Israeli Settlements and International Law

Israel's occupation of captured territories is circumscribed by international law as framed in the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949. This expressly prohibits key elements of Israel's policy in Palestine: collective punishments; the transfer and settlement of people from territories; the expulsion of inhabitants from the area; and sequestrating private or public property.

Article 49: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies".

Over 350.000 Israelis currently live in settlements Israel has constructed in the West Bank (including Jerusalem) and Gaza. The Israeli settlements in the occupied territories violate two principles of international humanitarian law: the prohibition on transfer of civilians from the occupying power to the territory occupied (art. 49 Fourth Geneva Convention), and the prohibition on creating in the occupied territory permanent change that does not benefit the local population.

A fundamental principle of international humanitarian law relating to territory subject to belligerent occupation is that the occupation of territory in wartime is essentially temporary, de facto, situation. The temporary nature of occupation entails limitations imposed on the occupying power regarding the creation of permanent facts in the occupied territory. International humanitarian law prohibits the confiscation of private property and allows the occupying power to take land for compensation, but only to meet its military needs (The Hague Regulations, 1907).

Requisition of land, contrary to confiscation, is temporary by definition, and the occupying power does not obtain ownership. Underlying all the limitations is the idea that the occupying power is not the sovereign in the territory. Consequently, the occupying power may not so any act that constitutes unilateral annexation of all or part of the occupied territory.

Even after signing of the Israeli-Palestinian interim agreements and during their implementation, Israel, more precisely its army, has had total control over all the Israeli settlements in the West Bank and Gaza Strip. Until a final agreement is signed, the international law applicable to the status of Israeli settlements is international humanitarian law.

The Israeli-Palestinian agreements, first signed in September 1993, in effect perpetuated the special status of the settlements, at least until the parties reach a final agreement. During implementation, Israel redeployed its army from a number of military bases in Palestinian populated areas, however, it did not evacuate even one settlement. Israel insisted that all the settlements remain where they are, even where it is especially tensed, as in Hebron.

In implementing the interim agreement in the West Bank, Israel has invested substantial efforts and means to protect the settlements and their residents. Israel has also expropriated or requisitioned additional Palestinian lands, both private and public, to expand settlements and to build roads bypassing Palestinian towns and villages.

The establishment of the settlements was and is a political not a military or security-related act. Its goal is to create permanent facts that will perpetuate Israeli control in the occupied territories. The establishment, the expansion and sustaining of settlements in the occupied territories are unilateral acts that violate rights of Palestinian residents and breach international conventions to which Israel is party.

Derived from this are numerous human rights violations. The Oslo Accords did not relate to Israeli settlements during the interim period, and enabled continuation of Israeli policies of land expropriation, house demolition to build bypass roads, application of two different systems of law, and discrimination between settlers and Palestinians living in the occupied territories. Since 1993, Israel has established thirty new settlements in the occupied territories. Seventeen of these were established just prior to and after the signing of the Wye Memorandum.

Article 53 of the Fourth Geneva Convention prohibits the destruction of property of protected civilian populations. However, almost weekly Israeli authorities demolish the homes or uproot the orchards and farms of Palestinians in the occupied territories. Although the Oslo Accords left Israel with power over planning and building over only some five percent of the West Bank's population, there has been no reduction in the number of homes Israel demolishes each year because they were built without a permit.

United Nations Resolutions and Israeli Settlements

Throughout the years the United Nations Security Council has issued a significant number of resolutions stating the illegality of Israeli settlements. The General Assembly has also issued similar resolutions. These resolutions were either issued because of Israeli policies and measures in the Occupied Territories, including Jerusalem and the Golan Heights. These resolutions emphasise the illegitimacy of the acquisition of territory by war. Additionally these resolutions emphasise the applicability of international humanitarian law, especially the Fourth Geneva Convention. There has been an unheard of international unanimity on these resolutions, which not only won the overwhelming majority of votes, but also often obtained the backing of Israel's traditional friends including the United States, eventhough the United States has vetoed a considerable number of UN resolutions and the compliance thereof by Israel.

