Debating the legality of settlements

Debating the legality of settlements

I’ve been engaged in a polite and stimulating email debate with an emeritus professor of sociology and blogger, Werner Cohn, on issues regarding the Israeli-Arab conflict.  One of these is whether Israel’s post-1967 settlements violate international law.  I’m arguing in the affirmative and he in the negative.

He’s referred me to the website of the Jerusalem Center for Public Affairs.  This is part of what it says about the sixth paragraph of Article 49 of the Fourth Geneva Convention (1949), which is the legal basis for arguments that Israel’s settlement policy is illegal:

Immediately after the Second World War, the need arose to draft an international convention to protect civilians in times of armed conflict in light of the massive numbers of civilians forced to leave their homes during the war, and the glaring lack of effective protection for civilians under any of the then valid conventions or treaties. In this context, the sixth paragraph of Article 49 of the Fourth Geneva Convention states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

What is the exact meaning of this language? The authoritative and official commentary by the governing body of the International Red Cross movement, the International Committee of the Red Cross, published in 1958 in order to assist “Governments and armed forces…called upon to assume responsibility in applying the Geneva Conventions,” clarifies this provision as follows: “It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.”

In other words, according to the ICRC commentary, Article 49 relates to deportations, meaning the forcible transfer of an occupying power’s population into an occupied territory. Historically, over 40 million people were subjected to forced migration, evacuation, displacement, and expulsion, including 15 million Germans, 5 million Soviet citizens, and millions of Poles, Ukrainians and Hungarians.

The vast numbers of people affected and the aims and purposes behind such a population movement speak for themselves. There is nothing to link such circumstances to Israel’s settlement policy. The circumstances in which Article 49(6) of the Geneva Convention was drafted, and specifically the meaning attached by the International Committee of the Red Cross itself to that article, raise a serious question as to the relevance of linkage to and reliance on the article by the international community as the basis and criterion for determining Israel’s settlements as illegal. One may further ask if this is not a misreading, misunderstanding, or even distortion of that article and its context.

This is the text of Article 49 in question:

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.

The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.

The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.

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

“Individual or mass forcible transfers” are occurring over time, especially in East Jerusalem, where Arab residents who have been away for some time have been denied reassuming their rights as residents and, even more ominously, in the last year, Arabs residing in Arab neighborhoods of East Jerusalem are being systematically evicted in favor of new Jewish residents and of Israeli institutions.  This provision is further violated by the longstanding policy of the Jerusalem municipality and of the Israeli occupation authorities in the West Bank to routinely deny permits to Palestinians who want to expand their homes or build new housing to accommodate their natural growth needs, and then issue demolition orders–which are carried out haphazardly, without a specified date, often in the middle of the night.

Moreover, several deliberate policy decisions by Israel violate that final-line prohibition:

  1. engineering financial incentives through advantageous mortgage rates to encourage non-ideological Israelis to move to settlements for economic reasons;
  2. housing new immigrants in West Bank communities (people who may be unaware that they have been moved beyond Israel’s internationally-recognized boundaries);
  3. and building new communities for Haredim in the West Bank (e.g., Betar Elite).

This is not a “deportation” but it is the “transfer…of its own civilian population into the territory it occupies.”

Yet since applications of international law ultimately involve political decisions by sovereign states,  it’s not an open and shut case that all settlements can simply be removed because they are illegal under international law.  There’s also the practical matter that it would be politically and even physically difficult (if not impossible) for a small country like Israel to forcibly remove 300,000 to 500,000 settlers in occupied territories.  This is why it’s desirable and even necessary for negotiated land swaps to allow most settlements to remain as part of Israel proper in a final peace treaty that establishes a Palestinian state alongside Israel.

By | 2011-03-09T15:09:00-05:00 March 9th, 2011|Blog|2 Comments


  1. Michael Several March 11, 2011 at 9:42 pm - Reply

    In justifying the legality of the settlements under international law, the Jerusalem Center for Public Affairs, reinterpreted Article 49(6) by saying 1)”transfer” has the same meaning as “deportation” and 2) adding the word “forcible” when the word is absent. The international community, through numerous United Nations resolutions in both the General Assembly and the Security Council, and other international organizations, and national governments have all recognized that the settlements are illegal under international law. The silly argument raised by the Israelis based on its deliberate distortion of the section of the Fourth Geneva Convention resonates as much with the international legal community as Intelligent design resonates with the Scientific Community.

  2. David Rheingold March 18, 2011 at 9:31 am - Reply

    The clause “regardless of their motive” at the end of the opening sentence would appear to nullify the relevance of the Red Cross explanation.

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