International law and Israeli settlements
The international community considers the establishment of Israeli settlements in the Israeli-occupied territories illegal under international law, because of the Fourth Geneva Convention of 1949 which states: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."[a][b][c][d][e] Israel maintains that it is not in violation of the Fourth Geneva Convention since, in its view, Israeli citizens were neither deported nor transferred to the territories, and they cannot be considered to have become "occupied territory" since there had been no internationally recognized legal sovereign prior.[f] The United Nations Security Council, the United Nations General Assembly, the International Committee of the Red Cross, the International Court of Justice and the High Contracting Parties to the Convention have all affirmed that the Fourth Geneva Convention does apply.[g][h]
Numerous UN resolutions and prevailing international opinion hold that Israeli settlements in the West Bank, East Jerusalem and the Golan Heights are a violation of international law, including UN Security Council resolutions in 1979, 1980, and 2016. UN Security Council Resolution 446 refers to the Fourth Geneva Convention as the applicable international legal instrument, and calls upon Israel to desist from transferring its own population into the territories or changing their demographic makeup. 126 Representatives at the reconvened Conference of the High Contracting Parties to the Geneva Conventions in 2014 declared the settlements illegal as has the primary judicial organ of the UN, the International Court of Justice and the International Committee of the Red Cross.
The position of successive Israeli governments is that all authorized settlements are entirely legal and consistent with international law. In practice, Israel does not accept that the Fourth Geneva Convention applies de jure, but has stated that on humanitarian issues it will govern these areas de facto by its provisions, without specifying which these are. The majority of legal scholars hold the settlements to violate international law, while others have offered dissenting views supporting the Israeli position. The Israeli Supreme Court itself has never addressed the issue of the settlements' legality.
Shortly after independence, the Israeli Supreme Court ruled that the fundamental principles of international law, accepted as binding by all civilized nations, were to be incorporated in the domestic legal system of Israel. In the aftermath of the 1967 Six-Day War, Israel occupied the Sinai Peninsula, the Gaza Strip, West Bank and Golan Heights. Theodor Meron, at the time the Israeli government's authority on the topic of international law and legal counsel to the Israeli Foreign Ministry, was asked to provide a memorandum regarding the status in international law of proposed settlement of the territories, which he subsequently addressed to the Foreign Minister Abba Eban on 14 September 1967. He concluded that short-term military settlements would be permissible, but that "civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention," adding that the prohibition on any such population transfer was categorical, and that "civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention." It follows from the presence on files of these notes, Gershom Gorenberg argues, that the Prime Minister at the time, Levi Eshkol, knew that Israeli settlements in the territories Israel had just occupied would violate international laws and that by that time Eshkol had been actively engaged in exploring the possibility of settling the newly conquered region. Meron's unequivocal legal opinion was marked top secret and not made public.
The Israeli government proceeded to authorise the construction of military settlements for security purposes. They were built on the fringes of the territories, along the Jordanian and Syrian frontiers and along the edges of the Sinai Peninsula. Israel announced that it accepted Security Council Resolution 242 and was ready to negotiate with each Arab state on each element in that resolution. Abba Eban told George Ball Israel was willing to return "most of the West Bank" to Jordan. Egypt and Jordan demanded simultaneous negotiations and withdrawal, with Jordan's King Hussein suggesting that if negotiations did not achieve peace within six months or a year, the withdrawn Israel troops could reoccupy the West Bank and make a separate peace treaty with the Palestinians.[i] Levi Eshkol informed Washington it would return Syrian and Egyptian territory in exchange for peace, but there was no mention of returning the West Bank, though secret talks with Jordan did take place over possible forms of accommodation between the two countries regarding it. In the meantime, with government permission granted, Kfar Etzion was re-established in September 1967, becoming the first civilian settlement to be built in the West Bank. During the 1970s, Israel's Supreme Court regularly ruled that the establishment of civilian settlements by military commanders was legal on the basis that they formed part of the territorial defense network and were considered temporary measures needed for military and security purposes. After Likud came to power in 1977, using land on the basis of the 1907 Hague Regulations, which implied a temporary nature of Israeli presence, was not employed anymore as the new government declared land in the West Bank "state land".
In 1978 and 1979 the Israeli Supreme court, prompted by the new government policies, ruled on two important cases that set out the requirements for Israeli settlement legality under international law. In Ayauub et al. vs. Minister of Defence (the Beit-El Toubas case), the Court determined that the Hague Conventions but not the Geneva Conventions could be applied by Israeli courts on land and settlement issues in the occupied territories. The following year the Court ruled on Dwikat et al. vs. the Government of Israel (the Elon Moreh case), outlining the Hague Conventions' limitations on Israeli land acquisition and settlements. Settlements, whether on private or public land, could not be considered permanent, nor could the land be permanently confiscated, only temporarily requisitioned. Settlements on private land were legal only if determined to be a military necessity; the original owner retained title to the land and must be paid rental fees for its use. Public lands' possession cannot be alienated, nor its basic character transformed.
Status of the territories
- "East Jerusalem"—Jerusalem and its surroundings were envisioned as an international area under United Nations administration in the 1947 partition plan, which was accepted by the Jewish public but rejected by all Arab nations. In 1948, Jordan captured and annexed the eastern half of Jerusalem, while Israel captured and annexed the west. Following the Six-Day War in 1967, Israel annexed the eastern part, together with several villages around it. In 1980 the Israeli Knesset passed the Jerusalem Law stating that "Jerusalem, complete and united, is the capital of Israel".
- The Israeli Golan Heights Law of 1981 applied Israel's "laws, jurisdiction and administration" in the Golan Heights, captured from Syria in 1967. The public viewed the move as an annexation, but the law itself refrained from using the term officially.
