The Land of Israel, Judea, Samaria and the 4th Geneva Convention
“Claims of their illegality are based on the final paragraph (6) of Article 49 of the 4th Geneva Convention, Relative to the Protection of Civilian Persons in Time of War, of August 12, 1949. This states:
‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’
However, Article 2 states that the Convention applies ‘to cases of … occupation of the territory of a High Contracting Party’ by another such Party. The West Bank was illegally occupied by Jordan after it rejected the UN partition resolution and attacked the nascent State of Israel in 1948. (According to the principle of ‘ex injuria non oriturius’ no legal claim to territory can arise out of an illegal aggression.)
“In contrast, Israel’s presence in this area is entirely lawful, since Israel entered it lawfully in self-defense, and she is entitled to negotiate the extent and the terms of her withdrawal.
“As the West Bank does not belong to any other state (there has never been a nation-state of Palestine, and Jordan has since renounced its illegitimate territorial claims), the Convention can not apply to it at all. ”
(NB. It is universally recognized that the UN General Assembly has no power to create binding rules of law by simple resolution.)
“Further, when Article 49 of the 4th Geneva Convention was drafted, it was directed against the Nazis’ practice of forcibly transporting unwanted populations into or out of occupied territories for the purpose of ‘liquidating’ them, or to provide slave labor, or for other inhumane purposes.
“These genocidal objectives were, of course, directed in large part against the Jews. ” Thus, even if one assumed that Israel’s position in the West Bank was one of merely an occupying power, Article 49 would forbid deportation or transfer of its own population onto the West Bank whenever this action (a) impaired the economic situation or racial integrity of the native population of the occupied territory, or (b) resulted in inhuman treatment of its own population. ”
Re point (a), the prominence of the question of legality of Jewish settlements on the West Bank reflects the tensions of the peace process, rather than the magnitude of any demographic movement.
The reality is clear that there has been no serious dilution (and certainly no eradication) of the ‘separate racial existence’ of the native population – nor is such a scenario likely. Also, the standard of living of the large Arab population in the West Bank is significantly higher than that of Arab populations in neighboring states.
“Re point (b), the terms of Article 49(6) are totally irrelevant. Were one to make them relevant, the effect of Article 49(6) would impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein (free of Jews). Thus, a legal instrument designed to prevent a repetition of Nazi genocidal policies of making areas judenrein would come to mean that the West Bank must be made judenrein and must be maintained in such a state, if necessary by the use of force by the government of Israel against its own inhabitants.
“To argue this legal point I have quoted freely from “Israel and Palestine – Assault on the Law of Nations” by the late Julius Stone, the Challis Professor of International Law and Jurisprudence at the University of Sydney.