Ni’lin Village, near Ramallah. 2012 (© Richard Wainwright) Ni’lin Village, near Ramallah. 2012 (© Richard Wainwright)

The practices of population transfer, including the implantation of settlers and settlements with the effect or purpose of demographic manipulation, qualify as war crimes and crimes against humanity in modern international law.[1]Two centuries of legal prohibitions and eventual criminalization of population transfer have developed along two converging tracks. The first derives from the rights and sovereign claims of states vis-à-vis other states, establishing the unacceptability of the acquisition of territory by military force or other means. The belated second doctrine derives from states’ obligations to respect, protection and fulfillment of human rights, including during times of conflict, occupation and war. Population transfer violates the full range of individual rights, as well as collective rights, among which is the inalienable right to self-determination. Human Rights and International Humanitarian Law (IHL) theoretically protect these values, particularly for the most-likely subjects of population transfer: civilians in wartime, people under occupation and indigenous peoples.[2]

In the early- and mid-1800s, American states recognized their collective duty to oppose the acquisition of territory by force.[3]In 1933, American states reaffirmed the “inadmissibility of the acquisition or occupancy of territory by military force or other means of force, even of a temporary nature.”[4]

Successive international public law norms and standards repeatedly have prohibited the acquisition of territory by military and other means—including population transfer—since the Stimson Doctrine of 1932.[5]The crime of population transfer was codified in the London Conference of 1942 and prosecuted at Nuremburg and Tokyo following WW II. The Organization of African Unity formally adopted this international law tradition in 1964,[6]and United Nations General Assembly resolutions 1514,[7]2526,[8]and 3314[9]also consistently echoed this prohibition. Subsequently, the UN Sub-Commission on Minorities addressed the “human rights dimensions of population transfer,” in 1993–97, further clarifying the international law prohibitions against this grave breach.[10]

The Fourth Geneva Convention of 1949 (Article 49) prohibits the transfer of settlers and settler colonies into occupied territory. States’ extraterritorial obligations to uphold this prohibition flow generally from the Convention’s common Article 1, as well as other provisions. The Rome Statute on the International Criminal Court (1998) has codified population transfer and related settlement activity as crimes against humanity[11]and war crimes.[12]

Applying the Law to Palestine

The norms explicitly applied to population transfer in Palestine provide a source of legal specificity for remedial measures. The UN General Assembly has been explicit about needed accountability for Israel’s population transfer activities, including the implantation of settlers and settlements in occupied Palestinian territory (oPt).[13]Notably, too, in its resolution 465 (1980),[14]the UN Security Council has called upon “all States not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories” (para. 3). The International Court of Justice has concurred.[15]

This year, the Human Rights Council reviewed the most-recent UN report on illegal settlements in occupied Palestine.[16]The independent international fact-finding mission report acknowledged that the International Criminal Court’s jurisdiction may enable individual liability for conduct that amounts to international crimes, including Israel’s “transfer of all or parts of the population of the occupied territory within or outside that territory” and the “transfer [of] its population into the Occupied Palestinian Territory” (oPt). It also noted the relevance of “State responsibility for internationally wrongful acts, including third-State responsibility” (para. 17).

That report also freshly reminded the UN Human Rights Council member states of the role of Israel’s parastatal institutions, including the World Zionist Organization/Jewish Agency and Jewish National Fund, in the conduct of these prohibited and criminalized acts. Meanwhile, at least 50 other states—including 18 complicit members of the current Human Rights Council[17]—actually host those institutions, conferring on the Israeli parastatals tax-exempt privileges as “charities.” Meanwhile, their operations notoriously involve the recruitment of financial and human capital within the sovereign hosts’ territories to build and maintain settler colonies in territories occupied by military and other universally prohibited means (i.e., population transfer).

Over 30 years have lapsed since Security Council Resolution 465 and other explicit resolutions. With today’s greater clarity about these same breaches, advanced legal norms, accountability mechanisms and remedial options, the Human Rights Council acknowledged the continuing violations in another resolution, however remained silent about specific actions required of states to correct the illegal situation.

What Are States to Do?

The doctrine of nonrecognition and nonacceptance of, and noncooperation with the illegal situations of occupation and the crime of population transfer imposes self-executing individual, collective, domestic and extraterritorial state obligations to act, in order to correct the illegal situation. Treaties, binding Security Council resolutions and declarative law also specify the practical means by which states are to operationalize these obligations to prevent, oppose and punish crimes related to population transfer.

The universally ratified Fourth Geneva Convention’s corrective provisions already require High Contracting Parties (HCPs) to apply existing treaty mechanisms to correct an illegal situation. Notably, the Convention calls on HCPs jointly and/or severally to:

1.  Engage the enquiry procedure (Article 149);

2.  Dispatch Special Commissions (Articles 8–9); and

3.  Enact corresponding domestic legislation and adjudicate grave breaches (Article 146).

Universal jurisdiction is established under Article 146(2), requiring each HCP “to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches” and to bring such persons, regardless of their nationality, before its own courts.”

