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Home EJIL Analysis Justice Levy’s Legal Tinsel: The Recent Israeli Report on the Status of the West Bank and Legality of the Settlements

Justice Levy’s Legal Tinsel: The Recent Israeli Report on the Status of the West Bank and Legality of the Settlements

Published on September 6, 2012        Author: 

In February 2012, the Israeli government appointed a commission, headed by former Supreme Court Justice Levy, to “examine the status of building in Judea and Samaria”—in other words, to examine the legality of settlements, whether authorised by the Israeli government or not, in the West Bank.  On 9 July 2012, the Commission’s report was released.  The report is in Hebrew, but its conclusions and recommendations have been translated into English by one of the Commission’s members, Alan Baker, and an unofficial translation of its arguments regarding international law has been published on a pro-Israeli US blog.

The reasoning of the Report, such as there is, is a travesty of legal argumentation.  It is selective in the issues it chooses to address, and perverse in its interpretation of international law. The arguments employed with regard to the status of the West Bank and legality of the Israeli settlements there are not novel.  Indeed, they are well-worn, tired, and have been thoroughly discredited in the past.  They contradict established legal opinion, both international and Israeli.

The Commission’s conclusions fall into two categories, one dealing with international law and the other with domestic Israeli law.  The Report states:

“Our basic conclusion is that from the point of view of international law, the classical laws of “occupation” as set out in the relevant international conventions cannot be considered applicable to the unique and sui generis historic and legal circumstances of Israel’s presence in Judea and Samaria [ie, the West Bank] spanning over decades.

In addition, the provisions of the 1949 Fourth Geneva Convention, regarding transfer of populations, cannot be considered to be applicable and were never intended to apply to the type of settlement activity carried out by Israel in Judea and Samaria.

Therefore, according to International Law, Israelis have the legal right to settle in Judea and Samaria and establishment of settlements cannot, in and of itself, be considered to be illegal.”

The Report’s most important conclusions on points of Israeli law are that construction within the bounds of an existing or future settlement will not require ministerial or governmental decision; that “outposts”, settlements deemed illegal under Israeli law because they were not authorised by governmental decision, were established “with the knowledge, encouragement and tacit agreement of the most senior political level—government ministers and the Prime Minister, and therefore such conduct is to be seen as implied agreement” and should be regularised; and that legislation should be amended “to enable Israelis to purchase land in Judea and Samaria directly”.

Apparently without irony, the Report concludes by stressing “that the picture that has been displayed before us regarding Israeli settlement activity in Judea and Samaria does not befit the behaviour of a state that prides itself on, and is committed to the rule of law”.

The Commission comprised three members: former Supreme Court Justice Edmund Levy retired District Court Judge Techia Shapiro, and Mr Baker, who is a former legal advisor to Israel’s Ministry of Foreign Affairs and Ambassador to Canada.  Some have claimed that the members of the Commission were “hand-picked” to deliver the conclusions the government sought on the status of the West Bank and legality of settlements, pointing out that Justice Levy (see this Haaretz piece on him) was the sole dissenter in Gaza Coast Regional Council v Knesset of Israel, HCJ 1661/05 (2005).  In this case, an expanded Supreme Court bench of eleven held that Gaza was occupied territory and that Israeli settlers in Gaza were not protected persons for the purposes of Article 4 of the 1949 Fourth Geneva Convention.  Justice Levy disagreed.  It has also been pointed out that Mr Baker is, himself, a West Bank settler.  Indeed, the legal arguments regarding the existence of occupation and the legality of settlements contained in the Levy Report uncannily echo the views expressed by Mr Baker in an article published in 2011.

Although the Report’s conclusions on issues of Israeli law are not without interest, the focus here is on the Commission’s views on international law.  These have been roundly criticised by Israeli international lawyers, various human rights NGOs, and by the Palestinian Authority.  Is this criticism justified?

Hell, yes!

The Report’s analysis of international legal issues starts from the proposition that the law of occupation is intended to apply only for short periods where “territory of a sovereign state” is occupied until the end of the conflict between the parties and the return of the territory or any other negotiated settlement.  This is not the case in the West Bank:

The Israeli presence in Judea and Samaria is significantly different: the possession of the territory continues for many decades, and no one can predict its end, if at all; the territory was conquered from a state (the Kingdom of Jordan) whose sovereignty over the territory has never been firmly legalized, and in the meantime it even renounced its claim of sovereignty; the State of Israel claims sovereign rights to the territory.

The Report argues that, by the Balfour Declaration of 2 November 1917 (and commentary), Britain “recognized the Jewish people’s right to the Land of Israel”. Noting that the terms of the Balfour Declaration were incorporated into the Mandate for Palestine granted to Britain by the League of Nations, the Report emphasised that “only the ‘civil and religious’ rights of the inhabitants of Palestine are mentioned as subject to protection, but there is not mention of the national rights of the Arab people”.  It continues that Article 6 of the Mandate required the Mandatory to “facilitate Jewish immigration…and encourage…close settlement by Jews”, and concludes:

In August 1922 the League of Nations approved the Mandate which was given to Britain, and thus was decided, as a norm anchored in international law, the Jewish people’s right to settle in the Land of Israel, their historic homeland, and to establish their state there.

The Report then argues that General Assembly resolution 181 (29 November 1949) recommended the division of “the Land of Israel west of the Jordan river into two states: one Arab and one Jewish”, but this was never implemented and the outcome of the resulting Arab-Israeli war “set the political reality from now on: the Jewish state was established within the lines drawn after the war.  However, an Arab state was not established, and the territories which had been conquered by Egypt and Jordan (the Gaza Strip, Judea and Samaria) were ruled by those countries”.

The Report then draws its principal conclusion regarding international law:

Thus the original legal status of the territory was restored, namely, a territory designated as a national home for the Jewish people, who had a “right of possession” to it during Jordanian rule while they were absent from the territory for several years due to a war imposed on them, and have now returned to it.

Accordingly, Israel had the right to claim sovereignty over these areas “and all Israeli governments believed so, but they chose not to annex them and take a pragmatic approach in order to allow for peace negotiations with representatives of the Palestinian people and Arab states”.  Consequently Israel has not seen itself as an occupying power, and was not bound by the Fourth Geneva Convention in relation to Gaza and the West Bank, but rather “Israel implemented a policy that allows Israelis to live voluntarily in the territory in accordance with rules set by the Israeli government and supervised by the Israeli legal system, while their continued presence is subject to the outcome of the negotiation process”.

The Report’s claim that “from the perspective of international law” the establishment of Jewish settlements in the West Bank is lawful relies not only on the conclusion that the Fourth Geneva Convention does not apply because the West Bank is not occupied, but also on its interpretation of Article 49 of the Fourth Convention.

Article 49(6) provides, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”.  The Report claims that the “dominant” interpretation of this provision is that “the article was meant to resolve the harsh reality imposed by some states during the Second World War, when they expelled and forcibly transferred some of their inhabitants to the territories they had occupied, a process which was accompanied by a substantial worsening of the condition of the occupied population”.  Thus, because coercion is absent, the Levy Report concludes that an analogy cannot be drawn between Article 49(6) and “those who sought to settle in Judea and Samaria not as a result of them being ‘deported’ or ‘transferred’ but because of their world view—to settle the Land of Israel”.

In support of this interpretation, the Report quotes from the ICRC commentary on the Fourth Convention, claiming that the purpose of Article 49 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.

The Commission also buttressed its interpretation of Article 49(6) by reference to the views of Eugene Rostow and Julius Stone. The latter argued:

Irony would…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 excludes so tyrannical a reading of Article 49(6.)

Is the West Bank occupied, or not?

What is one to make of the findings of the Levy Commission on the status of the West Bank and the legality of settlements, given that they confound established legal opinion, both international and Israeli?

To start with the Commission’s conclusion that the West Bank is not occupied by Israel, one should note that this argument contradicts itself internally.  On the one hand, the Report affirms that “the State of Israel claims sovereign rights to the territory” but claims that successive Israeli governments have chosen not to annex the West Bank, preferring instead to negotiate its status.  How may one annex territory over which one already possesses sovereignty?  And if, as the Levy Commission does, one places emphasis on the Balfour Declaration as a vital recognition of the Jewish people’s right to the Land of Israel, how does one account for the fact that the United Kingdom has consistently and frequently affirmed that Jewish settlements are illegal (see here, Section VI)?

The substance of the Commission’s argument contradicts express findings of both the International Court of Justice and Israel’s Supreme Court.  The Commission bases itself on the “missing reversioner” argument—that as Jordan did not possess sovereignty over the West Bank in 1967 when it was seized by Israel, the latter could not be in “occupation of the territory of a sovereign state”.

In the Legal Consequences of The Construction of A Wall in the Occupied Palestinian Territory Advisory Opinion, the International Court of Justice noted that Israel, “contrary to the great majority of the other participants” in the proceedings, had argued that because Jordan and Egypt did not possess sovereignty over the West Bank and Gaza when Israel seized them in 1967, they were not territories of a High Contracting Party for the purposes of the application of the Fourth Convention (see 173, para.90).

The International Court of justice rejected this claim.  It ruled that the Fourth Geneva Convention applies to any armed conflict between High Contracting Parties, and that it was irrelevant whether territory occupied during that conflict was under the sovereignty of one or other of the combatants.  This interpretation was based on textual exegesis, the drafting history of the Fourth Geneva Convention, the practice of parties to the Convention, the views of the International Committee of the Red Cross, General Assembly and Security Council, and also that of the Israel Supreme Court (see, 173-177, paras.90-101). This was a unanimous finding by the Court, as the sole dissenting judge, Judge Buergenthal, expressly concurred in this ruling (see his declaration, para.2).

Israel’s Supreme Court, sitting as the High Court of Justice, has also clearly and consistently held that Israel is the belligerent occupier of Palestine.  Thus, for example, in Beit Sourik Village Council v Government of Israel, President Barak observed (at para.24):

The general point of departure of all parties—which is also our point of departure—is that Israel holds the area in belligerent occupation (occupatio bellica)…The authority of the military commander flows from the provisions of public international law regarding belligerent occupation.

Similarly, in Mara’abe v Prime Minister of Israel, the Court ruled “The Judea and Samaria areas are held by the State of Israel in belligerent occupation” (opinion of President Barak, para.14: similarly Morar v IDF Commander in Judea and Samaria, opinion of Justice Beinisch, para.12), and in Matar v Commander of the IDF in Gaza that “The Gaza Strip is under the belligerent occupation of IDF” (cited in Mara’abe, para.18).

