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Diplomatic and Legal Aspects of the Settlement Issue - Jeffrey Helmreich
- Vol. 2, No. 16
Institute for Contemporary Affairs
founded jointly with the Wechsler Family Foundation
Vol. 2, No. 16 January 19, 2003
Diplomatic and Legal Aspects of the Settlement Issue
The outbreak of the Al Aqsa Intifada in the fall of 2000 began to erode the orthodoxy that settlements were driving Palestinian anger and blocking peace. New York Times foreign affairs analyst Thomas L. Friedman wrote in October 2000: This war is sick but it has exposed some basic truths. In particular, Friedman wrote, To think that the Palestinians are only enraged about settlements is also fatuous nonsense. Talk to the 15-year-olds. Their grievance is not just with Israeli settlements, but with Israel. Most Palestinians simply do not accept that the Jews have any authentic right to be here. For this reason, any Palestinian state that comes into being should never be permitted to have any heavy weapons, because if the Palestinian had them today, their extremists would be using them on Tel Aviv.
In recent months, however, the settlements have re-emerged as an explanation for the failure of nearly every ceasefire and diplomatic effort to quell the conflict. The Mitchell Report in 2001 and recent remarks by visiting U.S. senators have raised the question of settlements (though not directly blaming them for the conflict), and the UN General Assembly concluded its 2002 session with over 15 agenda items condemning illegal Israeli settlements. Settlements have also become a focal point in the Quartets December 2002 road map.
In fact, since their establishment nearly three decades ago, settlements have been the cause celebre of critics seeking to attribute the persistence of the conflict to Israeli policy. The criticism falls into two categories: moral/political arguments that settlements are obstacles to peace, and legal claims that settlements are illegitimate or a violation of international norms. The pervasiveness of these claims masks the fact that, upon closer scrutiny, they are false, and they hide the true source of grievances and ideological fervor that fuel this conflict.
An Obstacle to Peace?
Settlements are Not Illegal
The Settlements are Consistent with Resolution 242
Many observers incorrectly assume that UN Security Council Resolution 242 requires a full Israeli withdrawal from the land Israel captured in the 1967 Arab-Israeli War. Some may have a hidden agenda aimed at depriving Israel of any legal rights whatsoever in the disputed areas. In either case, they use this misinterpretation to conclude that settlement activity is unlawful because it perpetuates an illegal Israeli occupation.
The assumption and the conclusion are deeply flawed. Resolution 242 calls for only an undefined withdrawal from a portion of the land and only to the extent required by secure and recognized boundaries. Israel has already withdrawn from the majority of the land it had captured, and nearly all of the areas in which it retains communities are essential to secure and recognized boundaries. The specific location of Israeli settlements was determined by Israels Ministry of Defense over the last 30 years, not by the settlers themselves, and they were set up in order to strengthen Israels presence in those few areas from which it cannot, militarily, afford to withdraw.
Settlements are Consistent with the Geneva Conventions
In three recent emergency special sessions of the UN General Assembly, Israeli settlement was cited as a violation of the 1949 Fourth Geneva Convention. These international humanitarian instruments, forged in the ashes of the Holocaust to prevent future genocidal brutality and oppression, were never invoked in 50 years until the case of condominium construction in Jerusalem during 1998. Was such construction any settlement construction a violation of the Geneva Convention?
No. The relevant clause, Article 49, prohibits the occupying power from transferring population into the occupied territory. Aside from the fact that the territory is not occupied, but disputed, Morris Abrams, the U.S. Ambassador to the UN in Geneva, had pointed out that the clause refers to the forcible transfer of large populations. By contrast, the settlements involve the voluntary movement of civilians. The U.S. Department of State, accordingly, does not view Article 49 of the Fourth Geneva Convention as applicable to settlement activity in the West Bank and Gaza Strip. For that reason, the official U.S. position has been over the years that settlements are legal, even though successive administrations have criticized them on political grounds. (Only the Carter administration for a short time held that settlements were illegal; this position was overturned by the Reagan administration.)
Settlement Growth Never Violated Oslo
Although certain Palestinian negotiators demanded a settlement freeze, the peace agreement ultimately reached by Israel and the Palestinians at Oslo, along with the Interim Agreement of 1995, allow settlement growth as well as the growth and creation of Palestinian communities in the disputed territories. The Palestinians acquired planning and zoning rights in Area A, while Israel retained the same rights in Area C where the settlements were located. Indeed, their legal status was to be addressed and decided only in the final status negotiations which, unfortunately, never took place. Until this point is reached, settlement growth remains within the legal scope of the Oslo Agreements.
At the October 5, 1995, session of the Knesset at which the Interim Agreement was ratified, the late Prime Minister Yitzhak Rabin proclaimed that we committed ourselves before the Knesset, not to uproot a single settlement in the framework of the interim agreement, and not to hinder building for natural growth (Israel Foreign Ministry, http://www.israel-mfa.gov.il/ mfa/go.asp?MFAH00te0). On the basis of this understanding of Oslo II, the Knesset voted to approve the Agreement.
One may legitimately support or challenge Israeli settlements in the disputed territories, but they are not illegal, and they have neither the size, the population, nor the placement to seriously impact upon the future status of the disputed territories and their Palestinian population centers.
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Jeffrey S. Helmreich is the author of numerous articles on Israel for American newspapers and journals.
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