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Is Israel in Violation of International Law?

Last week I blegged for information about this question, set forth my preliminary understanding of the issue, and enjoyed reading many excellent comments, pro and con, on the topic. I would now like to ask commenters for more analysis on two precise issues.

It seems to me that the strongest argument that Israel is in violation of international law is based on United Nations Security Council Resolution 446. Passed 12-0 (with the U.S. abstaining), the 1979 Resolution tells Israel to stop building settlements in the West Bank and Gaza. (The latter were abandoned in 2005, are so are now irrelevant to my question.) Arguments can be made that the Resolution is predicated on a defective reading of the Fourth Geneva Convention, but there is a good counter-argument that even if the Security Council's resolution is wrong, the resolution is still binding, as a matter of international law.

To be precise, Security Council resolutions adopted under Chapter VII of the U.N. Charter are binding, whereas resolutions adopted under Chapter VI are not. Resolution 446 does not state its source of authority; Wikipedia's discussion section contains some pro/con arguments on whether 446 is a Chapter VII resolution.

A second international law argument against Israel is that the West Bank settlements and the defensive barrier both violate the Fourth Geneva Convention. A key weakness in this argument, though, is that the Convention by its own terms applies only "between two or more of the High Contracting Parties." Israel is a High Contracting Party, but there appears to be no other High Contracting Party which can claim that Israel's West Bank policies violate the Party's Geneva Convention Rights. (Jordan is exercised sovereignty in the West Bank from its 1948 invasion of Israel until Jordan attacked Israel again in 1967, and was thrown out of the West Bank. Jordan later abandoned all claims of sovereignty to the West Bank.)

Israel has unilaterally said that it will follow parts of the the Fourth Geneva Convention regarding the West Bank, and Israel contends that it is following the Convention; but this argument seems less relevant, legally speaking, than whether Israel is legally obliged to obey the Fourth Geneva Convention.

The arguments that Israel has a legal obligation to do so seem extremely weak. For example, some people cite Article 1 of the Convention ("The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.") as if it makes a nullity of Article 2's specific deliniation of the only circumstances in which the Convention is legally applicable.

The article Laurence E. Rothenberg & Abraham Bell, Israel's Anti-Terror Fence: The World Court Case (2004), seems to make a quite persuasive case that the Fourth Geneva Convention is not legally applicable to the West Bank, even though I do not find every single argument in the article to be persuasive.

So I am asking commenters for legal analysis of whether Sec. Res. 446 is a binding Chapter VII resolution, and whether the Fourth Geneva Convention is legally applicable in the West Bank. Please focus on the legal issues, rather than pro/con arguments about Zionism etc. Most commenters for my previous post did a good job of keeping a legal focus, except for one repeat-offender ranter who had to be barred.

Related Posts (on one page):

  1. Is Israel in Violation of International Law?
  2. Legal Status of Israel's Border and its Defensive Barrier:
Raw_Data (mail):
I am sure that this line of questions is interesting and maybe even of some relevance. But I find it hilarious that so much attention is paid to the niceties of international law when it comes to Israel but violations of human rights (far, far worse than anything the israelis are accused of doing) of so many other nations are simply ignored. It's really absurd. But that is just a parenthetical observation.
3.6.2006 6:40pm
DAWeinstein (mail):
Very strange (for me) to be posting what follows, but it seems very relevant. I once argued that Israel was in violation of resolution 446 in an email to someone at the Corner, who posted it. He later received and posted response that follows. I have no idea whether it is accurate or not, but here it is:

