By Iain Scobbie
Eric Rozenman’s Dec. 11 Op-Ed article, “Israeli settlements are more than legitimate,” is legal nonsense that disregards history. He is correct in his observation that Article 6 of the Mandate for Palestine permitted “close settlement by Jews on the land, including state lands and waste lands not required for public purposes,” but the conclusions he then draws are flatly wrong.
Rozenman fails to acknowledge that since its inception, Israel has never claimed legal title to all of the territory of the former British Mandate of Palestine. On the contrary, it has repeatedly denied such a claim in official statements and acts. On May 22, 1948, soon after Israel’s declaration of independence, the country’s representative to the U.N. Security Council stated that its territory was “the area outlined in the map appended to the resolution of 29 November 1947, as constituting the area assigned to the Jewish state” — namely that area accorded to the nascent Israel by the U.N. Partition Plan contained in General Assembly Resolution 181. This did not include the West Bank. The same view was consistently expressed by Israeli courts. In 1950, Israel’s Supreme Court ruled, “The territory of the state of Israel does not coincide with all the territory under the former mandate.” Israel thus refused to be seen as the successor state to the Palestinian mandate. Accordingly, it refused to accede to treaties that bound the mandate and refused to pay the public debt that Palestine owed to Britain. How then can there be a right of Israeli settlement in the West Bank, territory to which Israel itself has never made legal claim?
Rozenman argues that Article 49 of the Fourth Geneva Convention of 1949, which prohibits the transfer of parts of a state’s population into territory it occupies, does not apply to nonforcible population transfers. On the contrary, as the authoritative commentary of this convention prepared by the International Committee of the Red Cross states, this prohibition was adopted precisely to prohibit the colonization of occupied territories. It does not distinguish between forcible and nonforcible population transfers. Article 49 prohibits any and all population transfers from the occupying power to occupied territory. In 2004, the International Court of Justice unanimously found that Israeli settlements in the occupied Palestinian territory breached Article 49.
As a longtime observer of the International Court, I can state without fear of contradiction that it is easier to get cats to dance in a parade in costume than to obtain a unanimous ruling from the International Court.
Israel knew soon after the Six-Day War in 1967 that settlements in the occupied territory were illegal. As Gershom Gorenberg recounts in his book, “The Accidental Empire: Israel and the Birth of Settlements,” Theodor Meron, then legal advisor to Israel’s ministry of foreign affairs and a distinguished international lawyer specializing in the law of armed conflict and human rights, advised the Israeli government in September 1967 that settlements in the newly occupied territory were prohibited by Article 49. (Click here for a facsimile of Meron’s opinion in Hebrew at Gorenberg’s website; an English translation is available here.)
The fundamental point about settlements, then, is not that they obstruct diplomacy — which they do — but rather that they are illegal. Occupied territory is not under the sovereignty of the occupant. It cannot treat the territory it occupies as it sees fit. An occupant’s powers are circumscribed by international law, which unequivocally prohibits the settlement of part of its population, whether forcible or voluntary, in that territory. While this prohibition arises from Article 49, Article 1 requires parties not merely to respect the terms of the convention in their own conduct but also to ensure that others do. All states are party to the Geneva Conventions, therefore all states have the duty to ensure that Israel’s illegal policy of creating settlements in occupied Palestinian territory ceases without further delay.
Iain Scobbie, the Sir Joseph Hotung Research Professor in Law at the University of London, is coauthor of “The Israel-Palestine Conflict in International Law: Territorial Issues,” which is available for downloading here.