Was Justice Levy simply attempting to rewrite the jurisprudence of the Supreme Court with which he disagreed and from which he had dissented?  Or, for that matter, the views of the Government of Israel itself.  In Gaza Coast Regional Council v Knesset of Israel, the Supreme Court observed (para.29):

The Government clarifies that, also on its merits, the decision to evacuate settlements was legal, let alone after it was promulgated in Knesset’s legislation.  This emanates from the fact that the evacuated territory is held under belligerent occupation which is temporary in nature, as well as the settlements that were established on its basis.

Given the weight of legal authority stacked against the conclusion adopted by the Levy Commission, it can only be seen as perverse.

If it is accepted that the West Bank is subject to Israeli occupation then, as the International Court unanimously ruled, it follows that the Fourth Geneva Convention forms the legal framework regulating the governance of the territory.  In Public Committee Against Torture in Israel v the Government of Israel, Israel’s Supreme Court noted that “The normative system which applies to the armed conflict between Israel and the terrorist organizations in the area is complex.  In its center stands the international law regarding international armed conflict…This law includes the laws of belligerent occupation.”  It continued, however, that “the position of the Government of Israel is that, in principle, the laws of belligerent occupation in The Fourth Geneva Convention do not apply”, but that “Israel honors the humanitarian provisions of that convention”.  For the purposes of the case, the Court deemed it unnecessary to decide whether the Fourth Geneva Convention applied as a matter of law (see opinion of President Emeritus Barak, paras.18 and 20).

Nonetheless, the Supreme Court has also repeatedly indicated that the Fourth Geneva Convention applies in occupied Palestine.  Thus, in Physicians for Human Rights v Commander of the IDF Forces in the Gaza Strip, it ruled that “The military operations of the IDF in Rafah, to the extent they affect civilians, are governed by Hague Convention IV Respecting the Laws and Customs of War on Land 1907…and the Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949″; and in Beit Sourik Village Council v Government of Israel, President Barak observed (para.24):

 The authority of the military commander flows from the provisions of public international law regarding belligerent occupation.  These rules are established principally in the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907…These regulations reflect customary international law.  The military commander’s authority is also anchored in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949.

Settlements: lawful or unlawful?

If it is accepted that the Fourth Geneva Convention applies to the West Bank, then the question arises of the interpretation of Article 49(6). The Levy Commission, relying primarily on the ICRC commentary, argues that this does not apply to settlers in the West Bank who are not there because they were “deported” or “transferred” but rather “because of their world view—to settle the Land of Israel”.   But the Commission’s quotation from the commentary is partial.  While Article 49(1) prohibits forcible deportations and transfers of protected persons from occupied territory, there is no indication in the text of Article 49(6) or its published travaux that this requirement of coercion is necessary where the movement of nationals of the occupying power is concerned.  While coercion is expressly included as a necessary condition for a breach of Article 49(1), this is absent from the text of Article 49(6).  The commentary explicitly states that the concepts of deportation and transfer in Article 49(6) differ from those contained in Article 49(1).

To buttress its interpretation of Article 49(6), the Levy Commission relies on the views of Rostow and Stone.  Stone is the more significant international lawyer, but his views of the Israel-Palestine conflict have been seen as controversial, with one commentator arguing that his analysis demonstrates a legal formalism that is anomalous in his work, particularly when seen in the light of his theoretical work on legal reasoning.

The Levy Report chose, however, to ignore the views of another prominent international lawyer, which can be seen as more significant than those of either Rostow or Stone.  In September 1967, in the immediate aftermath of the Six-Day War, Theodor Meron, then legal advisor to the Israeli Foreign Ministry, prepared a memorandum entitled Settlement in the administered territories for Israel’s Foreign Minister (original Hebrew text; English translation).  The Levy Commission was not unaware of this memorandum, as it had been expressly drawn to the Commission’s attention by ACRI, an Israeli NGO.

The memorandum concluded that “civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention.” Meron further noted that the international community had rejected Israel’s claim that the territories were not occupied:

We must nevertheless be aware that the international community has not accepted our argument that the [West] Bank is not “normal” occupied territory and that certain countries (such as Britain in its speeches at the UN) have expressly stated that our status in the [West] Bank is that of an occupying State.  In truth, even certain actions by Israel are inconsistent with the claim that the [West] Bank is not occupied territory.

Like the Levy Report, Meron cited the authoritative official International Committee of the Red Cross commentary on Article 49(6) of the Fourth Geneva Convention, and stated that the Article 49(6) prohibition was “categorical and is not conditional upon the motives for the transfer or its objectives.  Its purpose is to prevent settlement in occupied territory of citizens of the occupying state,” therefore if Israeli citizens were to settle in the occupied territory it was “vital, therefore, that settlement is carried out by military and not civilian entities” within temporary camps.

Finally, the Levy Report focuses on the conventional prohibition contained in Article 49(6) of the Fourth Geneva Convention, but fails to mention the parallel customary prohibition set out in Rule 130 of the ICRC’s customary international humanitarian law study (supporting practice here).  Even if, contrary to the views of the International Court, Security Council, General Assembly, ICRC, and apparently all States but Israel, the provisions of the Fourth Geneva Convention are not applicable to the West Bank, Israel is still bound by the customary prohibition of settling its nationals in territory it occupies.

One is left with the impression that the Levy Commission Report inhabits a legal monoverse (and yes, I did make that word up) where the correct, and only, interpretation of international law is that placed upon it by Israel to forward its own interests.  In 1972, John Dugard described South African apartheid legislation as “legal tinsel”, as they provided:

a convenient facade for the outside world.  The Promotion of Bantu Self-Government Act, the Transkei Constitution and the Bantu Homelands Constitution Act are useful for foreign consumption as they adopt the rhetoric of self-determination and self-government without disclosing the realities of South African life.  Legal tinsel is used to conceal the fact that most of the African population lives outside the homelands and cannot in fact participate in the homelands’ political process; that the African people themselves have not been consulted about their future; and that self-determination inside or outside the homelands is meaningless while the harsh security laws remain in force.

The Levy Report seems equally to be intent on obfuscating reality by presenting an ostensible legal justification for settlements.  It is nothing more than legal tinsel which attempts to distract and conceal but which proves to be a weak façade incapable of standing up to serious legal analysis.  The reasoning employed in the Levy Report is not simply legal nonsense, it is nonsense with added ingredients: as Jeremy Bentham would say, this is nonsense on stilts.

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42 Responses

  1. Marty Lederman

    Thanks very much, Ian. Has yours been the general reaction to the Levy Report among international law scholars and government officials in Israel? Or does it have serious defenders?

  2. Iain Scobbie iain

    Thanks Marty. I attended a talk by Jessica Montell of B’Tselem <http://www.btselem.org/ yesterday, and I asked her how the report has been received in Israel. She is of the opinion that it is dead in the water. She also noted, however, that as a result of the evacuation of the Migron settlement (which was built illegally under Israeli law) that settlers have been reported saying that they should infiltrate the legal branches of Israel's civil service so that, in time, their views will determine the legal advice given to the government. This is reported here:

  3. Marty- if I may, let me take this one up briefly.
    The Israeli government has given the Levy report a donkey’s burial, that is, it has not even been officially discussed, let alone officially adopted, for a sound reason from its own perspective: government officials understand that the only legitimate international law basis for maintaining Israel’s military rule in the WB is IHL- indeed, the Levy report offers no alternative general legal basis but defines the situation as ‘sui generis’ and hence borrows selectively from IHL when it suits its argumentation (e.g. to justify acquisition of land for military purposes). Had the report been adopted and acted on, it would have created an impossible legal conundrum for the government which, following the Israeli Supreme Court’s consistent judgments, has contended that it follows IHL (whilst dodging the settlements question, as the Israeli court has also done, repeatedly). The anecdotal fact is that Justice Levy was the only dissenting judge in the 10-1 Gaza disengagement plan judgment (HCJ 1661/05) where the HCJ was unequivocally clear about the applicable law. Indeed, the Israeli Ministry of Justice (as opposed to some politicians) has not endorsed the report.

  4. Some do disagree, though to Marty’s question, that probably proves we’re not “serious.”

    Whatever the wisdom of the Jewish Israeli civilian presence in parts of the League of Nations mandate conquered by Jordan in ’49, international law has little to say about it. I will for the purposes of these comments assume the applicability of the Conventions, and focus on “settlement” (itself not an international legal term, and used I think in part because it fits better than “transfer”.)

    Whatever “deport or transfer” means, and I think it is clearly ambiguous,
    it relates only to action by the occupying power. It is Israel, not private individuals, who can violate the anti-transfer norm. There is no auto-transfer. Whatever transfer means, it is not a synonym for transfer.

    Take some simple examples. An Israeli in 1967 moves back to his old home in Old City of Jerusalem, or in Gush Ezion, where he had been kicked out by the Jordanian army in ’49. Has he transferred himself? Or how about a “settler” that was actually born in the West Bank? Is “delivery” now transfer?

    Thus the spontaneous or voluntary movement of Israeli nationals (those the only controversy seems to concern Jews) simply does not trigger 49(6). True, there are many who wish to read 49(6) this way, but it transforms a prohibition on governmental deportation or transfer into a requirement that the government STOP its nationals from moving to occupied territory, which is quite far from what the text says. (And indeed many but not all settlements were built against the will of the government.) Art. 49(6) was designed to prevent governemntal efforts at demographic transformation (as have been seen with considerably less fuss in Tibet, Western Sahara, etc) rather than create ethnically or nationally exclusive zones.

    Indeed, the inadequacy of the text to the great weight put on it seems to be recognized by most nations: in the incorporations of Geneva IV prohibitions in subsequent treaties (like Rome Charter), the prohibition is changed into “directly or indirectly” deport or transfer, which highlights that this is not what 49(6) says (and still does not fit many or most settlers.)

    The desire to have an international legal ban on 100% of the settlements, despite the diverse circumstances of their creation and continuation, stretches the language far beyond what it can bear. And it doesn’t help matters that the Article gets little or no traction in other comparable cases, that one could learn from the international community’s treatment of those precedents.

    Finally, the Convention assumes that nationals of the occupying power are not also nationals of the occupied territory. Given that the occupying territory had no nationality in 1967 (it was not Jordan, and it did not have its own citizenship), this makes it quite hard to apply to the given situation. Indeed, some of the “transferees” were

    I assume most will disagree with my remarks, which is more than welcome, but the thrown in apartheid comparisons here frankly shows how stacked this discussion is. I mean given that none of these questions were discussed during the Jordanian occupation of the WB, it is not surprising they are obscure, and certainly Israel is not obliged to abide by glosses of professors and committees rather than a plain language approach to a not-often applied provision.

