In September 1967, after its overwhelming victory in the Six Day War, Israel had occupied the West Bank, East Jerusalem and other Arab territories. Israel’s then prime minister, Levi Eshkol, requested a legal opinion from Theodor Meron, an attorney and judge who was then the legal advisor to the Israeli Ministry of Foreign Affairs, on whether Israel could transfer its civilians to settlements in the West Bank, East Jerusalem and other conquered Arab territories.
Judge Meron, a Jew and holocaust survivor, and a renowned international jurist, stated unequivocally in a top secret memo that “…civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention”. Despite the legal opinion, the Israeli government immediately began establishing Jewish settlements in the occupied territories, including Egypt’s Sinai, Syria’s Golan Heights, Gaza, the West Bank, and East Jerusalem. In 2007, Judge Meron confirmed his authorship of the legal opinion and stated he would not change his opinion that the settlements are illegal and in violation of international law.
Since 1967, Israel has transferred over 500,000 of its Jewish citizens to hundreds of “settlements” in the West Bank and East Jerusalem or almost 10 percent of its total Jewish Israeli population. This illegal population transfer violates the Fourth Geneva Convention and is considered a war crime under international law. While Israel attempts to characterize these illegal transfers as civilian migrations, in fact they are state sponsored activities. The settlements themselves are built exclusively for and inhabited only by Israeli Jews, and are separately protected by units of the Israeli army. The Israeli government finances the settlements and builds and provides access roads and highways that are limited to use exclusively by Israeli Jews.
The number of Israeli civilians transferred to West Bank and East Jerusalem settlements in the occupied territories is truly astonishing. To draw an analogy, if the US was the occupying power of Canada, and unlawfully transferred 10 percent of its civilian population to settlements in Canada it would amount to about 31 million people, almost equal to the current population of Canada. If each of these settlements was protected by a U.S. Army post, and connected to other settlements and the U.S. by access roads limited to use exclusively by U.S. settlers, it seems reasonable to suspect that even the normally pleasant and placid Canadians would be outraged by this invasion and might even resort to acts of terrorism to resist such an invasion of “settlers” from its supposedly friendly neighbor to the south.
ISRAEL’S ANNEXATIONS AND SETTLEMENTS VIOLATE THE FOURTH GENEVA CONVENTION
Under the Fourth Geneva Convention of 1949, to which Israel is a signatory, a country which takes over and militarily occupies the land of another during hostilities is restricted in how it can govern the territory it has occupied after hostilities have ceased. Article 47 prohibits such an occupying power from annexing any part of the territory occupied for itself, and Article 49 prohibits the occupying power from transferring parts of its own civilian population into the territory it has occupied.
By the end of World War II, the U.S. had militarily occupied Italy, Germany and Japan. It then took on the enormous tasks of rebuilding and democratizing all three countries. Yet, it took the U.S. only four years to transfer full power back to Italy, five years in the case of Germany, and six years for Japan. The status of an occupying power is transitory and should end either at the end of hostilities or as soon as possible thereafter. The U.S. annexed not one acre of territory from these conquered countries, nor did it transfer any of its civilian population into these countries. While all three countries have U.S. military bases with U.S. troops, these arrangements are by treaty only, and do not represent an annexation or permanent occupation of those countries by the U.S.
By contrast, Israel’s military occupation of the West Bank, East Jerusalem and the Golan Heights began when hostilities ended in 1967, yet, 43 years later, Israel still occupies these lands and has either, in the cases of East Jerusalem and the Golan Heights, unlawfully annexed them into Israel itself, or has conducted a de facto annexation through its unlawful transfer of large numbers of its Jewish civilians into exclusively Jewish “settlements” in the West Bank and East Jerusalem. It is estimated that Israeli settlements in the West Bank and East Jerusalem control about 42 percent of the total land available in those two areas. Both Israel’s annexation of East Jerusalem and the Golan Heights and its transfer of its civilians into settlements in the West Bank, East Jerusalem and the Golan Heights violate the laws of war set forth in Articles 47 and 49 of the Fourth Geneva Convention.
ISRAEL’S ANNEXATIONS AND SETTLEMENTS ARE WAR CRIMES
War crimes are defined under the 1949 Geneva Conventions to which Israel is a signatory power. Only the most serious violations of the conventions qualify as war crimes, which are defined as “grave breaches” of the conventions. The 1977 Protocol to the Fourth Geneva Convention, which protects civilians, defines the transfer of an occupying power of parts of its populations to occupied territory as a grave breach or a war crime. Israel’s annexation of Jerusalem and the Golan Heights, as well as its transfer of over 500,000 of its civilians to exclusively Jewish settlements in the West Bank, East Jerusalem, and the Golan Heights constitute grave breaches of the Fourth Geneva Convention and are nothing less than war crimes.
ISRAEL’S COUNTER ARGUMENTS
Israel claims that the West Bank and East Jerusalem are disputed territories that it has an equal claim to. Israel claims it is not an occupying power because there was no sovereign entity ruling the West Bank and East Jerusalem at the time of the 1967 war. This argument ignores the fact that Jordan had ruled and administered the West Bank and East Jerusalem from 1947 through 1967 when it was defeated and evicted from these lands. It also ignores the express language in the 1947 UNR 181 that specifically set aside the West Bank and East Jerusalem for the creation of the intended Arab State in the 1947 Partition Plan. There is no little irony in the fact that Israel uses UNR 181 in its own declaration of independence as authority for irrevocable creation of the Jewish State as set forth in the UN Partition Plan, yet conveniently fails to recognize the obvious fact that the very same resolution also created irrevocable authority for the creation of an Arab State in the West Bank and East Jerusalem.
Israel also claims that it has an historic right to the West Bank and East Jerusalem based on the supposed eviction of Jews from Palestine by the Romans some 2000 years ago. While this narrative certainly has sentimental and emotional value for Jews, that argument has no legal standing under international law. To draw an analogy, my Irish forebears, faced with imminent starvation, were forced to leave Ireland in the early 1800s due to the potato famine. However, the fact that a natural disaster caused or forced my forebears’ migration does not mean that I now have a legal claim to Irish land or property held by my forebears or to Irish citizenship or even to a right to immigrate to Ireland.
Likewise, my British forebears were forced to leave Britain some time in the 1700s because of religious persecution. Here again, even though my forebears were forced to leave Britain because of religious persecution, as the Jews were forced to leave Palestine by the Romans, this forced migration does not create a legal right for me to now claim property, citizenship or even immigration rights in Britain. Moreover, my claims based on forced migrations go back only about 150 to 250 years. Israel is attempting to make ownership claims to the West Bank and East Jerusalem based on events that are 10 times more attenuated and remote in time, some 1700 or 1800 years earlier than mine.
If such claims were given legal validity, any country could be forced to resolve and allow dubious claims for immigration, land and property ownership and citizenship from foreign claimants with dubious and attenuated historical claims to prior citizenship by very distant relatives. Fortunately, there is no basis in international law for such claims, not even Israeli claims to ancient citizenship and property rights in biblical Palestine.
Israel has no valid legal claim to the West Bank, East Jerusalem, or the Golan Heights. Its annexation of Jerusalem and the Golan Heights violates the Fourth Geneva Convention, as does its transfer of its Jewish civilians to “settlements” in the West Bank, East Jerusalem and the Golan Heights. Moreover, Israel knew at the onset that taking these actions would be illegal and in violation of the Fourth Geneva Convention. Israel’s actions constitute intentional “grave breaches” of the Geneva Conventions, and, as such, constitute continuing war crimes against the Palestinians.