J-Street is freaking out over Secretary of State Mike Pompeo’s announcement that the US will no longer consider settlements to be illegal per se, effectively allowing Israel’s excellent justice system decide which communities are legal and which aren’t (typically if built on privately owned lands.)
In an email, J-Street writes:
Make no mistake: The settlements are, in fact, illegal under international law. Pompeo’s decision willfully disregards the Geneva Conventions, sets Israel on the path to West Bank annexation and shatters American credibility in the Middle East.
OK, let’s revisit the Geneva Conventions.
Article 49, paragraph 6 of the Fourth Geneva Convention says:
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
We’re going to set aside whether Israel is legally an occupying power. Israel has long held that the territories are disputed, not occupied, but Israel has voluntarily accepted the humanitarian parts of the Geneva Conventions on how it treats the territories. This makes sense, since the Fourth Geneva Conventions are meant for protecting civilians under occupation, and a loophole in whether these areas are not strictly considered occupied under the Hague Convention of 1907 – the only place in international law that defines occupation – should not leave civilians without humanitarian protection.
Within the text of Geneva, however, it is obvious that Jews move to these communities voluntarily. Not one would consider themselves to be deported or transferred by Israel, and both words imply that this is done against the will of the people being transferred. Indeed, the entire Article 49 deals with involuntary transfer and deportation, and there is no logical reason to think that paragraph 6 is any different.
Some people tortuously argue that by Israel providing infrastructure for these communities, it is a form of transfer, since Israel makes it easier for Israelis (not only Jews – Arabs do as well) to move into these areas. This is obviously not what was meant by the Geneva drafters, who never envisioned an occupied area that the citizens of the occupying country would want to move to on their own. Who would want to move into a war zone?
Only citizens who believe that the land was always theirs.
When the Fourth Geneva Convention was drafted, the intent of paragraph 6 was to stop mass forcible transfers of populations into newly conquered areas like the Nazis did. The 1958 commentary on the Conventions makes this clear:
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.
A look at the Travaux Préparatoires for the Convention mentions nothing but forcible transfers for the entire Article 49 in all the discussions.
Here’s the real proof, though. Since it was obvious to everyone that the wording in Geneva was far from explicit in making settlements illegal when there was no forcible transfer, anti-Israel nations added provisions to international law after the fact to widen the law to ensure that Israel’s actions would be considered illegal!
When the laws were drafted for the Rome Statute of the International Criminal Court, the Arab delegation wanted to ensure that not only would an occupying power be guilty if it actively transferred its citizens to occupied territory, but also if it does not actively stop its citizens from going on their own! The Rome Statute says that “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” is against international law.
This is the most egregious hijacking of international law for political purposes in modern history.
However, if Geneva was so obviously against Israeli settlements, then why even bother to add the language of “directly or indirectly” to the Rome Statute? Geneva should have covered it.
A sui generis law was created specifically against Israel because Geneva doesn’t cover the settlements in Judea and Samaria. The US and Israel never accepted the Rome Statute because of its obviously political nature to damn only a single country – something that would not have been necessary if the Geneva Conventions said that the settlements were illegal.
Ambassador Alan Baker, a noted legal expert, has dealt with this issue at length here.
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