"Illegal" Settlements - Guest Post

There was a furore in the media earlier this year when Scarlett Johanssen chose to continue to lend her name to Sodastream, a successful company which manufactures its products in the Israeli conurbation of Ma’aleh Adumim, on the West Bank. (They are, incidentally, an equal opportunities employer and are the means of support and sustenance of hundreds of Arab families there as well as Israeli ones.)


A phrase which kept coming up in connection with Ma’aleh Adumim was “illegal settlement” but nobody who used it gave any indication that he knew what it meant.


“Illegal” here means “contrary to International Law”. It is obviously not the same as “criminal”, though some acts contrary to International Law are criminal on any view, for example war crimes such as the massacres at Oradour, Lidice or the Ardeatine Caves, or the murders at Srebrenica. It is not a “crime” for Israelis to go and live on the West Bank, indeed it would be thought offensive to suggest that anywhere in the Holy Land should be judenrein.


The International Law we are concerned with is not like normal established law within a country that has a government, courts and a police force. It is work-in-progress – a system of law still trying to be born. In the aftermath of the Second World War, together with the establishment of the United Nations and its attempts to maintain the security of the world (hence the Security Council), a series of international Conventions was drafted at Geneva and signed by most of the states of the world. When you think about it, law is like that – a system of conventions. We consent – however grudgingly – to having laws made by our legislature, policed by our policemen and enforced by our judges.


If the laws were forced on us without our consent, it would be a tyranny. If there were no laws at all and one could do what one wanted, the strong would eternally oppress the weak and we would be in a Hobbesian state of nature: life would be nasty, brutish and short.

All in all, it is preferable to live under the rule of law.


There are no true policemen for International Law – it is still a matter of who is strong enough to enforce the laws they want to enforce – nor any universally effective international criminal court, despite the setting up of a tribunal which bears that name. Many states refuse to acknowledge its authority.


But there is this set of Geneva Conventions, and they are spoken of at state level as embodying International Law. The fourth one is entitled Geneva Convention relative to the Protection of Civilian Persons in Time of War. It has been in force since 1950 and the State of Israel has signed up to it – in other words, Israel is bound to observe the terms of the Fourth Geneva Convention. To that extent, Israel must not break
International Law and has become equivalent to the “High Contracting Parties” who originally signed the Convention.


But what distinguishes the rule of law from the rule of arbitrary power is that laws have to be construed: interpreted to get at their legal meaning. If an act falls outside the scope of a law on its true construction, it is not an act contrary to that law.


That is what upsets people when someone is charged with an offence but his lawyer is able to show to the court that what he did was not covered by the law under which he was charged. They may object that “he is getting away with it” but that is how law works. Nobody wants tyranny or anarchy.


The Fourth Geneva Convention applies to a state of declared war or other armed conflict between contracting parties (even if the state of war is not recognised by one of them), and it applies to “all cases of partial or total occupation of the territory of a High Contracting Party, even if the occupation meets with no armed resistance”.


Note the words I have underlined.


Articles 47 to 78 deal with “Occupied Territories”. Art 49, in general terms, forbids mass deportations and adds:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

It is that provision which those who call Ma’aleh Adumim an “illegal” settlement say has been disobeyed.


But the problem with this interpretation is history.


Until 1948, the whole of Palestine was just a piece of the old Ottoman Empire which Britain was administering under a mandate of the old League of Nations, pending a more permanent outcome. The United Nations resolved that it should be split between its Jewish and Arab communities and, when the Jewish side proclaimed that they had formed the State of Israel, it was overwhelmingly voted into the United Nations as a new state.


There was no equivalent from the Arabs of Palestine. Instead (with varying degrees of enthusiasm), the armies of all the surrounding Arab states entered Palestine and attempted to destroy the Jewish presence. The eventual ceasefire left Israel in existence, albeit with only armistice lines instead of established borders, but with Gaza under the control of Egypt and the West Bank and Old City of Jerusalem under that of Transjordan.


The King of Transjordan then annexed the land he controlled and changed his country’s name to Jordan. This annexation was not recognised by the vast majority of the other states of the world. Only Pakistan and the United Kingdom recognised it (the head of Jordan’s Arab Legion being the British Sir John Glubb).

The result was that, when in the Six-Day War of 1967 Israel found itself in possession of Gaza and the West Bank, it had no other state – no High Contracting Party – to whom it could be answerable under the Fourth Geneva Convention. The West Bank was never the territory of another party to the Convention.


To this day, Israel has maintained the position that Art 49 of the Fourth Geneva Convention simply cannot apply to the West Bank.


Now, admittedly, the International Committee of the Red Cross, the bodies of the UN and the International Court of Justice have taken the opposite view. It is perfectly reasonable for anyone to argue that Art 49 does apply and that it is therefore contrary to International Law for Israel to build a town at Ma’aleh Adumim and put Israeli citizens there.


But that is not the only view. It is the majority view.


In today’s world, there is no way that the majority view of International Law can be enforced. That is just as well, given the number of times I have seen apparently intelligent people of all nations shouting that Israel is a “pariah state” or an “outlaw” or even (in the words of the current Prime Minister, and next President, of Turkey) “more barbaric than Hitler”, for Israel cannot expect justice or a fair hearing at their hands.


Those who appreciate irony will have noted that the United Kingdom, which had recognised the West Bank’s annexation by Jordan, is one of a minority of two states which can claim to be consistent when they say that Israeli settlements there are “illegal”.


Note: This was written by my father, Jeffrey Littman. He is a barrister (a kind of lawyer, for those of who aren;t sure) and annoyingly argumentative as they all are, but he's good at it, and when he talks about law, whatever the kind, he is usually right.