The construction of Jewish-only settlements by the State of Israel on lands it had acquired subsequent to the 1967 War with its Arab neighbors continues to be a center of contention in the ongoing Palestinian-Arab/Israeli Conflict. The legal standpoint and consequences of such settlements remain a topic of heated debate in international law as well. The territories Israel had come to control after 1967 have been declared occupied by the United Nations Security Council (UNSC), the International Court of Justice (ICJ), and a number of international organizations. The UNSC and the ICJ have also considered the construction of those settlements to be illegal (UNSC Resolution 446 and ICJ’s 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory). Halting the construction of such settlements, however, has not been a successful endeavor on behalf of those aforementioned international institutions, some of which retain jurisdiction over such matters. A lingering question thus arises: does a strong and effective international legal mechanism exist to counter the construction of Israeli-Jewish settlements in ‘the Occupied Palestinian Territories’ (OPT)? Moreover, through the insights provided by this case, how well is international law equipped in dealing with cases entailing occupation and its particularities, such as an occupier’s construction of settlements in occupied lands, in the twenty-first century?
International law is not silent on cases of occupation, and a copious body of law exists that attempts to address the particularities of such a situation. In vying for an answer to this question, the area of international law that pertains to occupation is identified and outlined, the legal status of the Palestinian territories and that of the Israeli-Jewish settlements is explained, and the contending views on the effectiveness of international law with respect to the Israeli Occupation and the settlements issue are surveyed in the following paragraphs. Afterwards, this paper concludes that a detailed legal framework that addresses cases of occupation, and the many injustices that may entail from it, does exist in international law. Nevertheless, this legal framework is ineffective in bringing about a complete halt to the construction of Israeli-Jewish settlements on occupied Palestinian lands. This is due to the law’s inaccuracy and vagueness in addressing a number of issues, its failure to answer crucial questions with respect to an occupier’s obligations under the law, and its lack of a clear and detailed provision to hold accountable violators of the law and to amend an unlawful situation.
International Law and the Question of Occupation
In international law, the Hague Regulations and the Fourth Geneva Convention are the most significant treaties that address cases of occupation, the occupied peoples’ rights, and the occupier’s legal duties and obligations. They constitute part of the body of law known as international humanitarian law (IHL), which is the branch of international law that deals entirely with laws pertaining to civilians in military conflict, and that is in turn profuse with provisions that address the different aspects of occupation. The Hague Regulations, drafted and signed in 1907, incorporate the important Article 42 which is considered by a number of legal scholars to be “the only legal basis on which the determination of the existence of a state of occupation can be made” (Ferraro 2012, 139). The provisions that pertain to occupation furthermore reside in Articles 42-56. The Regulations moreover encompass provisions that address the rights of the occupied, such as Article 46, which stipulates that an occupied peoples’ family and religious beliefs must be respected, and that their private property must not confiscated. In addition to the 1907 Hague Regulations, the Fourth Geneva Convention, drafted after the conclusion of World War II in 1949, has expanded on the former’s provisions (Tilley 2012, 61) and wholly pertains to “the Protection of Civilian Persons in Times of War.” The Convention’s articles relevant to occupation are Articles 27-34 and 47-78 (ICRC 2004). Additionally, Article 49(6) of the Geneva Convention directly addresses and prohibits population transfer and the construction of settlements by an occupied power in an occupied territory, as it establishes that
[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
Therefore, an occupying power that proceeds to transfer parts of its civilian population to physically reside in its occupied territory is in violation of the Fourth Geneva Convention, and thus of IHL. Finally, it is noteworthy that these conventions have been formulated with the advent of the Nuremberg Trials and in response to the war crimes of the Second World War (Tilley 2012; Blumenthal 2002).
Moreover, the Rome Statute, which was drafted in 1998 and which through its provisions established the International Criminal Court (ICC), also addresses the settlements issue through Article 8(2)(b)(viii). This article deems an occupying power’s transfer of parts of its civilian population into occupied territory to constitute a war crime. Finally, the ICJ, in its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, had ruled that these aforementioned provisions constitute customary international law. Thus, a violator of those provisions does not need to be party to any of the above-mentioned conventions or treaties in order to be obliged to uphold them (Shehadeh 2008, 34; ICJ 2004, para. 157).
The ‘Occupied Palestinian Territories’ and the Construction of Settlements
The term Occupied Palestinian Territories (OPT) is delineated for the Palestinian lands that have come under the control of Israel following the 1967 War, namely the Gaza Strip, the West Bank, and East Jerusalem (Tilley 2012, 35). Israel began the construction of civilian, Jewish-only settlements on those Palestinian lands and has connected them to Israeli cities through a network of direct roads (Jabarin 2014, 424). In November 1967, the UNSC issued Resolution 242 in which those territories were considered occupied. In 1979, thirteen years after the occupation of the Palestinian territories, the UNSC issued Resolution 446 in which it established the illegality of the Israeli-Jewish settlements; the resolution, in addition to the ICJ’s 2004 Advisory Opinion, reaffirmed the applicability of the Fourth Geneva Convention to those “occupied territories” (ICJ 2004, paras. 99-120). Furthermore, the ICJ also concluded that the Israeli-Jewish settlements built on them are illegal by virtue of Article 49(6) of the Fourth Geneva Convention and that, as a result, Israel is in breach of international law (ICJ 2004, para. 120).
