Professor DM Phillips on The Myth of Settlement Illegality

Excerpts from an article by David M. Phillips, professor at Northeastern University School of Law, in December 2009 Commentary entitled: "The Illegal-Settlements Myth". My comments are in [] brackets.

The conviction that Jewish settlements in the West Bank are illegal is now so commonly accepted, it hardly seems as though the matter is even open for discussion. But it is. Decades of argument about the issue have obscured the complex nature of the specific legal question about which a supposedly overwhelming verdict of guilty has been rendered against settlement policy...the idea that they are imprudent is quite different from branding them as illegal. Indeed, the analysis underlying the conclusion that the settlements violate international law depends entirely on an acceptance of the Palestinian narrative that the West Bank is “Arab” land. Followed to its logical conclusion—as some have done—this narrative precludes the legitimacy of Israel itself.

...The question of the legal status of the West Bank, as well as Jerusalem, is not so easily resolved. To understand why this is the case, we must first revisit the history of the region in the 20th century.

...referred to nowadays as “Palestinian” land, at no point in history has Jerusalem or the West Bank been under Palestinian Arab sovereignty in any sense of the term...the League of Nations blessed Britain’s occupation with a document that gave the British conditional control granted under a mandate. It empowered Britain to facilitate the creation of a “Jewish National Home” while respecting the rights of the native Arab population. [note: the term "Arab" does not appear in any of the major legal documents between 1917-1923 relating to the reconsitution of the Jewish National Home. "Non-Jews" is what was used which includes Arabs - Christian or Muslim - , Christian non-Arabs, Hindus, Bahais, etc. In fact, "other sections" as a definition of demography appears in Article 6. See below.]

...After the cease-fire that ended Israel’s War of Independence in 1948, Jordan annexed both the West Bank and East Jerusalem. But, as was the case when Israel annexed those same parts of the ancient city that it would win back 19 years later, the world largely ignored this attempt to legitimize Jordan’s presence. Only Jordan’s allies Britain and Pakistan recognized its claims of sovereignty. [note: it appears that even Pakistan never officially granted diplomatic recognition to the new act of unification. see "Pakistan and the West Bank: A Research Note" by Sanford R. Silverburg in Middle Eastern Studies, Vol. 19, No. 2 (Apr., 1983), pp. 261-263 ]

...Thus, if the charge that Israel’s hold on the territories is illegal is based on the charge of theft from its previous owners, Jordan’s own illegitimacy on matters of legal title and its subsequent withdrawal from the fray makes that legal case a losing one. Well before Jordan’s renunciation, Eugene Rostow, former dean of Yale Law School and undersecretary of state for political affairs in 1967 during the Six-Day War, argued that the West Bank should be considered “unallocated territory,” once part of the Ottoman Empire. From this perspective, Israel, rather than simply “a belligerent occupant,” had the status of a “claimant to the territory.”

To Rostow, “Jews have a right to settle in it under the Mandate,” a right he declared to be “unchallengeable as a matter of law.” In accord with these views, Israel has historically characterized the West Bank as “disputed territory” (although some senior government officials have more recently begun to use the term “occupied territory”).

Because neither Great Britain, as the former trustee under the League of Nations mandate, nor the since deceased Ottoman Empire—the former sovereigns prior to the Jordanians—is desirous or capable of standing up as the injured party to put Israel in the dock, we must therefore ask: On what points of law does the case against Israel stand?

International-law arguments against the settlements have rested primarily upon two sources. First are the 1907 Hague Regulations...Second is the 1949 Fourth Geneva Convention...While Israel was not and is not a party to the Hague Regulations, the Israeli Supreme Court has generally regarded its provisions as part of customary international law...

...Article 46 of the Hague Regulations bars an occupying power from confiscating private property. And it is on this point that the loudest cries against the settlements have been based...After the Elon Moreh case, all Israeli settlements legally authorized by the Israeli Military Administration (a category that, by definition, excludes “illegal outposts” constructed without prior authorization or subsequent acceptance) have been constructed either on lands that Israel characterizes as state-owned or “public” or, in a small minority of cases, on land purchased by Jews from Arabs after 1967. The term “public land” includes uncultivated rural land not registered in anyone’s name and land owned by absentee owners, both categories of public land under Jordanian and Ottoman law. [note: The League of Nations Mandate, ART. 6, stipulates quite clearly that "The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.]

...Settlement opponents more frequently cite the Fourth Geneva Convention these days for their legal arguments. They specifically charge that the settlements violate Article 49(6), which states: “The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies.”...To settlement opponents, the word “transfer” in Article 49(6) connotes that any transfer of the occupying power’s civilian population, voluntary or involuntary, is prohibited. However, the first paragraph of Article 49 complicates that case. It reads: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” Unquestionably, any forcible transfer of populations is illegal. But what about voluntary movements with the antecedent permission or subsequent acquiescence by the occupant?

The response of settlement critics is that certain tax subsidies and other benefits conferred by the Israeli government or the World Zionist Organization that may have encouraged Jews to settle in the West Bank constructively amounts to a “transfer.” This interpretation would have greater traction under a l977 [sic!] protocol to the Geneva Convention or under the Treaty of Rome, which established the International Criminal Court, but Israel is a signatory to neither (both covenants were heavily influenced by anti-Israel nongovernmental organizations and the PLO).

