The mass death and devastation of the Gaza conflict have understandably overshadowed events in the West Bank. But even if the scale of violence pales in comparison to Gaza, the actions of both the Israeli government and settlers—especially U.S. citizens—in the West Bank implicate U.S. legal obligations in ways that merit greater attention from Washington.
Even prior to Hamas’s October 7th attack on Israel, 2023 was an extraordinarily violent year in the West Bank. But after Hamas’s massacre, violence against and displacement of Palestinians in the West Bank surged. Israeli soldiers and, in some cases, settlers have killed 367 Palestinians in the West Bank between October 7th, 2023 and January 29th, 2024, bringing the total killed in occupation and conflict related violence in 2023 to 507 and making it the deadliest year since 2005 when UN OCHA began tracking deaths.
The Biden administration has belatedly begun to act to address Israeli violence against civilians in the West Bank, including by imposing visa bans on settlers involved in attacks on Palestinians and reportedly seeking to prevent Israel from distributing U.S.-origin weapons to settlers. Most recently, the White House announced financial sanctions against four Israeli settlers who allegedly perpetrated violent attacks on Palestinians in the West Bank as well as against Israeli activists. But the increased violence and displacement in the West Bank (particularly when perpetrators are U.S. citizens and thus unaffected by any visa ban) also raises questions regarding the international law applicable to the territory and its inhabitants. In a joint statement on settler violence in the West Bank, Australia, Belgium, Canada, Denmark, the European Union, Finland, France, Ireland, Luxemburg, the Netherlands, Norway, Spain, Sweden, Switzerland, and the United Kingdom, reminded Israel of its obligations under the Geneva Convention Relative to the Protection of Civilians in Time of War of August 12, 1949 (Fourth Geneva Convention), specifically reiterating their position that Article 49 prohibits Israeli settlements in the territory.
In contrast to these countries, the United States under the Biden administration has thus far resisted taking a public position on whether this treaty applies to the West Bank. This position of legal ambiguity is inadvisable given the United States’ obligations under domestic and international law, including to ensure respect for Convention and to punish grave breaches of the Convention, as well as the administration’s own stated policies. Even if the Israeli-Palestinian conflict will eventually be resolved through negotiations (which remains U.S. policy), unequivocally stating that the Fourth Geneva Convention applies to territories occupied by Israel could signal that until an agreement is reached, the United States recognizes legal limits on Israel’s treatment of Palestinians in Gaza and the West Bank.
The Fourth Geneva Convention
The Fourth Geneva Convention applies per the terms of Article 2 (common to all four of the Geneva Conventions) both in situations of armed conflict between High Contracting Parties and also “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”
Under Article 42 of the 1907 Hague Regulations (which reflects customary international law), “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” As indicated by Common Article 2 of the Fourth Geneva Convention, occupation can occur even when there is no armed resistance. The assessment of whether territory is occupied is an objective one and does not rest on the subjective belief of parties to the conflict. It is a fact-dependent determination based on: 1) the displacement of the authority of the incumbent government; and 2) the ability of the hostile armed force to exercise effective control over the territory, no matter how that exercise of control is labelled.
Article 4 of the Fourth Geneva Convention defines the category of “[p]ersons protected by the Convention.” As a general matter:
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Such “protected person” status entitles an individual to certain protections specified in the Convention. The treaty also identifies specific violations committed against protected persons as grave breaches (i.e. war crimes) including willful killing, torture or inhuman treatment, and the unlawful deportation or transfer or unlawful confinement of a protected person and requires parties to the Convention to prosecute or extradite perpetrators of grave breaches.
The Fourth Geneva Convention imposes a number of specific obligations on occupying powers regarding occupied territory and its population. Of particular note, Article 49(6) provides that “[t]he Occupying Power shall not . . . transfer parts of its own civilian population into the territory it occupies.”
In addition, Article 1, also common to all four of the Geneva Conventions, obligates the parties to “respect and ensure respect for the present Convention in all circumstances.” U.S. views on the nature of the obligation to “ensure respect” have shifted over the years. At times, the United States has espoused a “horizontal” interpretation of “ensure respect” wherein parties are obligated to take steps to ensure that other parties to the Convention respect it. Thus, in 1973 the United States took the position that Common Article 1 was
“[Intended to put upon each of the Contracting States a commitment to insist that the Conventions be respected by other Parties. In our view, States Parties to the Conventions are under a duty to exercise their moral suasion and influence in order to induce Parties to a conflict to respect the Conventions.”
