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Following UN settlement report, the path forward for Palestinian leadership is clear — take Israel to the International Criminal Court

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On 14 September 1967, three months after the Israeli conquest of the West Bank, East Jerusalem, Gaza, the Egyptian Sinai and the Syrian Golan Heights, the legal counsel for the Israeli Foreign Ministry, Theodor Meron, wrote a legal opinion for his Minister, Abba Eban. Meron, a Holocaust survivor who later become a law professor at New York University and would complete his illustrious career as president of the U.N. war crimes tribunal for the former Yugoslavia, advised Eban that the 4th Geneva Convention of 1949 prohibited the establishment of civilian settlements in occupied territories. Israel, as a signatory to the Geneva Conventions, was obliged to comply. The prohibition in international law, Meron wrote, was:

“categorical and is not conditioned on the motives or purposes of the transfer, and is aimed at preventing colonization of conquered territory by citizens of the conquering state.”

[The legal opinion, in the original Hebrew, can be found here with an explanatory commentary in English by Gershom Gorenberg]

Eban and the rest of the Israeli cabinet chose to ignore Meron’s clear warning, and it was kept secret for many years in the Israeli Foreign Ministry files. Indeed, Eban spent much of the summer and autumn of 1967 prevaricating at the United Nations over Israeli’s not-so-hidden intentions regarding the conquered territories. Even as he was offering some vague pledges to the United States about Israel’s willingness to return the lands to their Arab neighbours, the Israeli cabinet voted to annex East Jerusalem and a significant chunk of the West Bank, and began planning the first settlements under the guise of military encampments. When Dean Rusk, the American Secretary of State, reminded Eban later in 1967 about Israel’s pledge that it had no territorial ambitions, Eban shrugged his shoulders and said: “We’ve changed our minds.” “Israel’s keeping territory,” Rusk presciently warned his American senior foreign policy staff as they debated what position the United States should take, “would create a revanchism for the rest of the twentieth century.”

The report on the Israeli settlements released earlier this week by the United Nations Human Rights Council confirms, in considerable detail, Rusk’s prediction. Since 1967, the report states,

Israeli governments have openly led and directly participated in the planning, construction, development, consolidation and/or encouragement of settlements by including explicit provisions in the fundamental policy instrument

There are now approximately 250 settlements in East Jerusalem and the West Bank, home to approximately 520,000 settlers. (Israel has another 20,000 settlers in the Syrian Golan Heights, which is not mentioned in the report).

The report details the devastating social and economic consequences of Israeli’s settlement project for the Palestinians. Settler violence against the Palestinians is endemic, routine and yet rarely investigated or punished by the Israeli military. Land confiscation is significant, with over a million dunums (a dunum is a quarter of an acre) seized by Israel since 1967 for the settlements through a myriad of legal stratagems, with the Palestinian Bedouins being particularly vulnerable. Water – a strategic resource in the arid Levant – is controlled by Israel, giving it “predominance in the allocation of West Bank water resources, of which it withdraws 90 per cent.” The expansion of the settlements and their related infrastructure squeezes Palestinian agriculture by removing access to land and water, and impeding the transportation of goods to markets. Likewise, the intense security system of roadblocks and walls designed to protect the half a million settlers is strangling Palestinian commerce, as businesses face immense problems accessing raw goods and shipping their finished products to customers.   

All of Israel’s settlement activities have been in plain violation of international law. The UN report lays out, in accessible language, the elements of international humanitarian law (the law of war and the protection of civilians during conflict), international criminal law and international human rights law that are breached by the Israeli settlement project. Beyond the clear violations of the 4th Geneva Convention, the report rightly notes that the settlement project also violates the Palestinians’ right to self-determination as well as their right to equality and non-discrimination, both cornerstones of our international legal system.

In the muted language typical of many UN documents, the settlements report hints at the underlying reasons why modern international law has created a strict prohibition against settler implantation projects. The report points out that the Israeli settlements represent “a creeping annexation” that will block “the establishment of a contiguous and viable Palestinian state”. An astute historian reading between the lines of the report would immediately visualize the direct link to many earlier settler-implantation projects, such as the British settlement of Scottish and English Protestants into Catholic Ireland; the French in Algeria; the Dutch and the British in South Africa; the British in Kenya; the Soviet Union’s infusion of Russians into the Baltic republics; and the export of Moroccan settlers into the Western Sahara.

