By Prof. Eugene Kontorovich. Review originally published in the Autumn 2020 edition of the Tel Aviv Review of Books.
International law, and particularly the law of belligerent occupation, is a central aspect of the political discourse around Israel’s presence in the West Bank, or Judea and Samaria. Conventional wisdom on this matter, at least amongst Western diplomats and legal academics, is fairly well settled: Israel is an occupying power, and the presence of Israeli civilians living in the areas formerly occupied by Jordan is a war crime. This conclusion is well known, but even educated observers typically lack the background knowledge of international law, and the fairly specific subfield of occupation law, that would be necessary to determine whether the conclusion is valid, disputable, or wrong. For most it is enough to rely on conventional wisdom, authority and expertise. But as we shall see, the experts have not analyzed this question in the way one would typically approach a legal problem. Indeed, they themselves often typically appeal to a purported political consensus, embodied in the resolutions and decisions of various U.N. bodies.
Unpacking the Law on (Belligerent) Occupation in the Israel-Palestine Context
The books under review seek in various ways to unpack, through technical legal analysis, the relevant legal provisions. Yoram Dinstein’s The International Law of Belligerent Occupation is widely regarded as one of the leading academic treatises on occupation law in all of its aspects, authored by one of most eminent academic authorities in the field (the other is a similarly-titled volume by Dinstein’s colleague at Tel Aviv University, Eyal Benvenisti). Originally published in 2009, it was issued in a second edition last year. Simon McKenzie’s Disputed Territories and International Criminal Law: Israeli Settlements and the International Criminal Court examines in detail the legal arguments about Israeli settlements as they could play out in the ICC’s slow and ongoing inquiry into what it calls “the Situation in Palestine.”
Dinstein says that his second edition has been updated to take into account “quite a few contemporary occupations have cropped up in far-flung quarters of the world,” such as Nagorno-Karabakh (where Armenia has occupied Azerbaijani territory since 1991) and Northern Cyprus (occupied by Turkey since 1974), but ultimately learns close to nothing from those situations. McKenzie explicitly frames his work as a “case study” into the ICC, based on Israel, but offers no concrete suggestions on how the legal lessons of this case apply to—or are contradicted by—the Court’s treatment of other cases. In short, both books, to the extent they concern settlements (Dinstein’s has a far broader scope), are books about Israel more than they are about international law.
The Deportation or Transfer of Population – Article 49(6)
The entire case against Israeli settlements depends on the application and interpretation of one sentence, found in Article 49(6) of the Fourth Geneva Convention Relative to the Protection of Civilians in Time of War. That provision comes at the end of a paragraph whose first five clauses are devoted to ethnic cleansing—the expulsion of a population from occupied territory. Par. 6, however, provides that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” As both authors recognize, the application of this provision to Israel raises many legal questions that are neither straightforward nor determined by precedent.
Did Israel become an “occupying power” in 1967? Assuming it did, did the occupation end upon the signing of the peace treaty with Jordan in 1994, or the Oslo Accords the year before?—the Fourth Geneva convention has no application outside of an international armed conflict. But assuming that an Israeli occupation uniquely survived into peace time, have Israelis who live in the West Bank been “deported” by Israel? Have they been “transferred,” and if so, what was the means of their transfer, given that at least on face value, most moved of their own volition, through the services of moving companies?
And what about the majority of the Israeli population now living in the territories, who neither moved there, nor were “transferred,” but were born there, often in the third or fourth generation? The authors agree that the Convention’s occupation provisions did not envision prolonged occupation—should Art.49(6), which unlike the rest of the convention governs not just governmental action but also private civilians, be applied to cover downstream demographic consequences, forever? To the extent that these measures are said to be designed to prevent a “colonization” of occupied territory, does Israel’s repeated attempts to rid itself of the territories through offers of full statehood to the Palestinians (something not seen in Western Sahara or Crimea, for example) put it outside of the provisions intended application?
Each of these questions is genuinely debatable. But crucially, all of them must be answered against Israel for settlement activity to be deemed illegal, while resolving any one of them in favor of Israel’s interpretation would undo the project of casting the settlements as illegal. The authors dutifully tackle most of these issues, one by one – and resolve each in favor of illegality.
