Final Paper

About the Israeli Settlements

& their legal & political impacts

Presented by:

Abd elHamied ELRafie

To Professer Camilo Perez BustilloFor the course of

International OrganizationsOf the Masters Program for

International RelationsAlliant University

Introduction:

Israeli settlements are communities inhabited by Israelis in territory that was occupied during the 1967 Six-Day War. Such settlements currently exist in the West Bank, which is partially under Israeli military administration] and partially under the control of the Palestinian National Authority, and in the Golan Heights, which are under Israeli civilian administration.

The term sometimes includes communities in territory that was captured in 1967, but has since been under Israeli civil law, administration and jurisdiction in

East Jerusalem, which is incorporated within the municipal borders of Jerusalem, though this de jure annexation under the Jerusalem Law is not recognized by the international community; and

The Golan Heights, where military rule was revoked in 1981 and has since been under Israeli civil law, administration and jurisdiction under the Golan Heights Law.

An additional eighteen settlements formerly existed in the Sinai Peninsula, twenty-one in the Gaza Strip and four in the northern Samaria region of the West Bank. They were abandoned as part of Israeli withdrawals from these areas in 1982 (Sinai) and 2005.

A number of international bodies, including the United Nations Security Council, the International Court of Justice, the European Union, Amnesty International and Human Rights Watch and many legal scholars have characterized the settlements as a violation of international law, but other legal scholars, Israel, and the Anti-Defamation League disagree with this assessment.

Israeli policies toward these settlements have ranged from active promotion to removal by force, and their continued existence and status since the 1970s is one of the most contentious issues in the Israeli-Palestinian conflict

Legal status of the territories

Although all areas in question were captured by Israel in the 1967 Six-Day War, Israel has treated them in three different ways:

“East Jerusalem” - Jerusalem and its surroundings were envisioned as an international area under United Nations administration in the 1947 partition plan. In 1948, Jordan captured and annexed the eastern half of Jerusalem, while Israel captured and annexed the west. Following the Six-Day War in 1967 Israel annexed the eastern part, together with several villages around it.

The Israeli Golan Heights Law of 1981 applied Israel’s “laws, jurisdiction and administration” in the Golan Heights, which were captured from Syria in 1967 . Israel has not stated that it has “annexed” the area.

The Gaza Strip and West Bank, a section of the areas awarded by the UN to a prospective Arab state of Palestine, remained in Arab hands while the rest of that area was captured by Israel in the 1948 Arab-Israeli War. The former was administered by Egypt while the latter was annexed by Jordan.

The annexation of East Jerusalem and the Golan Heights Law have both been deemed illegal by the UN Security Council (resolutions 267 and 497 respectively), and have not been recognized by other states.

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)

Legal status of the settlements

The establishment and expansion of Israeli settlements in the West Bank and Gaza Strip have been described as “having no legal validity” by the UN Security Council in resolutions 446, 452, 465 and 471. These resolutions were made under Chapter VI of the United Nations Charter which relates to the “Pacific Settlement of Disputes” between parties, and as such have no enforcement mechanisms and are generally considered to have no binding force under international law

UNSC resolutions in this regard:

1. Resolution 452 (1979)of 20 July 1979

The Security Council,

Taking note of the report and recommendations of the Security Council Commission established under resolution 446 (1979) to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, contained in document S/13450,

Strongly deploring the lack of co-operation of Israel with the Commission,

Considering that the policy of Israel in establishing settlements in the occupied Arab territories has no legal validity and constitutes a violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949,

Deeply concerned by the practices of the Israeli authorities in implementing that settlements policy in the occupied Arab territories, including Jerusalem, and its consequences for the local Arab and Palestinian population,

Emphasizing the need for confronting the issue of the existing settlements and the need to consider measures to safeguard the impartial protection of property seized,

Bearing in mind the specific status of Jerusalem, and reconfirming pertinent Security Council resolutions concerning Jerusalem and in particular the need to protect and preserve the unique spiritual and religious dimension of the Holy Places in that city,

