Palestinian representatives at the United Nations recently presented a draft resolution to the Security Council in which they seek to declare that Israeli settlements are “illegal and constitute a major obstacle to the achievement of peace.”
This claim is not new, and the legality of Israel’s settlements have for years dominated the attention of the international community. This has been evident in countless reports of different UN bodies, rapporteurs, and resolutions, 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.
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, 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.
What does Article 49 of the Fourth Geneva Convention say?
Immediately after World War II, 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. 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.”
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,” clarifies 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, Article 49 relates to the forcible transfer of an occupying power’s population into an occupied territory. Historically, more than 40 million people were subjected to forced migration, evacuation, displacement, and expulsion, including 15 million Germans, five 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.
Several prominent international jurists, such as Prof. Eugene V. Rostow, a former dean of Yale Law School and undersecretary of state; Morris Abram, a member of the U.S. staff at the Nuremburg Tribunal and later involved in the drafting of the Fourth Geneva Convention, and international lawyer Prof. Julius Stone, are on record stressing that the Geneva Convention was not designed to cover situations such as Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people.
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. This historical presence 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, or to displace the local population for political or racial reasons, nor to alter the demographic nature of the area.
The 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, Israel has not taken any step to alter the status of the territory, which is open for determination in permanent status negotiations. Israel’s settlements do not alter the status of the territory.
The unique circumstances of the territory and the special nature of the Israeli-Palestinian relationship
The entirely unique 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.
The settlements issue is one of the core issues to be negotiated in permanent status negotiations, 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 permanent status negotiations.
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 that are still valid. 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.
Furthermore, in the 1995 Interim Agreement, the two sides defined their respective powers and responsibilities in the areas they control. Israel’s powers and responsibilities in Area C – which is under Israeli control and comprises most of the West Bank – include all aspects regarding its settlements, all this pending the outcome of 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.
Conclusion
The main proponent of the settlement issue over the years has been the Palestinian leadership, which has decided to isolate and raise the issue of settlements as an independent “cause célèbre”. This, despite the fact that it’s among the agreed-upon items to be negotiated in permanent status negotiations. Similarly, Israel had not obligated itself in any way to refrain from, halt or freeze construction in the settlements.
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.
Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs. He’s a former legal adviser to Israel’s Foreign Ministry and a former Israeli ambassador to Canada. He participated in negotiating and drafting the various agreements comprising the Oslo accords.
