Source material proves that Article 49(6) of the Fourth Geneva Conventions does not say Israeli settlements are illegal

The sixth paragraph of Article 49 of the Fourth Geneva Convention states, "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."

This has been used since 1967 to claim that Israeli settlements violate international law.

Back in 2012, I dug up all the preparatory notes - the  Travaux Préparatoires -   I could find for the Fourth Geneva Convention article 49 (then called Article 45)  to see if the discussions of the article would shed light on the issue. My conclusion then was that the entire paragraph dealt with forcible transfers and deportations of civilians, and all the drafters were unanimous in saying that forcible transfer of people against their will was reprehensible. Given that Israelis who move to Judea and Samaria are doing that voluntarily, no one can claim that Israel is violating the Geneva Conventions.

However, the 1958 ICRC Commentary on the Conventions indicates that perhaps the sixth paragraph is anomalous inside the article and does not only refer to forced transfer:

PARAGRAPH 6. -- DEPORTATION AND TRANSFER OF PERSONS INTO

OCCUPIED TERRITORY

This clause was adopted after some hesitation, by the XVIIth International Red Cross Conference (13). It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.

The paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words "transfer" and "deport" is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power.

It would therefore appear to have been more logical -- and this was pointed out at the Diplomatic Conference (14) -- to have made the clause in question into a separate provision distinct from Article 49, so that the concepts of "deportations" and "transfers" in that Article could have kept throughout the meaning given them in paragraph 1, i.e. the compulsory movement of protected persons from occupied territory.

This commentary makes a large distinction between the sixth paragraph and the others. However, nowhere does it indicate that the transfer mentioned could be voluntary - it emphasizes that the important difference between the first five paragraphs and paragraph 6 is that the first five refer to forcible transfer of the occupied and the last refers to citizens, but in all cases the transfer seems to be forced.

I looked up the sources given, which are in French.

Footnote 13 is the  ' XVIIth International Red Cross Conference, Legal Commission, Summary of the Debates of the Sub-Commissions, ' pp. 61-62 and 77-78. They say:

My translation:

Article 45 M. Cohn (Denmark, Gvtc) proposes to add a new paragraph as follows: "The Occupying Power may not carry out the deportation or the transfer of part of its own population from a territory other than it occupies in the territory occupied by it ", in order to protect the population of an occupied state against an invasion of persons.

Mr. Pilloud (ICRC), believes that it is more about the duties of the Occupying Power, which is not entirely the responsibility of the International Red Cross, We must seek to protect rather the nationals of the  country.

Mr. Castberg (Norway, Gvt,) supported Mr. Cohn's proposal because he considered that this new paragraph would protect the nationals of an occupied country against an invasion of people coming from other territories and who would have to be fed, etc .. •

The Commission, on a proposal from MM. Holmgren (Sweden, CRO) .. and Abus (Turkey, CR) decided to postpone its decision on this article and to wait until Mr. Cohn's proposal has been distributed,

The "hesitancy" mentioned in the Commentary seems to be regarding whether this belongs in the Convention altogether because Mr. Pilloud said that transferring people from a nation to an occupied territory is a crime against the people themselves, and therefore doesn't fit in an article about the rights of the occupied. This sure makes it sound like "transfer" means against their will.

Mr. Castberg, however, says that the crime would be the occupiers taking away limited resources from the occupied, and that should be a violation. If his logic is correct, then settlements that do not affect natural resources would not be an issue. But even he could admit that the transfer being prohibited is forcible.

The second part says:

My translation:

Article 45 M. Cohn (Denmark, Gvt,) proposed the following addendum to article 45: 'The occupying Power may not deport or transfer part of its own population or of the population of another territory which it occupies within the territory occupied by it. "

After a discussion took part Mr. Clattenburg (USA, Gvt,) who considers that this paragraph has a much too broad meaning, Mr. Wershof (Canada, Gvt,) and Mr. G. Pilloud (ICRC), the deputy Commission adopted this amended paragraph as follows "The Occupying Power may not deport or transfer part of its own civilian population to the territory occupied by it". Mr Wershof (Canada, Gvt,) points out that he abstained from voting, not that he. condemns the sentiments expressed in this paragraph, but he considers that this conference is not qualified to examine questions of this kind in this paragraph and finds that the Convention is not intended to show Nations how they act in war.

Apparently, the first language was dismissed, so Mr. Cohn changed it - but this time he added specifically that the transfer could be of a nation's own citizens or people in other occupied territories.

This is pretty clearly talking only about forced transfer! People in occupied territories couldn't decide to move to another occupied territory on their own.

Footnote 14, which the ICRC says indicates that the words "deport" and "transfer" have different meanings, is for the  Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-A, p. 664. I can only find this one section that indicates what they are saying, and it is not very clear to me:

Mr. MARESCA (Italy) said that in the last war the flower of Italian youth had been sent to Germany in cattle trucks. Such forced transfers must at all events be prohibited in the future. The term "deportation" in the last paragraph of the Article had better not be used, as "deportation" was something quite different.

But the word "deport" was kept in the final paragraph! And he didn't say anything about "transfer."

There is not the slightest indication that the word "transfer" in all these cases means anything beyond forcible transfer. After all, who could have imagined a situation where nationals want to move out? The phenomenon of Israeli settlements is not one imagined by the drafters.

Later on, the entire article is discussed without making any distinctions between paragraphs:

The CHAIRMAN, before declaring the discussion on Article 45 closed, noted that the Committee was unanimous in condemnation of the abominable practice of deportation. The sole purpose of every speaker had been to strengthen the interdictory provisions of the Article. He suggested that deportations should, in the same way as the taking of hostages, be solemnly prohibited in the Preamble. 

This mirrors what I had found in my 2012 post on the topic - discussions of the article as a whole never made an exception for paragraph 6 as far as meaning forcible transfers. The only real question was whether such transfers belong in the Geneva Conventions that are meant to protect those inside the occupied territories. 

Secondary sources that agree with me that paragraph 6 refers to forced transfers are summarized in a 2011 article by Alan Baker:

The international lawyer Prof. Eugene V. Rostow, a former dean of Yale Law School and Undersecretary of State, stated in 1990:

[T]he Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War – the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example….The Jewish settlers in the West Bank are most emphatically volunteers. They have not been “deported” or “transferred” to the area by the Government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva Convention to prevent.

Ambassador Morris Abram, a member of the U.S. staff at the Nuremburg Tribunal and later involved in the drafting of the Fourth Geneva Convention, is on record as stating that the convention:

was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people.

Similarly, international lawyer Prof. Julius Stone, in referring to the absurdity of considering Israeli settlements as a violation of Article 49(6), stated:

Irony would…be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that…the West Bank…must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49(6.)

My reading of the source material as specifically meaning forced transfer is supported by very distinguished law experts.

It seems pretty clear that Geneva does not prohibit the settlements. 

(h/t Andre)

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