"I know this is getting a bit technical, but the Security Counsel resolutions come under two basic headings, those under Chapter 6 and those under Chapter 7 of the UN charter. From what I can tell, the resolutions involving Israel, including the one referenced in your posting in the Corner, are Chapter 6 resolutions. The Iraq issue was handled under Chapter 7. To simplify it, Resolutions under Chapter 6 are "sense of the Council"
resolutions ( I use that term loosely). Chapter 7 resolutions are binding obligations of the parties."
3.6.2006 7:18pm
A. Bell (mail):
I looked at Wikipedia, and the posters appear not to be familiar with international law on the subject. To put the matter quite simply: I no of no one serious who claims that resolutions are interpreted to be under chapter VII authority in the absence of an invocation of chapter VII or chapter VII powers in the resolution. Thus, I do not recall ever hearing any serious claim made that 446 was passed under VII. The Resolution does not invoke the chapter. It does not invoke a "threat to intenational peace and security." It does not reference any resolution based in chapter VII. It does not purport to exercise powers within chpater VII. In other words, it contains nothing whatsoever that could serve as the basis of a claim that it is a chapter VII resolution.

In any event, it is hardly evident why this is a persuasive argument that the barrier is in violation of international law. Granting arguendo that 446 is binding and therefore requires Israel to apply the Fourth Geneva Convention to the West Bank and not to establish settlements in the West Bank, it does not follow that Israel may not build a defensive barrier in West Bank territory. A belligerent occupant may requisition territory and build structures as required by military necessity. The primary mission of the barrier is clearly not to defend settlements -- the overwhelming majority of settlements are on the wrong side of the barrier, for one. The suicide attacks on Israeli civilians cited by Israel as the reason for the barrier have primarily not taken place in the settlements for another. But even granting arguendo the argument that the sole mission of the barrier in its current route is to defend settlements, it hardly follows that the "illegality" of settlements eliminates the military necessity of the barrier. To put it bluntly: even if Israel should not have "transferred" Israeli citizens to the West Bank, Israel may still defend the lives of those citizens against terrorist attacks. The best argument that could be made here by the Palestinian side is that international law has a doctrine of ex turpi causa non oritur actio - a right cannot stem from a wrong, ergo Israel's right to build a barrier in military necessity cannot stem from the wrong of building settlments. But, of course, Israel can counter that the Palestinian right to oppose the barrier cannot stem from the wrong of Palestinian terrorist attacks that violate international humanitarian law and constitute crimes against humanity. I don't know of any doctrine in international law that strips a country of the right to defend its citizens against illegal attack simply because the country has illegally permitted the civilians to be located in the position in which they are targetted.
3.6.2006 8:29pm
A. Bell (mail):
PS. One of the sources cited in the Wikipedia article makes a more convoluted claim, albeit one that is unsustainable. The source is an argument that Israel must abide by relevant SC resolutions because (a) the SC invoked chapter VII in a 1948 resolution calling for an end to fighting in Israel's war of independence; (b) SC resolutions may also be adopted by authority of Article 24 establishing that in exercising its duties under the Charter, the SC " shall act in accordance with the Purposes and Principles of the United Nations" and (c) the resolutions are "declaratory of the existing legal situation."

These arguments are as silly as they sound. (a) The fact that Israel and the invading Arab states were asked to stop fighting a prior war does not mean that every subsequent resolution regarding different wars and military action was under chapter VII. (b) Article 24 is obviously not an indpendent source of authority, and even if it were, nothing in its terms makes article 24 resolutions binding. (c) Declaratory resolutions are no stronger than the legal situation they declare; thus, if Israel is not in violation of the Fourth Geneva Convention, the SC declaring such a violation does not make it so.
3.6.2006 8:43pm
SuperChimp:
I would tend to view SC Res 446 as a non-binding Chapter VI resolution for three reasons.

First, there should be a rebuttable presumption that an SC Res is non-binding because (1) dozens are issued every year and (2) those that choose to be binding Chapter VII Resolutions can do so by way of a specific declaration on the matter.

Second, SC Res 446 creates a commission to further explore the matter and report back to the SC on a later date. Although typical for the UN, this in no way signals a binding Chapter VII SC Res. Rather, it points to a non-binding Chapter VI SC Res that might become binding when the Commission reports back to the SC.

