Does international law forbid settlement in the West Bank?

ORI POMSON

The first step in this interpretational process is to understand the plain – in fact dictionary – meaning of the treaty provisions requiring elucidation.

West Bank settlement city of Ariel Photo: MARC ISRAEL SELLEM/THE JERUSALEM POST

 

Anton Camen of the International Committee of the Red Cross in his article “Why the Law Prohibits Settlement Activities” (May 27, 2014) presents his view – and that of the vast majority of international legal scholars – on why the Israeli settlements in the West Bank are illegal under international law. The article touched upon a number of points. Due to lack of space, the present article shall address his central argument: does the Fourth Geneva Convention of 1949 prohibit settlement activities.

Camen refers to Article 49(6) to the Fourth Geneva Convention – the article relied upon in arguing settlements are illegal. The problem with Camen’s approach – and that of the vast majority of international legal scholarship – is that it fails to adhere to the rules of treaty interpretation. The purpose of this article shall be to guide the reader through the process of treaty interpretation and demonstrate why the correct result of this procedure leads to the conclusion that settlements are not illegal.

Treaties – such as the Fourth Geneva Convention – are instruments that States join in order to achieve a certain goal or objective.
Entry into a treaty is a sovereign act, whereby a state limits itself for the purpose of achieving a certain result, or set of results. Thus, the main goal of treaty interpretation is to discern the intent of the treaty’s drafters.

The first step in this interpretational process is to understand the plain – in fact dictionary – meaning of the treaty provisions requiring elucidation.

Article 49(6) to the Fourth Geneva Convention stipulates that, “[T]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

According to the Oxford Dictionary, transfer is defined as “convey, remove or hand over,” thus demonstrating the proactive – if not coercive – element of the occupying power’s involvement in the movement of its civilians to the occupied territory.

Camen is indeed correct in observing that Article 49(6) does not include the words “forcible transfer.” This, he argues, demonstrates that the movement of civilians need not be coercive, and that movement such as that of the settlers involving mere incentives, known in international legal terms as “indirect” transfer, is unlawful.

It is indisputable that the provisions of a treaty must be interpreted in the context in which they appear, lending weight to the language used in Article 49(6), as opposed to Article 49(1), for example, which does use the term “forcible transfers.” However, what Camen fails to note is that the word “transfer” appears five times in Article 49 and is only once accompanied by the adjective “forcible,” despite other uses of the word “transfer” being concerned with coercive movement. As noted by Israel Prize laureate Prof. Ruth Lapidoth, “a term which appears several times in a treaty should usually be given the same meaning in each provision.”

Moreover, under the Fourth Geneva Convention, forced transfer of civilians living in an occupied territory – known legally as “protected persons” – to a different territory constitutes a war crime, rendering such acts one of the most severe violations of the Convention.

However, the Convention does not prohibit “indirect” transfers of the occupied territory’s local population. From a contextual perspective, Camen’s approach leads to an absurd result according to which the scope of the prohibition of civilian movement into the occupied territory is much wider than the prohibition on movements of persons out of it, despite the Convention being much more concerned about the latter.

Camen refers to what he perceives as the purpose of Article 49(6) to the Fourth Geneva Convention – preventing demographic changes – and argues this lends support to his contention that settlements, which lead to demographic changes, are prohibited. Without addressing the factual aspects of this submission, this argument is what is known in legal terms as a “teleological” interpretation and is unaccepted in international law.

When the contemporary rules of treaty interpretation began to crystallize, the late Prof. Shabtai Rosenne – also an Israel Prize laureate and globally considered one of the greatest international legal scholars of modern times – writing in 1966 observed that these rules reflected the “great distrust of many international lawyers of what is sometimes called ‘teleological’ interpretation and other extra-textual approaches.”

Though reference may be made to the object and purpose of the entire Fourth Geneva Convention – protecting persons in occupied territories – this may not supersede the textual meaning just reached.

Camen argues that his conclusion reflects “a legal norm that already existed under the law governing occupation, dating back to the 19th century and already principally codified in the 1907 Hague Regulations.” This is historically incorrect. The preparatory works of the Fourth Geneva Convention demonstrate that the Convention’s drafters were of the opinion that they were creating a new norm when prohibiting coercive transfers of persons into an occupied territory. A fortiori “indirect” transfers such as settlers.

The author is a teaching assistant at the Hebrew University Law Faculty in the field of international law and an LLB candidate there.