By Bola A. Akinterinwa
There is law and international law of politics and there is also politics and international politics of law. While law, be it municipal or international, is about legality and illegality of actions and human, institutional and state attitudinal behaviours, and particularly in terms of jurisprudence and codification processes, politics is essentially about the protection of certain interests during the codification and implementation of law. It is as a result of politicisation of law that Russia and other Eastern European countries often talk about international law according to the Western school of thought, as distinct from the Eastern European conception of it.
True enough,, Western influence in the making of international law is immense. However, in spite of the differences in perspective, there is no disputing the fact that law is law when signatories to an accord, regardless of its type, voluntarily sign, ratify or accede to such an agreement. In other words, for as long as such an agreement has entered into force, duties and obligations are created for signatories and are, therefore, compelled to execute their obligations in the spirit of pacta sunt servanda, that is, sanctity of agreements.
The critical problem as at today is that, what is increasingly becoming the hallmark of the emerging New World Order is the deepening politicisation of international law to the detriment of law of international politics and law of nations, which is meant to ensure orderly behaviour, peaceful coexistence, non-recourse to use of force in conflict resolution, and promotion of multilateral cooperation in international relations. If the official attitudinal behaviour of States is not regulated, there cannot but be chaos in the conduct and management of international Affairs.
More important, it is useful to note that international law is superior to municipal law, regardless of the pretensions of the Dualist School. The Monist School of thought readily accepts the supranational status of international law by quickly accepting to implement the obligations created by international agreements to which the signatories have voluntarily consented. The Dualist School does not accept automatically the immediate or direct implementation of any obligation created internationally. Nigeria belongs to this School. This is why Nigeria’s Constitution provides for initial domestication before any enforcement of an international obligation. But, even at that, the mere fact that Nigeria and other Dualist States have to take necessary measures to facilitate the implementation of international obligations also necessarily admits of the superiority of international law, otherwise referred to as Law of Nations.
The problem as at today is that the United States, under President Donald Trump, is consciously misinterpreting and misrepresenting international law as applied to the territories occupied by Israel, following the 1967 Six-day War and the 1973 Yom Kippour War. The obvious rationale for doing so is political and selfish interests aimed at re-election. The foreseeable implications cannot be the bastardisation of international law to allow for destruction of multilateralism, pave way for unilateralism and a New World Order redefined by the United States. In this regard, the re-election of Donald Trump constitutes a potential danger to the maintenance of global peace and security. In further explicating this point, an overview of the Israelo-Arab dispute and the Palestinian Question, as well as US foreign policy on it, is necessary at this juncture.
Israeli Settlements and Background
Israeli settlements in the West Bank should be understood in the context of the 1917 William Balfour Declaration, which provided for a homeland for both the Palestinians and the Israelis. At the end of World War II, the promise was fulfilled at the level of the Jews, who quickly established the State of Israel and which was immediately recognised by the United States. The Palestinians who were against the partitioning of Palestine to accommodate a place for the Israelis, and who also pledged to push the Israelis to the sea, rather than accept the creation of an Israeli State on their land, went into war with Israeli, which they could not win. The war was not simply a war on Israel, but particularly on the United States, a pillar of support for the Jewish state.
Again, a second war, generally referred to as the Six-day War, took place in 1967 and the Arabs were beautifully defeated. And perhaps more interestingly, the 1973 Yom Kippour War took place and the Arabs, for the third time, lost the battle and the war in regret. The implication of the losses is clear: war dividends. Israel embarked of effective occupation of the land areas it conquered. This was the genesis of the occupation of West Bank and the international controversies surrounding it. It is also the rationale for Israeli occupation of Jerusalem which was internationally divided in 1948 into West and East to pave way for a possible capital for a would-be Palestinian State.
Since the Israelis were victorious in the three wars launched against them, they took advantage of their victory by not only attaching the territories conquered, but also populating them with the people of Israel, contrary to international law. In the period from 1999 to 2017, total Jewish settlements in the West Bank, increased gradually: 177,411 in 1999; 192,976 the following year; 226,852 in 2003, excluding East Jerusalem and 362,945 with that of East Jerusalem; 401,820 in 2004, including East Jerusalem; 249,901 in the year 2005; 313,928 in 2010; 388,285 in 2015; 401,556 in 2016; and 416,693 in 2017.
Of the 136 Jewish settlements in the West Bank, four of them are notable, because of their city status: Modi’in Illit with a Jewish population of 70,081 in 2017; Beitar Illit with 54,557 Jews; Ma’ale Adumin with 37,817 Jews; and Ariel with 19,626. All these figures should be taken as indicative as the Government of Israel tries as much as possible to be secretive about the exact number of Israelis in the settlement areas. In 2000, for example, the Nahal settlements were not reported: the population of 753 people in Elisha and the 44 people in Gvaot, as well as those in unknown localities, were not recorded.