Third, the SC Res seems to conform (albeit loosely) to the requirements of the UN Charter. Specifically, Chapter VII explicitly requires the SC to determine whether there has been a "threat to the peace, breach of the peace, or act of aggression." SC Res 446 never made any such explicit determination (though it did determine that Israel's actions constituted a "serious obstruction" to peace). Moreover, Chapter VII requires the SC to either make a recommendation or take action (ie, economic sanctions, blockades, or the use of force). In this case, the SC did not take any action and did not make a recommendation (it merely created a Commission which would make future recommendations).

These are unquestionably the hallmarks of a non-binding Chapter VI SC Res, not a binding Chapter VII SC Res determining a specific breach of the peace and making an explicit recommendation or taking a course of action.
3.6.2006 8:55pm
Nephtuli (mail) (www):
The International Court of Justice has argued in the past that the Security Council has powers that exceed the Charter's express grant. In its 1996 opinion "LEGALITY OF THE USE BY A STATE OF NUCLEAR WEAPONS IN ARMED CONFLICT" the Court recognized that international organizations have "implied powers." In its 1971 Namibia opinion, it recognized that the Security Council can pass resolutions under these powers which are binding under Article 25. So according to the ICJ, Resolution 446 could be binding under those powers.

I believe this argument fails because Chapter 24(2) states "The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII." In other words, those powers and no other. So if a resolution does not fall within those Chapters its not only not binding, but an ultra vires.

As an earlier poster stated resolutions under Chapter VII must "determine the existence of any threat to the peace, breach of the peace, or act of aggression" before it invokes its decision making power under Articles 41 or 42. Since 446 contains no determination of the sort, it cannot be under Chapter VII and is therefore not binding.
3.6.2006 9:04pm
SuperChimp:
Clarification--

"Third, the SC Res seems to conform (albeit loosely) to the requirements of the UN Charter [Chapter VI, NOT Chapter VII]."
3.6.2006 9:55pm
John (mail):
Is it persuasive that the U.S. abstained? I would think if the resolution were to have been binding the U.S. would not have abstained.

Has anyone asked the State Dept. what its view is?
3.6.2006 10:06pm
asdfadsfasdfadsf:
Regarding the 4th Geneva Convention the following clause seems relevant:


In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: I to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, and 143.


So even if you deem the Palestinian territories occupied territories (which Israel disputes) it seems the creation of the PA under the Oslo accord would have ended much of its obligations.
3.6.2006 11:40pm
asdfadsfasdfadsf:
Regarding the 4th Geneva convention, what clause exactly are the security wall/fence/barrier and the settlements alleged to violate?

I vaguely recall some prohibition against establishing settlements in occupied territories but I can't find it now in the text. Am I missing it or was it from some other convention.

Regarding the wall/fence/barrier it seems hard to argue it would violate the 4th convention. Under that convention it would allow Israel to round up every Palestinian and keep them in internment camps.

It seems hard to imagine it's illegal to leave civilians in their own homes in their own town albeit with travel restrictions but perfectly legal to round them up and force them to live in internment camps.
3.7.2006 12:07am
Jess Askin (mail):
Yawn. This again?
3.7.2006 8:12am
Anderson (mail) (www):
I am looking forward to the list of authors for Prof. Kopel's article.
3.7.2006 9:35am
asdfadsfasdfadsf:
Reading this

It seems the ICJ ruling on the wall/fence/barrier relied on not just the 4th Geneva convention but also the "Hague Regulations of 1907" and the International Covenant on Civil and Political Rights.

But the part of the 4th Geneva convention cited in the ruling (Jordan is identified as the other High Contracting Party) is Article 49(6) which reads:
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

If you accept that the territories are occupied territories (which Israel never accepts, since it never accepted the armistice lines as its borders) and you accept that Jordan is at all relevant any more then that would clearly describe the settlements. I'm not clear it's relevant to the wall/fence/barrier but I could see how an argument could be made since its path encloses many settlements.
3.7.2006 9:52am
asdfadsfasdfadsf:
As an aside I'm fascinated by this excerpt from that article:

The Court held that Article 51 is irrelevant. This article recognizes the inherent right of self-defense "in the case of armed attack by one state against another state." Since Israel does not claim that Palestinian attacks, which originate from territory under its military control, are imputable to a foreign state, it cannot invoke Article 51.