The Methodology Employed v. Standard Legal Interpretation
What is important for the non-specialist reader to understand is the methodology employed in these efforts, and how it differs from standard legal interpretation. Here is how law typically works. There is a question about the meaning of a rule, in this case, Art. 49(6). Typically, lawyers would resolve the application of a rule to a case by looking at precedent—that is, the application of the rule to other analogous cases. Indeed, Friedrich von Hayek has said that the essence of law is that it is a system of general rules, made in advance of the cases to which it would apply, that is then applied prospectively to like cases. This is what gives law its integrity, and prevents it from being just ad hoc, politicized, or intuitive judgments about particular cases, colored inevitably by the interpreter’s prejudices about the parties.
But the question of Art. 49(6)’s meaning is different from most legal questions because in practice, it has neither prior precedent not future application outside of the Israeli context. Indeed, the esoteric world of belligerent occupation law has become a de facto language for talking about the Jewish State.
When the Fourth Geneva Convention was adopted in 1949, Art. 49(6) was “adopted after some hesitation,” according to the International Committee for the Red Cross’s semi-canonical 1957 commentary on the treaty, and with some considerable confusion about the meaning of “deport and transfer.” The provision was apparently never invoked or studied before 1967, when it was dusted off and used to justify as a requirement of international law what had previously been accomplished by Jordanian law—the complete exclusion of Jews from eastern Jerusalem, Judea and Samaria. Indeed, Art. 49 has become one of the most invoked provisions of the Convention, cited thousands of times by the United Nations. Yet every time it is mentioned, it is in the context of Israel, and Israeli Jews in particular.
These volumes are themselves a good example of this phenomenon. Dinstein’s book is a studious, systematic study of the law of occupation, covering a wide range of issues. But it has an acknowledged “special focus” on Israel, and in its discussion of legal issues around settlements, an exclusive emphasis. Dinstein notes that “never” has an occupation “drawn so much international attention.” Indeed, for legal questions involving settlements, no occupation has ever drawn any attention, and thus Dinstein is pleased to have the “raw material for the law of belligerent occupation.”
Similarly, McKenzie’s book focuses entirely on the question of Israeli settlements, though he observes in passing that “it could be used by those assessing whether crimes are occurring in other occupations, such as those in Cyprus, Georgia, and Crimea” (all places where the ICC has jurisdiction). Do not hold your breath. Many activists and commentators have graciously suggested that they hope the “rules” they seek to apply to Israel will be generalized, but after more than fifty years, it is quite clear that they never will be.
Inconsistencies in the Application of International law by the ICC
Indeed, McKenzie’s book, focusing on how settlements should be treated at the ICC, was published before the shocking announcement by the The Hague-based court’s Prosecutor. Since Moscow’s occupation of Crimea in 2014, close to 200,000 Russian settlers have moved to the territory, a fairly extraordinary number. If, as these authors maintain, the policy behind Art.49(6) is a kind of Trumpian vision of preserving a local population in demographic amber, free from the tensions of migration even over the course of decades, then Russia’s settlement policy should clearly be of the greatest interest to the international community and the Court. Russian settlers are a bigger part of Crimea’s population after six years than Israeli settlers are of the West Bank and Gaza after 53.
While the ICC prosecutor has without comment simply declined to even consider war crimes prosecutions regarding settlements in North Cyprus and Georgia, she was compelled to consider the settlement issue within a broader inquiry regarding Russian crimes in Crimea. Yet last November, and despite the vast “raw material” about international law that authors like Dinstein and McKenzie had mined from Israel, she quietly concluded that the mass movement of Russians into occupied territory does not constitute a potential crime.
The problem with developing a complete account of Art. 49(6) and testing it solely against Israel is that it is not falsifiable—one can draw an infinite number of lines through a point. Yet the ICC Prosecutor’s Crimea decision is as explicit a repudiation of these theories as it gets, or rather, further evidence that they are not “law” in the sense of being rules of general applicability. Typically, when law professors suggest interpretations of law and courts and other official actors adopt contrary ones, it is the professors who are thought to be wrong; the law runs with reality. Yet the authors’ deep focus on Israel misses a larger point: every single occupation has involved population movement into the occupied territory. Yet not a single one of them has ever been said, by the U.N. or any international court, to violate these prohibitions.
