Tuesday, December 8, 2009

The "illegal settlements myth" myth

Commentary has an article by David M. Phillips, a professor at Northeastern University School of Law, under the title "The Illegal-Settlements Myth." Sound familiar? "Settlements may be unwise, but they're not illegal" and "the territories are disputed, not occupied" are two Hasbara clichés that Zionists repeat tirelessly, failing to convince the saner part of the world, but further convincing themselves and their followers.

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:

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.

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.

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.

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.
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.

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.


Utpal said...

That "grammatical" argument is particularly silly. Legal language usually tends to be more precise than ordinary language, in order to avoid ambiguities. Actually, I don't know anyone who would interpret those two clauses this idiot wants them to be interpreted as, even in ordinary speech, especially given that (as you note), movement out of a country is a right (barring exceptional circumstances, like being a criminal), but movement into a country is not.

By the way, HB, are you a "know lots of languages" linguist, or a linguist linguist?

andrew r said...

Not only that, you have to love the "sovereignty vacuum" formula when Jordanian law was upheld in the West Bank. (Let's not even mention the Allon plan was going to partition the West Bank and give the populated areas back to Jordan.)

Gert said...

Phillips is of course right but he uses the wrong arguments: the Great Realtor in the Skies decided a long time ago all of Palestine is Eretz Israel and you can't argue with the Big Guy. Period. No Purgatory for you guys...

I mean tell it to the thousands of pro-settler demonstrators yesterday (it says something about a country when a Far Right nut like Bibi is considered a traitor to the settler cause!)

One woman (I'm pretty sure she was a member of the Women in Green) was shown later on Jeera expounding on the olive trees behind her that would be cut down by members of her movement shortly, to make room for apartments. She didn't flinch. Not even a hint of sarcasm in her demeanour...

Ibrahim Ibn Yusuf said...


Actually, I don't know many languages. I'm a linguist in the scientific sense of the word. I study language, my language, in order to understand how it works.

Ernie Halfdram said...

Utpal is right that there is a conceit that ‘Legal language usually tends to be more precise than ordinary language, in order to avoid ambiguities’. In reality, of course, while there may or may not be an attempt to avoid ambiguity, it is seldom, if ever, successful. Legal language is full of ambiguities, contradictions and loopholes.

Grammar typically denotes generalisations about the structure of words (morphology); of phrases, clauses, and sentences (syntax); and the relations between the two (morphosyntax). One of the reasons the structure of paragraphs and larger units of discourse is not known as ‘grammar’ is that they are not as susceptible to such generalisations. You can string completely unrelated sentences together in a paragraph and might be accused of clumsy paragraph structure, but nobody would call it ‘ungrammatical’, as they would if you scrambled the words in a phrase. So when Phillips writes, ‘It’s a matter of simple grammar...’, he’s just talking out the wrong orifice.

Stone, however, does have a point. In isolation, the use of ‘transfer’, particularly in an active clause whose subject is ‘the occupying power’ and in conjunction with ‘deport’, does suggest compulsion. Furthermore, legal language often really does endeavour to cover all the bases. So if the intention were to prohibit the occupying power from permitting or encouraging settlemt of ‘parts of its own civilian population into the territory it occupies’, it’s fairly reasonable to expect that there would be verbiage to that effect.

But if there’s one thing that everyone knows about discourse structure, linguist or otherwise, it’s that context counts. Article 49 is part of the convention ‘relative to the Protection of Civilian Persons in Time of War’ and Section III in particular goes into some detail about what the occupier may and may not do with respect to the occupied population. And in that context, it is inconceivable that those who framed the convention just happened to insert a clause pertaining to the rights of the population of the occupying power not to be forcefully deported into occupied territory in that section of that convention. The only possible interpretation, therefore, is that the intent of Article 49(6) is to protect the occupied population from the occupying power’s civilian population rampaging around taking over their homes, uprooting their orchards, and the like. [continued]

Ernie Halfdram said...

[continued] The real point, though, is that it’s a waste of time parsing International Law. It’s not just that there are the Dershowitzes and Stones and Phillipses who want to muddy the water with their casuistry, or even that they frequently succeed. It’s that International Law is inherently only enforceable against weaker states. The International Community is not subject to the jurisdiction of an international government with an international police force that can prevent, prosecute, or punish infractions of International Law. States with military and economic power and states under their protection do as they please with absolute impunity. Of course, if you’re cynical enough, you can construe 19 Arabs with boxcutters and flying lessons as ‘an armed attack...against a Member of the United Nations’ and ‘the inherent right of individual or collective self-defense’ as an open ended authorisation to attack anyone you may perceive as a potential threat. But it’s pretty clear that bombing the shit out of Afghanistan and Iraq under those circumstances was not the intention of Article 51 of the UN Charter.

The other side of the coin is that states may be subjected to international sanction even when they comply scrupulously with the ‘rules’. Like when Iran is subject to international sanctions for its compliance with the NNPT.