How can they have simultaneously ruled that no foreign state is involved and that Jordan is relevant as a high contracting power? I mean, I can see the semantics (Israel doesn't claim it so even if its true they don't get the rights it confers) but it's not exactly rational.
3.7.2006 9:56am
Jeek:
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

On the face of it, this seems to be describing active / forcible population transfers by a government, not the voluntary movements of individuals. Is a government "in violation" if it passively tolerates its citizens freely migrating to an "occupied area"?
3.7.2006 10:20am
asdfadsfasdfadsf:
I think it does, "transfer" doesn't sound terribly forceful to me and Israel does (or has in the past) induce citizens to move to them. The convention generally isn't concerned with protecting the rights of your own civilians but of those other party's. At least for the official state constructed settlements. The case for the illegal (under Israeli law) unsanctioned settlements would be weaker. It would be odd if those were legal under the convention but the official ones were illegal.

Israel would say it's not transferring people into occupied territories at all. It's transferring people from one part of Israel to another. That the territory in question was territory that Jordan and Israel both claimed possession of and were of disputed sovereignty. Jordan has since given up any claim of sovereignty which leaves its status all the more vague.
3.7.2006 10:59am
Soccer Dad (mail) (www):
There are a number of papers defending Israel's position here.
3.7.2006 11:15am
Unamused:
I didn't think there was any question that Chapter VII resolutions must explicitly state that the UNSC has "determined" that there is a breach of the peace, or of international peace and security. See the Korean War resolutions and the 1990/1991 Iraq War resolutions.

Res. 446 (1979) "Stress[es] the urgent need to achieve a comprehensive, just and lasting peace in the Middle East."

Res. 82 (1950) "Determines that this action [the invasion of South Korea] constitutes a breach of the peace."

Res. 660 (1990) "Determin[es] that there exists a breach of international peace and security as regards the Iraqi invasion of Kuwait."

Any suggestion that Res. 446, or any of the Israel-Palestine resolutions, were made under Chapter VII is laughable, but that's typical for anti-Israel interpretations of UNSC resolutions.
3.7.2006 12:03pm
Unamused:
Even assuming the Fourth Geneva Convention applies (and I don't see how it can under Article 2), how would building settlements violate any provisions of the 4GC that apply to occupied territories?

Article 49 applies to occupied territories, and prohibits "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," which obviously isn't happening.

Article 53 prohibits "Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations," which also isn't happening to build the settlements.
3.7.2006 12:37pm
asdfadsfasdfadsf:
Unamused: article 49 paragraph 6 which I quoted above specifically talks about moving people into the occupied territory.

I think it's clear that *if* these are occupied territories and *if* the convention applies then Jordan is an aggrieved party because the settlements violate paragraph 6 and prejudice Jordan's claim to those areas.

Israel would say these were always part of Israel proper and the fact that it agreed to an armistice in 1949 didn't forfeit its claim to them or make them occupied territories when it reclaimed them. Israel would say that until there's a border Israel and Jordan agree to (which presumably is the Jordanian border today) and there is military occupation beyond that border you can't talk about occupied territories.

I'm not sure that's actually reasonable since that's pretty much any aggressor's claim. Iraq claimed Kuwait was really always part of Iraq, Germany claimed it was liberating the Sudenland, ...

Here it's particularly hard to define occupation since there were *never* any accepted borders in modern times. The nation was essentially created from whole cloth. The Convention was written with land like Europe in mind where borders have been in place for centuries.
3.7.2006 1:12pm
Brian G (mail) (www):
Israel in violation of international law because it didn't do what the ridiculously anti-Israel U.N. wanted? Sorry, but that just doesn't get me interested.
3.7.2006 1:49pm
Unamused:
asdf:

4GC 49(6): "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."

