International law and Israeli settlements
Encyclopedia
The international community
considers the establishment of Israeli settlements in the Israeli-occupied territories
illegal under international law, but Israel
maintains that they are consistent with international law because it does not agree that the Fourth Geneva Convention
applies to the territories occupied in the 1967 Six-Day War
. However, the United Nations Security Council and the International Court of Justice affirm that the Fourth Geneva Convention does indeed apply. The majority of legal scholars also hold the settlements to violate international law, while others have offered dissenting views.
Numerous UN resolutions have stated that the building and existence of Israeli settlements in the West Bank
, East Jerusalem
and the Golan Heights are a violation of international law. 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. The reconvened Conference of the High Contracting Parties to the Geneva Conventions has declared the settlements illegal as has the primary judicial organ of the UN, the International Court of Justice
.
The position of successive Israeli governments is that all authorized settlements are entirely legal and consistent with international law. Despite Israel's armistice agreements having all being with High Contracting Parties, Israel's stance has been backed by a number of legal scholars. 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.
, Israel was in control of the Sinai Peninsula, the Gaza Strip, West Bank and Golan Heights. Immediately after the war, the Israeli government authorised 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. At the same time, Israel conveyed that it was willing in principle to return most of the newly captured territory. Levi Eshkol
offered to return the territories with only minor border modifications. Nevertheless, 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, seizing 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 it's basic character transformed."
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 lsraeli citizens) and their exercise of the right to work, to health, to education and to an adequate standard of living.
in the 1967 Six-Day War
, Israel has treated them in three different ways:
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 (which does not define U.S. foreign policy) passed the Jerusalem Embassy Act
, recognizing Jerusalem as the capital of Israel. The U.S. views that parts of Jerusalem are not in Israel 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) of 1949 have no other legal status.
Palestinians object to this view as the Israel–Jordan peace treaty was not to alter the status of any territories coming under Israeli control during the hostilities of 1967 (article 3(2) of the Israel–Jordan peace treaty).
Article 8(2)(b)(viii) of the International Criminal Court
Rome Statute
defines "[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" as a war crime
. Israel did initially sign the statute, but later declared its intention not to ratify it.
is that Israeli settlements are illegal and constitute a violation of international law. According to the BBC, every government in the world, except Israel, considers the settlements to be illegal.
, 452
, 465
, 471 and 476
, consider the settlements as having "no legal validity" under the Fourth Geneva Convention
. 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
(ICRC) holds that the establishment of Israeli settlements violate Fourth Geneva Convention. 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.
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," and remains the policy of the United States according to Hansel, The Washington Post, and the Rand Corporation's Palestinian State Study Project. The Johnson
, Nixon
, Ford
, and Carter
administrations all publicly characterized the settlements as 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. 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," in February 2011 the U.S. vetoed a Security Council resolution that would have declared the settlements illegal.
, legal counsel to the Israeli Foreign Ministry stated in a legal opinion to Adi Yafeh, the Political Secretary of the Prime Minister, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention." The legal opinion, forwarded to Levi Eshkol
, was not made public at the time, and the Labor cabinet progressively sanctioned settlements anyway; this action paved the way for future settlement growth. In 2007, Judge Meron stated that "I believe that I would have given the same opinion today." Nevertheless, 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 concludes
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.
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 that:-
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. It is further argued that United Nations Security Council Resolution 242
calls for "secure and recognized boundaries", and that neither the 1946–1967 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 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 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. It claimed the settlements had only been established after exhaustive investigations making sure none were built on private land.
The Israeli government has further argued that the Geneva Convention prohibits a transfer of civilians into an occupied territory, while the Palestinian territories are considered disputed territories under international law. Israel had expressed wishes to modify its borders to serve its security needs, which was provided for in UNSC Resolution 242, while the Palestinians have claimed all of the territories as their own, thereby placing the future status of the territories in dispute.
, 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.
views Israeli settlements as illegal, and states that "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." The Organisation of Islamic Cooperation views settlements, including those in East Jerusalem, as "blatant violations of the relevant United Nations resolution, international agreements -- especially the 1949 Fourth Geneva Convention -- and of international law." The European Union
considers the settlements to be illegal. 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 human rights
groups Amnesty International
, Human Rights Watch
and B'Tselem
view Israeli settlements as violations of international law., while the Anti-Defamation League
has stated that the settlements are legal under international law.
International law expert Julius Stone
, and Eugene Rostow
, Dean of Yale Law School
, argued that the settlements are legal under international law, on a number of different grounds. Stone held that it was legal for Israel to establish Nahal settlement
s, 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 international lawyer, 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.
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 an 2004 advisory opinion to the UN General Assembly, the International Court of Justice
argued 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 prior to 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).
The official Israeli legal argument against the application of Article 2 to the situation in the West Bank is based on a 1971 interpretation by Israeli Attorney-General, Meir Shamgar
. 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". The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate, which stipulated the right of the Jewish people to settle in the whole of the Mandated territory. According to Article 6 of the Mandate, "close settlement by Jews on the land, including State lands not required for public use" was to be encouraged. Article 25 allowed the League Council to temporarily postpone the Jewish right to settle in what is now Jordan, if conditions were not amenable. Article 80 of the U.N. Charter preserved this Jewish right to settlement by specifying that: "nothing in the [United Nations] Charter shall be construed ... to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments."
