Zionists seem to believe that legality is something that is decided by article writers or by pundits on their blogs. Not so. Legality under international law is decided by the United Nations and the International Court of Justice (ICJ), the bodies that most countries, including Israel, accept as the authority in matters of international disputes.
The UN's Security Council has repeatedly denounced Israeli settlements in the West Bank as illegal. For instance, in UNSC Resolution 446 of 22 March 1979, it stated:
The Security Council,(...)
1. Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East[.]
The issue arose again when the ICJ was asked to give an advisory opinion about Israel's Apartheid Wall/Security Fence. On 9 July 2004, the ICJ issued its opinion that the Wall was illegal "recalling in particular"
relevant United Nations resolutions affirming that Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, are illegal[.]Invoking UNSCR No. 446, the ruling included the following unequivocal statement:
The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.
The opinion was passed by a 14-1 vote. Even the sole dissenting judge, Thomas Buergenthal of the United States, was very careful to note that:
9. Paragraph 6 of Article 49 of the Fourth Geneva Convention also does not admit for exceptions on grounds of military or security exigencies. It provides that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”. I agree that this provision applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6.But this is nothing new. The same conclusion had been reached in 1967 by the Israelis themselves. In early September of that year, Prime Minister Levi Eshkol asked the legal counsel of the Foreign Ministry, Theodor Meron (currently a judge at the Appeals Chambers for the Rwanda Genocide trials), whether international law allowed settlement in the newly conquered land. In a memo marked "Top Secret," Mr. Meron wrote unequivocally,
My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.But with so many scholars and international bodies agreeing that the settlements are illegal, what does Phillips build his case on? Basically, he takes the time-tested approach of muddying the waters by making weird interpretations and wild extrapolations. First off, he tackles the argument that settlements were built on private Palestinian land. The land, he clarifies for us, was not stolen; it was requisitioned, and then for military security reasons. It's true, he admits, that the settlements built on it were not military, creating a legal contradiction; but eventually, when the Palestinians protested, the case got to the High Court and the benevolent Israelis ruled in favor of the Palestinians:
In a 1979 case, Ayyub v. Minister of Defense, the Israeli Supreme Court considered whether military authorities could requisition private property for a civilian settlement, Beth El, on proof of military necessity. The theoretical and, in that specific case, actual answers were affirmative. But in another seminal decision the same year, Dwaikat v. Israel, known as the Elon Moreh case, the court more deeply explored the definition of military necessity and rejected the tendered evidence in that case because the military had only later acquiesced in the establishment of the Elon Moreh settlement by its inhabitants. The court’s decision effectively precluded further requisitioning of Palestinian privately held land for civilian settlements.Mr. Phillips is in urgent need of updating. In 2005, then-defense minister of Israel Shaul Mofaz commissioned a report on the settlements from Baruch Spiegel, a general with the IDF. The secret document was eventually leaked to Haaretz, where its main findings were published. Among these:
An analysis of the data reveals that, in the vast majority of the settlements - about 75 percent - construction, sometimes on a large scale, has been carried out without the appropriate permits or contrary to the permits that were issued. The database also shows that, in more than 30 settlements, extensive construction of buildings and infrastructure (roads, schools, synagogues, yeshivas and even police stations) has been carried out on private lands belonging to Palestinian West Bank residents.Lest anyone think that these settlements comprise only those erected before the 1979 ruling, Haaretz goes on to specify:
Among them are veteran ideological settlements like Alon Shvut (established in 1970 and currently home to 3,291 residents, including Rabbi Yoel Bin Nun); Ofra (established in 1975, home to 2,708 residents, including former Yesha Council spokesman Yehoshua Mor Yosef and media personalities Uri Elitzur and Hagai Segal); and Beit El (established in 1977, population 5,308, including Hagai Ben-Artzi, brother of Sara Netanyahu). Also included are large settlements founded primarily for economic motives, such as the city of Modi'in Illit (established in 1990 and now home to 36,282 people), or Givat Ze'ev outside Jerusalem (founded in 1983, population 11,139), and smaller settlements such as Nokdim near Herodion (established in 1982, population 851, including MK Avigdor Lieberman).So that extensive land theft took place regardless of the High Court ruling.
Phillips moves then on to his star argument: the Geneva Convention does not say what most of the world believes it says:
I'm a linguist and I'm not aware of any such grammatical rule as highlighted in boldface above in Spanish. I'm not an expert in English, but I suspect Phillips is making this up.
