Settlements in the Occupied Palestinian Territories, Demographic Changes, and Forcible Transfer as a Violation of Self-Determination
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The establishment and expansion of Israeli civilian settlements in the Palestinian occupied territories and their legality under international law have long been a contentious issue in the Israeli-Palestinian conflict, sparking debates at the United Nations (UN) for over fifty years. Established in territories captured during the June 1967 War, these settlements have expanded over the decades as a result of government policies and funding, leading to significant geopolitical consequences. Since Israel’s withdrawal from the Gaza Strip in 2005, most concerns about settlements focused on the West Bank. This contribution explores the legal status of forcible transfer and settlements under international law, analysing their potential qualification as war crimes and unlawful activities violating the right to self-determination, particularly in their role in the demographic engineering of Palestine.
Settlements and Demographic Changes
Since 1967, Israel has faced accusations of implementing a policy of demographic engineering – a strategy of systematic, authority-sponsored demographic changes aimed at reducing the Palestinian presence and permanently altering the demographic composition – with a view to extend its own sovereignty over the occupied territories. The implantation of settlers has been under the radar of many UN resolutions since the 1970s, which deemed contrary to international humanitarian law “any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition” of the occupied territories, including the transfer of parts of Israel’s civilian population to the West Bank, including Jerusalem.[1]
In 2004, the International Court of Justice (ICJ) found that the wall built by Israel aimed to alter the demographic composition of the occupied Palestinian territories by reinforcing illegal settlements and displacing Palestinian populations (Wall Advisory Opinion),[2] violating the prohibition of forced transfer of the civilian population in occupied territories and severely impeding the Palestinians’ right to self-determination.[3] In 2018, the then Special Rapporteur Michael Lynk reported on Israeli authorities implementing demographic engineering strategies, contributing to de facto and de jure annexation.[4] Nonetheless, civilian settlements persisted and in December 2022, the General Assembly adopted a resolution requesting a new ICJ advisory opinion on the legal status and consequences of Israel’s occupation of Palestinian territories, including measures aimed at altering the demographic composition, character, and status of Jerusalem.[5]
Despite this initiative, Israeli settlements in the West Bank and settler violence targeting Palestinian communities surged over the last years,[6] and have further intensified since Hamas’ attack against Israel of 7 October 2023 – to such an extent that even the USA, Israel’s primary ally, announced visa bans for settlers amid increasing violence.[7] Recent statements by the Prosecutor of the International Criminal Court (ICC) have emphasised that his Office is accelerating investigations over incidents of settler attacks on Palestinian civilians in the West Bank.[8] Furthermore, Israeli authorities’ statements suggest plans to rebuild settlements in the Gaza Strip[9] alongside the elimination or permanent expulsion of Gazans.[10]
Occupation and forcible transfer
A key contention for the assessment of Israeli settlements under international law lies in the qualification of the situation as occupation. Israel rejects that Palestine has statehood[11] and is subject to occupation, at least regarding Gaza.[12]
The prevailing view[13] is that all the Palestinian territories are under foreign occupation. UN bodies like the Security Council[14] and the General Assembly[15] have regularly condemned the human rights violations allegedly committed by the occupying power. The ICC[16] and the ICRC[17] have also considered both Gaza and the West Bank, including East Jerusalem, as occupied territories. Recently, in its first reports of May[18] and September[19] 2022, the ad hoc Independent International Commission of Inquiry noted the existence of “credible evidence” and “reasonable grounds” to conclude that Israel’s occupation of Palestinian territory is now unlawful under international law owing to its permanence and to actions undertaken to alter the demography through the maintenance of a repressive environment for Palestinians and a favourable environment for Israeli settlers. These policies “create irreversible facts on the ground and expand [Israel’s] control over territory” with the goal of annexing parts of the land de facto and de jure.[20] The unlawfulness of the ongoing occupation was reiterated by the current Special Rapporteur Francesca Albanese.[21] The above mentioned request for a new ICJ advisory opinion on the legal status and consequences of Israel’s occupation is clearly premised on the existence of the occupation.