What exactly does that mean? Why "deport or transfer" instead of just "transfer?" I don't think that's meant to forbid even one citizen of the Occupying Power from moving his home to the occupied territory. What is necessary for an Occupying Power to "transfer parts of its own civilian population in the territory it occupies?" "Parts of its own civilian population" is also troubling; it can't be intended to mean the same thing as, for example, "its own civilians," or "members of its own civilian population." Why parts? That suggests some kind of cohesive subpopulation. A state-organized settlement program could reasonably be considered within 49(6), but depending on the circumstances, it could also be considered excluded. The text by itself doesn't help me.

There's also this problem in Article 6: "In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: [49 included here]."

You're wrong that Israel would say these territories "were always part of Israel proper." That makes no sense, logically or historically. The 1949 armistine lines were drawn according to the territory that Israeli and Arab forces controlled on the date of the armistice. That's why, for example, Mount Scopus, an enclave in eastern Jerusalem under Israeli control surrounded by Arab territory, became Israeli territory. It's also why Israeli forces rushed to conquer the Negev and secure Eilat in the last days before the armistice: to strengthen Israel's claim over the territory in the peace settlement. There never was an "Israel proper," just armistice lines that were never meant to be permanent or even logical.

Israel's position from a month after the 1967 war until 1994 was consistently that the territories it occupied were disputed, and that it exercised de facto sovereignty over them until de jure sovereignty and the final disposition of the territories was decided by a negotiated settlement with its sovereign state neighbors. It couldn't really occupy, in any legal sense, territory that never had any power in de jure sovereignty.

After Oslo, Israel still has consistently argued that the territories remain disputed. The difference is that Israel signed a peace treaty with Jordan in 1994 that fixed the Jordanian border, and the dispute over the West Bank is now between Israel and the Palestinian occupants of the West Bank. De jure sovereignty is still indeterminate pending a final settlement.

It's been more than one year after the general close of military operations. "Occupation" is not defined. Since Jordan gave up any legal claims to the West Bank, it's nothing de jure. I just don't know how 4GC would or should apply, and you're right that it wasn't intended to cover this situation. Frankly, nothing in international law was.
3.7.2006 2:12pm
asdfadsfasdfadsf:
You're wrong that Israel would say these territories "were always part of Israel proper." That makes no sense, logically or historically. The 1949 armistine lines were drawn according to the territory that Israeli and Arab forces controlled on the date of the armistice.


Said armistice explicitly said "no provision of this Agreement shall in any way prejudice the rights, claims, and positions of either Party hereto in the peaceful settlement of the Palestine questions, the provisions of this Agreement being dictated exclusively by military considerations"

Maybe I overreached to say Israel considers them part of Israel proper. But to be disputed territories, even if a settlement is implicitly acceptable, presumably each side of the dispute must stake at least a provisional claim to the entire territory under dispute otherwise it wouldn't be, well, disputed.

I think you just restated the same thing I stated except much more precisely and rigorously.
3.7.2006 2:22pm
Retief (mail):
asdfadsfasdfadsf, does the PA excercize the functions of government that would allow it to evict settlers and close settlements? Clearly not. So the clause you cite would seem to indicate that the current absence of a second High contracting Party would not, in the case of an occupation, be an impediment to the ongoing legal applicability of Article 49 regarding population transfers. Article six, as you point out, says that: the present Convention shall apply from the outset of any conflict or occupation (such as the war with Jordan) mentioned in Article 2. ... In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: ...49...

So did the peace treaty with Jordan end the legal Occupation? Or does the creation of the PA without letting it "excersize the functions of government" relevant to Article 49 indicate that it should still be in effect regardless of Jordan's choices? That these are still occupied territories at least with regards to some functions of government?
3.7.2006 3:48pm
asdfadsfasdfadsf:
Actually I find this clause a bit puzzling. It seems like it would survive indefinitely after any war where territory changed hands.
3.7.2006 4:02pm
Unamused:
Unless, by Jordan's cession of sovereignty over the territories, they are no longer occupied. I don't see how you can have a military occupation of territory that doesn't belong to anyone else. Then it's just yours.
3.7.2006 6:16pm
simsim:
The Geneva Conventions apply: "to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties..." (art. 2)

This was the case in 1967, thus the Convention applies to the West Bank. The treaty with Jordan explicitly did not change the status of these territories, so it is quite irrelevant on this matter.