Another problem is identifying what counts as international law. A lot of people refer to UN General Assembly Resolution 194 as granting the right to return in International Law. But if a UNGA resolution is International Law, doesn’t UNGAR 273 effectively rescind 194? Does that mean that Zionism was not ‘a form of racism and racial discrimination’ before 10 November 1975 or after 16 December 1991, but was just between those two dates?

If we only oppose the Israeli occupation of June 1967 BECAUSE it violates International Law, we disarm ourselves. It means we have no basis to oppose the Israeli annexation of May 1948, which the UN endorsed. I for one oppose racism, colonialism, and imperialism, whoever perpetrates them, whenever they do so, and whether they violate International Law in doing so or not. I also support resistance racism, colonialism, and imperialism, regardless of what International Law may have to say about the matter.

Utpal said...

HB: I am one too, which is why I was curious.

EH: right on!

Ibrahim Ibn Yusuf said...

Do you speak Euskara, Utpal?

Utpal said...

No, even though I should (I´ve lived here for five years, but where I am (Gasteiz) few people actually speak Euskera, except at the Univ, and the pressure doesnt exist: my job doesn't actually doesn't require me to know Euskera, or technically even Spanish, though you have to know Spanish to survive here, which I do. I am Indian (Bengali in fact), via the US.)

Anonymous said...

Israel is the child of the UN, and what a delinquent child it turned out to be, which has been taken to task by the General Assembly and the Security Council more often than any other nation.Unbashed, it has long since had a answer to that- it simply denies the body which gave it birth any moral authority whatsoever

Ibrahim Ibn Yusuf said...


In the real world, legalistic arguments do succeed in convincing some people, so I think it's important to debunk them as well.

I think it's important that people be aware that Zionists are simply making a case (and a very bad one at that) for the settlement's legality, but their speculations are basically irrelevant since the only body that can confer legality on the settlements is the ICJ.

edwin said...

The letter of the law and the spirit of the law are often two very different things.

Ernie Halfdram said...

I’m a little taken aback that none of you linguists wanted to set me straight on discourse analysis. Surely things have moved on in the decades since my incarnation as a linguist.

I’m well aware that in the real world people who are themselves swayed by legalistic arguments evidence a view that others will also find them persuasive. What I’m not aware of is any empirical evidence that this is the case. In fact, I’d be reasonably surprised if anyone could cite a single example of someone saying, ‘Gee, I always thought it was a terrific idea for Israelis to build villages and cities all over the West Bank until I read paragraph 120 of the ICJ’s advisory opinion on construction of a wall and learned that “The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.” Was that ever an eye opener! Now, that I know the settlements are all illegal, of course, I’ll be right out there on the streets with you.’ Or words to that effect. (http://www.icj-cij.org/docket/files/131/1671.pdf)

In the real world, as I’m confident you’re aware, it only takes a crackpot or two saying, ‘Well, I have my reservations about the climate change simulation models’ or ‘Surely a mechanism as complex as the human eye could never have arisen from random mutations alone’, to plant the seeds of doubt about climate change or evolution. According to a Pew poll conducted in late April and early May, 36% believe ‘The earth is getting warmer mostly because of natural changes in the atmosphere’ and 31% that ‘Humans and other living things have existed in their present form since the beginning of time’. By the same token, this stuff Phillips et al. Are bandying about regarding the 4th Geneva Convention will almost certainly render the legality of the settlements ‘just a matter of opinion’.

That’s one of the reasons we need to ground our arguments on a firmer basis than International Law. Another is that I have a particular aversion to shooting myself in the foot. In my view, if we do anything whatsoever that might open us to accusations of hypocrisy or double standards, the hasbaristas will have us for breakfast. I think you’re quite wrong to assert ‘only body that can confer legality on the settlements is the ICJ’. As you’re probably well aware, the ICJ has only ever ruled on 118 ‘contentious issues’ and issued 25 advisory opinions in its 64 year history (http://www.icj-cij.org/docket/index.php?p1=3&p2=2). If you’re saying that anything it hasn’t ruled on is illegal, International Law would not be a useful guide to much at all. Furthermore, there is a very unhealthy relationship between the ICJ and the Security Council, which is at the same time the only body empowered to enforce ICJ rulings and the source of much ICJ reasoning.

Ernie Halfdram said...

