Legality Is in the Eye of the Beholder

The international community believes the settlements violate the Fourth Geneva Convention and may even be a war crime under the terms of the International Criminal Court. Israel disagrees. The Supreme Court almost always has refused to take a stand on the issue. And so far, the U.S. has blocked all attempts to impose international sanctions on Israel.

Moshe Gorali
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Moshe Gorali

Israel is so confident of the unassailable legality of its settlements in the territories that Dr. Alan Baker, the Foreign Ministry's legal adviser, is himself a settler, residing in Har Adar. "I live beyond the Green Line," says Baker, "but my home is not registered with the Israel Lands Administration, which is the case for all the settlements. Instead, I have a long-term rental agreement that is contingent on any future peace agreement. This is the condition by which all settlers must abide. Whether or not they are aware of or agree to this situation, they have no permanent resident status and are powerless to change their status or the land's ownership."

It is highly doubtful that most settlers share Baker's views on the transitoriness of their residence in the territories. Their leaders have repeatedly declared that they will remain in the territories forever and that, in doing so, they are obeying a divine command that transcends any fine points of international law.

Since 1967, Israel's governments and law courts have sanctioned the settlements through legal acrobatics that have failed to satisfy the international community. The chief stumbling block is Article 49 of the Fourth Geneva Convention (of August 12, 1949), which reads: "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive." The primary goal here is to protect local populations: not only to safeguard them physically, but also to ensure that their territory's demographic and cultural character will remain intact until the territory's status is finally determined - through repatriation or the application of the occupying country's legal code.

Baker outlines Israel's interpretation of Article 49: "The prohibition concerning the transfer of the occupying power's nationals to the occupied territory refers to forcible transfers, along the lines of what the Nazis did. Article 49 was drafted after World War II and is aimed at preventing the kind of mass population transfers the Germans carried out to alter the demographic character of the territories they occupied. Israel's policies ban forcible population transfers, but do sanction voluntary ones; Israel has refrained from expropriating private land; the scale of the transfers is too small to affect the territory's character; and, what is most important, the transfers are not permanent."

One could also argue that, in Israel's case, it is not the government that has been transferring settlers; instead, the settlers have transferred the government to the territories. The settlers' messianic fervor and organizational and logistical skills played a key role in settlement activities that the government sanctioned, sometimes de facto.

However, it should be noted, settlement activity was driven not only by ideological incentives, but by economic ones as well - especially in settlements whose establishment was accompanied by generous financial benefits intended to attract settlers and by the promise of a better quality of life.

Although Israel has not annexed the West Bank, it is trying to utilize the fact that Jordan has waived all claim to the West Bank. While it is concerned with challenging such claims as the settlements' illegality, Israel argues that the Fourth Geneva Convention, at least in those articles dealing with sovereignty issues and not in its humanitarian aspects, applies only to territory taken from a state that is a signatory to the convention. Egypt imposed military government on the Gaza Strip, whereas Jordan has conceded all sovereignty claims to the West Bank, which it annexed in 1950. (Israel and the rest of the international community, except for Britain and Pakistan, did not recognize the annexation.)

The late King Hussein's declaration that Jordan had severed all ties to the West Bank turned it into the bone of contention between Israel and a political entity that has not yet been created. This fact has made it even easier for Israel to free itself of the basic limitations imposed by international law: the prohibition against the occupying power's mixing its nationals with the local population and the prohibition against permanent, massive changes, excluding those required for security reasons or for the local population's well-being.

"The legal claim today and the arguments," Baker remarks, "rest on the Oslo accords. It was resolved - and the Palestinians agreed - that the settlements' fate would be determined in a future peace agreement. After we signed those accords, which are still legally in force, we are no longer an occupying power, but we are instead present in the territories with their consent and subject to the outcome of negotiations."

Elon Moreh was a turning point

To handle the settlement controversy politically, legally and ethically, Israel has developed a unique word-laundering system. To avoid the value judgment connoted by "occupied territories" or "liberated territories," Israel invented the term "administered territories."

Chief Supreme Court Justice Aharon Barak used the phrase "long-term occupation" to justify the Israel government's permanent, massive investments in the territories. To describe a situation where two populations, in this case one Jewish and the other Arab, share the same territory but are governed by two separate legal systems, the international community customarily uses the term "apartheid." Prof. Amnon Rubinstein has coined an alternative phrase, "enclave-based justice."

Thus, Israelis find it difficult to define the settlements as a "war crime"; they prefer instead the word "violation." In his book on Israeli constitutional law, Rubinstein writes, "In its policy of establishing settlements in the territories, irrespective of the policy's political wisdom or absence thereof, Israel has clearly violated international law: It has violated the prohibitions concerning an occupying power's transferring nationals to the territory it occupies and concerning the expropriation of land for purposes unrelated to the local population's well-being. Regarding these two categories of violation, Israel's High Court of Justice has been unable to restrain the executive branch of Israeli government - perhaps because of the court's awareness of the issue's political nature."