As we shall see hereafter, the West Bank was divided into three parts: A, B, and C by the Oslo Accords. In the mania of the Chimurenga Policy in Zimbabwe, which divided the whole farming land of Zimbabwe into five categories, in which the first three are the most fertile and reserved for the White Zimbabweans, and leaving the other two categories for the poor black Zimbabweans, a policy that President Robert Mugabe also had to fight tooth and nail when elected, the division of the West Bank into three areas is not different in design and objective.
Without doubt, Area C not only plays host to the Israeli military installations, but also contains most of the natural resources and open spaces in the West Bank. 99% of the area is not made accessible to the Palestinians. As explained by the World Bank, the non-access of the Palestinians to the area has prevented them from having the opportunity of halving their budget deficit, as well as expanding their economy by a third. In fact, Danny Rubinstein put the problem this way: ‘much land in Area C is undeveloped. Israel, however, does not permit Palestinian construction for residential, commercial or industrial purposes.’
As considered by the Oslo Accords, ‘Area C means areas of the West Bank outside Areas A and B, which, except for the issues that will be negotiated in the permanent status negotiations, will be gradually transferred to Palestinian jurisdiction in accordance with this agreement.’ The truth about this point is that, as at 1972, there were only 1,000 Israeli settlers in what is now regarded as Area C. However, the number increased to 110,000 in 1993, that is, in a period of two decades, there was an average increase of 5,238 settlers on a yearly basis. This simply means that Israel has little or no regard for whatever the Geneva Conventions might have to say, even if, as shown hereunder, they are considered as belonging to international customary law.
And perhaps most disturbingly, a 2013 European Union report had it that ‘Israeli policies have undermined the Palestinian presence in Area C with a deterioration in basic services, such as water supplies, education and shelter. Nearly 70% of the Palestinian villages are not connected to the water network that serves settlers. Palestinians cannot build in Area C without an Army permit. Building applications are expensive and have a 5% approval rate. As a result, most Palestinians who build there do so illegally.’ And true, ‘Israel demolishes about 200 buildings per year in Area C.’ Since the adoption of demolition orders on Palestinian-owned structures began in 1988, 14,000 demolition orders had been approved, but as of January 2015, only about 20% of them had been executed.
It is against this background that the position of international law should be reviewed and that the observation of the United Nations that Israeli settlers have been allocated about 790 square meters per capita, compared to the 60 square meters per capita allotted the Palestinians, should be understood.
International Law and Israeli Settlements
Israeli settlements do conflict with the four Geneva Conventions done in August 1949: the Convention on armed forces on land, armed forces on sea, prisoners of war, and civilians. Geneva Convention IV, under which Israeli settlements clearly fall, contains Rule 130 which prohibits ‘Transfer of Own Civilian Population into Occupied Territory.’ Specifically, Article 49, paragraph 6, says ‘the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’
More interestingly, Article 85(4)(a) of the Additional Protocol I, done in 1977, stipulates further that ‘the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies is a grave breach of the Protocol.’ Again, in the eyes of the 1998 Statute of the International Criminal Court (ICC), Israeli settlements in the West Bank are more than a ‘grave breach’ of the Protocol. The Statute provides in its Article 8(2)(b)(viii) that ‘the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies’ constitutes a ‘war crime’ in international armed conflicts. This is also the position of Article 22(2)(b) of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind, which views the establishment of settlers in an occupied territory as an ‘exceptionally serious war crime.’
Most importantly, there is also the Oslo II Accord aimed at securing the possibility of a self-governing Palestinian Government, but not an independent State of Palestine. In this regard, efforts at peace making and achieving this objective are first traceable to the Declaration of Principles on the Interim Self-Government Arrangement, signed on September 13, 1993 by the then Israeli Prime Minister, Yitzhak Rabin and the Palestine Liberation Organisation negotiator, Mahmoud Abbas, as agreed to in The White House. Additionally, it is traceable to the 28 September 1995 Taba Accords, also called the Oslo Accords, which were negotiated in the Taba Resort in Egypt and also signed in Washington DC. It is an interim agreement on the issue of the West Bank and the Gaza Strip settlements.
The Oslo accords partitioned the West Bank into three main areas: A, B, and C. In the specific context of security, Israel was required to redeploy from six cities in Area A to enable the Palestinians to have exclusive security control over the area. Area A covers about 18% of the land area of the West Bank and is placed under the exclusive competence of the Palestinians. It can be rightly argued in this case that Israel does not consider Area A as part of its own territorial. It is therefore a constitutive region of a would-be State of Palestine.