And in 1990, the United States joined a unanimous U.N. Security Council in voting for Resolution 681, which called “upon the high contracting parties to the Fourth Geneva Convention 1949 to ensure respect by Israel, the occupying Power [in the Palestinian territories], for its obligations under the Convention in accordance with article 1 thereof.”
More recently, the United States has taken a narrower view of the obligation to “ensure respect.” In a 2016 speech to the American Society for International Law, the Legal Adviser of the Department of State, Brian Egan, rejected a broader, horizontal interpretation of the provision championed by the ICRC:
“Some have argued that the obligation in Common Article 1 of the Geneva Conventions to ‘ensure respect’ for the Conventions legally requires us to undertake such steps and more vis-à-vis not only our partners, but all States and non-State actors engaged in armed conflict. … [W]e do not share this expansive interpretation of Common Article 1 ….”
There is a historical foundation for this narrower view. Rather than imposing horizontal obligations vis-a-vis other parties, during the negotiations over the Conventions in 1949, the United States took the position that Common Article 1 imposes a vertical obligation with respect to the party’s own population. The United States endorsed the Norwegian reading of “ensure respect,” which “considered that the object of this Article was to ensure respect of the Conventions by the population as a whole.” In other words, the parties to the Geneva Conventions have obligations to respect the treaties not only regarding conduct by and attributable to the state itself, but also regarding private citizens in their population. Such an obligation regarding the “population as a whole” would cover situations like those in the Essen Lynching Case in which a mob of German civilians murdered captured British airmen held as POWs during the Second World War while their captors looked on. As discussed further below, even under the narrower, vertical interpretation of “ensure respect” the United States may have obligations regarding Israel-Palestine.
A Brief History of the United States’ Views on the Fourth Geneva Convention and the Occupied Territories
For decades, across administrations of both political parties, the U.S. government took the position that the Fourth Geneva Convention applied to the territories Israel seized and occupied in the 1967 War. This position was repeatedly espoused by U.S. officials, such as in remarks by U.S. Ambassadors to the United Nations, including in 1971 by then ambassador George H.W. Bush and in resolutions of the U.N. Security Council supported by the United States. The latter include Resolution 681 (1990), which urged the “Government of Israel to accept the de jure applicability of the [Fourth Geneva Convention] to all the territories occupied by Israel since 1967 and to abide scrupulously by the provisions of the Convention,” and Resolution 904 (1994), which affirmed the applicability of the [Fourth Geneva Convention] to the territories occupied by Israel in June 1967, including Jerusalem.”
The U.S. government’s reasoning underlying this position was publicly articulated in a 1978 opinion by the State Department Legal Adviser, Herbert Hansell. The Hansell opinion addressed not only the threshold issue of whether the Fourth Geneva Convention applied in all of the territories occupied in 1967 (yes), but also the specific and legally distinct question posed by members of Congress: whether Israeli settlements in these occupied territories were lawful (no). Hansell concluded Israeli settlements violated Article 49(6) of the Convention.
In doing so, Hansell explicitly rejected one of Israel’s key counter arguments that the treaty did not apply in the West Bank and Gaza because those areas were not the sovereign territories of Jordan and Egypt respectively (the states that controlled them prior to 1967) and thus that Israel was not occupying “territory of a High Contracting Party.” Hansell noted that “[p]rotecting the reversionary interest of an ousted sovereign is not [the relevant provisions’] sole or essential purpose; the paramount purposes are protecting the civilian population of an occupied territory and reserving permanent territorial changes, if any, until settlement of the conflict.” (After the UN General Assembly voted overwhelming to grant it non-members observer status, the “State of Palestine” acceded to the Geneva Conventions in 2014 and became a High Contracting Party under the terms of Article 2, even though neither Israel nor the United States recognize Palestine as a state with the capacity to accede to treaties.)
Clouding the picture somewhat, in 1981, the freshly inaugurated President Reagan casually remarked to reporters that the West Bank settlements were “not illegal.” But there is no indication that this was a carefully considered view that accounted for the U.S. government’s prior legal reasoning. Nor is it clear which settlements Reagan was referring to, as he seemed to equate Arab, Israeli, and Christian habitation in the West Bank. In any event, the United States under the Reagan administration later voted with a unanimous U.N. Security Council in Resolution 607 to reaffirm “once again the [Fourth Geneva Convention] is applicable to Palestinian and other Arab territories occupied by Israel since 1967, including Jerusalem.” Further, the Hansell opinion and its conclusions remained on the books at the State Department.
