Last week I blegged for information about this question, set forth my preliminary understanding of the issue, and enjoyed reading many excellent comments, pro and con, on the topic. I would now like to ask commenters for more analysis on two precise issues.
It seems to me that the strongest argument that Israel is in violation of international law is based on United Nations Security Council Resolution 446. Passed 12-0 (with the U.S. abstaining), the 1979 Resolution tells Israel to stop building settlements in the West Bank and Gaza. (The latter were abandoned in 2005, are so are now irrelevant to my question.) Arguments can be made that the Resolution is predicated on a defective reading of the Fourth Geneva Convention, but there is a good counter-argument that even if the Security Council’s resolution is wrong, the resolution is still binding, as a matter of international law.
To be precise, Security Council resolutions adopted under Chapter VII of the U.N. Charter are binding, whereas resolutions adopted under Chapter VI are not. Resolution 446 does not state its source of authority; Wikipedia’s discussion section contains some pro/con arguments on whether 446 is a Chapter VII resolution.
A second international law argument against Israel is that the West Bank settlements and the defensive barrier both violate the Fourth Geneva Convention. A key weakness in this argument, though, is that the Convention by its own terms applies only “between two or more of the High Contracting Parties.” Israel is a High Contracting Party, but there appears to be no other High Contracting Party which can claim that Israel’s West Bank policies violate the Party’s Geneva Convention Rights. (Jordan is exercised sovereignty in the West Bank from its 1948 invasion of Israel until Jordan attacked Israel again in 1967, and was thrown out of the West Bank. Jordan later abandoned all claims of sovereignty to the West Bank.)
Israel has unilaterally said that it will follow parts of the the Fourth Geneva Convention regarding the West Bank, and Israel contends that it is following the Convention; but this argument seems less relevant, legally speaking, than whether Israel is legally obliged to obey the Fourth Geneva Convention.
The arguments that Israel has a legal obligation to do so seem extremely weak. For example, some people cite Article 1 of the Convention (“The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”) as if it makes a nullity of Article 2’s specific deliniation of the only circumstances in which the Convention is legally applicable.
The article Laurence E. Rothenberg & Abraham Bell, Israel’s Anti-Terror Fence: The World Court Case (2004), seems to make a quite persuasive case that the Fourth Geneva Convention is not legally applicable to the West Bank, even though I do not find every single argument in the article to be persuasive.
So I am asking commenters for legal analysis of whether Sec. Res. 446 is a binding Chapter VII resolution, and whether the Fourth Geneva Convention is legally applicable in the West Bank. Please focus on the legal issues, rather than pro/con arguments about Zionism etc. Most commenters for my previous post did a good job of keeping a legal focus, except for one repeat-offender ranter who had to be barred.