What’s the law?
Almost no subject in contemporary Israel generates as much controversy (at home and abroad) as the issue of Jewish communities in Judea and Samaria. Let’s try and take as objective a view of the matter as we can. At this stage, let’s ask ourselves only one question; are Israel’s actions legal or not?
Legal status of the Territories: Occupied or Disputed?
Between it’s reestablishment in 1948 (after a hiatus of about 2,000 years) and the Six Day War of 1967, the Jewish State was a tiny thing. At its narrowest point only nine miles of Israel lay between the Mediterranean Sea and the boundary with Jordanian controlled territory. Jerusalem was divided.
On June 5, 1967 Israel went to war to lift the illegal blockade on Israeli ships traversing the Suez Canal[1]. In less than a week, Israel extended its control over Gaza[2], the Sinai Peninsula, East Jerusalem, Judea and Samaria and the Golan Heights.[3]
Israel distinguishes between greater Jerusalem, which has been annexed to Israel by Act of the Knesset, and the rest of the Territories that have not. Arab residents of Jerusalem are entitled to certain rights (they can vote in municipal elections, receive National Insurance payments etc.) and can obtain other rights by requesting Israeli citizenship. The rest of the world makes no such distinction, and when they speak of “occupied territory” they are including the Old City, the Western Wall and the Temple Mount as well as Jerusalem suburbs such as Ramat Eshkol and Gilo.
It has been the position of every Israeli government since 1967 that the Territories are undistributed areas of the Mandate of Palestine to which the Jewish National Home provision still applies. As such, Jews have no more, or less rights to them than to Tel Aviv. The 1948 ceasefire lines were never recognized by anyone as permanent borders and represented only the places where Arab armies were halted in their attempt to destroy the nascent Jewish state. The Territories are areas of disputed sovereignty to which Israel has a strong claim under International Law.
If the Territories are areas without a prior, legitimate sovereign, then they cannot be “occupied territory” under the definition of customary international law.[4] Hence Israel’s assertion that she is not bound by the provisions of the Fourth Geneva Convention (Geneva IV) when dealing with the Territories and their residents. Nonetheless, Israel has committed to apply the humanitarian provisions of Geneva IV, without prejudice to its claim on the Territories[5].
Others point to the sweeping nature of Geneva IV[6] as justification for its application to the Territories. Israel retorts that the very same clause cited limits the application to conflicts between states.[7]
Settlements: legal or illegal?
The legal status of the Territories is not the end of the matter. If they are not occupied, then Israel may have a strong claim to settle its citizens there. After all, the Mandate called for the “close settlement” of Jews on the Land.
But what if the Territories are, contrary to Israel’s position, occupied? And what of Israel’s unilateral decision to apply the humanitarian provisions of Geneva IV?
Article 49
The main accusation leveled against Israel (aside from incoherent rants about “stealing land”) is that the movement of Israeli citizens to the Territories constitutes a breach of Article 49 of Geneva IV. The relevant section of the text reads:
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
It’s this clause that is the basis for the accusation that the settlements are illegal. Its unequivocal and broad language seems to support such a position. Yet Israel’s High Court ruled that Article 49 clearly could not be taken as forbidding any population movement at all. It ruled that, since Geneva IV was drafted immediately following WWII, it should be understood in that context. The Nazis engaged in mass, forced population transfers in Czechoslovakia, Poland and Hungary before and during the war in order to displace the local populations and even endanger their separate existences as races. Indeed, the International Red Cross’ authoritative commentary to the Convention confirms that interpretation. Regardless of ones views on the wisdom or morality of settlement activity, it hasn’t displaced a single Arab from their homes in Judea, Samaria and Gaza.
1 The fact that Arab armies were massing at Israel’s borders with the express purpose of annihilating the Jewish state was not, technically, the legal basis for the war.
2 Most Western Governments are now non-committal on the issue of Gaza’s status. Campus radicals may use terms like “Gaza Ghetto” and “the world’s largest open air prison”, but even the UN’s official (“Palmer”) report of September 2011 recognized that “The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law”.
3 The Sinai was ceded to Egypt under the 1978 peace treaty with that State. Israel unilaterally withdrew its civilian population and troops from Gaza in 2005. Since then Israel has accepted no responsibility for the residents of Gaza, although she has not abandoned her theoretical claims on the area. The issue of the Golan Heights is a complex one and seldom comes up in debate. For all practical purposes the discussion on settlement is now limited to Judea and Samaria.
4 The Hague Conventions (1907) and the Geneva Conventions (1949) address issues of occupation of the territory of one state by the armed forces of another state (the “high contracting parties” mentioned in the conventions are sovereign states).
5 Despite many claims to the contrary, Israel’s own High Court of Justice has never ruled on the applicability of Geneva IV to the Territories. Although the court has invalidated certain orders and actions of the IDF on the grounds that they contradict Geneva IV, they have done so on the logical grounds that the orders were issued under the assumption that they comply with the convention. If they are found to not comply, they are void on what might be called a “can’t have your cake and eat it to” principle.
6 “the present Convention shall apply to all cases of declared war or of any other armed conflict…”
7 “…which may arise between two or more of the High Contracting Parties” Both citations from Article 2.