Israeli Settlements- IHL Analysis
The presence of Israeli Settlements in the West Bank, including East Jerusalem, is a central issue in the context of the conflict. As a matter of law the transfer of population into occupied territory represents a clear violation of IHL, and has been listed as war crimes under the Rome Statute of the International Criminal Court.
The humanitarian impact of the settlements on the lives of Palestinians is huge. A recent Human Rights Council mandated independent fact finding mission listed the extensive impact that settlements are having on a broad range of basic Palestinian rights.
Israeli settlements and International Law
Why are settlements a violation of international humanitarian law?
Settlements violate international humanitarian law (IHL) by their very existence. The UN Charter clearly prohibits the acquisition of territory by force, and IHL reinforces this protection during occupation when territories are at a higher risk of annexation, by strictly prohibiting the transfer of an occupying powers' population into occupied territory. This prohibition is set out in Article 49(6) of the Fourth Geneva Convention.
According to Article 49(6) of the Fourth Geneva Convention, reflective of customary international law , any kind of transfer of the "occupying power's population" to the occupied territory is prohibited, regardless of whether the transfer was voluntary or forced.
The ICJ states in the Wall Advisory Opinion that
any measures taken by an occupying power in order to organize or encourage transfers of parts of its own population into the occupied territory is forbidden according to Article 49(6). The can include both acts and omissions.
The prohibition stems from a need to prevent practises adopted during the Second World War by certain powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order to colonise those territories.
The United Nations Security Council has expressed that the Fourth Geneva Convention is applicable to the oPt and called upon Israel not to transfer its own civilian population into the occupied territory nor to take any other action that would result in changing the legal status, geographical nature or demographic composition of the occupied territory.
Transfer of population into occupied territory - a war crime?
Serious violations of international humanitarian law are considered war crimes. The ICRC points out that transfer of populations into occupied territory meets this threshold,
because of the possible consequences for the population of the territory concerned from a humanitarian point of view.
Transfer by an occupying power of its own civilian population into occupied territory is a breach of IHL according to the Geneva Convention and also a grave breach according to the First Additional Protocol . Transfer by the occupying power of parts of its own civilian population into the occupied territory is also listed as a war crime under Article 8(2)(b)(viii) of the Statute of the International Criminal Court (ICC).
The question of whether or not settlements amount to war crimes remains a legal question. The Rome Statute sets out the most widely accepted list of war crimes (serious violations of IHL) totalling 38. Each of these crimes has different elements, components, and will offend human morality in different ways, but ultimately the international community has accepted that these are the minimum list which should apply to armed conflict.
The extent to which settlements infringe upon human rights and the dignity of others may not be as visceral as other war crimes, but by taking away land and resources they affect almost all rights of Palestinians- rights which are guaranteed under international law.