[Eugene Kontorovich] New research paper: ‘Unsettled: A Global Study of Settlements in Occupied Territories’

My new working paper, “Unsettled: A Global Study of Settlements in Occupied Territories,” is now available on SSRN.

Imagine that someone (a scholar or a diplomat) wanted to understand how the general prohibition on aggression in the U.N. Charter was interpreted in international law. What do the general words of Art. 2(4) mean in practice? To figure out what Art. 2(4) means, he studies the Indian invasion and annexation of Portuguese territories in 1961. Examining this one case and the international reaction to it, he would conclude that the use of force and annexation of territory are permissible in international law.

Of course, this understanding would be deeply mistaken, because the Goa incident itself was highly anomalous. Without looking at other cases, from the Iraqi invasion of Kuwait to the Russian takeover of Crimea, one would misunderstand how states really interpret the provision. And that is why international law scholars, like lawyers generally, do not try to tease legal rules out of one particular case, but try to discern the pattern in the entire set of cases. Making law from one case risks serious error.

Yet that is exactly what happens with Art. 49(6) of the Fourth Geneva Convention, the provision that, loosely speaking, restricts settlements in occupied territory. The provision itself is quite obscure and has never been applied in any war crimes case. Thus, looking at state practice would be particularly useful to understand the scope of its meaning.

Yet scholars and humanitarian groups have only sought to understand its meaning through the lens of one case, that of Israel. If there were no other situations to look at, this would be understandable. But, as I show in my new research paper, settlement activity is fairly ubiquitous in occupations of contiguous territory. Yet state practice in these other situations has not been used to inform an understanding of the meaning of Art. 49(6).

My article, to stay with the analogy, goes past Goa, and looks at all the relevant situations. One basic conclusion is that the Israeli settlement situation is to Geneva Convention IV Art. 49(6) what India’s takeover of Goa is to Art. 2(4) of the U.N. Charter — an outlier that does not capture the broad run of state practice and thus misrepresents the actual rules of international law.

It is long (67 pages), so here is the abstract:

This Article provides the first comprehensive, global examination of state and international practice bearing on Article 49(6) of the Fourth Geneva Convention, which provides that an “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” This provision is a staple of legal and diplomatic international discussions of the Arab-Israeli conflict, and serves as the basis for criticism of Israeli settlement policy.

Despite its frequent invocation in the Israeli context, scholars have never examined – or even considered – how the norm has been interpreted and applied in any other occupation context in the post-WWII era. For example, the International Committee of the Red Cross’s (ICRC) influential Study on Customary International Humanitarian Law lists 107 instances of national practice and UN practice applying or interpreting the prohibition, and all but two relate to Israel. Many questions exist about the scope and application of Art. 49(6)’s prohibition on “transfer,” but they have generally been answered on purely theoretically.

To better understand what Art. 49(6) does in fact demand, this Article closely examines its application in all other cases in which it could apply. Many of the settlement enterprises studied in this Article have never been discussed or documented. All of these situations involved the movement of settlers into the occupied territory, in numbers ranging from thousands to hundreds of thousands. Indeed, perhaps every prolonged occupation of contiguous habitable territory has resulted in significant settlement activity.

Clear patterns emerge from this systematic study of state practice. Strikingly, the state practice paints a picture that is significantly inconsistent with the prior conventional wisdom concerning Art. 49(6). First, the migration of people into occupied territory is a near-ubiquitous feature of extended belligerent occupations. Second, no occupying power has ever taken any measures to discourage or prevent such settlement activity, nor has any occupying power ever expressed opinio juris suggesting that it is bound to do so. Third, and perhaps most strikingly, in none of these situations have the i