Friday, September 09, 2016

  • Friday, September 09, 2016
  • Elder of Ziyon
Professor Eugene Kontorovich has just published an incredibly-well researched paper that looks at the legality of settlement activity in occupied territories from a completely new angle.

The paper takes an exhaustive look at every known example of belligerent occupation in modern times, and finds that for any occupation of more than a few years, settlement activity is a part of the occupation. Kontorovich summarizes his paper this way:

First, the migration of people into occupied territory is a near-ubiquitous feature of extended belligerent occupations. Second, no occupying power has ever taken any measures to discourage or prevent such settlement activity, nor has any occupying power ever expressed opinio juris suggesting that it is bound to do so. Third, and perhaps most strikingly, in none of these situations have the international community or international organizations described the migration of persons into the occupied territory as a violation of Art. 49(6). Even in the rare cases in which such policies have met with international criticism, it has not been in legal terms. This suggests that the level of direct state involvement in “transfer” required to constitute an Art. 49(6) violation may be significantly greater than previously thought. Finally, neither international political bodies nor the new governments of previously occupied territories have ever embraced the removal of illegally transferred civilian settlers as an appropriate remedy.

He looks at examples of settlement activity in East Timor, Western Sahara, Northern Cyprus, Syria/Lebanon, Vietnam/Cambodia, Armenia/Azerbaijan, Russia/Georgia, Russia/Crimea, and the Baltic states.

For example,
Under Russian occupation, Abkhaz authorities have embarked on an explicit settlement enterprise, designed specifically to bolster the proportion of ethnic Abkhazians in territory, at the expense of Georgians, and thus cement the split from Georgia.316 Such an enterprise faces inherent challenges, as the entire Caucuses region experiences net population outflow due to economic conditions.

The occupation authorities have established an official government entity, the State Committee on Repatriation, which encourages ethnic Abkhaz from the diaspora to move to the occupied territory. It actively recruits such individuals, and organizes their flights and transportation. The authorities also provide them with free housing, subsidies, and other assistance. Significant sums are invested in construction for the settlers.
This is not anomalous.

Yet Kontorovich is not establishing merely that Israel is subject to double standards. That part is obvious, but it doesn't prove that Israel isn't violating international law.

His argument is far deeper. The nearly complete absence of any criticism of these actions by the international community - even when the same international community is listing other violations of international law by the belligerent side in these conflicts - means that outside of Israel, none of these activities are considered a violation of the Geneva Conventions' prohibition of "transfer." The bar to violate Geneva is much higher, and appears to be the forced transfer of a population, not the passive or active encouragement of such population movements. (I don't think Kontorovich says this last point explicitly, but in light of his findings, I believe that this is accurate.)

Moreover, the lack of international response to these activities in itself implies that they are legal. Kontorovich quotes a major figure in international law, Malcolm Shaw:
Generally, where states are seen to acquiesce in the behavior of other states without protesting against them, the assumption must be made that such behavior is accepted as legitimate…This means actual protests are called for to the break the legitimizing process [when a new rule is being established by affirmative conduct].
Kontorovich expands on this:
In the situations studied in this Article, the failure to raise legal objections is consistent and general, and extends to international organizations and groups (the U.N.UN Human Rights Commission, the ICRC, and humanitarian NGOs like HRW), whose work it is to systematically point out violations of these norms.

Numerous other circumstances give added weigh to this silence.402 For one, the situations here are not ones that escaped international political condemnation and legal scrutiny. In most of these contexts, the international community has condemned the underlying occupation or aggression, and in most if not all cases, it has criticized the occupying power for violations of IHL and human rights norms. Thus the UN, the EU Parliament, PACE, and other bodies have been asked to denounce these activities as illegal, and have refused.