The question of occupation carries important legal consequences. First, Israel would be subject to the obligations arising from the law of occupation. Second, maintaining a permanent occupation is inherently unlawful, constituting an illegal use of force, an act of aggression, and a violation of self-determination. Using occupation to annex territory – as alleged against Israel – would be further unlawful. Furthermore, the recognition of Israel as an occupying power may prevent it from invoking an ad bellum right to self-defence in response to the 7 October attack by Hamas[22] – a non-state actor.[23] The attack would be characterised as part of an ongoing conflict and a struggle for liberation[24] – albeit amounting to international crimes and violating jus in bello.[25]
The existence of occupation would also trigger the prohibition of forcible transfer as a breach of international humanitarian law and a war crime. While forcible transfer can constitute a war crime and a crime against humanity either under armed conflict or peacetime, respectively, the standards are more stringent when it comes to military occupation. The 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War,[26] its 1977 First Additional Protocol,[27] and the 1998 Rome Statute of the ICC[28] explicitly prohibit forcible transfers and deportations within or outside occupied territories. This prohibition aims to preserve the occupied territory’s demographic and social structure and to prevent treating it as a conquest. Temporary evacuations of occupied areas may be permissible under specific conditions such as ensuring population security or imperative military needs, but evacuees must be allowed to return to their homes once hostilities cease. Forcibly transferring populations to permanently alter demographics, such as creating ethnically homogeneous areas, constitutes ethnic cleansing and is unjustifiable. Furthermore, these instruments explicitly forbid the implantation of settlers into occupied territories, encompassing not only direct transfers but also indirect measures that induce settlers’ relocation through incentives and toleration of mob violence. This prohibition is unique to situations of occupation.
Evolution of forcible transfer
Up until the mid-twentieth century, minorities expulsions and population exchanges were regarded as legitimate and necessary measures to stabilise regions, under the premise that demographically-homogeneous societies would ensure stability and security for nation-states. This has progressively changed into prohibiting territorial acquisition through conquest and population transfers into and from conquered territories, reflecting a growing recognition of the potential human rights violations associated with forcible transfers. Nonetheless, uncertainties about its scope and definition persisted.
Within international humanitarian law, an early reference is found in the 1863 US Lieber Code’s prohibition to “carry off” private citizens “to distant parts”.[29] The 1907 Hague Regulation’s protection of family and private life[30] may also be seen as implicitly prohibiting forcible transfer.[31] After the end of the second World War, forced transfer during armed conflicts and settlement of co-nationals under occupation were codified as grave breaches of international humanitarian law under the Fourth Geneva Convention and Additional Protocols. As mentioned above, however, such prohibition only applies to cases of occupation.[32]
Early attempts to criminalise forcible transfer had also limited scope. The 1942 Allied Resolution on German War Crimes only included mass expulsions,[33] and the 1945 Charter of the International Military Tribunal[34] designated deportation “of civilian population of or in occupied territory” as a war crime, and deportation “before or during the war” as a crime against humanity.[35] They omitted internal forced displacement or implantation of settlers and, as crimes prosecuted at Nuremberg, were strictly associated with the war and actions perpetrated by German authorities.
The advancement of global criminal justice in the 1990s saw growing discussions about the unlawful nature of forcible transfer. A first step was including “unlawful deportation or transfer or unlawful confinement of a civilian” among the grave breaches of the 1949 Geneva Conventions under the jurisdiction of the International Criminal Tribunal for the former Yugoslavia.[36] The emphasis of this war crime was, however, on individual rather than mass transfers and their overarching effects; instead, Brownlie argued that population transfer and demographic manipulation should be recognised as “having a character of their own and deserving a clearer profile as a wrong to international public order”.[37] The impetus to elaborate a concept of forcible transfer emphasising its unlawful nature beyond criminal acts against individuals was embedded in two parallel processes: ECOSOC’s attempt to promote an international legal instrument on unlawful forcible transfer, and the International Law Commission (ILC)’s work to codify international crimes.
In 1993, ECOSOC Sub-Commission on Prevention of Discrimination and Protection of Minorities presented a report focused on the “human rights dimensions of population transfer, including the implantation of settlers”.[38] The report argued that population transfer, including colonial-era processes of “implanting settlements” and other “demographic manipulations” for territorial acquisition, occupation, and annexation, unlawfully undermined the affected populations’ legitimate exercise of self-determination and posed a threat to their existence, possibly contributing to genocide. It also recommended prohibiting deliberate demographic changes as forms of illegal forcible transfer under international law.
