Opinion Editorials, May 2009

The legal status of Israeli Settlement Activities in the Palestinian Occupied Territories

By Samir Abed-Rabbo

ccun.org, May 26, 2009

In his latest visit to the United State of America, Israel’s Prime Minister Benjamin Netanyahu attempted to persuade President Barack Obama of the United States that Iran’s nuclear program was the main obstacle to peace in the Middle East. The President, while seeming to agree with Mr. Netanyahu, tried to push for a movement on the stalled peace talks between Israel and the Palestine authority. In Cairo, President Obama on the eve of the anniversary attack on Egypt, Syria, and Jordan in 1967 is expected to unveil his vision for peace in the Middle East. He is expected to reiterate US position on US support for a two-state solution and to stop Israeli settlement-building on the land of the future Palestinian state. Mr. Netanyahu, during the meeting refused to endorse President Obama’s ideas and upon his return announced the intent of Israel to expand existing settlements. In this essay, I plan to examine the legal status of Israeli settlement activities in the Palestinian occupied territories.

PART I 

In the aftermath of WW2 and due to American and European political manipulation and guilt feelings for Nazi atrocities against Jews, the UN General Assembly adopted its plan (Resolution 181) to partition Palestine into two states. The Palestinians were to remain the majority in the two states and their rights were to be maintained and protected.  

Since its establishment in 1948, Israel has violated numerous UN resolutions including the very one creating it and international law by occupying and annexing land recognized and designated to the future Palestinian state and by uprooting Palestinians from their legal and historical homeland. Additionally, Israel is in breach of international law by refusing the return of the uprooted Palestinians, by transferring its nationals, by building settlements and by changing the character of the occupied Palestinian territory. For the purpose of this essay, I will limit my scope to the Palestinian territory occupied by Israel in 1967. 

Transfer and Settlement 

From 1967 to 2002 Israel created 157 settlements in the West Bank (141) and the Gaza Strip (16). During this period, Israel transferred approximately 385,000 settlers to colonize and settle on annexed or confiscated Palestinian land. Approximately 100,000 settlers live in eight settlements and the remaining have an average population of approximately 720. In order to build some of the settlements, Israel bulldozed approximately 10 sq. km. of fields and orchards. From 1993 to 2001, Israel confiscated more than 70,000 acres of land and uprooted more than 282,000 trees for settlement activities. Israel’s settlement activities are for the exclusive benefit of its Jewish nationals and are designed to disrupt Palestinian communities and to change the character of the occupied territory. What is the legal status of the settlers and settlement in international law?

Humanitarian law on Transfer and Settlement

International law is the product of an evolutionary process that spans centuries. National courts and prominent legal scholars contributed to its development and codification. International law covers all aspects that govern relations between states, and in certain aspects non-state entities. One aspect of customary law that witnessed the greatest expansion is Humanitarian law.

Humanitarian law governing the rights and protection of civilians in territories under the occupation by a belligerent enemy was developed in the nineteenth century. In the aftermath of the war of 1812, when parts of the United States were occupied by Great Britain, the US Supreme Court defined and formulated some of the clearest principles   on the effect of occupation which found their way into customary laws as integral features.  

The Supreme Court held in U.S. v. Rice that US laws were only suspended in the portion of the country under British occupation. In Shanks v. DuPont, the Supreme Court held that the capture of Charleston, SC by Great Britain during the Revolutionary War did not change the allegiance or the national character of the inhabitants. These profound legal rulings contributed to the clearest development in nineteenth century customary international law: the occupying power has no authority to disturb inhabitant’s rights including private property rights. 

In the later part of the nineteenth century, customary international law evolved from the rule where the occupying power had no authority over private property rights as opposed to property belonging to the occupied state, to the rule that the belligerent occupant had no sovereign power over both. The Brussels Declaration of 1874 added more protection for both the lives and the property of the civilian population of occupied territory. In 1899 and 1907, the Hague Conference codified some legal aspects of customary international law incorporating the emerging principle that a belligerent power has no sovereign rights. Article 46 annexed to each Convention declares: 

Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.  

Article 56 of the said Conventions provides: 

The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and science, even when State property, shall be treated as private property.  

All seizure or destruction of, or willful damage to , institutions of this character, historic monuments, works of art and science, is forbidden, and should be made subject of legal proceedings. 

The above mentioned provisions were regarded as law making when written and are considered today by the community of states as customary international law. 

During World War II, Nazi Germany and Militarist Japan violated existing customary law concerning human and property rights of the civilian population under their control. Both countries tried to evade the application of the law by annexing the territory or by bringing it under the control of puppet regimes. In the post WW2 crimes trial at Nuremberg, Nazi Defendants argued that they were not bound by customary international law since the occupied territory was annexed to Germany. The Military Tribunal rejected this argument and held that the Nazi annexation was invalid and that the provisions of the Hague Convention IV of 1907 continued to be applicable.   

