Vol. 10, No. 20
- Palestinian representatives at the UN have prepared a draft resolution that will seek to declare that Israeli settlements are “illegal and constitute a major obstacle to the achievement of peace.” The issue of the legality of Israel’s settlements policy has long been a central issue on the agenda of the international community.
- It is claimed that settlements are a violation of the Fourth Geneva Convention Relative to the Protection of Civilians (1949). But both the text of that convention, and the post-World War II circumstances under which it was drafted, clearly indicate that it was never intended to refer to situations like Israel’s settlements. According to the International Committee of the Red Cross, Article 49 relates to situations where populations are coerced into being transferred. There is nothing to link such circumstances to Israel’s settlement policy.
- During the negotiation on the 1998 Rome Statute of the International Criminal Court, Arab states initiated an addition to the text in order to render it applicable to Israel’s settlement policy. This was indicative of the international community’s acknowledgment that the original 1949 Geneva Convention language was simply not relevant to Israel’s settlements.
- The continued reliance by the international community on the Geneva Convention as the basis for determining the illegality of Israel’s settlements fails to take into account the unique nature of the history, legal framework, and negotiating circumstances regarding the West Bank.
- A special regime between Israel and the Palestinians is set out in a series of agreements negotiated between 1993 and 1999 that are still valid – that govern all issues between them, settlements included. In this framework there is no specific provision restricting planning, zoning, and continued construction by either party. The Palestinians cannot now invoke the Geneva Convention regime in order to bypass previous internationally acknowledged agreements.
Palestinian
representatives at the UN have prepared a draft resolution dated December 21,
that will seek to declare that Israeli settlements are “illegal and constitute
a major obstacle to the achievement of peace.”1 The claim is not
new. The issue of the legality of Israel’s settlements and the rationale of
Israel’s settlements policy have for years dominated the attention of the
international community. This has been evident in countless reports of
different UN bodies, rapporteurs, and resolutions,2 as well as in
political declarations and statements by governments and leaders. In varying
degrees, they consider Israel’s settlements to be in violation of international
law, specifically Article 49 of the Fourth Geneva Convention relative to the
Protection of Civilian Persons in Time of War, of August 12, 1949.3
But apart
from the almost standardized, oft-repeated, and commonly accepted clichés as to
the “illegality of Israel’s settlements,” or the “flagrant violation” of the
Geneva Convention, repeated even by the International Court of Justice,4
there has been little genuine attempt to elaborate and consider the substantive
legal reasoning behind this view. Yet there are a number of very relevant
factors that inevitably must be considered when making such a serious
accusation against Israel. These factors include:
- the text of the sixth paragraph of Article 49 of the Fourth Geneva Convention and the circumstances of, and reasons for, its inclusion in the Convention in December 1949;
- the unique circumstances of the territory and the context of the Israeli-Palestinian relationship that has developed since 1993 through a series of agreements between them. These agreements have created a sui generis framework that, of necessity, influences and even overrides any general determinations unrelated to that framework.
What Does Article 49 of the Fourth Geneva Convention Say?
Immediately
after the Second World War, the need arose to draft an international convention
to protect civilians in times of armed conflict in light of the massive numbers
of civilians forced to leave their homes during the war, and the glaring lack
of effective protection for civilians under any of the then valid conventions
or treaties.5 In this context, the sixth paragraph of Article 49 of
the Fourth Geneva Convention states:
The
Occupying Power shall not deport or transfer parts of its own civilian
population into the territory it occupies.6
What is
the exact meaning of this language? The authoritative and official commentary
by the governing body of the International Red Cross movement, the
International Committee of the Red Cross, published in 1958 in order to assist “Governments
and armed forces…called upon to assume responsibility in applying the Geneva
Conventions,”7clarifies this provision as follows:
It is
intended to prevent a practice adopted during the Second World War by certain
Powers, which transferred portions of their own population to occupied
territory for political and racial reasons or in order, as they claimed, to
colonize those territories. Such transfers worsened the economic situation of
the native population and endangered their separate existence as a race.
