Why the French court decision is significant

I mentioned last week that a French appeals court has apparently ruled that Israel's occupation of the territories was not illegal.

The Times of Israel interviewed some legal experts who claimed that there was very little new legal ground broken here:

Legal expert Frances Raday, the president of the Concord Research Center for Integration of International Law in Israel, likewise said the court decision is only marginally significant for a debate about the legality of Israel’s actions in the West Bank and East Jerusalem.

“It’s only talking about transport infrastructure,” she said. “I don’t think they actually say anything new, except that an occupying power is not prohibited from putting in place transport infrastructure.”

However, Eugene Kontorovich writes in Opinio Juris:

Crucially, the Court held that only the Government of Israel, and not private parties, can violate the relevant provisions of the Geneva Conventions. The arguments that Israeli communities in the West Bank violate international law start with Art. 49(6) of the Fourth Geneva Convention, which provides that “The Occupying Power shall not deport or transfer its civilian population into the territory it occupies.” The provision was also relied on heavily in the lawsuit. The Court ruled that 49(6) only speaks to and applies to action by the Israeli government (“the Occupying power”), and does not regulate Alton’s activities in the occupied territory.

This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime.

Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.

Israel’s critics often claim that “everyone agrees” that international law bans all “settlement activity” as it is broadly called, and that only Israeli apologists could believe the arguments to the contrary. (In the Human Rights Council’s recent report on Israel’s settlements, light rail is itself called a settlement.)

He elaborates in the comments:

[The ruling] does not deal with the liability of the Gov’t – but discussions of settlements usually lay the blame much wider:

1) It clearly says private action is not governed by 49(6).

2) It suggests it is wrong to speak of settlements as “illegal.” Settlements are a mix of private and public action, with the amount of public action most would require being quite thin, and certainly not necessary

3) Compare this the Human Rights Council report, which called all activities whatsoever in the WB “settlements” that are “illegal.” That got report got more play than this decision.

4) Under the Court’s ruling, cases where 1)Israelis buy preexisting Arab houses, usually in Jerusalem or Hebron, and without the government knowing; 2) build additional structures on their houses; 3) are born in WB; 4) make “illegal” settlements, i.e., not recognized by gov’t — would all be clearly legal. There would be nothing to protest about these actions – one could still protest some background government role, if one thinks it is significant enough, but one can’t say these actions themselves are illegal. That itself would be a big change.

5) Yes, much of the issue would still remain – how much state action is required....The reading that 49(6) requires the occupying power to not “enable” people moving to the WB means the provision actually means “shall not deport, and shall prevent individuals from moving,” which is rather different language from that chosen [by Geneva.]

Did you catch the irony? Outposts considered illegal by the Israeli government would not be illegal under Geneva 49(6) - by virtue of Israel's opposition to them!

Another important point: the ruling makes clear that businesses operating east of the Green Line are not violating international law, and all the BDS proponents are lying when they say otherwise.

The UN has been calling Israeli presence in the territories "illegal occupation" for over a decade, and the UNHRC recently reiterated that settlements are "illegal" as well, based on their reading of Geneva 49(6). They are essentially making up international law as they go along. This French ruling is one of the very few actual court cases that addresses these issues that "everyone knows" - and their reasoning is at odds with what the UN and anti-Israel groups have been claiming for years.

(The UNHRC statement that Israel must dismantle the Jewish communities across the Green Line is a huge legal leap beyond anything Geneva states, and in fact I would argue that it would be considered ethnic cleansing and tantamount to a war crime itself.)

By the way, national court decisions are at least as important for their legal arguments as any international court, even for international law issues.