Such omission speaks loudly. Indeed, in various contexts (e.g. Cyprus, Georgia) the occupying power has been criticized by the international community for the transfer out of protected people (Art. 49(1)), but nothing was said about Art. 49(6). Finally, when some of the settlement activities were criticized by the international community (Vietnam, Armenia), they were not branded illegal. In these cases, we are not dealing with pure silence, but rather with the kind of silence that suggests the underlying conduct is either legal or not clearly illegal.

Crucially, the paper shows that in none of these other cases of occupation are the settlers demanded to be removed as part of any peace plan. That is wholly unique to Israel. (I personally believe that such a forced removal would be a clear violation of international law, as the main parts of article 49 of the Geneva Conventions explicitly deal with the violation of human rights accompanied by the forced removal of populations against their will.)

Kontorovich also makes this devastating point:

Doubtless some will attempt to dismiss the findings of this Article by saying the treatment of settlers in these other contexts was merely politics, rather than law. To be sure, geopolitics is always a presence in international law. That is why scholars must study an issue across all possible geopolitical contexts. Consistency of treatment across different geopolitical contexts suggests a legal rather than a political explanation. Moreover, the situations discussed here are not marked by an international fear of condemning the occupying power – they often are condemned, just not for illegal settlement activity.

Once one admits possible political explanations for how Art. 49(6) is applied, one would have to consider the possibility that maybe it is the exceptional treatment afforded to the Israeli case that is the political one. To put it differently, the point of looking at the broadest set of data is to help exclude alternative hypotheses like “politics.” With a data set of one, one cannot determine whether observed reactions are political or not. Expanding the sample to eight other cases raises a sharp question: what is more likely to be political – the international community’s consistent treatment of settlements across eight vastly different geopolitical situations – or its anomalous treatment of the single notoriously politicized and emotional case of Israel?
It isn't just double standards. It is that the international community has created an artificial international law to apply only to Israel, even though that law simply doesn't exist in other contexts. Not that it exists and is ignored - it doesn't exist. When legal critics give their laundry lists of violations of international law by belligerent occupiers, they simply do not consider settlement activity to be illegal.

This is an extraordinarily important paper that not only reveals much about international law, but also about how much of what people call international law in context of Israel is simply a lie.

We have lots of ideas, but we need more resources to be even more effective. Please donate today to help get the message out and to help defend Israel.

EoZTV Podcast

Podcast URL

Subscribe in podnovaSubscribe with FeedlyAdd to netvibes
addtomyyahoo4Subscribe with SubToMe

search eoz



follow me

Follow by Email


Share on Whatsapp


For $18 donation

Sample Text

EoZ's Most Popular Posts Ever


Elder of Ziyon - حـكـيـم صـهـيـون

This blog may be a labor of love for me, but it takes a lot of effort, time and money. For over 12 years and over 25,000 articles I have been providing accurate, original news that would have remained unnoticed. I've written hundreds of scoops and sometimes my reporting ends up making a real difference. I appreciate any donations you can give to keep this blog going.


Donate to fight for Israel!

Monthly subscription:
Payment options

One time donation:

subscribe via email

Follow EoZ on Twitter!



The Jerusalem Report:"A seemingly indefatigable one-man operation, armed only with a computer, chutzpa and stamina."

Algemeiner: "Fiercely intelligent and erudite"

Omri: "Elder is one of the best established and most respected members of the jblogosphere..."
Atheist Jew:"Elder of Ziyon probably had the greatest impression on me..."
Soccer Dad: "He undertakes the important task of making sure that his readers learn from history."
AbbaGav: "A truly exceptional blog..."
Judeopundit: "[A] venerable blog-pioneer and beloved patriarchal figure...his blog is indispensable."
Oleh Musings: "The most comprehensive Zionist blog I have seen."
Carl in Jerusalem: "...probably the most under-recognized blog in the JBlogsphere as far as I am concerned."
Aussie Dave: "King of the auto-translation."
The Israel Situation:The Elder manages to write so many great, investigative posts that I am often looking to him for important news on the PalArab (his term for Palestinian Arab) side of things."
Tikun Olam: "Either you are carelessly ignorant or a willful liar and distorter of the truth. Either way, it makes you one mean SOB."
Mondoweiss commenter: "For virulent pro-Zionism (and plain straightforward lies of course) there is nothing much to beat it."
Didi Remez: "Leading wingnut"

