One man’s “illegal settlement” is another man’s “historic Jewish homeland”

Even though Hamas is recognized as a terrorist organization by the US and EU, most Western journalists don’t dare use the word “terrorist” when characterizing the group, out of concern that the term is prejudicial and subjective.  They often opt instead for the term “militant”.  

A great example of this ‘sensitivity’ can be found in the Guardian’s Style Guide, which cautions its writers that they “need to be very careful about using the term” as “it is still a subjective judgment”, before concluding that “one person’s terrorist may be another person’s freedom fighter”.  

Regarding Israeli communities across the 1949 Armistice Lines, however, there is rarely any such concern about using subjective, tendentious terminology.  

Such towns on the ‘wrong’ side of the green line are almost always characterized as “illegal”, despite the fact that this designation largely rests on an advisory opinion of the International Court of Justice – a decision (based on an interpretation of Article 49 of the Fourth Geneva Convention) which many believe was reached using specious legal logic.

In fact, most journalists don’t even bother explaining to readers why they believe Israeli settlements are illegal. They don’t cite the ICJ advisory opinion. And, they certainly don’t note the existence of dissenting opinions by highly respected legal scholars.

Interestingly, however, a journalist for the Independent named Ben Lynfield recently tried to explain the international legal basis for describing settlements as “illegal”, in a report on June 5 titled ‘Israel plans to build 3,000 new settler homes in occupied territories to punish the Hamas backed Palestinian Authority’.

Here’s the relevant paragraph:

Palestinian leaders said they would not remain quiet over the settlement expansion and spoke of using their non-member state status at the UN to hold Israel accountable for violating international law. Settlement contravenes the Fourth Geneva Convention’s ban on an occupying power settling its nationals in the occupied territory.

In addition to the fact that Lynfield fails to explain which legal body reached an “advisory” opinion that settlements “contravene the Fourth Geneva Convention”, he also distorts the language of the Convention, and omits key words which are highly relevant to the debate.  

Here’s the exact language of Article 49, in the opening sentence. (You can read the full text here)

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.

As you can see, contrary to Lynfield’s claims, the passage does not seem to prohibit the “settling” nationals in “occupied territory”, as Lynfield claims, but speaks explicitly of a prohibition against “forcible transfers“.

International lawyer Prof. Eugene V. Rostow, a former dean of Yale Law School and U.S. Undersecretary of State, wrote the following in 1990:

[T]he Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War – the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example….The Jewish settlers in the West Bank are most emphatically volunteers. They have not been “deported” or “transferred” to the area by the Government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva Convention to prevent.

Ambassador Morris Abram, a member of the U.S. staff at the Nuremberg Tribunal who was later involved in the drafting of the Fourth Geneva Convention, is on record as stating the following:

[The Convention] was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people.

Similarly, international lawyer Prof. Julius Stone, in referring to the absurdity of considering Israeli settlements as a violation of Article 49(6), wrote:

Irony would…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 excludes so tyrannical a reading of Article 49(6.)

David M. Phillips argued thusly in an essay at Commentary:

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 Hebron and the Etzion block outside Jerusalem. These Jewish communities were destroyed by Arab armies, militias, and rioters, and, as in the case of Hebron, the community’s population was slaughtered. Is it sensible to interpret Article 49 to bar the reconstitution of Jewish communities that were destroyed through aggression and slaughter? If so, the international law of occupation runs the risk of freezing one occupier’s conduct in place, no matter how unlawful.

While reasonable people can of course disagree with Israeli settlement policy – in the context of efforts to one day reach a final status agreement with the Palestinians – lazily asserting that such settlements are “illegal” is ahistorical, and has, at best, a highly questionable basis in international law.  

Professional journalists (such as Ben Lynfield) should at least avoid language suggesting that the “illegality” of Israeli settlements represents a universally agreed upon understanding of international law, and acknowledge – at the very least – the existence of highly credible dissenting legal opinions.

Employing the Guardian’s post-modern logic regarding the word “terrorist”, you could say that “one man’s illegal settlement is another man’s (legally codified) historic Jewish homeland”.