Israel sometimes invoke the second paragraph of GCIV art2:

"The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."

...and argue that the West Bank never was a de jure part of Jordan. Note the "shall also" in the text. The travaux preparatoires of GCIV show this paragraph was included to make the convention also apply to cases of occupation where the invading forces met no opposition, thus arguably falling outside the state of "armed conflict". The paragraph is not intended to limit the application of the convention. As the first criteria already is met, the convention is applicable to these territories, regardless of whether it would apply from an isolated reading of the seond paragraph.

To the question of occupied or not, this is determined by art 42 of Hague IV of 1907, which show Israel occupied these territories in 1967 ("Territory is considered occupied when it is actually placed under the authority of
the hostile army").

As for GCIV art. 49(6), the authorative ICRC commentaries, available online, make it clear 'transfer' here not refers to forcible transfers only: the convention is intended to protect the local population, it is thus irrelevant whether the movement into occupied territory is forcible or not, the protection granted by GCIV is by definition not for the Occupying Power's nationals. Note that the first paragraph of article 49 speak of "forcible transfers" where paragraph six speak of "transfers" (omitting "forcible").

This legal conclusion is shared by a unanimous International Court of Justice (this includes the dissenting American judge T. Buergenthal, read his dissenting opinion where he agrees with the application of GCIV, the illegality of the settlements, and that the parts of the Wall built to protect them are ipso facto in violation of IL). Their legal reasoning is available online.

Turning to res 446, as it merely reaffirms law already binding upon Israel, turning to the question whether it is binding or not is not really that interesting. It is most certainly a clear indication of Opinio Juris on this matter, and it's position is shared by an overwhelming majority of both legal scholars (shown in the ICJ ruling) and states (shown in various GA resolutions). Israel is, by building settlements and a wall/fence/barrier/whatever in occupied territory, in violation of international law.
3.7.2006 7:24pm
Unamused:
"The treaty with Jordan explicitly did not change the status of these territories, so it is quite irrelevant on this matter."

"The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."

How can it be irrelevant? You admit that 4GC can't apply if there is no occupation of the territory of a contracting party.

What was the status of those territories before 1949? Between 1949 and 1967? 1967 to 1994? 1994 to present? I thought it went like this:

De jure: British mandate from League of Nations/United Nations --> indeterminate --> indeterminate --> indeterminate

De facto: Britain --> Jordan --> Israel --> Israel/Palestinians (mixed)

If the territory was never de jure Jordanian, there is a peace treaty between Israel and Jordan, and Jordan asserts no claims over the territory, how can there be an occupation of any territory of a contracting party?

"To the question of occupied or not, this is determined by art 42 of Hague IV of 1907, which show Israel occupied these territories in 1967 ("Territory is considered occupied when it is actually placed under the authority of the hostile army")."

Hostile to whom? There is a peace treaty between the current and previous de facto sovereign powers, and Jordan asserts no territorial claims. If there is no state of war, declared or otherwise, there can't be hostilities and there can't be hostile armies.

"As for GCIV art. 49(6), the authorative ICRC commentaries, available online, make it clear 'transfer' here not refers to forcible transfers only: the convention is intended to protect the local population, it is thus irrelevant whether the movement into occupied territory is forcible or not, the protection granted by GCIV is by definition not for the Occupying Power's nationals."

That was not my question. My question was what is a "transfer" of "part of" a "civilian population?" That implies something more than individuals moving to the territory. I said a state-organized settlement program COULD be a "transfer of part of its civilian population," but it's not obvious that it IS such a transfer. You need to explain why it is.

"This legal conclusion is shared by a unanimous International Court of Justice . . ."

