The illegality of Israel’s civilian settlements in territories it occupied in 1967 is one of the few clearly settled issues in international law. The Geneva Conventions provisions on this issue are clear and explicit: civilian settlement activities are considered grievous breaches and war crimes. Furthermore, the issue was litigated and decided by the International Court of Justice in a rare, almost unanimous ruling of 15 judges in the case of Israel’s Separation Wall in 2004. The lone dissenting judge in that case wrote that even he agrees with the majority on the issue of the applicability of the Geneva Conventions.
So how does Israel justify such a clearly blatant violation? The answer lies in a number of arguments offered over the years, both in courts (primarily the Israeli High Court) and in legal publications and the press, as well as statements of Israeli officials. Following is a list of such arguments with a brief response, in bold italics, to each:
No distinction like this has ever been known in international law, and Israel has not even tried to specify which provisions of the Geneva Conventions it considers to be “humanitarian.”
This argument explains how the Israeli High Court, as a domestic court, avoided the obligation to apply the Geneva Conventions, but it does not address Israel’s international obligation to follow the Geneva Conventions, which it signed.
The authoritative Pictet Commentary on the Geneva Convention, issued by the International Committee of the Red Cross, addresses this very argument and specifies that any movement of civilians into or out of the occupied territories is illegal. It does not accept this interpretation.
Whatever the merits of that argument under Israeli domestic law, it has no weight whatsoever in international law, which categorically prohibits the movement of civilians into the occupied territories. It is disconcerting that US Secretary of State Mike Pompeo says that only Israeli courts can judge this issue of the illegality of settlements.
The Geneva Conventions and international law do not make such a distinction. Apart from the difficulty of establishing which wars are “aggressive” and which are “defensive,” particularly when the army that starts hostilities claims it is acting in a “preemptively defensive” fashion, the Geneva Conventions were concerned with protecting civilians who fall under the rule of another army. They also addressed the disruptive effect on the international order of any acquisition of territories after a war, where moving civilian populations into or out of occupied territories would be a complicating factor.
This argument is very problematic. It does not address the question of the Golan Heights, which was clearly Syrian sovereign territory. In addition, Jordan’s claim over the West Bank was generally accepted internationally (as much as Israel’s claim to West Jerusalem). More importantly, the thrust of the Geneva Conventions was not to settle historic or national claims between countries but to provide protection for civilians and to prevent demographic changes from occurring as a result of armed conflict. The entire structure of the international order would be in great jeopardy if the 190+ countries of the world were to resort to war to acquire land, which they claim on a historic or ethnic basis, and then move their civilian populations into the lands they occupy by force.
This argument was first offered by Yehuda Blum, Israel’s representative at the United Nations, and has been quoted repeatedly by Israeli writers. It has never been used or accepted by any international authorities and is often referred to as “novel.” Historically, the whole of Palestine lying at the intersection of three continents has seen many invaders and empires set up rule over it, and modern countries that claim descent from these historic invaders would include Syria, Iraq, Iran, Saudi Arabia, Egypt, Turkey, Greece, and Italy.
This seems to be the most powerful argument, and it is one that Israeli Prime Minister Benjamin Netanyahu has been using frequently. He perhaps thinks that if international law prohibits this, then he can change international law. At its heart, this argument of establishing facts on the ground or “might makes right” is a thorough repudiation of international law and an invitation to international chaos and lawlessness. That is the danger in President Donald Trump’s positions, whether on the Golan, Jerusalem, or the issue of settlements.
Jonathan Kuttab is a Human Rights Lawyer and a Non-resident Fellow at Arab Center Washington DC