  5. A paragraph of mine got truncated, here it is corrected:
    Finally, the Convention assumes that nationals of the occupying power are not also nationals of the occupied territory. Given that the occupying territory had no nationality in 1967 (it was not Jordan, and it did not have its own citizenship), this makes it quite hard to apply to the given situation. Indeed, some of the “transferees” were indigenous to the occupied area, and had as much claim to its “nationality” as anyone. Certainly international law had recognized the area as a Jewish “homeland,” making it quite unlike other transfer situations.

  6. My penultimate paragraph of mine got truncated, here it is corrected:
    Indeed, some of the “transferees” were indigenous to the occupied area, and had as much claim to its “nationality” as anyone. Certainly international law had recognized the area as a Jewish “homeland,” making it quite unlike other transfer situations.

  7. One needs to distinguish the Levy Report from international legal arguments supporting Israel’s position; the Levy Report does a better job on some arguments than others, and is certainly not the last word on the subject.

    Its most useful function is, if not reopening the debate, at least making it harder to avoid a discussion on the merits with the common refrain that everyone has agreed.

    The government has buried the report because Bibi does not want pressure from the right to build settlements: he wants maximum political room to maneuver. This is of course consistent with the settlements being a significantly private initiative.

  8. Jewish Rights to Palestine Were Internationally Guaranteed

    The “Mandate for Palestine,” an historical League of Nations document, laid down the Jewish legal right to settle anywhere in western Palestine, between the Jordan River and the Mediterranean Sea, an entitlement unaltered in international law.

    The “Mandate for Palestine” was not a naive vision briefly embraced by the international community. Fifty-one member countries—the entire League of Nations—unanimously declared on July 24, 1922:
    “Whereas recognition has been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”

    Eli E. Hertz

    It is important to point out that political rights to self-determination as a polity for Arabs were guaranteed by the same League of Nations in four other mandates—in Lebanon and Syria [The French Mandate], Iraq, and later Trans- Jordan [The British Mandate]

    In the first Report of the High Commissioner on the Administration of Palestine (1920-1925) presented to the British Secretary of State for the Colonies, published in April 1925, the most senior official of the Mandate, the High Commissioner for Palestine, underscored how international guarantees for the existence of a Jewish National Home in Palestine were achieved:
    “The [Balfour] Declaration was endorsed at the time by several of the Allied Governments; it was reaffirmed by the Conference of the Principal Allied Powers at San Remo in 1920; it was subsequently endorsed by unanimous resolutions of both Houses of the Congress of the United States; it was embodied in the Mandate for Palestine approved by the League of Nations in 1922; it was declared, in a formal statement of policy issued by the Colonial Secretary in the same year, ‘not to be susceptible of change.’”

  9. Prof. Scobie seems to sidestep the effect of the League of Nations Mandate, which created the international legal basis for the creation of the State of Israel, and thus should have something to say about its borders. (The Balfour Declaration is neither here nor there, as it was not a legal document; Britain is surely not the authoritative interpreter of the Mandate, which it indeed violated.)

    Similarly, Prof. Scobie writes the West Bank was “conquered” from a country whose sovereignty had “never been firmly legalized.” That is quite an understatement – Jordan’s sovereignty was recognized by at most a handful of countries; its claims of sovereignty were widely rejected. Thus up until 1949 the WB was part of a unified “Palestine” under the Mandate; ’49-’67 it was under Jordanian belligerent occupation with no change in sovereignty, so it is hard to see when Israel lost colorable title (as opposed to actual sovereignty).

  10. Locke Jaw

    Eugene,

    On Article 49(6) of the GC IV. In Wall Advisory Opinion, the ICJ held that the article “prohibits not only deportations or forced transfers of population… but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory’. Building massive settlements infrastructure triggers this article, to say the least. Art. 49(6) is a state obligation to prevent people who are not “protected persons” from colonizing an occupied territory, according to the Pictet Commentary.

    As for the Rome Statute and the “indirect and direct” criteria, during the treaty negotiations this was considered to be at most a clarification of Art. 49(6) by the majority of participating states – not a new addition.

  11. Eli

    ICJ Inappropriate Use of the Fourth Geneva Convention

    The International Court of Justice lacks the authority to affect ownership of any part of the Territories
    Eli E. Hertz

    The term “occupied territory,” which appears in the Fourth Geneva Conventions, originated as a result of the Nazi occupation of Europe. Though it has become common parlance to describe the West Bank and Gaza as “occupied territories,” there is no legal basis for using this term in connection to the Arab-Israeli conflict.
    The language of Article 49 was crafted in the wake of World War II and the Nazi occupation – an occupation that led to a war of aggression in which Nazi Germany attacked its neighbors with impunity, committing a host of atrocities against civilian populations, including deportation and displacement of local populations in occupied Europe. Millions were sent to forced labor camps and those of particular ethnic origin, most notably the Jews, were sent to their deaths in the gas chambers. The drafters of Article 49 were concerned with preventing future genocide against humanity.
    But that has not stopped critics and enemies of Israel, including members of the UN and organs such as the International Court of Justice (ICJ) from using the Geneva Convention as a weapon against Israel, even when statements by authoritative analysts, scholars and drafters of the document contradict everything said by those who distort history for politically motivated reasons.
    In paragraph 120 of the Court’s opinion, the ICJ declares:
    “The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.”
    The ICJ based its conclusion on the inappropriate use of Article 49 of the Fourth Geneva Convention, adopted August 1949, which stipulates: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
    In 2004, the Court then attempted to broaden the definition of Article 49 to possibly ‘fit’ some wrongdoing on the part of the State of Israel, all with no reference to law. The Court continues to deceive the readers by creating and editing its own version [See in Bold] of text: “That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.”

    In addition, Article 2 states that the Fourth Geneva Convention applies only to conflicts that “arise between two or more High Contracting Parties,” which is not the case at hand, as Israel is the only High Contracting Party (or state) in this conflict.
    Professor Julius Stone, one of the twentieth century leading authorities on the Law of Nations touches on the applicability of Article 49 of the Geneva Convention, writing on the subject in 1980:
    “That because of the ex iniuria principle [unjust acts cannot create law], Jordan never had nor now has any legal title in the West Bank, nor does any other state even claim such title. Article 49 seems thus simply not applicable. Even if it were, it may be added that the facts of recent voluntary settlements seem not to be caught by the intent of Article 49 which is rather directed at the forced transfer of the belligerent’s inhabitants to the occupied territory, or the displacement of the local inhabitants, for other than security reasons).”
    Professor Eugene V. Rostow, past dean of the Yale Law School, U.S. Under-Secretary of State for Political Affairs, and a key draftee of UN Resolution 242, concludes that the Convention is not applicable to Israel’s legal position and notes:
    “The opposition to Jewish settlements in the West Bank also relied on a legal argument – that such settlements violated the Fourth Geneva Convention forbidding the occupying power from transferring its own citizens into the occupied territories. How that Convention could apply to Jews who already had a legal right, protected by Article 80 of the United Nations Charter, to live in the West Bank, East Jerusalem, and the Gaza Strip, was never explained.”
    It seems that the International Court of Justice never explained it either.

  12. Attempting to assert that Jews constructing homes and residing in them (and building schools, factories, planting crops, etc.) in the region of Judea and Samaria is somehow illegal and must be pejoratively termed as “settlement activity” is, actually, the more perverse viewpoint and the real travesty of law.

    In the territory the entire civilized world recognized as the Jewish national home and which it was decided that that home be reconstituted, international law provided for a right of “close settlement by Jews” on state and waste lands in that area which, due to the provisions of Article 25 of the Mandate for Palestine in 1922, was temporarily limited to all the area of the country west of the Jordan River (for after all, Article 5 obligated the Mandatory Power not to cede or in any way placed under control of another power). The rights provided for “non-Jews”, that is, everyone else living in the country (including Arabs who conquered and occupied the country in previous centuries), were limited to solely to “civil and religious rights” but not “political” or “national”. The Mandate was to provide for the basis of a Jewish state.

    That state was to arise through territorial compromise as recommended on November 29, 1947 but that suggestion was rejected by the local Arabs and at least seven other Arab countries in a war of aggression. Surely, no rights can accrue such a group of people when, after losing that illegal war and then launching terror attacks against Israel in the 1950s through the Fedyeen terror and then after 1964, through Fatah, another war was propagated in 1967 through which, in an act of defense, Israel became an administer of Judea and Samaria whether one calls that a “belligerent occupation” or a reversion of sovereignty or anything in-between.

    The Jewish people who were ethnically cleansed for Judea and Samaria during the Mandate period, even prior to the outbreak of Arab-initiated hostilities on November 30, 1947, from their homes in Hebron, Nablus/Shchem, Gaza, Jenin, and then from Gush Etzion, Neveh Yaakov, Atarot, Bet HaAravah and the Old City of Jerusalem, all geographical locations Scobbie would call the “West Bank”, have all the legal right(s) to reconstitute those homes and farms and other elements of a normal national life, even including a university in Samaria, a winery in Binyamin and a factory in Judea. There cannot be anything illegal for me to reside in Shiloh.

  13. Elliott A Green

    According to the book La Croix rouge internationale [by Henri Coursier] published in the 1950s and authorized by the Int’l Red Cross, Geneva IV, art 49 refers to transfer as occurred during WW2 and the Holocaust when Jews and others were forcibly compelled to migrate, let us say from Hungary to Poland to a death camp there like Treblinka. Those who claim that Israeli or Jewish settlements/villages/communities/towns in Judea/S maria represent transfer are falsifying the original understanding of Art 49. Transfer is compulsory by definition.
    – – – – –
    There is no such thing as “non-forcible transfer”. Transfer is compulsory by definition. Further Scobbie and many others make interpretations of the relevant international law based on their anti-Israel political prejudices. Obviously, that is true of the Hague Court, the ICJ. Is there any question as to the ICJ being a political body? Its members are appointed or proposed by governments. The govts have their own political lines and policies and preferences. Hence, there is no reason to take the ICJ seriously as representing serious and impartial legal judgment.