Fallacy: appeal to authority, and not much of an authority.

"Turning to res 446, as it merely reaffirms law already binding upon Israel, turning to the question whether it is binding or not is not really that interesting. It is most certainly a clear indication of Opinio Juris on this matter, and it's position is shared by an overwhelming majority of both legal scholars (shown in the ICJ ruling) and states (shown in various GA resolutions)."

I think it's interesting. I think the question of what the law actually is is more important than non-authoritative opinions on what the law is. You know what they say about opinions.

Anyway, what does 446 reaffirm? 4GC? But you still have to show that 4GC is binding . . .
3.7.2006 7:53pm
simsim:

"How can it be irrelevant? You admit that 4GC can't apply if there is no occupation of the territory of a contracting party."

No I did not. The convention apply in cases where there exist an armed conflict between two high contracting parties. This was the case. The West Bank was occupied during this armed conflict (art.42 Hague Regulations). The provision which refers to territory being occupied without being met with resistance is not a restriction of the conventions scope, and is irrelevant in this context. The test is not whether the territory was a de jure part of a high contracting party, it is whether there was an armed conflict. This condition is fulfilled.

"If the territory was never de jure Jordanian, there is a peace treaty between Israel and Jordan, and Jordan asserts no claims over the territory, how can there be an occupation of any territory of a contracting party?"

Who said there is an occupation of the territory of a high contracting party? There is an occupation, and the laws of war apply. The GCIV is intended to protect the local population and grants them rights, not the sovereign nor controlling party, in this case Jordan. Also, the logic of your argument would lead to the conclusion that a hypothetical conquest of East Jerusalem by a high contracting party to the GC would not lead to a state of belligerent occupation and that GCIV would not apply, as E-J is not any more de jure part of Israel than the West Bank was of Jordan.

(In any case, art 3.2 of the Jordan-Israel peace treaty show he treaty is irrelevant for the West Bank's status.)


"To the question of occupied or not, this is determined by art 42 of Hague IV of 1907, which show Israel occupied these territories in 1967 ("Territory is considered occupied when it is actually placed under the authority of the hostile army")."



Hostile to whom? There is a peace treaty between the current and previous de facto sovereign powers, and Jordan asserts no territorial claims. If there is no state of war, declared or otherwise, there can't be hostilities and there can't be hostile armies."

"Hostile" as opposed to those who controlled the territory. Further, he absence of enemy forces usually define occupation, and as an example, Germany was occupied for years following the second world war, although the state of war had ended. There is no need for hostilities for an occupation to continue (see generally art 5 of GCIV). The absence of territorial claims from Jordan is not relevant, and no one would seriously argue that the West Bank held or holds the status of terra nullius, i.e. belonging to no-one (see ICJ on West-Sahara for further discussion of this).



"My question was what is a "transfer" of "part of" a "civilian population?" That implies something more than individuals moving to the territory. I said a state-organized settlement program COULD be a "transfer of part of its civilian population," but it's not obvious that it IS such a transfer."

Given the object and purpose of treaty, and the trauvaux preparatoires, such an interpretation where you "imply" an additional criteria is obviously wrong, especially taking into regard art. 1. The provision and the convention was designed to protect the local population, it would be ineffective if it allowed for "individuals moving" (if 400 000 can be considered such) into the territory, in the abscense of state regulations. States can be found in violation of their obligations by failing to take action to ensure rights granted. There has been an transfer of population from Israel to the West Bank, no-one dispute this. Also, the fact that Israel has made movement to the occupied territory favourable for e.g. tax purposes show an active policy of settling occupied territory.
3.8.2006 1:31pm
asdfadsfasdfadsf:
So having distilled the settlements to the question of whether 4GC applies and the territories are occupied or whether they're disputed territories like Kashmir etc, does anyone have anything to say about the other half of the question? Does anyone have the slightest clue why the wall might be illegal? The ICJ ruling seems spectacularly vague on this point.
3.9.2006 12:06am