- The Gaza Strip and West Bank form part of the areas offered by the UN to a prospective Arab state of Palestine in the Partition Plan, which was rejected by the Arabs. From 1948 until 1967, The Gaza Strip was occupied by Egypt and the West Bank was annexed by Jordan. Together with the annexation of East Jerusalem mentioned above, Jordan's annexation of the West Bank was not recognized internationally. Since 1967, the West Bank has been under military occupation. Gaza was also occupied in 1967, but after Israel's unilateral disengagement in 2005 the status has become disputed, with conflicting opinions on whether or not the occupation has ended.[j]
The Jerusalem Law and the Golan Heights Law have both been deemed illegal by the UN Security Council (resolutions 478 and 497 respectively), and are not recognized by the international community. The United States abstained from the vote on Resolution 478 and the U.S. Congress passed the Jerusalem Embassy Act, altering key passages to avoid a presidential veto, recognizing Jerusalem as the capital of Israel. The provisions of the law to implement a move of the embassy can be deferred or blocked by the exercise of an Executive waiver. The U.S. views that parts of Jerusalem are not in Israel[k] and the official U.S. position is that the status of Jerusalem must be resolved in negotiations. The EU views that Jerusalem is a corpus separatum, and the United Nations considers Israel's proclamation of Jerusalem as its capital to be "null and void".
Israel has signed peace treaties with Egypt (removing all Israeli settlements and returning the Sinai Peninsula to Egyptian sovereignty), and Jordan (returning small sections to Jordanian sovereignty); there are currently no peace treaties governing Israel's borders related to the West Bank, the Gaza Strip, and the Golan Heights. Israel therefore asserts that the armistice lines (known as the Green Line)
Defining The International Criminal Court's Rome Statute provisions about transfer of civilians was complicated by Israel's position, since Israel felt it was being targeted. As formulated it states that one type of offence occurs when the perpetrator transfers "directly or indirectly" a portion of its own population into an occupied territory, stipulating that "transfer" must be understood "in accordance with the relevant provisions of international law." Israel initially voted against the Statute because of this passage, but later, in December 2000, signed it, only to declare in June 2002, that it had no intention of ratifying it.
International legal opinions
At present, based on the result of numerous UN resolutions that cite Article 49 of the Geneva Convention, the consensus view of the international community is that Israeli settlements are illegal and constitute a violation of international law.[l][m] According to the BBC, every government in the world, except Israel, considers the settlements to be illegal.[n]
Since the occupation of the West Bank in 1967, numerous United Nations resolutions, including 446, 452, 465, 471 and 476 affirm unambiguously that Israel's occupation is illegal, and, since Resolution 446 adopted on 22 March 1979, have confirmed that its settlements there have no legal validity and pose a serious obstacle to peace.
In 2004, an advisory opinion by the primary judicial organ of the UN, the International Court of Justice, also found the settlements to be illegal under international law. The court's finding was based on the provisions of the Fourth Geneva Convention and UN Security Council resolutions that condemned the establishment of settlements and attempts by Israel to alter the demographics of the territories under its control. The United Nations General Assembly, which regards itself as having a chief role in the process of the codification of international law, has passed several resolutions with an overwhelming majority that denounce settlements as being illegal. The United Nations Human Rights Council has also called the Israeli settlements and related activities a violation of international law.
According to records of the 1998 meeting of Committee on the Elimination of Racial Discrimination, Theo van Boven said
The status of the settlements was clearly inconsistent with Article 3 of the Convention, which, as noted in the Committee's General Recommendation XIX, prohibited all forms of racial segregation in all countries. There is a consensus among publicists that the prohibition of racial discrimination, irrespective of territories, is an imperative norm of international law.
It has been observed that a double standard appears to apply with regard to Israel's violations of UN resolutions and comparable violations by some other countries. Whereas the UNSC resolutions 660 and 687 regarding Iraq's Invasion of Kuwait and the UNSC 1441 before the Gulf War demanded Iraq's immediate withdrawal from land it occupied belligerently, and regarded as a casus belli its putative recourse to a programme for building weapons of mass destruction, Israel, though occupying a foreign territory and reputedly having an atomic arsenal, was treated differently. The difference lies in the fact that UN Security Council resolutions against Israel are widely thought to be passed under Chapter VI of the United Nations Charter and are non-binding, being concerned with disputes that are to be resolved peacefully, whereas in the case of Iraq, the resolutions were passed under Chapter VII of the United Nations Charter, which are legally binding. Resolution 242 however, while often thought to have been introduced within the framework of Chapter 6, was considered by both the Arab States and Russia at the time to be binding.
International Court of Justice
In 2004, an advisory opinion by the International Court of Justice concluded that Israel had breached its obligations under international law by establishing settlements in the West Bank, including East Jerusalem and that Israel cannot rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of imposing a régime, which is contrary to international law. The Court also concluded that the Israeli régime violates the basic human rights of the Palestinians by impeding the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens) and their exercise of the right to work, to health, to education and to an adequate standard of living.[o]
International Committee of the Red Cross
The International Committee of the Red Cross (ICRC) holds that the establishment of Israeli settlements violate Fourth Geneva Convention.[p][q] The ICRC also holds that the displacement of Palestinians that may occur due to the settlements also violates Article 49 of the Fourth Geneva Convention.[r]
An opinion by a legal adviser to the U.S. Department of State found the settlements contrary to international law in 1978. In early 1978, Legal Adviser of the Department of State Herbert J. Hansel issued an opinion, on request from Congress, that creating the settlements "is inconsistent with international law", and against Article 49 of the Fourth Geneva Convention.. Hansell found that "[w]hile Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for the reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with international law." This opinion, "has neither been revoked or revised", remains the policy of the United States, and has been stated by Secretary of State John Kerry, The Johnson, Nixon, Ford, Carter, and Obama administrations all publicly characterized the settlements as illegal.