The UNSC Resolutions and ICJ Advisory Opinions have not remained immune to legal contestations. This is particularly evident in Israeli contestations to the legal status of the Palestinian lands after 1967. Ambassador Alan Baker, in “The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords,”argues that the Fourth Geneva Convention no longer applies to the Palestinian territories. That is due to the fact that the signing of the Oslo Accords in 1992 has ushered in new circumstances and has recognized a representative leadership, namely the Palestinian Authority (PA), for the Palestinian territories (Baker 2011, 36-37). This, Baker argues, is legally sound because such an agreement, namely the Oslo Accords, has created a special regime between the Israeli state and the PA (Baker 2011, 37). In other words, Baker is essentially arguing that the provisions of the Fourth Geneva Convention do not apply to the Palestinian territories because they are effectively and currently unoccupied. This sheds light on the significance of recognizing a territory to be legally occupied under international law. If a legal status of occupation does not withhold, invoking provisions such as those contained in the Fourth Geneva Convention may become irrelevant. Nevertheless, this stance seems to be one in contrast to that adopted by the ICJ, UNSC, international law scholars, and other key members of the international community (Tilley 2012, 36). Virginia Tilley, in Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories, maintains that this argument does not withhold with respect to the OPT. The Oslo Accords, Tilley contends, were not signed between two high —in other words, equal— contracting parties, a necessity provisioned by the Fourth Geneva Convention in order for this agreement to be considered binding under international law (Tilley 2012, 41-43). Tilley furthermore argues that the PA never maintained sovereignty in those territories, as Baker both explicitly and implicitly contends; thus, at the time the Oslo Accords were concluded, Israel had still maintained effective control and territorial jurisdiction over the Palestinian territories (Tilley 2012, 39-45). It is noteworthy that the exercise of effective control is “the basis of authority of the occupier” and is a yardstick in international law to determine the existence or lack thereof of an occupation (Shaw 2008, 1178).
In brief, establishing the fact that those territories are under actual occupation is of utmost significance when it comes to assessing the legality of the settlements issue. The provisions regulating the issue of settlements and population transfer by an occupying power into its occupied territory will only apply if the territory in question is legally considered to be under occupation. It appears that the tenets of IHL directly address the issue of the settlements and establish their illegality, namely Article 49(6) of the Fourth Geneva Convention and Article 8(2)(b)(viii) of the Rome Statute. In turn, such tenets are earnestly upheld by the ICJ and the UNSC in their respective advisory opinions and resolutions. However, the construction of Israeli-Jewish settlements continues, and holding Israel responsible for them as an occupying power is being constantly and legally challenged. Therefore, in light of such circumstances, the effectiveness of IHL in dealing with and remedying situations of occupation, and particularly in addressing and remedying issue of population transfer by an occupier, comes into question.
Contending Perspectives: Debating the Effectiveness of IHL
With respect to the effectiveness of IHL and the provisions of the relevant conventions, two sides to the debate are easily discernible. The first set of arguments views IHL in a positive light, where it is deemed equipped to deal with cases of occupation and with the issue of the settlements. If there is a problem then it emanates from the application of the law and not from the law itself. On the other hand, the second set of arguments perceives IHL as imprecise, inadequate, and ineffective in dealing with cases of occupation and with the issue of settlements. In order to attain an overview of the distinct perspectives on the law, surveying both sets of arguments is of utmost necessity.
The first set of arguments is presented through those made by David Scheffer, Shawan Jabarin, and the ICRC Experts’ Report in 2012. The argument put forth by Scheffer and Jabarin is that the law is essentially equipped to deal with cases of occupation; the problem resides in its application. Jabarin, in “The Occupied Palestinian Territory and International Law,”argues that the law can fully respond to the OPT as long as it is applied impartially (428). With respect to the issue of “prolonged occupation,” Scheffer argues that “[t]he law has been designed to encourage temporary occupation and to establish rules for that temporary occupation” (848). In other words, the fact that the law is silent on the issue of prolonged occupation should not be construed as a limitation of the law, but rather as a meticulous legal aspect that helps put an end to non-temporary occupations. The fact that many occupations are characterized as being prolonged and have not been terminated by the provisions of the law, is not addressed by Scheffer. Finally, the ICRC Experts’ Report in 2012 argues that the law is intended to be flexible in order to best respond to “the humanitarian and legal challenges arising from contemporary occupations” (Ferraro 2012, 2). The ICRC Experts’ Report moreover considers the law to be fully adequate in responding to cases of occupation (Ferraro 2012, 2).