In discussing the High Court's treatment of the settlement question, one must speak of two eras: the period prior to the famous Elon Moreh judgment of 1979 and the period following that judgment.

Prior to 1979, the High Court did not intervene when Israel expropriated territory, even privately owned lands. The justices of the Supreme Court, in its capacity as High Court of Justice, would automatically accept the argument of the country's civilian and military leaders that the expropriation in question was needed for security reasons. Elon Moreh exposed the Supreme Court justices to a very different reality: Here the expropriation was for civil, even ideological, reasons. The security pretext was put forward only later on.

The combination of the expropriation of private land and the civilian nature of the expropriation's purposes exceeded the tolerance level even of a Supreme Court justice with a rightist outlook like Moshe Landau, who ordered the settlement's evacuation. "The Dawikat [the Arab petitioner's surname] verdict is the only court decision in Israeli judicial history where an Israeli court of law ordered the destruction of a Jewish settlement," attorney Plia Albek would later write.

Albek, who then headed the Justice Ministry's civil law department and was the settlers' darling, made the best of a bad situation. She transformed the High Court's prohibition concerning the expropriation of private land into massive authorization for seizure of public land in the territories. The use of "security reasons" to justify an expropriation was replaced by almost limitless authorization for seizing public land.

Prior to 1977, the policy governing the establishment of settlements was subject to military needs, in the spirit of the Labor Party's traditional intertwining of security needs with the need for settling the land. A few years ago, Albek wrote about this issue: "When the Likud came to power in 1977, this policy underwent a dramatic change. The Likud's approach was that, on the one hand, Jewish settlements should be founded to settle the Land of Israel, and that, on the other hand, the rights of individuals to their assets must be protected. This policy, established by then prime minister Menachem Begin, was firmly consolidated and backed by then attorney general Aharon Barak and was precisely implemented in hundreds of statements of professional opinion written by Barak and by the undersigned."

Following the Elon Moreh affair, the next stage of the High Court's handling of the settlement issue began: Now the court had to deal with petitions aimed at settlements established on public land. However, here the High Court refrained from dealing head-on with the settlements' legality and used arguments that are a classic example of judicial restraint and self-control: "The subject cannot be judged in a court of law" or "The petitioners have no standing in this issue" or "This court will not intervene in a subject that is the province of another branch of the government, especially because this subject might in future be settled in political negotiations."

Attorney Avigdor Feldman, who has appeared before the bench in all the significant petitions presented to the High Court regarding the settlements: "The Supreme Court has always been the settlements' loyal babysitter - starting with the question of land expropriation when the court automatically accepted the `security needs' argument - Elon Moreh was an exception - and ending with the rejection of petitions against the settlements because of `lack of status' - words that, in any other context, are utterly meaningless."

`He's not Arab, he's Norwegian'

The first major verdict after Elon Moreh was given in Peace Now's petition and bears the name of the movement's then secretary general, Gavriel Bargil. Former Supreme Court president, Justice Meir Shamgar, wrote in that verdict: "Courts of law deal with concrete, specific disputes and disagreements, not with abstract political debates. This court will not discuss foreign, security or social policies, when the legal action or the petition is not directly related to a defined dispute."

Another member of the bench, Supreme Court Justice Eliezer Goldberg, added in the above verdict: "There is no room for a judicial decision that does not pertain to individual rights when an extremely important and extremely significant political process is still under way. This is the kind of case that we have before us and which is at the heart of the peace process, which is of supreme importance. Any verdict that would be handed down by this court might be considered direct intervention in the peace process." Goldberg added a sharp reprimand to the petitioners who, in his view, had tried to compromise the High Court: "The petitioners have the right to place a `juridical land mine' on the threshold of this courthouse; however, this court must scrupulously avoid stepping on that land mine, which could end up destroying the court's very foundations, which are the public's faith in it."

The petition was rejected in 1993, one reason for the rejection being its overly political character. Feldman returned to the High Court with a more concrete petition in 1998 - against the expropriation of land for the development of Ma'aleh Adumim. The petitioners argued that the expropriation was unrelated to the territories' administration and was intended solely to extend Jerusalem's boundaries.

The High Court justices, basing themselves on the reasons used in the Bargil case, rejected the petition. They repeated the argument that the subject could not be judged in a courtroom and that any verdict in the case could be construed as intervention in the peace process. "In these conversations between neighbors," wrote Supreme Court Justice Mishael Cheshin in his decision, referring to Israel's negotiations with the Palestinians, "Israel must speak with one voice; one voice, not one voice and an echo that conflict with one another."

