Prof. David Phillips tries to prove settlements are legal, but ultimately leads to the question of Apartheid

Posted: December 7th, 2009 | Author: | Filed under: In the News, The Right, The Settlements | Tags: , , , , , , , , , | 9 Comments »
West Bank Archipelago

West Bank Archipelago

The neo-con Jewish magazine Commentary features an article by law professor David Phillips, under the title The Illegal-Settlements Myth. Basically, it argues against the commonly accepted view, that the Israeli settlements in the West Bank violate international law, and most notably, the 4th Geneva Convention.

Article 49 of the 4th Geneva Convention forbids an occupying force from transferring his own population to the occupied territory. Prof. Phillips claim that (a) it is not clear whether the West Bank can be seen as “occupied land”, and (b) “transfer” only refers to the active, even forceful, move of civilians, which is not the case with the settlements.

I’m not a big fan of legalism when it comes to international relations. I think that legal debates, more often than not, tend to miss the point, and I believe the tendency of lawyers to cherry pick the cases that suit their claim can be very harmful when it comes to questions of power and justice, as most issues in international politics are. A good example of legalistic cherry-picking was Lawrence Siskinds attack on the Goldstone report which I wrote about a few weeks ago.

Prof. Phillips’ article – which has been since quoted by several bloggers and referred to in the Examiner – is even worse: it presents a new reading of the Forth Geneva Convention, but then it fails to follow through with its own logic. I will try to show here how. I won’t however go into the historical “facts” Prof. Phillips presents – many of them debatable at best – except when it is necessary to make my point. Here is such a case:

Phillips’ theory is based on the unique position of the West Bank as “unallocated territory,” i.e. land that was never recognized as belonging to a sovereign state. While describing the historical development that led to this state of affairs, Prof. Phillips casually notes that:

Over the course of the years to come, there was little dispute about Egypt’s sovereign right to the Sinai, and it was eventually returned after Nasser’s successor Anwar Sadat broke the Arab consensus and made peace with Israel. Though the rulers of Syria have, to date, preferred the continuance of belligerency to a similar decision to end the conflict, the question of their right to the return of the Golan in the event of peace seems to hinge more on the nature of the regime in Damascus than any dispute about the provenance of Syria’s title to the land.

Really? “The rulers of Syria have, to date, preferred the continuance of belligerency?” If there is something which is not disputed, it’s the fact that since the mid 90′s, the Syrians have been offering peace in exchange for full Israeli withdrawal from the Golan – a deal that no Israeli PM was willing to accept. They are offering it right now by the way, but like his predecessors, PM Netanyahu promised, just before the elections, that Israel will not leave the Golan.

But even if you don’t believe all this, how could a legal scholar such as Prof. Phillips miss the simple fact that Israel annexed the occupied Golan in December 1981? So much for the “provenance of Syria’s title to the land.” Was it his rush to blame everything on Arab rejectionism that led him to state that “the question of their right to the return of the Golan in the event of peace seems to hinge more on the nature of the regime in Damascus?”

Than Prof. Phillips gets to his main point, the ownerless statues of the West bank. He notes that since the 80′s, settlements haven’t been built on private Arab land:

After the Elon Moreh case [a famous Supreme Court ruling from 1979], all Israeli settlements legally authorized by the Israeli Military Administration (a category that, by definition, excludes “illegal outposts” constructed without prior authorization or subsequent acceptance) have been constructed either on lands that Israel characterizes as state-owned or “public” or, in a small minority of cases, on land purchased by Jews from Arabs after 1967.

Later he adds that:

Even settlement opponents concede that many settlements closest to Palestinian population areas, on the central mountain range of the West Bank, were built without government permission and often contrary to governmental policy; their continued existence forced the government to recognize the settlement as an existing fact. Given this history, it is questionable to claim that Israel “transferred” those settlers.

This is where I’m starting to get confused. If the settlements are “legally authorized”, and properly built on public land, how come they are, at the same time, “without permission” and “contrary to governmental policy?” could the settlers have colonized the West Bank only on locations authorized by the state to begin with, and at the same time, act against its policy?

