Before our American friends run away with the idea that Secretary of State Mike Pompeo has authority to say that planting Israeli civilian settlements in Occupied Palestine “is not, per se, inconsistent with international law”, and that the Trump Administration is only recognising the reality on the ground, they might like to hear the authoritative opinion of John McHugo, International lawyer and Balfour Project trustee:
Article 49(6) of the Fourth Geneva Convention of 1949 provides that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Article 49(6) was considered by the International Court of Justice in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004. It stated, at para. 120 of the Advisory Opinion, that Article 49(6) “prohibits not only deportations or forced transfers of population…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.”
All judges of the court subscribed to this with the sole exception of Judge Buergenthal, the American judge, who is a Holocaust survivor and who lost toes to frostbite as a child in Auschwitz and Sachsenhausen concentration camps. He took the view that the Court should have declined to exercise its jurisdiction.
Yet he issued his own Separate Declaration to the Advisory Opinion in which he expressly stated at Para. 9: “I agree that [Article 49(6)] applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6”. The view that Israeli civilian settlements violated Article 49(6) was thus the unanimous view of the judges.
More recently, the fact that this is the law was reiterated by the UN Security Council in Resolution 2334 of 23 December 2016 at operative paragraph 1: “The Security Council Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied in 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.”
It is not for any State, however mighty and powerful, to rewrite the rules of international law. Realities on the ground are subject to the rule of law, just as all other realities are.
For good measure Article 85(4)(a) of the 1977 Additional Protocol I provides that “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies” is a grave breach of the Protocol. And under Article 8(2)(b)(viii) of the 1998 ICC Statute “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” constitutes a war crime in international armed conflicts.
And, by the way, in 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defence declared that it regarded the transfer of the Iraqi population into occupied Kuwait in violation of Article 49 of the 1949 Geneva Convention IV as a war crime. So, happy with the Convention back then.
As usual, the US and its allies (including the UK), will observe international law when it suits them. But not if it upsets their bosom-pals in Israel.
Pompeo’s two cents’ worth follows Trump’s presidential declaration earlier this year recognising Israel’s annexation of the Golan Heights, which belong to Syria. When will Washington understand that Trump’s capricious shifts in policy don’t alter international law, don’t impress other nations, and endanger world peace?
As a product of Harvard Law School Pompeo should be ashamed of his fatuous pronouncement.
McHugo points out that British government policy is to recognise Palestine as a sovereign state “when it best serves the interests of peace”. In view of Pompeo’s and Trump’s dangerous remarks that moment is now.
23 November 2019