US Secretary of State Mike Pompeo cannot rewrite international law.
By John McHugo , Balfour Project Trustee and International Lawyer
Following the comments by the US Secretary of State on Monday, we have felt it necessary to clarify the legal status of the Israeli civilian settlements in the Occupied Palestinian Territory.
Existing British government policy is that Britain should recognise Palestine as a sovereign state “when it best serves the interests of peace”. Mike Pompeo’s comments make it quite clear that the time is now right for British recognition, and that this is urgent if there is to be any chance of a future peace.
The Balfour Project notes with extreme regret and disappointment that the US Secretary of State, Mr Mike Pompeo, stated yesterday that “the establishment of Israeli civilian settlements [in the Occupied Palestinian Territory] is not, per se, inconsistent with international law”. He also asserted that the Trump Administration believes “that what we’ve done today has recognised the reality on the ground”.
Article 49(6) of the Fourth Geneva Convention of 1949 provides that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Article 49(6) was considered by the International Court of Justice in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004. It stated, at para. 120 of the Advisory Opinion, that Article 49(6) “prohibits not only deportations or forced transfers of population…but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.”
All judges of the court subscribed to this with the sole exception of Judge Buergenthal, the American judge, who is a Holocaust survivor and who lost toes to frostbite as a child in Auschwitz and Sachsenhausen concentration camps. He took the view that the Court should have declined to exercise its jurisdiction. Yet he issued his own Separate Declaration to the Advisory Opinion in which he expressly stated at Para. 9: “I agree that [Article 49(6)] applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6”. The view that Israeli civilian settlements violated Article 49(6) was thus the unanimous view of the judges.
More recently, the fact that this is the law was reiterated by the UN Security Council in Resolution 2334 of 23 December 2016 at operative paragraph 1:
“The Security Council Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied in 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.”
It is not for any State, however mighty and powerful, to rewrite the rules of international law. Realities on the ground are subject to the rule of law, just as all other realities are. When the USSR unilaterally incorporated the sovereign States of Lithuania, Latvia and Estonia into itself following the illegal Molotov-Ribbentrop Pact of 1939, that action was null and void and of no legal effect. It was as though the incorporation of the three States into the USSR had never happened. It may have been a reality on the ground for a number of decades, but that reality always remained subject to the overriding realities of the rule of international law. In due course, following the collapse of the USSR, these sovereign States resumed their independence, and became, once again, the reality on the ground as well as the reality in law. A unilateral declaration made at a high level of the US administration cannot change the realities of international law.
John McHugo is a trustee of the Balfour Project and international lawyer. His own assessment of the Balfour Declaration and the Arab-Israeli dispute can be found in his book A Concise History of the Arabs. He is also the author of Syria: A Recent History and A Concise History of Sunnis and Shi’is. johnmchugo.com