The answer is: they couldn’t.

Idith Zertal and Akiva Eldar’s “Lords of the Land: The Settlers and the state of Israel 1967-2007″ (highly recommended reading) describes in details how almost all of Israel’s governments agencies intentionally contributed to the colonization of the West bank, while pretending to be forced to “recognize the settlement as an existing fact”, as Prof. Phillips would like us to believe. Unsurprisingly, the most important job was done in the Justice Department, where attorney Plia Albeck led the effort to turn privately owned land to “public land” and from there to “Israeli public land”.

There is a famous anecdote describing a meeting between Hanan Porat and other prominent settlers and PM Menachem Begin in the late 70′s. At the time, Begin was under pressure from the Carter administration to “freeze all settlements activities” (yes, this goes back decades), so he encouraged the settlers to rush and take the land and explained: “after that, it would be easier for me to say [to the Americans] ‘I was beaten!’”

Not much has changed since. All settlements were approved, most of the time in advance. As for the “illegal outposts” issue, they also enjoy full state services. I have seen it with my own eyes. Colonization is an official Israeli policy for decades.


I opened by saying that Prof. Phillips doesn’t follow through with his own logic. And this is the important point I’d like to make.

Let us say, for the sake of the debate, that we accept his reasoning, and that Israel didn’t move the settlers into the West bank, and that even if it did, as long as it didn’t force them there, it’s OK. Let’s also accept the idea that the West bank and Gaza were “unallocated territory” which Israel can view as its own.

What’s left unexplained by Prof Phillips is how Israel could apply two legal systems to the same unallocated territory: keep the Palestinians under military control and subject to the Jordanian law, and have the settlers enjoy the Israeli law.

If the settlers weren’t violating international law by moving to the West Bank, and then they sort of “dragged” the Israeli legal system with them there, how can this system not apply to the Palestinians? How does a settler get to go to an Israeli civil court, and a Palestinian living right next to him, to a military one? How does one person have voting rights, political representation, freedom of speech, and his neighbor doesn’t?

But wait, it gets even better: there is the fascinating case of East Jerusalem (and the villages and neighborhoods surrounding it) – officially annexed by Israel after 1967, but only half-annexed when it comes to the Palestinians living there. They got to be Israeli citizens on municipal level, but not full state citizens. In fact, Israel has invented a new legal category for them: “residents”. They vote for the municipality of Jerusalem, but they can’t vote in the general elections. So, did Israel “stepped into a void” by annexing East Jerusalem and then moving a Quarter of a Million people there, and if so, where in this “new order” is the place of the Palestinians?

And how come – and this is where the whole thing really collapses – Israel annexed the Golan and there it did offer full rights to the few thousands of Arabs living there?

Can you annex a land without the people? Can you give partial rights to some and full rights to others ? What sort of legal rationality will create two or three legal systems for two populations on the same land?

Prof. Phillips ends his article by stating that questioning the legality of the settlements lead to questioning the legality of the whole state of Israel. He presents no proof to this claim. The legal statue of the state of Israel is not questioned by those criticizing the legality of the settlements. It is based on UN resolution 181 – which didn’t include the West bank and Gaza in the Jewish state. It is also the legal base for the Palestinian claim to these areas (Prof. Phillips simply avoids the issue of resolution 181). Israel did not “step into a void”, though many here wish it did.

Most importantly, If Israel has a legal claim to the West bank, as Prof. Phillips believes, and if it manifested this claim by settling this land, than we must also ask ourselves what kind of legal system Israel introduced to replace the “void” there. If Prof. Phillips is to follow his own logic, his answer should be this: Israel presents between two and three separate legal systems, based on the ethnic and sometimes geographic division of the population.

Or as some call it, Apartheid.

9 Comments on “Prof. David Phillips tries to prove settlements are legal, but ultimately leads to the question of Apartheid”

  1. 1 Scott McConnell said at 6:00 pm on December 7th, 2009:

    Write a letter to the editor to Commentary. They will feel obliged to try to answer.