The 1997 Draft Declaration on Population Transfer and the Implantation of Settlers (Population Transfer Declaration), adopted by the ECOSOC Commission on Human Rights in 1998, incorporated these recommendations and defined “unlawful population transfers” as “a practice or policy having the purpose or effect of moving persons into or out of an area, either within or across an international border, or within, into or out of an occupied territory, without the free and informed consent of the transferred population and any receiving population”.[39] Practices and polices “changing the demographic composition of the region in which a national, ethnic, linguistic, or other minority or an indigenous population is residing, whether by deportation, displacement, and/or the implantation of settlers” were also declared unlawful.[40] Whether in times of armed conflict, occupation, or peace, unlawful population transfers were deemed as internationally wrongful acts leading to state responsibility besides individual criminal liability,[41] and non-recognition by other states.[42] The final report of the Special Rapporteur on population transfer Mr. Al-Khasawneh reiterated that transferring selected groups without their consent and demographic manipulations by settler implantation violate the collective right to self-determination.[43]
In the same years, the ILC was developing a Draft Code of Crimes Against the Peace and Security of Mankind, first adopted by the General Assembly in 1991. “Deportation or forcible transfer of population” constituted a “systematic or mass violation[…] of human rights” in times of peace, which encompassed expulsions as well as internal transfers intended to alter a territory’s demographic composition or uproot a people from their ancestral lands.[44] The same acts were listed as “exceptionally serious war crimes” during armed conflict, including the establishment of settlers (which could signal an intent to annex) and changes to occupied territories’ demographic composition (which were considered sufficiently serious to echo genocide). However, in the 1996 Draft, the ILC excluded demographic changes, deemed too broad and vague,[45] and replaced the concept of settlements with the prohibition for the occupying power to “transfer … parts of its own civilian population into the territory it occupies.” Two years later, in the 1998 Rome Statute, “deportation or forcible transfer” were listed as war crimes under Article 8 and as crimes against humanity under Article 7.
The notion of forcible transfer of the Rome Statute encompasses both internal displacements and cross-border deportations, in war or peace, through coercive means including mere threats and intimidation.[46] It protects populations against permanent eradication and not only individuals with protected status. The war crime applies to both international and non-international armed conflicts.[47] However, settler implantation is exclusively criminalised as a war crime and during occupation. The occupying power can neither transfer or deport the local population, nor transfer parts of its own population into the occupied territory, directly or indirectly.[48] This includes incentives and toleration of settlements. Nonetheless, the crime remains anchored to the situation of occupation.
This crime’s rationale is that only occupying powers hold sufficient control to enforce or induce settlements on foreign territories. If authority-sponsored settlements are not possible outside occupation, their presence demonstrates the existence of occupation (without being a necessary precondition). Indeed, the progressive establishment of settlements – often accompanied by military forces – enhances territorial control and constitutes “creeping” occupation. Individual desire for land conceals the state’s goal of annexation, and settlements constitute grave breaches of international humanitarian law and war crimes.
If one rejects that settlements imply a situation equivalent to occupation, then she must accept the possibility of state-sponsored settlements in unoccupied territories too. In such cases, settler implantation without the consent of both the populations involved should be prohibited, as suggested by the Population Transfer Declaration, as it would be absurd to prohibit it during occupation but not in other situations with similar material conditions. The wrong inherent to the transfers and settlements is the violation of the affected population’s self-determination.
Conclusion
The intentional establishment and expansion of settlements in the West Bank and, potentially, in Gaza have far-reaching consequences for the Israeli-Palestinian conflict. They have led to demographic changes affecting the population balance and fragmenting Palestinian presence and territorial continuity. This demographic engineering restricts the viability of a free Palestinian state and complicates the pursuit of a just and lasting conflict resolution.
Looking at these demographic alterations only through the lens of international criminal law risks being shortsighted.[49] Instead, they should be assessed in the light of the affected population’s right to self-determination. As seen above, the preparatory works of the Population Transfer Declaration and the ILC’s Draft Code of Crimes intended to include an explicit, all-encompassing prohibition of deliberate demographic manipulation. According to the Articles of Responsibility of States for Internationally Wrongful Acts,[50] state responsibility arises from serious breaches of an obligation arising under a peremptory norm of general international law.[51] These include the prohibitions of racial discrimination, genocide, apartheid and other crimes against humanity, and the obligation to respect the right of self-determination and the basic rules of international humanitarian law.[52] Forcible transfer – including settlements and other measures of demographic engineering – could be viewed as constituting a wrongful act entailing state responsibility.
The upcoming ICJ opinion presents an opportunity to clarify international law implications, expanding on Wall. The request singled out the “measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem”, which are of particular importance and which the Court is specifically expected to address. Nevertheless, the ICJ should discuss the consequences of demographic engineering in the whole West Bank and Gaza,[53] reaffirming that such practices are unlawful and potential outcomes – such as annexation – should not be recognised.
Editorial Committee
Julia Grignon, scientific director of the Institute for Strategic Research at the École Militaire (Institut de Recherche Stratégique de l’École Militaire) and member of the Paris Human Rights Centre at Paris-Panthéon-Assas (Centre de Recherche sur les droits de l’Homme et le droit humanitaire).
