In Honor of Yoram Dinstein – (Not) The Day After in Gaza

Editors’ note: This post is part of a series to honor Professor Yoram Dinstein, who passed away on Saturday February 10, 2024. These posts recognize Professor Dinstein’s work and the significant contribution his scholarship has made to our understanding of international law.

With the intensity of the conflict between Israel and Hamas (and other organized armed groups like Islamic Jihad) declining, attention is turning to “the day after” in Gaza. Given the level of destruction and the enmity between the parties, attaining stability is going to be challenging; achieving normalcy for Gaza’s Palestinian population and security for Israel likely will take years.

Unfortunately, extremist pundits and politicians in Israel and beyond are complicating matters by proposing measures that would constitute almost impenetrable obstacles to achieving a reasonable degree of stability in Gaza. Three stand out: displacement of the population out of Gaza; the building of settlements there; and complete or partial annexation.

Because I knew him well, I am sure that Professor Yoram Dinstein, the great Israeli scholar in whose honor this Articles of War Forum is offered, would object vociferously to all three. For my part, I believe such measures would not only prove unworkable but also be highly inflammatory in an already volatile environment. Whatever the non-legal arguments for and against them, my legal analysis, the subject of this post, is straightforward. All three measures are unlawful.

Before beginning, three points merit mention. First, I will treat the 1949 Geneva Convention (IV) on Civilians, to which Israel is party, as applicable. I am aware that the Convention’s rules and their customary law counterparts are generally limited to situations of international armed conflict, and in my estimation, the ongoing conflict is non-international (although reasonable minds differ). Nevertheless, until unilateral withdrawal in 2005, Israel treated the customary law of belligerent occupation as applicable to Gaza (see, e.g., Gaza Coast Local Council, reprinted in 37 Israel Yearbook of Human Rights). Further, despite some disagreement over the technical applicability of Geneva Convention IV, the government has agreed to apply its rules de facto to Palestinian territory over which it exercises control. For Professor Dinstein, the law of belligerent occupation certainly applied in Gaza (see Dinstein, Belligerent Occupation, paras. 67-78).

Second, many of the relevant rules apply primarily in situations of occupation. I am of the view that Israel was not in occupation of Gaza in October 2023 when Hamas attacked. Again, reasonable views differ. However, it would seem self-evident that to have the capacity to displace the population, establish settlements, or annex territory, Israel would have to exercise authority over the affected territory, a degree of control triggering the occupation obligations discussed below.

Third, it must be emphasized that the mere fact of occupation does not mean the Occupying Power has acted unlawfully; it is merely the threshold for the activation of certain rights and obligations. Instead, the legality of using force to occupy territory is assessed against the jus ad bellum. In my opinion, Israel had a right to use force in self-defense against Hamas and other armed groups at the time it initiated its response and continues to enjoy that right. But in doing so, it must comply with the dictates of international humanitarian law, including the law of belligerent occupation.

Displacement from Occupied Territory

Many Palestinians fear that IDF operations into Rafah will force them into Egypt, and then Israel will block their return. For them, this would echo what they label the “Nakba” (catastrophe), which refers to their displacement following Israel’s War of Independence in 1948. However, numerous Israeli officials, such as Foreign Minister Israel Katz, have emphasized repeatedly that Israel has no plans to deport Palestinians from Gaza.

Until recently, proposals for population transfer were mostly limited to the ultranationalist Kahane movement. Yet some senior Israeli officials are now raising the prospect of a reduction in Gaza’s Palestinian population, although none has argued it should be done forcibly. For instance, Finance Minister Bezalel Smotrich has suggested, “What needs to be done in the Gaza Strip is to encourage emigration. . . . If there are 100,000 or 200,000 Arabs in Gaza and not 2 million Arabs, the entire discussion on the day after will be totally different.” Along the same lines, National Security Minister Itamar Ben Gvir has claimed that the conflict presents an “opportunity to concentrate on encouraging the migration of the residents of Gaza.” And Intelligence Minister Gila Gamliel has speculated on the benefits of “the voluntary resettlement of Palestinians in Gaza, for humanitarian reasons, outside of the Strip.”

