by Eugene Kontorovich

In the wake of President Bush's recent trip to Israel, the administration has put great emphasis on the issue of Israeli settlements. Most controversial are the "unauthorized settlements." Mr. Bush declared that the "illegal outposts ... must go."

Unauthorized settlements are communities that have been created against the wishes of the Israeli government. They may violate Israel's building or zoning rules, and thus are sometimes called "illegal" settlements.

One might think from the controversy that these communities represent a gross affront to international norms. The opposite is true: whatever one may think of the legal status of Jewish communities in the West Bank in general, the "unauthorized" settlements raise no issues under international law.

The international law said by Israel's critics to prohibit Jewish settlement activity in the West Bank is the Article 49 of the Fourth Geneva Convention. The article provides that "the occupying power shall not deport or transfer parts of its own population into the territories it occupies." The dispute over the legality of Israel's West Bank settlements mostly turns on the interpretation of this provision.

"Occupation," as used in the treaty, seems to mean seizing territory belonging to another country. The West Bank, however, was not part of Jordan's territory when Israel took it in 1967. At the time, the area was not the recognized as the territory of any nation.

Regardless of these arguments, what is clear is that the Convention specifically bars action only by the "occupying power" – in other words, the government and public authorities of the country. It does not apply to the movements and real estate decisions of private individuals. Various other parts of the Convention distinguish between "nationals of the occupying Power" and "the occupying power" itself; the prohibitions of Article 49 fall exclusively on the latter.

This makes sense given the convention's purposes and background. The Geneva Conventions are treaties between nations outlining their legal responsibilities during war and its aftermath. The obligations they create apply only to nations and individuals exercising public power.

No one has ever suggested that the U.S. occupation of Iraq and Afghanistan banned American citizens from moving there.

Certainly the Geneva Convention is not a zoning law, or a Jim Crow ordinance preventing people of a certain nationality from living where they choose. Sixty years ago, in Shelley v. Kramer, the U.S. Supreme Court held that the government could not participate in any way in racial discrimination in housing. Yet in Mr. Bush's interpretation, if an American Jew with Israeli citizenship were to buy a house from an Arab in a voluntary transaction, it would be an "illegal settlement" since not approved by the Israeli government. Apparently the administration does not feel the philosophy of Shelley has general applicability.

The "illegal" Jewish outposts exist despite the government's best efforts, not because of them. They were created by private individuals, with the government often repeatedly destroying or threatening their homes or blocking their access. Residents continue to live in trailers and even send their children to classrooms built in the backs of trucks because the government would demolish permanent homes.

It is puzzling that international opposition to settlements begins with those that are illegal if at all, only under Israeli law. The international community is an unlikely champion of Israeli's complex housing code – it certainly does not complain of the extensive illegal Arab construction.

Perhaps it is because the unauthorized communities represent the persistence of Jewish efforts to live in the area regardless of the government's plans. The Palestinian Authority insists that the price of any deal be not only the withdrawal of Israeli sovereign force, but also the expulsion of all Jews from the area. Thus the outposts challenge the vision of a Jew-free state.

The Geneva Convention was designed to protect against governmental efforts to forcibly change the ethnic make-up of an area, efforts of the kind that occurred in World War II. It would be a bitter irony if it were misread as requiring that any territory be kept free of Jews, or any ethnic group.

Eugene Kontorovich is a professor at Northwestern University Law School, where he teaches international and constitutional law.

This article appeared in New York Sun It was initially posted on Think-Israel February 15, 2008 by Avodah here.

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