Shamgar further stated:
Article 49 (6) states
According to Jean Pictet
of the International 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."
He argued that:
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".
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:
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.
Others claim that those who endorse the application of Article 49 misquote the first clause by omitting the phrases that qualify that the prohibited forced transfer is that of the "population of the occupied territory" and not the population of the Occupying Power. They also note that Pictet's commentary on Article 49 (6) states "the paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words "transfer" and "deport" is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power." Jean-Marie Henckaerts cites The Commentary and explains,
David Kretzmer, Professor of International Law at Hebrew University of Jerusalem, has argued:
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.
(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
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. Indeed, 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:
Antonio Cassese
disagrees with this analysis, arguing that whilst 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.
, the recognized leader of the modern Zionist movement
.
The agreement, known as the Faisal-Weizmann Agreement
, signed in January 1919, agreed conditional terms of borders between the Jewish state and the Arab states, which include the present day territories in dispute and some of modern-day sovereign Jordan.
writes that:
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:
However, international law scholar John Quigley has noted that "... 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."
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.
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, the Court has ruled that Article 43 of the Hague IV Convention is a mandatory planning consideration for approval of building projects on state lands in Judea and Samaria.
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 the Judea, and Samaria. It lists four pre-conditions that must be fulfilled in each case. The second pre-condition regarding title to the land cites the precedent established in the Elon Moreh case. The third pre-condition 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 pre-condition 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 pre-conditions of the local law. Sasson summed up the situation by explaining:
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
.
As part of the 2003 "Road map" for peace
, Israel committed itself to remove about two dozen such settlements, an obligation it has yet to fulfill.
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, while 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 unauthourized Jewish settler outposts and some other settlements, thus raw sewage is contaminating the ground water in parts of the West Bank. Accoridng 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 August 17, 2009, four ministers on Netanyahu 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:
International community
The international community is a term used in international relations to refer to all peoples, cultures and governments of the world or to a group of them. The term is used to imply the existence of common duties and obligations between them...
considers the establishment of Israeli settlements in the Israeli-occupied territories
Israeli-occupied territories
The Israeli-occupied territories are the territories which have been designated as occupied territory by the United Nations and other international organizations, governments and others to refer to the territory seized by Israel during the Six-Day War of 1967 from Egypt, Jordan, and Syria...
illegal under international law, but Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
maintains that they are consistent with international law because it does not agree that the Fourth Geneva Convention
Fourth Geneva Convention
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians...
applies to the territories occupied in the 1967 Six-Day War
Six-Day War
The Six-Day War , also known as the June War, 1967 Arab-Israeli War, or Third Arab-Israeli War, was fought between June 5 and 10, 1967, by Israel and the neighboring states of Egypt , Jordan, and Syria...
. However, the United Nations Security Council and the International Court of Justice affirm that the Fourth Geneva Convention does indeed apply. The majority of legal scholars also hold the settlements to violate international law, while others have offered dissenting views.
Numerous UN resolutions have stated that the building and existence of Israeli settlements in the West Bank
West Bank
The West Bank ) of the Jordan River is the landlocked geographical eastern part of the Palestinian territories located in Western Asia. To the west, north, and south, the West Bank shares borders with the state of Israel. To the east, across the Jordan River, lies the Hashemite Kingdom of Jordan...
, East Jerusalem
East Jerusalem
East Jerusalem or Eastern Jerusalem refer to the parts of Jerusalem captured and annexed by Jordan in the 1948 Arab-Israeli War and then captured and annexed by Israel in the 1967 Six-Day War...
and the Golan Heights are a violation of international law. UN Security Council Resolution 446
United Nations Security Council Resolution 446
United Nations Security Council Resolution 446, adopted on March 22, 1979, concerned the issue of Israeli settlements in the "Arab territories occupied by Israel since 1967, including Jerusalem"...
refers to the Fourth Geneva Convention
Fourth Geneva Convention
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians...
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. The reconvened Conference of the High Contracting Parties to the Geneva Conventions has declared the settlements illegal as has the primary judicial organ of the UN, the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
.
The position of successive Israeli governments is that all authorized settlements are entirely legal and consistent with international law. Despite Israel's armistice agreements having all being with High Contracting Parties, Israel's stance has been backed by a number of legal scholars. 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.
Background
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 WarSix-Day War
The Six-Day War , also known as the June War, 1967 Arab-Israeli War, or Third Arab-Israeli War, was fought between June 5 and 10, 1967, by Israel and the neighboring states of Egypt , Jordan, and Syria...
, Israel was in control of the Sinai Peninsula, the Gaza Strip, West Bank and Golan Heights. Immediately after the war, the Israeli government authorised 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. At the same time, Israel conveyed that it was willing in principle to return most of the newly captured territory. Levi Eshkol
Levi Eshkol
' served as the third Prime Minister of Israel from 1963 until his death from a heart attack in 1969. He was the first Israeli Prime Minister to die in office.-Biography:...
offered to return the territories with only minor border modifications. Nevertheless, with government permission granted, Kfar Etzion
Kfar Etzion
Kfar Etzion is a religious Israeli settlement and kibbutz located in the Judean Hills between Jerusalem and Hebron in the southern West Bank. It has a population of 400 and falls under the jurisdiction of Gush Etzion Regional Council...
