Are West Bank Settlements Illegal? According to Rightwing Zionist Lawyers, No; According to Every Other Legal Expert In the World, Yes

In his dissenting opinion to the 2004 decision of the International Criminal Court against Israel's "Separation Wall" Judge Thomas Buergenthal wrote:

Paragraph 6 of Article 49 of the Fourth Geneva Convention also does not admit for exceptions on grounds of military or security exigencies. It provides that "the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies". I agree that this provision applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6. It follows that the segments of the wall being built by Israel to protect the settlements are ipso facto in violation of international humanitarian law. Moreover, given the demonstrable great hardship to which the affected Palestinian population is being subjected in and around the enclaves created by those segments of the wall, I seriously doubt that the wall would here satisfy the proportionality requirement to qualify as a legitimate measure of self-defence. (The opinion can be read on Mitchell Bard's website, the Jewish Virtual Library, here.)

Buergenthal, a Holocaust survivor, a distinguished human rights judge, and a hero in Israel for his dissenting opinion in this case, did not even bother to argue that Israeli settlements are illegal. By 2004, no serious legal expert thought otherwise.

Perhaps it is fitting that one year after the Gaza fiasco, the Israeli Hasbara crowd – those on the right wing of it, anyway – are resurrecting some very old chestnuts, like: the West Bank is not Occupied Territory, or that if it is, the Fourth Geneva Convention does not apply to it, or that if it does, Israel is not violating it through settlements, blah, blah, blah.

These are pre-Intifada positions that date from the seventies and the eighties, and even then were advanced only by Israeli apologists, albeit some people who had distinguished themselves in other spheres, like Eugene Rostow and Julius Stone. In Israel, some of them may still be the official position, but no thinking person takes them seriously, certainly not in public discourse. The Israeli High Court, heck, even Ariel Sharon and Ehud Olmert, considered the Palestinian population of the West Bank be under occupation. George W. Bush called upon Israel to end the occupation. Until Vladimir Avigdor Lieberman took over the Foreign Ministry, that particular chestnut weren't even roasting on an open fire.

No further evidence of the death of these positions is needed than the venue of their "resurrection" (the Wall Street Journal and Commentary) and the right-wingers who are making them (deputy foreign minister of Israel, Danny Ayalon, and Northeastern law professor, David M. Philllips) Danny Ayalon, a member of the ultra-rightwing party Yisrael Beiteinu, claims that the territories are not occupied but rather disputed, using arguments that I have not heard in thirty years – in fact, since Gene Rostow and Julius Stone made them. In fact, I have no idea what is the Hebrew phrase for the "disputed territories" – whoever refers to "territories" (as opposed to Judea and Samaria) uses the adjective kevushim "conquered". And since Israel controls these territories as a result of military conquest and against the will of the inhabitants, they sure are conquered.

Matt Duss does a good job of disemboweling Ayalon here. My favorite part is in his reference (thanks to Gershom Gorenberg's "The Accidental Empire") to the memo prepared by the legal counsel of the Israeli Foreign Ministry, Theodor Meron in 1967

As recounted by Israeli journalist and historian Gershom Gorenberg — whose history of the settlements is well worth reading — "the legal counsel of the Foreign Ministry, Theodor Meron, was asked whether international law allowed settlement in the newly conquered land."

In a memo marked "Top Secret," Mr. Meron wrote unequivocally, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention."

In the detailed opinion that accompanied that note, Mr. Meron explained that the Convention — to which Israel was a signatory — forbade an occupying power from moving part of its population to occupied territory. [...]

Mr. Meron took note of Israel's diplomatic argument that the West Bank was not "normal" occupied territory, because the land's status was uncertain. The prewar border with Jordan had been a mere armistice line, and Jordan had annexed the West Bank unilaterally.

But he rejected that argument for two reasons. The first was diplomatic: the international community would not accept it and would regard settlement as showing "intent to annex the West Bank to Israel." The second was legal, he wrote: "In truth, certain Israeli actions are inconsistent with the claim that the West Bank is not occupied territory." For instance, he noted, a military decree issued on the third day of the war in June said that military courts must apply the Geneva Conventions in the West Bank.

Unfortunately, the Israeli government ignored Meron's legal advice, and developed a series of shifting legal rationales to justify the annexation and colonization of the occupied land, which has helped to create the exceedingly difficult and volatile situation we have today

As for David M. Phillips's piece, it is essentially preaching old (and one or two bizarre new) arguments to the choir, but in the sort of disingenuous manner expected from the ideological biased. For example, consider this seemingly innocuous paragraph:

To [Eugene] Rostow, "Jews have a right to settle in it under the Mandate," a right he declared to be "unchallengeable as a matter of law." In accord with these views, Israel has historically characterized the West Bank as "disputed territory" (although some senior government officials have more recently begun to use the term "occupied territory").

One would hardly know from this description that a) Eugene Rostow, a life-long Zionist and defender of Israel, himself referred to the territories as "under occupation" or b) that "some senior government officials" included the two former prime ministers of Israel, Ariel Sharon and Ehud Olmert. True, they did not institute an official change of policy, but nobody to the left of Dore Gold's rightwing think tank, the Jerusalem Center of Public Affairs, bothers with arguing that the territories are not occupied.

Phillips writes like somebody who only recently converted to the hasbara squad and, with the zeal of the convert, revives the dead horse. And poor Julius Stone, introduced disingenuously by Phillips merely as "an international law scholar"! Stone was another example of a brilliant and influential Jewish legal thinker who used his considerable acumen (and passion) in defense of the tribe. (See Andrew Dahl's overly generous deconstruction of Stone's biases here.) At least Stone came up with those positions decades ago, when the Stock Zionist Narrative was dominant, before the work of the New Historians and the outbreak of two Intifadas. At that time, somebody could get away with the quaint view that the West Bank was captured in a defensive war, that the Palestinians did not have a right as a people to self-determination, that three "No's of Khartoum" derailed Israel's genuine desire for peace (on this see Avi Shlaim's The Iron Wall), and most of all, that the Occupation was intended as a temporary measure until a credible partner would emerge.