Natacha Bracq, founder and chief-editor of BDIP
with the assistance of Yann Lemoine, jurist, international criminal law and law of armed conflict
[1] Security Council of the United Nations, Establishment of a commission to examine the situation relating to settlements in the Arab territories occupied by Israël, Resolution S/RES/446(1979), 34th session, 22 March 1979, §3.
[2] ICJ advisory opinion, Legal consequences of the construction of a wall in the Occupied Palestinian Territory, 9 July 2004, ICJ Reports 2004 p.136.
[3] Ibid. §§. 122-134.
[4] Human Rights Council of the United Nations, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, A/HRC/37/75, 14 June 2018.
[5] General Assembly of the United Nations, Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, A/RES/77/247, 77th session, 30 December 2022.
[6] According to a report of the United Nations High Commissioner for Human Rights to the Human Rights Council, as of March 2023, the settler population in the occupied West Bank, including East Jerusalem, has grown to nearly 700,000 living in 279 settlements.
[7] “US announces visa bans after warning Israel on West Bank settler violence”, Aljazeera, 5 December 2023 .
[8] See: ICC Office of the Prosecutor, Statement of ICC Prosecutor Karim A. A. Khan KC from Cairo on the situation in the State of Palestine and Israel, 30 October 2023; ICC Office of the Prosecutor, Statement of ICC Prosecutor Karim A. A. Khan KC from Ramallah on the situation in the State of Palestine and Israel, 2 December 2023; ICC Office of the Prosecutor, Remarks by ICC Prosecutor Karim A.A. Khan KC at the opening of the 22nd Session of the Assembly of States Parties, 4 December 2023.
[9] TIBON A., “Talk of Re-establishing Jewish Settlements in Gaza Strip Damages Israeli Legitimacy, Western Diplomats Warn”, Haaretz, 8 November 2023. It should be noted that while the current Prosecutor has mentioned settler violence, the establishment of settlements itself constitutes a war crime attributable to authorities. In the 2020 request for a ruling on the Court’s territorial jurisdiction in Palestine, the former Prosecutor stated that ‘there [was] a reasonable basis to believe that in the context of Israel’s occupation of the West Bank, including East Jerusalem, members of the Israeli authorities have committed war crimes under article 8(2)(b)(viii) in relation, inter alia, to the transfer of Israeli civilians into the West Bank’ (§. 95)
[10] Inter multis, see: SERHAN Y., “Why Palestinians Fear Permanent Displacement From Gaza”, Time, 2 November 2023 ; JABIRI A., “Attack on Gaza: Israeli rhetoric fuels fears of ethnic cleansing as IDF assault continues to push south”, The Conversation, 6 December 2023 ; Office of the High Commissioner for Human Rights of the United Nations, Israel working to expel civilian population of Gaza, UN expert warns, Press releases, 22 December 2023.
[11] See also the allegations of mass expulsion and displacement of Palestinians in Gaza in the ICJ inter-state proceeding instituted by South Africa against Israel on 29 December 2023, requesting provisional measures for breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, contains (pp. 37-39): ‘For many Palestinians, the forced evacuation from their homes is necessarily permanent. Israel has now damaged or destroyed an estimated 355,000 Palestinian homes — amounting to 60 per cent of the entire housing stock in Gaza … frustrating any realistic prospects for displaced Gazans to return home’ (§. 60). See also Israeli Ministry of Foreign Affairs, The International Criminal Court's lack of jurisdiction over the so-called "situation in Palestine", Press Release, 20 December 2019.
[12] Some Israeli academics lament the application of lower standards to establish the presence of occupation than those normally required, namely the actual presence of a hostile army in a foreign territory and the capacity to substitute the governance of the lawful sovereign authority (see SHANY Y., COHEN A., “Israël-Hamas 2023 Symposium - International law ‘made in Israël’ v. international law ‘made for Israël’”, Lieber Institute, 22 November 2023 ).
However, others have noted that Article 42 of the 1907 Hague Regulations, which codifies the customary definition of an occupied territory, only requires the establishment and exercise of “authority” and not the presence of enemy troops on the ground (see LONGOBARDO M., “Some Reflections on the Use of Force in the Recent Escalation of the Israeli-Palestinian Conflict”, Armed Groups and International Law, 15 November 2023 ).
According to Milanovic, the issue remains contested in literature (MILANOVIC M., “Does Israël Have the Right to Defend Itself?”, EJIL: Talk !, 14 November 2023.
However, most authors agree that Gaza is occupied. For a recent and in-depth analysis of the question, see JABER S. S. & BANTEKAS I., “The Status of Gaza as Occupied Territory Under International Law” , International and Comparative Law Quarterly, 5 October 2023, volume 72 issue 4, pp. 1069–1088.