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, seizing 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
Elon Moreh
Elon Moreh is an Israeli settlement located in the Samarian hills of the West Bank northeast of Nablus on the slopes of the Mount Kabir ridge....
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 it's basic character transformed."
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 lsraeli citizens) and their exercise of the right to work, to health, to education and to an adequate standard of living.
Status of the territories
Although all areas in question were captured by IsraelIsrael
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
in the 1967 Six-Day War
Six-Day War
The Six-Day War , also known as the June War, 1967 Arab-Israeli War, or Third Arab-Israeli War, was fought between June 5 and 10, 1967, by Israel and the neighboring states of Egypt , Jordan, and Syria...
, Israel has treated them in three different ways:
- "East JerusalemEast JerusalemEast Jerusalem or Eastern Jerusalem refer to the parts of Jerusalem captured and annexed by Jordan in the 1948 Arab-Israeli War and then captured and annexed by Israel in the 1967 Six-Day War...
"—Jerusalem and its surroundings were envisioned as an international area under United Nations administration in the 1947 partition plan, which was accepted by Israel but rejected by all Arab nations. In 1948, JordanJordanJordan , officially the Hashemite Kingdom of Jordan , Al-Mamlaka al-Urduniyya al-Hashemiyya) is a kingdom on the East Bank of the River Jordan. The country borders Saudi Arabia to the east and south-east, Iraq to the north-east, Syria to the north and the West Bank and Israel to the west, sharing...
captured and annexed the eastern half of Jerusalem, while Israel defended and kept the west. Jordan's territorial claims of East Jerusalem territory were not recognized by any country, with possible exception of the United KingdomUnited KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
acknowledging. Following the Six-Day War in 1967, Israel annexed the eastern part, together with several villages around it. - The Israeli Golan Heights LawGolan Heights LawThe Golan Heights Law is the Israeli law which applies Israel's government and laws to the Golan Heights. It was ratified by the Knesset on December 14, 1981. The law was condemned internationally and determined null and void by United Nations Security Council Resolution 497.The law was passed...
of 1981 applied Israel's "laws, jurisdiction and administration" in the Golan Heights, which were captured from Syria in 1967. While the public viewed the move as an annexation, the law itself refrained from using the term officially. - The Gaza StripGaza Stripthumb|Gaza city skylineThe Gaza Strip lies on the Eastern coast of the Mediterranean Sea. The Strip borders Egypt on the southwest and Israel on the south, east and north. It is about long, and between 6 and 12 kilometres wide, with a total area of...
and West BankWest BankThe West Bank ) of the Jordan River is the landlocked geographical eastern part of the Palestinian territories located in Western Asia. To the west, north, and south, the West Bank shares borders with the state of Israel. To the east, across the Jordan River, lies the Hashemite Kingdom of Jordan...
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 EgyptOccupation of the Gaza Strip by EgyptThe administration of the Gaza Strip by Egypt occurred between 1948 and October 1956, and again from March 1957 to June 1967. Egypt did not annex the Gaza Strip but left it under Egyptian military rule as a temporary arrangement pending the resolution of the Palestine Question.-Background:After...
while the West Bank was annexed by JordanJordanJordan , officially the Hashemite Kingdom of Jordan , Al-Mamlaka al-Urduniyya al-Hashemiyya) is a kingdom on the East Bank of the River Jordan. The country borders Saudi Arabia to the east and south-east, Iraq to the north-east, Syria to the north and the West Bank and Israel to the west, sharing...
. 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 occupationMilitary occupationMilitary occupation occurs when the control and authority over a territory passes to a hostile army. The territory then becomes occupied territory.-Military occupation and the laws of war:...
. Gaza was also occupied in 1967, but after Israel's unilateral disengagement in 2005Israel's unilateral disengagement planIsrael's unilateral disengagement plan , also known as the "Disengagement plan", "Gaza expulsion plan", and "Hitnatkut", was a proposal by Israeli Prime Minister Ariel Sharon, adopted by the government on June 6, 2004 and enacted in August 2005, to evict all Israelis from the Gaza Strip and from...
the status has become disputed, with conflicting opinions on whether or not the occupation has ended.
The Jerusalem Law
Jerusalem Law
The Jerusalem Law is a common name of Basic Law: Jerusalem, Capital of Israel passed by the Knesset on July 30, 1980 .It began as a private member's bill proposed by Geula Cohen, whose original text stated that "the integrity and unity of greater Jerusalem in its boundaries after the Six-Day War...
and the Golan Heights Law
Golan Heights Law
The Golan Heights Law is the Israeli law which applies Israel's government and laws to the Golan Heights. It was ratified by the Knesset on December 14, 1981. The law was condemned internationally and determined null and void by United Nations Security Council Resolution 497.The law was passed...
have both been deemed illegal by the UN Security Council
United Nations Security Council
The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...
