PART II

SETTLEMENTS AND INTERNATIONAL LAW

This chapter analyses the legal aspects of Israel’s establishment of settlements in the Occupied Territories. Israel’s settlement activities violate international law, as well as the private property rights and the collective and individual human rights of the Palestinian people. International law, inter alia, prohibits an occupying power from transferring its civilian population into the territory it occupies and from creating any permanent change in an occupied territory not intended for the benefit of the occupied population. The building and expansion of settlements also violates the letter and the spirit of agreements the Israeli government has signed with the PLO, which state that neither side shall take any action which may prejudice the final status negotiations between the parties.

In its occupation of the West Bank and Gaza Strip, Israel is subject to the international law of belligerent occupation. The law of belligerent occupation provides special protection for an occupied civilian population (giving its members the status of Protected Persons), while ceding to the Occupying Power (OP) the right to maintain temporary control. The law of belligerent occupation is found in customary international law, which has evolved from the Fourth Hague Convention of 1907. Customary norms are binding on all States. These norms were then codified and elaborated upon in the 1949 IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, which regulates, inter alia, the occupation of foreign territory, and to which Israel is a Party. These legal norms prohibit Israel’s settlement activities, which have also been condemned by the international community in successive UN Security Council and General Assembly Resolutions.

There has been much legal analysis regarding the applicability of the IV Geneva Convention to the Occupied Territories since the coming into force of the Oslo Agreements, signed between the PLO (on behalf of the Palestinian people) and Israel. The Convention provides the baseline for the most fundamental human rights of the Palestinian people, and explicitly prohibits the establishment of settlements by an OP in occupied territory. The Convention cannot be superseded by any agreement reached between the OP and the protected population unless it guarantees a higher level of protection than is provided by the Convention. The Convention specifically regulates the signing of such agreements and prohibits agreements which derogate or undermine the protection provided in the Convention. The Oslo Agreements put in place a legal situation sui generis (a special case), elements of which arguably violate the IV Geneva Convention, precisely in a way that the IV Geneva Convention seeks to avoid.

The IV Geneva Convention is paramount and overrides the Oslo Agreements. Israel continues to be subject to the provisions of the Convention in respect of its relations with the Palestinian people, and its settlement activities in the Occupied Territories are in violation of international law.

SETTLEMENTS UNDER INTERNATIONAL LAW

The Geneva Convention seeks to ensure that the OP’s activities are concomitant with the temporary nature of occupation; the OP is thus regarded as nothing more than an administrator and is de jure restricted to imposing its authority only to the extent necessary for maintaining “public order and safety” (“l’ordre et la vie publics”). The Convention specifies that the OP must act for the welfare of the occupied civilian population, except where a measure is necessary to ensure the security of the OP. The OP is forbidden from taking any measures which alter the status or title of the territory, either until complete surrender by the indigenous population, or until the coming into force of a peace agreement.

Article 49 of the IV Geneva Convention states an unequivocal prohibition against the establishment of settlements:

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

Pictet’s comments that this provision was intended to prevent the transfer of portions of the OP’s own population to occupied territory for political and racial reasons, or in order to colonise those territories. Pictet comments that “such transfers worsened the economic situation of the native population and endangered their separate existence as a race.” Israel’s establishment of settlements is apparently a text-book example of the changes Article 49 seeks to prohibit.

Occupied territory must be administered for the benefit of the local population, with limited exception. The confiscation of private property is generally prohibited, though according to Article 52 of the Hague Regulations, it may be requisitioned temporarily by justification of military necessity by the occupation army. Israel often justified its confiscation of Palestinian land for the establishment of settlements on the basis of security and military necessity. Article 52 also specifies that any requisitioned land or property must be returned to its owners unless a continued need for the land can be demonstrated. Israel has sought to make the fulfilment of this obligation impossible by turning over such lands to private individuals and encouraging these individuals to make permanent use of them.

In defence of its settlement policy, Israel has asserted that there is a distinction between “the transfer of people” which violates Article 49, and its own settlement practices which consist of the voluntary settlement of nationals on an individual basis. It has also argued that civilian settlements are necessary for Israel’s security and its ability to preserve public order and safety in the Occupied Territories. These arguments are belied by the facts.

Firstly, as has been detailed in Part I of this report, the Israeli Government’s policy throughout thirty years of occupation has been to encourage the establishment and expansion of settlements in the Occupied Territories. All activity in the Occupied Territories take place under the auspices of Israel’s government; activities in relation to settlements cannot be spoken of in terms of private or individual initiatives. The housing market in both Israel and in the settlements is government-directed, and the Israeli government is heavily involved in planning, distributing land, and financing housing projects in the settlements. Construction in settlements must conform to government specifications or those of the quasi-official World Zionist Organisation. State subsidies and various economic incentives have been used to woo Israeli citizens across the Green Line, and the Israeli government has directed many new immigrants into settlements in the Occupied Territories. Furthermore, the IDF has been and continues to be instrumental in the establishment and maintenance of settlements.