The second set of arguments is presented through those made by Tristan Ferraro, legal advisor of the International Committee for the Red Cross (ICRC), and Virginia Tilley, author of Beyond Occupation. Both authors argue that the problem resides in the law itself: its imprecision, its inadequacy, and its ineffectiveness in dealing with cases of occupation and with the settlements. Ferraro argues, in “Determining the Beginning and End of Occupation in International Humanitarian Law,” that the law is imprecise as to when an occupation formally begins and ends (Ferraro 2012, 133). This is further substantiated by Tilley’s argument which maintains that the drafters of the law drafted it on the premise that occupation is temporary, and thus the law is inadequate in addressing cases of non-temporary, or prolonged, occupation (60). The fact that the Israeli occupation can be classified as a “prolonged occupation”—it is almost fifty-years long— has been continuously invoked by the Israeli authorities to mean that it is not bound by the provisions of the Fourth Geneva Convention (Tilley 2012, 61). The law’s failing in this respect, it is argued, renders it ineffective. If establishing the legal status of occupied lands as occupied under international law is an arduous and uncertain undertaking, then holding the occupier responsible to its obligations becomes all the more difficult.
Subsequent to assessing the provisions of the law, the relevant advisory opinions and resolutions, and the different views on the matter, it can be contended that the law is in fact ill-equipped to deal with the settlements issue. It is strong in establishing the illegality of the settlements. However, it retains three failings or shortcomings: its inaccuracy and vagueness on several occasions, its failure to answer crucial questions with respect to the occupier’s obligations under the law, and its lack of a clear and detailed provision to hold accountable violators of the law.
First, the law’s incorporation of a number of vague provisions is evident in the difficulty in determining when an occupation legally begins and ends (Ferraro 2012, 134). An exact duration of an occupation is not mentioned anywhere in the provisions of the 1907 Hague Regulations and the Fourth Geneva Convention. This has, on a number of occasions, substantiated Israeli claims that its presence in the OPT does not constitute a legal occupation, and that the nature of its occupation is different given that it is prolonged (Tilley 2012, 60). Second, what ought to happen when an occupier does not only fail to uphold its legal obligations, but is also constantly circumventing them? In other words, what are the practical consequences, if any, suffered by those who breach IHL? Through a reading of IHL’s provisions, it appears that the law does not address such a matter. As mentioned earlier, it directly addresses the obligations that are to be upheld by the occupying power in its occupied territory. It does not however address the consequences of failing to uphold such obligations. This does not seem like a flexible aspect of the law, but rather indicates the law’s silence on a vital matter: how to remedy illegal situations. Third, the law is silent on ways to reverse a situation that involves population transfer by an occupying power. Even though the ICJ’s 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory acts as a supplementary source of the law, it too fails to outline specifically how such a violation is to be mended. In the ICJ’s 2004 Advisory Opinion, Israel was obligated to pay reparations to those adversely affected —in this case, whose lands were confiscated—and to compensate for the material damage it incurred in the territories by its construction of “the wall” which is interconnected with the settlements (ICJ 2004, paras. 149-154). The ICJ explicitly stated that
In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered.
Although this statement retains a number of stark limitations, it merely addresses Israel’s responsibility towards those affected by the construction of the wall. With respect to the construction of the settlements, however, the Court merely concludes that they are in breach of international law and does not further elaborate. Moreover, even if the word “its associated regime” (ICJ 2004, paras. 149-54) is interpreted to refer to the settlements, then compensating those who were adversely affected almost fifty years ago is temporally impossible. “The persons in question for the damage suffered” is also too generic of a category to render a truly effective, impartial resolution to the problem of the settlements.
Finally, the ICC, under whose provisions the settlements are considered to be war crimes, can seem to provide for such a mechanism that would enforce the law and put an effective end to the settlements’ construction. However, the ICC can only hold individuals responsible, and it remains that under the ICC “[t]he consequences of…[committing war crimes]…remain internal”and universal jurisdiction remains non-existent (Henckaerts et. al 2005, 571). Moreover, many of the crimes that reside under the ICC’s jurisdiction are, as a matter of fact, challenged by Israel; the crime that pertains to the settlements is among them (Blumenthal 2002, 601). Therefore, the prospects of effectively halting the construction of Israeli-Jewish settlements through the ICC’s jurisdiction are low, even with the accession of the Palestinian Authority to the Rome Statute earlier in 2015.
In conclusion, it appears that a strong legal framework that establishes the illegality of the Israeli-Jewish settlements exists in international law. This framework is essentially international humanitarian law (IHL): the provisions of the 1907 Hague Regulations and the Fourth Geneva Convention, in addition to the Rome Statute to address breaches of IHL. In fact, IHL deems the construction of the Israeli-Jewish settlements to be illegal and, under Article 8(2)(b)(viii) of the Rome Statute, amounting to a war crime. The failings or shortcomings, however, reside in three aspects: its inaccuracy and vagueness on several occasions, its failure to answer crucial questions with respect to the occupier’s obligations under the law, and its lack of a clear and detailed provision to hold accountable violators of the law. Moreover, provisions that set out the details to mend and to overturn the damages incurred by the construction of the settlements are not incorporated into the body of law that governs occupation. Therefore, international law, while it is fully-equipped in establishing the illegality of the settlements, is ill-equipped in countering and effectively halting their construction, and in fully responding to cases of occupation in the twenty-first century.