(resolutions 478
United Nations Security Council Resolution 478
United Nations Security Council Resolution 478, adopted on August 20, 1980, declared Israel's 1980 Jerusalem Law a violation of international law, and states that the Council will not recognize this law, and calls on member states to accept the decision of the council. This resolution also calls...
and 497
United Nations Security Council Resolution 497
United Nations Security Council Resolution 497, adopted unanimously on December 17, 1981, calls on the State of Israel to rescind its de facto annexation of the Golan Heights...
respectively), and are not recognized by the international community. The United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
abstained from the vote on Resolution 478 and the U.S. Congress (which does not define U.S. foreign policy) passed the Jerusalem Embassy Act
Jerusalem Embassy Act
The Jerusalem Embassy Act of 1995 is a public law of the United States passed by the 104th Congress on October 23, 1995. It was passed for the purposes of initiating and funding the relocation of the Embassy of the United States in Israel from Tel Aviv to Jerusalem, no later than May 31, 1999, and...
, recognizing Jerusalem as the capital of Israel. The U.S. views that parts of Jerusalem are not in Israel 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
Corpus separatum
Corpus separatum is used with regard to Jerusalem according to the 1947 UN Partition Plan which used it to refer to a proposed internationally administered zone to include Jerusalem in the 1947 municipal boundaries "plus surrounding villages and towns, the most eastern of which shall be Abu Dis;...
, 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
Sinai Peninsula
The Sinai Peninsula or Sinai is a triangular peninsula in Egypt about in area. It is situated between the Mediterranean Sea to the north, and the Red Sea to the south, and is the only part of Egyptian territory located in Asia as opposed to Africa, effectively serving as a land bridge between two...
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) of 1949 have no other legal status.
Palestinians object to this view as the Israel–Jordan peace treaty was not to alter the status of any territories coming under Israeli control during the hostilities of 1967 (article 3(2) of the Israel–Jordan peace treaty).
Article 8(2)(b)(viii) of the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
Rome Statute
Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...
defines "[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" as a war crime
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
. Israel did initially sign the statute, but later declared its intention not to ratify 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 communityInternational community
The international community is a term used in international relations to refer to all peoples, cultures and governments of the world or to a group of them. The term is used to imply the existence of common duties and obligations between them...
is that Israeli settlements are illegal and constitute a violation of international law. According to the BBC, every government in the world, except Israel, considers the settlements to be illegal.
United Nations
Numerous UN Security council resolutions, including 446United Nations Security Council Resolution 446
United Nations Security Council Resolution 446, adopted on March 22, 1979, concerned the issue of Israeli settlements in the "Arab territories occupied by Israel since 1967, including Jerusalem"...
, 452
United Nations Security Council Resolution 452
United Nations Security Council Resolution 452, adopted July 20, 1979, was on the issue of the Israeli settlements in Jerusalem, the West Bank, Gaza Strip and the Golan Heights, specifically the illegality thereof...
, 465
United Nations Security Council Resolution 465
United Nations Security Council Resolution 465, adopted unanimously on March 1, 1980, was on the issue of the Israeli settlements and administration in "the Arab territories occupied since 1967, including Jerusalem"...
, 471 and 476
United Nations Security Council Resolution 476
United Nations Security Council Resolution 476, adopted on June 30, 1980, declared that "all legislative and administrative measures and actions taken by Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute...
, consider the settlements as having "no legal validity" under the Fourth Geneva Convention
Fourth Geneva Convention
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians...
. In 2004, an advisory opinion by the primary judicial organ of the UN, the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
, 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
United Nations Security Council
The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...
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
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
, 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
United Nations Human Rights Council
The United Nations Human Rights Council is an inter-governmental body within the United Nations System. The UNHRC is the successor to the United Nations Commission on Human Rights , and is a subsidiary body of the United Nations General Assembly...
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
Theo van Boven
Theo van Boven is a Dutch jurist and professor emeritus in international law.In 1977 he was appointed director of the United Nations' Division for Human Rights....
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.
International Committee of the Red Cross
The International Committee of the Red CrossInternational Committee of the Red Cross
The International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...
(ICRC) holds that the establishment of Israeli settlements violate Fourth Geneva Convention. 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.
United States
The United States State Department found the settlements contrary to international law in 1978. On April 21, 1978, Legal Adviser of the Department of StateLegal Adviser of the Department of State
The Legal Adviser of the Department of State is a position within the United States Department of State. It was created by an Act of Congress on February 23, 1931 and given a rank equivalent to that of an Assistant Secretary...
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," and remains the policy of the United States according to Hansel, The Washington Post, and the Rand Corporation's Palestinian State Study Project. The Johnson
Lyndon B. Johnson
Lyndon Baines Johnson , often referred to as LBJ, was the 36th President of the United States after his service as the 37th Vice President of the United States...
, Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
, Ford
Gerald Ford
Gerald Rudolph "Jerry" Ford, Jr. was the 38th President of the United States, serving from 1974 to 1977, and the 40th Vice President of the United States serving from 1973 to 1974...
, and Carter
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
administrations all publicly characterized the settlements as illegal.