  2. 2 Jeff said at 3:01 pm on December 8th, 2009:

    “Could the settlers have colonized the West Bank only on locations authorized by the state to begin with, and at the same time, act against its policy?”

    No one said that the settlers settled only on locations authorized by the state. The article says that some settlements were pre-authorized and some were not, and in the latter case, the government relented after a time. So… am sorry, this part of your analysis lost me.

    Also, isn’t the purpose of the “population transfer” stipulations of the 4th Geneva Convention to prevent a conqueror from forcibly removing unwanted persons from conquered territory? The ethnic cleansing that you seek would be the forcible removing of Jews from the areas that are historically theirs, and to which they migrated voluntarily. The smiles of government officials do not take away the smiles–and heroism–of the settlers. This part of your analysis seems to deny the intent of the conventions.

    Like you, I was confused by the original article’s reference to the Golan. It is hard to believe that Israel will give up every inch there. Must they, Noam? Will they be safer if they return to the ’67 lines, under the benevolent gaze of the “international community”?

    It may be that some aspects of the Israeli future are tied to events in Europe. The recent Swiss decision suggests a hardening of European attitudes, including by leftists or, at least, feminists.

    Matt Eckel and I had a limited conversation about this, and about an aspect of life that you and he deny is central to a conversation about Israel or Europe: the nature of Islam.

    Perhaps he never answered because he was busy or because he thought my notes were beneath him. Or perhaps he’s re-considering; and maybe you’ll do the same:

  3. 3 noam said at 3:57 pm on December 8th, 2009:

    Jeff –

    A. The “unauthorized” settlements were built on land that the government cleared for settling in advanced (it is very telling that there are almost no settlements on “unauthorized” land); than the government provided the settlements with services such water, electricity and protection – not just by the IDF, since the settlers in charge of security in the settlements are also being paid by the government – so I don’t subscribe to the notion that this is something that was done against the will of Israel. Just now, with his insistence not to “freeze” the settlement, Netanyahu reveled again that Israel’s policy is to settle the WB with Jews. It’s not even a secret anymore.

    B. Unlike Prof. Phillips, I don’t know what the initial “purpose” of article 49 was. I know it forbids the occupying force to transfer its own population into the occupied land – because it specifically says so. And on face level at least, this is exactly what Israel has been doing.

    C. Regarding the Golan, we weren’t talking national security here, but legal claim. I think we can agree that Prof. Phillips is simply wrong in stating Israel has, in any way, respected the Syrian claim to the land.

    D. I wrote here about the Swiss decision a week ago. Regardless of my opinion on the decision itself, I don’t think it presents a valid example for the Israeli case. The main problem with the occupation – and you don’t have to be a legal expert to get that – is that the Palestinians have no citizenship, or any rights for that matter. This is the issue that needs to be addressed (unless, of course, you thing Muslims deserves no rights).

  4. 4 Jeff said at 4:17 pm on December 8th, 2009:

    Yes, I realized what you meant in regard to “A”; your original comment about being “confused” was confusing — there was no illogic in the original article on this point. Even if what you say is exactly so, your detail doesn’t change the possibility that voluntarily populating an area was never meant to be an issue in the Fourth Geneva Convention. As you know, the enemies of Israel would have no compunction in misstating the historical facts. I’ve long believed that the clause in question was in response to forced population transfers by the Nazis.

    I don’t know how to square the circle composed of the Jewish right to live in the ancestral home and the Arab right to a responsive polity; but your answer seems to be that the Jews have no such right.

    I have heard that older Arabs living in the West Bank came to look with nostalgia at the early years of Israeli rule.

    I doubt the issue will be solved without a great deal of bloodshed. I’d prefer any bloodshed to be of those of the enemy, they whose tradition makes the Jewish presence an intractable problem rather than a creative and workable situation.

    Am happy to note that the oceans will evaporate in 2 billion years.

  5. 5 Cynthia said at 4:45 pm on December 8th, 2009:


    While I too was confused by Noam’s discussion about “authorised” and “unauthorised” settlements, I believe that Article 49 of the 4th Geneva Convention is far more likely to mean what it appears to mean – a prohibition against moving a population INTO occupied territory, than something quite different – ie a measure to prevent populations being forced OUT of an area (even if the latter goal is one of its wellsprings).

