Canada’s current position on Israeli “settlements” is that they are illegal because they violate Article 49 of the Fourth Geneva Convention, specifically Paragraph 6 which states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” The time has come for Canada to change our position to align with Canadian basic values and, equally important, with international law.
Our own Charter of Rights and Freedoms begins with “Whereas Canada is founded upon principles that recognize… the rule of law.” A key element of the rule is equality before and under the law. To comply, it follows that Canada must apply Article 49 equally to all states. But historically we have not. For example, we accepted the massive Soviet settlement of Russian citizens into the Baltic territories after the Second World War and even discouraged those states from removing the settlers when they renewed their independence in the 1990s. As other examples, Canada has accepted Turkey’s settlement of Turkish farmers into Turkish-occupied Northern Cyprus, and we’ve been conspicuously silent on the vast Chinese settlement of occupied Tibet.
The UN Charter, Article 1, states that a key UN purpose shall be “To develop friendly relations among nations based on respect for the principle of equal rights … of peoples….” In other words, Article 49 must be applied uniformly. Recently, the eminent legal scholar Prof. Eugene Kontorovich elaborated in detail how blatantly inconsistent was the application of Article 49 by numerous states. He also concluded that state practice allows populations to move into occupied areas.
For Canada to be faithful to the principle of the rule of law, we must revisit our long-standing position on the Israeli “settlements.”
At the very least, we can no longer state that Article 49 applies to Jews living in and moving to the ancient Hebrew city of Hebron, the ancient Jewish Quarter of Jerusalem or the Jewish population blocs around Jerusalem.
Jews lived in Hebron for thousands of years. It was sacred to them because of their faith-based belief that the founders of Judaism are buried there. In 1929, a genocide occurred. The entire Jewish population was attacked and either killed or scattered. For Canada now to take the position that Jews cannot live in Hebron is to legitimize the 1929 genocide, a position that is contrary to fundamental international law.
Likewise, Jews have been the majority in Jerusalem, latterly in its Jewish Quarter, over much of two millennia. Jordan, on conquering the walled city in 1948 shortly after Israel declared its independence, killed or displaced every single Jew. For Canada now to prohibit Jewish resettlement is to support a grave form of racial discrimination, prohibited by international law.
In 1948 and 1967, Egypt, Syria, Jordan, and other Arab States organized a campaign to destroy Israel. On May 27, 1967, Egyptian President Nasser publicly issued the following threat: “Our basic objective will be the destruction of Israel.”
Israel successfully defended itself. To discourage another try, defeated aggressor states are traditionally punished by a transfer of territory. Security Council Resolution 242 of Nov. 22, 1967 provided that a post-1967 peace settlement would give Israel enlarged, “… secure and recognized boundaries, free from threats or acts of force.” This wording was used specifically as an agreed framework to deter further attempts at Israel’s destruction. For Canada to take a position in 2017 denying housing of Jews in population blocs around Jerusalem as part of the envisaged defensible borders plan would reward aggression, which is contrary to international law.
Some rules of customary international law are so fundamental they can never be overridden, not by states, nor by courts, nor by institutions. These rules are termed “jus cogens.” They include prohibitions against genocide, racial discrimination and aggression. These fundamental elements of international law do not permit any country or institution (not even the UN Security Council) to interpret Article 49 in the maladroit manner set out above. The Nuremberg trials confirmed that “following Nazi orders and laws” was not a defence because such statutes were contrary to the natural and generally accepted fundamental rules against murder, extermination and deportation.
Canadian policy must be very considered in its definitions of “Israeli settlements,” “occupied territory” and “Palestinian territory,” both in general and specifically in relation to the recent Security Council Resolution 2334, which labeled the settlements “illegal,” if at the same time Canada does not apply the label to similar practices elsewhere. Canada can and should set an example for other democracies to follow.
This article was published by the National Post and may be found here.