The United States has never voted in favor of any UN Resolution calling the settlements illegal except for Resolution 465 in 1980, and in that case the Carter administration subsequently announced that the vote had been cast in error[s] due to miscommunication and would have abstained as it had for Resolution 446 and Resolution 452. Three US Ambassadors to the UN have stated that Israeli settlements are illegal: George H. W. Bush (later US president) on September 25, 1971, William Scranton on May 25, 1976, and Samantha Power on December 23, 2016. Secretaries of State Cyrus Vance and John Kerry[t] also said the settlements were illegal.
In February 1981, Ronald Reagan announced that he didn't believe that Israeli settlements in the West Bank were illegal. He added that "the UN resolution leaves the West Bank open to all people, Arab and Israeli alike". Hoping to achieve a peace deal, he nevertheless asked Israel to freeze construction calling the settlements an "obstacle to peace". The permissive attitude taken by America accelerated the pace of Israel's settlement programme. Reagan's view on the settlements legality was not held by the State Department. The George H.W. Bush, Clinton, and George W. Bush administrations did not publicly comment on the legality of Israeli settlements, but spoke publicly against them. Since the Clinton administration, the U.S. has continued to object to the settlements, calling them "obstacles to peace" and prejudicial to the outcome of final status talks. Although President Barack Obama and diplomatic officials in his administration have stated, "the United States does not accept the legitimacy of continued Israeli settlements,"[u] in February 2011 the U.S. vetoed a Security Council resolution that would have declared the settlements illegal. In December 2016, the U.S. abstained on a Security Council Resolution that declared that Israeli settlements are illegal and deemed their continuing construction a "flagrant violation" of international law. In abstaining, U.S. Ambassador Samantha Power stated, "Today the Security Council reaffirmed its established consensus that the settlements have no legal validity. The United States has been sending a message that settlements must stop privately and publicly for nearly five decades."
The Israeli government's essential position is that rather than being "occupied territory," the West Bank is "disputed territory." Given that the Arab states prevented the formation of the sovereignty proposed by the 1947 partition resolution, Jordan's subsequent unrecognized annexation of the West Bank in 1950, as well as the fact that there has never been a Palestinian sovereignty in that territory, it has been posited that there is no legally recognized claim to who has sovereignty over the West Bank. The argument is one made by Meir Shamgar much earlier. Moreover, since the League of Nations Mandate for Palestine, with the intent to form a Jewish state between the sea and the Jordan river, included the area now known as the West Bank, Israel has at least as legitimate claim to the territory as any other state or group.
The Israeli notary Howard Grief argued that, according to Article 6 of The Anglo-American Treaty of 1924, Jewish Settlements are not illegal. The United States, he maintains, had accepted Palestine as the national home of the Jewish people, and not as the homeland of "a fictitious, non-existent entity, the Palestinian people." The Anglo-American Treaty of 1924 still has the force of law pursuant to Article 80 of the UN Charter by virtue of the 1969 Vienna Convention on the Laws of Treaties.
Israel considers its settlement policy to be consistent with international law, including the Fourth Geneva Convention, while recognizing that some of the smaller settlements have been constructed "illegally" in the sense of being in violation of Israeli law. In 1998 the Israeli Minister of Foreign Affairs produced The International Criminal Court Background Paper. It affirms in conclusion that
International law has long recognised that there are crimes of such severity they should be considered "international crimes". Such crimes have been established in treaties such as the Genocide Convention and the Geneva Conventions.... The following are Israel's primary issues of concern [ie with the rules of the ICC]: – The inclusion of settlement activity as a "war crime" is a cynical attempt to abuse the Court for political ends. The implication that the transfer of civilian population to occupied territories can be classified as a crime equal in gravity to attacks on civilian population centres or mass murder is preposterous and has no basis in international law.
Israel also argues that some of the settlements are built in areas where Jewish settlements existed before the 1948 Arab-Israeli War and violence prior, when many West Bank settlements were destroyed and the residents massacred or expelled, such as Hartuv, Kfar Etzion, Hebron, and the Jewish Quarter of Jerusalem, and therefore the application of the Geneva Convention is an entirely different issue.
Some argue that according to international law Israel is the custodian of absentee property in the West Bank and may not give it to settlers. In 1997 the Civil Administration's legal adviser gave his opinion:
The Custodian of Absentee Property in the West Bank is nothing but a trustee looking after the property so it is not harmed while the owners are absent from the area ... the custodian may not make any transaction regarding the asset that conflicts with the obligation to safeguard the asset as stated, especially his obligation to return the asset to the owner upon his return to the region.
Israel contends that the Geneva Convention only applies in the absence of an operative peace agreement and between two powers accepting the Convention. Since the Oslo Accords leave the issue of settlements to be negotiated later, proponents of this view argue that the Palestinians accepted the temporary presence of Israeli settlements pending further negotiation, and that there is no basis for declaring them illegal.
Israel has justified its civilian settlements by stating that a temporary use of land and buildings for various purposes appears permissible under a plea of military necessity and that the settlements fulfilled security needs. Yehuda Blum further argued in 1971 that United Nations Security Council Resolution 242 calls for "secure and recognized boundaries", and that neither the 1949 armistice demarcation lines, nor the 1967 cease-fire lines have proved themselves secure.
In 2002, the Israeli Ministry of Foreign Affairs reiterated that the settlements were being developed consistently with international law and that they did not violate any agreements with either the Palestinians or Jordan. They added that the settlements in the West Bank and Gaza Strip were recognised as legitimate by the Mandate for Palestine adopted by the League of Nations, and that the only administration that completely prohibited Jewish settlement was that of Jordan from 1948 to 1967. Regarding the Geneva Convention, they maintained that the Israeli government was not forcibly transferring its population into the territories. Neither had the land that was being settled been under the legitimate sovereignty of any state beforehand. It further highlighted that no clauses in the Convention could be used to prohibit the voluntary return of individuals to towns and villages from which they or their ancestors had been previously ejected by forcible means. It claimed the settlements had only been established after exhaustive investigations making sure none were built on private land.