Under international humanitarian law, “deportation” has long been prohibited (see, e.g., 1863 Lieber Code, art. 23; 1919 Report of the Commission on Responsibility of the Authors of the War). The contemporary prohibition resides in paragraph 1 of Geneva Convention IV’s Article 49. It provides that “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” Transfer refers to the involuntary movement of individuals from occupied territory into another area in the same country. Deportation denotes the forcible movement of individuals in occupied territory into other countries.

The International Court of Justice (ICJ) has characterized the 1949 Geneva Conventions as reflecting customary international law (Nuclear Weapons, para. 79). Similarly, the International Committee of the Red Cross (ICRC) concluded in Rule 129 of its 2005 Customary International Humanitarian Law Study that “Parties to an international armed conflict may not deport or forcibly transfer the civilian population of an occupied territory, in whole or in part, unless the security of the civilians involved or imperative military reasons so demand” (the latter situations are better described as “evacuations,” and are subject to strict limitations; Dinstein, Belligerent Occupation, paras. 512 – 518). In my view, the customary character of the deportation prohibition is indisputable.

There are two key conditions precedent to its application: qualification of those moved as “protected persons;” and the existence of a state of “occupation.” As to the first, there is no question that residents of Gaza, except those few who may have Israeli citizenship, are protected persons for the purposes of Article 49. This is clear from Article 4 of Geneva Convention IV, which defines protected persons as “those who at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”

Regarding the second condition, Article 42 of the 1907 Hague Regulations, usually cited as the authoritative definition of occupation, states that “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

To have the ability to deport (as distinct from evacuate) Palestinians from Gaza, Israel would need to exercise a degree of authority over the area that would qualify the situation as one of occupation. Moreover, it has been argued that in situations short of occupation, certain occupation rules nevertheless apply (see ICRC, Occupation Expert Report, p. 24-26). Although not universally accepted in principle, this so-called “Pictet theory” makes some sense vis-à-vis the prohibitions on deportation and transfer.

I would note that there is no general “security exception” to the ban on deportation, as indicated by the words “regardless of their motives” in Article 49. Thus, Professor Dinstein emphasizes that “[e]ven the most compelling security considerations cannot vindicate the deportation of a protected person from an occupied territory (although such considerations may justify some other rigorous measures, e.g., internment)” (Belligerent Occupation, para. 487). This point is without prejudice to evacuations under Article 49 that are conducted for the safety of the population or due to “imperative” operational reasons. Furthermore, although Article 5 of Geneva Convention IV permits derogations of obligations owed with respect to protected persons “under definite suspicion of activity hostile to the security of the State,” only “rights of communication” may be derogated in the occupation context when “absolute military security so requires.”

The fulcrum on which the legality of any effort to move residents out of occupied territory rests is voluntariness, a point highlighted by the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber in its Stakić judgment. It observed that deportation must be coercive (para. 279), explaining that coercion “is not to be limited to physical force but includes the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment” (para. 281). Of course, as Professor Dinstein has noted, “If a person present in an occupied territory wishes to leave the area voluntarily, and the Occupying Power is prepared to let [an individual] go, there is obviously nothing to preclude such a move” (Belligerent Occupation, para. 486). But the decision to leave must be entirely voluntary. This would be the legal issue regarding the proposed “emigration” from Gaza, especially whether there was a “coercive environment” there that led to residents to leave.

Finally, the reference to the ICTY’s jurisprudence highlights the important point that in addition to violating international humanitarian law (IHL) and thus constituting an “internationally wrongful act” on the part of the State concerned (Articles on State Responsibility, art. 2), deportation is a war crime by the individuals involved. Indeed, Article 147 of Geneva Convention IV characterizes deportation as a grave breach of the Convention, requiring repression by its parties and confirming that the offense is subject to universal jurisdiction. Although Israel is not a party to the instrument, Article 85(4)(a) of the 1977 Additional Protocol I to the Geneva Conventions does the same.

