The Settlements Under International Law
(Updated May 2001)
The Historical Context
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Jewish settlement in West Bank and Gaza
Strip territory has existed from time immemorial and was expressly
recognised as legitimate in the Mandate
for Palestine adopted by the League of Nations, which provided for
the establishment of a Jewish state in the Jewish people's ancient homeland.
Indeed, Article 6 of the Mandate provided as follows:
The Administration of Palestine, while ensuring that the rights
and position of other sections of the population are not prejudiced,
shall facilitate Jewish immigration under suitable conditions and
shall encourage, in cooperation with the Jewish Agency referred
to in Article 4, close settlement by Jews on the land, including
State lands not required for public use.
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Some Jewish settlements, such as in Hebron,
existed throughout the centuries of Ottoman rule, while settlements such as Neve Ya'acov, north of Jerusalem,
the Gush Etzion bloc in Judea and Samaria, the communities north of
the Dead Sea and Kfar Darom in the Gaza region, were established under British Mandatory
administration prior to the establishment
of the State of Israel. To be sure, many Israeli settlements have
been established on sites which were home to Jewish communities in previous
generations, in an expression of the Jewish people's deep historic and
religious connection with the land.
- For more than a thousand years, the only administration
which has prohibited Jewish settlement was the Jordanian occupation
administration, which during the nineteen years of its rule (1948-1967)
declared the sale of land to Jews a capital offense. The right of Jews
to establish homes in these areas, and the legal titles to the land
which had been acquired, could not be legally invalidated by the Jordanian
or Egyptian occupation which resulted from their armed invasion of Israel
in 1948, and such rights and titles remain valid to this day.
International Humanitarian
Law in the West Bank and Gaza Strip
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International humanitarian law prohibits the forcible
transfer of segments of the population of a state to the territory of
another state which it has occupied as a result of the resort to armed
force. This principle, which is reflected in Article 49 of the Fourth
Geneva Convention, was drafted immediately following the Second World
War. As International Red Cross' authoritative commentary to the Convention
confirms, the principle was intended to protect the local population
from displacement, including endangering its separate existence as a
race, as occurred with respect to the forced population transfers in
Czechoslovakia, Poland and Hungary before and during the war. This is
clearly not the case with regard to the West Bank and Gaza.
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The attempt to present Israeli settlements as a violation
of this principle is clearly untenable. As Professor Eugene Rostow,
former Under-Secretary of State for Political Affairs has written: "the
Jewish right of settlement in the area is equivalent in every way to
the right of the local population to live there" (AJIL, 1990,
vol. 84, p.72).
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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. Nor does
it 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.
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It should be emphasised that the movement of individuals
to the territory is entirely voluntary, while the settlements themselves
are not intended to displace Arab inhabitants, nor do they do so in
practice.
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Repeated charges regarding the illegality of Israeli settlements
must therefore be regarded as politically motivated, without foundation
in international law. Similarly, as Israeli settlements cannot be considered
illegal, they cannot constitute a "grave violation" of the Geneva Convention,
and hence any claim that they constitute a "war crime" is without any
legal basis. Such political charges cannot justify in any way Palestinian
acts of terrorism and violence against innocent Israelis.
- Politically, the West Bank and Gaza Strip is best regarded
as territory over which there are competing claims which should be resolved
in peace process negotiations. Israel has valid claims to title in this
territory based not only on its historic and religious connection to
the land, and its recognized security needs, but also on the fact that
the territory was not under the sovereignty of any state and came under
Israeli control in a war of self-defense, imposed upon Israel. At the
same time, Israel recognizes that the Palestinians also entertain legitimate
claims to the area. Indeed, the very fact that the parties have agreed
to conduct negotiations on settlements indicated that they envisage
a compromise on this issue.
Israeli-Palestinian Agreements
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The agreements reached between Israel and the Palestinians contain no prohibition whatsoever
on the building or expansion of settlements. On the contrary, it is
specifically provided that the issue of settlements is reserved for
permanent status negotiations, which are to take place in the concluding
stage of the peace talks. Indeed, the parties expressly agreed that
the Palestinian Authority has
no jurisdiction or control over settlements or Israelis, pending the
conclusion of a permanent status agreement.
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It has been charged that the prohibition on unilateral
steps which alter the "status" of the West Bank and Gaza Strip, which
is contained in the Interim
Agreement and in subsequent agreements between the parties, implies
a ban on settlement activity. This position is disingenuous. The building
of homes has no effect on the status of the area. The prohibition on
unilateral measures was agreed upon in order to ensure that neither
side take steps to change the legal status of this territory (such as
by annexation or unilateral declaration of statehood), pending the outcome
of permanent status negotiations. Were this prohibition to be applied
to building, it would lead to the ridiculous interpretation that neither
side is permitted to build homes to accommodate for the needs of their
respective communities.
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It is important to note, that in the spirit of compromise
and in an attempt to take constructive confidence building measures
in the peace process, successive Israeli governments have expressly
recognized the need for territorial compromise in West Bank and Gaza
Strip territory and have voluntary adopted a freeze on the building
of new settlements. In this regard, the present National Unity Government,
under Prime Minister Ariel Sharon,
has officially declared that it will not build any new settlements,
while remaining committed to the basic needs of the existing settlement
communities (Government of
Israel, Policy Guidelines, March 2001).
Sources: Israeli
Foreign Ministry |