No: Airbnb has no choice to com­ply with as­pects of in­ter­na­tional law

Lodi News-Sentinel - - OPINION - JOHN B. QUIGLEY

Airbnb, the com­pany that con­nects trav­el­ers with tem­po­rary hous­ing, has an­nounced that it will no longer list hous­ing in Is­raeli set­tle­ments in the Pales­tinian West Bank.

In a press state­ment, Airbnb ex­plained that it had stud­ied care­fully the sta­tus of the West Bank, which is ter­ri­tory of Pales­tine oc­cu­pied by Is­rael.

“We con­cluded,” states the com­pany, “that we should re­move list­ings in Is­raeli set­tle­ments in the oc­cu­pied West Bank that are at the core of the dis­pute be­tween Is­raelis and Pales­tini­ans.”

Airbnb had 200 list­ings of avail­able tem­po­rary hous­ing in the West Bank. The com­pany’s con­cern that it was tak­ing a side in a dis­pute of in­ter­na­tional sig­nif­i­cance is based on a long-stand­ing view of the United States and other coun­tries.

A com­mis­sion ap­pointed to study the mat­ter and chaired by for­mer U.S. Sen. Ge­orge Mitchell, D-Maine, con­cluded in 2001 that “the freez­ing of Is­raeli set­tle­ment ac­tiv­ity” was nec­es­sary if there was to be a hope of a ne­go­ti­ated Is­rael-Pales­tine peace. The set­tle­ments, more­over, are con­sid­ered il­le­gal by the in­ter­na­tional com­mu­nity.

The Fourth Geneva Con­ven­tion of 1949 for­bids a state that takes ter­ri­tory in war­fare to plant its own peo­ple there. Is­rael took the West Bank in war­fare in 1967. At that time, Is­rael’s gov­ern­ment con­sulted its own le­gal ad­viser, Theodor Meron, to see whether it would be le­gal to set up set­tle­ments in the West Bank. In a for­mal opin­ion let­ter, Meron replied that civil­ian set­tle­ment “con­tra­venes ex­plicit pro­vi­sions of the Fourth Geneva Con­ven­tion.”

Ig­nor­ing Meron, Is­rael helped thou­sands of Is­raelis set­tle in the West Bank. That posed a prob­lem for the United States, which gives Is­rael aid. Were we help­ing Is­rael do some­thing il­le­gal?

In 1978, mem­bers of Congress asked the White House if the set­tle­ments were le­gal. Her­bert Hansell, le­gal ad­viser to the Depart­ment of State, wrote back that “the es­tab­lish­ment of the civil­ian set­tle­ments in those ter­ri­to­ries is in­con­sis­tent with in­ter­na­tional law.”

Hansell ex­plained, “Ter­ri­tory com­ing un­der the con­trol of a bel­liger­ent oc­cu­pant does not thereby be­come its sov­er­eign ter­ri­tory.”

That is the con­sis­tent view in­ter­na­tion­ally.

In 2004, the In­ter­na­tional Court of Jus­tice said the set­tle­ments are il­le­gal.

In 2016 the United Na­tions Se­cu­rity Coun­cil said they are “a fla­grant vi­o­la­tion un­der in­ter­na­tional law and a ma­jor ob­sta­cle” to peace.

U.S. com­pa­nies like Airbnb that op­er­ate in­ter­na­tion­ally are sen­si­tive to be­ing on the wrong side of the law.

The set­tle­ments would not be so harm­ful if they were small. But over three quar­ters of a mil­lion Is­raelis have been set­tled. They take up ter­ri­tory that Pales­tine needs to be vi­able as a state.

That is why, as Airbnb says, the set­tle­ments are cen­tral to the over­all Pales­tinian-Is­raeli dis­pute.

As a vi­o­la­tion of laws of war­fare, the es­tab­lish­ment of set­tle­ments in oc­cu­pied ter­ri­tory is not only il­le­gal for gov­ern­ments, it is a crime for in­di­vid­ual per­sons. The treaty es­tab­lish­ing the In­ter­na­tional Crim­i­nal Court at the Hague lists var­i­ous acts that con­sti­tute war crimes. The act of trans­fer­ring civil­ians into oc­cu­pied ter­ri­tory is on the list.

The In­ter­na­tional Crim­i­nal Court’s pros­e­cu­tor in fact is cur­rently col­lect­ing ev­i­dence with a view to lev­el­ing in­dict­ments against per­sons, pre­sum­ably Is­raeli of­fi­cials, for the West Bank set­tle­ments.

At the Hague court, crim­i­nal li­a­bil­ity falls not only on di­rect per­pe­tra­tors of war crimes, but on ac­com­plices as well.

This meant that Airbnb ex­ec­u­tives were in jeop­ardy for be­ing com­plicit with the Is­raeli of­fi­cials who pro­mote set­tle­ments. Airbnb, by list­ing set­tle­ment prop­er­ties as sites for hous­ing, was ben­e­fit­ing fi­nan­cially and was help­ing Is­rael’s set­tlers fi­nan­cially, thereby so­lid­i­fy­ing the set­tle­ments. Airbnb un­der­stand­ably does not want its ex­ec­u­tives to have to worry about go­ing to jail.

Is­rael has re­sponded to Airbnb with threats to hurt its busi­ness else­where. Is­rael would do bet­ter to take a hard look at its own be­hav­ior.

A grad­u­ate of Har­vard Univer­sity’s Law School, John B. Quigley is dis­tin­guished 7 pro­fes­sor of law at Ohio State Univer­sity’s Moritz Col­lege of Law. Read­ers may write him at Moritz, 55 W. 12th Street, Colum­bus, OH 43210.

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