Secondly, in regard to Israel’s security claim, while the Geneva Convention permits Israel to employ security measures which are necessary to maintain its occupation, these are strictly limited, and can only be taken in extreme circumstances. Pictet comments that this reservation does not in any way undermine the absolute nature of the fundamental provisions of the Convention, including the prohibition on settlements. This argument can also be addressed by considering the likelihood that Israeli settlements have actually hindered Israel’s efforts at ensuring its security rather than enhanced it; among the Israeli security establishment, settlements are widely regarded as a security liability. Settlements, frequently in close proximity to Palestinian population centres, require large numbers of soldiers and military personnel to protect an extremely small proportion of the Israeli population. Ideological and political factors are the primary motivators of Israel’s settlement programme, rather than security considerations.

THE APPLICATION OF INTERNATIONAL LAW PRIOR TO THE INTERIM PERIOD

In addition to defending its settlement policy against the specific provisions of the Convention as detailed above, Israel has also argued that its occupation of the Occupied Territories is sui generis, and therefore that the normal provisions of the Convention do not apply. These arguments have been rejected by the international community which holds by consensus that the Convention is de jure applicable to Israel in respect of the Occupied Territories; successive Israeli Governments have rejected this consensus, on the basis of arguments which will be detailed below.

Israel interprets Article 2 of the Geneva Convention narrowly, claiming that it applies only to “the territory of a High Contracting Party” (HCP), that the Convention only applies in territory over which a party holds good title, and that Egypt and Jordan did not hold good title over the Gaza Strip and Jordan, respectively. This view has been almost universally rejected as the Convention states that it shall apply “in all circumstances” and “in all cases of declared war or of any other armed conflict,” and “in all cases of partial or total occupation.”

Pictet’s authoritative Commentary on IV Geneva Convention comments that “in all circumstances” means that as soon as one of the conditions of application in Article 2 is present, “no Contracting Party can offer any valid pretext, legal or otherwise, for not respecting the Convention in its entirety.”

Israel’s interpretation is mistaken; the applicability of the IV Geneva Convention does not depend upon the preceding government of a territory being its sovereign or legitimate government. Article 2 renders the Convention applicable in all situations of belligerent occupation, regardless of the nature of the previous government, the length of time for which it was in power, or the conditions in which the occupation came about. The temporary nature of the administration and occupation of territories militates against succession of the rights or status of an occupying or administering power.

Israel has also argued that as it did not gain control of the Gaza Strip and West Bank, including East Jerusalem, in an aggressive war, but rather as a result of defensive actions, that the Convention does not apply. The text of the Convention suggests otherwise, providing specifically that:

“The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance,” and “from the outset of any conflict.”

Pictet states that this means that the Convention should be applied from the moment that foreign troops are in the territory and come into contact with the civilian population, and even when an occupation comes about without any resistance.

The essence of the Convention is to protect the civilian inhabitants of territory that comes under foreign or enemy control. Rights under the Convention run directly to the civilian population as individuals. The Convention does not concern itself with the nature of the force which brought about the occupation; and thus does not distinguish between occupation of territory as a result of defensive or aggressive actions. Israel’s argument that the Convention does not apply because the occupation came about as a result of defensive force is thus unsustainable.

It is the widely held view of the international community that the IV Geneva Convention applies de jure and de facto in all territories occupied by Israel since 1967. An overwhelming number of international organisations concur with this view, including the ICRC. Voting on UN General Assembly Resolutions supports this position. Since the beginning of the occupation, the UN Security Council has consistently urged the applicability of the Convention.

Adam Roberts comments that Israel’s arguments against the application of the IV Geneva Convention are based “in varying degrees, on dubious interpretations of the body of conventional and customary law relating to occupations” and that “[t]he better view is that...the Fourth Geneva Convention...[is] applicable.” Roberts goes on to point out however that the problem is not only one of gaining acceptance for the view that the IV Geneva Convention is applicable, but also of “seeing that [its] basic provisions are applied.”

It is apparent that Israel is bound by the IV Geneva Convention. This has strong support from the provisions of the Convention itself, and Pictet’s Commentary; the consensus of the international community; the lack of international legal norms to the contrary; the fact that Israel is the de facto OP in the Gaza Strip and West Bank including East Jerusalem; and the fact that these territories have not surrendered, nor has an agreement been reached which hands over sovereignty to Israel.

THE APPLICATION OF INTERNATIONAL LAW DURING THE INTERIM PERIOD

The IV Geneva Convention is the highest body of applicable law; it not only prevails over and above any political agreement signed between Israel and the PLO, but also renders such agreements subject to its provisions. In accordance with the international community’s role in upholding international legal norms, a clear distinction must be maintained between such legal norms and the content of political agreements.

The Agreements signed between the PLO (as representative of the Palestinian people) and the Government of Israel brought about a temporary situation within the Occupied Territories. The Cairo and Taba Agreements established the Palestinian National Authority (PNA) and set in motion the gradual transfer of limited autonomy over 58 percent of the Gaza Strip and 30 percent of the West Bank for a Interim Period of 5 years. Currently, 42 percent of the Gaza Strip and 3 percent of the West Bank is under PNA control. The responsibilities of the PNA include civil affairs within the autonomous areas, and exclude responsibility in respect of overall security, foreign relations and issues to be negotiated at the final status talks, including, inter alia, settlements.