Status as a war crime under customary international law is also evident in multiple international criminal law instruments. For instance, the 1945 International Military Tribunal (Nuremberg) Charter specifically cited “deportation to slave labour or for any other purpose of civilian population of or in occupied territory” as a war crime (art. 6(b)). More recently, the International Criminal Court (ICC) Statute criminalizes deportation or transfer in the context of both crimes against humanity and war crimes (arts. 7(1)(d); 8(2)(a)(vii); 8(2)(b)(viii)).

Settlements in Occupied Territory

The second measure being advocated by some Israelis, including certain members of the government, is the establishment of settlements in Gaza. Recall that Israel evicted settlers from 21 settlements there in 2005 as part of its unilateral disengagement from Gaza.

There are plans to build over 3,000 new settlement homes in the West Bank, but none are planned for Gaza. On the contrary, Prime Minister Netanyahu has stated that Jewish settlements in Gaza are “not a realistic goal.” Nevertheless, there are demands for just that. For instance, National Security Minister Ben Gvir has asserted, “We cannot withdraw from any territory we are in in the Gaza Strip. Not only do I not rule out Jewish settlement there, I believe it is also an important thing.” Similar calls to rebuild settlements in Gaza were heard at the January “Settlements Bring Security” Conference, organized by the right-wing Nahala organization. Ministers Ben Gvir and Smotrich attended, as did twelve ministers from Prime Minister Netanyahu’s Likud Party. And in a poll conducted in April by the Israel Democracy Institute, 18.8 per cent of the respondents in the “general public” category supported the establishment of Gaza settlements.

The relevant law is found in paragraph 6 of Article 49, which states, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Like the prohibition on deportation, the movement of one’s nationals into occupied territory is well-recognized as reflecting customary international law. Indeed, Rule 130 of the ICRC’s Customary IHL study echoes the Article 49 prohibition almost verbatim.

The ICJ addressed Article 49 in its Wall Advisory Opinion.

That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, 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.

In this respect, the information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of Settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6 . . . (para. 120).

Similarly, the UN Security Council has long held that Israeli settlements violate Geneva Convention IV (see, e.g., UNSCR 465 (1980); UNSCR 446 (1979)). In 2016, for instance, in a 14-0 vote (the United States abstaining), it condemned,

all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions (UNSCR 2334 (2016)).

The Council “reaffirmed” that the establishment of such settlements “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.”

Along precisely the same lines, States have widely criticized the Israeli settlements as in violation of Article 49. For instance, during the Carter administration, the United States took this position in a 1978 legal memorandum for Congress by Herbert Hansell, the Legal Adviser of the Department of State.

Paragraph 6 [of Article 49] appears to apply by its terms to any transfer by an occupying power of parts of its civilian population, whatever the objective and whether involuntary or voluntary. It seems clearly to reach such involvements of the occupying power as determining the location of the settlements, making land available and financing of settlements, as well as other kinds of assistance and participation in their creation. And the paragraph appears applicable whether or not harm is done by a particular transfer. The language and history of the provision lead to the conclusion that transfers of a belligerent occupant’s civilian population into occupied territory are broadly proscribed as beyond the scope of interim military administration.

The view has been advanced that a transfer is prohibited under paragraph 6 only to the extent that it involves the displacement of the local population. Although one respected authority, Lauterpacht, evidently took this view, it is otherwise unsupported in the literature, in the rules of international law or in the language and negotiating history of the Convention, and it seems clearly not correct.

The ardor with which the United States articulates this position varies from administration to administration. Still, apart from the Trump years, it generally has been the legal view of the United States. The Biden Administration confirmed its adherence to the position in early 2024.

Although Israel is not party to the instrument, it deserves mention that Additional Protocol I, Article 85(4)(a), unlike Geneva Convention IV, includes the transfer of a population into occupied territory as a “grave breach.” Moreover, such acts are also war crimes (see, e.g., ICC Statute, art. 8(2)(b)(viii); IMT Nuremberg, Case of the Major War Criminals, Judgment; International Law Commission (ILC), 1996 Draft Code of Crimes, art. 20(c)(i)).