    I wonder if Cyprus offers further insights about this? From 1974 Cyprus has been divided into 2 political entities – the southern “Republic of Turkey” , recognised by all the world, and the “Turkish Republic of Northern Cyprus” – recognised only by Turkey. This “TRNC” is effectively under Turkish occupation. It is my understanding that from 1974 on, and particularly during the campaign in Turkey’s west to destroy the PKK and/or Kurdish nationalism generally, and which resulted in mass homelessness, that Kurds especially were encouraged to move into the “TRNC” – in the hope of alleviating 2 of Turkey’s problems at once.

    BUT in recent years Turkey has been keen to join the EU, but I believe that one of the stumbling blocks to this happening has been the breach of Article 49 entailed by the movement of Turks (be they Kurds or not) into the TRNC – to the extent that in 2006 laws were passed by the TRNC to impede this influx.

    If so, this is an example which supports Noam’s interpretation.

  6. 6 Jeff said at 7:17 pm on December 8th, 2009:

    Maybe Noam will write to Commentary, as Scott McConnell suggested.

  7. 7 noam said at 5:13 am on December 9th, 2009:

    Jeff – If Jews have the right to settle the West bank – maybe even based on the legal rational Prof. Phillips suggested – than they should annex the land and hand the Palestinians their civil rights. If they don’t want to give the Palestinians their rights, they should leave the land.

    The world – or I for that matter – didn’t question the abstract Jewish “right” to live in Hebron or East Jerusalem, just the fact that while doing so, we want to keep the P under occupation and with no rights. So the “square” exists only in the Israeli eyes.

    Again, the Israeli wish to keep the land and not the people – so they wouldn’t hurt the Jewish super-majority in the state – has nothing to do with the nature of Islam. Even if it were North-America style Zionist-Evangelistic Christians we wouldn’t give them full rights, for the same reason.

    (I say “abstract” right to live in Hebron, because there is a difference between the idea and the practical implementation of this right, just as nobody would argue Jews don’t have the right to live in NY, yet if I try to use this right, I will probably get deported).

    Cynthia – I don’t know the Turkish case that well, but the way you presented it, it does imply towards the “traditional” interpretation of article 49 – which goes to further prove that Israel is wrong in thinking that this interpretation is used only when it comes to us.

    But there is one important thing to consider, which has to do with my answer to Jeff. In Turkey, as in China and Tibet, Kosovo, and in fact all other cases the could be mentioned here, the occupying force gave the occupied population full citizen statues, equal to its own population. the basic problem which make the Israeli occupation unique, is that Israelis are not ready to give the Palestinians any rights. Not within Israel, and not on their own independent state.

  8. 8 Noam W said at 10:31 am on December 9th, 2009:

    You know, I sometimes just don’t get it. I would never presume to publish an article on corporate law, I don’t understand why corporate scholars (and that is what Phillips is) think they can just whip out an article on international humanitarian law without being truly acquainted with the discipline.

    Geneva Convention IV was written in the aftermath of WWII, and article 49 aims at exactly what is happening in the occupied territories – the inherent injustice that stems from having two populations (be it Israeli and Palestinian, Japanese and Chinese or, heaven forbid we make the comparison, German and Polish) that are subject to two different sets of laws.

    One other thing before we “kill all the lawyers”, it would be prudent to remember that law, especially international law, is a legitimizing tool used to back up propositions. It should not trump logic, or morality or any other justification for making an argument (as long as we are not in court), and there is no need throw out the entire discipline when it is used to make bad arguments. After all, we are not all sophists…

  9. 9 noam said at 11:27 am on December 9th, 2009:

    Point taken Noam, though I still think that international law, more often the not, serves as just another tool in the arsenal of the stronger party. You might argue that this is the case in all legal matters, but there is something about the lack of central and commonly accepted authority in international relations the makes a difference. But I guess you are familiar with this debate more than I am.