    As to the ICRC, its present interpretation of Geneva 49/6 as cited by Scobbie on various occasions, is political. It is meant solely to use against Israel and conflicts with its earlier 1950s interpretation as cited in a book authorized by it. The present ICRC interpretation of Geneva 4/49:1 & 6 is strictly post-6 Day War. The pre-1967 interpretation, as I have said above, was laid out in the ICRC-authorized book, La Croix-Rouge Internationale, by Henri Coursier [Paris: PUF 1959]. Here we read [pp 42-43]:
    “The 4th Convention is new in the law of Geneva. It “completes” the dispositions of the Hague law on the protection of civilians in time of war. . . . It [Geneva IV] principally forbids:
    a) Harm to the lives and bodily integrity of human beings, notably torture. . . cruel treatments. . .
    b) hostage taking. . .
    c) deportations;
    d) harm to the dignity of persons, notably humiliating and degrading treatments and discriminatory treatment based on . . . race, color, nationality, religion. . . .sex. . .
    e) [sentences and executions not approved beforehand by a regular court {here I summarize}]”

    Therefore, of the five classes of action forbidden by Geneva IV, one is deportations , that is, transfers [deportations in French refers to forcible migration, particularly transfers to the German concentration camps from other countries]. There is no hint here that persons are forbidden to move across a border of an occupied country in order to live on the other side of that border. This was the ICRC’s own interpretation of Geneva IV, art 49, as of 1959. The later interpretations of the ICRC, as well as those of some international law profs, were purely meant to strike at Israel. The word “transfer” in Geneva IV, art. 49, does not apply to non-compulsory, voluntary migration or movement. The use of “deportations and transfers” together in GC IV is not meant to distinguish between them but to strengthen the idea of forcible migration.

    The ICRC now agrees with the fashionable Israelophobic interpretation of Geneva 4. The ICRC as a semi-official agency of the Swiss govt, is not neutral nor is it immune to making political judgements. Ironically, during the Holocaust the ICRC avoided helping Jews or even informing the world of the ongoing mass murder of Jews. That was done on the grounds that informing the world of mass murder by Germany would violate the ICRC’s “neutrality.” Then the ICRC interpreted international law to the detriment of the Jewish victims. Again today, it interprets international law to the detriment of Jews.

    To conclude, as to the relevance of Geneva IV, 49, on Jews moving into Judea-Samaria to reside there: Even if Judea-Samaria or, as many call it, the West Bank, were occupied territory, then Geneva IV, 49, would not forbid or invalidate Jews coming into that zone to reside there.

  14. In response to “Locke”–

    1) Yes, the ICJ opinion is contrary to the Levy position, but also to the plain text 49(6) which mentions nothing about “encouraging” (whatever that would mean). On the merits, there are several reasons not to take the ICJ opinion seriously: namely, it provides no reasoning, precedent or other authority for this startlingly broad proposition. This proposition has notably not been asserted in other cases of occupation. Given that this interpretation was announced decades after ’67, with full view of the particular situation, it is hard to take it as a prospective statement of a general rule.

    2) It is, of course, an advisory opinion. Israel is more than entitled to disagree.

    3) Even if the ICJ were right, it means some settlements are illegal, some legal. The government of Israel “built” some settlements; much were built with private initiative. Some of the most controversial settlements, in E. Jerusalem and Hevron, were pure private purchases.

  15. forehead1

    on 14 May 1948 David Ben-Gurion, the Executive Head of the World Zionist Organization and president of the Jewish Agency for Palestine, declared the establishment of a Jewish state in Eretz Israel, to be known as the State of Israel, a state independent upon the termination of the British Mandate for Palestine.
    the borders were established and have never been changed(legally). the area was established to ensure a jewish majority and excluded the areas, which held too many arabs to include.
    after changing the demographics of area”C”; the jews now wish to rationalize the annexation by any means possible. this includes delusion, lies, killings, deportations,reports(levy) and etc(the list is quite long).
    the world is not accepting the self serving jewish hasbara and is getting to the point where something must be done. the reelection of Pres. Obama will surely be a huge problem for the current israeli gov.
    let us all hope for the day when the two state solution is applied and this nonsense comes to a halt. thx and have a good day.

  16. Lawrence Paulsen

    Eugene Kontorovich wrote: “On the merits, there are several reasons not to take the ICJ opinion seriously…” This is curiously bold statement.

    On the issue of whether the settlements violate Article 49(6) of the IVGC, the Court was, if I recall correctly, unanimous. (I believe that even Judge Buergenthal, who dissented on the issue of whether the Court should take jurisdiction, agreed that the settlements violate 49(6).) If we cannot take “seriously” a unanimous ICJ ruling (fifteen to zero), when can we take the Court seriously?

    Moreover, I note that James Crawford, probably the premier international law scholar in the world, recently characterized this ruling as “undoubtedly correct.”

    However, I think Crawford agrees with Mr. Kontorovich that some settlements – those not “instigated by, funded by, or otherwise supported by” the government of Israel – do not implicate 49(6).

  17. Michael Perloff

    Without addressing what constitutes legal or illegal Arab settlement west of the Jordan River, these comments appear to be rest on the assumption that some or all of the Jewish communities may be illegal while all Arab communities are legal. I would challenge that assumption and question the importance of settlements, borders, or land ownership issues. If we are to believe the evidence contained in mainstream Arab speeches, sermons, and school curriculum, the core issue of the Arab-Israeli conflict is Israel’s existence rather than its borders.

  18. Barry

    I always have a problem with an academic writing something so very wrong. The automatic prestige an academic carries lends the impression they are at the top of the knowledge chain when often the very opposite is true. In so many cases, bias is the guiding principle and then they use fancy ways to justify their long held feelings. Here’s just one example from this poorly reasoned article.

    “And if, as the Levy Commission does, one places emphasis on the Balfour Declaration as a vital recognition of the Jewish people’s right to the Land of Israel, how does one account for the fact that the United Kingdom has consistently and frequently affirmed that Jewish settlements are illegal (see here, Section VI)?”

    Answer: The Balfour Declaration never had legal standing on its own. Only when it was incorporated by the San Remo Resolutions did it’s first official leg to stand on, and it had nothing to do with the British government once this occurred.

    There was only one good British government from the point of view of the Jewish people, that of Lloyd George almost 100 years ago. Successive British government have resorted to form and have been largely anti Israel (or anti Semitic) since. That recent governments have a view contrary to principles of The Balfour Declaration matters not at all and has no connection to anything. Yet the author tried to tie the two together is some warped manner. This is good writing???? Is it good reasoning????

    No, the author of this piece had a perspective and needed to bend the facts to make it fit. Too bad that large segments of the uniformed will buy in as this is just one more mis-informational piece that is hard to digest for it’s untruthfulness.

  19. To Barry, another aspect from what you pointed out –

    the Arabs complain that the British had no right to hand over “their” land. But they did exactly what the Zionists did – they entered into a wartime agreement and pledged to revolt and sabotage Turkish military targets and in return get their freedom. So, they cannot negate the move the Zionists did when they did it themselves. Moreover, it seems that Faisal was quite well aware of the geographic limitations on his Arab State and whether, indeed, “Palestine” was to be included.

    On January 20, 1921, five years following the McMahon-Hussein correspondence, Winston Churchill stated that in a conversation with the Emir Faisal that day, the Emir had claimed that he was,

    “prepared to accept the statement that it had been the intention of His Majesty’s government to exclude Palestine.”

    that is, to exclude Palestine from the area to become the Great Arab State that the Arabs expected from their joining with England to fight against the Ottoman Empire in World War I.

    (The source for that is Great Britain, Parliamentary Debates, Commons, July 11, 1922, cols. 1032-1034, as cited in Albright, et al, Palestine: A Study of Jewish, Arab and British Policies, Vol. I, 1947, Yale University Press, p. 187)

    And if you are not lazy, and go to to Hansard online you will find there at that debate this additional interesting material as Churchill continues his remarks:

    “When I assumed responsibility for Middle Eastern affairs, I went carefully into the correspondence referred to, and my reading of it is the same as that of the Foreign Office, as was recently stated in the declaration of British policy in Palestine which has been published and laid before the House. I am quite satisfied that it was as fully the intention of His Majesty’s Government to exclude Palestine from the area of Arab independence as it was to exclude the more northern coastal tracts of Syria.”

    And this exchange follows:

    Sir W. JOYNSON-HICKS

    Can the right hon. Gentleman say whether, confident as he is of the view of His Majesty’s Government, he is at all certain that the other party to the negotiations and correspondence really thought the same thing, and whether it has not been a bond fide statement on the part of King Hussein and his advisers?

    § Mr. CHURCHILL

    I do not think that is so. At any rate, Sir Henry McMahon was perfectly clear in his indication of what was intended at the time. I am perfectly ready to place his opinion on public record.

    § Mr. ORMSBY-GORE

    Does not the right hon. Gentleman now say that this correspondence was inconclusive, and that King Hussein came in as one of the Allies before the correspondence was 1035 completed, or any real definite undertaking was actually signed as between the Treaty-making parties?

    § Mr. CHURCHILL

    That is so.

    And as to the that conversation with Faisal, it becomes clearer:-

    Mr. CHURCHILL

    “No pledges were made to the Palestine Arabs in 1915. An undertaking was given to the Sheriff of Mecca that His Majesty’s Government would recognise and support the independence of the Arabs within certain territorial limits, which specifically excluded the districts of Mersina and Alexandretta and the portions of Syria lying to the west of the districts of Damascus, Horns, Hama and Aleppo. It was also stipulated that the undertaking applied only to those portions of the territories concerned in which Great Britain was free to act without detriment to the interests of her Allies. His Majesty’s Government have always regarded and continue to regard Palestine as excluded by these provisos from the scope of their undertaking. This is clear from the fact, to which the hon. Member refers, that in the following year they concluded an agreement with the French and Russian Governments under which Palestine was to receive special treatment.

    So far as I am aware, the first suggestion that Palestine was included in the area within which His Majesty’s Government promised to recognise and support the independence of the Arabs was made by the Emir Feisal, now King of Iraq, at a conversation held in the Foreign Office on the 20th January, 1921, more than five years after the conclusion of the correspondence on which the claim was based. On that occasion the point of view of His Majesty’s Government was explained to the Emir, who expressed himself as prepared to accept the statement that it had been the intention of His Majesty’s Government to exclude Palestine.”

    So, not only did the Arabs campaign for the inclusion of Palestine with Syria and that there was no true Palestinian nationalism at that time, but they also knew that Palestine was always intended to be the Jewish national home.