What all of these projects share is the common goal of the colonial power to solidify its political control, augment its economic penetration, and ultimately bolster its legal claim to possession of the subjugated lands, all through the tool of demographic transformation. The transferred settlers are almost always willing citizens or subjects of the dominant power, motivated by government inducements, enhanced economic prospects, special legal and political privileges in the subjugated lands, and, on occasion, nationalist, religious or civilizing missions. The consent of the indigenous population is invariably unsought, because it would never be offered. The consequences of these settlement projects are usually multifold, calamitous and long-term: indigenous civilian misery, environmental degradation, separate and unequal social and legal structures, segregated labour markets, and chronic political instability.

The most important take-away of the UN report is its call for the international community to enforce its own body of international laws to confront the Israeli settlement project. In particular, the report points to the 1998 Rome Statute of the International Criminal Court, which designates settlement activity as a “war crime”. As the report notes:

The Rome Statute establishes the International Criminal Court’s jurisdiction over the deportation or transfer, directly or indirectly, by the occupying Power of parts of its own population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. Ratification of the Statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law justice for victims. 

More than anything else the Palestinian leadership could do, seeking membership in the International Criminal Court and preparing to bring a complaint against Israel for its settlements has the potential for dramatically altering the political landscape in the Israeli-Palestinian conflict. A victory at the International Criminal Court would isolate Israel, require the West to acknowledge the force of its own laws, re-establish the importance of universal values and, most hopefully, begin to re-set some of the dysfunctional asymmetry of power between Israel and the Palestinians.  

Regarding the decision of the United Nations Human Rights Council to commission a report on the Israeli settlements, the United States has played its traditional role as Israel’s diplomatic flack catcher. The New York Times on Thursday quoted the U.S. as stating it had opposed the mission on the grounds that “it does not advance the cause of peace and will distract the parties from efforts to resolve the issues that divide them.” In his memoirs, written in 1992, Dean Rusk recalled his reaction to Abba Eban’s 1967 comment that Israel had changed its mind about returning the conquered lands: “With that remark, a contentious and even bitter point with the Americans, he turned the United States into a twenty year liar.”

Michael Lynk
About Michael Lynk

Michael Lynk teaches labour law and constitutional law at the University of Western Ontario, in London, Ontario. He also writes regularly on the legal aspects of the Israeli-Palestinian conflict. In 1989, he worked as a refugee affairs officer for the United Nations Relief and Works Agency in Jerusalem.

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16 Responses

  1. James Canning
    James Canning
    February 1, 2013, 2:56 pm

    Great piece. Britain tried to have the UN force Israel out of the West Bank, Golan Heights and the Sinai, immediately after the 1967 Arab-Israel war. Lyndon Johnson failed to give this sensible effort adequate backing. Thanks to the Israel lobby.

    • wondering jew
      wondering jew
      February 1, 2013, 9:32 pm

      One possible interpretation of LBJ’s backing of Israel after the 67 war is to label it as an act coerced by the Israel lobby. Another interpretation is that the US, performing poorly in Viet Nam, was quite pleased to have a victory for the West and backed Israel’s desire to keep captured territory in order to punish those who were backed by the Soviet Union. (Excusing the attack on the USS Liberty would also fit in with the desire to view the Israeli victory as a victory of the West and to hush up anything that would detract from that victory.)

      • James Canning
        James Canning
        February 3, 2013, 1:32 pm

        The US backed UNSC 242. Problem was the “weasel-wording” the Israel lobby forced Britain to accept. The UK sensible saw the need to force Israel out of all the occupied territories.

        Some informed sources claim Lyndon Johnson was “blackmailed” into not backing the UK forcefully, to get Israel out of the OT. The threats pertained to wrecking his military adventure in Vietnam.

  2. James Canning
    James Canning
    February 1, 2013, 2:58 pm

    We should remember that Dean Rusk had the courage to say publicly that Israel’s attack on the USS Liberty in June 1967 was intentional. Which it clearly was, even though Lyndon Johnson and Cyrus Vance tried to pretend otherwise. Why? Israel lobby.