Canada, agreeing with UN Security Council Resolutions 446 and 465, argues that the Fourth Geneva Convention applies to the occupied territories (the Golan Heights, the West Bank, East Jerusalem and the Gaza Strip) and that Israeli settlements are a violation of the Fourth Geneva Convention.
In 2009, British Foreign Secretary David Miliband called Israeli settlements "illegal". In December 2012, William Hague, the British foreign secretary stated that all Israeli settlements were "illegal under international law".
In 2003, The Non-Aligned Movement declared Israeli settlements as illegal, stating, "the main danger to the realization of the national rights of the Palestinian people and the achievement of a peaceful solution is the settler colonialism that has been carried out in the Occupied Palestinian Territory, including East Jerusalem, since 1967, through land confiscation, settlement building and the transfer of Israeli nationals to the Occupied Territory." In June 1980, the (then nine-member) European Economic Community declared in the Venice Declaration that "settlements, as well as modifications in population and property in the occupied Arab territories, are illegal under international law." The Organisation of Islamic Cooperation views settlements as "a blatant defiance of the international will, constitutes a flagrant violation of international law and relevant conventions, agreements and international legitimacy resolutions, and represents a manifest aggression on the rights of the Palestinian people to their land". In 2002 and again in 2012, The European Union expressed its view that the settlements are illegal. The human rights groups Amnesty International, Human Rights Watch and B'Tselem have reiterated their view that Israeli settlements as violations of international law.[v]. The Anti-Defamation League disagrees, asserting that the statement that "settlements are a violation of international law" is inaccurate, and providing activists with a list of responses for maintaining that they do not violate those laws.
Morris B. Abram, an American lawyer who was involved in drafting the Fourth Geneva Convention, argued that the convention "was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people." International law expert Julius Stone, Professor of Jurisprudence and International Law at the University of Sydney, and Eugene Rostow, Dean of Yale Law School, argued that the settlements are legal under international law, on a number of different grounds, among them that "settlements are the voluntary return of individuals in towns and villages from which they or their ancestors have been ousted.. Israel has valid claims to title in the territory based..on historic and religious connection to the land". Stone held that it was legal for Israel to establish Nahal settlements, necessary for military purposes along the ceasefire lines and in the Jordan Valley. The fact that they had been established to initiate profitable agriculture was of no legal concern. William M. Brinton, an American publisher with a background in international law, held that Israel was "at least quasi-sovereign with respect to both areas [the West Bank and Gaza Strip] under principles of customary international law", and deemed the settlements legal.
Almost all international lawyers and every state but Israel regard the Geneva Conventions as part of customary international law, implying all states are duty bound to observe them. Israel alone challenges this premise, arguing that the West Bank and Gaza are "disputed territories", and that the Conventions do not apply because these lands did not form part of another state's sovereign territory, and that the transfer of Jews into areas like the West Bank is not a government act but a voluntary movement by Israeli Jewish people, not acting under compulsion, a position contested by Yoram Dinstein.[w]
The International community has rejected Israel's unwillingness to accept the applicability of the Geneva Conventions to the territories it occupies.
Fourth Geneva Convention
There are two disputes regarding the Fourth Geneva Convention: whether the convention applies to the territories in question and whether the Convention forbids the establishment of Israeli settlements. Article 2 concerns the applicability of the Convention whereas article 49 concerns the legality of population transfers.
Article 2 extends the Convention to "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties" and "all cases of partial or total occupation of the territory of a High Contracting Party".
The applicability of the fourth Geneva Convention to "all the territories occupied by Israel in 1967" is held with "a remarkable degree of unanimity" among international actors. In a 2004 advisory opinion to the UN General Assembly, the International Court of Justice stated that Article 2 of the Convention applied to the case of Israel's presence in the territories captured during the 1967 war. It stated that Article 2 applies if there exists an armed conflict between two contracting parties, regardless of the territories' status in international law before the armed attack. It also argued that "no territorial acquisition resulting from the threat or use of force shall be recognized as legal" according to customary international law and defined by "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations" (General Assembly Resolution 2625).
At their July 1999 Conference, the States parties to the Fourth Geneva Convention issued a statement in which they "reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem". In December 2001, the High Contracting Parties to the Convention reaffirmed the "applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem". They further reminded the contracting parties, the parties to the conflict and the state of Israel as the occupying power, of their obligations under the Convention.
The International Committee of the Red Cross in a declaration of December 2001 stated that "the ICRC has always affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the state of Israel, including East Jerusalem".
The United Nations General Assembly has affirmed the applicability of the Convention to the Palestinian Territories in many resolutions. The United Nations Security Council has taken the same view. Security Council resolution 271 (1969) called upon "Israel scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation". Security Council resolution 446 (1979) affirmed "once more that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem".
The Supreme Court of Israel in a ruling of 30 May 2004 declared, "the military operations of the [Israeli Defence Forces] in Rafah, to the extent they affect civilians, are governed by Hague Convention IV Respecting the Laws and Customs of War on Land 1907 ... and the Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949." A further June 2004 Israeli Supreme Court ruling concerning the West Bank stated that "the point of departure of all parties – which is also our point of departure – is that Israel holds the Area in belligerent occupation (occupatio bellica)" and that the military commander's authority is "anchored in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949".