  20. Ralph

    If we cannot take “seriously” a unanimous ICJ ruling (fifteen to zero), when can we take the Court seriously?>>>>>
    That is the ultimate question adressing the very heart of the ICJ. Is it indeed an objective, legal organ, somewhat comparable to a domestic (constitutional) court? Or is it by its very nature a political organ, especially in delicate questions like the Middle East, with a tendency to issue opinions that are deemed to fit a particular situation and provide those involved legal basis?

  21. Iain Scobbie iain

    And there I thought I was writing something relatively uncontroversial. When there is a unanimous ruling by the International Court of Justice, and repeated affirmations by States (whether in or out of international fora such as the United Nations or European Union), that Israeli civilian settlements in occupied Palestinian territory are unlawful, I thought that I was on relatively solid ground in ridiculing the Levy Report which attempts to undermine, or deny, this legal consensus. But, I suppose, so many comments having been made, that I should comment on at least some of the comments. It should go without saying that ad hominem arguments are not arguments but the equivalent of name-calling in a school playground: we aspire to higher standards of discourse here. I hope all commentators bear that in mind in future.

    The irrelevance of apartheid:
    It never fails to surprise that things are not read or understood in the meaning intended. This is not meant to be a deconstructivist point, or an affirmation of the radical indeterminacy of language, but simply the observation that readers sometimes take preconceptions to the text, and end up reading what they want to read. I suspect that this is what has occurred with Professor Kontorovich’s concern with the “apartheid comparisons here [which] frankly shows how stacked this discussion is”, which he has also stressed in at least one email to the editors. Politically, the use of “apartheid” in relation to conditions in Israel is currently a thorny issue as some see this as an attempt to “delegitimise” Israel. I suspect that Professor Kontorovich has inferred this intent to me simply because the term “apartheid” appears in the text. This was not my intention: I simply wanted to focus on, and appropriate Professor Dugard’s phrase “legal tinsel”, to describe the Levy Report as a spurious attempt to justify legally the existence of settlements. Professor Dugard was discussing apartheid: I was not.

    Having said that, however, it is a matter of public record that I was a member of a research team assembled by the South African Human Sciences Research Council to investigate if Israel’s practices in the occupied Palestinian territory legally amounted to colonialism and apartheid. This project, which took roughly 18 months to complete, resulted in the Occupation, colonialism, apartheid? report (June 2009) which concluded that Israel’s practices did, indeed, constitute apartheid and colonialism. I share responsibility for those conclusions. The online version of this report is no longer available (although the summary is here) because it has been re-edited and commercially published recently (V.Tilley (Ed), “Beyond occupation: apartheid, colonialism and international law in the occupied Palestinian territories”, Pluto Press: September 2012). As I have not yet seen the re-edited version of the report, I cannot comment upon it. But all this does not detract from the fact that the blog post was about settlements, and not whether Israel is engaged in apartheid in Palestine. Whether it does or not is irrelevant to the matter in hand.

    I fear, however, that a formatting error in the text (for which I am responsible) has unintentionally misled Professor Kontorovitch as, in one of his comments, he attributes to me the statement that “the West Bank was ‘conquered’ from a country whose sovereignty had ‘never been firmly legalized’”. This was not me, but a quotation from the Levy Report which I failed to indent in the final edit.

    What was said:
    A number of commentators have pointed out that while I referred to the Balfour Declaration, which I agree is not a legally binding document, I did not refer to the Mandate for Palestine. This is true, but neither did the Levy Report. It is also true that Article 6 of the Mandate provided:

    The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.

    Commentators have relied on this as the basis for a right of Jewish settlement in all areas west of the Jordan, but it is difficult to see what contemporary relevance this has, as the Mandate terminated at midnight on 14 May 1948.

    As for Mr Hertz’s claims that the term “occupied territory” originated as a result of the Nazi occupation of European States and should not be applied to the Israel-Palestine situation, the former is flatly wrong. If nothing else, Article 42 of the 1907 Hague Regulations states “Territory is considered occupied when it is actually placed under the authority of the hostile army”. As for the latter, as demonstrated in the text of blog entry, Israel’s Supreme Court has repeatedly ruled that the occupied Palestinian territory is, indeed, occupied.

    Which brings me to the interpretation of Article 49(6) of the Fourth Geneva Convention: Mr Green claims that the interpretation I support only arose after the Six-Day War in 1967, and is a political and consciously anti-Israel interpretation. In support he cited a book written by Henri Coursier, “La Croix rouge international”, published in 1959 by the Presses universitaires de France in the Que sais-je? series. This series is one of introductory or elementary works, M. Coursier’s book is 128 pages long, and covers all four of the 1949 Geneva Conventions. In interpreting Article 49(6), I think it better to rely on the official ICRC commentary to the Fourth Geneva Convention, which is a bit more detailed at 660 pages long, published in 1958, and of which M. Coursier was one of the authors. This, as well as an examination of the Convention’s travaux preparatoires, negates Mr Green’s claim that the interpretation expounded was only adopted after the Six-Day War in 1967. To reiterate, the commentary makes clear that the terms “transfer” and “deport” in Article 49(6) are used differently than in the other paragraphs. As it expressly points out:

    It would therefore have appeared to have been more logical…to have made the clause in question into a separate provision distinct from Article 49, so that the concepts of “deportations” and “transfers” in that Article could have kept throughout the meaning given to them in paragraph 1…

    The alternative is that the interpretation set out in the text was invented as early as 18 September 1967, presumably by Professor Meron in his capacity as legal adviser to Israel’s Ministry of Foreign Affairs. Guess which alternative I think is more plausible?

    Professor Kontorovitch argues that Article 49(6) only prohibits the transfer or deportation of its own civilian population by the occupying power, and does not cover the voluntary or spontaneous action of individuals. Giving planning permission for construction and financial incentives to settlers, building infrastructure, supplying utilities, and identifying land suitable for settlements, are hardly the actions of a disinterested bystander. Given the legal and material support necessary to establish and sustain settlements, it is disingenuous to argue that these are somehow the spontaneous outcome of individuals’ action. Also, bear in mind the distinction in Israeli law between settlements and unauthorised, illegal outposts. As the Levy Report itself stated, even outposts have been established “with the knowledge, encouragement and tacit agreement of the most senior political level—government ministers and the Prime Minister, and therefore such conduct is to be seen as implied agreement”. A fortiori settlements.

    What was not said:
    What is not said can be as significant as what is said, and none of the critical comments has deigned to comment specifically on the advice given to the Israeli government in the Meron note, and in particular the statement that the Article 49(6) prohibition was “categorical and is not conditional upon the motives for the transfer or its objectives. Its purpose is to prevent settlement in occupied territory of citizens of the occupying state.”

    Smearing the International Court:
    Unsubstantiated claims that the International Court is politicised or biased are the equivalent of ad hominem arguments: show the evidence or desist from doing so. Such studies as there are do not support such claims, with the exception that judges ad hoc almost invariably vote in favour of the State that appoints them, and that judges often vote in favour of their national State should it be a party in a case—see my «Une hérésie en matière judiciaire»?: the role of the judge ad hoc in the International Court, 4 Law and Practice of International Courts and Tribunals 421-464 (2005).

    If the URL for the summary of the HSRC report has not been embedded, it is available here under the heading for 2009:

    http://www.soas.ac.uk/lawpeacemideast/publications/

  22. To Iaian Scobbie:

    this “the Mandate terminated at midnight on 14 May 1948″ as a claim that there is no basis for a right of Jewish settlement in all areas west of the Jordan in a contemporary relevance, has been challenged with this counter-argument:

    “Article 80 of the UN Charter, once known unofficially as the Jewish People’s clause, which preserves intact all the rights granted to Jews under the Mandate for Palestine, even after the Mandate’s expiry on May 14-15, 1948. Under this provision of international law (the Charter is an international treaty), Jewish rights to Palestine and the Land of Israel were not to be altered in any way unless there had been an intervening trusteeship agreement between the states or parties concerned, which would have converted the Mandate into a trusteeship or trust territory. The only period of time such an agreement could have been concluded under Chapter 12 of the UN Charter was during the three-year period from October 24, 1945, the date the Charter entered into force after appropriate ratifications, until May 14-15, 1948, the date the Mandate expired and the State of Israel was proclaimed. Since no agreement of this type was made during this relevant three-year period, in which Jewish rights to all of Palestine may conceivably have been altered had Palestine been converted into a trust territory, those Jewish rights that had existed under the Mandate remained in full force and effect, to which the UN is still committed by Article 80 to uphold, or is prohibited from altering.

    As a direct result of Article 80, the UN cannot transfer these rights over any part of Palestine, vested as they are in the Jewish People, to any non-Jewish entity, such as the “Palestinian Authority.” Among the most important of these Jewish rights are those contained in Article 6 of the Mandate which recognized the right of Jews to immigrate freely to the Land of Israel and to establish settlements thereon, rights which are fully protected by Article 80 of the UN Charter.”

    Comment?

  23. Sarah

    Lawrence Paulsen wrote, in reference to the ICJ ruling:
    Moreover, I note that James Crawford, probably the premier international law scholar in the world, recently characterized this ruling as “undoubtedly correct.”
    However, I think Crawford agrees with Mr. Kontorovich that some settlements – those not “instigated by, funded by, or otherwise supported by” the government of Israel – do not implicate 49(6).
    The quote you gave of Prof. Crawford’s (who you are right to rate so highly) comes from an opinion he was asked to write on “Third party obligations with respect to Israeli settlements in the OPT” (http://www.tuc.org.uk/tucfiles/342/LegalOpinionIsraeliSettlements.pdf)
    Your quote comes from para. 13. It is worth reading paras 10 – 12 which relate to the point I think you wanted to make in support of Mr. Kontorovich, about the fact that there are instances where Israeli nationals have settled land to which they had title. However the overwhelming majority of settlements are on land that has been expropriated: Prof. Crawford considered that those instances do not abrogate “Israel’s international responsibility for implementing a general policy of support for settlement activity in the West Bank.”
    In paragraph 70 of this opinion moreover Professor Crawford concludes:
    “Israel has engaged in internationally unlawful conduct in pursuing its settlement agenda. In particular, Israel continues to annex territory de facto; to breach the Palestinian peoples’ right to self-determination. By making use of the natural resources of the West Bank to further its own economic ends (but not to the benefit of the local Palestinian population) it is arguable that Israel is in breach of the Palestinian people’s right to permanent sovereignty over their natural resources; and the principle of usufruct, in accordance with Article 55 of the 1907 Hague Regulations.”
    To Prof. Kontovitch and to Mr. Green: I disagree with you both but here I am only going to comment on what you have to say about Article 49(6), that it applies only to forcible transfers, not to relocations undertaken voluntarily by Israeli citizens. The official Commentary and the travaux of the 1949 Conventions make it clear that transfers can be forcible or non-forcible – the distinction is continually referred to in the discussions at the conferences and also in the preparatory materials. All these materials have kindly been made available to those who care to do their research by the Library of Congress: http://www.loc.gov/rr/frd/Military_Law/Geneva-Conventions_materials.html
    The first 5 paragraphs of Article 49 refer only to “Individual or mass forcible transfers” from occupied territory. The discussions in the travaux (the 16th and 40th meetings of Committee III relating to Article 45 of the draft ‘Stockholm’ text – see Vol. 2a of the Final Record of the Geneva Conference) make clear that these five articles tried to deal with the problems both of the deplorable forcible transfers of (primarily but not only) Jews from occupied territory to concentration and extermination camps. It was the US delegate, Mr Clattenburg however who pointed out that if the prohibition on deportations and transfers was made a blanket one, then this “would have hampered the evacuation of the religious and political minorities which the Allies, on entering Germany; had discovered in labour and concentration camps.” (p. 759).

