“Settling” constitutes a warcime according to international law and ICC statute. Even under US’ own military legislations’
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The prospect of reviving the peace track between Israel and the Palestinians is not one that is appetising for either Obama or Netanyahu. Both are bruised from locking horns over a settlement freeze — the key plank of the US president’s efforts — during his first term, notes Jonathan Cook.
Israeli and Palestinian officials have been in Washington laying the ground for President Barack Obama’s visit to Israel and the West Bank, scheduled for next month and the first since he took office four years ago.
Topping the agenda, Israeli Prime Minister Benjamin Netanyahu has said, will be efforts to restart the long-stalled peace process. Last week Palestinian officials said they had urged the White House to arrive with a diplomatic plan.
The US president began his first term on a different footing, ignoring Israel and heading instead to Cairo where he made a speech committing the US to a new era in relations with the Arab world. Little came of the promise.
Now he apparently intends to start his second term — as Netanyahu resumes office too, following last month’s elections — with an effort to engage with Israel and the Palestinians that is almost as certain to prove an exercise in futility.
The prospect of reviving the peace track between Israel and the Palestinians is not one that is appetising for either Obama or Netanyahu. Both are bruised from locking horns over a settlement freeze — the key plank of the US president’s efforts — during his first term.
But equally, it seems, the price of continuing inaction is high too. The Palestinians have repeatedly embarrassed Obama at the United Nations, not least by isolating the US in November as it opposed an upgrade in the Palestinians’ observer status. Inertia also looks risky given the growing unrest in the West Bank over hunger-striking prisoners.
Ahead lie potentially even bigger headaches, including the doomsday scenario — from Israel and Washington’s perspective — that the Palestinians approach the International Criminal Court to demand Israel be investigated for war crimes.
The perennial optimists have been searching for signs that Obama is readier this time to get tough. Neither of the president’s recent major appointments — John Kerry as secretary of state and Chuck Hagel, nominated as defence secretary — has been welcomed in Israel.
US determination has been buoyed, it is argued, by what is seen as a tide change in Israeli public opinion, highlighted by the surprise electoral success of centrist Yair Lapid and relatively poor showing by Netanyahu’s Likud party.
Netanyahu’s officials sense similar motives, complaining that Obama’s visit so soon after the election is direct “interference” in coalition-building. The centrists, they fear, will be able to extract concessions from Netanyahu, who will not wish to greet the US president as head of an extremist government.
Israeli officials, meanwhile, look eager to mend fences: they have hopefully codenamed the visit “Unbreakable Alliance” and announced an intention to award Obama Israel’s highest honour, the presidential medal.
The more hopeful scenarios, however, overlook the obstacles to a diplomatic solution posed both by Israel’s domestic politics and by the Palestinians’ inability to withstand Israeli bullying.
Not least, they ignore the fact that Netanyahu’s Knesset faction is the most rightwing in Likud’s history. He cannot advance a peace formula — assuming he wanted to — without tearing apart his party.
Equally, there is nothing in Lapid’s record to indicate he is willing to push for meaningful compromises on Palestinian statehood. On this issue, he occupies the traditional ground of Likud, before it moved further right. A recent poll found half his supporters called themselves rightwing.
Last week Netanyahu signed a coalition pact with another supposed centrist, Tzipi Livni, a former Likud leader who now heads a small faction called Hatnuah. The goal, as one Likud official cynically put it, was to use Livni to “whitewash the Netanyahu government in the world’s eyes”.
In other words, Netanyahu hopes a Livni or a Lapid will buy him breathing space as he entrenches the settlements and pushes Palestinians out of large areas of the West Bank under cover of what the Israeli newspaper Haaretz termed a “booby-trapped diplomatic process”.
What of the Palestinians? Will they not be able to mount an effective challenge to Israeli intransigence, given an apparent renewed US interest in diplomacy?
Here is the rub. Netanyahu already has a stranglehold on the politics of his potential peace partners. He can easily manipulate the fortunes of the Palestinian leader Mahmoud Abbas on the two biggest tests he faces: the “peace process” overseen by the international community, and reconciliation talks with the rival Palestinian faction Hamas.
The latest talks between Hamas and Fatah broke down in Cairo this month, even though unity, in the view of most Palestinians, is a precondition of their seeking viable statehood. The talks’ failure followed the “arrest” by Israel of 25 Hamas leaders in the West Bank, seizures that Palestinian human rights groups and Hamas warned were intended to disrupt reconciliation.
Meanwhile, Israel has repeatedly undermined Abbas’s rule, and kept his PA close to collapse, by turning on and off one of its major sources of income — tax monies Israel regularly collects on behalf of the Palestinians and is supposed to pass on.
As a result, Abbas is trapped between various pressures impossible to reconcile: the need to keep Israel happy, to maintain legitimacy with his own people and to foster a shared political agenda with other Palestinian factions.
The sticks that Israel wields force Abbas to keep the door open to negotiations even as most Palestinians recognise their utter pointlessness. Likewise, his constant need to appease Israel and the US serves only to widen differences with Hamas.
