THE GENEVA CONVENTIONS AND THE LEGALITY OF THE SETTLEMENTS - Julius Stone PHD

THE GENEVA CONVENTIONS AND THE LEGALITY OF THE SETTLEMENTS

It is often claimed that settlement by Jews in the administered territories is in breach of the Fourth Geneva Convention. Professor Stone was the author of the treatise Legal Controls of International Conflict, which included an extensive commentary on the Geneva Conventions. Here he discusses their applicability in the Territories.

Perhaps the central current criticism against the government of Israel in relation to its administration of the territories occupied after the 1967 War concerns its alleged infractions of the final paragraph (6) of Article 49, of the Fourth Geneva Convention

Relative to the Protection of Civilian Persons in Time of War, of August 12, 1949.

The preceding paragraphs deal with deportation or transfer of a population out of the occupied territory. The final paragraph (6) reads as follows. "The occupying Power shall not deport or transfer parts of its own civilian population into territory it occupies."

It has been shown that there are solid grounds in international law for denying any sovereign title to Jordan in the West Bank, and therefore any rights as reversioner state under the law of belligerent occupation

[Note: By the Peace Treaty of 1994 Jordan relinquished any claim to such sovereignty, and the argument which follows therefore applies a fortiori.]

Not only does Jordan lack any legal title to the territories concerned, but the Convention itself does not by its terms apply to these territories. For, under Article 2, the Convention applies to cases of occupation of the territory of a High Contracting Party, by another such Party. Insofar as the West Bank at present held by Israel does not belong to any other State, the Convention would not seem to apply to it at all. This is a technical, though rather decisive, legal point.

It is also important to observe, however, that even if that point is set aside, the claim that Article 49 of the convention forbids the settlement of Jews in the West Bank is difficult to sustain.

It is clear that in the drafting history, Article 49 as a whole was directed against the heinous practice of the Nazi regime during the Nazi occupation of Europe in World War II, of forcibly transporting populations of which it wished to rid itself, into or out

of occupied territories for the purpose of liquidating them with minimum disturbance of its metropolitan territory, or to provide slave labor or for other inhumane purposes. The genocidal objectives, of which Article 49 was concerned to prevent future  repetitions  against  other  peoples,  were  in  part  conceived  by  the  Nazi authorities as a means of ridding their Nazi occupant's metropolitan territory of Jews - of making it, in Nazi terms, judenrein. Such practices were, of course, prominent among the offences tried by war crimes tribunals after World War II.

If and insofar, therefore, as Israel's position in Judea and Samaria (the West Bank) is merely that of an occupying power, Article 49 would forbid deportation or transfer of its own population onto the West Bank whenever this action has consequence of serving as a means of either

(1)     Impairment of the economic situation or racial integrity of

the native population of the occupied territory; or

(2)     Inhuman treatment of its own population.

Impairment of Racial Integrity of the Native Population of the Occupied Territory

The prominence of the question of legality of Jewish settlements on the West Bank reflects  the  tension  of  the  peace  process,  rather  than  the  magnitude  of  any demographic movement. Despite vociferous political warfare pronouncements on both sides, it seems clear, therefore, that no serious dilution (much less extinction) of the separate racial existence of the native population has either taken place or is in prospect. Nor do well-known facts of dramatic improvement in the economic situation of the inhabitants since 1967 permit any suggestion that the situation has been worsened or impaired.

Inhuman treatment of its own population

On that issue, the terms of Article 49(6) however they are interpreted, are submitted to be totally irrelevant. To render them relevant, we would have to say that the effect of Article 49(6) is to impose an obligation on the state of Israel to ensure (by force if

necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus be pushed to the absurdity of claiming that Article 49(6) designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that Judea and Samaria the West Bank must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants.