Thursday, January 31, 2013

  • Thursday, January 31, 2013
  • Elder of Ziyon
The UN Human Rights Council came out with its report on the Jewish communities in Judea and Samaria. To no one's surprise, it declared them illegal.

But what is interesting is what they demand be done:

Israel must, in compliance with article 49 of the Fourth Geneva Convention, cease all settlement activities without preconditions. In addition it must immediately initiate a process of withdrawal of all settlers from the OPT.
Let's look at the Rome Statute:
Article 7: Crimes against humanity

1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(d) Deportation or forcible transfer of population;
How is the forcible transfer of Jews away from Judea and Samaria not a crime against humanity?

Even if you say that the Israeli government is guilty of the heinous crime of allowing people to voluntarily move to the land of their forefathers, why are the residents being punished? Isn't this collective punishment? Did they do anything illegal? Geneva only prohibits the "occupying power" to transfer people, it doesn't prohibit the people from doing so voluntarily (more on this below.)

In fact, from a quick survey, it appears that the forcible transfer of an entire population against their will violates a slew of human rights principles if not outright humanitarian laws:
  • The right of a people to self-determination
  • The right to remain in one's homeland
  • The right to individually appeal an expulsion order
  • The prohibition against collective punishment
(The UNHRC has a long list of such potential violations [Annex 1], most of which are very tortured in my mind, but it goes to show how much they go out of their way to say that forcible transfers are heinous - unless those being transferred are Israeli Jews.)

Here is a relevant portion of an article in Opinio Juris by Eugene Kontorovich about some of these points:

Crucially, the Convention only bars action by the “occupying power” — in other words, the government and public authorities of the country. It does not apply to the movements and real estate decisions of private individuals. Various other parts of the Convention distinguish between “nationals of the occupying Power” and “the occupying power” itself; the prohibitions of Article 49 fall exclusively on the latter.

The birth of babies to civilians – we’re not talking Hitlerian birthing homes – is not a “transfer … of its own population” by any plausible definition. Indeed, the newborn is not even part of the previous population of the occupying power! So a significant proportion of settlers never “settled.”

Nothing in the text or history of Art. 49 suggests that it becomes illegal for nationals of the occupying power to reside in the occupied territory. People want to read Art. 49 as saying “the occupied territory shall be prohibited to nationals of the occupying power for residence.” This is a far cry from what it says. It goes against the GC’s humanitarian principles to read it as a restrictive covenant. The precise meaning of transfer – how much government action is required – is undefined by any source I know of, though the Rome Statute’s addition of an “indirect transfer” prohibition only underlines how absent such language is from Art. 49(6).The relevant Security Council resolutions only condemn “the policy and practices of Israel in establishing settlements” (S.C. 446). This seems to support my view.

Given the ambiguities about the scope of the transfer ban, one might look to other incidents of state practice to see how such situations were handled. If there is a general rule that an occupation makes not just the “transfers” by the government themselves, but the continued residence of the transferees and their descendants illegal forever, I am surprised we have not heard of it in other contexts. None of the proposals for ending the occupation of Northern Cyprus, Western Sahara, etc. contemplate removing a single Turk or Moroccan, as far as I know. And while there are not any proposals for ending Chinese occupation of Tibet and Russian occupation of Georgia, no one has suggested that the presence of occupying nationals in those countries is a continued violation of international law. Yes, China violates the GC by shipping Han en masse to Tibet to demographically overwhelm the native population. But has even a law professor suggested their deportation back?

When America occupied Iraq, would it have been illegal for Americans of Iraqi ancestry to move back? I believe some did and no one made an issue of it. Would it matter if they flew there on a U.S. plane? If they moved to a neighborhood that people had moved out of as a result of the war? No one was even asking such questions.

All of this means two things. First, there is nothing illegal about nationals of the occupying power residing in the occupied territory if they get there without being sent by the government, without being “transferred.” The scope of this category is unclear but must certainly include those born in the West Bank. Israel has no affirmative obligation to prevent migration, or to deny municipal services to migrants. Second, even those have been transferred are not themselves doing anything illegal.
He is more concise in this more recent article:
When one reads discussions of Israel and 49(6), the only precedents cited are various statements about 49(6) – in the context of Israel. One might conclude that Israel has been the only significant alleged violator in the post-War period. If there were no other arguable 49(6) cases, then this limitation would be natural.

Our project allows for a more dispassionate look at 49(6) by 1) using multiple independent data points; 2) not focussing on arguably the single most politically controversial situation in the world. Thus to be clear, the research project is NOT about Israel.

Indeed, instead of focusing exclusively on Israel [see Parts VI-IX of the ICRC state practice guide], we study global state practice. In particular, we examine civilian population movements into occupied territory from Morocco, Turkey, Indonesia, and several other cases, and the international legal response to these actions.

Our paper is not finished, as we hope to have a comprehensive survey. What we see so far, as described in my talk above, is that state practice in regards to these migrations fairly uniformly shows that the movement of civilians into occupied territory is not treated as “deportation or transfer” even when it is favored or generally supported by the government. Second, even for migrations directly organized by the government that may violate 49(6), international authorities have never regarded the removal of the “transferred” civilians as the appropriate remedy. On the contrary, U.N.-approved land-for-peace deals leave settlers in place, and often even let them vote on a referendum about the occupied area’s political future.

We see, yet again, that Israel is being treated uniquely by a faux "human rights" body. Of all the occupations or alleged occupations of the world, only one is considered so heinous that the [Jewish] residents - even those born there - must be forced to move.

The UN Human Rights Council has just officially said that Jews must be ethnically cleansed from Judea and Samaria (there are at least a few Israeli Arabs who live in the territories but they are not being told to leave.)

Again, I am not a lawyer, but it is clear that the demand to have a specific defined set of people be transferred from their own homes en masse  is something that has never been demanded by any human rights body in any remotely comparable circumstances. In virtually every case of forced transfer, human rights organizations would be the first ones to condemn it. 

Once again, the demands - and even the interpretation of laws - are different for Israel than for every other country.

The hypocrisy would be stunning if we weren't already so used to it.

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Elder of Ziyon - حـكـيـم صـهـيـون

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