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West Bank Construction and International Law
(Opinio Juris) Eugene Kontorovich - A French Court of Appeals in Versailles ruled last week that construction of a light rail system in the Israeli-controlled West Bank by a French company does not violate international law. Arguments that Israeli communities in the West Bank violate international law start with Art. 49(6) of the Fourth Geneva Convention, which provides that "The Occupying Power shall not deport or transfer its civilian population into the territory it occupies." This provision was relied on heavily in the lawsuit. There has been a decades-old debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. However, this reading of 49(6) is disconnected from the text, which only speaks of "transfers" carried out by the government. Some scholars, including myself, have long maintained that private movement of persons is in no way covered by 49(6), and the Court apparently adopts this position. Now one might say the government is always "involved" - roads, security, zoning, etc., but ubiquitous "background" roles do not trigger the state action doctrine in U.S. constitutional law, and it is not clear why they would under international law. The writer is a professor of law at Northwestern University School of Law.