How International Conventions Jeopardize National Security

A visit to the Chicago Museum of Science and Industry evokes some reservations about and challenges about the accusations and charges of war crimes against Israel for violating the international Geneva Conventions, 1929 and 1949.

The Museum features the remarkable display of the German U Boat 505, the ship that was hunting American and Allied shipping during War II in the area off the coast of West Africa. The U Boat, the only submarine ever captured by the U.S. fleet, was captured dramatically by the American destroyer USS Chatelain in June 1944 and towed to Bermuda. The significance is that the American navy captured not only the entire crew but also seized two Enigma machines, the devices that enabled encoding of German secret messages. Realizing the significance of the Enigmas, Rear Admiral Ernest J. King, Chief of Naval Operations and Commander in Chief of the U.S Fleet, issued an order to keep the capture of U Boat 505 secret. He did not want the Nazis to realize that their code might be broken and therefore they would change it.

King also realized that his action was a violation of the Third Geneva Convention, relative to the treatment of prisoners, issued on July 27, 1929. His order meant that the Red Cross was not informed of the capture or the identities of the German prisoners.

This convention states in Article 36, "Within a period of not more than a week after his arrival at the camp, and likewise in the case of sickness, every prisoner shall be entitled to write his family a postal card informing it of his capture and of the state of his health." Though the German prisoners were well treated, they were isolated from other prisoners and unable to communicate with their family, as the Third Convention required, or with the Red Cross. King's action succeeded in keeping the secret: the German Navy informed the families of the crew of the U Boat that the men must be considered dead.

Admiral King clearly had violated the 1929 Convention in order to reduce the Nazi threat and thus safeguard national security and help win the war. The essential issue is whether the achievement of a highly important objective, not disclosing the capture of the German code machines, justified the violation. In making his decision, Admiral King in no way can be considered as having committed a grave breach of the Convention or as a "war criminal." Indeed, the 1929 Convention does not establish violations of its provisions as war crimes.

The two Conventions are similar in many ways. But unlike the rules of the 1929 Convention, the August 12, 1949 Fourth Geneva Convention, relative to the protection of civilian persons in time of war, may involve criminal liability. Critics of Israel argue that Israel has violated the 1949 Convention and is therefore guilty of international crimes. Considering that the U.S. was not rebuked for Admiral King's breach of the 1929 Convention, one may question the determination of Israel's critics to have Israel not only rebuked but punished for alleged violations of the 1949 Convention. The issues are similar. King's order was based on life and death security issues. Israel's decisions on the West Bank also pertain to security concerns.

Nevertheless, resolutions, coming the various United Nations bodies, especially the UN General Assembly and the UN Human Rights Council are all based on alleged violations of one article of the Fourth Geneva Convention of 1949. This article 49 (6) states, "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." The unremitting criticism of Israeli settlements since 1967 has been based on this one legal argument.

For the most part the criticism of those settlements, that they are illegal or illegitimate, is wholly political rather than legal. It is the starting point for the more extreme argument for the elimination of the Jewish State. Nevertheless, it is useful to discuss the validity of the legal argument for opposition to the settlements.

That opposition is faulty on many grounds. The 1949 Convention is concerned with the forced deportation or transfer of people for political or racial reasons or for colonization of territories. First, it is eminently clear that the settlements, whether justified or unhelpful, are not illegal under any international law since they stem from voluntary movement of people, not forced transfers or deportations. They are not intended to displace anyone, nor are they manifestations of colonization. In no way do they prevent or violate any Palestinian right to self-determination. Buildings do not affect the future status of the areas. Nor are they a real obstacle to the necessary peace negotiations, in spite of proclamations to the contrary of Palestinian leaders.

There are two aspects that challenge the Palestinian and the UN use of Geneva 4. The first is that the land on which the settlements exist is disputed territory, the resolution of which must come from the final status negotiations. Though international resolutions simply refuse to accept the fact, the disputed land was not under any previous legitimate sovereignty of a state. Simply put, the West Bank had no internationally recognized legal sovereign power prior to 1967. Jordan had indeed "annexed" the territory, but this was not internationally recognized.  Therefore logically, the areas of the settlements may have had Arab residents but are not "occupied territories."

Jews have settled in the area of Palestine in accordance with the League of Nations Mandate given to Britain in 1922. Article 6 states, "The Administration of Palestine ...shall facilitate Jewish immigration under suitable conditions...and shall encourage close settlement by Jews on the land, including state lands not required for public use." Jews therefore settled on the land, except during the Jordanian occupation of the West Bank, 1948-67; the sale of land to Jews was a capital offense.

The settlements are of various kinds. Some involve the voluntary return of individuals to areas from which they were ejected by Arabs, areas such as Hartuv, established in 1883, Ne'ev Yaakov in 1924. Kfar Etzion in 1927, and Hebron from historic times. This historic Jewish presence in the area belies the fantasy argument of some Palestinian leaders that current Palestinians are descendants of the original inhabitants of the area, Canaanites, or Jebusites, or Philistines, and that they were in Jericho 3,000 years before Joshua. And last but not least, some settlements were established for military reasons of security, actions that parallel the 1944 U.S. decision on the U Boat crew.

Aside from the fact that the Israeli settlements do not in themselves constitute a violation of the Geneva Convention, it is not unreasonable to see the parallel between the two cases. Admiral King's decision in 1944  violated the 1929 and was not held accountable because it was justified on the grounds of national security. Similarly, Israel ought not to be punished when it acts to preserve its national security.

Michael Curtis is author of Jews, Antisemites, and the Middle East.