  3. James Canning
    James Canning
    February 1, 2013, 3:02 pm

    Yes, let us remember the “annexation” of Estonia and the other Baltics, prior to the Second World War. By the USSR. And subsequent planting of many hundreds of thousands of Russian settlers, in hopes of “Russifying” those countries. Programme failed, luckily.

    UN needs to give full recognition to Palestine, with “1967” borders.

  4. pabelmont
    February 1, 2013, 3:38 pm

    PLO/ SoPal is rather slow to join the ICC considering that they applied to do so earlier — and were turned down for reasons many think are now cured by the recent semi-admission to UN.

    In any case, they should try, and one wonders why they do not.

    I suppose more arm-twisting by USA and Israel. And corruption — Fateh being well-known (or well-believed) to be “on the take”. I suppose there is little real difference, these days, between arm-twisting and exerting a corrupting influence.

    Until WikiLeaks tells us, we’ll never know what the recent “diplomacy” has been.

  5. DICKERSON3870
    February 1, 2013, 4:49 pm

    RE: “Even as he [Abba Eban] was offering some vague pledges to the United States about Israel’s willingness to return the lands to their Arab neighbours, the Israeli cabinet voted to annex East Jerusalem and a significant chunk of the West Bank, and began planning the first settlements under the guise of military encampments. ~ Michael Lynk

    MY COMMENT: I originally had considerable respect for Abba Eban, but when he began prattling on and on (with a fairly straight face) about the need for Israel’s new “security settlements” in the West Bank, I lost all respect for him.

    • James Canning
      James Canning
      February 3, 2013, 1:28 pm

      Lyndon Johnson of course blundered bacly by not working with the UK to force Israel out of the occupied territories in the aftermath of the 1967 Arab-Israel war.

      Should we regard the disasters suffered by the American taxpayers since 9/11 as in part an outgrowth of Lyndon Johnson’s stupidity in Vietnam?

  6. American
    February 1, 2013, 5:42 pm

    Yes, these parts of the report offer hope:

    “The Rome statute establishes the international criminal court’s jurisdiction over the deportation or transfer, directly or indirectly, by the occupying power of parts of its own population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory,” said the UNHRC report .

    It added: “Ratification of the statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims.”

    Unity Dow, one of the UNHRC judges who contributed to the report, said in a statement: ”The magnitude of violations relating to Israel’s policies of dispossessions, evictions, demolitions and displacements from land shows the widespread nature of these breaches of human rights…The motivation behind violence and intimidation against the Palestinians and their properties is to drive the local populations away from their lands, allowing the settlements to expand.”

    But that leaves Palestine getting to the ICC.
    The ICC ruling for them, which I don’t doubt they would.
    And the last, but not least, who will physically throw the settlers off Palestine land after the ICC rules?..cause we know Israel, no matter who ordered by, won’t do it.

    I wish Palestine could be speeded up. I said in 2004 Palestine needed to go for Statehood and ignore the US, that was their only hope. Give me a star I was right.
    Now,( if there are any Palestine’s listening)—go to the ICC as fast as you can go…..don’t stop, don’t collect $ 200 in paltry US aid, do not believe anything the US says, US negotiations are a death trap………just go for the ICC now, push,push run, run, run.

  7. talknic
    February 2, 2013, 9:27 am

    It applies equally to the Golan and according to Schwebel/Lautherpacht ( ) Syria has the right to ‘restore’ sovereignty over the Golan by war. With the help of the other Regional Powers if necessary. Especially as all UNSC Chapt VI resolutions have been ignored by Israel.

    Makes one wonder about what lengths the Israeli US alliance are willing to go to in order to keep the region in turmoil. That ol’ veto vote sure comes in handy.

    • James Canning
      James Canning
      February 2, 2013, 2:50 pm

      Israel itself seems to have had strong doubts about the benefits to Israel of chaos in Syria. Personally, I hink Gulf Arabs backed the revolt partly to weaken Iran prior to possible war in the Gulf.