In February 1981, Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
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. 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," in February 2011 the U.S. vetoed a Security Council resolution that would have declared the settlements illegal.
Israel
In 1967, Theodor MeronTheodor Meron
Theodor Meron was the President of the International Criminal Tribunal for the former Yugoslavia until 2005, and now serves as a judge on the Appeals Chambers of the International Criminal Tribunal for Rwanda and the ICTY. On October 19, 2011, he was elected to a second two-year term as President...
, legal counsel to the Israeli Foreign Ministry stated in a legal opinion to Adi Yafeh, the Political Secretary of the Prime Minister, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention." The legal opinion, forwarded to Levi Eshkol
Levi Eshkol
' served as the third Prime Minister of Israel from 1963 until his death from a heart attack in 1969. He was the first Israeli Prime Minister to die in office.-Biography:...
, was not made public at the time, and the Labor cabinet progressively sanctioned settlements anyway; this action paved the way for future settlement growth. In 2007, Judge Meron stated that "I believe that I would have given the same opinion today." Nevertheless, 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 concludes
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
1948 Arab-Israeli War
The 1948 Arab–Israeli War, known to Israelis as the War of Independence or War of Liberation The war commenced after the termination of the British Mandate for Palestine and the creation of an independent Israel at midnight on 14 May 1948 when, following a period of civil war, Arab armies invaded...
and violence prior, when many West Bank settlements were destroyed and the residents massacred or expelled, such as Hartuv
Hartuv
Hartuv or Har-Tuv was an agricultural colony in the Judean Hills established in 1883 on land purchased from the Arab village of Artuf by English missionaries. It was destroyed in the 1929 Palestine riots but was rebuilt in 1930. In 1948 it was abandoned again. Hartuv was the starting point for...
, Kfar Etzion
Kfar Etzion
Kfar Etzion is a religious Israeli settlement and kibbutz located in the Judean Hills between Jerusalem and Hebron in the southern West Bank. It has a population of 400 and falls under the jurisdiction of Gush Etzion Regional Council...
, Hebron
Hebron
Hebron , is located in the southern West Bank, south of Jerusalem. Nestled in the Judean Mountains, it lies 930 meters above sea level. It is the largest city in the West Bank and home to around 165,000 Palestinians, and over 500 Jewish settlers concentrated in and around the old quarter...
, and the Jewish Quarter of Jerusalem, and therefore the application of the Geneva Convention is an entirely different issue.
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 that:-
"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
Oslo Accords
The Oslo Accords, officially called the Declaration of Principles on Interim Self-Government Arrangements or Declaration of Principles , was an attempt to resolve the ongoing Palestinian-Israeli conflict...
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. It is further argued that United Nations Security Council Resolution 242
United Nations Security Council Resolution 242
United Nations Security Council Resolution 242 was adopted unanimously by the UN Security Council on November 22, 1967, in the aftermath of the Six Day War. It was adopted under Chapter VIof the United Nations Charter...
calls for "secure and recognized boundaries", and that neither the 1946–1967 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 the Mandate for Palestine adopted by the League of Nations
League of Nations
The League of Nations was an intergovernmental organization founded as a result of the Paris Peace Conference that ended the First World War. It was the first permanent international organization whose principal mission was to maintain world peace...
, 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 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. It claimed the settlements had only been established after exhaustive investigations making sure none were built on private land.
The Israeli government has further argued that the Geneva Convention prohibits a transfer of civilians into an occupied territory, while the Palestinian territories are considered disputed territories under international law. Israel had expressed wishes to modify its borders to serve its security needs, which was provided for in UNSC Resolution 242, while the Palestinians have claimed all of the territories as their own, thereby placing the future status of the territories in dispute.
Canada
CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, 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.
Other views
The Non-Aligned MovementNon-Aligned Movement
The Non-Aligned Movement is a group of states considering themselves not aligned formally with or against any major power bloc. As of 2011, the movement had 120 members and 17 observer countries...
views Israeli settlements as illegal, and states that "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." The Organisation of Islamic Cooperation views settlements, including those in East Jerusalem, as "blatant violations of the relevant United Nations resolution, international agreements -- especially the 1949 Fourth Geneva Convention -- and of international law." The European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
considers the settlements to be illegal. In June 1980, the (then nine-member) European Economic Community
European Economic Community
The European Economic Community The European Economic Community (EEC) The European Economic Community (EEC) (also known as the Common Market in the English-speaking world, renamed the European Community (EC) in 1993The information in this article primarily covers the EEC's time as an independent...
declared in the Venice Declaration
Venice Declaration
The Venice Declaration was an agreement issued by the nine-member economic committee of the EEC, which met in June of 1980 in conjunction with Palestinian Liberation Organization...
that "settlements, as well as modifications in population and property in the occupied Arab territories, are illegal under international law." The human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
groups Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
, Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
and B'Tselem
B'Tselem
B'Tselem is an Israeli non-governmental organization . It calls itself "The Israeli Information Center for Human Rights in the Occupied Territories"...
view Israeli settlements as violations of international law., while the Anti-Defamation League
Anti-Defamation League
The Anti-Defamation League is an international non-governmental organization based in the United States. Describing itself as "the nation's premier civil rights/human relations agency", the ADL states that it "fights anti-Semitism and all forms of bigotry, defends democratic ideals and protects...
has stated that the settlements are legal under international law.