In other
words, according to the ICRC commentary, Article 49 relates to deportations,
meaning the forcible transfer of an
occupying power’s population into an occupied territory. Historically, over 40
million people were subjected to forced migration, evacuation, displacement,
and expulsion, including 15 million Germans, 5 million Soviet citizens, and
millions of Poles, Ukrainians and Hungarians.
The vast
numbers of people affected and the aims and purposes behind such a population
movement speak for themselves. There is nothing to link such circumstances to
Israel’s settlement policy. The circumstances in which Article 49(6) of the
Geneva Convention was drafted, and specifically the meaning attached by the
International Committee of the Red Cross itself to that article, raise a
serious question as to the relevance of linkage to and reliance on the article
by the international community as the basis and criterion for determining
Israel’s settlements as illegal. One may further ask if this is not a
misreading, misunderstanding, or even distortion of that article and its
context.
The
international lawyer Prof. Eugene V. Rostow, a former dean of Yale Law School
and Undersecretary of State, stated in 1990:
[T]he
Convention prohibits many of the inhumane practices of the Nazis and the Soviet
Union during and before the Second World War – the mass transfer of people into
and out of occupied territories for purposes of extermination, slave labor or
colonization, for example….The Jewish settlers in the West Bank are most
emphatically volunteers. They have not been “deported” or “transferred” to the
area by the Government of Israel, and their movement involves none of the
atrocious purposes or harmful effects on the existing population it is the goal
of the Geneva Convention to prevent.8
Ambassador
Morris Abram, a member of the U.S. staff at the Nuremburg Tribunal and later
involved in the drafting of the Fourth Geneva Convention, is on record as
stating that the convention:
was not
designed to cover situations like Israeli settlements in the occupied
territories, but rather the forcible transfer, deportation or resettlement of
large numbers of people.9
Similarly,
international lawyer Prof. Julius Stone, in referring to the absurdity of
considering Israeli settlements as a violation of Article 49(6), stated:
Irony
would…be pushed to the absurdity of claiming that Article 49(6), designed to
prevent repetition of Nazi-type genocidal policies of rendering Nazi
metropolitan territories judenrein,
has now come to mean that…the West Bank…must be made judenrein and must be so maintained, if necessary by the use of
force by the government of Israel against its own inhabitants. Common sense as
well as correct historical and functional context excludes so tyrannical a
reading of Article 49(6.)10
Article
49(6) uses terminology that is indicative of governmental action in coercing its
citizens to move. Yet Israel has not forcibly deported or mass-transferred its
citizens into the territories. It has consistently maintained a policy enabling
people to reside voluntarily on land that is not privately owned. Their
continued presence is subject to the outcome of the negotiation process on the
status of the territory, and without necessarily prejudicing that outcome.
In some
cases Israel has permitted its citizens who have for many years owned property
or tracts of land in the territory, and who had been previously dispossessed
and displaced by Jordan, to return to their own properties. The presence in
these areas of Jewish settlement from Ottoman and British Mandatory times is
totally unrelated to the context of, or claims regarding, the Geneva
Convention.
Israel has
never expressed any intention to colonize the territories, to confiscate land,
nor to displace the local population for political or racial reasons, nor to
alter the demographic nature of the area.
The series
of agreements signed with the Palestinian leadership has in fact placed the
entire issue of the status of the territory, as well as Israel’s settlements,
on the negotiating table – a factor that proves the lack of any intention to
colonize or displace. The fact that Israel chose unilaterally to dismantle its
settlements and remove its citizens from the Gaza Strip in 2005 is further
evidence of this.
The status
of the territory, including the rights of the parties therein and the Israeli
settlements, are the central negotiating issues between the two sides. In this
context, and pursuant to its obligations in Article XXXI (7) of the
Israeli-Palestinian Interim Agreement of 1993,11 Israel has not
taken any step to alter the status of the territory, which is open for
determination in the Permanent Status negotiations. Israel’s settlement
activity does not alter the status of the territory.
During the
negotiation on the 1998 Rome Statute of the International Criminal Court,12
Arab states initiated an alteration in the text of the Court’s statute listing
as a serious violation of the laws of armed conflict the war crime of “transferring,
directly or indirectly, parts of the
civil population into the occupied territory.”13 The deliberate
addition of the phrase “directly or indirectly” to the original 1949 text was
intended by them to adapt the original 1949 Geneva Convention language in order
to render it applicable to Israel’s settlement policy. This in itself is
indicative of the proponents’ and the international community’s acknowledgement
of the fact that Article 49(6) as drafted in 1949 was simply not relevant to
the circumstances of Israel’s settlements.