Drawing attention to the grave consequences which the settlements policy is bound to have on any attempt to reach a peaceful solution in the Middle East,

1. Commends the work done by the Commission in preparing the report on the establishment of Israeli settlements in the Arab territories occupied since 1967, including Jerusalem;

2. Accepts the recommendations contained in the above-mentioned report of the Commission;

3. Calls upon the Government and people of Israel to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem;

4. Requests the Commission, in view of the magnitude of the problem of settlements, to keep under close survey the implementation of the present resolution and to report back to the Security Council before 1 November 1979.

Adopted at the 2159th meeting by 14 votes to none, with 1 abstention (United States of America).

Resolution 465 (1980)Adopted by the Security Council at its 2203rd meetingon 1 March 1980

The Security Council,

Taking note of the reports of the Commission of the Security Council established under resolution 446 (1979) to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, contained in documents S/13450 and Corr. 1 and S/13679,

Taking note also of letters from the Permanent Representative of Jordan (S/13801) and the Permanent Representative of Morocco, Chairman of the Islamic Group (S/13802),

Strongly deploring the refusal by Israel to co-operate with the Commission and regretting its formal rejection of resolutions 446 (1979) and 452 (1979),

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,

Having invited Mr. Fahd Qawasmeh, Mayor of Al-Khalil (Hebron), in the occupied territory, to supply it with information pursuant to rule 39 of the provisional rules of procedure,

1. Commends the work done by the Commission in preparing the report contained in document S/13679;

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

3. Calls upon all parties, particularly the Government of Israel, to co-operate with the Commission;

4. Strongly deplores the decision of Israel to prohibit the free travel of Mayor Fahd Qawasmeh in order to appear before the Security Council, and requests Israel to permit his free travel to the United Nations headquarters for that purpose;

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;

8. Requests the Commission to continue to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, to investigate the reported serious depletion of natural resources, particularly the water resources, with a view to ensuring the protection of those important natural resources of the territories under occupation, and to keep under close scrutiny the implementation of the present resolution;

9. Requests the Commission to report to the Security Council before 1 September 1980, and decides to convene at the earliest possible date thereafter in order to consider the report and the full implementation of the present resolution

.Resolution 446 (1979)of 22 March 1979

The Security Council,Having heard the statement of the Permanent Representative of Jordan and other statements made before the Council,

Stressing the urgent need to achieve a comprehensive, just and lasting peace in the Middle East,

Affirming once more that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 1/ is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem,

1. Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and

constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;

2. Strongly deplores the failure of Israel to abide by Security Council resolutions 237 (1967) of 14 June 1967, 252 (1968) of 21 May 1968 and 298 (1971) of 25 September 1971 and the consensus statement by the President of the Security Council on 11 November 1976 2/ and General Assembly resolutions 2253 (ES-V) and 2254 (ES-V) of 4 and 14 July 1967, 32/5 of 28 October 1977 and 33/113 of 18 December 1978;

3. Calls once more upon Israel, as the occupying Power, to abide scrupulously by the 1949 Fourth Geneva Convention, to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem, and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories;

4. Establishes a Commission consisting of three members of the Security Council, to be appointed by the President of the Council after consultations with the members of the Council, to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem;

5. Requests the Commission to submit its report to the Security Council by 1 July 1979;

6. Requests the Secretary-General to provide the Commission with the necessary facilities to enable it to carry out its mission.

7. Decides to keep the situation in the occupied territories under constant and close scrutiny and to reconvene in July 1979 to review the situation in the light of the findings of the Commission.

Adopted at the 2134th meeting by 12 votes to none, with 3 abstentions (Norway, United Kingdom of Great Britain and Northern Ireland, United States of America).________________________1/ United Nations, Treaty Series, vol. 75, p. 287.2/ Official Records of the Security Council, Thirty-first Year, 1969th meeting.