The Convention also provides for the Appointment of "Protecting Powers" (Articles 9–12) in occupied territory. This is especially called for in light of Israel's long-standing refusal to acknowledge its de jure obligations under the Convention in the occupied Palestinian territory (oPt).

In response to the illegal actions of the State of Israel, the UN General Assembly and Security Council explicitly have outlined measures required of all states, both members of the United Nations and nonmember states.[18]The Security Council unanimously adopted its resolution 497 (1981), citing "appropriate measures" to be taken by states. The General Assembly subsequently specified those measures in resolution A/37/123. These measures, required as long as the illegal situation prevails, include that states:

·      Refrain from political, economic, financial, military and technological support to Israel that encourages Israel to commit acts of aggression and to consolidate and perpetuate its occupation and annexation of occupied Arab territories;[19]

·      Refrain from supplying Israel with any weapons and related equipment, and to suspend any military assistance that Israel receives from them;[20]

·      Refrain from acquiring any weapons or military equipment from Israel;[21]

·      Suspend economic, financial and technological assistance to, and cooperation with Israel;[22]

·      Sever diplomatic, trade and cultural relations with Israel;[23]

·      Cease, individually and collectively, all dealings with Israel, in order totally to isolate it in all fields;[24]

·      Ensure that the UN specialized organizations and agencies conform to these remedial terms.[25]

In response to a state conducting or condoning the crime of population transfer, established state practice can be applied peacefully to implement self-executing obligations, including:

·      Divestment and trade sanctions on that state and other states abetting settler colonies;

·      Downgrading diplomatic relations with that state and other states committing and abetting crimes and grave breaches;

·      Freezing the assets of legal and natural persons responsible for the violations;

In the specific case of Israel’s conduct of population transfer in Palestine, these would involve, in particular:

·      Formal classification of Israel’s parastatal institutions (World Zionist Organization/Jewish Agency, Jewish National Fund, United Israel Appeal, Mekorot and affiliates) as discriminatory organs of the State of Israel, operating in the territory of other states, often claiming private, charitable and/or tax-exempt status, and engaging in population transfer;[26]

·      International and, as appropriate, domestic law sanctions on these parastatal institutions and other organizations found to support, or benefit from settler colonies and natural resource extraction in oPt;

Preventing the supply of Israel with any building materials and/or related technologies, equipment and services that maintain unlawful construction and maintenance of its settler colonies and associated regime;

·      Prohibition of any trade with, or entry of products or services originating from sources that support, benefit from, or are located in Israeli settler colonies;

·      Reviewing economic, financial and technological assistance to, and cooperation with Israel for their potential aid to the settler-colony regime, including bilateral and multilateral trade and investment agreements;

·      Downgrading diplomatic, trade and cultural relations with Israel;[27]

·      Recognition of Palestine’s declaration of accession to the Rome Statute, regardless of the state’s status in the General Assembly.


Nonrecognition and nonacceptance of, and noncooperation with the illegal situation of population transfer in Palestine is a matter of ergo omnes.[28]However, international cooperation in the adjudication of crimes and grave breaches is long overdue.

The Fourth Geneva Convention HCPs and its depositary State so far have undermined faith in the corrective measures envisioned under the Convention by their failure to apply the corrective provisions of that central International Humanitarian Law instrument. The selective nature of prosecutions at the International Criminal Court has avoided adjudicating the codified crimes of this, one of the world’s most-protracted crises. The Middle East Quartet, as a mechanism to which states defer for managing the conflict, notoriously has failed to uphold international law.

In light of the individual, collective, domestic and extraterritorial obligations of states to correct the illegal situation of population transfer in Palestine, the"territorial applicability clause" in the new EU guidelines issued on 16 July 2013 forms a small, but important step toward required action.[29]The guidelines distinguish between EU support for and within the State of Israel, and to Israeli entities established or operating in the occupied territories, and “set out the territorial limitations under which the [EU] Commission will not award EU grants, funding, prizes or scholarships to Israeli parties.”[30]

With implementation as of 2014, these regulations are not sufficient to meet the requirement of correcting the illegal situation.[31]Israeli institutions and bodies situated anywhere across the pre-1967 Green Line will be automatically ineligible.[32]Any applicant Israeli entity will be required to submit a declaration, “on honour,” that it complies with the conditions. Meanwhile, the regulations “do not apply to Israeli public authorities at national level (ministries and government agencies or authorities)” and “do not apply to natural persons.”[33]

The available corrective measures already adopted by states, in theory, do not require additional standards in international law. Remedy, however, calls for a measure of legal integrity in international relations.


* This paper embarks from Professor Schechla’s presentation at BADIL’s Forced Population Transfer Conference on 4 June 2013. A video of his presentation is available at BADIL’s YouTube Channel.