Zooming in on Specific Legal Issues
To say that Israel is the test case rather than all these other examples is the analytic mistake known in social science as selecting on the dependent variable. This criticism of the authors’ methodology is not a claim about double standards, or international hypocrisy. A double standard is when there is a preexisting standard, that is then applied differently to like cases. Thus, one might argue that just because many other countries violate the settlements rule does not mean Israel should; indeed, perhaps Israel should be pleased at the coercive assistance it gets from the international community in keeping to the law. But both books are refreshingly honest about the lack of a clear pre-existing rule—that is to say, the meaning of Art. 49(6) involved “ambiguity,” as McKenzie concedes. He goes on to admit that the kind of government action necessary to constitute transfer is a “difficult question” on which the text “do[es] not offer any guidance” and on which “there are no cases.” Thus, distilling a standard from the international treatment of Israel, which then becomes reflected onto the “general” rule, becomes a legal infinite regression mirror. The objection here is not about double standards, but rather the non-application of the actual standard to the case at hand.
Let us examine how the authors analyze a few of the particular legal issues mentioned above. One set of questions deals with whether the Fourth Geneva Convention even applies to the territories. The treaty is not, like human rights agreements, a list of universal rules to be observed at all times. Rather, it applies to wars, and only a subset of them: “international armed conflicts” between countries that have signed the treaty. In other conflicts (such as between a country and a guerilla group), the treaty does not apply. This is why, despite Iran settling large numbers of foreign Shiites in ethnically cleansed areas of Syria, this does not implicate Art. 49(6), because the Syrian civil war is technically categorized as a “non-international armed conflict.”
The Uti Possidetis Juris Argument
Israel and Jordan were certainly engaged in an international armed conflict in 1967. However, the West Bank was not part of Jordan. This point has been a staple of arguments against considering the territory occupied. Both authors offer the fairly conventional retort, based on a broad reading of the “purposes” of the convention. Arguments about purpose are fair game, but slippery, because anything can be said to be consistent with particular purposes at a high enough level of abstraction. The argument about the effect of Jordan’s lack of sovereignty is an old one, and genuinely debatable. But both offers fail to deal with newer arguments.
For example, there is a strong basis for arguing that under international law, not only did Jordan not have sovereignty over the territory in 1967, but that Israel did. This would be decisive, as even if one can occupy “non-sovereign” territory, both authors would agree that one cannot occupy one’s own territory. The argument for Israeli sovereignty involves a straightforward application of a universal principle of international law that provides that when a new country is created, it inherits the borders of the last top-level administrative unit in the territory; this rule applies even if—as is usually the case—those prior borders were colonial, arbitrary, or otherwise did not hew closely to ethnic lines. This is why the international boundaries of Syria, Lebanon, and Jordan all lump in discontented ethnic or religious minorities—all those states stepped into the borders of previous League of Nations Mandatory territories. In Israel’s case, the last prior borders were those of the Mandate for Palestine. Jordan’s invasion of the territory in 1948 would, both authors surely agree, not lawfully change sovereignty. Yet neither even deal with the possibility of prior Israeli sovereignty.
The 1994 Peace Treaty and the End of Belligerent Occupation
Then, there is the question of the effect of the 1994 peace treaty with Jordan. As mentioned above, occupation depends on the existence of an international armed conflict. When that conflict ends, there is no more occupation. That is why the presence of large numbers of U.S. troops in post-war Germany or Afghanistan was not considered an occupation. The authors, like most who have written on the topic, conclude that Israel’s war with Jordan—who occupied, but was not sovereign over, the West Bank—was good enough to trigger Art. 49(6). By the same token, then, a peace treaty should end its application. A U.S. State Department memo in 1978 concluded that Israel occupied the West Bank, on much the same analysis as the authors—and McKenzie cites its analysis as compelling authority. Yet, the same memo made clear that if Israel made peace with Jordan, the occupation and any question about settlements would end.
