Illegal from the beginning

The evacuation of settlements in the territories was recently defined, in an open letter by rightist activists, as "a crime against humanity." Professor Yitzchak Zamir (Haaretz, September 19) correctly observed that it is no such thing, but I do not agree that one should seek the definition of this crime in the law on administering justice to Nazis and their collaborators. According to this law, the only crimes against humanity were committed during the days of the Nazi regime and in an enemy state.

The term "crimes against humanity" does indeed stem from the trials of Nazi war criminals, but such crimes did not end with their deeds - and unfortunately, since World War II, they have recurred in many places throughout the world. Today, this is a category in international law, and that is where the definition of this term and its interpretation must be sought.

One such definition was proposed in the Treaty of Rome, which is the founding statute of the International Criminal Court. The relevant articles for our purposes are 7.1 and 7.2. The first states: "For the purpose of this Statute, `crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack." It then lists 11 specific acts.

Opponents of evacuation rest their case on subsection (d): "Deportation or forcible transfer of population." Article 7.2 elaborates the meaning of the 11 crimes listed in the preceding article. And subsection (d) reads as follows: "`Deportation or forcible transfer of population' means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law."

Opponents of the evacuation thought that they had found support for their objections in international law - but here is the catch: According to that same international law, their presence on the land from which they are slated to be evacuated is completely illegal. Article 49 of the Fourth Geneva Convention forbids an occupying power to transfer its own population into occupied territory. Thus even had the Rome Statute not explicitly stated that deportation or forcible transfer constitutes a crime against humanity only if the people being expelled were legally present in that territory to begin with, it is clear that international law would not term any action a "crime," or even a misdemeanor, if that action were designed to end a situation that this same law defines as illegal.

That is the end of the story for anyone who recognizes the validity and applicability of international law. It is clear, however, that neither this law nor the rule of domestic Israeli law ever served as the guiding light of the settlement leaders, and their current effort to make use of accepted legal categories in the law of nations is ludicrous.

The Israeli government, in contrast, has a serious problem, because it never recognized the illegality of the settlements under international law. Even the High Court of Justice has consistently refused to rule that the settlements violate international law.

Indeed, it would not be an exaggeration to say that today, the settlements are one of the main reasons for the government's refusal to recognize that the Fourth Geneva Convention applies to the territories, even though Israel is a party to this convention, as the government both signed it and ratified it.

How can official Israel avoid the charge that it is perpetrating a transfer that constitutes a crime against humanity, if, in its view, the proposed evacuees are people residing legally in the areas from which the state wishes to evacuate them? That is just one example of the difficulties in which Israel has been embroiled by its policy of settling the occupied territories, which was born in sin and is ending in crime.

Those who extended the derogatory expression "Um schmoom" ("Um" is the Hebrew acronym for the UN) to international law as well will discover, now that they want to rely upon this law, that they have entered a dead-end street. This law is increasingly becoming an institution to which there is no alternative in the modern international reality, and Israel would do better not to make an exception of itself - even if the price is painful, and even with all the empathy due to those who will be uprooted from their homes.

The author is a doctor of political philosophy.