Phillips argues (against everybody else in the world, except Stone, from whom he takes the argument), that the Fourth Geneva Convention forbids only forcible transfers of one's population to occupied territory (surprise, the West Bank is now suddenly occupied!) So the settler's "voluntary movement" is not prohibited. And this Phillips infers not only from the formal language but from the intent of the pertinent clause, which was to ensure that citizens would not be forcibly deported from their land, as the Jews were during the Holocaust. Phillips citation of Stone is revealing:

We would have to say that the effect of Article 49(6) is to impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus 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 exclude so tyrannical a reading of Article 49(6).

After reading this passage, a reasonable person would simply dismiss anything Stone has to say in defense of Israel's (then) legal position as blinded by his, quite admirable, Jewish loyalties. But more importantly, most intelligent Israelis also dismiss it. The issue is not merely Jewish settlement; it is Jewish settlement that serves as the basis for future claims of sovereignty, that thwarts the possibility of the self-determination of the Palestinians, takes away their resources, and confines them to Bantustans. For God's sake – who but the settlers use the language of Judenrein anymore? And if one wants to talk about historical associations, what about the historical associations of the Palestinian refugees with Palestine, where whole sections are now Araberrein?

Phillips writes:

The settlements are also a far cry from policies implemented by the Soviet Union in the late 1940s and early 1950s to alter the ethnic makeup of the Baltic states by initially deporting hundreds of thousands of people and encouraging Russian immigration.

Nor can they be compared to the efforts by China to alter the ethnic makeup of Tibet by forcibly scattering its native population and moving Chinese into Tibetan territory. Israel's settlement policies are also not comparable to the campaign by Morocco to alter the ethnic makeup of the Western Sahara by transferring Moroccan Arabs to displace the native Saharans, who now huddle in refugee camps in Algeria, or to the variety of population displacements that occurred in the various parts of the former Yugoslavia.

Note that he does not say why these comparisons are invalid – on the contrary, they are quite valid, certainly in the eyes of the settlers, who view the goal of the settlements inter alia to thwart Palestinian self-determination and openly say that Arabs should be expelled from Eretz Yisrael. In fact, the settlers view themselves as the vanguard of a large movement of Israelis that would simply make a Palestinian state impossible. And while successive Israeli governments have not been as ideologically motivated as the hard-core settlers, or have shown more or less ambivalence, they have never put the settlers on the leash – on the contrary, they have encouraged them to settle in areas which Israel coveted. And they have used the resources of the Occupied Territories as cheap land for the expansion of their population. Still, the comparisons are not entirely valid; China, for example, made the Tibetans citizens of China, whereas the Israelis simply want to control the natural resources of the Palestinians, and herd them into enclaves. (A more valid comparison with China would be the actions of the Zionists in 1948).

And here is another example of Phillips's disingenuousness:

After the Elon Moreh case, all Israeli settlements legally authorized by the Israeli Military Administration (a category that, by definition, excludes "illegal outposts" constructed without prior authorization or subsequent acceptance) have been constructed either on lands that Israel characterizes as state-owned or "public" or, in a small minority of cases, on land purchased by Jews from Arabs after 1967.

I cannot believe that a Northeastern University Law Professor is unaware of the Peace Now report in 2006, and its amended report in 2007, which shows that the majority of the West Bank settlements, including the outposts considered by Israel to be illegal, are built on what the Civil Administration itself considers to be Palestinian private lands. Or what about the Ofra settlement, which then Vice Prime Minister Haim Ramon, said was built almost entirely on private land? Not a week goes by without a Haaretz article that belies the official state position. Where has Phillips been for the last twenty years?

As for Phillip's own arguments: well, consider this one:

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 bloc 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.

In fact, if Article 49(6) allowed an occupier to reestablish by force ethnic communities that no longer existed, then that would give license to all sorts of irredentist schemes. For example, since Israel's occupation of the areas outside the 1947 Partition Plan is still not formally recognized (except, perhaps, by the PLO), this would license Palestinian irredentists who wish to reconstruct the 500 villages that Israel destroyed during and after the 1948 war. (Phillips seems to be unaware that Israel has tripled the territory of the Ezion bloc under the rubric of "rebuilding a destroyed community")

But my favorite argument – the real doozy – the one that illustrates the depth of Phillips' grasp of the situation here -- is the thought experiment that he suggests:

Suppose a group of Palestinian Arabs who are citizens of Israel requested permission to establish a community on the West Bank. Further, assume that Israel facilitated the community's establishment, without the loss of their citizenship, on land purchased from other Palestinian Arabs (not citizens of Israel) or on state land. Would establishment of this settlement violate Article 49(6)? If not, how can one distinguish the hypothetical Arab settlements from Jewish settlements?

Let's grant him, contra sixty years of experience, that the state facilitates the establishment of any new community of "Palestinian Arabs who are citizens of Israel" (what a pleasure to see that phrase used in Commentary!) Would it do so on land that it will claim during negotiations? Or land that it would trade for other land? Then clearly that would be a violation of Article 49(6), no matter who Israel placed there.

Reading articles like that of Phillips reminds me of the story that Gershom Gorenberg told me once. When attacked by a group of well-meaning, but clueless, American Zionists, he said to them, "You are the best reason I can think of for aliyah – at least in Israel I don't have to listen to such narrishkeit."

Serves me right for reading it.