Interesting Blogs


Abbas liar Academic fraud administrivia al-Qaeda algeria American Jews Amnesty analysis anti-semitism antisemitism apartheid arab refugees Arafat archaeology art ASHREI B'tselem bahrain Balfour bbc BDS BDSFail Bedouin Beitunia beoz book review Brant Rosen breaking the silence Campus antisemitism Cardozo Chakindas Chanukah Christians circumcision Clark Kent Community Standards conspiracy theories Cyprus Daled Amos Daphne Anson David Applebaum Davis report DCI-P Divest This double standards Egypt Elder gets results ElderToons Electronic Intifada Embassy EoZ Trump symposium eoz-symposium EoZNews eoztv Erekat Erekat lung transplant EU Euro-Mid Observer European antisemitism Facebook jail Fake Civilians 2014 Farrakhan Fatah featured Features fisking flotilla Forest Rain Forward free gaza freedom of press palestinian style future martyr Gary Spedding gaza Gaza Platform George Galloway George Soros German Jewry gideon levy gilad shalit gisha Goldstone Report Good news Grapel Guardian guest post gunness Haaretz Hadassah hamas Hamas war crimes Hananya Naftali hasbara Hasby 2014 Hasby 2016 Hasby 2018 hate speech Hebron helen thomas hezbollah history Hizballah Holocaust Holocaust denial honor killing HRW Human Rights Humanitarian crisis humor huor Hypocrisy ICRC IDF Ilan Pappe impossible peace incitement Indonesia international law intransigence iran Iraq Islamic Judeophobia Islamism Israel Loves America Israeli culture Israeli high-tech J Street jabalya jeremy bowen Jerusalem jewish fiction Jewish Voice for Peace jihad jimmy carter John Kerry jokes jonathan cook Jordan Joseph Massad Juan Cole Judaism Judea-Samaria Judean Rose Kairos Karl Vick Keith Ellison ken roth khalid amayreh Khaybar Lebanon leftists Linda Sarsour Linkdump lumish mahmoud zahar Malaysia max blumenthal Mazen Adi McGraw-Hill media bias Methodist Michael Ross Miftah Missionaries moderate Islam Mohammed Assaf Mondoweiss moonbats Morocco Mudar Zahran music Muslim Brotherhood Nakba Nation of Islam Natural gas Nazi Netanyahu News nftp NGO NIF Noah Phillips norpac NYT Occupation offbeat Omar Barghouti Only in Israel Opinion oxfam PA corruption PalArab lies Palestine Papers pallywood pchr PCUSA Peace Now Peter Beinart Petra MB poetry Poland poll Poster Preoccupied Prisoners propaganda Proud to be Zionist Puar Purim purimshpiel Putin Qaradawi Qassam calendar Quora Rafah Ray Hanania real liberals reference Richard Falk Richard Silverstein Right of return Rivkah Lambert Adler Robert Werdine rogel alpher roger cohen roger waters Rutgers Saeb Erekat Saudi Arabia saudi vice self-death self-death palestinians sex crimes SFSU shechita sheikh tamimi Shujaiyeh Simchat Torah Simona Sharoni SodaStream South Africa Speech stamps Superman Syria Tarabin Temple Mount Terrorism This is Zionism Thomas Friedman TOI Trump Tunisia Turkey UCI UK UN UNDP unesco unhrc UNICEF United Arab Emirates Unity unrwa UNRWA hate unrwa reports UNRWA-USA unwra Varda Vic Rosenthal Washington wikileaks work accident X-washing Y. Ben-David Yemen YMikarov zahran Ziesel zionist attack zoo Zvi

Blog Archive