THE COMPLEX LEGALITY OF SETTLEMENTS

  PETER WERTHEIM, JERUSALEM REPORT 9-15-13

The misuse of international law as a tool of political condemnation is especially unhelpful right now.

For David Kretzmer, “The chickens come home to roost” (August 26), mere legal opinions can harden into established norms in the field of international law if large numbers of eminent lawyers support those opinions, even if other equally eminent lawyers do not. Further, Kretzmer suggests that black-letter norms are also established when a large majority of states repeatedly pronounce certain activities of another state to be illegal, even if the said majority behave in much the same way or worse in analogous situations. Fortunately for Israel, and common sense, binding rules of international law are not made that way.

The hazards of adopting a ‘black and white’ moralistic approach to questions of international law – especially in connection with the Israel- Palestinian conflict – were laid bare by Prof. Michael Curtis of Rutgers University in a groundbreaking article in 1991. To paraphrase Curtis, dogmatic generalisations about the legality or illegality of Israel’s West Bank settlements belong in the realm of polemics, not serious legal analysis.

The basic error is to treat all the settlements alike when commenting on their international legality. For example, settlements that have been built without the authorization of the Israeli government have been held by the Supreme Court to be illegal even under Israeli domestic law. Conversely, Cambridge University Prof. James Crawford, who is one of the world’s most eminent international lawyers and is generally critical of Israeli policies, published a legal opinion in 2012, in which he concluded that some of the settlements, such as those of the IDF’s Nahal outposts are “probably lawful.”

The whole question of the international legality of settlements is fraught with complexity – which is one of the reasons Crawford’s opinion runs to 60 pages. He and others have argued that Article 49, paragraph 6, of the Fourth Geneva Convention (Geneva IV) prohibits civilian settlements. It states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Nobody suggests that the Israeli government has deported settlers to the West Bank. The legal question is whether by sponsoring and financing civilian settlements, the Israeli government has carried out a population “transfer.” In its advisory opinion in 2004, the International Court of Justice (ICJ) answered this question in the affirmative.

The late Julius Stone, an outstanding Australian international jurist, had a contrary opinion. His view was that a population “transfer” within the meaning of Article 49(6) requires a “magisterial act” or fiat by the government of the occupier state. In his view, which is still shared by many eminent international lawyers, mere sponsorship and benefits do not amount to a population “transfer.”

In any event, the ICJ’s advisory opinion was just that – a non-binding opinion. Like the endlessly repeated UN resolutions on the subject referred to by Kretzmer, it has no legally binding effect. In fact, the ICJ’s conclusions were subjected to some serious criticisms, not least because the questions referred to it by the UN General Assembly were so loaded with tendentious assumptions as to prejudice fair determination of the issues.

The ICJ also failed to consider the effect of the original League of Nations Mandate of 1922, which recognized “the historical connection of the Jewish people with Palestine” and authorized “close settlement by Jews on the land, including State lands and waste lands.”

When the UN replaced the League in 1945, the Mandate continued to operate by virtue of Article 80 of the UN Charter. Kretzmer waves this history aside as having been made irrelevant by the establishment of the State of Israel in 1948 as the State of the Jewish people.

He leaves unanswered the opinion of Eugene Rostow, a former Dean of Yale Law School and US Under Secretary of State for Political Affairs, that because the West Bank is an unallocated part of the British Mandate, its terms still apply to that territory and settlements can continue until a new state is created or an annexation takes place.

The misuse of international law as a tool of political condemnation is especially unhelpful right now while Israeli and Palestinian representatives attempt to negotiate comprehensive terms of peace on the basis of “two states for two peoples.” Moralistic polemics about the settlements is the last thing needed by negotiators on either side, and will simply make it politically more difficult for Palestinian leaders to agree to a land swap arrangement, a sine qua non of any final peace agreement.

Attorney Peter Wertheim is the Executive Director of the Executive Council