Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions.

United Nations Security Council Resolution 2334 (2016) [1]

As regards these settlements, the Court notes that Article 49, paragraph 6, of the Fourth Geneva Convention provides: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, International Court of Justice[2]

 [No doubt you’ve heard lots about the UN Security Council’s new resolution on settlements Israel intends to build in what is now called Palestine. The Security Council doesn’t like them, largely because it thinks they are illegal. Politicians here at home are aghast that the UN was permitted to say such a thing. You may not have been told, but the U.S. is one of the 5 “permanent” members of the Council, and as such is permitted to veto actions proposed for it. The other permanent members are China, France, Russia, and the United Kingdom[3] and they didn’t veto the resolution, either. I wonder why? Could it be because it did no more than repeat what the UN, and a significant portion of the international legal establishment have said more or less for 50 Years? Also, should I mention this? The International Court of Justice has the same general opinion of these “settlements,” or at least had the same opinion back in 2004. Most likely the U.S. doesn’t get to veto the ICJ.

I don’t want to re-litigate (or re-fight a war about) the Palestine Settlements question. But I think it would be useful if we could find an honest commentator to provide some legal context. So naturally I asked Larry to take a look and tell us anything he thinks is sensible. He complained, but agreed.]

Once again you’ve put me on an issue about which I have no personal experience. So once again I had to do research, which wasn’t easy, but was helped a lot by the UN website. That’s when I could get through to the website; the internet was pretty balky this last week. But I do have something to report, and the first thing is that the two quotes you picked to lead off this piece were well chosen. Among other things, they show how much international relations have evolved from the 19th Century.

On Growing by Conquest

Back then and before, when leaders grew their countries, they often did it through conquest. That is, one country would take the land of another through war, subjugate it and perhaps remove the indigenous population. “Conquest is associated with the traditional principle that sovereign states may resort to war at their discretion and that territorial and other gains achieved by military victory will be recognized as legally valid.”[4] After two violent wars in the first half of the 20th Century, i.e., WWI and WW2, the survivors pretty much decided that they ought to find an alternative way to resolve disputes. This idea originally found its way into the Charter of the League of Nations, then into the charters and judgments of the military courts that tried war crimes after WWII, and finally into the Charter of the United Nations.[5] That’s the quick and dirty explanation of what happened.

Article 2 of the UN Charter says, inter alia, that all member nations are sovereigns equally; all members “shall settle” their international disputes by “peaceful means in such a manner that international peace and security, and justice are not endangered”; and all members “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state …”[6] The UN has intervened in conflicts from time to time. Two notable examples are, of course, the UN intervention in the Korean “Police Action[7],” and its sponsorship of the effort to eject Saddam Hussein from Kuwait[8]. In both cases, of course, the U.S. provided most of the muscle.

Add the Fourth Geneva Convention to the UN Charter and we can understand why international lawyers[9] may criticize the Israeli Settlements. According to the International Court of Justice, an Occupying Power “shall not deport or transfer parts of its own civilian population into the territory it occupies.” That prohibits “not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.”[10]

The Security Council on Annexation

Are you surprised by the Council’s position? If so, why?  It’s not a secret, and never has been.

How do I know that? Well, by looking at the record. Check out the Council’s statements, for example, from 1967[11], 1973[12], 1979[13], 1980,[14] 1980, [15] 1980[16], 2002[17], 2003[18], and 2008[19].  When you’re done reading those, perhaps you can find some more. Can the U.S. change Council policy, perhaps by retroactively vetoing one or more resolutions? Not the way I understand the Charter but hey, I’m the amateur here. But if we could do that kind of thing, I’m pretty sure we would need a lot of votes. Would the Russians, the Chinese, the French and the United Kingdom go along? Any of those could veto us.

And why would we want to go back to the old way of settling borders, through conquest and small and large wars? Go back to large scale bloodshed as a real tool for international relations – [Has it ever left?] – and we’ll need the draft, fall-out shelters and all that other stuff as well. Why would anybody want that?

Well, some might, I suppose: perhaps the video-gamers. [20] But they live in another reality; one without consequences for themselves. Or so they might think.