International law expert Julius Stone
Julius Stone
Julius Stone was Challis Professor of Jurisprudence and International Law at the University of Sydney from 1942 to 1972, and thereafter a visiting Professor of Law at the University of New South Wales and concurrently Distinguished Professor of Jurisprudence and International Law at the Hastings...
, and Eugene Rostow
Eugene V. Rostow
Eugene V. Rostow , influential legal scholar and public servant, was Dean of Yale Law School, and served as Under Secretary of State for Political Affairs under President Lyndon B...
, Dean of Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
, argued that the settlements are legal under international law, on a number of different grounds. Stone held that it was legal for Israel to establish Nahal settlement
Nahal settlement
Nahal settlements were settlements established by Nahal soldiers in Israel and Israeli-occupied territories. Supporting Jewish settlement growth and expansion throughout Israel was once the main focus of the Nahal military brigade. The goal for every Nahal settlement was to become a civilian...
s, 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 international lawyer, 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.
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
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". It is disputed whether the territories captured by Israel during the 1967 war constituted those of a "High Contracting Party" or sovereign state.Endorsement
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 an 2004 advisory opinion to the UN General Assembly, the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
argued 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 prior to 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
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
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).
Rejection
The official Israeli legal argument against the application of Article 2 to the situation in the West Bank is based on a 1971 interpretation by Israeli Attorney-General, Meir Shamgar
Meir Shamgar
Meir Shamgar was President of the Israeli Supreme Court from 1983 until 1995.-Biography:Shamgar was born Meir Sterenberg in the Free City of Danzig to Eliezer and Dina Sterenberg.He emigrated to Palestine in 1939.He was arrested by the British in 1944 for anti-British activity and being...
. His view was presented by Moshe Dayan
Moshe Dayan
Moshe Dayan was an Israeli military leader and politician. The fourth Chief of Staff of the Israel Defense Forces , he became a fighting symbol to the world of the new State of Israel...
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". The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate, which stipulated the right of the Jewish people to settle in the whole of the Mandated territory. According to Article 6 of the Mandate, "close settlement by Jews on the land, including State lands not required for public use" was to be encouraged. Article 25 allowed the League Council to temporarily postpone the Jewish right to settle in what is now Jordan, if conditions were not amenable. Article 80 of the U.N. Charter preserved this Jewish right to settlement by specifying that: "nothing in the [United Nations] Charter shall be construed ... to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments."
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 FranceFranceThe French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
should have acted in Alsace-LorraineAlsace-LorraineThe Imperial Territory of Alsace-Lorraine was a territory created by the German Empire in 1871 after it annexed most of Alsace and the Moselle region of Lorraine following its victory in the Franco-Prussian War. The Alsatian part lay in the Rhine Valley on the west bank of the Rhine River and east...
according to rule 42-56 of the Hague Rules of 1907, until the signing of a peace treaty.
Article 49
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
Jean Pictet
Jean Simon Pictet was a Swiss jurist, expert in international humanitarian law and senior staff member and Vice President of the International Committee of the Red Cross. He was the main architect of the 1949 Geneva Conventions and Additional Protocol I and Protocol II...
of the International Red Cross
International Committee of the Red Cross
The International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...
, this clause intended to prevent the World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
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".
Endorsement
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."
He argued that:
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, LauterpachtElihu LauterpachtSir Elihu Lauterpacht CBE QC is a British academic and lawyer, specializing in the international law, a founder of the Lauterpacht Centre for International Law at the Law Faculty of Cambridge University.-Biography:...
, 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".
Rejection
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
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
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
Oslo Accords
The Oslo Accords, officially called the Declaration of Principles on Interim Self-Government Arrangements or Declaration of Principles , was an attempt to resolve the ongoing Palestinian-Israeli conflict...
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.
Others claim that those who endorse the application of Article 49 misquote the first clause by omitting the phrases that qualify that the prohibited forced transfer is that of the "population of the occupied territory" and not the population of the Occupying Power. They also note that Pictet's commentary on Article 49 (6) states "the paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words "transfer" and "deport" is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power." Jean-Marie Henckaerts cites The Commentary and explains,
Despite this distinction, the transfer of nationals into occupied territory (settlements) on the one hand and the deportation of enemy civilians on the other hand usually have a common denominator: forced relocation.Françoise Bouchet-Saulnier explains,
Deportation refers to the forced transfer of civilians ... from the territory where they reside to the territory of the Occupying Power.... It is different from "population transfer," which describes a forced movement of population that takes place within the national territory"
David Kretzmer, Professor of International Law at Hebrew University of Jerusalem, has argued:
As paragraph 1 of Article 49 refers expressly to forcible transfers, it seems fair to conclude that the term "transfer" in paragraph 6 means both forcible and nonforcible transfers. This conclusion would seem to flow from the object of the Fourth Geneva Convention, which is to protect civilians in the occupied territory, and not the population of the occupied power. From the point of view of the protected persons, whether the transfer of outsiders into their territory is forcible or not would seem to be irrelevant."