The Unique Circumstances of the Territory and the Special Nature of
the Israel-Palestinian Relationship
There is a
further and no less important reason why the Geneva Convention provisions
regarding transfer of populations cannot be considered relevant in any event to
the Israeli-Palestinian context.
The
entirely unique and sui generis
situation, history, and circumstances of the Israeli-Palestinian conflict
regarding the territories, as well as the series of agreements and memoranda
that have been signed between the Palestinian leadership and the Government of
Israel, have produced a special independent regime – a lex specialis – that governs all aspects of the relationship
between them, including the settlements issue.
As stated
above, the settlements issue is one of the core issues determined by the
parties to be negotiated in the Permanent Status negotiations,14 and
the Palestinian leadership has agreed and is committed to the fact that it does
not exercise jurisdiction regarding such Permanent Status issues, settlements
included, pending the Permanent Status negotiation.15
The
special regime governing the relationship between Israel and the Palestinians
is set out in the series of agreements and memoranda negotiated between 1993
and 1999 and still valid.16 These documents cover all the central
issues between them including issues of governance, security, elections,
jurisdiction, human rights, legal issues, and the like. In this framework there
is no specific provision either restricting planning, zoning and continued
construction by either party, of towns and villages, or freezing such
construction.17
Furthermore,
the two sides agreed in the 1995 Interim Agreement,18 signed and
witnessed by the U.S., the EU, Egypt, Jordan, Russia, and Norway, on a division
of their respective jurisdictions in the West Bank into areas A and B
(Palestinian jurisdiction) and area C (Israeli jurisdiction). They defined the
respective powers and responsibilities of each side in the areas they control.
Israel’s powers and responsibilities in Area C include all aspects regarding
its settlements – all this pending the outcome of the Permanent Status
negotiations. This division was accepted and agreed upon by the Palestinians,
who cannot now invoke the Geneva Convention regime in order to bypass their
acceptance of the Interim Agreement or their and the international community’s
acknowledgement of that agreement’s relevance and continued validity.
In fact,
during the course of the negotiations with Israel, the Palestinian delegation
requested that a “side letter” be attached to the agreement, the text of which
would be agreed upon, whereby Israel would commit to restricting settlement
construction in area C during the process of implementation of the agreement
and the ensuing negotiations. Several drafts of this “side letter” passed
between the negotiating teams until Israel indeed agreed to a formulation
restricting construction activities on the basis of a government decision that
would be adopted for that purpose. Ultimately, the Palestinian leadership
withdrew its request for a side letter.
Conclusion
The
settlement issue is perceived in many quarters as the central and only problem
obstructing the peaceful solution of the Middle East conflict, to the total
exclusion of all other issues, including terror, incitement, Jerusalem,
refugees, the Iranian threat, and the like.
The main
proponent orchestrating the settlement issue over the years has been the
Palestinian leadership, which has decided to isolate and take up the issue of
settlements as an independent “cause célèbre,”
despite the fact that it is among the agreed-upon items to be negotiated
between Israel and the Palestinians in the Permanent Status negotiations.
The
Palestinians chose to proceed with this policy in full awareness of the fact
that in their agreements, Israel had not obligated itself in any way to refrain
from, halt, or freeze construction in the settlements.
The
Palestinians preferred to take the settlement issue outside the framework of
the agreements with a view to opening a concerted international campaign to
isolate Israel on this issue and turn it into the international issue that we
are witnessing today. Furthermore, raising the settlement issue has succeeded
in blocking any progress in the negotiating process, so much so that the
Palestinian leadership is now holding any return to a negotiation mode as a
hostage to a settlement freeze.
The
international community is faced with ongoing and unceasing attempts by the
Palestinian leadership to bypass the negotiating process and to directly lobby
the international community, and to seek intervention by the UN Security
Council in order to attain a more formalized, institutionalized, and concerted
opinion as to the illegality of Israel’s settlements.
