Making the Case for Settlements

by Brie Stimson April 3, 2017


neve-daniel-as-seen-from-nearby-palestinian-farmland_feb-2016When it comes to Israeli residencies in the Gaza Strip, West Bank and the Golan Heights, often times the only thing that can be agreed upon is that the issue has been contentious for years. With the new U.S. administration and this president’s new way of talking about peace between Israel and the Palestinians, settlements have come back under the international spotlight.

Prime Minister Benjamin Netanyahu initially hoped that President Trump would take a more favorable position on the issue than his predecessor, but during their first meeting in February, shortly after the Israeli Knesset passed its controversial “regularization law” effectively legalizing settlements, Trump asked Netanyahu to “hold back on settlements for a little bit.” Later in the joint press conference, President Trump also suggested that he’s open to exploring other paths to peace besides just the two-state solution that most everyone in the field has focused on for years.

Dr. Eugene Kontorovich, a law professor at Northwestern and an expert on international law and the Israel-Arab conflict, thinks that, no matter the U.S. president or the laws passed by the Israeli Knesset, Israel has the right to erect living quarters in the territories in question because Article 49(6) of the Fourth Geneva Convention doesn’t apply. He offers his reasons for this as if he were issuing closing arguments in court. Pretend you are on the jury and pay close attention to the following details.

Article 49(6) of the Fourth Geneva Convention says that an “occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.” No one disputes this. It is in the application of this rule that the scales tip.

“This idea that Jews can’t settle there is not in keeping with international law,” he said while holding a guest lecture at San Diego State University through the Jewish Studies Program in March.

First, some historical background: Israel began its presence in the Gaza Strip, the West Bank, the Golan Heights and the old city of Jerusalem after winning the Six-Day War in 1967. The country also gained the Sinai Peninsula in that war, but it eventually returned that territory to Egypt in 1982. Israel also withdrew from the Gaza Strip in 2005.

Now, the UN has continuously condemned the expansion of Israeli settlements, but Kontorovich takes legal issue with this stance because the organization references Israel regarding Article 49(6) almost exclusively compared to any other situation involving occupied territory. He says the interpretation of the article comes solely from the Israel case, omitting other similar situations around the world. A study done by the International Committee of the Red Cross shows in 107 examples of national and UN interpretations of Article 49(6), all but two were regarding Israel.

Meanwhile, history has many examples of occupations that would also seem to violate Article 49(6), according to Kontorovich. Those include, but are not limited to the Indonesian annexation of East Timor in 1978, Morocco in the Western Sahara and Russia in Crimea, just to name a few (Kontorovich names eight during his lecture).

In mounting his legal defense of the Israeli settlements, Kontorovich leaves out the many occupations that took place before the agreement was signed at the Fourth Geneva Convention in 1949, like the U.S. co-occupation of West Berlin, Kashmir and China in Tibet.

Expanding on the details of just a few of these occupations that result in settlements after 1949, Kontorovich starts with the story of East Timor.

Portugal owned the small island situated across the Timor Sea from Australia’s northwestern edges, before recognizing its right to self-determination in 1974. Although East Timor wanted independence, Indonesia entered into a year and a half of fighting with the tiny island and eventually annexed it. Portugal maintained that Indonesia’s occupation was illegal and there was strong international condemnation of Indonesia’s use of military force against the Timorese and the annexation, but no one criticized the settlement program that arose from that takeover or characterized Indonesia’s actions as a violation of the Geneva Convention.

Around the same time, in 1976, Morocco began settling hundreds of thousands of people in the Western Sahara. The United Nation’s peace plan for that region leaves those settlers in place and no international organization has said anything about Morocco’s settlement program there.

The ongoing Turkish occupation of Northern Cypress has also not been described as a violation of the Geneva Convention.

Kontorovich goes on, briefly describing Syria’s occupation of Lebanon, Vietnam’s occupation of Cambodia, Russia’s occupation of Crimea and parts of Georgia and others. None have been treated with the same condemnation and invocation of Article 49(6) as the Israeli-Palestinian situation.

“Attempting to interpret the scope and meaning of Article 49(6) from its application to a single situation is like trying to fix the position of a line knowing only a single point,” Kontorovich wrote in his most recent paper “Unsettled: A Global Study of Settlements in Occupied Territories.”

In the paper, he further examines every example of occupation since the Fourth Geneva Convention that involves civilians moving into occupied territory. In this instance also, he says Israel appears to be the exception rather than the rule. Conversely, standard discussion on Article 49(6) defines the issue far too broadly, Kontorovich says, particularly because no one has ever been prosecuted for violating it.

The discussions, though heated, remain based solely on academic and political statements, again, entirely based on Israel. He notes that a strict interpretation of the text would suggest that the mere encouragement by a state of its civilians settling in occupied territory should in itself be a violation. But in all cases other than Israel, the UN follows a different interpretation.

“It is impossible to form an accurate understanding of Art. 49(6) of the Fourth Geneva Convention by simply studying Israeli settlements and the international reaction to them,” he says.

This one-sided view, for Kontorovich, therefore nullifies the entirety of Article 49(6) and requires that a new definition be applied for any legal opinion to be established. Until then, Kontorovich argues, Israel’s settlements should be considered as legal as anyone else’s. 

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