[1]   The Rome Statute of the International Criminal Court defines "Deportation or forcible transfer of population" as a crime against humanity (Article 7) and “Unlawful deportation or transfer” as a war crime (Article 8).

[2]     The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949; ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989) and the United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295, 2 October 2007.

[3]   States Parties pledged that they will “not acknowledge, and will not recognize the right of any foreign nation, or any Indian tribe, to dispute the [Confederated Republics’] domain and dominion.” Article 2, para.1, Treaty of Confederation, Congress of Lima (1847).

[4]   Article 11, Conventionof Montevideo on the rights and duties of states, 7e International American Conference (1933).

[5]   Enunciated by U.S. Secretary of State Henry L. Stimson in a note of 7 January 1932 to Japan and China concerning the nonrecognition of international territorial changes that were executed by force under Japan’s occupation. The League of Nations unanimously adopted the 42-year-old inter-American principle in a resolution on 11 March 1932 (with China and Japan abstaining). U.S., Department of State, Publication 1983, Peace and War: United States Foreign Policy, 1931–1941 (Washington: U.S. Government Printing Office, 1943), pp. 3–8. This doctrine was an application of the principle of ex injuria jus non oritur (Latin: law does not arise from injustice).

[6]     Organization of African Unity resolution AGH/Res. 16(1) on decolonization, adopted at Cairo, 21 July 1964.

[7]   GA resolution 1514 (XV) Declaration on the Granting of Independence to Colonial Countries and Peoples, of 14 December 1960, a.k.a. as the Magna Carta for the right to decolonization as a principle of international law

[8]   GA resolution 2526 (XXV) Declaration on Principles of International Law Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, 24 October 1970.

[9]     3314 (XXIX) Definition of Aggression (14 December 1974).

[10]               E.g., “The human rights dimensions of population transfer, including the implantation of settlers” (preliminary report presented by Mr. A.S. al-Khasawneh and Mr. R. Hatano), E/CN.4/Sub.2/1993/17, 6 July 1993, at:*.En?Opendocument.

[11]               The Rome Statute of the International Criminal Court, Article 7.

[12]               Ibid., Article 8(2)(b)(viii).

[13]             GA resolution A/ES-10/573 - S/2012/899 of 6 December 2012 states that “Israeli settlement activities” constitute war crimes, and that Israel must be held accountable for such acts.

[14]             S/RES/465 (1980), adopted by the Security Council at its 2203rd meeting on 1 March 1980, at:


[15]             International Court of Justice, “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” Advisory Opinion of 9 July 2004,at: In para. 159, the Court concludes that “all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction” [of the wall and the associated régime, para. 170.].

[16]             “Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem,” A/HRC/22/63, 7 February 2013, at:


[17]             Argentina, Austria, Brazil, Chile, Costa Rica, Czech Republic, Ecuador, Germany, Guatemala, India, Italy, Peru, Poland, Romania, Spain, Switzerland, United States of America and the Bolivarian Republic of Venezuela, as cited in, www.jnf.organd,,,,

   , and


[18]             “The situation in the Middle East,” A/RES/37/123, 16 December 1982, para. 15.

[19]             Ibid, para. 9.

[20]                 Ibid, para. 13 (a).

[21]             Ibid, para. 13 (b).

[22]             Ibid, para. 13 (c).

[23]             Ibid, para. 13 (d).

[24]             Ibid, para. 14.

[25]             Ibid., para. 16.

[26]             Prohibited under the Fourth Geneva Convention (article 49), a grave breach under Additional Protocol I (Article 85.4[a]), and codified in the Rome Statute on the International Criminal Court as a crime against humanity (Article 7) and war crime (Article 8).

[27]             “The situation in the Middle East,” resolution A/37/123, 16 December 1982, para. 13.

[28]             “The Court would observe that the obligations violated by Israel include certain obligations erga omnes.” ICJ Advisory Opinion of 9 July 2004, op. cit.para. 155. International Law Commission’s Articles on State Responsibility provide in Article 41 that “1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40. 2.  No  State  shall  recognise  as  lawful  a  situation  created  by  a  serious  breach within  the  meaning  of  Article 40,  nor  render  aid  or  assistance  in  maintaining  that      situation  (Article 40  deals  with serious breaches of obligations arising under a peremptory norm of general international law.)

[29]             European Commission, “Guidelines on the eligibility of Israeli entities and their activities in the territories occupied by Israel since June 1967 for grants, prizes and financial instruments funded by the EU from 2014 onwards,” 2013/C 205/05, Official Journal of the European Union, Vol. 56 (19 July 2013), p. 9, at:

[30]             Statement by the Delegation of the European Union to the State of Israel on the European Commission Notice (16/07/2013), at:


[31]             David Rosenburg, “David's Harp / EU flails at Israel settlements with limp noodle,” Haaretz (25 July 2013), at:


[32]             Ian Black, “EU guidelines on Israeli settlements send out powerful message,” The Guardian (16 July 2013), at:


[33]             EU Guidelines, op. cit., para. 14 (b) and (c).