by David M. Phillips
2nd part of 2
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?
Even settlement opponents concede that many settlements closest to Palestinian population areas, on the central mountain range of the
The response of settlement critics is that certain tax subsidies and other benefits conferred by the Israeli government or the World Zionist Organization that may have encouraged Jews to settle in the
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. 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."
To understand the phraseology used in Article 49(1), "individual or mass forcible transfers," as well as one plausible origin of Article 49(6), some background is necessary.
According to Stone, discussions at the 1949 Geneva Diplomatic Conference "were dominated" by a common horror of the evils caused by the recent World War and a determination to lessen the sufferings of war victims." The various nations' delegates considered a draft of the convention produced at a conference of the Red Cross Societies held in
At a legal subcommittee meeting at
According to Cohn's own report to the Danish foreign ministry, his language was directed at an event the aspects of which were little known outside
Many of the ports had been bombed, however, and the Germans began unloading the people wherever they could, including several hundred thousand people into
Cohn may also have been motivated to propose the language that later became Article 49(6) in light of his own strong Jewish identity. The original language on deportations presented to the Stockholm conference would not have prevented Germany from deporting its own Jews to slave and extermination camps in Poland and other occupied countries, nor would it have prevented the Germans from sending Danish Jews found in Germany to concentration camps in occupied territories, sending either Hungarian or Italian Jews to Auschwitz, and/or from transplanting Germans to portions of Poland and other occupied countries. Cohn's original language would have criminalized all these practices.
Other participants in
At the Geneva Conference itself, both the Final Report of the Committee charged with drafting the text of the 4th Convention for consideration by the delegates as well as comments by delegates generally differentiated between transfers that were voluntary and therefore permitted and those that were involuntary and therefore prohibited. As the Final Report to the delegates stated while explaining the differences between various articles dealing with the right of an occupying power to evacuate an area, primarily in the interest of the security of the civilian population's security: "Although there was general unanimity in condemning such deportations as took place during the recent war, the phrase at the beginning of Article 45 caused some trouble. . . . In the end the Committee had decided on a wording that prohibits individual or mass forcible removals as well as deportations of protected persons from occupied territory to any other country, but which permits voluntary transfers."
That is a key reason why Julius Stone termed the anti-settlement interpretation "an irony bordering on the absurd" and commented: "Ignoring the overall purpose of Article 49, which would inter alia protect the population of the State of Israel from being removed against their will into the occupied territory, it is now sought to be interpreted so as to impose on the Israel government a duty to prevent any Jewish individual from voluntarily taking up residence in that area."
There is simply no comparison between the establishment and population of Israeli settlements and the Nazi atrocities that led to the Geneva Convention. 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
Nor can they be compared to the efforts by
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
Julius Stone referred to the absurdity of considering the establishment of Israeli settlements as violating Article 49(6):
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).
Stone's pointed critique of what has since become "accepted" wisdom invites a hypothetical: Suppose a group of Palestinian Arabs who are citizens of
Concluding that Israeli settlements violate Article 49(6) also overlooks the Jewish communities that existed before the creation of the state in areas occupied by today's Israeli settlements, for example, in
The idea that the creation of new settlements or that the expansion of ones already in place is an act of bad faith on the part of various Israeli governments may seem without question to those who believe those settlements constitute an obstacle to the ever elusive solution to the Arab-Israeli conflict. Whether this argument is well-founded or not, the willingness of
David M. Phillips
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