The Legal Case for Israel’s ‘Settlements’

From Legal Insurrection, 10 March 2016, by Miriam Elman:

Last Thursday I had the pleasure of hearing [Northwestern University Professor of Law Eugene Kontorovich] speak at a talk hosted by Syracuse University’s Institute for National Security and Counterterrorism (INSCT)...

The full lecture (52 minutes):


Here’s the gist of Kontorovich’s talk...

1. International law derives from treaties and custom, not United Nations General Assembly resolutions which are non-binding and thus don’t oblige any action.

Kontorovich began his lecture by noting that in July 1922 it was the League of Nations that established the Mandate for Palestine, deemed as “reconstituting” a “national home” for the “Jewish people”.

League of Nations | Official Opening | November 1920 | credit: Wikipedia

The word ‘settlement’ first appears in Article 6 of the Mandate: “close settlement by Jews on the land” was to be allowed and even encouraged. And it’s the League of Nations’ Mandatory borders that are binding.

2. When new countries are established, the most recent administrative border is what counts.

...while the League of Nations’ mandates have been contested by states that have sometimes refused to be bound by them (for example, by Iraq in its claim against Kuwait), these objections have no basis in international law. In 1948 the borders of Israel were supposed to be those of Mandatory Britain.

The Green Line, or 1949 armistice lines [often erroneously called "the 1967 borders"], which are neither a political nor a territorial boundary and have no legal force under international law, didn’t correspond to any prior administrative border.

... once Great Britain left, the mandate over Palestine—which was explicitly for the purpose of re-establishing a Jewish national home—just expired. The area became essentially a territory without a sovereign.

Further, it was Jordan’s “belligerent occupation” of the West Bank that was illegal. Jordan unlawfully invaded and annexed Judea and Samaria. In 1967, Israel ended this illegal occupation in a war of self-defense, taking control of the territory.

... it’s actually Israel which has a strong claim of sovereign title to the territory, by virtue of its having retaken the area from an unlawful Jordanian presence. ...Israel has valid claims to legal title of the West Bank, and now legally holds it.

3. The fact that Jewish civilians live today in the West Bank isn’t an international crime.

... the Fourth Geneva Convention’s Article 49(6) has been grossly misinterpreted over the years to be a prohibition against the occupying power’s citizens. In fact, it’s only a set of injunctions on the occupier, and was explicitly meant to prevent the kinds of deplorable forcible deportations and mass transfers of peoples perpetrated by Nazi Germany during World War II.

Article 49(6) doesn’t say that civilians can’t voluntarily move to live in occupied territory. Nor does it require occupying powers to make it difficult or burdensome for civilians to reside in these territories.

With regard to the West Bank, a sizeable portion of Jewish Israelis who live there today didn’t move into the area, much less were they transferred there by Israel—they were born there! And these settler babies and kids aren’t there illegally.

Shilo | Jewish West Bank Settlement | credit: The Blaze

So Article 49(6) doesn’t create a “no-go zone” for the nationals of the occupying power who wish to migrate into the occupied territory. Israel has indicated a willingness to trade away some of this territory as part of a negotiated agreement—having rights and title to territory doesn’t mean a state can’t waive them. But until that day comes, nothing in the Geneva Conventions makes it unlawful for Israeli citizens to voluntarily settle in a territory with no other legal sovereign.

4. Many other nation-states are regarded as occupiers under international law and have populated these territories with settlers, but these actions have garnered virtually no international opprobrium in comparison to the negative reactions toward Israel’s settlement of the West Bank.

At the conclusion of his talk, Kontorovich noted the double standards that have politicized international law, and undermined its integrity. Only Israel’s actions in the West Bank are deemed unlawful and worthy of boycott, even as plenty of other countries—including America—have occupied territories and enabled their citizens to live in them.

Kontorovich points to over a dozen other cases (e.g., Morocco’s occupation of Western Sahara; Turkey’s occupation of Northern Cyprus) along with a few that are less well known, like the U.S. occupation of West Berlin which ended in 1990.

Americans were never prevented from living in West Berlin or from opening up businesses there. Nor were any third parties ever told that they had a legal obligation to boycott American-owned companies there. ...no one made any fuss when Burger King opened a branch in West Berlin...

Why Kontorovich’s Lecture Needs to be Shared

[A typical media statement]:

..."The settlements in East Jerusalem, the West Bank and the Golan Heights are defined as illegal under international law as Israeli forces captured the territories, where more than half a million Jewish settlers now reside, in the 1967 Six day War"

Such statements are a dime a dozen.

Even otherwise well-written articles note these fallacies as incontrovertible ‘facts’.

This is why Prof. Kontorovich’s lecture and larger body of work needs to be disseminated widely....

Conclusion

In a compelling new presentation that he’s now delivering on various U.S. college campuses, Northwestern University expert of international law Professor Eugene Kontorovich exposes the myth of an unlawful Israeli occupation.

If you’re interested in reading more of his work on Israel’s borders and territorial scope he has a new article on it (with Prof. Abraham Bell). It looks at how the customary international law doctrine of uti possidetis juris would support Israel’s claims to any or all of the hotly disputed areas of Jerusalem and the West Bank.




After his lecture ...I was able to quickly ask him why he thought Israel’s detractors hinge so much of their argument on international law.

Here’s his response:

I think we have a mistaken notion of what an anti-Semite looks like. We think of such people as uncouth and uneducated. But, in fact, throughout history, anti-Semites have always been cultured and well-educated. Today’s anti-Semites are also well-read—many have multiple advanced degrees. And they insist that they can’t possibly be viewed as anti-Semitic because they speak about human rights. They claim that they’re not objecting to Jews as people, and only to the unlawful Jewish state’s actions. It’s a fallacious argument. Because anti-Semitism has always been phrased as objections to what Jews do and how they act—they killed the messiah; they created a capitalist society; they founded communism. It’s always been a unique, disproportionate, and irrational focus on the Jews”...