    • thetumta
      February 3, 2013, 1:06 pm

      That veto can be overcome by the General Assembly using the same mechanism as in the Korean War to overcome the Soviet veto. How ironic. In the long run, I don’t think resolutions by Israel are the issue. Once a determination has been issued by the ICC, I believe all UN members are required to act save one, the US as it never signed on to the Rome treaty mechanisms? Or is the ratification by the US senate of the earlier war crimes statues sufficient at that point to compel action by the US in the Federal Courts?

  8. NickJOCW
    February 2, 2013, 10:27 am

    A lot is said and written about the Israeli Lobby and obviously it possesses a powerful influence in US decision making. However, this is only possible because of US passivity, like being the object of seduction where the head is in conflict with other parts but insensibly losing the battle. This sort of thing arises from a peculiarly Western preoccupation with the interstices between ‘right’ and ‘wrong’, that variously grey area of excuses and justifications. Freud was one of the first to popularise this comfort zone of moral equivocation and it swiftly invaded literature, Law and entertainment, stoked the fires of Western liberalism, and opened up the moral deserts of Western capitalism. Most Westerners live quite happily in a moral swamp where retribution arises solely in consequence of being caught and they find themselves uncomfortable only with actions that stray too far either way, foot shufflingly embarrassed by one and quiveringly outraged by the other. I do not think it possible for any appeal to moral principles to curtail the actions of Israel, its lobbies, or the recipients of its largesse, and raising the appeal is either crying in the wilderness or flaunting self-righteousness, or a grey mixture of both. The conflict today is not between good and evil but between those cultures where the distinction remains objective and absolute and those where it has become subjective and variable. This obviously applies to the US and Islamic nations, particularly ones that follow Sharia law whose penalties seem barbaric to those only too well aware of their own susceptibility to the offences that attract them.

    The people of the Middle East are realists; they live in a world where might is right, which is one reason they don’t flock to free Palestinians or mess too much with so mightily armed Israel. Israel is a Middle Eastern country, Judaism is a Middle Eastern religion. Israel currently functions as a glory-hole for US/Western penetration into the Islamic world. The danger of Palestine going to the ICC without US support is that the exercise might be sabotaged, protracted indefinitely or the findings ignored all of which by weakening the institution could do more harm to the world than ongoing injustices in the Holy Land. Even were the US to be neutral it would be seen as betrayal, and the loss of aggressive US support might even lead towards a pragmatic bargain between Israel and the surrounding rich but weakening Arab nations whose protector, in return for shekels, Israel might quite easily become.

    Israel is not a US problem, it is a global problem. Just look at the eggshells a renowned German journalist has to navigate:

  9. amigo
    February 2, 2013, 4:12 pm

    Den of Anti Semitism uncovered in Irish country village school.

    Cahersiveen[7][8] (Irish: Cathair Saidhbhín, meaning “Little Sadhbh’s stone ringfort”)—alternate spellings Cahirsiveen, Cahirciveen or Caherciveen—is a town in County Kerry, Ireland. It is located on the River Ferta and is the principal town of the Iveragh Peninsula. Cahersiveen is near Valentia Island and is connected to the Irish road network by the N70 road. It has a population of 1,294 (CSO 2006).

    It turns out that a teacher in this school of some 100 students engaged in a discussion about the I/P Conflict but forgot to invite someone to proffer the Israeli Narrative which prompted a Zionist apologist to label the school and it,s students as being Anti Semitic, in a letter to the Irish Times January 31 st inst.

    Of course the Zionist apologist omitted to inform the Irish times Readers of the existance of “Yeshivas” in Jews only Illegal settlements and diclose the number of occasions when Palestinians or their supporters are invited to proffer the Palestinian Narrative.

    This is a new low for Israeli propaganda and the ADL

    Is the ADL so desperate as to feign victimhood at the hands of 14 year ols student in an Irish school in a village of 1294 people.

    What utter nonsense driven by desperation and a refusal to accept defeat.

  10. amigo
    February 2, 2013, 4:49 pm

    My previous is I admit off topic but I could not find an appropiate thread to post it on.

    As to the Palestinians taking Isreal to the ICC, Why are we waiting???.

    • NickJOCW
      February 3, 2013, 5:17 am

      @amigo. You may gain more when opponents realise you have the option up your sleeve. After all, it’s not going away

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