The official Israeli legal argument against the application of Article 2 to the situation in the West Bank is based on a 1971 interpretation, planned before the events of 1967, by Israeli Attorney-General, Meir Shamgar, who in his capacity as Military Attorney General in the early 1960s had already worked out legal textbooks and military kits for the IDF to cope with a situation where that organization might find itself in a position of an occupying power. His view was presented by Moshe Dayan in a speech before the 32nd session of the United Nations General Assembly in 1977. Shamgar believed that the Convention did not pertain to the territories captured by Israel since they had not previously been recognised as part of a sovereign state and could not be considered "the territory of a High Contracting Party".[x]
Shamgar further stated:
There is no rule of international law according to which the Fourth Convention applies in each and every armed conflict whatever the status of the parties.... The whole idea of the restriction of military government powers is based on the assumption that there has been a sovereign who was ousted and that he was a legitimate sovereign. Any other conception would lead to the conclusion, for example, that France should have acted in Alsace-Lorraine according to rule 42–56 of the Hague Rules of 1907, until the signing of a peace treaty.
The Israeli legal argument was dismissed by the International Court of Justice. The Court cited the Geneva Convention's travaux préparatoires, which recommended that the conventions be applicable to any armed conflict "whether [it] is or is not recognized as a state of war by the parties" and "in cases of occupation of territories in the absence of any state of war" as confirmation that the drafters of the article had no intention of restricting the scope of its application.[y]
Article 49 (1) states
Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Article 49 (6) states
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
According to Jean Pictet of the International Committee of the Red Cross, this clause intended to prevent the World War II practice of an occupying power transferring "portions of its own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories", which in turn "worsened the economic situation of the native population and endangered their separate existence as a race".
U.S. State Department Legal Advisor, Herbert J. Hansell, in a letter dated 1 April 1978, concluded that although Article 49 (1) prohibits forcible transfers of protected persons out of the occupied territory, "paragraph 6 is not so limited."
The view has been advanced that a transfer is prohibited under paragraph 6 only to the extent that it involves the displacement of the local population. Although one respected authority, Lauterpacht, evidently took this view, it is otherwise unsupported in the literature, in the rules of international law or in the language and negotiating history of the Convention, and it seems clearly not correct. Displacement of protected persons is dealt with separately in the Convention and paragraph 6 would seem redundant if limited to cases of displacement. Another view of paragraph 6 is that it is directed against mass population transfers such as occurred in World War II for political, racial or colonization ends; but there is no apparent support or reason for limiting its application to such cases.
Ths interpretation was adopted by the International Court of Justice in its 2004 advisory opinion, and 150 countries supported a non-binding General Assembly resolution demanding Israel to "comply with its legal obligations as mentioned in the advisory opinion".
David Kretzmer, Professor of International Law at Hebrew University of Jerusalem, has argued that it is "quite clear that by actively organizing or encouraging transfer of its own population into the occupied territory, an occupying power does indeed violate Article 49(6)".
Those who reject the application of Article 49 to the situation in the Israeli-held territories argue that even if the Convention did apply, it should be read only in the context of the World War II forcible migrations. It is only intended to cover forcible transfers and to protect the local population from displacement:
- Article 49 (1) specifically covers "individual or mass forcible transfers", whereas the Israelis who live in the settlements have moved there voluntarily.
- Article 49 (6) only applies when the transfer of the Occupying Powers civilian population involves the displacement of the local population, whereas the Israeli settlements are not intended to, or have ever resulted in, the displacement of Palestinians from the area.
In addition, they state that the Geneva Convention only applies in the absence of an operative peace agreement and between two powers accepting the Convention. Since the Oslo Accords leave the issue of settlements to be negotiated later, proponents of this view argue that the Palestinians accepted the temporary presence of Israeli settlements pending further negotiation, and that there is no basis for declaring them illegal.
On 5 December 2001, confirming earlier General Assembly statements, the conference of the High Contracting Parties to the Fourth Geneva Convention ruled that the Convention did apply in the Israeli-occupied territories, parties to the convention were obliged "to actively discourage activities that directly contribute to any construction or development of Israeli settlements in the Occupied Palestinian Territory, including Jerusalem, as these activities contravene international law", and called upon "the Occupying Power to fully and effectively respect the Fourth Geneva Convention in the Occupied Palestinian Territory, including East Jerusalem, and to refrain from perpetrating any violation of the Convention." The High Contracting Parties reaffirmed "the illegality of the settlements in the said territories and of the extension thereof". According to John B. Quigley, as signatory to the Geneva Convention, Israel's position that it does not apply to the West Bank and Gaza Strip because before its occupation those territories were not governed by a sovereign power, and therefore constitutes a different case, has been universally rejected "because the Convention also states that it applies 'in all circumstances' (Article 1), and 'to all cases of declared war or of any other armed conflict' (Article 2)". In practice, Israel does not accept that the Fourth Geneva Convention applies de jure, but has stated that on humanitarian issues it will govern itself de facto by its provisions, without specifying which these are.
Arguments based on UNSC Resolution 242 and the British Mandate
Rostow and others further argue that UN Security Council Resolution 242 (which Rostow helped draft) mandates Israeli control of the territories, and that the original British Mandate of Palestine still applies, allowing Jewish settlement there. In Rostow's view
The British Mandate recognized the right of the Jewish people to "close settlement" in the whole of the Mandated territory. It was provided that local conditions might require Great Britain to "postpone" or "withhold" Jewish settlement in what is now Jordan. This was done in 1922. But the Jewish right of settlement in Palestine west of the Jordan river, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors. And perhaps not even then, in view of Article 80 of the U.N. Charter, "the Palestine article", which provides that "nothing in the Charter shall be construed ... to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments...."
This right is based on Article 6 of the Mandate, which states: "The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish Agency referred to in Article 4, close settlement by Jews on the land, including State lands not required for public use". In addition, many Israeli settlements have been established on sites that were home to Jewish communities before 1948 such as Neve Yaakov, Gush Etzion, Hebron, Kalia, and Kfar Darom.
