ICC Denial to Palestinians is Proof Settlements are Legal – Part I

by Gedalyah Reback

The West Bank is an Anomaly under International Law

International Criminal Court

International Criminal Court

The ICC refused to hear the Palestinian Authority’s case against Israel for Operation Cast Lead because, according to the court, the Palestinians aren’t a recognized state. That carries more weight than the court perhaps intended, since it seems to add validity to Israel’s argument that it has the right to build in the West Bank because the territory technically doesn’t belong to anybody.

The Israeli case for the settlements’ legal status is based on the Fourth Geneva Convention. More specifically Israel asserts that Article 2 of the Fourth Geneva Convention undercuts Article 49. Article 2 reads like this: “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party . . .” Article 49 says there shall be no transfer of the occupying power’s citizens to the occupied territory. Article 49 doesn’t bother making explicit the occupied territory belongs to the “High Contracting Party” mentioned in Article 2, because that would be redundant. The territory belonging to another country is a qualifier for the occupied territory being addressed in the Convention. Several international court decisions have not accepted this argument, but ex post facto provide no practical grounds (if any) for dismantling the settlements.

The argument though lacks the teeth that comes with the logic. It has been accepted by the United Nations and International Court of Justice that the conventions do apply to occupied Palestinian territory. The clarification has seemed necessary before because of this anomaly in the Israeli-Palestinian conflict. Otherwise, there might be an argument Israel occupied Jordanian, Egyptian and Syrian territory after the Six-Day War in 1967. But Egypt never claimed Gaza. Jordan gave up its claim to the West Bank in July 1988 in favor of recognizing the Palestinian Liberation Organization’s claim. But the PLO didn’t have the international recognition to back it up. Going further back, Jordan’s authority in the West Bank was only ever recognized by itself and by the United Kingdom. Even the PLO might have boasted more support than that. But it was irrelevant. By transferring Israeli citizens to the West Bank and Gaza Strip, Israel couldn’t have been said to be settling someone else’s territory.

The United Nations might have an older precedent to tangle with the settlements’ legality. The 1947 Partition enforced a Jewish state, an Arab state and an international (UN-administered) Jerusalem-Bethlehem. The agreement went into partial effect. Only Israel recognized it. As a matter of fact, the Fourth Geneva Convention didn’t exist before the end of the Israeli War of Independence. So, when the war ended after Israel had expanded its borders to the edge of the Old City of Jerusalem and in other areas, little could be said against Israel’s legitimate rule in the captured territories. The same went for Egypt and Jordan in Gaza and the West Bank, respectively. It was in August that year the 4th Geneva Convention took effect.

Yasser Arafat was aware of this political ambiguity in the 1980s. In 1989, a Palestinian Declaration of Indepedence (November 15, 1988), Arafat said Palestine would become party to the convention. The Swiss Federal Council, which administers the conventions, refused to say one way or another if the joining was legitimate, “due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine.” If Palestine is not a party to the convention, how can its territory be occupied? Certainly, the Israelis who have settled in the West Bank or Gaza Strip

Regardless, the State of Palestine would not represent the Arab State the UN Partition Plan intended to create. That state never developed, and would be something wholly different than a brand new Palestinian state, in 1989 or even in 2012. The 1988 Palestinian Declaration of Independence bases its legitimacy on the original Partition Plan, but it presents infinitely unfair implications. Recognizing the declaration would open the door for countless retroactive actions by different countries, conflicting with 40 years of other developments. It would also open the door to Palestine trying to claim Israel occupied areas that belonged to it at the end of the 1948 War of Independence. As mentioned before, legally it would be problematic. More practically, no country has ever given a substantial argument against Israel’s continued rule in those conquered areas (see map below).

Blue areas went to Israel according to the 1947 Partition Plan.  Pink areas were conquered by the Israelis in the War of Independence.

Blue areas went to Israel according to the 1947 Partition Plan. Pink areas were conquered by the Israelis in the War of Independence.

Switzerland effectively said the same thing in 1989 that the International Criminal Court said this week in 2012. There is no clearly existing Palestinian state, and only UN recognition could create one. In the 65 years since the Partition Plan passed, no Palestinian state/Arab state in the former Mandate of Palestine has been recognized by the UN. The Palestinian Authority, recognized by Israel, has only had “observer” status, just as its earlier Palestinian representatives had before the Authority came to be in only 1993.

As much as international organizations recognize the Fourth Geneva Convention as applying to all occupied, non-annexed territory as a matter of customary law (“minhag” if you will), the Palestinian Authority’s best argument for statehood and sovereignty right now is based on the areas it polices – Area A in the West Bank. It cannot even claim Gaza as its territory, since it belongs to Hamas. That brings up other major legal and philosophical problems.

Even if the Palestinians’ independence was recognized on November 15, 1988, for the four months between Jordan’s relinquishment and Palestine’s independence, the only power that can be said to have true and undisputed control of the territory was Israel. At that point, no claim against Israeli settlements, at least until 11/15/88 could stand. It is only by custom that the idea Israel doesn’t belong there make sense. The continued insistence by international organizations and even the United Nations that there is no Palestine brings into question just when a country has the right to declare territory its own.

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