The
international community cannot seriously ignore the factors set out above, as well
as the implications that any such new resolution or decision might have on the
already agreed-upon, delicate structure of the peace process.
* *
*
Notes
* The
author wishes to thank Adam Shay of the Jerusalem Center for Public Affairs for
his assistance in researching UN resolutions and other material for this
article.
1.
Mohammed Daraghmeh, “Palestinians to Take Settlement Battle to UN,” Associated
Press, December 29, 2010. See
http://www.washingtontimes.com/news/2010/dec/29/palestinians-take-settlement-battle-un/.
2.
Extending from General Assembly Resolution A/RES/3005/(XXVII) of December 15,
1972, through Security Council Resolutions 446(1979), 452 (1979), 465(1980), to
the most recent General Assembly resolution of December 10, 2010, A/RES/65/105.
3. United
Nations, Treaty Series, vol. 75, No. 973, p. 287.
4. The
International Court of Justice in its 2004 Advisory Opinion on Israel’s
Security Fence. See http://www.icj-cij.org/docket/files/131/1671.pdf at
paragraph 120.
5. See ICRC Commentary to the Fourth Geneva
Convention, edited by Jean S. Pictet (1958), at pages 3-9, for an extensive
summary of the reasoning behind the drafting of the convention.
6. Id., p.
278.
7. See the
Foreword to the ICRC Commentary, at note 5 above.
8. American Journal of International Law,
Vol. 84, 1990, p. 719.
9.
Ambassador Morris Abram, in a discussion with Arab ambassadors in Geneva,
February 1, 1990.
10. Quoted
in Phillips, “The Illegal Settlements Myth,”
Commentary, 2010.
11. See
note 14 supra
12. U.N.
Doc. A/CONF.183/9*
13. The
relevant part of Article 8, paragraph 2(b)(viii), listing the various war
crimes, reads as follows: “The transfer, directly
or indirectly, by the Occupying Power of parts of its own civilian
population into the territory it occupies” (emphasis not in the original).
14.
Israel-Palestinian Declaration of Principles on Interim Self-Government
Arrangements of Sept. 13, 1993, Article V, para. 3, as well as Article XXXI,
para. 5 of the Interim Agreement, http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Principles.htm.
15. See
the Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip,
Sept. 28, 1995, at Article XVIII, para. 1,
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT.htm.
16.
Israel-Palestinian Declaration of Principles, September 13, 1993, Exchange of
Letters between Prime Minister Rabin and Chairman Arafat of September 9-10,
1993, Agreement on the Gaza Strip and the Jericho Area, May 4, 1994, Interim
Agreement between Israel and the Palestinians, September 28, 1995, Agreement on
Temporary International Presence in Hebron, May 9, 1996, The Wye River
Memorandum, October 23, 1998, The Sharm el-Sheikh Memorandum on Implementation
Timeline of Outstanding Commitments of Agreements Signed and the Resumption of
Permanent Status Negotiations, September 4, 1999, Protocol Concerning Safe
Passage between the West Bank and the Gaza Strip, October 5, 1999. All these
documents are referenced in
http://www.mfa.gov.il/mfa/peace%20process/reference%20documents/.
17.
Article 27 of Annex III (Civil Affairs Annex) to the 1995 Interim Agreement
sets out the agreed terms for planning and zoning and construction powers in
the territories, and places no limitation on either side to build in the areas
under their respective jurisdictions.
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Gaza-Jericho+Agreement+Annex+II.htm.
18.
Article IV (Land), see note 15.
* *
*
Amb. Alan
Baker, Director of the Institute for Contemporary Affairs at the Jerusalem
Center for Public Affairs, is former Legal Adviser to Israel’s Foreign Ministry
and former Ambassador of Israel to Canada. He is a partner in the law firm of
Moshe, Bloomfield, Kobo, Baker & Co. He participated in the negotiation and
drafting of the various agreements comprising the Oslo Accords.
Publication: Jerusalem Issue
Briefs
- See more at: http://jcpa.org/article/the-settlements-issue-distorting-the-geneva-convention-and-the-oslo-accords/#sthash.mjuAXuhA.dpuf
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