Every attempt to change an occupied territory's demographic balance has two sides: first, the introduction of the occupying power's nationals, and, second, the removal of local residents. To its credit, Israel has not exiled local residents; however, it does place obstacles in the way of Palestinians who have left the territories and who wish to return. Feldman notes the judicial system's contribution to this effort: "Before the High Court, I represented an Arab who had traveled to Norway after he married a Norwegian woman. He subsequently divorced her and expressed the desire to return to his village in the West Bank. The army barred his entry, claiming he had lost his residence status. I recall Supreme Court Justice Miriam Ben-Porat cynically remarking that my client was really a `Norwegian.'

"Here was a flagrant example of the court collaborating with the army. If you are a Jew who was born in Alaska and who lived there all your life, you can receive Israeli citizenship within minutes. If you are an Arab and have lived here all your life, you can lose your resident status because of a few years you spent abroad."

The danger of being indicted by an international court

The Rome Statute of the International Criminal Court was adopted on July 17, 1998 and the international court it established recently began to operate. Israel did not sign the statute because of Article 8, which includes, in its definition of war crimes, the "transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies ..."

This was an Egyptian initiative to attempt to define the settlements as a war crime through the transfer of the prohibition from the Fourth Geneva Convention to the Rome Statute and through the expansion of the text ("transfer, directly or indirectly"). Egypt wanted to lead Israel into a trap. The word "indirectly" does not appear in Article 49 of the Geneva Convention. The text's expansion was intended to define as a war crime not only an act in which a state initiates the direct transfer of nationals but also an indirect transfer - the creation of an infrastructure or even "looking aside" and enabling the occupying power's nationals to take up residence in the occupied territory of their own accord.

Attorney General Elyakim Rubinstein was aware that a trap was being laid for Israel and, upon his recommendation, Israel decided not to become a member of the International Criminal Court, a fact that has reduced the danger that this court could indict Israeli leaders.

Nevertheless, there is still the danger of an indictment, claims Prof. Yoram Shahar of Herzliya's Interdisciplinary Center: "The International Criminal Court obtains its authority in three ways. The first two do not `threaten' Israel. The first is the authority to indict citizens of a state that has signed the Rome Statute of the International Criminal Court, and Israel is not a signatory. The second is an indictment for crimes committed on the territory of a state that has signed the statute, and the Palestinian Authority is not yet a state. The third way is the lodging of a complaint against a state and its leaders by the United Nations Security Council. Such a complaint will not be lodged as long as the United States exercises its veto. However, if the U.S. should become angry with us and withdraw its veto, all our leaders run the risk of being indicted."

What about the possibility of the settlers' evacuation? When that question is raised, the settlers themselves refer to international law, arguing that their removal would be a population transfer, a crime against humanity. For that argument to hold water, the settlement's legality would first have to be proven. However, assuming the settlers could be evacuated in a peace agreement, would there be any basis for their possible demand that they be allowed to remain as a minority in a future Palestinian state?

"Such a claim," observes Prof. Eyal Benvenisti of Tel Aviv University's Faculty of Law, "could base itself on several sources: on the existence in the field of Jewish property, for example, in the Etzion Bloc and Beit Hadassah; there are 16,000 dunams (4,000 acres) of Jewish land purchased before 1948; on the claim that there are second- and third-generation settlers for whom the territories are their `native landscape'; or on a `mirror argument' or the argument of offsetting the Palestinians' claim to a right of return. International law does not recognize that right; however, the right derives its impact from the continual repetition of its existence."

Whether the settlements are a war crime or a violation of international law, their existence has created a domino chain of offenses. To ensure the settlements' safety, land is expropriated for the paving of highways, which only the settlers are authorized to use; to protect them, entire groves are "shaved" and thus the local population's territories and sources of livelihood are eroded. In addition, a separate code of law applies to the settlers and the code's application is partial and flawed, as noted in the report by the Shamgar commission on the massacre in Hebron's Tomb of the Patriarchs. That report expressed criticism on the manner in which the law is enforced on settlers.

Although settlement activity has been going on for nearly 30 years, the world has not intervened. While Israel is paying a price in diplomatic and economic terms, it has managed to evade international sanctions. The principal reason is American support for Israel. Prof. Shahar has an additional explanation: "The international community is not convinced that the settlements are a serious crime. There has been no genocide here, no wholesale devastation of territory, no mass rapes, no concentration camps, no mass starvation and no systematic deportation of local residents. There has been no Kosovo or Rwanda here - the sort of situations that arouse the international community to act."

However, Prof. Shahar believes that, although Israel has not been forced to pay a price in the short run, it could wind up paying a high price in the long run. "In my opinion," he says, "the transfer of a population to a hostile territory is a serious danger in long-range terms because it perpetuates the dispute and destroys any true chances for the dispute's resolution. A classic example is the Protestant settlement in Catholic Ireland that has created perpetual tensions and hostility." n



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