerman, a Middle East Analyst at The David Project, and represents an excellent primer on the characterization of Israeli control over disputed territories in Judea and Samaria as violations international law.

So some might grant that it is unclear whether or not Israeli control of the territories is “illegal.” That same person would probably still hold, though, that clearly the settlements are illegal. And this argument bases itself on the Geneva Accords, kind of like citing the Constitution, so it should be granted that it is a stronger argument.

But again if we look at the actual language we see that the case is not certain. Just as is the case with Israel’s control of the territory of the West Bank, so too if we look at the documents cited to prove that Jewish settlement in the territories is illegal, it is clear that this is far from a definitive conclusion.

The clause most cited to say that Israeli settlements are illegal is an article in the 4th Geneva Convention, signed just after World War II, that says: “The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies.”

On its face, it seems clear how this can be read to prohibit Israeli settlement of its civilians in the territories.

On the one hand, though, it doesn’t however say anything about military installations. That means that even if it says that civilian settlement in the territories is illegal, this clause does not say that it’s illegal for the IDF to set up military buildings, housing all the necessary people there to keep those installations running.

More importantly, a fair reading of the context in which this particular provision was crafted seems to make clear to me that it refers only to involuntary transfers. In other words, to a government moving people into the conquered territory against their will. It was related to specific actions taken by the Nazis – their forcible transfer of ethnic Germans in lands they conquered elsewhere, and their forcible transfer of Jews in Germany to camps – that bear no resemblance to the Israeli settlement enterprise.

So, as was the case with Resolution 242, a deeper consideration of both the language in question and the context in which it was crafted and implemented transform a surface conclusion into at least a debatable manner. Which of course means that, at a minimum, the question of whether or not Israeli control of or settlement in the territories is “illegal” is unsettled. Which means that fair-minded observers should reject the casual depiction of these realities as illegal.

The other very large problem about this notion is that it in the first place assumes that Jews – and only Jews, not say Israeli citizens, which of course includes many non-Jews – have no right to live on the far side of the 1949 lines. This is a very large problem because these include areas, like the entire old cities of Jerusalem and Hebron, that were populated by Jews for thousands of years before those Jews were killed or forcibly removed and the areas they lived in, including their holy sites, destroyed and vandalized, in the first case in 1948, in the second in 1929. To say that the Jewish state must now acquiesce to the permanent removal of Jews from those areas (irrespective of the question of whether or not Israel need exercise sovereign control) doesn’t seem to me to be a strong grounding for a just international legal system, to say the least.

(Read full "Misconceptions about Israel, the territories, and international law")

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