Arguments based on the 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. 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

Amnesty International argues that Israel’s settlement policy is not only illegal, but is discriminatory and a violation of Palestinian human rights:

‘As well as violating international humanitarian law per se, the implementation of Israel’s settlement policy in the Occupied Territories violates fundamental human rights provisions, including the prohibition of discrimination. The seizure and appropriations of land for Israeli settlements, bypass roads and related infrastructure and discriminatory allocation of other vital resources, including water, have had a devastating impact on the fundamental rights of the local Palestinian population, including their rights to an adequate standard of living, housing, health, education, and work, and freedom of movement within the Occupied Territories.”

Human Rights Watch reports on physical violence against Palestinians by settlers, including, “frequent[ly] stoning and shooting at Palestinian cars. In many cases, settlers abuse Palestinians in front of Israeli soldiers or police with little interference from the authorities.”

The recent construction of the Israeli West Bank barrier routed inside the green line to encompass a variety of settlements has also been cited as an infirengement on Palestinian human and land rights. The United Nations Office for the Coordination of Humanitarian Affairs estimates that 10% of the West Bank will fall on the Israeli side of the barrier.

Israel’s Argument for the Legality of the Settlements in the OPT

Notwithstanding the earlier denial by Israel of the applicability of Article 49 of the Fourth Geneva Convention to the OPT, the Israeli government has developed an interpretation of Article 49 which implies a distinction between the forcible transfer of the occupier’s population and the voluntary migration of individuals from the Occupying Power. According to the Israeli interpretation, only forcible transfers of population are prohibited. Under this argument, the settlers themselves established the settlements, with no pressure on the part of the Israeli government. Therefore, Israel did not violate Article 49 paragraph (6) as it did not forcibly “transfer” parts of its population to the OPT.According to the Israeli Ministry of Foreign Affairs, the settlements do not violate IHL:

“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…It should be emphasized that the movement of individuals to the territory is entirely voluntary…” As one Israeli scholar writes, “one should differentiate between the transfer of people – which is forbidden by Article 49 – and the voluntary settlement of nationals of the occupant, on an individual basis, in the occupied territory. Such settlement, if not carried out on behalf of the occupant’s Government and in an institutional fashion, is not necessarily illegitimate.”

Furthermore, some Israeli scholars have argued that although they do not disagree with the wider interpretation of Article 49 prohibiting basic demographic change in the occupied territory’s population structure, this limitation should be interpreted narrowly.

According to this argument, “voluntary settlement, little by little, of civilians of the Occupying Power in the occupied territory” is not necessarily illegal.

In the 1970s, the Israeli government justified the building of settlements – specifically the requisitioning of private Palestinian land on which to build settlements – on the grounds of security. Under this argument, the settlements strengthened Israeli security by creating an Israeli presence in sensitive sectors, such as the Jordan Valley, and on key topographical features of the terrain (i.e. hilltops, etc.). At the time, the Israeli High Court of Justice ruled that such requisitions were justified under Article 52 of the Hague Regulations, as long as the government paid compensation for the land, and as long as the settlements served a military purpose and were temporary in nature – i.e. the settlements might some day end as the result of international negotiations.

The government’s policy of requisitioning private land on which to build settlements ended in 1979, when for the first time the Court declared a settlement project illegal, on the grounds that the settlement in question was not intended to meet military needs, and in fact was intended to be permanent After this ruling, the government stopped requisitioning private land on security grounds, and instead began to build settlements on “state” or “public” lands . Roughly two-thirds of the land in the West Bank is held in unclear tenure, insofar as there are insufficient records (with ownership instead resulting from long-term possession). Over the past two decades, the Israeli government has declared much of this land to be “state-owned,” on the grounds that when a question arises as to land ownership, it is considered public land until proven otherwise

Today, the Israeli government argues that the settlements also do not violate Article 49 since they are built on public lands, and so do not displace Arab inhabitants of the OPT:

“[Article 49 does not] 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…the settlements themselves are not intended to displace Arab inhabitants, nor do they do so in practice.”

