Clinging hypocritically to civil rights

David Kretzmer
9 January 2005

Illegal Israeli colonists don't have a leg to stand on.

Evacuating a person from his home is deeply hurtful, regardless of the circumstances. Therefore, even someone who opposed the settlement enterprise in the territories, as I did, must be empathetic toward the pain of the settlers who will be forced to leave their homes under the disengagement plan.

However, this is a far cry from maintaining that the evacuation, which will be accompanied by commensurate compensation, is an unacceptable violation of the settlers' civil rights. That argument completely ignores the moral and legal basis of the settlement by Israeli citizens in areas that are not part of Israel's sovereign territory and have, since 1967, been administered under a regime of belligerent occupation. I will not deal here with the moral aspect, but will confine my remarks to the legal side.

An analysis of this aspect uncovers the hypocrisy of those who attack the disengagement plan by invoking the civil-rights argument. This is because the same legal framework that is cited in order to allocate land to the settlements is abandoned when their evacuation comes up.

As noted, the Gaza Strip and West Bank are under a regime of belligerent occupation. This assertion, with its implications, is not held by experts in international law and international institutions alone. It rests on extensive rulings of the Supreme Court and has provided the basis for many actions carried out in the territories since 1967. The lands on which most of the Jewish settlers in Gaza and the West Bank reside were seized through the cynical exploitation of the powers that accrue to a military commander in this regime. If the lands were privately owned, they were seized "for military needs" (a practice that was abandoned in the wake of the court judgment in the Elon Moreh case).

As for other lands, the military commander declared them state lands by means of a military order and transferred them to the use of the settlers, thereby violating a rule of international law under which the occupying power must hold public lands as a trustee.

In the decision of the High Court of Justice in the Elon Moreh case (1979), Justice Moshe Landau explained that without relying on international law concerning belligerent occupation, there would be no legal basis for requisitioning the land on which Elon Moreh was built.

A basic principle of our legal system is that the government and military authorities do not have the power to seize private property without clearly being authorized to do so under the law. And the only law that grants a military commander in the territories the power to seize privately owned land is the rule of international law that authorizes a military commander to seize land for military needs.

However, the same international law that constitutes the basis for the authority to seize land also imposes restrictions on the occupying state. In the present context, the cardinal restriction is the prohibition on transferring citizens of the occupying state to the occupied territories. The argument voiced by various individuals that this prohibition applies only to forced transfer is baseless.

Like other rules of humanitarian law, this prohibition is not intended to protect the citizens of the occupying state from their state; its purpose is to protect the population in the occupied territory against an attempt by the occupying state to alter its demographic composition. From the point of view of this population, the question of whether the citizens of the occupying state are transferred to the occupied area by agreement or by coercion is of no importance.

True, the High Court evaded a discussion of the question of whether Israel violated this prohibition by the very establishment of settlements. However, the court did enunciate a principle that seals the fate of the settlements, namely, "A military government cannot create facts for military needs in its territory, such as are intended to exist even after the conclusion of the military government in that territory, when it is not yet known what the fate of the territory will be after the termination of the military government."

On the basis of this principle, the original decision to establish Elon Moreh was found to have been illegal, and on the basis of the same principle, the court stated, in the Beit El affair (1978), that the establishment of the settlement would be considered temporary, because "the civilian settlement can only exist in that place as long as the Israel Defense Forces occupies the area by virtue of a requisition order."

It is doubtful, therefore, that the presence of the settlers in the territories is legal, according to the same system of laws that provided the basis for the seizure of the land on which they sit. And even if it is claimed that they settled in the territories legally, their presence there is considered a priori to be temporary, lasting only until the military regime is annulled.

It can be argued that even if the State of Israel violated international law by establishing settlements in the territories, and even if from its point of view, the settlements were considered temporary, after it permitted the settlers to move there, it does not have the right to oblige them to leave. The difficulty with this argument is that the state cannot accord the settlers rights it does not have. By evacuating them, the state does them injury, but as in other situations in which a person purports to grant X rights that belong to Y, the state's only obligation is to compensate them for the damage caused to them.

The writer is a professor of international law at Jerusalem's Hebrew University.

Originally published here.