Settlement opponents more frequently cite the Fourth Geneva Convention these days for their legal arguments. They specifically charge that the settlements violate Article 49(6), which states: “The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies.”
Frequently, this sentence is cited as if its meaning is transparent and its application to the establishment of Israeli settlements beyond dispute. Neither is the case.
To settlement opponents, the word “transfer” in Article 49(6) connotes that any transfer of the occupying power’s civilian population, voluntary or involuntary, is prohibited. However, the first paragraph of Article 49 complicates that case. It reads: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” Unquestionably, any forcible transfer of populations is illegal. But what about voluntary movements with the antecedent permission or subsequent acquiescence by the occupant? (...)
To the extent that a violation of Article 49(6) depends upon the distinction between the voluntary and involuntary movement of people, the inclusion of “forcible” in Article 49(1) but not in 49(6) makes a different interpretation not only plausible but more credible. It’s a matter of simple grammar that when similar language is used in several different paragraphs of the same provision, modifying language is omitted in later paragraphs because the modifier is understood.
More to the point, paragraph 49(1) has nothing to do with 49(6). The former refers to the population living in the occupied territory; the latter, to the population living in the occupying country. (If both articles refered to both sets of people, 49(6) would be needless!) In 49(1), it's necessary to clarify that forcible transfers are forbidden because there may exist occupied people who want to be transfered. Moving out of one's country is an inalienable right. In 49(6), however, it's not necessary to clarify anything because the occupying power may not move its own inhabitants into the occupied territory even if they want to.
Ah, but Phillips has his legal experts, too.
To Julius Stone, an international-law scholar, “the word ‘transfer’ [in 49(6)] in itself implies that the movement is not voluntary on the part of the persons concerned, but a magisterial act of the state concerned.”You will find Stone often mentioned by settlement apologists; not because he's a particularly outstanding jurist, but because he's one of the few authorities propounding this interpretation. However, his further analysis is telling:
We would have to say that the effect of Article 49(6) is to impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus 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 exclude so tyrannical a reading of Article 49(6).Judge Stone's incendiary language, using loaded terms like "judenrein," is indicative that he was driven by emotion rather than by rational analysis, which makes his opinion on this issue basically worthless. Of course, no one is excluding Jews from the West Bank, especially now that Palestinian Prime Minister Salam Fayyad has declared that they will be welcome to stay there under a future Palestinian state.
Finally, Phillips doesn't spare us from a Tibet analogy:
The settlements are also a far cry from policies implemented by the Soviet Union in the late 1940s and early 1950s to alter the ethnic makeup of the Baltic states by initially deporting hundreds of thousands of people and encouraging Russian immigration.Is it possible that this man is actually teaching law at Northeastern? Someone ignorant of the basic distinction between occupation and annexation? Of course, Phillips has all the right in the world to be outraged by "the efforts by China to alter the ethnic makeup of Tibet by forcibly scattering its native population" (while remaining strikingly silent about similar Israeli efforts to "thin out" the Arab population in the Negev and in the Galilee), but the Tibetans are Chinese citizens and enjoy exactly the same rights as the majority Han population. In a dictatorship like China these may not seem to amount to much, but they include the right to use the same roads as the Han, as well as the highest railroad in the world that was built by China for the region. By contrast, Palestinians in the West Bank not only can't choose the authorities that will build roads on their expropriated lands; they also can't drive on those roads.
Nor can they be compared to the efforts by China to alter the ethnic makeup of Tibet by forcibly scattering its native population and moving Chinese into Tibetan territory. Israel’s settlement policies are also not comparable to the campaign by Morocco to alter the ethnic makeup of the Western Sahara by transferring Moroccan Arabs to displace the native Saharans, who now huddle in refugee camps in Algeria, or to the variety of population displacements that occurred in the various parts of the former Yugoslavia.All these would seem to fit the offense described in Article 49(6) precisely. Yet finding references to the application of Article 49(6) to nations other than Israel is like looking for a needle in a haystack. What distinguishes a system of “law” from arbitrary systems of control is that similar situations are handled alike.
Thus, by invoking bogus linguistics and "authorities" that write in a remarkably unscholarly language, as well as by making cheap analogies based on amazing ignorance, Phillips manages to put together yet another unimpressive attempt at defending the indefensible.