Following the 1993 Oslo Peace Accords, the U.S. Government generally refrained from publicly invoking the law of occupation with respect to Gaza and the West Bank. This posture may have partly resulted from the fact that after Oslo, the situation in parts of the West Bank was more complicated (at least on paper) in terms of Israeli control with the Palestinian Authority notionally exercising some government functions in Areas “A” and “B.” (Notably, Article 8 of the Fourth Geneva Convention bars protected persons from renouncing their rights under the treaty.) The avoidance of “law talk” regarding the occupied territories was also likely motivated by pragmatic considerations given the U.S. emphasis on resolving the Israeli-Palestinian conflict through bilateral negotiations that would necessarily entail compromise, which U.S. negotiators assumed would entail the annexation of major settlement blocs offset by land swaps, rather than through reference to inflexible, black letter rules of international law. Thus, instead of referring to settlements as illegal, U.S. officials often used the formulation “obstacles to peace.”
Nonetheless, through the Obama administration officials would acknowledge that the Hansell memo’s conclusion regarding the applicability of the Fourth Geneva Convention and the illegality of Israeli settlements, remained the legal position of the U.S. Government, including both the Secretary of State and the National Security Council’s Senior Director for the Middle East.
That was the case until the Trump administration, when in 2019 Secretary of State Pompeo repudiated the Hansell memo, at least with respect to the per se illegality of settlements in the West Bank. Pompeo however recognized that “legal conclusions relating to individual settlements must depend on an assessment of specific facts and circumstances on the ground.” As with the Trump administration’s recognition of Israeli sovereignty over the Golan Heights, Pompeo’s announcement on settlements represented a reversal of a longstanding U.S. legal position. Although Pompeo claimed that the Trump administration “carefully stud[ied] all sides of the legal debate,” like the decision on the Golan Heights, the State Department’s Office of the Legal Adviser did not publicly release any analysis supporting the volte face.
Thus far, the Biden administration has avoided taking an unequivocal position on whether the Fourth Geneva Convention applies in the West Bank and Gaza. Journalists have repeatedly queried the State Department on whether the Biden administration recognizes the application of the treaty to the West Bank. But the State Department has refused to provide a clear answer. In its recent argument before the International Court of Justice (ICJ), the United States again failed to directly state a position on the matter. In its oral presentation before the court in Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, a case prompted by the UN General Assembly’s request for an advisory opinion, the United States referred to the application of the Fourth Geneva Convention to occupied territory. The United States observed that the treaty “prohibits an occupying Power from transferring parts of its own civilian population into territory it occupies” and noted that in the proceedings before the ICJ, it “has been argued” that Israel had violated this prohibition. Despite the implications of these statements, the United States did not take the further step of explicitly stating that the treaty applied to the West Bank and Gaza much less endorse the view that Israel had violated Article 49(6).
The Problem with Equivocation
Developments in both the West Bank and Gaza make continued equivocation on the application of the Fourth Geneva Convention legally problematic. The United States has obligations under international and domestic law that turn on the question of whether the Convention applies. Increasing violence and displacement in the West Bank coupled with the prospect of renewed settlement activity implicate these obligations, as does the likelihood that Israel will be (if it is not already) an occupying power in Gaza under the United States’ own interpretations of occupation law. (Whether Gaza remained occupied by Israel following the 2005 withdrawal is contested. Although the ICRC takes the position that Israel was still the occupying power despite the absence of boots on the ground, this view is not universal. Regardless, on the basis of a more conservative interpretation, the displacement of Hamas and return of Israeli ground forces exercising some measure of control during Operation Swords of Iron seems likely to meet the standard for occupation, in at least some areas of Gaza.)
Under the traditional U.S. legal position (i.e., that the Fourth Geneva Convention applies to the West Bank), the United States has responsibilities to “ensure respect” for the Fourth Geneva Convention in the West Bank, even under its narrower, vertical interpretation of Common Article 1. U.S. citizens living as settlers in the West Bank reportedly played a key role in recent violence against and displacement of Palestinians. Under the reading of “ensure respect” that the United States endorsed during the negotiation of the treaty in 1949, the United States has a responsibility to ensure that its own citizens respect the Convention. (In 1994, The United States joined a unanimous Security Council in Resolution 904 calling upon Israel as “the occupying Power, to continue to take and implement measures, including…confiscation of arms, with the aim of preventing illegal acts of violence by Israeli settlers.”)