Application
In July 1999, the conference of the High Contracting Parties to the Fourth Geneva Convention ruled that the Convention did apply in the Israeli-occupied territories. In 2001, the conference 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." In response, some argued that the conference had amended history and had construed the Convention only for this specific situation. According to barrister and human rights activist Stephen Bowen, arguments dismissing the ruling as applying to more specific cases were 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 242United Nations Security Council Resolution 242
United Nations Security Council Resolution 242 was adopted unanimously by the UN Security Council on November 22, 1967, in the aftermath of the Six Day War. It was adopted under Chapter VIof the United Nations Charter...
(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...."According to Rostow "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there".
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
Neve Yaakov
Neve Yaakov also Neve Ya'aqov, , is a neighborhood located in northeastern Jerusalem, north of Pisgat Ze'ev and south of al-Ram. Established in 1924 during the period of the British Mandate, it was abandoned during the 1948 Arab-Israeli War...
, Gush Etzion
Gush Etzion
Gush Etzion is a cluster of Israeli settlements located in the Judaean Mountains directly south of Jerusalem and Bethlehem in the West Bank, Palestinian territories. The core group includes four agricultural villages that were founded in 1940-1947 on property purchased in the 1920s and 1930s, and ...
, Hebron
Hebron
Hebron , is located in the southern West Bank, south of Jerusalem. Nestled in the Judean Mountains, it lies 930 meters above sea level. It is the largest city in the West Bank and home to around 165,000 Palestinians, and over 500 Jewish settlers concentrated in and around the old quarter...
, Kalia, and Kfar Darom
Kfar Darom
Kfar Darom was a kibbutz and an Israeli settlement within the Gush Katif bloc in the Gaza Strip.-Original kibbutz:Kfar Darom was founded on 250 dunams of land purchased in 1930 by Tuvia Miller for a fruit orchard on the site of an ancient Jewish settlement of the same name mentioned in the Talmud...
.
Contrary to this view other legal scholars have argued that under Articles 31 and 32 of the Vienna Convention on the Law of Treaties
Vienna Convention on the Law of Treaties
The Vienna Convention on the Law of Treaties is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980. The VCLT has been ratified by 111 states as of November...
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
League of Nations
The League of Nations was an intergovernmental organization founded as a result of the Paris Peace Conference that ended the First World War. It was the first permanent international organization whose principal mission was to maintain world peace...
following World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
.
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
United Nations Security Council Resolution 338
The three-line United Nations Security Council Resolution 338, adopted on October 22, 1973, called for a ceasefire in the Yom Kippur War in accordance with a joint proposal by the United States and the Soviet Union. The resolution stipulated a cease fire to take effect within 12 hours of the...
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. Indeed, 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
Ipso jure
Ipso jure is a Latin phrase, directly translated as by operation of law. It is used as an adverb.-Usage:The phrase is used to describe legal consequences that occur by the act of the law itself. For example, if property is held in a tenancy by the entirety by a husband and wife, who then get...
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
Antonio Cassese
Antonio Cassese was an Italian jurist who specialized in public international law. He was formerly associated with the Special Tribunal for Lebanon which he presided over until his resignation on health grounds in 1 October 2011...
disagrees with this analysis, arguing that whilst 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
Acquisition of sovereignty
A number of methods of acquisition of sovereignty are presently or have historically been recognised by international law as lawful methods by which a state may acquire sovereignty over territory.-Accretion:...
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.
Arguments based on historical agreements
Some have argued that Israel has a right to settle in areas agreed upon with Emir Faisal, the recognized political leader of the Arab world at the time. Faisal signed an agreement with Chaim WeizmannChaim Weizmann
Chaim Azriel Weizmann, , was a Zionist leader, President of the Zionist Organization, and the first President of the State of Israel. He was elected on 1 February 1949, and served until his death in 1952....
, the recognized leader of the modern Zionist movement
Zionism
Zionism is a Jewish political movement that, in its broadest sense, has supported the self-determination of the Jewish people in a sovereign Jewish national homeland. Since the establishment of the State of Israel, the Zionist movement continues primarily to advocate on behalf of the Jewish state...
.
The agreement, known as the Faisal-Weizmann Agreement
Faisal-Weizmann Agreement
The Faisal–Weizmann Agreement was signed on January 3, 1919, by Emir Feisal , who was for a short time King of the Arab Kingdom of Syria or Greater Syria in 1920, and was King of the Kingdom of Iraq from August 1921 to 1933, and Chaim Weizmann as part of the Paris Peace Conference, 1919 settling...
, signed in January 1919, agreed conditional terms of borders between the Jewish state and the Arab states, which include the present day territories in dispute and some of modern-day sovereign Jordan.
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 GoldDore Gold
Dore Gold is an Israeli statesman who has served in various diplomatic positions under several Israeli governments. He is the current President of the Jerusalem Center for Public Affairs...