    The sixth paragraph, which is the one that is the main concern with regards to Israeli settlements in the West Bank, there was no debate recorded which presumably means everyone at the Geneva Conference thought such transfers should be prohibited. The Report of Committee III to the Plenary merely notes that “the sixth paragraph consists of the fifth paragraph of the Stockholm text.” (p. 828). This appears to have been an insertion into the paragraph at the 1948 Stockholm Conference – the final preparatory Conference before States met to negotiate the final text in Geneva the following year. It does not appear in the 1934 Tokyo draft, the 1946 Report of the Preliminary Conference, or the 1947 Report of Government Experts. I cannot find any travaux for that 1948 Stockholm conference (if anyone knows how to locate them I would be very grateful), but I can only think that this was inserted precisely because many Germans were very happy to avail themselves of the opportunities afforded to them, as Germans, in Nazi occupied territory. Accordingly such transfers – of the nationals of the occupying power into occupied territory – do not need to be forcible in order to be prohibited.

    On a general note, I am disappointed at the level of distortion and invective in some of these comments, which seem better suited to a tabloid than a legal blog.

    To Mr. Medad: Your post about Article 80 of the UN Charter is plagiarized (you did not cite your reference) not from an expert analysis of the article but from an American Jewish online newspaper, Algemeiner which professes a “bold approach includes investigative reporting, lively features and opinions, presenting an unconventional and unique stand on politics and the social and cultural life of the American and international Jewish community.” The article you quote from in fact pushes the view that “under the Mandate, all of Palestine was reserved exclusively for the establishment of the Jewish National Home and future independent Jewish State”. Hardly unpartisan.

    http://www.algemeiner.com/2011/09/22/article-80-and-the-un-recognition-of-a-%E2%80%9Cpalestinian-state%E2%80%9D/

  24. John McHugo

    I admire the care and courtesy with which Iain has replied to his critics. What is disturbing about some of them is the culture of denial that clearly underpins their assertions. I suspect this is the reason why some of them have a tendency to argue on an ad hominem basis. It is my consistent observation that cultures of denial and ad hominem arguments go together.

    To take just one of his critics up on a point which Iain has not dealt with: on what basis can Eli seriously mention Julius Stone’s specious and discredited ex iniuria non oritur ius argument and claim that it can be relevant to whether Geneva IV applies to the West Bank, on the basis that Jordan did not have the sovereignty it once claimed there? In fact, any long since waived Jordanian claim is completely irrelevant. It is the overriding principle of self-determination that applies to the Palestinian People who inhabit that territory, and Eli chooses not to even mention this – let alone discuss whether Geneva IV applies to territory inhabited by a people entitled to self-determination.

    A lawyer has the obligation to examine all the arguments – those in favour of his case and those against – and not just to pluck any argument, however vexatious, out of thin air to defend the indefensible.

    John McHugo

  25. Joost

    Great stuff guys!

  26. Elliott A Green

    I would like to respond to four aspects of Prof Scobbie’s response to his critics, including myself:
    1- alleged apartheid in Israel or Judea-Samaria
    2- did the end of the mandate terminate the trust of which the Jewish people was the beneficiary as per San Remo and the League’s decision setting up the Jewish national home?
    3- deportation and transfer in GC 4:49
    4- ad hominem arguments

    I have not read the reasoning of the South African commission determining that Israel practiced “apartheid” and “colonialism.” However, I have read about South Africa under apartheid and that situation does not apply to Israel. Not to either side of the 1949 armistice line under Israeli control. I live in a neighborhood that anti-Israel partisans call “east Jerusalem” although such a term was not used before the 1947-49 war. Rather before 11-29-1947, the Old City was distinguished from the New City outside the Old City walls. Arabs live on my street and catercorner from my home. Some are Muslims and some Arabic-speaking Christians. The Muslims are noticeable because their womenfolk usually wear head wrappings. Otherwise they would not be distinguishable at first glance. Further, Arabs and Jews ride the public transportation system on the same buses and trams, and sit on the same seats, etc. Now apartheid South Africa segregated Blacks and whites on public transportation and in residential areas. Arabs go to the Hebrew University with Jews, sit in the same restaurants, visit public parks and beaches with Jews, etc etc. Actually, not only does the situation in Israel in re segregation not fit South African apartheid, it does not fit the looser jimcrow system once practiced in the United States. So I would have to conclude that deeming Israel an apartheid state has more to do with political prejudices, and perhaps anti-Jewish ethnic prejudices, than with the real empirical situation. Hence, the commission to which Prof Scobbie refers is suspect, and Ms Virginia Tilley is known to be an anti-Israel activist.

    2- I appreciate other contributions here on the meaning of the end of the mandate. Significantly, Prof Eugene Rostow has stated: “The withdrawal of Great Britain as administrator and trustee did not of course terminate the Mandate as a trust [for the Jewish people].”
    [ see Rostow’s statement in Eugene Rostow, “Resolution 242 at Twenty,” Jerusalem: Institute for Advanced Strategic and Political Studies, 1988, p 5.]

    The San Remo conference and the League of Nations set up the Jewish National Home, using the term used in the Balfour Declaration to be sure, however, San Remo and the League’s decisions had the force of law. That is, Rostow pointed out that the mandate was an international obligation willingly assumed by Britain to foster development of the Jewish national home. That the UK gave up its role did not terminate the Jewish national home. It has been shown above that UN charter, article 80, reconfirmed the Jewish people’s rights to the Jewish national home. The partition plan adopted on 29 November 1947 did not cancel the Jewish national home since it was a mere recommendation, as are all UN GA political resolutions according to the UN charter, arts. 10-14.

    I am busy right now but will respond on my points 3 & 4 as above, later on.

  27. To Sarah:

    a) plagiarized? I specifically placed quotation marks around the extract and indicated it was a counter-argument from someone else, a someone who has written a 700 book on the subject and happens to be a lawyer himself.

    b) And what do you mean by “hardly unpartisan”? btw, that should be “nonpartisan”. Every person’s view is partisan. The question is is it based on fact, a fair interpretation of the material, a review of previous information and data? Just because it was also published in a Jewish newspaper doesn’t make it wrong or suspect – for that would cancel out most of the claims made here and other places, no?
    I’m not saying you are being invective but you are displaying partisanship.

    c) as for this bit of yours:

    1. “(the land upon which Jewish communities have been built) has been expropriated” – if from private ownership, obviously wrong but if not? what then? was there any sovereignty they possessed in addition to private ownership? i don’t recall any Palestinian state existing there and in fact, when afforded the chance, like the Jews, they yielded the opportunity, preferring to launch a war of aggression in defiance of the UN – illegal to be exact – and lost. and continued that war through terror and lost again. how many times does the international law community unsympathetic to Israel intend to permit the Arabs to engage in illegal acts?

    and if the land wasn’t expropriated but purchased, legally, before 1948 and prior to 1967 of course, or even afterwards? do Jews have property rights? to land they owned for centuries in Hebron, for example, or Jerusalem or from a later period in various communities established during the Mandate period?

    2. In 1922-23, the international community, one the one hand, did not recognize something termed “the Palestinian peoples’ right to self-determination” and, on the other, neither did the Arabs who actually resided in the country because they petitioned and acted to unite the land with Syria. Odd, no?

    3. “to further its own economic ends (but not to the benefit of the local Palestinian population)”

    And if the local population does indeed benefit? roads, electricity, sewerage, water, academic institutions, agriculture, technical & scientific advances, etc.?

  28. Vilbel Scepe

    Elliot A Green,

    Your post is exactly the kind of denial that John McHugo referred to.

    The reason why “East Jerusalem” did not exist as a term, is because Al-Quds/Jerusalem always has been a predominantly-Arab city (as opposed to places like Tel Aviv). Before the war there was no need to refer to it as “East/Arab Jerusalem” or “West/Jewish Jerusalem”, as the place was overwhelmingly Arab. The city itself is a “gold mine” for anyone interested in the crime of apartheid that you fail to notice. Aggressive urban planning, house demolitions, forced evictions, revocation of living permits for Arab citizens, total neglect of infrastructure in predominantly Arab areas – all legally institutionalized by the municipal legislation – all in violation of the Hague Regulations and GC IV. The public transportation you are probably referring to (i.e. the new Jerusalem light rail) was also built on a confiscated Arab land. Headscarves is not the only way you can tell a difference between Arabs and other inhabitants of Jerusalem: look at the rooftops. As opposed to Jewish-settler inhabited buildings, Arab houses will have black water reservoirs on top, as the municipality refuses to connect them to the city water system.

    Israeli policy towards Arab inhabitants of East Jerusalem was pretty much summed up by Teddy Kolek, Jerusalem’s mayor from 1965 to 1993 – that’s almost 30 years of apartheid on his watch. I’ll leave you with a quote from the 1990 Israely Ma’ariv magazine:

    “We said things without meaning them, and we didn’t carry them out, we said over and over that we would equalize the rights of the Arabs to the rights of the Jews in the city-empty talk… Never have we given them a feeling of being equal before the law. [As mayor of Jerusalem, I] nurtured nothing and built nothing [for the Arabs]. For Jewish Jerusalem I did something in the past 25 years. For [Arab] East Jerusalem? Nothing! What did I do? Nothing! Sidewalks? Nothing. Cultural Institutions? Not one. Yes, we installed a sewage system for them and improved the water supply. Do you know why? Do you think it was for their good, for their welfare? Forget it! There were some cases of cholera there, and the Jews were afraid that they would catch it, so we installed [a] sewage and a water system against cholera.”