Area B, covering Palestinian towns and villages, accounts for about 22% of the West Bank. The Area plays host to about 2.8 million Palestinians. In terms of responsibilities, the Oslo accords provided for a joint administration, a sort of temporary condominium. In this regard, Israel was to be responsible for security of the Area, while the Palestinians were to have the responsibility for public order.
In Area C, in which the Israeli settlements are mainly located, and which also has a Palestinian population of 150,000, in 532 residential areas, and 389,250 Israelis in 135 settlements and 100 outposts, Israel has the full responsibility for this Area C, but this has particularly been generating controversy. In fact, the permanent status of the various areas was to be negotiated. And true enough, negotiations actually began in May 1996. The election of Ehud Barak as Prime Minister of Israel in 1999 renewed the efforts. He wanted a negotiated settlement and, therefore, sought a summit with the PLO Chairman, Yasser Arafat in the summer of 2000. The summit took place in Camp David and lasted for thirteen days, from July 13 to July 26, but all to no avail. No agreement could be reached. In fact, more than 50 subsequent negotiating sessions also amounted to nought.
And without any shadow of doubt, most countries of the world want a peaceful solution to the recidivist Israelo-Arab conflict. They subscribe to the obligations created under the Geneva Conventions and to the principles enunciated by the Oslo accords by translating the obligations into their municipal law: Argentina, under its Law of War Manual, in 1969 and 1989; Australia’s 1994 Defence Force Manual; Burundi’s Regulations on international humanitarian law in 2007; Cameroon’s 2006 Instructor’s Manual; Netherland’s 1993 Military Manual; South Africa’s Law of Armed Conflict (LOAC) Teaching Manual (2008) and the South African 2002 ICC Act; Niger Republic’s Penal Code of 1961 and 2003; Senegal’s Penal Code of 1965 and 2007; France’s Penal Code of 1992; etc.
US Misinterpreting International Law
In the specific case of the United States, it signed all the four Geneva Conventions in 1955 and also signed the three Geneva Additional Protocols to the Geneva Conventions. However, the United States is not on record to have ratified the protocols. Nigeria, for instance, ratified the four Geneva Conventions in 1961 and the first two additional protocols but never took any action on Protocol III. This is not the case with the United States. However, regardless of this situation, what is the general position of international law? How do we explain the US misconception of international law?
The position of international law is that the US is pretty bound by the Geneva Conventions. In other words, apart from the fact that many countries have signed or acceded to the Four Geneva Conventions, 196 signatories so far, the truth again is that, on the basis of a report by the UN Secretary General and that of a body of experts, the United Nations Security Council accepted in 1993 that the Four Geneva Conventions had passed into the body of Customary International Law, the implication of which is that the obligations created by the four Geneva Conventions are binding on both the signatories and non-signatories to the Conventions.
Put differently, whether or not the United States has signed or has not signed the Geneva Conventions, they still and necessarily create obligations for all the Member States of the international community, including the United States. Perhaps the interesting point to note about the position of the United States, is that the country has a policy of recognition of the obligations of Geneva Convention IV until the change of policy attitude on Monday, 18th November, 2019. The United States is on record to have been condemning the Government of Israel for the illegal settlements of its people in the West Bank, before then. In fact, contrary to the consideration of the International Court of Justice in 2014 that all Israeli settlements in the West Bank were unlawful, the Israeli authorities still constructed the West Bank Barrier behind which new settlements were established, and the United States is on record to have been condemning such illegalities.
Now, the US foreign policy on the West Bank has changed. According to the US Secretary of State, Mike Pompeo, ‘after carefully studying all sides of the legal debate, the United States has concluded that “the establishment of Israeli civilian settlements in the West Bank is not, per se, inconsistent with international law.” Calling the establishment of civilian settlements inconsistent with international law hasn’t worked. It hasn’t advanced the cause of peace.’
There are three possible ways of understanding the conscious misrepresentation of international law by the Donald Trump administration. First, US foreign policy on the matter has been, at best, ambiguous: in 1978 President Jimmy Carter maintained that the Israeli settlements were inconsistent with international law. In 1981, President Ronald Reagan argued to the contrary, a situation that prompted the use of ‘illegitimacy’ rather than ‘illegality’ in US foreign policy lexicon since then, and one major reason for protecting Israel against international sanctions. Second, The US knows the truth about the illegality of the settlements but wants to give more room for more settlements, in such a way that when Palestinians take over the West Bank, the Israeli settlers will still have roofs over their heads there. The situational reality of the time will be managed. Third, Donald Trump desperately wants re-election by hook or by crook, by seeking to appeal to the conscience of the American Jews for votes, especially that he is now suffering from the Ukrainian president’s virus.
The import of the review of US policy stand on Israeli settlements is politics. The policy simply reflects the ambiguity of the US seeking to mediate the peace process while having partisan interests. International law does not allow for that. A mediator must come with clean hands in any mediation process.