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Comment...The
Palestinians and their supporters are attempting to promote their cause
by channeling every event through the prism of the disputed territories.
In doing so, they
have succeeded in diverting the discussion away from the relevant facts,
rewriting or ignoring history and reinventing international law to suit
their aims.
The present intifada
inhibits negotiations towards the creation of a Palestinian controlled
territory.
Israeli Settlements and International
Law
May 2001
The Historical Context
- Jewish settlement
in West Bank and Gaza Strip territory has existed from time immemorial
and was expressly recognised as legitimate in the Mandate for Palestine
adopted by the League of Nations, which provided for the establishment
of a Jewish state in the Jewish people's ancient homeland. Indeed, Article
6 of the Mandate provided as follows:
"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".
- Some Jewish settlements, such as in
Hebron, existed throughout the centuries of Ottoman rule, while settlements
such as Neve Ya'acov, north of Jerusalem, the Gush Etzion bloc in Judea
and Samaria, the communities north of the Dead Sea and Kfar Darom in
the Gaza region, were established under British Mandatory administration
prior to the establishment of the State of Israel. To be sure, many
Israeli settlements have been established on sites which were home to
Jewish communities in previous generations, in an expression of the
Jewish people's deep historic and religious connection with the land.
- For more than a thousand years, the
only administration which has prohibited Jewish settlement was the Jordanian
occupation administration, which during the nineteen years of its rule
(1948-1967) declared the sale of land to Jews a capital offense. The
right of Jews to establish homes in these areas, and the legal titles
to the land which had been acquired, could not be legally invalidated
by the Jordanian or Egyptian occupation which resulted from their armed
invasion of Israel in 1948, and such rights and titles remain valid
to this day.
International Humanitarian Law in the West Bank and Gaza Strip
- International humanitarian law prohibits
the forcible transfer of segments of the population of a state to the
territory of another state which it has occupied as a result of the
resort to armed force. This principle, which is reflected in Article
49 of the Fourth Geneva Convention, was drafted immediately following
the Second World War. As International Red Cross' authoritative commentary
to the Convention confirms, the principle was intended to protect the
local population from displacement, including endangering its separate
existence as a race, as occurred with respect to the forced population
transfers in Czechoslovakia, Poland and Hungary before and during the
war. This is clearly not the case with regard to the West Bank and Gaza.
- The attempt to present Israeli settlements
as a violation of this principle is clearly untenable. As Professor
Eugene Rostow, former Under-Secretary of State for Political Affairs
has written: "the Jewish right of settlement in the area is equivalent
in every way to the right of the local population to live there" (AJIL,
1990, vol. 84, p.72).
- The provisions of the Geneva Convention
regarding forced population transfer to occupied sovereign territory
cannot be viewed as prohibiting the voluntary return of individuals
to the towns and villages from which they, or their ancestors, had been
ousted. Nor does it prohibit the movement of individuals to land which
was not under the legitimate sovereignty of any state and which is not
subject to private ownership. In this regard, Israeli settlements have
been established only after an exhaustive investigation process, under
the supervision of the Supreme Court of Israel, designed to ensure that
no communities are established on private Arab land.
- It should be emphasised that the movement
of individuals to the territory is entirely voluntary, while the settlements
themselves are not intended to displace Arab inhabitants, nor do they
do so in practice.
- Repeated charges regarding the illegality
of Israeli settlements must therefore be regarded as politically motivated,
without foundation in international law. Similarly, as Israeli settlements
cannot be considered illegal, they cannot constitute a "grave violation"
of the Geneva Convention, and hence any claim that they constitute a
"war crime" is without any legal basis. Such political charges cannot
justify in any way Palestinian acts of terrorism and violence against
innocent Israelis.
- Politically, the West Bank and Gaza
Strip is best regarded as territory over which there are competing claims
which should be resolved in peace process negotiations. Israel has valid
claims to title in this territory based not only on its historic and
religious connection to the land, and its recognized security needs,
but also on the fact that the territory was not under the sovereignty
of any state and came under Israeli control in a war of self-defense,
imposed upon Israel. At the same time, Israel recognizes that the Palestinians
also entertain legitimate claims to the area. Indeed, the very fact
that the parties have agreed to conduct negotiations on settlements
indicated that they envisage a compromise on this issue.
Israeli-Palestinian Agreements
- The agreements reached between Israel
and the Palestinians contain no prohibition whatsoever on the building
or expansion of settlements. On the contrary, it is specifically provided
that the issue of settlements is reserved for permanent status negotiations,
which are to take place in the concluding stage of the peace talks.
Indeed, the parties expressly agreed that the Palestinian Authority
has no jurisdiction or control over settlements or Israelis, pending
the conclusion of a permanent status agreement.
- It has been charged that the prohibition
on unilateral steps which alter the "status" of the West Bank and Gaza
Strip, which is contained in the Interim Agreement and in subsequent
agreements between the parties, implies a ban on settlement activity.
This position is disingenuous. The building of homes has no effect on
the status of the area. The prohibition on unilateral measures was agreed
upon in order to ensure that neither side take steps to change the legal
status of this territory (such as by annexation or unilateral declaration
of statehood), pending the outcome of permanent status negotiations.
Were this prohibition to be applied to building, it would lead to the
ridiculous interpretation that neither side is permitted to build homes
to accommodate for the needs of their respective communities.
- It is important to note, that in the
spirit of compromise and in an attempt to take constructive confidence
building measures in the peace process, successive Israeli governments
have expressly recognized the need for territorial compromise in West
Bank and Gaza Strip territory and have voluntary adopted a freeze on
the building of new settlements. In this regard, the present National
Unity Government, under Prime Minister Ariel Sharon, has officially
declared that it will not build any new settlements, while remaining
committed to the basic needs of the existing settlement communities
(Government of Israel, Policy Guidelines, March 2001).
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