Contrary to this view other legal scholars have argued that under Articles 31 and 32 of the Vienna Convention on the Law of Treaties the only common sense interpretation of UNSC 242 is that Israel must withdraw from all of the territory captured in 1967, as any interpretation permitting the extension of sovereignty by conquest would violate the relevant governing principle of international law as emphasized in the preambular statement, i.e., "the inadmissibility of the acquisition of territory by war" as established through the abolition of the right of conquest by the League of Nations following World War I.
Furthermore, it is argued that UNSC 242 has binding force under Article 25 of the UN Charter owing to its incorporation into UN Security Council Resolution 338 and that it is also binding on Israel and the PLO by agreement owing to its incorporation into the Oslo Accords.
Others argue that the Oslo Accords supersede UNSC 242 rather than making it binding. The Declaration of Principles in the accords only state that future negotiations will "lead to the implementation of Security Council Resolutions 242 and 338".
Additionally, as the international community considered the status of Jerusalem to be unresolved, even after 1967, and did not deem any part of the city to be Israeli territory, including that part held since 1948, UNSC 242 did not settle territorial issues between Israel and Palestine left unresolved by the 1949 Armistice Agreements. Further, Sir Elihu Lauterpacht and others have argued that, because of the disorder in Palestine at the time, the territorial framework of the 1947 Partition Plan did not come into effect in such a way as to ipso jure grant Israel sovereignty over the territory allocated to the Jewish state under that plan. Stone agrees with Lauterpacht's analysis and his view that sovereignty was acquired through other means:
Lauterpacht has offered a cogent legal analysis leading to the conclusion that sovereignty over Jerusalem has already vested in Israel. His view is that when the partition proposals were immediately rejected and aborted by Arab armed aggression, those proposals could not, both because of their inherent nature and because of the terms in which they were framed, operate as an effective legal re-disposition of the sovereign title. They might (he thinks) have been transformed by agreement of the parties concerned into a consensual root of title, but this never happened. And he points out that the idea that some kind of title remained in the United Nations is quite at odds, both with the absence of any evidence of vesting, and with complete United Nations silence on this aspect of the matter from 1950 to 1967?... In these circumstances, that writer is led to the view that there was, following the British withdrawal and the abortion of the partition proposals, a lapse or vacancy or vacuum of sovereignty. In this situation of sovereignty vacuum, he thinks, sovereignty could be forthwith acquired by any state that was in a position to assert effective and stable control without resort to unlawful means.
Antonio Cassese and John McHugo disagree with this analysis. Cassese argues that although Israel's original occupation of West Jerusalem might have been carried out in an act of self-defense under Article 51 of the UN Charter, this did not confer legal title to the territory owing to the general prohibition in international law on the acquisition of sovereignty through military conquest. He further considers that "mere silence" could not constitute agreement by the United Nations to the acquisition of sovereignty by Israel or Jordan as a result of their de facto control of Jerusalem. Cassese concludes that "at least a tacit manifestation of consent through conclusive acts would have been necessary", whereas such relevant acts as did take place confirmed that no such consent to the transfer of sovereignty was given. For McHugo, Lauterpacht's view that the events of 1947-1948 left no trace for an orderly devolution of sovereignty does not allow one, in the light of Resolution 242, to infer that Israel was thereafter allowed to consolidate title in later conflicts. for:
the emphasis on the inadmissibility of the acquisition of territory by war in Resolution 242 is of general application and, in sharp contrast to the Withdrawal Phase, is not limited to territories occupied in "the refent conflict". Resolution 242 can thus be interpreted as preventing Israel from consolidating title over all territory taken by force at any time in the absence of a final peace settlement.
Arguments based on the cause of the war
It has been argued that Israel took control of the West Bank as a result of a defensive war. Former Israeli diplomat Dore Gold writes that:
The language of "occupation" has allowed Palestinian spokesmen to obfuscate this history. By repeatedly pointing to "occupation", they manage to reverse the causality of the conflict, especially in front of Western audiences. Thus, the current territorial dispute is allegedly the result of an Israeli decision "to occupy", rather than a result of a war imposed on Israel by a coalition of Arab states in 1967.
He quotes Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, and wrote in 1970 regarding Israel's case:
Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.
However, international law scholar John Quigley has written, "... a state that uses force in self-defense may not retain territory it takes while repelling an attack. If Israel had acted in self-defense, that would not justify its retention of the Gaza Strip and West Bank. Under the UN Charter there can lawfully be no territorial gains from war, even by a state acting in self-defense. The response of other states to Israel's occupation shows a virtually unanimous opinion that even if Israel's action was defensive, its retention of the West Bank and Gaza Strip was not."
Arguments based on property rights and private ownership
On 30 January 2009, the Associated Press reported that Israeli political group Yesh Din plans to use a classified Israeli Government database to prove that many West Bank Israeli settlements were built on land privately owned by Palestinian citizens without compensation.[z]
In two cases decided shortly after independence (the Shimshon and Stampfer cases) the Israeli Supreme Court held that the fundamental rules of international law accepted as binding by all "civilized" nations were incorporated in the domestic legal system of Israel. The Nuremberg Military Tribunal had already determined that the articles annexed to the Hague IV Convention of 1907 were customary law, recognized by all civilized nations.
The Court determined in the 1979 Elon Moreh case that only the military commander of an area may requisition land according to article 52 of the Hague regulations. Military necessity had been an afterthought in the planning portions of the Elon Moreh settlement. That situation did not fulfill the precise strictures laid down in the articles of the Hague Convention, so the Court ruled the requisition order had been invalid and illegal.
In subsequent cases, such as the Ja'amait Ascan case regarding a project to link West Bank towns to Jerusalem with a four-way highway network, the Court ruled that Article 43 of the Hague IV Convention is a mandatory planning consideration for approval of building projects in the West Bank. The convention established that an occupier may not take into consideration "the national, economic or social interests of his own country, unless they have implications for his security interests or the interests of the local population." Justice Aharon Barak ruled against the Palestinian plaintiff, and for the project, accepting the claim by respondents that while it would benefit the residents of Israel, it would also favour the interests of West Bank Arabs commuting to Israel.
