The Illegality of Israeli Settlement Real Estate Sales

Shopping for a retirement home? A nice place to raise a family? Perhaps you’re interested in property in one of the Israeli settlements in the Occupied Palestinian Territories (OPT).

Setting aside the obvious security concerns, a whole host of Israeli subsidies, including housing benefits, tax breaks, and infrastructure development, make settlement life an attractive proposition to some investors. If that sounds like you, there are several companies ready, willing, and able to help you reach your goal. What they may not tell you, however, is that this enterprise violates the Geneva Conventions, international human rights law provisions, and various resolutions of the UN General Assembly and Security Council, and may constitute a war crime under the Rome Statute of the International Criminal Court.

You might have heard about a particularly testy pro-Palestinian demonstration at a Los Angeles synagogue this past June. The event apparently turned violent, and charges of antisemitism were leveled against the demonstrators. But the protesters were not targeting Israeli conduct in the conflict with Hamas in Gaza.

The synagogue, it turns out, was hosting a promotion by a company called My Israel Home, which markets real estate not only in Israel proper but also in the OPT settlements. The event was not a one-off. In March, for example, a real estate convention called the Great Israeli Real Estate Event faced similar protests at a synagogue in Teaneck, New Jersey. Such marketing events have apparently been held in several other places around the U.S. and in Canada.

My purpose is not to address the conduct of the demonstrators or counterdemonstrators—which may well have strayed from the realm of First Amendment protections—but, rather, to discuss the demonstrators’ cause and the illegality of what they were demonstrating against.

The International Court of Justice and the Israeli Settlements

Last month, at the request of the UN General Assembly, the International Court of Justice (ICJ) issued an advisory opinion addressing the legality of the Israeli occupation of Palestinian territory. The court roundly criticized the prolonged nature of the Israeli occupation, declaring it a violation of international law and explicitly noted the illegality of Israeli expropriation of Palestinian lands and of the Israeli settlements. It is important to note here that the legality of the settlements in the OPT does not turn on the question of whether the occupation, itself, is, or is not, legal. Occupation is an artifact of armed conflict. It is neither legal nor illegal per se. But what is illegal per se is the expropriation of occupied territory and the settlement of occupied territory by the population of the occupying power. The applicable sources of international law cited by the ICJ and relevant to Israeli settlements in the OPT include the Geneva Conventions, resolutions of the UN General Assembly and Security Council, and applicable provisions of international human rights law, including the Convention on the Elimination of Race Discrimination, the International Convention on Civil and Political Rights, and the International Convention on Economic, Social and Cultural Rights.

Why Is Appropriation of Occupied Territory Unlawful?

Until after World War I, there was no codified international legal prohibition against the right and power of states to acquire territory through conquest. States could go to war for any reason, and in fact one of the most compelling reasons to do so was the prospect of conquering foreign territories. But in 1928, the Kellogg-Briand Pact purported to outlaw war and require states to resolve their disputes by peaceful means. Considering the epic violation of this prohibition in World War II, the international community sought to reiterate its abhorrence to the waging of aggressive war. It did so by establishing a prohibition on the use of aggressive force between member states in Article 2(4) of the charter of the newly established United Nations, while the use of force in self-defense remained lawful (Article 51).

Not surprisingly, that did not end war. And because the diplomats of 1949 likely had learned the lessons of 1928, they recognized the continuing need to regulate war, despite having outlawed it. Regulations included the 1949 revisions to the Geneva Conventions for the protection of fallen and sick soldiers and sailors in war and prisoners of war, and a new Geneva Convention for the protection of civilians, negotiated in response to the horror that was the Holocaust. That new Geneva Convention contained several rules applicable to the conduct of an occupying power.

In keeping with the law of armed conflict’s fundamental principle of distinction—that only combatants and military objectives may be the object of hostilities, while civilians and civilian objects must be protected—the law of occupation requires the occupying power to respect human and sovereign rights in occupied territory. The Fourth Geneva Convention’s provisions on occupation include rules for the administration of justice, the protection of workers, the distribution of food, the protection and education of children, and the provision of public health and welfare services. One of these rules, Article 49, designed to guard against conquest by the occupying power, prohibits deportation of civilians from the occupied territory or transferring the occupying power’s own civilian population into occupied territory.

Arguments to Justify the Settlements Are Weak

There are several arguments in defense of My Israel Home’s practices, the broadest one being that the Fourth Geneva Convention does not apply because the so-called OPT is not, in fact, occupied; rather, it is disputed territory. This argument, posed by the Israeli government, has been rejected by the vast majority of states, relevant jurisprudence of courts, the United Nations and other international law mechanisms, and academics. In fact, even the Israeli Supreme Court recognizes a state of “belligerent occupation” of Palestinian territory and the applicability of the Fourth Geneva Convention. Most important, the United States also acknowledges the applicability of the Fourth Geneva Convention and, thus, the illegality of Israeli settlements in the OPT.

A second argument is that the conduct is not a war crime. While the International Criminal Court (ICC) list of war crimes includes sending one’s own population into occupied territory, the ICC has no jurisdiction over acts in the United States because the United States is not a party to the ICC. The ICC does, however, exercise jurisdiction over the OPT, so anyone who buys land there could, theoretically, come within the scope of the ICC prosecutor’s powers. But it is also unclear that these marketing efforts can be attributed to Israel, itself (the occupying power), or that the (Jewish) persons targeted in these marketing efforts can be considered part of Israel’s population. The United States also has a war crimes statute, but it does not include the transfer of one’s own population into occupied territory.

The Obligation of the United States Not to Aid and Abet

While it is doubtful that anyone connected with this marketing scheme will be prosecuted for war crimes, marketing of real estate in the Israeli settlements in OPT violates the purposes served by the relevant provisions of the Geneva Conventions, the anti-discrimination provisions of the International Covenant on Civil and Political Rights, and the Convention on the Elimination of Race Discrimination applicable to the United States, and may constitute a war crime under international law. As such, the United States, as a party to these conventions, and pursuant to its obligation to “respect and ensure respect” for the terms of the Geneva Conventions, must put a stop to these marketing efforts. In addition to the Geneva Conventions, resolutions of the UN General Assembly and Security Council also establish an obligation, recognized in the ICJ advisory opinion, on the part of “third countries” not to provide aid or assistance to unlawful Israeli settlement activities.

International law aside, it is noteworthy that these marketing efforts are occurring in synagogues. The properties are being marketed to Jews, including in unlawful Israeli settlements in occupied territory. My Israel Home does not hold its promotions in mosques. While beyond the scope of this piece, there are also arguments to consider the legality of these discriminatory marketing practices under the Fair Housing Act.

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Whether under existing federal law, or pursuant to the international legal obligations of the United States under the Geneva Conventions and other sources of binding international law, trafficking in the unlawful Israeli settlements in the OPT must be stopped. Both the rule of law and any hope for a peaceful resolution of the conflict demand it, as does the reputation of the United States as a standard-bearer for international law.