The Metaphysics of Article 49

Israel signed the Geneva Convention relative to the Protection of Civilian Persons in Time of War (better known as the Fourth Geneva Convention (“GCIV”)) in 1953. Since 1967, with the advent of the settlers’ movement, opponents to Israeli settlement on the other side of the “Green Line” have pointed to Article 49 of GCIV, which on its face suggests that settlement activity violates international law. With this in mind, Prime Minister Benjamin Netanyahu created a commission to study Article 49’s relevance to Israel. Its conclusions are uncertain.

The term “international law” is a treaty-based body of law wherein signatories to a treaty are bound by the terms of that treaty. Israel, as a signatory of the GCIV, is obligated to comply with all terms of GCIV.

Article 49 of the GCIV treaty, in relevant part, provides that “[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Facially, Israel, as the occupying power, violated international law by allowing and incentivizing civilians to live in territories captured during the 1967 Six Day War. Article 49 is a thorn in Israel’s side.

In January 2012, rising opposition to Israeli construction in the West Bank compelled Prime Minister Binyamin Netanyahu to establish a committee tasked with assessing the construction’s legality. Judge Edmond Levy headed that commission, which produced the Levy Commission Report (“LCR”). The LCR concluded that Israel is not in violation of Article 49 and, as such, Israeli construction in the West Bank and other areas captured in 1967 are legal.

First, the LCR posited that Israel does not qualify as an “occupying power” because Judea and Samaria and the Gaza Strip were never part of an independent Arab state. At the time, Egypt did not claim sovereignty over the Gaza Strip and Jordan was not a lawful sovereign over Judea and Samaria. Therefore, according to the LCR, Article 49 is not applicable to Israeli settlements because Israel is not an “occupying power.”

In a strict legal context, this argument might be specious. In 1947, the U.N. passed resolution 181, which identified borders for a Jewish state and an Arab state. The Jewish population of Palestine accepted the notion while the Arab population rejected it. In its Declaration of Independence, Israel cited that U.N. resolution by “calling for the establishment of a Jewish State in Eretz-Israel … This recognition by the United Nations of the right of the Jewish people to establish their State is irrevocable.” By relying on the resolution, Israel recognized an Arab sovereign in 1947. In response to an all-out attack twenty years later, Israel took control of the area. Subsequently, Israelis settlers created a new frontier for Jewish settlement. Based on its declaration of independence, Israel recognized Arab sovereignty of Judea, Samaria, and Gaza and then had a population move into that area.

On the other hand, the reference to resolution 181 in the Declaration of Independence may not be the equivalent of Arab sovereignty recognition. The U.N. recognized the right to a Jewish state. Israel referenced that recognition, but not a state that the Arabs themselves rejected. As such, there was never Arab sovereignty over Judea, Samaria, and Gaza.

Second, the LCR pointed to the language in Article 49 that states “deport or transfer,” which is not the reality of those who settled in the disputed areas. Settlers willingly chose to live in these areas, for ideological or other reasons, not because the Israeli government deported or transferred them there.

Such an argument expresses the belief that settlers populated the territory captured in 1967 through free will. Since the inception of the settler movement, the Israeli government offered incentives and subsidies for those pioneers contributing to the creation of greater Israel. While purely ideological reasons compelled many settlers to expand Israel’s borders, a significant portion of settlers acted due to financial and economic considerations. This metaphysical discussion, whether settler activity constituted free will, would determine Israel’s status under Article 49.

From a legal perspective, Article 49 of GCIV challenges the dream for Greater Israel. The LCR provided arguments why Article 49 does not inhibit that dream. However, based on the above, those arguments are murky and ambiguous.