The temporary nature of the situation introduced by the Agreements, specific provisions contained within the Agreements, and several significant elements of belligerent occupation that the Agreements have maintained mean that the IV Geneva Convention remains applicable in order to limit the activities of Israel as the OP in its relations with the Palestinian people. The Oslo Agreements maintain Israel’s military government, its responsibility for significant functions of government in the Occupied Territories, and Israeli settlements in the Occupied Territories. The Palestinian population retain their status as Protected Persons under the IV Geneva Convention wherever they come into contact with Israeli authorities.

Article XXXI:6 of the Taba Agreement states:

“Neither party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims positions.”

This would seem to ensure that the “rights” and “position” of the Palestinian people as Protected Persons and of Israel as the OP in respect of relations between them is unchanged by the Agreement and that the IV Geneva Convention applies over and above the Agreements.

Furthermore, Israel has maintained control of 42 percent of the land inside the Gaza Strip, which comprises settlements, military installations, and yellow security areas, and control of 97 percent of the West Bank. To this end the Oslo Agreements provide for Israel to maintain a military government. Article XVII:4(a) of the Taba Agreement states:

“Israel, through its military government, has the authority over areas that are not under the territorial jurisdiction of the Council; (b) to this end, the Israeli military government shall retain the necessary legislative, judicial and executive powers and responsibilities.”

In addition Article XII:1 states:

“Israel shall continue to carry the responsibility for...Settlements...and will have all the powers to take the steps necessary to meet this responsibility.”

Thus Israel maintains a military government in order to maintain and administer the Jewish settlements inside the Occupied Territories for the duration of the Interim Period.

Israel has retained functions of government in significant spheres including foreign relations and security. The Geneva Convention provides that it will remain in place as long as Israel continues to exercise “the functions of government.”

By virtue of the salience of these elements, the Oslo Agreements do not stand alone, and are subject to the overriding norms contained within the IV Geneva Convention which may negate certain of their provisions. Israel, as the OP, is not free to conclude any agreement it likes with the PLO.

The Geneva Convention operates from the premise that Israel, as the OP, is in a preponderant position, and the Convention seeks to protect the civilian population (the Palestinian people) from adverse actions the OP may take. The IV Geneva Convention will remain applicable until a comparable or higher standard of protection can be guaranteed either by an agreement coming into force which contains such guarantees, by an agreement which effectively ends the occupation and puts in place a system of national civil government, or until the population surrenders.

The Convention seeks to insulate its application from political events. Thus the elements of any agreement concluded between Israel and the PLO which may undermine Israel’s obligations or the rights of the Palestinian people not only violate the IV Geneva Convention but also ensure its continuing application.

Finally, the insulation of the Convention from political events is assured through the operation of Articles 6, 7, 8 and 47 of the Convention. Article 6, paragraph 3 of the Convention states that the application of the Convention only ceases one year after the general close of military operations. Article 7 states that although HCPs are free to conclude special agreements,

“No special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them.”

This is the case except where, “express provisions to the contrary are contained [in the special agreement]...or where more favourable measures have been taken.”

This protection is reinforced in Article 47, which states:

“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...into the institutions or the government of the...territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power.”

The legal status of the Gaza Strip and West Bank, including East Jerusalem, remains occupied territory, Israel is still the Occupying Power, and the Palestinian inhabitants of these territories continue to be Protected Persons. Although the PNA has responsibility in most cases for the treatment of the Palestinian people in the autonomous areas, wherever Israel (the OP), including its military authorities, comes into contact with the Palestinian people (Protected Persons) inside the Gaza Strip and the West Bank, including East Jerusalem, the IV Geneva Convention applies. Settlements are under complete Israeli jurisdiction and thus Israel is responsible under the Convention in relation to all aspects of its settlement activities.

SETTLEMENTS AND THE PEACE PROCESS

The ultimate fate of Israeli settlements built in the Occupied Territories is to be determined by the final status negotiations. Under the Oslo Agreements, the Parties agreed to avoid taking “any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.” Israel’s ongoing programme of land confiscation and settlement expansion is a clear violation of the Agreements’ prohibition against changes to the status quo; this programme has been pursued with the express purpose of “changing the facts on the ground.” As detailed in Part I of this report, Israel has continued to confiscate Palestinian land and build settlements in the Occupied Territories during the Interim Period, in an effort to permanently alter the 1967 borders before a final settlement is reached. Israel maintains that during the Interim Period, settlement policy is exclusively an Israeli concern.

Furthermore, the Parties agreed that the West Bank and Gaza Strip would be viewed “as a single territorial unit, whose integrity will be preserved during the interim period.” Israel’s settlement policy is clearly aimed to fragment the Occupied Territories into small cantons under Palestinian control, and to prevent the territorial contiguity of Palestinian areas.

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