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

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.