 

[1] The official title of this is Resolution 2334 (2016), Adopted by the Security Council at its 7853rd meeting, on 23 December 2016. You can get it directly from the UN, if you can get through. The other day we had a lot of trouble doing that. It’s almost as if somebody was blocking access. Anyway, the web address for the document is http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2334(2016) . Henceforth we’ll cite this one as S/RES/2334 (2016) at ___. That’s the way the UN seems to do it. This quote is from S/RES/2334 (2016) at p. 1, 4th unnumbered paragraph.

[2] The citation for this is Int’l Court of Justice, 9 July 2004, I. C. J. Reports 2004, p. 136, ¶120. You can get the official version of this from the UN, at http://www.icj-cij.org/docket/files/131/1671.pdf , if you can get through. It wasn’t easy for us, but perhaps you’ll have better luck. There’s also a “Summary” of the decision floating around, but it’s labeled “Not an Official Document,” so we went to the original. It’s longer, and half in French, but it’s official. I don’t know who put out that other thing.

[3] For more about the UN, check out the Wikipedia piece on it. Go to Wikipedia and search for “United Nations,” or just click here: https://en.wikipedia.org/wiki/United_Nations

[4] I haven’t done deep research on this; hopefully that won’t ever be necessary; but this particular quote came from the Online Encyclopedia Britannica, available at https://www.britannica.com/topic/conquest-international-law . See also the Wikipedia entry on the same subject.

[5] Id.

[6] See Charter of the United Nations, Chapter I, Purposes and Principles, Article 2, available at http://www.un.org/en/sections/un-charter/chapter-i/index.html

[7] See the Wikipedia entry on Korean War, at https://en.wikipedia.org/wiki/Korean_War

[8] See the Wikipedia entry on Gulf War at https://en.wikipedia.org/wiki/Gulf_War

[9] Actually I haven’t spoken with “many” international lawyers, but I have read the ICJ Advisory Opinion quoted at the beginning of this piece, and I’m assuming that the people who agree with it [the Opinion] also disagree with the settlements.

[10] See n. 2.

[11] See S/RES/242 (1967) at p.8: “Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security.” It’s available at http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/242(1967)&referer=/english/&Lang=E .

[12] See S/RES/338 (1973) at ¶ 3: “Decides that immediately and concurrently with the cease –fire, negotiations shall start between the parties concerned under appropriate auspices aimed at establishing a just and durable peace in the Middle East. It’s available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/338(1973)

[13] See S/RES/446 (1979) at ¶ 1: “Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East…” It’s available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/446(1979) .

[14] See S/RES/465 (1980) at ¶ 5: “Determines that all legislative and administrative measures and actions taken by Israel, to change the physical character, demographic composition, institutional structure or status of the Palestinian and  other Arab territories occupied since 1967, including Jerusalem, or any part thereof have no legal validity and that Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East.” It’s available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/465(1980)

[15] See S/RES/476 (1980) at ¶ 1, 3: “1. Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East … 3. Reconfirms that all legislative and administrative measures and actions taken by Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity …. ”  It’s available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/476(1980)

[16] See S/RES/478 (1980) at ¶ 3: “Determines that all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the recent basic law on Jerusalem, are null and void and must be rescinded forthwith.” It’s available at http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/478(1980)

[17] See S/RES/1397 (2002) at ¶ 3:  “Affirming a vision of a region where two States, Israel and Palestine, live side by side within secure and recognized borders … Calls upon the Israeli and Palestinian sides and their leaders to cooperate in the implementation of the Tenet work plan and Mitchell Report recommendations with the aim of resuming negotiations on a political settlement.” It’s available at http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/1397(2002)

[18] See S/RES/1515 (2003) at ¶1, 2:   “1. Endorses the Quartet Performance-based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict; 2. Calls on the parties to fulfil their obligations under the Roadmap in cooperation with the Quartet and to achieve the vision of two States living side by side in peace and security;”

available at http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/1515(2003)

[19] See S/RES/1850 (2008) at introductory material: “Recalling all its previous relevant resolutions, in particular resolutions 242, 338, 1397, and 1515 and the Madrid principles,  Reiterating its vision of a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders,

Welcoming the 9 November 2008 statement from the Quartet and the Israeli Palestinian Joint Understanding announced at the November 2007 Annapolis Conference, including in relation to implementation of the Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict …” It’s available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2334(2016)

[20] I understand these things are popular on iTunes. See, e.g., https://itunes.apple.com/us/app/world-conqueror-3/id979092836?mt=8  Don’t blame me! I didn’t make this up.

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