The Legal Consequences of Faits Accomplis

Abstract

This paper discusses the legal consequences following the transfer of settlers into occupied territories more precisely the dichotomy between the rights of settlers the rights of protected persons victims. At the heart of the matter are the questions: What to do with settlers transferred into occupied territories in the post-conflict period? Should settlers be removed from the territory where they were transferred to allow victims to access restitution? In the alternative, should settlers be considered to have acquired a de facto ‘right to stay’ or a right not to be expelled under international human rights law the principle of humanity? Do settlers have rights? Do all settlers have the same rights? There is no consensual answer to these sensitive questions where proposed solutions vary on a spectrum from collective expulsion to the unconditional integration of settlers. Emerging from a case analysis is an international response to settler transfer that is complaisant of fait accompli resulting in a balance tilting in favor of the status quo to the not infrequent detriment of protected victims’ rights. This article attempts to reconcile conflicting rights by proposing a response framework cognizant of all relevant branches of international law.