People who make the legalistic arguments rely on a much broader spectrum of treaties, conventions, covenants, and resolutions than just the ICJ. And as I pointed out in my previous comment, these can be risibly inconsistent and even downright stupid. If we rely on paragraph 11 of General Assembly Resolution 194 to support the right of return, then what are we to make of Resolution 273, which decided ‘...that Israel is a peace-loving State which accepts the obligations contained in the Charter and is able and willing to carry out those obligations; and...to admit Israel to membership in the United Nations’ even after ‘taking note of the declarations and explanations made by the representatives of the Government of Israel before the Ad Hoc Political Committee in respect of the implementation of the said resolutions’ (http://domino.un.org/UNISPAL.NSF/9fb163c870bb1d6785256cef0073c89f/83e8c29db812a4e9852560e50067a5ac!OpenDocument). The relevant ‘declarations and explanations’ doubtless refer to Moshe Sharrett’s (ne Shertok) remarks of 1 December 1948, ‘...concerning refugees, Mr. Shertok noted briefly his delegation's views that the problem could be solved satisfactorily only in connexion with the final peace settlement, and...It was not enough to allow these individuals to return when and where they desired, for the question arose as to who was to assume responsibility for their integration in their new environment...’ (http://domino.un.org/UNISPAL.nsf/fd807e46661e3689852570d00069e918/35b9b641f271dc0485256c72005d81be!OpenDocument).

Even if there are examples of susceptibility to legalistic arguments, it still leaves us groping for arguments for why we need to oppose the establishment of a racist, colonialist ethnocracy in Palestine, because the ICJ hasn’t enunciated a position on those matters and insofar as the General Assembly has, it looks like they reckon it’s ok.

Anyway, I fear I’ve lapsed into my native Martian again.

Ibrahim Ibn Yusuf said...

Ernie, I don't have any hard evidence that people are convinced by legalistic arguments; I can only say that I've attended lectures in which Sochnut shlichim (and, on one occasion, the Israeli ambassador himself) deployed such arguments and when I stood up and countered them it did make a difference, at least among the tiny fraction of the public that was non-partisan, some of whom approached me afterwards asking for links.

Also, it's important to stop hasbaristas from making further inroads. A few years ago the argument used to be that the world is intrinsically antisemitic, so there's no reason why Israel should abide by international law (it was the argument used to defend, for instance, the kidnapping of Mordechai Vanunu). Now the argument is that Israel is abiding by international law.

Let us force them to retreat again into the "world conspiracy against Israel and the Jewish people" argument, which is a much more difficult-to-defend position.

Joshua said...

It's pretty pathetic that even the state of Israel itself does not recognise the "legality" of settlements (for a detailed analysis of this, I refer to Gershom Gorenberg who did major scholarly study on this, as well as Akiva Eldar's Lords of the Land).

But I would have to agree with Ernie here: these are institutions and treaties that are only enforceable against weaker states and non-state actors. Hence why the only prosecutions we have witnessed in the last two decades are Hutus and Serbs and another indictment of a Sudanese: all black, brown and in case of the Serbs, bad white people. I'm afraid this is a necessary exercise dueling the likes of sophists and semantic talk of international law and treaties because it is another front that wages against the indigenous BUT ultimately it is ineffective without a major power to uphold it.

Anonymous said...

Language as well as land is vulnerable to theft in the Middle East.


Greg Potemkin said...

Mr Phillips really does make some rather bizarre arguments - such is to be expected from someone trying to defend the indefensible. For obvious reasons, that seems to be something which Zionists tend to do.

Jerry Haber said...

I don't know if great minds think alike, but I know that our minds do.

Thanks for writing this and thanks for letting me know you did.

Jerry Haber

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Anonymous said...

The Security Council is now an arbiter of legality? Hahaha you must be kidding! This is satire, yes? The ICJ can in fact determine legality but of course it has never ruled on Israel's presence anywhere, much less in the so called "West Babk." The closest it has come is in the 2004 Advisory Opinion and since you describe yourself as a Linguist (albeit admitting you lied even about that in the comments above), I am sure you will not need me to explain what OPINION means.

There has only ever been a single legal allocation of territory, by the League of Nations in 1920 ("Mandate for Palestine," ratified 1922). 100% of the land was given to the Jews with Arabs not even mentioned as an afterthought. The UN Charter explicitly states that the UN may not abrogate or modify any decision by the League of Nations so that you failed miserably in this post.

Rachamim Dwek.

Anonymous said...

Joshua: Israel does not recognise "Settlements" as legal? Do yourself a favour and actually research the issue as opposed to parroting two Post Zionists, neither of which has an iota of legal training. Specifically, study Me'ir Shamgar who formulated the Israeli State Policy on this dynamic. Israel does not believe it is "Occupying" anything so how could it deem Israeli communities to be illegal?

The fact of the matter is, the land was specifically and legally allocated to the Jews by the League of Nations. Two years later Britain illegaly abrogated both Class A Mandates it had been assigned by the League. In the case of Mandatory Palestine, Britain illegaly severed 77% of the territory and illegaly created an Arab nation, Jordan.

Then, for nearly 19 years Jordan illegally "Occupied" the so called "West Bank" which it seized- also illegaly- in a War of Aggression which it co-initiated against the nascent Jewish State.

To then imagine that because of Jordan 's illegal 18 year control if territory that Israel views its own presence and control as illegal is absolutely absurd.

Rachamim Dwek