Pressured by America, the Sharon administration commissioned the Sasson Report, which found that the Israeli government had funded the creation of Jewish settler outposts in the West Bank that were unauthorized and in violation of stated government policy. According to the report, the Housing and Construction Ministry, the World Zionist Organization, the Education Ministry and the Defense Ministry cooperated to "systematically establish illegal settlement points", paying millions of dollars to create the infrastructure for scores of settlements.
The summary of the Sasson Report explains that local law requires the fulfillment of a number of basic conditions before establishing a settlement in Judea and Samaria. It lists four preconditions that must be fulfilled in each case. The second precondition regarding title to the land cites the precedent established in the Elon Moreh case. The third precondition is that a settlement can only be established according to a lawfully designed building scheme, which has the power to produce a building permit. The fourth precondition is that the bounds of jurisdiction of the settlement must be determined in advance by order of the Commander of the area. The Israeli Supreme Court has ruled that the fulfillment of the applicable Hague IV Convention criteria is a mandatory and integral part of satisfying those three preconditions of the local law. Sasson summed up the situation by explaining:
An unauthorized outpost is a settlement which does not fulfill at least one of the above mentioned conditions. And I must emphasize: an unauthorized outpost is not a "semi legal" outpost. Unauthorized is illegal.
The report found "blatant violations of the law" by officials and state institutions. Many of the more than 100 outposts investigated added at state expense paved roads, permanent housing, power lines and other infrastructure. According to the report, some of the outposts were established on private lands owned by Palestinians with the help of Housing Ministry architects, the Housing Ministry funded many of the trailers used to start the outposts, and Defence Ministry officials allocated such private land to the quasi-official Jewish Agency.
In response to settler violence directed towards Israeli security forces, Israel declared it would no longer fund unauthorized outposts from November 2008. Settlers claim the violence was sparked by the beating of a settler child; border police spokesman Moshe Pinchi said he had no knowledge of the alleged beating and accused the settlers of "cynically" sending minors to attack the police. However, there is evidence that support continues unabated for illegal outposts. At one unauthorized settlement, Eli, there has been recent work on a new road that cuts through Palestinian territory.
According to a report of the Israeli Environmental Protection Ministry, waste water management is "virtually nonexistent" in unauthorized Jewish settler outposts and some other settlements, thus raw sewage is contaminating the ground water in parts of the West Bank. According to the report, the main cause of the contaminated water is that raw waste water flows from Hebron, Ramallah, Nablus, Jenin and other villages, without proper treatment. The report blames Israeli settlements for pumping contaminated water into the sewers, not Palestinian villages. 70% of the Jewish communities east of the Green Line are connected to treatment facilities, so "illegal outposts" are the main source of the untreated water, according to the Israeli report.
In May 2009, Defense Minister Ehud Barak said that over two dozen illegal outposts in the West Bank had been "declared as such by the Talia Sasson Commission", and would be dismantled.
On 17 August 2009, four members of Netanyahu's cabinet — Deputy Prime Minister and Minister of Internal Affairs Eli Yishai (Shas), Vice Prime Minister and Minister of Strategic Affairs Moshe Ya'alon (Likud), Minister of Information Yuli Edelstein (Likud), and Minister of Science and Technology Daniel Hershkowitz (The Jewish Home) — embarked on a tour of West Bank outposts. During the tour, Yishai stated that the outposts are not illegal:
- "The international community has taken a critical view of both deportations and settlements as being contrary to international law. General Assembly resolutions have condemned the deportations since 1969, and have done so by overwhelming majorities in recent years. Likewise, they have consistently deplored the establishment of settlements, and have done so by overwhelming majorities throughout the period (since the end of 1976) of the rapid expansion in their numbers. The Security Council has also been critical of deportations and settlements; and other bodies have viewed them as an obstacle to peace, and illegal under international law."
- "the establishment of the Israeli settlements in the Occupied Palestinian Territory has been considered illegal by the international community and by the majority of legal scholars."
- "The real controversy hovering over all the litigation on the security barrier concerns the fate of the Israeli settlements in the occupied territories. Since 1967, Israel has allowed and even encouraged its citizens to live in the new settlements established in the territories, motivated by religious and national sentiments attached to the history of the Jewish nation in the land of Israel. This policy has also been justified in terms of security interests, taking into consideration the dangerous geographic circumstances of Israel before 1967 (where Israeli areas on the Mediterranean coast were potentially threatened by Jordanian control of the West Bank ridge). The international community, for its part, has viewed this policy as patently illegal, based on the provisions of the Fourth Geneva Convention that prohibit moving populations to or from territories under occupation."
- "It can thus clearly be concluded that the transfer of Israeli settlers into the occupied territories violates not only the laws of belligerent occupation but the Palestinian right of self-determination under international law. The question remains, however, whether this is of any practical value. In other words, given the view of the international community that the Israeli settlements are illegal under the law if belligerent occupation."
- "The international community considers Israeli settlements within the occupied territories illegal and in breach of, inter alia, United Nations Security Council resolution 465 of 1 March 1980 calling on Israel 'to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem'."
- 'Furthermore, Israel had established its settlements in the West Bank in accordance with international law. Attempts have been made to claim that the settlements violate Article 49 of the Fourth Geneva Convention of 1949, which forbids a state from deporting or transferring "parts of its own civilian population into the territory it occupies". However, this allegation has no validity in law as Israeli citizens were neither deported nor transferred to the territories. Although Israel has voluntarily taken upon itself the obligation to uphold the humanitarian provisions of the Fourth Geneva Convention, Israel maintains that the Convention (which deals with occupied territories) was not applicable to the disputed territory. As there had been no internationally recognized legal sovereign in either the West Bank or Gaza before the 1967 Six Day War, they cannot be considered to have become "occupied territory" when control passed into the hands of Israel."