The Palestinians are stuck in a political and diplomatic cul-de-sac, unable to move forward either with the development of their national struggle or with talks on viable statehood. Whatever Obama’s intentions, the reality is that this will be another four years of diplomatic failure.
Jonathan Cook won the Martha Gellhorn Special Prize for Journalism. His latest books are Israel and the Clash of Civilisations: Iraq, Iran and the Plan to Remake the Middle East (Pluto Press) and Disappearing Palestine: Israel’s Experiments in Human Despair (Zed Books). His website is www.jonathan-cook.net.
“States may not deport or transfer parts of their own civilian population into a territory they occupy.”
State practice establishes this rule as a norm of customary international law applicable in international armed conflicts.
International armed conflicts
The prohibition on deporting or transferring parts of a State’s own civilian population into the territory it occupies is set forth in the Fourth Geneva Convention.
It is a grave breach of Additional Protocol I.
Under the Statute of the International Criminal Court, “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.
Many military manuals prohibit the deportation or transfer by a party to the conflict of parts of its civilian population into the territory it occupies.
This rule is included in the legislation of numerous States.
Official statements and reported practice also support the prohibition on transferring one’s own civilian population into occupied territory.
Attempts to alter the demographic composition of an occupied territory have been condemned by the UN Security Council.
In 1992, it called for the cessation of attempts to change the ethnic composition of the population, anywhere in the former Yugoslavia.
Similarly, the UN General Assembly and UN Commission on Human Rights have condemned settlement practices.
According to the final report of the UN Special Rapporteur on the Human Rights Dimensions of Population Transfer, including the Implantation of Settlers and Settlements, “the implantation of settlers” is unlawful and engages State responsibility and the criminal responsibility of individuals.
In 1981, the 24th International Conference of the Red Cross reaffirmed that “settlements in occupied territory are incompatible with article 27 and 49 of the Fourth Geneva Convention”.
In the Case of the Major War Criminals in 1946, the International Military Tribunal at Nuremberg found two of the accused guilty of attempting the “Germanization” of occupied territories.
 Fourth Geneva Convention, Article 49, sixth paragraph (cited in Vol. II, Ch. 38, § 334).
 Additional Protocol I, Article 85(4)(a) (adopted by consensus) (ibid., § 335).
 ICC Statute, Article 8(2)(b)(viii) (ibid., § 336).
 See, e.g., the military manuals of Argentina (ibid., §§ 346–347), Australia (ibid., § 348), Canada (ibid., § 349), Croatia (ibid., § 350), Hungary (ibid., § 351), Italy (ibid., § 352), Netherlands (ibid., § 353), New Zealand (ibid., § 354), Spain (ibid., § 355), Sweden (ibid., § 357), Switzerland (ibid., § 357), United Kingdom (ibid., § 358) and United States (ibid., § 359).
 See, e.g., the legislation of Armenia (ibid., § 361), Australia (ibid., §§ 362–363), Azerbaijan (ibid., §§ 364–365), Bangladesh (ibid., § 366), Belarus (ibid., § 367), Belgium (ibid., § 368), Bosnia and Herzegovina (ibid., § 369), Canada (ibid., §§ 371–372), Congo (ibid., § 373), Cook Islands (ibid., § 374), Croatia (ibid., § 375), Cyprus (ibid., § 376), Czech Republic (ibid., § 377), Germany (ibid., § 379), Georgia (ibid., § 380), Ireland (ibid., § 381), Mali (ibid., § 384), Republic of Moldova (ibid., § 385), Netherlands (ibid., § 386), New Zealand (ibid., §§ 387–388), Niger (ibid., § 390), Norway (ibid., § 391), Slovakia (ibid., § 392), Slovenia (ibid., § 393), Spain (ibid., § 394), Tajikistan (ibid., § 395), United Kingdom (ibid., §§ 397–398), Yugoslavia (ibid., § 399) and Zimbabwe (ibid., § 400); see also the draft legislation of Argentina (ibid., § 360), Burundi (ibid., § 370), Jordan (ibid., § 382), Lebanon (ibid., § 383) and Trinidad and Tobago (ibid., § 396).
 See, e.g., the statements of Kuwait (ibid., § 405) and United States (ibid., §§ 406–407) and the reported practice of Egypt (ibid., § 402) and France (ibid., § 403).
 See, e.g., UN Security Council, Res. 446 , 452 and 476 (ibid., § 408), Res. 465 (ibid., § 409) and Res. 677 (ibid., § 410).
 UN Security Council, Res. 752 (ibid., § 411).
 See, e.g., UN General Assembly, Res. 36/147 C, 37/88 C, 38/79 D, 39/95 D and 40/161 D (ibid., § 412) and Res. 54/78 (ibid., § 405); UN Commission on Human Rights, Res. 2001/7 (ibid., § 413).
 UN Sub-Commission on Human Rights, Final report of the Special Rapporteur on the Human Rights Dimensions of Population Transfer, including the Implantation of Settlers and Settlements (ibid., § 415).
 24th International Conference of the Red Cross, Res. III (ibid., § 419).
 International Military Tribunal at Nuremberg, Case of the Major War Criminals, Judgement (ibid., § 421).