International law and Judea and Samaria

By YAIR SHAMIR, The Jerusalem Post

It is time to return to the intentions and words of the original drafters of international law, and rely less on specious interpretations with little basis.

In his November 21 article on “Humanitarian law vs. political choices,” Juan Pedro Schaerer, head of the local delegation of the International Committee of the Red Cross (ICRC), repeats the longstanding point of view that Judea and Samaria, what some refer to as the “West Bank,” is “occupied territory.”

In fact, Mr. Schaerer is so certain of this opinion, he invites a public debate on the issue.

However, before stating a contrary point of view, it would be pertinent to begin by debunking Schaerer’s own statements. In the article Schaerer starts, as many opinions do, by quoting Article 42 of the Hague Regulations of 1907, writing: “The facts on the ground were such that they fell squarely into the definition of occupied territory, which is codified in Article 42.”

Yet to preempt an argument frequently used by Israeli authorities, Schaerer states that “international humanitarian law does not require that the territory occupied by a foreign army must belong to a sovereign state.”

This is an astounding interpretation of Article 42 of the Hague Regulations, primarily because it actually falls under a category titled, “Military Authority Over the Territory of the Hostile State.”

The final word in the title of the category specifically explains the type of territory in question.

In international law, as in any type of law, one should render an interpretation only if the wording is somehow unclear or vague. The fact that the article falls under a category which completely contradicts the root of Schaerer’s argument appears to be lost on the author.

Perhaps the confusion rests in the fact that the ICRC, which was pretty quick to brand Israel’s acquisition of the territory in 1967 as an “occupation,” made no such appellation during the 19 years of illegal Jordanian rule.

In fact, one would be hard-pressed to find the ICRC assert that a territory is “occupied” by a particular nation in the dozens of other territorial disputes that have yet to find a resolution.

Schaerer’s next argument about Israeli communities over the 1949 armistice lines is well-traveled and repeated ad nauseum, even though its popularity does not make it any less redundant.

“Population transfers for the purpose of establishing settlements are forbidden under international humanitarian law, regardless of whether people are being directly transferred or indirectly transferred through incentives, encouragements or other measures facilitating their settlement in the occupied territory,” Schaerer writes. “This is explicitly addressed in the Fourth Geneva Convention, for good reason.”

In fact, according to Article 49 of the Fourth Geneva Convention, taken from the ICRC’s own website, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” The terms “deport” and “transfer” are active, meaning that civilians are not acting on their own behest.

I am not sure where Schaerer conjures the idea that his interpretation of voluntary relocation, even if aided by government assistance, is explicitly addressed in this article of the convention.

Nonetheless, to really understand what the article was meant, to achieve the incentive to write these provisions should be understood.

In a 2009 speech, Philip Spoerri, ICRC director of international law and cooperation, said: “The decision to draft the Geneva Conventions of 1949 was sealed by the tragedy of World War II, and that the conventions were intended to fill the gaps in international humanitarian law exposed by the conflict.”

Specifically, the article relevant to this discussion was drawn up in the wake of the Nazi policy of forcibly transferring parts of its own population into territories it occupied before and during the war. The most infamous of these forcible transfers or deportations was the masses of Jews who were sent to occupied territories to be murdered en masse in Poland and elsewhere.

To suggest that an incentive by the Israeli government to live in the ancient cradle of Jewish civilization is somehow akin to the genocidal Nazis sending Jews to forced labor and death is as ludicrous as it is deeply insensitive.

While I am not certain that Schaerer intended to make this comparison, a cursory reading of the preparatory discussions for the drafting of the Fourth Geneva Convention clearly demonstrates the intentions of its drafters, as during the draft deliberations the terms “forced transfers” and even “deportations” were used – providing greater clarity to the wholly inappropriate rendering of his interpretation.

This provision of the Geneva Convention regarding forced population transfer cannot possibly be viewed as prohibiting the voluntary return of individuals to the cities, towns and villages from which they, or their ancestors, had been ousted.

In fact, throughout the years, there have been many opinions clearly opposed to the idea that Israel “occupies” Judea and Samaria, and that Israeli settlements are illegal according to international law.

Julius Stone, professor of jurisprudence and international Law, wrote in 1980: “Because of the ex iniuria principle [unjust acts cannot create law], Jordan never had nor now has any legal title in the West Bank, nor does any other state even claim such title. Article 49 thus seems simply not applicable. Even if it were, it may be added that the facts of recent voluntary settlements seem not to be caught by the intent of Article 49, which is rather directed at the forced transfer of the belligerent’s inhabitants to the occupied territory, or the displacement of the local inhabitants for other than security reasons.”

Additionally, former State Department legal adviser Stephen Schwebel, who later headed the International Court of Justice in The Hague, wrote in 1970 regarding Israel’s case: “Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.”

Finally, Prof. Eugene Rostow, former US undersecretary of state for political affairs, wrote in 1991: “The Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there.”

These three opinions, among others, demonstrate that Schaerer’s two main arguments rest on very shaky ground.

Firstly, it is clear that Judea and Samaria did not belong to any state before this, a fact necessary for the application of Article 42 of the Hague Regulations, which fall under the title “Military Authority Over the Territory of the Hostile State.”

Secondly, it is abundantly clear that for an act to fall under the last provision of Article 49 of the Fourth Geneva Convention, an active transfer or deportation of its own citizens has to be undertaken by the state occupying the area, which has clearly never happened in the history of Israel’s control of the territories in question. Exposing the inaccuracies contained in Schaerer’s opinions is no mere academic exercise.

The ICRC is considered the authority on the Geneva Convention and other parts of international law, and the majority of the international community relies on its interpretation – frequently without rendering its own thorough investigation. Thus, what the ICRC, or its representatives, claim has significance.

However, when its claims on the conflict are based on false interpretations, and partial or wholly inaccurate declarations, it does damage – not just to Israel, but also to the cause of peace and reconciliation in our region.

I am in full agreement with Juan Pedro Schaerer: It is time to “debate matters of significant humanitarian importance.” But it is also time to return to the intentions and words of the original drafters of international law, and rely less on specious interpretations with little basis.

The writer is agriculture minister and a member of Yisrael Beytenu.