Perhaps that was easier to say in 1977, when such legal ruminations seemed unlikely to be tested by reality. Still, both writers struggle unsuccessfully (and briefly) to explain why the 1994 peace treaty did not end occupation that might have existed hitherto. They rely on the provision of the treaty stating that it is “without prejudice” to the status of the West Bank. But that simply means that the treaty did not determine the future sovereign status of the West Bank as between the competing Palestinian and Israeli claimants. It does not change the fact that an unconditional peace was established, ending all belligerency and thus belligerent occupation. The treaty may not extinguish (or affect) Palestinian territorial claims, but not all territorial disputes are occupations. The authors essentially paper over the inconvenient point that, even in their analysis, it is hard to argue that a de jure occupation continues to exist.
The Wall Advisory Opinion
Like a drunk looking for his keys under the lamppost, the authors invariably attach great weight to every scrap of evidence in favor of their arguments, while discounting or entirely ignoring contrary evidence. Both authors, for example, give almost conclusive weight to the International Court of Justice’s Advisory 2004 opinion in the Wall case, where the Court opined that territory can be deemed “occupied” even if it had no prior sovereign. But the ICJ opinion was, as the authors are aware, “advisory,” and thus not legally binding. As a formal matter, the ICJ’s opinion deserves no more legal weight than the quality of its legal arguments. On this point, it made none, but rather cited the numerous U.N. resolutions that had said the same thing, all solely in the context of Israel.
In any case, the ICJ opinion was only issued in 2004, further discounting its value, for both legal and sociological reasons. Under basic principles of international law, the law that would govern Israel’s presence in the West Bank is the law as it was understood in 1967, not subsequent interpretations. Moreover, by 2004, and indeed, much earlier, the question of occupation of non-sovereign territory had become entirely synonymous with the question of Israel and the territories; it could hardly be treated as an abstract legal question. On the other hand, both authors entirely ignore the Cession of Vessels and Tugs for Navigation on the Danube case, which was decided before 1967, and would thus state the law as it was when Israel took control of the territories. That case held that the territory that was not under the sovereignty of any state could not become occupied. That means that the West Bank, which was not under any sovereignty when Israel ended Jordanian control, could not be deemed occupied. Dinstein’s failure to acknowledge this precedent, which goes contrary to his conclusions, is a particularly odd lapse given that he cites Danube Tugs as authority for other propositions of occupation law.
No Comprehensive Ban on Israeli Settlements under International Law
Yet even these authors, who largely track the conventional U.N. consensus on these matters, try to take seriously the fact that they are dealing with legal texts. Many readers will be surprised that both authors agree that the broad and undifferentiated treatment of Israeli settlers as “illegal” lacks any basis. In the commonplace understanding, any Jewish presence across the Green Line is ipso facto illegal. This is the view that animates groups such as Peace Now and Btselem, who condemn every individual Jewish-inhabited housing unit. But the authors note there is simply no colorable basis in Art. 49 for such a comprehensive ban: it does not prohibit the nationals of an occupying power from moving to or living in the territory. Rather, it regulates certain actions by occupying powers to move its population there. In particular, it requires acts of “transfer” by the occupying power, a term which the authors interpret sweepingly, but still excluding clearly private actions.
Thus, both authors agree that Israelis who purchase land in private transactions, or move to land they had prior title to, cannot conceivably fall within these prohibitions. Dinstein also points out that “so called ‘outposts’”–settlements established in the face of opposition by the Israeli government–would have to be considered legal under international law, precisely because they are illegal under Israeli law.
It appears that neither book takes these points to their logical conclusion. They agree that “transfer” must refer to movements of people caused by official government action, but in practice they interpret causation in a “but for” way, rather than a more direct causation of the kind typically required by criminal prohibitions. That is, to say that “transfer” occurs when Israel makes it possible for its citizens to move to the West Bank, or does not discourage residence there relative to other places, is to interpret a ban on transfer as a requirement of discouragement, which appears nowhere in the convention.
Nonetheless, it is important to note the gap between the somewhat more limited version of the rule conceded by these authors and the absolute ban assumed by the international community and pro-Palestinian NGOs. It is an odd coincidence that the legal interpretation of the obscure Art. 49(6) adopted by so many happens to be entirely congruent with Palestinian political demands and negotiating positions.