By Theodor Meron (The American Society of International Law, 2017)
Judge Meron’s 19-page article is available here to download.
Rarely does a jurist have the opportunity to render a legal opinion twice on the very same case or controversy fifty years apart.
Theodor Meron was 37 when he was appointed the Legal Adviser of the Israel Ministry of Foreign Affairs shortly after the Six-Day War. He was asked to address some of the international legal implications that followed from that war.
He opined on September 14, 1967 that “the establishment of civilian settlements in the occupied West Bank and other conquered territories violates the Fourth Geneva Convention related to the protection of victims of war and, specifically, its prohibition on settlements (Article 49(6)).” This prohibition is categorical, he wrote, and “not conditioned on the motives or purposes of the transfer, and is aimed at preventing colonization of conquered territory by citizens of the conquering state.”
In March 2017, his opinion has not changed. Given the inexorable demographic change in the West Bank over the past fifty years; the adoption by the Security Council of Resolution 2334 on December 23, 2016; John Kerry’s unprecedented speech delivered on December 28, 2016; and Netanyahu’s immediate rejection of the “shameful UN resolution” — Judge Meron felt compelled to speak up again in support of international law and its requirements and application to the settlements in the occupied West Bank.
Judge Meron’s career is noteworthy and worth recounting here because his opinion carries weight, except with Israeli leaders.
Judge and President of the United Nations Mechanism for International Criminal Tribunals; Judge and Past President of the United Nations International Criminal Tribunal for the former Yugoslavia; former Judge of the United Nations International Criminal Tribunal for Rwanda; Charles L. Denison Professor Emeritus and Judicial Fellow, New York University School of Law; Visiting Professor, University of Oxford, since 2014; past Co-Editor-in-Chief of the Journal; past Honorary President of the American Society of International Law.
Settlements in the Occupied West Bank
What is the scope of the problem? The Palestinian president says there will be no negotiations until Israel ends the expansion of settlements in the occupied West Bank. The Israeli prime minister says the Palestinians must come to the bargaining table with no preconditions, but he demands that the Palestinians first recognize Israel as a Jewish state. There have been no negotiations since 2010.
Today there are nearly 600,000 Israeli settlers living in the West Bank and East Jerualem. There are 127 government-sanctioned Israeli settlements (not including East Jerusalem and Hebron), and approximately 100 “settlement outposts”. According to the Central Bureau of Statistics, the annual growth rate for the settler population (excluding East Jerusalem) in 2015 was more than two times higher than that of the overall population in Israel: 4.1% and 2% percent, respectively. Translated: there are more Israelis today moving to Palestine than to the State of Israel.
Check out this segment on NPR from December 2016 about the settlements.
The Jewish settlements were illegal in 1967 and they remain illegal today.
The Fourth Geneva Convention, adopted in 1949 to protect civilians in a war zone, is considered the “gold standard of humanitarian law.” While 196 countries have signed on, the United Nations concluded in 1993 that the Geneva Conventions had passed into customary law and therefore everyone is bound by them.
What does the Fourth Geneva Convention require of the occupying power (Israel) towards the protected persons (Palestinians) in the territories it occupies?
- No collective punishment (article 33) – including no pillage, intimidation, or terrorism. Collective punishment is considered a war crime.
- May not forcibly deport protected persons or transfer part of its own civilian population into the occupied territory (article 49).
- Must facilitate the proper working of all institutions devoted to the care and education of children (article 50).
- No destruction of property belonging to the protected persons or to public authorities (article 53).
- Maintain the public health and hygiene along with the medical facilities in the occupied territories (article 56).
Despite clear and strong opinions from the International Court of Justice, supported by a score of Security Council resolutions, the International Red Cross, and a rare consensus of the international community on the applicability of the Fourth Geneva Convention to the occupied Palestinian territories, the State of Israel has built a 50-year record of parsing the Fourth Geneva Convention, applying provisions it likes while rejecting others. “This opacity is made worse,” Judge Meron writes, “by the reluctance of Israel to divulge in public the list of the Fourth Geneva Convention’s humanitarian provisions which it is prepared to apply.”
Disrespect for international law is, alas, not unusual in the affairs of states. It is rare, however, that disrespect of an international convention would have such a direct impact on the elimination of any realistice prospects for reconciliation, not to mention peace. And it is rarer still that such disrespect of internatioal law should subsist given the number of pronouncements on the matter.
Israeli leaders rejected Meron’s opinion in 1967 and, undoubtedly, reject it today. They hinge their position on the argument that the territories are not occupied because conquered territory only becomes occupied territory when it belongs to a legitimate sovereign that was ousted. This theory disputes the status of Jordan as such a sovereign of the West Bank in 1967 which, in the opinion of Israel makes the Geneva Convention inapplicable de jure. The government has simply decided, in the absence of an international obligation to do so, to act de facto in accordance with the humanitarian provisions of the Convention.
Judge Meron rejects this argument summarily, asking “what would prevent every conquering state from contesting the sovereignty of every defeated state, even where no legitimate doubts about the sovereignty arise?” In a nutshell, the status of the lands conquered in the Six Day War has no bearing on the applicability of the Fourth Geneva Convention to Israel, as the conquering power.
While the Fourth Geneva Convention bestows rights on the “protected persons” (Palestinians in this case), the Hague Convention No. IV establishes responsibilities on the occupying power, and Israel’s Supreme Court has recognized the applicability of the Hague Convention No. IV as customary law to the West Bank.
There is the requirement to respect private property (Article 46), and the property of municipalities, and that of institutions dedicated to religion, charity and education, and arts and sciences. (Article 56). The occupying power must also safeguard and administer the real estate in accordance with the rules of usufruct.
With the construction of the “security wall” encroaching on Palestinian lands, and a record number of housing demolitions in the West Bank in 2016, the reasonable question Palestinians and the rest of the world might ask is “Who is going to hold the State of Israel accountable for its violations of international law?”
Judge Meron concludes his 2017 opinion:
Those of us who are committed to international law, and particularly to respect for international humanitarian law and the principles embodied therein, cannot remain silent when faced with such denials or self-serving interpretations.
But if the continuation of the settlement project on the West Bank has met with practically universal rejection by the international community, it is not just because of its illegality under the Fourth Geneva Convention or under international humanitarian law more generally. Nor is it only because, by preventing the establishment of a contiguous and viable Palestinian territory, the settlement project frustrates any prospect of serious negotiations aimed at a two-state solution, and thus of reconciliation between the Israelis and Palestinians. It is also because of the growing perception that individual Palestinians’ human rights, as well as their rights under the Fourth Geneva Convention, are being violated and that the colonization of territories populated by other people can no longer be accepted in our time.