Professor Dinstein agreed that government settlement policies are unlawful but added a caveat. Addressing UN Security Council resolutions and the ICJ’s Wall Advisory Opinion, he noted, “Their weak spot is treating the Israeli settlements in the West Bank in monochromatic terms, without any attempt to assay whether the Occupying Power is poised behind them (organizing or encouraging the transfer in the words of the Court) or whether they constitute purely private enterprises” (Belligerent Occupation, para. 743). He explained that “[i]t is easy to understand the condemnation of settlers who come to live in an occupied territory under the cloak of a Government-coordinated (and subsidized) scheme, by dint of official organization or institutional inducement (the paramount manifestation of which is the offer of public land by the military government for the purposes of the settlement and the building of supportive infrastructure)” (para. 744).

But two situations did not, for him, violate the law of belligerent occupation.

(a) So-called ‘outposts’, set up by private Israeli individuals acting without official support, and frequently against the policy of the Government of the day, having purchased the land for full market value from those vested with valid title to it (provided that the purchase transaction is not fictitious); and

(b) Israeli nationals who repossess private land owned by their (Jewish) families and registered in their names since the days of the British Mandate or even the Ottoman Empire (or persons who have purchased such land from the rightful owners) (para. 744).

I am sure that Professor Dinstein would emphasize the purely private nature of transactions that do not run afoul of the prohibition, that such transactions may not amount to government subterfuge designed to facilitate the establishment of settlements, and that the private acquisition of territory must be in accordance the applicable domestic law in a manner that affords due process to all affected persons.

Annexation of Territory

The third measure, the most extreme, is the annexation of all or parts of Gaza, as Israel has done with the Golan Heights. Israel has also extended its law over East Jerusalem, a form of de facto annexation. Additionally, Netanyahu’s government has indicated a desire to annex (or “extend sovereignty” over) parts of the West Bank, although Israel agreed to hold off until 2024 in the 2020 normalization agreement with the United Arab Emirates; obviously, the ongoing hostilities are a further obstacle at this time.

Beyond the West Bank, calls for the annexation of post-conflict Gaza can be heard, primarily from right-wing extremist politicians. For instance, Tzvi Sukkot, a Knesset member from the same party as Smotrich, has asserted, “We first need to occupy, to annex, to destroy all the houses there, build neighborhoods there.”

Yet, as Professor Dinstein has noted,

The main pillar of the law of belligerent occupation is embedded in the maxim that the occupation does not affect sovereignty. The displaced sovereign loses possession of the occupied territory de facto but it retains title de jure. For its part, the Occupying Power acquires possession—with jurisdictional rights—but not title (Belligerent Occupation, para. 161).

The prohibition is longstanding. Lassa Oppenheim, often characterized as the father of modern international law, explained in 1917 that “There is not an atom of sovereignty in the authority of the occupying power.” The U.S. Military Tribunal at Nuremberg made the same point in its 1948 United States v. Ulrich Griefelt et al. (the RuSHA case) when it observed, “Any purported annexation of territories of a foreign nation, occurring during the time of war and while opposing armies were still in the field, we hold to be invalid and ineffective.”

Contemporary law is equally clear. Article 2(4) of the UN Charter expressly prohibits “the threat or use of force against the territorial integrity or political independence of any state” (emphasis added). The prohibition enjoys jus cogens (peremptory norm) status (ILC Commentary on Vienna Convention, p. 247; ICJ, Paramilitary Activities, para. 190; ILC, Commentary to Articles on State Responsibility, p. 112 – aggression). In other words, it “is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” (Vienna Convention on the Law of Treaties, art. 53).

The ICJ is of the same view. In its 2004 Wall advisory opinion, the Court (citing the Friendly Relations Declaration) confirmed that territorial acquisition through the threat or use of force violates customary international law (para. 87). As Professor Dinstein has pointed out, “[e]ven measures that might be tantamount to ‘de facto’ annexation were deemed unacceptable” by the Court (War, Aggression and Self-Defence, para. 511).

