Other Countries’ Settlements

Last month at the Association for the Study of the Middle East and Africa annual conference, I discussed a paper I am writing with a former student, Dana Brusca: how one determines whether a violation of Art. 49(6) of the Fourth Geneva Convention has occurred, and what the remedy is. (My talk begins at approx. 41:45 min. into the panel.)

Art. 49 focusses on the prohibition of kicking out the inhabitants of occupied territory. Art. 49(6), however, provides that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” From the text, it would appear that it requires substantial action by the Occupying Power: it does not create a no-go zone for nationals of the occupying power who wish to migrate into the occupied territory. “Deport or transfer” is even murkier. It seems to require that the occupying power actually move the civilians in for a violation to occur (such things have been known to happen).

The ICRC commentaries acknowledge that the provision was adopted “with hesitation” and its meaning is not straightforward. This would seem an excellent case for construing a provision in light of state practice. Yet discussion of the provision has occurred in a jurisprudential bubble; a legal closed circuit.

In the context of Israel, the provision has been read by most international lawyers very broadly as requiring the government (assuming it is an occupying power) to actively oppose and prevent civilian migration, to not provide services to citizens who have migrated into the occupied territory, and so forth. Indeed, in the conventional account, even so-called “illegal” settlements – those built expressly in defiance of the Israeli government – violate 49(6). Thus as applied to Israel, 49(6) might read, “Nationals of the Occupying Power may not live in the occupied territory.”

When one reads discussions of Israel and 49(6), the only precedents cited are various statements about 49(6) – in the context of Israel. One might conclude that Israel has been the only significant alleged violator in the post-War period. If there were no other arguable 49(6) cases, then this limitation would be natural.

Our project allows for a more dispassionate look at 49(6) by 1) using multiple independent data points; 2) not focussing on arguably the single most politically controversial situation in the world. Thus to be clear, the research project is NOT about Israel.

Indeed, instead of focussing exclusively on Israel [see Parts VI-IX of the ICRC state practice guide], we study global state practice. In particular, we examine civilian population movements into occupied territory from Morocco, Turkey, Indonesia, and several other cases, and the international legal response to these actions.

Our paper is not finished, as we hope to have a comprehensive survey. What we see so far, as described in my talk above, is that state practice in regards to these migrations fairly uniformly shows that the movement of civilians into occupied territory is not treated as “deportation or transfer” even when it is favored or generally supported by the government. Second, even for migrations directly organized by the government that may violate 49(6), international authorities have never regarded the removal of the “transferred” civilians as the appropriate remedy. On the contrary, U.N.-approved land-for-peace deals leave settlers in place, and often even let them vote on a referendum about the occupied area’s political future.

One difficulty with making such research comprehensive is that unlike with Israel, where every outhouse built by Jews in the West Bank is documented and reported, civilian migrations by occupying nationals elsewhere is very poorly chronicled, at least in English sources, making it hard to determine what the facts, and thus the law is.

I’d be particularly grateful for readers to direct me to information on civilian movement into occupied territory, and the government’s attitude towards or role in it in the following contexts (or anything I might have missed regarding the colorable occupations discussed above). For the purposes of this study, I take a broad view of occupation, and am not interested in the underlying merits of the territorial claims.

1) Jordanian occupation of West Bank, and Egyptian occupation of Gaza.
2) Vietnamese occupation of Cambodia (which saw the arrival of hundreds of thousands of settlers).
3) Russia’s occupation of Georgian Abkhazia (notable for Russia’s being a member of the Middle East Peace Quartet).
4) Armenia around Nagorno-Karabakh.

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