...To Julius Stone, an international-law scholar, “the word ‘transfer’ [in 49(6)] in itself implies that the movement is not voluntary on the part of the persons concerned, but a magisterial act of the state concerned.”

At a legal subcommittee meeting at Stockholm seemingly attended by fewer than 10 active participants, a Danish Jew named Georg Cohn proposed the sentence, albeit with a wider scope, that became Article 49(6). Cohn’s initial sentence, in French, would have prohibited an occupying power from deporting or transferring a “part of its own inhabitants or the inhabitants of another territory which it occupies” into the occupied territory.

According to Cohn’s own report to the Danish foreign ministry, his language was directed at an event the aspects of which were little known outside Scandinavia. In the waning days of World War II, as the Russian military advanced westward through the Baltic states and the Germans retreated, the Germans rightly feared that the Russians would take retribution on all German citizens and ethnic Germans who had collaborated with the Nazis. The Germans evacuated more than 2 million people into boats, hoping to land them in northern Germany...

Cohn may also have been motivated to propose the language that later became Article 49(6) in light of his own strong Jewish identity. The original language on deportations presented to the Stockholm conference would not have prevented Germany from deporting its own Jews to slave and extermination camps in Poland and other occupied countries, nor would it have prevented the Germans from sending Danish Jews found in Germany to concentration camps in occupied territories, sending either Hungarian or Italian Jews to Auschwitz, and/or from transplanting Germans to portions of Poland and other occupied countries. Cohn’s original language would have criminalized all these practices.

Other participants in Stockholm, led by Albert J. Clattenburg Jr. of the United States, thought Cohn’s provision too broad. The phrase “or the inhabitants of another territory which it occupies” was deleted, and “civil” was inserted before “inhabitants.”

...As the Final Report to the delegates stated while explaining the differences between various articles dealing with the right of an occupying power to evacuate an area, primarily in the interest of the security of the civilian population’s security: “. . . In the end the Committee had decided on a wording that prohibits individual or mass forcible removals as well as deportations of protected persons from occupied territory to any other country, but which permits voluntary transfers.”

That is a key reason why Julius Stone termed the anti-settlement interpretation “an irony bordering on the absurd” and commented: “Ignoring the overall purpose of Article 49, which would inter alia protect the population of the State of Israel from being removed against their will into the occupied territory, it is now sought to be interpreted so as to impose on the Israel government a duty to prevent any Jewish individual from voluntarily taking up residence in that area.”

There is simply no comparison between the establishment and population of Israeli settlements and the Nazi atrocities that led to the Geneva Convention...

...What distinguishes a system of “law” from arbitrary systems of control is that similar situations are handled alike. A system where legal principles are applied only when it suits the political tastes of anti-Israel elites is one that has lost all credibility. The loose use of international law, disproportionately applied to Israel, undermines the notion that this is “law” entitled to authoritative weight in the first place.

Julius Stone referred to the absurdity of considering the establishment of Israeli settlements as violating Article 49(6):...Irony would thus be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that . . . the West Bank . . . must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context exclude so tyrannical a reading of Article 49(6).

...Concluding that Israeli settlements violate Article 49(6) also overlooks the Jewish communities that existed before the creation of the state in areas occupied by today’s Israeli settlements, for example, in Hebron and the Etzion bloc outside Jerusalem [as well as in Gaza City evacuated forcibly in 1929 as well as Shchem (Nablus), or Kfar Darom in the Gaza District overrun by Egyptian armed forces in 1948, or Bet HaAravah at the Dead Sea conquered by Jordan, etc.]...

...the international law of occupation runs the risk of freezing one occupier’s conduct in place, no matter how unlawful.

...The ultimate end of the illicit effort to use international law to delegitimize the settlements is clear—it is the same argument used by Israel’s enemies to delegitimize the Jewish state entirely. Those who consider themselves friends of Israel but opponents of the settlement policy should carefully consider whether, in advancing these illegitimate and specious arguments, they will eventually be unable to resist the logic of the argument that says—falsely and without a shred of supporting evidence from international law itself—that Israel is illegitimate.

[note: Stephen Schwebel's opinion should be included - "...appreciation of the fact that Israel's action in 1967 was defensive, and on the theory that, since the danger in response to which defensive action was taken remains, occupation - though not annexation - is justified, pending a peace settlement. Those distinctions may be summarized as follows: (a) a State acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense; (b) as a condition of its withdrawal from such territory, that State may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use of force against it of such a nature as to justify exercise of self-defense; (c) where the prior holder of territory had seized that territory unlawfully, the State which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title......it follows that modifications of the 1949 armistice lines among those States within former Palestinian territory are lawful (if not necessarily desirable).]

I would also very much want to hear Professor Phillip's opinion on the US State Department's practices of (a) refusing to register American citizens born in Jerusalem as being born in Israel by leaving the "state" line blank; and (b) preferring as a first choice for an American citizen born in a location east of the former Green Line and west of the Jordan River the term "West Bank". [See here and also here.]