The Palestine Liberation Organization’s Argument for the Illegality of the Settlements

The Negotiation Affairs Department (NAD) of the Palestine Liberation Organization takes the position that the distinction made by Israel between forcible and voluntary transfers is irrelevant in terms of Article 49. According to the NAD, Article 49 forbids the Occupying Power from using population transfers to alter the demographic composition of the occupied territory. The NAD argues that Article 49 clearly distinguishes between deportations, evacuations and transfers of protected (i.e. occupied) persons on the one hand, and the transfer by the Occupying Power of its own civilian population on the other. The first five paragraphs of Article 49 deal with deportations, evacuations and the transfer of protected persons; only the sixth and final paragraph prohibits the transfer of the Occupying Power’s civilian population into the occupied territories. Therefore, the fact that the first five paragraphs speak of “forcible” transfers, while the sixth paragraph does not so explicitly limit itself, is deliberate – the sixth

paragraph covers not only forcible transfers of the Occupying Power’s civilian population, but also situations where the Occupying Power positively encourages the settlement of its own people in the occupied territory in a way that could potentially alter that territory’s demographic composition.

According to the NAD, Israel’s settlement policy also violates other provisions of the Fourth Geneva Convention and the Hague Regulations:

“Since in most cases the establishment of the colonies has required the expropriation or destruction of private property, the colonies also violate Article 53 of the Fourth [Geneva] Convention and Article 46 of the Hague Regulations…Furthermore, the establishment and operation of the colonies is hardly consistent with the limited rights that the Occupying Power has under Article 55 of the Hague Regulations to administer the properties under occupation in accordance with the rules of usufruct. This applies in particular to depriving the local population of valuable natural resources such as water for the benefit of the colonies.”

The International Community’s Response to the Settlements

Both the UN and the EU have stated that the Israeli settlement policy violates IHL, with the UN stating specifically that the Israeli settlements in the OPT violate Article 49. The ICRC has also stated that Israel’s settlement policy violates IHL. Further, a Conference of High Contracting Parties to the Fourth Geneva Convention (held in 2001) issued a Declaration stating: “The participating High Contracting Parties…reaffirm the illegality of the settlements in the said territories and of the extension thereof.”

The Israeli position has also not been found persuasive by other states, partially because of the government’s involvement in promoting and financing the settlements. For instance, many of the settlements in the West Bank (as well as disadvantaged communities within Israel) are defined as “national priority areas,” which results in increased government funding as compared to other communities, including housing subsidies The Israeli Ministry of Housing was reported at one period to be devoting 20 per cent of its budget to housing for settlers There are also various tax incentives and discounts available to individuals living in the settlements, as well as to businesses located there Further, the Israeli government pays significantly more per capita to local government councils for settlements than it does to local government councils for municipalities in Israel itself. According to a recent news report, the Israeli government spends over NIS 10,000 more per capita on settlers than on citizens living within Israel This governmental support serves to undermine the Israeli argument that “the movement of individuals to the territory is entirely voluntary.”

The State Department of the United States took the position in 1978 that to the extent Israeli civilian settlements involve the transfer of Israeli civilians into the OPT, they are inconsistent with international law . Later statements by President Reagan and Secretary of State James Baker cast doubt on this position, but the United States has made no recent statement asserting the legality or illegality of the settlements. In vetoing draft Security Council resolutions that condemned the settlements as illegal, the United States has not taken the position that settlements are legal but rather has explained its vetoes on the

principle that the issues that remain need to be addressed in negotiations between the Israelis and Palestinians, and therefore should not be the subject of UN resolution

Observations and Conclusions

The purpose of this brief was to review the IHL implications of the settlements. Several points need to be underlined:

1. Israel argues that the Geneva Conventions are not applicable to the OPT, but that even if they were applicable, the settlements would not violate Article 49 of the Fourth Geneva Convention. According to the Israeli interpretation, Article 49 does not prohibit the voluntary transfer of the population from the occupying state to the occupied territories.

