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http://www.thedailybeast.com/articles/2013/03/15/of-course-settlements-are-illegal.html
Content Section
Of Course Settlements Are Illegal
Mar 15, 2013
One of the most tiresome things
about a long-term engagement with the Israeli-Palestinian conflict is
the endless need to push back against those who insist on living in a
more pleasurable but entirely fictive alternate reality. For many on
both sides, the realities on the ground, or the legal and political
facts, are simply too painful or disruptive to be acceptable. So they
neurotically retreat into an alternate universe in which everything
feels better.
There
are innumerable examples of this on the Palestinian side, but among
hard-core supporters of Israel, one of the most persistent imaginary
realities is that there is no occupation and/or Israeli settlement
activity is not prohibited by international law. Writing in the Jewish Journal, the reliably hawkish David Suissa has just engaged in an extended exercise in this kind of sophistry.
The reason this is such a
persistent shibboleth of hawkish pro-Israel propaganda is that occupying
powers are bound to abide by the extensive international law and treaty
obligations delineating the rights and responsibilities that accrue to
this status. And the problem is that so much of what Israel has been
doing in the occupied Palestinian territories is in direct and
undeniable contravention of international law.
Like so many before him, Suissa makes two manifestly false claims. First, he flatly denies the territories are occupied. Second, he asserts that Israel has "a legal right to settle in the West Bank." He urges Israel to find a good lawyer to make these claims. But no serious attorney is going to take on this case, because it can't possibly be maintained.
Like so many before him, Suissa makes two manifestly false claims. First, he flatly denies the territories are occupied. Second, he asserts that Israel has "a legal right to settle in the West Bank." He urges Israel to find a good lawyer to make these claims. But no serious attorney is going to take on this case, because it can't possibly be maintained.
The
fact that the territories seized by Israel in the 1967 war are occupied
and that Israel is the occupying power is affirmed by a mountain of
United Nations Security Council resolutions (the very body authorized by
the U.N. Charter to make such determinations). These resolutions were
all voted for or permitted, and sometimes drafted, by the United States.
They begin with Security Council Resolution 242
of November 22, 1967. 242 begins by “Emphasizing the inadmissibility of
the acquisition of territory by war," which means that Israel cannot
claim to have acquired any territory in the 1967 war. This is a central
pillar of the U.N. Charter itself. Second, 242 calls for the "Withdrawal
of Israel armed forces from territories occupied in the recent
conflict."
So
the very first Security Council resolution following the 1967 war
clearly identifies the territories as occupied, and Israel as the
occupying power. There followed a mountain of subsequent Security
Council resolutions—all voted for or approved by the United States—which
reiterate that the territories are occupied and Israel is the occupying
power.
Of particular note is Security Council Resolution 476
(1980), which "Reaffirms the overriding necessity to end the prolonged
occupation of Arab territories occupied by Israel since 1967, including
Jerusalem." So the U.N. Security Council was thoughtful enough to
clarify that not only is Israel the occupying power in all the
territories conquered in 1967, and obliged to end its occupation of
them, but also specified that this includes Jerusalem.
There are many other aspects of international law that affirm the occupation as a legal and political fact, including the advisory opinion
issued by the International Court of Justice on the West Bank
separation barrier. The bottom line is that it is a legal and political
fact, not an opinion or subject of dispute, that the territories seized
in 1967 are under occupation and Israel is the occupying power. One may
have one's own opinions, but not one's own facts. And in the matter of
law, we have competent authorities that serve as arbiters of
international legal and political fact, including the Security Council
and the ICJ. Indeed, no competent authority has ever challenged this
idea, although biased individuals have tried to argue against it with
any amount of spuriousness.
Having
established that the territories are occupied, and that Israel is
indeed the occupying power, there can be no question that settlement
activity is strictly prohibited. The clearest prohibition comes from the
Fourth Geneva Convention, Article 49, Paragraph 6,
which reads: "The Occupying Power shall not deport or transfer parts of
its own civilian population into the territory it occupies."
