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.

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