It's wise to be prepared...

A letter published in my newspaper this week challenged a statement of mine in an earlier letter: that Israeli settlements in the West Bank and Gaza are illegal because they violate the Fourth Geneva Convention.

My opponent presented a disastrously flawed case. He wrote: "Article 49, the specific part of the Fourth Geneva Convention cited [as proof settlements are illegal], states, in full: '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.' "

He continued: "Since no Israeli settler has ever been forced to live in the West Bank, a condition clearly required in Article 49, it is simply wrong to claim that Israeli settlements are illegal on this basis."

I wrote immediately to point out that he was not quoting Article 49 in full. He had cited only the first of its six paragraphs. Paragraph 6 states: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."

Later, however, I began reading the Convention more carefully, and wondered if a better argument could be made in favor of the settlements. Here is Article 49:

Art. 49. 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.

Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.

The Protecting Power
[the Red Cross, Red Crescent, or a similar organization] shall be informed of any transfers and evacuations as soon as they have taken place.

The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

As I read other Articles, I noticed that in many of those with multiple paragraphs, Paragraph 1 gave a general statement of something that should or should not be done, and subsequent paragraphs elaborated on it--going into specifics, but not adding anything really new.

Could that be a rule for interpreting the Convention? If so, the point of Article 49 would be "Individual or mass forcible transfers...are prohibited," and everything else would merely expound on that. The initial reference to "forcible transfers" would limit any subsequent mention of transfers to forcible ones.

To my relief, I concluded that was not the case. But it's an argument for which opponents of the settlements should be prepared.

It took me only a few minutes to find two Articles that do not conform to that hypothesized "rule."

Art. 52. No contract, agreement or regulation shall impair the right of any worker, whether voluntary or not and wherever he may be, to apply to the representatives of the Protecting Power in order to request the said Power's intervention.

All measures aiming at creating unemployment or at restricting the opportunities offered to workers in an occupied territory, in order to induce them to work for the Occupying Power, are prohibited.

These two paragraphs are so different in content that they could have been separate Articles. All they have in common is the general topic of employment.

Art. 42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.

Because Paragraphs 1 through 5 of Article 49 refer only to forcible transfers, some supporters of Israel may insist Paragraph 6 must do the same. But in Article 42, Paragraph 1 refers to forcible internment and Paragraph 2 to voluntary internment.

Encouraged by those findings, I made a better analysis of Article 49.

If we take the point even of Paragraph 1 to be, "Individual or mass forcible transfers...are prohibited," we must ask: transfers of whom? The natural assumption is that the reference is to the powerless residents of the occupied territory; no occupying power is likely to consider relocating its own people by force. If something beyond the natural assumption had been intended here, it would have been spelled out (as is in fact done in Paragraph 6).

The point is better understood as being, "Individual or mass forcible transfers, as well as deportations of protected persons from [the] occupied territory...are prohibited." A common-sense reading of this is that the "individual or mass forcible transfers" referred to are, like the deportations, transfers of protected persons.

A clearer sentence construction would have been, "Individual or mass forcible transfers of protected persons, as well as deportations of such persons...," and so forth. But we can easily imagine the framers starting with the quickly drafted sentence, "Individual or mass forcible transfers, as well as deportations, of protected persons are prohibited." As they added specifics about regions, the comma after "deportations" had to come out.

In fact, Paragraphs 1 through 5 deal exclusively with treatment of protected persons.

Who are "protected persons"? Lest there be any confusion, the term is defined in Article 4, Paragraph 1: "Persons protected by the Convention are those who...find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." (Italics mine.) Paragraph 2 of that Article excludes certain nationals of other countries (neutral countries or co-belligerents) who may be in the occupied territory; Paragraph 3 states that many provisions are wider in application, as defined in Article 13.

Article 13 reads: "The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war." This clearly means that the category of "protected persons" can sometimes include those who might seem to be excluded by Paragraph 2 of Article 4, not that it can refer to nationals of an Occupying Power "protected" by their own country's military while within an occupied territory. The latter interpretation would thwart the basic intent of the Convention, to guarantee the rights of civilians who cannot be so protected.

Therefore, in Article 49, the Paragraph 1 reference to "individual or mass forcible transfers," followed by a comma before the reference to deportation of protected persons, refers to transfers of residents of an occupied territory within the territory in which they reside.

Paragraph 6 deals with a completely different population, one that would be moving across national boundaries. In this context, there would be no distinction between "deportation" and "forcible transfer"; yet both deportation and transfer are banned. And the intent cannot be to ban forcible transfer within an occupied territory of nationals of the occupying power who, for some reason, were already there, because the wording used is "transfer...into the territory": the only preposition is "into." Therefore, the separate ban on transfer must be intended to ban voluntary transfer of civilians.

The applicability of Paragraph 6 might also be challenged from another perspective. It does not say that the occupying power "shall not deport or transfer any of its own civilian population," but rather, that it "shall not deport or transfer parts of its own civilian population." What constitutes a "part"?

In cases involving deportation, a "part" of a country's civilian population could be an unwanted ethnic minority. In cases involving voluntary transfer, it could also be an ethnic minority, a distinct group that wants to live in an occupied territory whose inhabitants are of the same ethnicity. Even if the inhabitants of the territory might be expected to welcome these immigrants, the occupying power does not have the right to admit them. The most reasonable interpretation of intent is that the framers believed an occupying power should not be allowed to make significant demographic changes (even in numbers of inhabitants) in territory not its own.

I've read that some other, presumably more recent, international law specifically forbids an occupying power's making any demographic changes. The framers of the Geneva Convention were thinking primarily of short-term occupation with a war in progress (though they did establish in Article 6 that certain provisions, including Article 49, would remain in force throughout a longer occupation). Possibly because of that short-term focus, they neglected to prohibit an occupying power's allowing direct immigration into an occupied territory from other countries. That may seem like an unlikely scenario, but it is in fact what Britain did when it occupied Palestine after World War I. The newer international law may have been meant to correct that oversight. I'm unable to cite it because I haven't been able to ascertain what it is; opponents of the Israeli settlements have never felt a need to cite anything more than the Fourth Geneva Convention.

Returning to discussion of the applicability of Article 49: Israel facilitates the transfer of settlers in sufficient numbers to populate large communities, but they make their decisions individually. Can they be considered as belonging to a group, a "part" of Israel's civilian population?

I maintain that they can. Even though Jews are not a minority in Israel, it's of great significance here that while not all Israelis are Jewish, all settlers are Jewish. Regardless of the motives of individual settlers (some are said to be interested primarily in affordable housing), the settlements themselves have a government-approved political agenda: to force the inhabitants of these occupied territories to accept an ever-expanding Jewish presence, as part of a movement some Jews see as "reclaiming" or "redeeming" the lands in question and leading to annexation by Israel. All settlers, by their participation, are at least acquiescing in this agenda.

Article 49 could not have included an absolute ban on individual transfers. Imagine, as one example, a border so casually enforced in peacetime that members of extended families lived on both sides and could easily visit back and forth. When the countries are at war and Country A is occupying a portion of Country B's territory, military rule will make visits more difficult. Some citizens of Country A might seek to relocate into the occupied territory to be reunited with kin, perhaps with aged parents. Cases like this should be judged individually; it's unlikely they will ever be numerous enough to alter a territory's demographic makeup.

In the case of Israeli settlements, the true part-vs.-individual distinction is that Israel has facilitated mass immigration into these territories as a matter of policy, rather than weighing every application for transfer and requiring strong justification consistent with preservation of the territory's integrity.