[13] KATTAN V., “Israeli Settlements, U.S. Foreign Policy, and International Law”, Insight Turkey, 2020, volume 22 n°1, pp. 47–58.
[14] United Nations Security Council, Resolution on a durable and fully respected ceasefire and the full withdrawal of Israeli forces from the Gaza strip, Resolution S/RES/1860(2009), 64th session, 8 January 2009.
[15] United Nations General Assembly, Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, Resolution A/RES/64/94, 64th session, 10 December 2009.
[16] ICC Office of the Prosecutor, Situation on Registered Vessels of Comoros, Greece and Cambodia (Article 53(1) Report), 6 November 2014.
[17] MAURER P., “Challenges to international humanitarian law: Israel’s occupation policy”, International Review of the Red Cross, Volume 94 Number 888, Winter 2012.
[18] Human Rights Council of the United Nations, Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, A/HRC/50/21, 9 May 2022.
[19] United Nations General Assembly, Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, A/77/328, 77th session, 14 September 2022.
[20] Ibid. §.75 .
[21] United Nations General Assembly, Situation of human rights in the Palestinian territories occupied since 1967, A/77/356, 77th session, 21 September 2022.
[22] WILDE R., “Israel’s War in Gaza is Not a Valid Act of Self-defence in International Law”, Opinio Juris, 9 November 2023 .
[23] HAQUE A., “Enough: Self-Defense and Proportionality in the Israel-Hamas Conflict”, Just Security, 6 November 2023 .
[24] But see contra MILANOVIC M., “Does Israël Have the Right to Defend Itself ?”, op. cit. note 12.
[25] LONGOBARDO M., “Some Reflections on the Use of Force in the Recent Escalation of the Israeli-Palestinian Conflict”, op. cit. note 12.
[26] 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War.
[27] 1977 First Additional Protocol.
[28] Rome Statute, A/CONF.183/9, Rome, 17 July 1998.
[29] Instructions for the Government of Armies of the United States in the Field (Lieber Code), Article 23, 24 April 1863.
[30] Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, Article 46, 18 October 1907.
[31]BRANDON E., “Grave Breaches and Justifications: The War Crime of Forcible Transfer or Deportation of Civilians and the Exception for Evacuations for Imperative Military Reasons”, Oslo Law Review, volume 6 issue 2, 17 September 2019, pp. 107-124.
[32] Article 49.1 of the Fourth Geneva Convention prohibits “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory” to other territories, while Article 49.6 prohibits the occupying power from “deport[ing] or transfer[ring] parts of its own civilian population into the territory it occupies”.
[33] Resolution on German war crimes signed by representatives of nine occupied countries, London, 12 January1942.
[34] Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Statute of the International Military Tribunal, London, 8 August 1945.
[35] Ibid. Article 6 (b) and (c).
[36] 1993 ICTY Statute, Article 2.
[37] Speech in Nicosia in 1990, cited in United Nations Economic and Social Council, The human rights dimensions of population transfer, including the implantation of settlers : preliminary report, E/CN.4/Sub.2/1993/17, §373, fn. 291.
[38] Ibid.
[39] United Nations Economic and Social Council, Human rights and population transfer. Final report of the Special Rapporteur, Mr. Al-Khasawneh, E/CN.4/Sub.2/1997/23, Annex II Article 3, p.27.
[40] Ibid. Annex II Article 6, p.27.
[41] Ibid. Annex II Article 9, p.28.
[42] Ibid. Annex II Article 10, p.28.
[43] Ibid. p.16, §§ 50-51.
[44] ILC, Draft Code of Crimes against the Peace and Security of Mankind, 43rd session, 1991, Yearbook of the International Law Commission 1991, volume II(2), Articles 21-22.
[45] BASSIOUNI C., “Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions”, Duke Journal of Comparative & International Law, volume 3 issue 2, 1993, p.263.
[49] As Pinto and Mavronicola have put it, the ‘hegemony of the penal accountability paradigm’ bears the risk of focusing exclusively on the conduct of individual agents, obscuring the systemic context in which criminal events occur: MAVRONICOLA N. and PINTO M., “The Hegemony of Penal Accountability: Some Critical Reflections during (Ongoing) Atrocities”, EJIL: Talk !, 15 December 2023.
[50] ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts and Commentaries, 53rd session, 2001.
[51] Ibid., Article 2, Article 40.
[52] Ibid, commentary on Article 26, §5, pp.223-224.
[53] PELLICONI A. M., “The UNGA request for an ICJ Advisory Opinion on Palestine: The role of demographic alterations in the process of de facto annexation and legal consequences under international law”, City Law Forum, 22 February 2023.