Although visa bans are not an available tool against U.S. citizens, the U.S. government should assess what other options it has to ensure that U.S. citizens in the West Bank are respecting the Fourth Geneva Convention. One such measure – criminal prosecution—is also implicated by a separate provision of the Convention, Article 146 relating to grave breaches. Article 146 requires parties to the Convention to prosecute or extradite perpetrators of grave breaches regardless of their nationality. If U.S. citizens commit acts of violence against Palestinians in the West Bank, the U.S. may therefore have overlapping treaty obligations—i.e., responsibilities under both Common Article 1 and Article 146—to prosecute them if the acts amount to grave breaches.
The obvious domestic legal mechanism for such a prosecution is the War Crimes Act, which criminalizes grave breaches as a matter of U.S. domestic law. (The act provides for jurisdiction over certain offenses committed by or against U.S. nationals, and as a result of a 2022 amendment, jurisdiction regardless of nationality if the defendant is present in the United States.) The Department of Justice recently announced the first ever indictment under this long dormant statute–with the charges all based on alleged grave breaches in occupied territory against a protected person. In this indictment, the underlying offenses—unlawful confinement, torture, and inhuman treatment—were allegedly committed by Russian military personnel in occupied Ukraine against a U.S. national. But in announcing the charges, Attorney General Garland stated that the Department of Justice was investigating crimes committed by Hamas against Americans during its October 7th attack—though he did not specify whether these were war crimes or other federal offenses. A decision by the Department of Justice to pursue war crimes charges against Hamas fighters would further highlight the United States’ broader obligations with respect to grave breaches committed in Israel-Palestine, particularly regarding U.S. national perpetrators.
The United States not only has binding treaty obligations implicated in the application of the Fourth Geneva Convention in the West Bank; as I have argued previously, the President has a relevant constitutional responsibility as well. The Constitution requires the President “take Care that the Laws be Faithfully executed.” Ed Swaine and I have separately contended that the “Laws” for the purposes of the Take Care Clause include treaties. Derek Jinks and David Sloss have also explained that the “Laws” specifically include the Geneva Conventions. Under this view, as a result of the Fourth Geneva Convention being a “Law,” the President is constitutionally obligated to faithfully execute its provisions relating to ensuring respect for the treaty and the prosecution of grave breaches, including but not limited to those perpetrated by U.S. citizens.
Sending a Signal
Along with other actions taken by the Trump administration, such as Trump’s recognition of Israeli sovereignty over the Golan Heights and his administration’s sanctions against personnel of the International Criminal Court in part due to its activities regarding Israel (the latter of which was reversed promptly under Biden), Pompeo’s repudiation of the Hansell opinion may have further signaled to Israel that the United States views Israel as being above international law. Together with its more recent and effectively unconditional U.S. military support to Israel and the diplomatic cover it has provided to Israel at fora like the United Nations, the Biden administration’s refusal to clearly articulate the application of the Fourth Geneva Convention to territory occupied by Israel has likely further reinforced a sense of impunity.
Continued equivocation is not only problematic from the perspective of the United States’ own commitments to uphold its treaty obligations – which require clarity and transparency about what those obligations are—but is at cross purposes with the Biden administration’s expressed policy objectives. The mantra-like recitation by administration officials of the importance of Israel complying with international humanitarian law rings hollow for many reasons, but particularly so if the U.S. government won’t decide on or publicly acknowledge the applicable law.
Further, in the wake of Hamas’ October 7th attack, President Biden has proclaimed a renewed U.S. “resolve to pursue [a] two-state solution.” Even if this goal seems highly aspirational at the moment, the continued violence, displacement, and settlement activity in the West Bank render it only more difficult to achieve. If the United States were to publicly announce that the Fourth Geneva Convention applies to territory in the West Bank (and potentially now parts of Gaza even under a conservative interpretation of occupation law), it could help signal to Israel that there are in fact legal limits on its conduct in these territories. Even in a world in which the conflict will ultimately be settled by negotiation, affirming the applicability of the Fourth Geneva Convention shows that until Israel reaches an agreement with the Palestinians, the United States will not accept unilateral decisions from Israel about the status of territory and treatment of Palestinian populations in Gaza and the West Bank.
Conclusion
The Biden administration has compelling legal and policy rationales for clearly articulating whether the Fourth Geneva Convention applies to territories occupied by Israel. The United States’ own legal obligations turn on the application of the treaty. Insisting on compliance with the Convention could at least signal Washington’s frustration with some of the worst of the ongoing abuses in the West Bank, and beyond recent U.S. sanctions, could put a dent into the apparent sense that settler violence can continue with impunity. Although continued evasion may seem the path of least resistance and hence the most attractive policy option, the legal and policy arguments presented here suggest that it is time for the United States to get off the fence and make its position clear.
