Transfer: Is It Legal?

I have long been discussing transfer of Arabs on the Internet, as I wanted the concept to be on the table for discussion at least. In addition, I argued that if transfer of Jews out of the territories is legal, it is legal to do the same to the Arabs.

Ted Belman,

Ted Belman
Ted Belman
PR
Haaretz had an article "There is No Difference Between Umm al-Fahm and Kedumim" by Yosef Ben Shlomo who teaches in the philosophy department at Tel Aviv University. Haaretz also carried an article "A Refugee in My Own Country", which argues the same thing.

Both articles should be studied.

I have long been discussing transfer of Arabs on the Internet, as I wanted the concept to be on the table for discussion at least. In addition, I argued that if transfer of Jews out of the territories is legal, it is legal to do the same to the Arabs. Alternatively if it is illegal, it is illegal for either to be transferred. But my arguments were too simplistic, as are those set forth in Haaretz.

Article 49 or the Fourth Geneva Convention states:

"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.

"Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

"The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.

"The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.

"The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.

"The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." [emphasis mine - TB]

The International Court of Justice made reference to the last paragraph of this article to hold that the settlements were illegal. It thus considers settlement of these lands by the Israelis as an act of transfer by the Occupying Power of its own citizens.

To my mind that is a stretch, but certainly it can be argued that since the settling of the land was supported by the state, it amounts to a transfer. But this ignores that the Geneva Convention arguably does not apply, because it is not the land of another state, or that it only applies between High Contracting Parties, which excludes the Palestinian Authority. The ICJ ignored this, too. It also ignores that the Mandate was to encourage close settlement of the land by Jews and it has never been rescinded. Instead, the ICJ simply held that the settlements were illegal because they were the product of an illegal transfer.

Thus, one could argue that the analogy of transferring Arabs or Jews does not apply. But what the "Disengagement Plan" intends is clearly "mass forcible transfers, as well as deportations of protected persons from occupied territory", and is thus illegal.

It should be noted that this article also provides "the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand." Thus transferring the Arabs to allow for the fence is made legal by this clause.




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