- "SC Res. 446 (Mar. 22, 1979), adopted by 12 votes to none, with 3 abstentions (Norway, the United Kingdom and the United States), reaffirmed the applicability of the fourth Geneva Convention, as well as opposing the establishment of Israeli settlements in the occupied territories."
- "In its advisory opinion of 9 July 2004, on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice found Israel in breach of several international law obligations by its construction of a separation barrier on West Bank territory. ... The Court flatly rejects the Israeli claims concerning the inapplicability of the Fourth Geneva Convention to the West Bank and concerning the inapplicability of Article 49 to the Jewish settlements in the areas occupied by Israel. Neither of these claims gained serious support from the international community.'
- "Israel would withdraw from the Occupied territories and be replaced by UN forces. The parties would agree in advance to a transition period lasting from six months to a year. During this time, negotiations would be held between the Arab states and Israel, with the aim of achieving a permanent peace. If within the stated time they did not achieve peace, Israel would return its forces to the territories upon UN authorization. In this case, the inhabitants of the territories would be allowed to take matters into their own hand and sign a separate peace agreement with Israel. Sasson responded that there were no interim solutions and advised ther bishop not to get carried away by such flimsy initiatives."
- Experts like Eyal Benvenisti, together with the Israeli Supreme Court, consider the Gaza occupation ended, while the majority view, back by Yoram Dinstein, NGOs like Amnesty International and the United Nations Security Council (UNS C Resolution 1860 (2009) appears to be that it still holds.
- 'the U.S. government does not recognize all of Jerusalem as part of Israel.'
- "there is an overwhelming (and rare) international legal consensus that the territories are occupied, that the law of belligerent occupation applies, and that the settlements are illegal and indeed constitute a grave breach of the GC IV,"
- "The view that the fourth Geneva Convention is applicable, and should be applied, in all the territories occupied by Israel in 1967 has been very widely held internationally. Indeed, a remarkable degree of unanimity prevails on this matter. Countless international organizations, both intergovernmental and nongovernmental, have taken this view. Within the UN General Assembly, it has been upheld from the beginning of the occupation.".
- "The British Government believes that Israeli settlements on occupied territory are illegal. So does every other government in the world, except for Israel."
- After the decision, Paul de Waart argued that "the existence of the Palestinian people as the rightful claimant to the OPT is no longer open to question."
- "the ICRC has expressed growing concern about the consequences in humanitarian terms of the establishment of Israeli settlements in the occupied territories, in violation of the Fourth Geneva Convention."
- "The ICRC publicly stated that the building of Jewish settlements in the territories, the Israeli use of collective punishments, the destruction of Arab houses as punishment, the expulsion of Arabs from the territories, and the seizing of Arab lands and resources without compelling military necessity, inter alia, all violated the Fourth GC."
- the ICRC holds that the displacement of populations which may result from the settlements are violations of Article 49
- 'Israel requested the United States to vote against the resolution, however the Carter administration instructed its U.N. ambassador, Mr. McHenry, to seek the deletion of paragraph eight (dealing with Jerusalem and the holy places) and eliminate three other paragraphs calling for the dismantling of existing Israeli settlements. But due to what was later termed "communication failure", the President did not see the text of the resolution, and Secretary Vance was ordered by him to authorize Ambassador McHenry to support it, while issuing a "strong reservation" on the dismantling clause. The resolution was adopted by a vote of 15 to none. Israel rejected the resolution and few days later the Carter administration issued a statement disavowing the vote saying it was cast in error."
- "In fact, this resolution simply reaffirms statements made by the Security Council on the legality of settlements over several decades. It does not break new ground. In 1978, the State Department Legal Adviser advised the Congress on his conclusion that Israel's government, the Israeli Government's program of establishing civilian settlements in the occupied territory is inconsistent with international law, and we see no change since then to affect that fundamental conclusion.'
- "And the Obama Administration's position on settlements is clear, unequivocal. It has not changed. And as the President has said on many occasions, the United States does not accept the legitimacy of continued Israeli settlements". (Rozen 2009)
- "The establishment of the settlements contravenes international humanitarian law (IHL), which states that an occupying power may not relocate its own citizens to the occupied territory or make permanent changes to that territory, unless these are needed for imperative military needs, in the narrow sense of the term, or undertaken for the benefit of the local population."
- 'The Israeli Foreign Ministry has also contributed a rationale for rejecting Israel's de jure obligation to uphold the Fourth Convention, arguing that the Convention only prohibits civilian transfers compelled by the government, not voluntary transfers undertaken by the civilians themselves. Recall the language of Article 49: "The Occupying Power shall not transfer its own civilians into the territory it occupies" (emphasis added). On the Foreign Minister's reading, even if the Geneva Convention applies, voluntary transfers do not violate it, because the Occupying Power is not doing the transfer.'
- Stone's view that the UN definition of aggression, which excluded anti-colonial uprisings, did not reflect customary law. "Though Julius Stone argued that the proviso does not reflect customary law, the General Assembly adopted the definition of aggression without a vote. Tom Farer called it 'a global consensus', and it would seem to reflect the views of the overwhelming majority of states".
- Ambassador Morris Abram, who was involved in drafting the Fourth Geneva Convention, argued that the convention "was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people."
- "A comparative survey carried out by B'Tselem in the area of Ramallah revealed massive differences between the amount of land that Jordan defined as government property in areas registered before the occupation, and the amount that Israel declared state land in areas that the Jordanians had not managed to register prior to 1967. The results of the survey indicate that a significant proportion of the land that Israel declared as state land is actually private Palestinian property that was taken from its lawful owners through legal maneuvering, in breach of both local and international law."
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