2. The international community at large and the Palestine Liberation Organization, on the other hand, hold that Israeli settlements in the OPT do violate IHL, and in particular Article 49 of the Fourth Geneva Convention, since Israel’s policies of promoting and facilitating the transfer of population have been instrumental in the creation and expansion of Israeli settlements in the OPT. In addition, the Hague Regulations and the Fourth Geneva Convention together prohibit any transfer of the Occupying Power’s population, even voluntary transfers, that would alter the demographic composition of the occupied territory.

3. Among the Occupying Power’s actions and programs prohibited under Article 49 of the Fourth Geneva Convention, one may include subsidizing mortgages for housing construction in the OPT, building by-pass roads to facilitate the movement of settlers, and building water and electricity infrastructure for the sole purpose of servicing the settlements, insofar as these activities actively facilitate and encourage the settlement process.

4. Under the Hague Regulations and the Fourth Geneva Convention, private property may not be confiscated, and may only be destroyed if such destruction is rendered “absolutely necessary” by military operations. Since much of the land in the OPT did not have clear title, Israel claims that most settlements were built on public (i.e. state-owned) as opposed to private property. The building of settlements on public land is not acceptable under the Hague Regulations since such use of the public land violates the rule of usufruct, which limits the use of public land by the Occupying Power to the “fruits” of the land and prohibits invasion of other property rights.

The Humanitarian Impact:

When the Barrier is completed, over ten percent (10.2%) of West Bank land will be isolated in the area between the Barrier and the Green Line. This includes some of the most fertile land

and water reserves in the West Bank. In October 2003, the area between the Barrier and the Green Line in the northern West Bank was declared closed by military order. All Palestinians living in this area are required to obtain ‘permanent resident’ permits from

the Israeli authorities. Non-resident Palestinians who need to enter the area, in particular farmers, must apply for a visitor permit to access their farmlands and water resources

through designated gates. Eligibility requirements for Palestinians needing visitor permits have become increasingly stringent. Consequently, fewer Palestinians are obtaining such permits. Those who are unable to prove direct ownership of the land -

for example, relatives to landowners such as nephews, uncles, cousins and grandchildren, landless laborers, sharecroppers and leaseholders – find that their access to the closed areas is now virtually impossible. By mid-2006, only 40% of farming families with land in closed areas could reach their family holdings. For the minority who are granted permits, access is restricted to a specific gate. Gates open and shut irregularly, and can be totally shut without warning. Only 26 gates in the northern West Bank are

open to Palestinians on a regular basis, typically for short periods in the early morning, noon and late afternoon, and ‘visitors’ are prohibited from staying on their land overnight.Final Opinion:

Within the framework of achieving an appropriate living and economic atmosphere that can give hope to the Palestinian citizen, there is a necessity of Israel implementing real and instant measures to alleviate the daily suffering of the Palestinian People. In this context there is a need to jump on   the obstacles that hinder the facilitation of the Palestinians life, such as Israel maintaining its settlement policy in the West Bank, including Jerusalem and its environs, in addition to the barricades and checkpoints which paralyze the movement of people and trade, and feed Palestinian situation with more desperation.

Despite the fact that there are many International resolutions against building the settlements but there is no political power that might stop the progress in building more settlements in the occupied Palestinian territories , though it’s a very complicated issue because it has political ,economic, cultural and demographic aspects that is part of the negotiations of the final status of the peace process which includes the status of Jerusalem, the refugees ,the borders of the state of Israel …etc.

Sources:www.un.org www.mfa.gov.eg http://en.wikipedia.org/wiki/Israeli_settlementhttp://www.reliefweb.int/rw/rwb.nsf/db900sid/EVIU-69HJYR?OpenDocument

http://www.ochaopt.org/documents/TheHumanitarianImpactOfIsraeliInfrastructureTheWestBank_ch4.pdf

http://www.fmep.org/maps/map_data/settlements/Settlements_Established_and_Evacuated_1967-2008.html