In 1949 as a direct result of the atrocities of World War II, the Geneva Diplomatic Conference convened with the resolve not to repeat them. The Conference dealt exclusively with the protection of war victims on land (I) and sea (II) and prisoners of war (III). The Conference produced the Geneva Convention I, II, III and IV. The Geneva Convention IV dealt exclusively with the protection of civilian populations. Article 47 of the Geneva Convention IV provides that the inhabitants of the occupied territory are not to be deprived of their rights under the Convention throughout the duration of the occupation by any changes made in the institutions or government of the territory or by agreement between the local authorities and the occupying power or by any form of annexation: 

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory. 

Article 49 prohibits in unequivocal terms, the forcible removal or deportation or transfer of the indigenous population. Also, it forbids the occupying power from transferring its population and from the establishing settlements in the occupied territory: 

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.

Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.

The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.

The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand. 

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

PART II 

Israel’s Obligations to implement UN Resolutions 

UN Charter  Article (2) obligates all states to abide by the Charter and to implement the decisions of the Organization:

1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.

2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.  

In 1967, Security Council adopted Resolution #242 reiterating the position of customary international law regarding the illegality of occupying territory by force and calling on Israel to withdraw from territories occupied in the recent war. The Resolution stated: 

Expressing its continuing concern with the grave situation in the Middle East,

Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,

Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter,

Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

·         Withdrawal of Israeli armed forces from territories occupied in the recent conflict;

·         Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;

Affirms further the necessity

·         For guaranteeing freedom of navigation through international waterways in the area;

·         For achieving a just settlement of the refugee problem;

·         For guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;

 Did Israel withdraw from the territories occupied in 1967? With the exception of the Sinai of Egypt, Israel remains occupying lands belonging to Syria and Palestine.

On March 1, 1980 the UN Security Council adopted Resolution 465 on the question of Transfer and settlement. The resolution held all of Israel’s activities to change the character of Palestinian and Arab territories to build settlements, and to transfer settlers to be illegal, null and void. The resolution states in part:

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Affirming once more that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem,

Deploring the decision of the Government of Israel to officially support Israeli settlement in the Palestinian and other Arab territories occupied since 1967, Deeply concerned over the practices of the Israeli authorities in implementing that settlement policy in the occupied Arab territories, including Jerusalem, and its consequences for the local Arab and Palestinian population, Taking into account the need to consider measures for the impartial protection of private and public land and property, and water resources,

Bearing in mind the specific status of Jerusalem and, in particular, the need for protection and preservation of the unique spiritual and religious dimension of the Holy Places in the city,

Drawing attention to the grave consequences which the settlement policy is bound to have on any attempt to reach a comprehensive, just and lasting peace in the Middle East, Recalling pertinent Security Council resolutions, specifically resolutions 237 (1967) of 14 June 1967, 252 (1968) of 21 May 1968, 267 (1969) of 3 July 1969, 271 (1969) of 15 September 1969 and 298 (1971) of 25 September 1971, as well as the consensus statement made by the President of the Security Council on 11 November 1976, 2.

Accepts the conclusions and recommendations contained in the above-mentioned report of the Commission. 5.

Determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel's policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East; 6.

Strongly deplores the continuation and persistence of Israel in pursuing those policies and practices and calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem; 7.

Calls upon all States not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories;

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Did Israel stop its settlement, transfer and activities to change the character of the Palestinian territories? Of course not! Did America and the European States end their assistance to Israel’s settlement activities? Definitely not! Was Israel held to account for refusing to comply with Security Council binding resolutions? Certainly not! 

In a milestone development in international law, the Rome Statute of the International Criminal Court (1998) particularly Article 7 (d) defining Crimes against humanity “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without ground permitted under international law;” and Article 8 (viii) which defines War Crimes. This section considers "the transfer directly or indirectly by the Occupying power of parts of its own civilian population into the territory it occupies" as a War Crime. Article 8 (xiii) holds that “Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;” as a war crime. All war crimes are indictable by the International Criminal Court. Have the architects of Israel’s settlement and transfer policies been held to account? So far no, but time may hold pleasant surprises to the victims of Israel’s atrocities!

Conclusion

The historical record shows that Israel transferred its population to the occupied territory; that Israel established settlements on land belonging to the indigenous population, the Palestinians; that Israel refused to withdraw from the occupied territory; and that Israel deprived the indigenous population of peaceful, normal and dignified life and subjected them to torture and ill-treatment. 

Israel, regardless of any agreement reached with the local authorities, is in violation of international law. Its occupation and practices in the territory are illegal, null and void. The Israeli military and civilian presence (settlers and settlements) must be dismantled and removed. Israeli personnel and supporters abroad are responsible for violating international law and must be brought to justice for their war crimes. Until then, Israel’s annexation and settlement activities are invalid and the relevant provisions of customary international law continue to be applicable. States must come together to uphold international law and hold Israel responsible for its continued war crimes.    

Dr. Samir Abed-Rabbo is the author and editor of several books and articles on Islam, International Law and Affairs, and US Foreign Policy. He is the former Dean of The Jerusalem School of Economics and Diplomacy, which was shut down by the Palestinian Authority.