  29. Sarah

    Dear Mr Medad,

    Firstly, thank you for pointing out that I should have written “non-partisan”. I stand corrected (and there are a few other typos, including a misspelling of Prof. Kontrovich’s name, for which I hope he will accept my apology).

    Secondly, you did not indicate where your quote came from – where I come from that does count as plagiarism I’m afraid. An online search showed that it came from the newspaper I mentioned, written by a gentleman called Howard Grief. It is most definitely and unashamedly partisan but then I see he has in the past petitioned the Israeli Supreme Court to annul the Oslo Agreements and his bio on Algemeiner notes that “he originated the thesis that de jure sovereignty over all of Palestine was devolved upon the Jewish People at the 1920 San Remo Peace Conference.” It is a thesis, I’ll give it that. It also very selective in its interpretation of that conference which, like the Mandate itself also required that the civil and religious rights of existing non-Jewish communities not be prejudiced. That is not the same thing as saying that their right to self-determination lay in other parts of the Arab world – that would be like saying to a Bosnian during the break up of the Former Yugoslavia, that his land belonged to the Serbs because they wanted it and, as a European his right to self-determination meant he could go somewhere else in Europe. In short Mr. Grief does not recognise the right of Palestinians to self-determination; a position he has in the past apparently backed up with a petitioned the Israeli Supreme Court to annul the Oslo Agreements (at least according to this http://www.acpr.org.il/people/grief.html).

    As to your substantive points. Yes, I was talking about land that has been expropriated from private ownerships. Jews do have property rights to property acquired legally, just like anyone else, whether in the West bank, Israel or anywhere else. But it must be valid title. B’Tselem has documented some of the ways in which land has been acquired for settlements in the West Bank http://www.btselem.org/settlements/taking_control. In some cases the land is firstly requisitioned by the Military Commander. In principle there is no problem there – under Article 52 of the 1907 Hague Regulations, “requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation.” The problem however is that settlements soon appear on these lands. What I find troubling about this is that as, to be legitimate, settlements must have a clear security purpose, as the Israeli Supreme court held in the Elon Moreh case. Should settlers that move onto those lands requisitioned by the Military commander be seen as an example of civilians who take a direct part in hostilities? There are other ways in which land for settlements is acquired of course, including the direct seizure of private Palestinian land by settlers, which I know from your comment you also think is wrong.

    Settlements built in Area C/”State land” add another facet to the settlement programme. Much of this land was ‘empty’ on the maps when Israel occupied in 1967 – not because it was uninhabited or the land did not belong to anyone there (principally Bedouins), but because the cadastral survey instigated by the British in order to try to understand land ownership in Palestine, never reached that far before the end of the Mandate. It is a fault of both the Jordanian and the Israeli occupation regimes that this was never completed. A tragic one for the Bedouins who scratch out an existence there today and who have lived there since Ottoman times. But even these Area C settlements must show a clear security purpose and the principle point of Prof. Scobbie’s post – that Article 49(6) of the Fourth Geneva convention prohibits the transfer of an occupying power’s own nationals into occupied territory, whether voluntarily or by force.

    To your second point I have two words: “inter-temporal rule”. The right to self determination was only just emerging in 1922-1923 and then it was more a political than legal concept. It is now some 90 years later during which time we have had a World War since then, and a lot of development of international law, including the right to self-determination. It was only with the UN charter that self-determination became a legal right. As it was developed in the 1960s, it was concerned principally the eradication of ‘saltwater’ colonialism. The right of the Palestinian people to self determination began to be developed from 1969 with UNGA resolution 2535. In 1974, with UNGA resolution 3210 the PLO was granted official status at the UN as the representative of the Palestinian people. Israel finally recognised the Palestinian people’s right to self determination when it also recognised the PLO in an exchange of letters between PM Rabin and Chairman Arafat on 9th September 1993.

    And to point 3, I would love to see evidence of the local population having benefited.

  30. “If we cannot take “seriously” a unanimous ICJ ruling (fifteen to zero), when can we take the Court seriously?”

    In the case of Israel’s Security Fence, did the ICJ in fact give a RULING or offer an OPINION?

    Based on what an expert in international law told me:

    The ICJ merely rendered an opinion on the legality of “establishing settlements”

    While the Court is rendering its OPINION on the legality of ‘establishing settlements’, it is not making an actual RULING on anything.

    How could it?

    After all, Israel was not a party to the proceedings, which were clearly ADVISORY as the title to the case itself states.

    All the ICJ did was give its advice to the General Assembly on its opinion. It is entitled to its opinion, and Israel is entitled to its own opinion.

  31. To VS:

    “Al-Quds/Jerusalem always has been a predominantly-Arab city” is a prime example of partisan “history” and denial by anti-Zionists.

    (a) what does “always” mean? since 638 CE when they first conquered it? was that an illegal occupation?

    (b) before Al-Quds, the Holy/Sacred, it was called in Arabic “Beyt Al-Maqdas which means House of the Temple (that’s the Jewish Temple btw).

    (c) since the 1860s or even perhaps in the previous decade, the Jewish population of Jerusalem became the absolute demographic majority.

    (d) Teddy Kollek used the term “apartheid”? really? and btw, that quotation of his is his typical overblown exaggeration.

  32. Ladies and gentlemen, I think we’re getting a bit far from the basic legal questions concerning the applicability and meaning of 49(6), for which this is a useful forum, into broader questions, for which it is not.

  33. Sarah, an exercise in out-of-the-box thinking:-

    if one refers to Arab residency locations in the state of Israel as “Arab settlements”, does it follow that they cannot be there? cannot construct or plant there? when peace comes, do they need move into “Palestine”?

  34. Elliott A Green

    Before I finish responding to Prof Scobbie, Mr Scepe has furnished us with several gross errors. Jerusalem [called al-Quds in Arabic after the Hebrew/Jewish name ha-Qodesh] has not been “overwhelmingly Arab.” That is a gross falsehood which Scepe may have picked up from Arab/PLO/PA propaganda. In fact, Jerusalem has had a Jewish majority since the mid-19th century as reported by non-Jews who visited there, including an Arab researcher working for the Palestine Exploration Fund. His name was Nu`aman al-Qasatli [see Abdul-Karim Rafeq, “Political History of Ottoman Jerusalem,” in Ottoman Jerusalem, eds. S. Auld & R. Hillenbrand, Part I (London 2000), p 35]. Al-Qasatli’s population estimates refer to the year 1874. However, the French historian and diplomat, Cesar Famin, reported a Jewish majority in 1853. Other personalities and sources in various languages report a Jewish majority in Jerusalem for the 2nd half of the 19th century. Yet Scepe claims “Al-Quds/Jerusalem always has been a predominantly-Arab city.” Were kings David and Solomon Arabs, Mr Scepe? Did Tacitus and Pliny the Elder and Pausanias describe the city as Arab –or Jewish? Now, if by Arab Scepe means Arab-Muslim, then even at the beginning of the 19th century, Jews and Christians [not all of them Arabic-speaking] formed together a majority of the city’s population, although Muslims were the largest group. Jews became the largest single group in the city’s population as a result of a migration of Jews to Jerusalem from Safed which underwent a deadly earthquake in 1838. By the way, the French writer Chateaubriand visited Jerusalem near the beginning of the 19th century and described the humiliated, oppressed status of the Jews there then. Perhaps Mr Scepe would be good enough to read Chateaubriand’s Itinerary from Paris to Jerusalem and let us know if the state of the Jerusalem Jews then fits his definition of apartheid.
    Now on another point, Scepe’s source does not support his own assertion that the municipality did not build a water supply for the Arab population. He quotes Mayor Kollek as saying, inter alia: “we installed [a] sewage and a water system” [for the Arabs]. This depends of course on the authenticity of the Kollek quote. Now the quote also asserts that the municipality built a water supply and sewage system for the Arab neighborhoods for selfish reasons. Perhaps. Nevertheless, the quote contradicts Scepe’s own claim.

    To continue with the apartheid accusation, what would Scepe call the status of the Jordanian-occupied “West Bank” between 1948 and June 1967? In fact, Jordan had a law forbidding Jews to live in the kingdom. Was that good government or the justified assertion of “native” rights –or apartheid against Jews? While you ponder that query, do recall that –as I think Mr Medad stated– Jews were living in a number of places in the “West Bank”/Judea-Samaria region before 11-29-1947. And Jews were driven from their homes in those places starting in December 1947 and could not return after the war. Moreover, Jews had already been driven out of several towns in Judea-Samaria [and quarters of Jerusalem] during the period of British rule. Such were Gaza city, Jenin, Nabulus, and Hebron [1929]. In the case of Hebron, since only a few Jews tried to return to what was traditionally considered one of the four Jewish holy cities [along with Jerusalem, Tiberias & Safed], we might cite the apposite Biblical phrase: You murdered and did you also inherit [the property of your victims]? Must I remind Mr Scepe that the British authorities did not as a matter of policy try to protect Jews from Arab pogrom mobs?

    If I have time tomorrow I will get back to responding to Prof Scobbie.

  35. Marko Milanovic Marko Milanovic

    To all commenters:

    (1) Please be aware that this is both an academic and legal blog. We value opinion only if it reflects expertise, and the only kind of discourse we value is the civilized variety. Trite points such as the one that the ICJ’s advisory opinions are not legally binding bring nothing to the discussion, let alone semantic inquires as to whether they constitute ‘rulings.’

    (2) This comment thread has also degenerated into rather vague and generalized debates about the Israeli/Palestinian conflict. That was not the point of Iain’s post, and future comments should confine themselves strictly to the issues raised in the post. Factual disputes about what are from the legal standpoint complete irrelevancies such as which ethnic group constituted the majority in Jerusalem at some arbitrarily defined point in time do not interest the overwhelming majority of our readers.

    (3) There are plenty of other internet fora where largely fruitless debates such as the one here can be engaged in freely. Yet we are not one such forum, but the online outlet of one of the most pre-eminent scholarly journals in the field. If this comment thread continues as it has so far, we will close it – so before posting, please moderate yourself and consider whether the opinion you hold so dear is really one to be aired in a venue such as this one.