In IHL, the prohibition on annexation impliedly appears in Geneva Convention IV, Article 47’s confirmation that “[p]rotected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention . . . by any annexation . . . of the whole or part of the occupied territory.” Additional Protocol I, Article 4, is more direct.

The application of the Conventions and of this Protocol, as well as the conclusion of agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question.

Although Israel is not a party to the latter instrument, Professor Dinstein convincingly asserts, “This is now an uncontested principle of international law” (Belligerent Occupation, para. 164).

The prohibition on annexation resulting from a use of force has been reiterated in many international fora. Of particular significance, the UN Security Council has repeatedly confirmed that parties to an armed conflict continue to enjoy sovereignty over their territory during an armed conflict and that acquisition of that territory by the enemy is impermissible. It has done so, for example, with regard to Iraq’s purported annexation of Kuwait (UNSCR 662 (1990)), the territorial sovereignty of Serbia during its conflict with NATO allies (UNSCR 1244(1999)), and the Coalition occupation of Iraq (UNSCR 1472 (2003)).

The General Assembly has done the same in several resolutions that are widely considered to accurately reflect international law prohibitions. Prominent among these is the 1970 Friendly Relations Declaration, which provides, “the territory of the State shall not be the object of acquisition by another State resulting from the threat or use of force” and “[n]o territorial acquisition resulting from the threat or use of force shall be recognized as legal.” Four years later, the body emphasized that “no territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful” in its Definition of Aggression Resolution (annex, art. 5(3)).

The one open question involves territorial acquisition by a victim of aggression. Professor Dinstein has opined that “the illegality of . . . territorial acquisition is confined to the case where the beneficiary is the aggressor” (War, Aggression and Self-Defence, para. 115). This occurred, for instance, following the Second World War when German territory east of the Oder-Neisse Line was transferred to Poland, an arrangement later recognized in treaty law (1990 German-Polish Border Treaty; 1990 Treaty on the Final Settlement – “2+4 Treaty”).

As I have explained more fully elsewhere, I find this a hard case to make in contemporary international law. To begin with, the ICJ did not distinguish between the aggressor and victim in its Wall advisory opinion, which dealt directly with the situation in the occupied territories. Moreover, Security Council Resolution 686, which addressed the First Gulf War (1990-91), affirmed the “commitment of all Member States to the independence, sovereignty and territorial integrity of Iraq and Kuwait,” even though it had previously deemed Iraq the aggressor in multiple resolutions, including on the very day Iraq invaded Kuwait. (e.g., UNSCR 660 (1990)). When the International Law Commission took on the issue in its 2000 Third Report on State Responsibility, it concluded that “States may not recognize as lawful, for example, a unilateral acquisition of territory procured by the use of force, even if the use of force was arguably lawful” (p. 107).

Ultimately, as he had an uncanny ability to do, Professor Dinstein distilled the matter into a simple rule of thumb: “The long and the short of it is that any unilateral annexation by the Occupying Power of an occupied territory—in whole or in part—would be legally stillborn” (Belligerent Occupation, para. 164).

Concluding Thoughts

This most recent phase of the armed conflict between Israel on the one side and Hamas, Hezbollah, and other organized armed groups on the other began on October 7 with a systematic series of unthinkable war crimes. It is no surprise that emotions are running high.

However, that understandable reality does not excuse the advocacy of policies and practices that violate international law, as the displacement of Gaza’s population, the establishment of settlements in Gaza, and the annexation of territory surely would. What advocates of the measures examined in this post fail to grasp is that calls for unlawful action strengthen Israel’s enemies by adding credence to the widespread claims, fair or not, that many Israeli operations in this conflict are violating international law. Israel may be winning the war on the ground, but it is losing the battle of perceptions. There is not the slightest doubt that Professor Dinstein would urge his government, individual politicians, and influential citizens to strictly abide by the strictures of international law, not only because compliance will bolster its strategic position but also because it is the right thing to do.

***

Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.

 

 

 

Photo credit: Yair Fridman