The chickens come home to roost

Since the inception of the settlement policies in the occupied territories of various Israeli governments the considered opinion of most international lawyers, and international institutions, including the UN Security Council and the International Court of Justice, has been that establishment of these settlements is illegal. This was also the opinion of the legal adviser to the Israel Foreign Ministry, who, in a legal opinion requested by the prime minister in September 1967, warned that establishment of settlements for Israelis in the newly occupied territories would be illegal.

The legal opinion on the illegality of settlements relies not only on article 49(6) of the Fourth Geneva Convention, which forbids an occupying power from transferring part of its civilian population into the occupied territory, but also on the principles of customary international law according to which the only interests the military commander in occupied territory may consider in exercising his powers are his military interests and the interests of the local population. These principles were presented by the Supreme Court of Israel in a leading judgment delivered in 1983 in which the Court stated:

The considerations of the military commander are, on the one hand, ensuring his security interests in the [occupied] area, and, on the other hand, ensuring the interests of the civilian population in the area. Both of these considerations are directed towards the [occupied] area itself. The commander is not allowed to consider the national, economic or social interests of his own state, to the extent that they do not have implications for his security interests in the area or the interests of the local population. Even military needs are his military needs in the area, and not national security interests in the wide sense. An area subject to belligerent occupation is not a field open to economic or other exploitation.(HCJ 393/82).

The view that establishment of settlements in the Occupied Territories is illegal was presented in an opinion of the legal adviser to the US Department of State in 1978. In 1980 the UN Security Council unanimously passed a resolution in which it determined “that Israel’s policy and practices of settling parts of its population and new immigrants parts of its population and new immigrants in [the territories occupied by Israel in 1967] constitute a flagrant violation of the Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East. ” 

In that same resolution the Security Council called upon “all States not to provide Israel with any assistance to be used specifically in connection with settlements in the occupied territories.”

In two Advisory Opinions of the International Court of Justice the Court also held categorically that establishment of settlements in the occupied territories is illegal. It is worthy to note that in the Advisory Opinion relating to the separation barrier, even the late Judge Thomas Buergenthal, who was of the opinion that the Court should refrain from delivering the Advisory Opinion, saw fit to state in his Declaration that he agreed that in establishing settlements in the occupied territories Israel was violating Article 49 (6) of the Fourth Geneva Convention.

All Israeli governments that have served since June 1967 have ignored the opinions of the legal adviser to the Foreign Ministry, legal advisers of the US and other states, the US Security Council and the International Court of Justice. Rather they have latched onto an opinion originally expressed by the late Professor Eugene Rostow, who tried to justify settlements on the basis of the argument that the League of Nations Mandate over Palestine still applies in those parts of Palestine which did not become part of a recognised state, and that the Mandate guaranteed the right of Jews to settle in all parts of Mandatory Palestine. 

Both parts of Rostow’s arguments have been discredited, and in all events have received absolutely no traction amongst other states and international organisations. That Israeli leaders assume that foreign states should prefer the view of one American law professor and a few Israeli lawyers, rather than that accepted by the UN Security Council and the International Court of Justice, shows how far removed they are not only from international law, but from the reality of international relations. 

It should be added that the Israeli government cannot even cite the Israel Supreme Court in support of its view on the settlements, since the Court has consistently refused to rule whether the settlements are legal or not. In the original decision in which Justice Alfred Witkon explained that he would not rule on the legality of the settlements under international law, he stated expressly that this should not be interpreted as taking a position on their legality.

Israel is a party to the Fourth Geneva Convention under which it undertook not only to refrain from transferring its own civilians into the occupied territories but to protect all local inhabitants of the territories from “all acts of violence or threats thereof and against insults and public curiosity.” 

It has failed miserably in carrying out the latter obligation. One does not have to be an international lawyer in order to describe what is happening in the West Bank as war crimes. A number of former Israeli generals who have toured the area recently have described the situation in harrowing terms, including stating that Israel is carrying out ethnic cleansing, a serious war crime, and possibly a crime against humanity.

All states in the world are parties to the Geneva Conventions and they have undertaken an obligation not only to respect the Conventions but also to ensure respect for them. As understood by the International Court of Justice and the International Committee of the Red Cross this obligation means that States parties to the Convention must adopt measures to ensure that other states respect the Conventions. 

For a long time many European states have criticised the settlement policy and the lack of law enforcement against settler violence, but this criticism fell on deaf ears. Eleven states have now adopted non-forcible measures in order to pressure Israel to comply with the Fourth Geneva Convention. Rather than criticising these states, which are acting well within their legal rights, and possibly fulfilling their legal obligations, Israeli leaders would do well to take active measures to stop the violence and extend protection to the Palestinian residents of the West Bank.

Israeli decision-makers somehow imagined that they could ignore international law, and rely on contrived legal arguments that are not accepted by Israeli and foreign experts in international law, foreign states, the UN Security Council and the International Court of Justice. They got away with this for a long time. In fact for too long. But have the chickens now come home to roost?