  36. Sarah

    I would like to second Professor Kontorovich’s last comment and also briefly reply to Mr. Medad to say that Israel, as you point out is a State. It is not under occupation and has not been under occupation since it was established so the question of ‘Arab settlements’ within the meaning of Article 49(6) doesn’t arise.

  37. To Sarah:

    if a “state of Palestine” is established somewhere and since for the past decade at least, Arab advocacy groups both in Israel and without have asserted that the Arabs of Israel are not “Israeli Arabs” but rather “Palestinians who are citizens of Israel” can those residency locations then become “Palestinian settlements”? After all, the residents themselves identify themselves as “Palestinians”.

    But, of course, my thinking was formed based on the the historical fact that Arabs conquered and then occupied and then constructed settlements in the territory that was the Jewish national homeland, as recognized in international law.

  38. Nigel

    Leaving the question of political motivations aside (although I found it suprising how a member of the panel went on to be the prime minister of Jordan – not quite the typical position one would expect a member of an independant judiciary to take up following retirement from a court), the ICJ “Construction of a Wall” judgmeny was quite frankly a sub-standard document in regards to what is respected from a legal body. If a student would have written a seminar paper on the subject of the legal regime governing the construction of such a barrier in the West Bank, the student would have probably received a B-.

    As Prof Robbie Sabel finely points out (see: Robbie Sabel, The International Court of Justice Decision on the Separation Barrier and the Green Line, 38 Isr. L. Rev. 316 (2005), “the Court’s opinion was seriously flawed from the outset”. It failed to analyze the status of Jordanian control over the West Bank while no consideration was given to the significance of the Armistice Line.

    It’s very hard to take seriously an opinion regarding the construction of anything on any piece of land (wherever in the world, whatever the purpose of the building is and whoever the developer is) when the actual legal significance of that segment of territory isn’t explained or justified in regards to its surroundings.

  39. Liron A. Libman

    Dear Professor scobbie,
    A few comments, I did not succeed in making them brief, thanks for your patience:
    1. Occupation and the fourth Geneva Convention (GC IV): In my opinion, the paramount wrong step of the Levy’s commission was the total denial of belligerent occupation law applicability to the territories in question. Its application is a factual question, independent of Jus Ad Bellum legality issues or rights to title or sovereignty clashes. Israel’s government formal position, to the best of my knowledge, never denied it, but to the contrary: based the administration of the territories on the assumption of belligerent occupation. However, the question what is the body of law that obliges Israel when implementing occupation in these territories is a different question. Here the position was that the 1907 Hague regulations apply, since they are considered customary law, while GC IV does not apply, as a matter of law, although the Israeli government took upon itself’ as a policy decision, to observe the humanitarian parts of this convention. For this reason, it is misleading to state that the Israeli Supreme court determined that GC IV applies: It has determined that there is a state of belligerent occupation. Furthermore, the Supreme Court has determined that the Hague regulations apply and it has referred, often, to GC IV, whether because of the government voluntary but partial acceptance of it, or to strengthen findings, when it can be shown that GC IV support them, too. However, to the best of my knowledge, the Israeli Supreme Court never discussed in depth and ruled on the applicability of GC IV in the territories.
    2. The customary nature of the prohibition of transferring your own population to occupied territory: I have checked the customary law study sources that you kindly gave in reference. With all due respect to military manuals and declarations, I always thought that the core of customary norms is practice (your actions are more significant than your nice words). I found no indication as to China’s practice in Tibet, Turkey’s practice in north Cyprus or Morocco’s practice in Western Sahara, all cases where nationals of the occupying power where transferred to the occupied territory. I like to know your opinion on that.
    3. Return to settlements previously inhabited: thank you for the reference to Judge Meron’s memo, which was new to me. Meron writes about settling Gush Etsion. This is an area in the territories where Jewish Settlements existed before 1948 and were conquered and destroyed by the Jordanian Legion during the War. Meron indicated that re-establishment of these settlements may be justified. There are other places in the west Bank where Jews lived for centuries before being deported in the 1948 or before, like the old city of Jerusalem, in east Jerusalem or Hebron (where a massacre in 1929 forced the Jewish community out). In your opinion, are these settlements illegal, too? Was the intention of the drafters of article 49(6) of GC IV to prevent the return of a population previously deported from the occupied territory?
    4. Implications of the Israeli-Palestinian interim agreement: the PLO (representing the Palestinian people) agreed that the issue of Israeli settlements will be left to the permanent status negotiations and until then, Israel holds control and responsibility over them. Isn’t it a significant factor when considering the settlements legality?
    5. ICJ bias: you have called for presenting studies to substantiate claims of bias of the court. Well, here is one, based on statistical analysis: Posner, Eric A. and De Figueiredo, Miguel, Is the International Court of Justice Biased? (December 2004). U Chicago Law & Economics, Olin Working Paper No. 234. Available at SSRN: http://ssrn.com/abstract=642581 or http://dx.doi.org/10.2139/ssrn.642581
    6. Facts and Law, content and style: (this comment is to Mr. Milanovic comment, too) I find some of the historical comments interesting. We are not discussing law in abstract (if there is such a thing) but law’s implementation on facts. If you get the facts wrong, the legal analysis will be flawed. Is important to remember that the Israeli-Arab conflict did not start in 1967, as some Palestinians try to conveniently persuade the international community. I understand the details may be tiresome , but ignoring them is not good legal scholarly. I think, Professor Scobbie, you have some fair points worth listening to, and some of the comments ad hominem were not appropriate, but if I may, some friendly advice: maybe if you refrained from words like “tinsel”, “perverse”, ” a travesty of legal argumentation” etc., not really necessary to make you point, some of the these reactions would have been avoided.
    Thanks for starting this interesting discussion.

  40. Elliott A Green

    To resume my rebuttal of Prof Scobbie’s defense of his arguments about GC 4:49in his response to me.

    3. If Scobbie is right then I think that we both have a quarrel with Henri Coursier. Indeed Coursier’s book which I quoted was meant to be introductory to the subject of the Red Cross movement. But such a book as a rule distills and concentrates the main points of its subject. Coursier presented in La Croix rouge internationale a list –in table form– of the five classes of action forbidden by GC IV: 49. One of the five classes was “deportation” presented as one single word, alone, without being accompanied by “transfer” or “voluntary migration” or “voluntary population movement.” Now if Coursier believed that deportation and transfer were two different concepts, he could easily have added one word or two or three or four to item “c” of his listing of forbidden classes of actions [which I quoted in my first comment above]. But he did not do that. Hence, a reasonable person will include that Coursier was referring only to coerced migration of various sorts. He himself indicates that the purpose of GC 4:49 was to forbid repetitions of the experience of Jews during WW2 when Jews were forced to migrate from most of Europe [and I would add North Africa] to the German death camps, which were mainly in Poland.

    What Prof Scobbie tells us in his response to me is that the Commentaries and Travaux on GC 4 tell us: “It would therefore have appeared to have been more logical…to have made the clause in question into a separate provision distinct from Article 49, so that the concepts of “deportations” and “transfers” in that Article could have kept throughout the meaning given to them in paragraph 1…” [Scobbie quoting the Commentaries].
    This is indeed problematic. The commentators tells us that key words in Article 49 change meaning. These are commentators reading the minds of those who drafted the GC 4 about ten years earlier and the commentators know that the drafters had different meanings in mind for the same words. Hardly good legal practice on the part of the drafters –or perhaps the commentators were confused or tendentious by the late 1950s. In any event Scobbie does not quote the commentators defining the words “deportation” or “transfer” as meaning voluntary migration or comprising that meaning. So he has not shown us what the terms deportation and transfer mean in GC 4:49:6 according to the commentators, nor does he show us how the meanings of those terms in Art. 49:6 differ from their meanings in Art. 49:1 which, he has been good enough to acknowledge, specifically forbids “forcible transfer.” Perhaps it was an oversight of the drafters of Art. 49 not to repeat the adjective “forcible” in Art 49:6 when mentioning transfer. Maybe the drafters assumed that everyone would realize that transfer is forcible by definition and that it was not necessary to repeat that adjective. It is my view that transfer and deportation are largely synonymous and always connote the application of force or coercion. I think that Art 49:1 sufficiently defines the meaning of transfer for the purpose of the whole article and that trying to claim a non-forcible form of transfer is seeking to force a definition.

    Moreover, since Art 49 and indeed all of GC 4 are concerned to protect those upon whom forbidden actions would be practiced, then the people upon whom transfer and deportation are practiced are the ones to whom Article 49 extends its protection, the transferees and deportees. This does not include the pre-war residents of the occupied territory who are protected in various ways by other parts of GC 4.

    By the way, if Judea-Samaria is not “occupied,” and there are many arguments in favor of that position, then GC 4 would not apply to that territory in any case. In this context, we can also look at accepted international practice in post-war Europe, specifically the expulsions/deportations of Germans [German citizens and ethnic Germans] from various lands in eastern Europe as part of the post-war settlement, and the subsequent repopulation of those territories by Poles, Russians/Soviets, Ukrainians, Czechs, etc. It seems that the 1975 Helsinki Accords accepted the post-1945 border changes and forced migrations.

    4. Prof Scobbie complains about the use of ad hominem arguments by his critics. Well, demeaning Justice Levy by calling his conclusions “legal tinsel” seems to be ad hominem. Then Prof Scobbie refers to various authorities who agree with his position. That too can be called an ad hominem argument and/or an appeal to authority. Likewise, Julius Stone is derided as an authority while John Dugard is exalted. Hence, we may say that ad hominem arguments are used by both sides.

  41. John McHugo

    I think it is worth remembering that the Germans did try to transfer some of their own civilian population into the Polish territories which they occupied in 1939. Is Mr Green trying to tell us that this was not a mischief which Article 49 (6) was intended to catch? Is he suggesting that such transfers, whether voluntary or not, were not intended to be caught by Article 49 (6)?

    If there is no record of this question being discussed in the travaux, the explanation may well be that such transfers were so self-evidently wrongful that no one queried it at the time. He has not come up with anything to suggest that it was argued in the travaux that such transfers should not be caught by Article 49(6). Unless he can do so, his argument based on the TP has to fail and we need look no further.

    Mr Green also says that there are many arguments in favour of the position that “Judea-Samaria” are not occupied. Really? If that is the case I think he should substantiate his position. I would have thought that the unanimous views of the judges (including Judge Buergenthal) in the advisory opinion on the Wall were conclusive evidence that he is wrong.

    John McHugo