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 noted that "... 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 January 30, 2009, the Associated PressAssociated Press
The Associated Press is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States, which both contribute stories to the AP and use material written by its staff journalists...
reported that Israeli political group Yesh Din
Yesh Din
Yesh Din is an Israeli human rights group providing legal assistance to citizens of the Palestinian territories. Its name comes from a Hebrew phrase meaning “there is law”...
plans to use a classified Israeli Government database to prove that many West Bank
West Bank
The West Bank ) of the Jordan River is the landlocked geographical eastern part of the Palestinian territories located in Western Asia. To the west, north, and south, the West Bank shares borders with the state of Israel. To the east, across the Jordan River, lies the Hashemite Kingdom of Jordan...
Israeli settlements were built on land privately owned by Palestinian citizens without compensation.
"Unauthorized" or "illegal" outposts
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, the Court has ruled that Article 43 of the Hague IV Convention is a mandatory planning consideration for approval of building projects on state lands in Judea and Samaria.
Pressured by America, the Sharon
Ariel Sharon
Ariel Sharon is an Israeli statesman and retired general, who served as Israel’s 11th Prime Minister. He has been in a permanent vegetative state since suffering a stroke on 4 January 2006....
administration commissioned the Sasson Report
Sasson Report
The Sasson Report is an official Israeli government report published on 8 March 2005 that concluded that Israeli state bodies had been discreetly diverting millions of shekels to build West Bank settlements and outposts that were illegal under Israeli law...
, 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
World Zionist Organization
The World Zionist Organization , or WZO, was founded as the Zionist Organization , or ZO, in 1897 at the First Zionist Congress, held from August 29 to August 31 in Basel, Switzerland...
, 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 the Judea, and Samaria. It lists four pre-conditions that must be fulfilled in each case. The second pre-condition regarding title to the land cites the precedent established in the Elon Moreh case. The third pre-condition 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 pre-condition 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 pre-conditions 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
Jewish Agency for Israel
The Jewish Agency for Israel , also known as the Sochnut or JAFI, served as the organization in charge of immigration and absorption of Jews from the Diaspora into the state of Israel.-History:...
.
As part of the 2003 "Road map" for peace
Road map for peace
The roadmap for peace or "road map" for peace is a plan to resolve the Israeli-Palestinian conflict proposed by a "quartet" of international entities: the United States, the European Union, Russia, and the United Nations. The principles of the plan, originally drafted by U.S. Foreign Service...
, Israel committed itself to remove about two dozen such settlements, an obligation it has yet to fulfill.
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, while 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 unauthourized Jewish settler outposts and some other settlements, thus raw sewage is contaminating the ground water in parts of the West Bank. Accoridng 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 August 17, 2009, four ministers on Netanyahu cabinet (Deputy Prime Minister and Minister of Internal Affairs
Internal Affairs Minister of Israel
The Interior Minister , also known as the Minister of Internal Affairs is head of the Israeli Ministry of Interior and an important portfolio in the cabinet. The current Interior Minister is Eli Yishai of Shas...
Eli Yishai
Eli Yishai
Eliyahu "Eli" Yishai is an Israeli politician and head of the Shas party. He currently serves as a member of the Knesset for Shas, and as both one of four Deputy Prime Ministers and Minister of Internal Affairs.- Political life :...
(Shas
Shas
Shas is an ultra-orthodox religious political party in Israel, primarily representing Sephardic and Mizrahi Haredi Judaism.Shas was founded in 1984 by dissident members of the Ashkenazi dominated Agudat Israel, to represent the interests of religiously observant Sephardic and Mizrahi ...
), Vice Prime Minister and Minister of Strategic Affairs
Strategic Affairs Minister of Israel
The Strategic Affairs Minister of Israel is the political head of the Israeli Ministry of Strategic Affairs and a member of the cabinet. The portfolio and ministry was created in 2006 for Avigdor Lieberman, whose Yisrael Beiteinu party had just joined the governing coalition...
Moshe Ya'alon
Moshe Ya'alon
Moshe "Bogie" Ya'alon is an Israeli politician and former Chief of Staff of the Israel Defense Forces. He currently serves as a member of the Knesset for Likud, as well as the country's Vice Prime Minister and Minister of Strategic Affairs.-Early life:...
(Likud
Likud
Likud is the major center-right political party in Israel. It was founded in 1973 by Menachem Begin in an alliance with several right-wing and liberal parties. Likud's victory in the 1977 elections was a major turning point in the country's political history, marking the first time the left had...
), Minister of Information Yuli Edelstein (Likud
Likud
Likud is the major center-right political party in Israel. It was founded in 1973 by Menachem Begin in an alliance with several right-wing and liberal parties. Likud's victory in the 1977 elections was a major turning point in the country's political history, marking the first time the left had...
), and Minister of Science and Technology Daniel Hershkowitz
Daniel Hershkowitz
Rabbi Professor Daniel Hershkowitz is an Israeli politician, mathematician and rabbi. In 2009 he was elected to the Knesset as the leader of The Jewish Home, and was appointed Minister of Science and Technology....
(The Jewish Home
The Jewish Home
-External links:*...
)) embarked on a tour of West Bank outposts. During the tour, Yishai stated that the outposts are not illegal:
These are legal settlements built by the governments of Israel. The people of Israel should know this settlement is legal. If someone thinks otherwise and plans to evacuate them, it will have to be approved by the government. You cannot just evacuate people from their homes without due process.