Some
apologists for the settlement project have tried to argue that
"transfer" in Paragraph 6 only refers to involuntary transfer, not
voluntary settlement. This is clearly false. First, there are numerous
other provisions in the Convention that prevent involuntary transfer of
civilians. Second, the concurrent Red Cross commentary intended to serve
as a contemporaneous explanation for the thinking informing each aspect
of the Convention deals with Paragraph 6 at length.
This vital commentary demonstrates
that Paragraph 6 was adopted to protect the human rights of the
civilian population living under occupation, not civilian citizens of
the occupying power: "It is intended to prevent a practice adopted
during the Second World War by certain Powers, which transferred
portions of their own population to occupied territory for political and
racial reasons or in order, as they claimed, to colonize those
territories. Such transfers worsened the economic situation of the
native population and endangered their separate existence as a race."
As
a further clarification, the commentary adds, "It should be noted,
however, that in this paragraph the meaning of the words ‘transfer’ and
‘deport’ is rather different from that in which they are used in the
other paragraphs of Article 49, since they do not refer to the movement
of protected persons but to that of nationals of the occupying Power."
In
other words, according to the Red Cross, which oversaw the drafting of
the Convention, Article 49, Paragraph 6 is intended as a human rights
protection for people living under foreign military occupation who have
the right not to have their land colonized. This is precisely what
Israel is doing, and as noted above, as an occupying power they are
fully bound to respect all of the Fourth Geneva Convention, including
Article 49, Paragraph 6. The settlement project is thus not only
strictly prohibited, it is illegal because it is a direct violation of the human rights of Palestinians living under Israeli occupation.
From the outset of the occupation and the settlement project, the Israeli government has been aware of this. A top-secret memorandum
from September 18, 1967 by T. Meron, a Legal Adviser to Israel’s
Ministry of Foreign Affairs, is blunt about the legal situation facing
the prospect of settling the occupied territories.
Meron
determined that, "The prohibition [against settlement activity in
Article 49] therefore is categorical and 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. If
it is decided to go ahead with Jewish settlement in the administered
territories, it seems to me vital, therefore, that settlement is carried
out by military and not civilian entities. It is also important, in my
view, that such settlement is in the framework of camps and is, on the
face of it, of a temporary rather than permanent nature.”
So,
from the outset, the Israeli government was fully aware that, at least
from the point of view of international law and the unanimous consensus
of all other governments, its settlement project was, by definition,
illegal.
The
final refuge that Suissa and many others, including some he cites, seek
in trying to deny the legal and political fact of occupation and the
prohibition against settlement activity and so much of the rest of what
Israel has done in the occupied Palestinian territories, is to claim
that there is no occupation because there was no clear sovereign in the
territories in 1967. However, there is no aspect of international law
that requires a clearly established prior sovereignty for a territory to
be considered under military occupation. These arguments have never
held any water in the Security Council, at the ICJ or any other
international or multilateral legal or diplomatic body, or with any
government outside of Israel.
Indeed,
even the government of Israel itself is ambiguous about whether the
territories are occupied or not. Sometimes it openly cites the ongoing
occupation to justify military activities—such as some instances of the
seizure of land for military purposes—or other measures that are, in
fact, consistent with the rights of an occupying power under
international law. But it simultaneously denies there is any occupation
when it comes to settlement activity and other human rights abuses
against Palestinians prohibited to occupying powers under international
law.
Suissa
insists there is no occupation but a "dispute." We hear this a lot from
supporters of the occupation, settlements and annexation. But if there
is a “dispute,” it is not between Israel and the Palestinians or the
Arabs. It is between Israel and every single other government and
international authority in the entire world.
It's
a little bit like proclaiming that while everyone else observes the sky
is obviously blue, I insist it is green, and therefore this somehow
constitutes "a dispute." This is not a dispute. It is a willful and
manipulative distortion of clearly established facts in a self-serving
manner by an interested party that is trying to rationalize actions that
are manifestly illegal. These actions—especially settlement activity in
areas under military occupation—have been prohibited specifically
because they are a gross human rights violation.
The
experience of World War II demonstrated that peoples living under
occupation must be protected from having their lands seized from them
and colonized through force of arms. In the immediate aftermath of that
terrible conflict, this was explicitly and categorically codified in the
Fourth Geneva Convention, to which Israel is a signatory.
That's not an opinion. That's a legal and political fact.
