Illegal Settlements and the Subversion of International Law
For decades, Israel’s detractors have appealed to consensus, asserting that settlements are illegal because the entire international community agrees they are illegal. As with Jerusalem and the Golan Heights, the Trump administration has refused to be cowed by a hollow consensus. By dissenting, the U.S. has destroyed both the consensus and the frail arguments that relied on it.
The “hollow consensus” that Kontorovich dismisses is based on the Geneva Conventions. Introducing civilian settlers into territory seized in war is a clear and unmistakable violation of the Fourth Geneva Convention. The Fourth Geneva Convention states, “The occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” So the “frail arguments” that Kontorovich waves away are at the core of modern postwar international law. Establishing settlements in occupied territory is illegal. Israeli settlements are located in occupied territory seized during the 1967 war, and so they are illegal under international law. The consensus on this point is overwhelming, and it remains so whether the U.S. accepts it or not. Kontorovich’s reference to the Golan Heights here is revealing, since it suggests that he has no problem with recognizing the illegal annexation of that territory. It is safe to conclude from this that this is not really a piece of legal analysis, but rather an ideological statement that international law should be ignored when it is inconvenient.
Donald Macintyre points out that one of the first people to argue that civilian settlements in the territories captured in the 1967 war would be illegal was none other than the Israeli foreign ministry’s legal counsel:
It’s sometimes forgotten that one of the first lawyers to recognise the illegality under international law of civilian settlement in the Palestinian territories which had just been occupied in the Six Day War was Theodor Meron, the Israeli foreign ministry’s own legal counsel at the time. Meron, who rose to be a renowned international jurist and president of the International Criminal Tribunal for the former Yugoslavia, confirmed – to The Independent as it happens – in 2007 that was still his view.
The consensus on this point is so broad because the settlements are so clearly in violation of the law. To deny this requires the absurd denial of the occupation itself. No one except for hard-line ideologues believes that Israel isn’t occupying Palestinian territory, and only a couple governments dominated by hard-line ideologues think that the settlements aren’t illegal.
No one else is impressed by the Trump administration’s acceptance of the illegal settlements. The U.N., the Red Cross, and the EU all maintain that they are and always have been illegal. Israel is still an occupying power more than fifty years later, and as such they have legal obligations that they have been flouting for almost as long.
The U.S. has a bad habit of carving out exceptions for its clients and for itself when it comes to international law. U.S. officials will lecture other states about the importance of a “rules-based order” when it constrains someone else, but will be quick to discover that the rules don’t apply when they get in the way of something that we or one of our clients wants to do. Beyond the obvious hypocrisy on display, no system of rules will hold up indefinitely when it is repeatedly undermined by the world’s most powerful government. When the U.S. makes a mockery of international law and dismisses its requirements when it suits this or that administration, it is an invitation to other governments to do likewise, and then when they do commit these violations the U.S. cannot effectively challenge them because no one will take our objections seriously.