An example:

On 7 March 1997, a Draft Resolution regarding the Israeli government's action in Jerusalem - presented by France, the UK, Sweden and Portugal - was vetoed in the UN Security Council by the US, while the other 14 members voted in favour. Following the US veto, the Arab Group at the UN called for an urgent session of the General Assembly, that convened on March 12 and voted the next day with 130 votes in favour, two abstentions and two voting against (US and Israel) to adopt the draft as UNGA Resolution

The General Assembly,
Having considered the letters dated 21, 25 February 1997 from the Permanent Observer of Palestine on behalf of the States members of the League of Arab States (A/51/805-S/1997/149, A/51/808-S/1997/157 and S/1997/165),
Expressing deep concern at the decision of the Government of Israel to initiate new settlement activities in the Jebel Abu Ghneim area in East Jerusalem,
Expressing concern about other recent measures that encourage or facilitate new settlement activities,
Stressing that such settlements are illegal and a major obstacle to peace,
Recalling its resolutions on Jerusalem and other relevant General Assembly and Security Council resolutions,
Confirming that all legislative and administrative measures and actions taken by Israel which purport to alter the status of Jerusalem, including expropriation of land and properties thereon, are invalid and cannot change that status,
Reaffirming its support for the Middle East Peace Process, including the recent Agreement on Hebron,
Concerned about the difficulties facing the Middle East Peace Process, including the impact these have on the living conditions of the Palestinian people, and urging the parties to fulfill their obligations, including under the agreements already reached,
Having discussed the situation at its 91st and 92nd plenary meetings on 12 March 1997,

1. Calls upon the Israeli authorities to refrain from all actions or measures, including settlement activities, which alter the facts on the ground, preempting the final status negotiations, and have negative implications for the Middle East Peace Process.
2. Calls upon Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, which is applicable to all the territories occupied by Israel since 1967;
3. Calls upon all parties to continue, in the interests of peace and security, their negotiations within the Middle East Peace Process on its agreed basis and the timely implementation of the agreements reached;
4. Requests the Secretary-General to bring to the attention of the Government of Israel the provisions of this resolution.

Enforcing Human Rights and International Law

The development of an enforcement mechanism to protect human rights (which should have been one of the outcomes of this special session) would have strengthened the resolve of peacemakers and create a firm and just foundation for the resolution of the long-standing conflict. Final status negotiations between Israelis and the Palestinians must be based on recognition of and implementation of international human rights law. At last weeks meeting the international community failed to demonstrate a serious commitment to ensure protection for people in the territories occupied by Israel in particular, and to ensure compliance with international humanitarian law in general. The High Contracting Parties to the Fourth Geneva Convention themselves, however, have violated their obligation enshrined in Article 1 of the Convention, to ensure respect for the Fourth Geneva Convention.

The international community should remind Israel that the requirements of the Fourth Geneva Convention must be met, particularly:

• That all Israeli settlements in the occupied territories are illegal, and must be dismantled in due course unless those who inhabit them are able to negotiate an agreement to enter the jurisdiction of an administration representing the inhabitants of the occupied territories;
• That all forms of collective punishment must cease;
• That the basic rights of the people under occupation must be respected, as framed by the Fourth Geneva Convention;
• That Israel must abandon its use of the defunct and draconian British Defense (Emergency) Regulations of 1945, its practice of detaining people without trial, demolishing homes on suspicion and other practices that violate international law and norms of behaviour;
• That regardless of agreements reached between Israel in 1967 will retain 'occupied' status until Israel has completed a physical and legal withdrawal;
• That Clause 14 of the Cairo Agreement, which calls upon both parties to abide by internationally accepted human rights standards, binds Israel and the PLO to comply with human rights norms (i.e. international human rights law). The international community must ensure that both parties honour this undertaking.

If the lessons of Kosovo, Bosnia, Rwanda and even Iraq are to be learned, the convenors of the special session should have felt compelled to go forward with their effort to contribute to peace by securing the protection of human rights as an essential prerequisite for a just and lasting peace.

United States Government's Quotes on Israeli Settlements

"[...]The US believes that no party should take unilateral actions that seek to predetermine issues that can only be reached through negotiations. In this regard the US has opposed and will continue to oppose settlement activity in territories occupied in 1967 which remain an obstacle to peace. US Letter of Assurances to the Palestinians on the terms of the Madrid Peace Conference, 24 October 1991, excerpts.

"We consider these settlements to be contrary to the Geneva Convention, that occupied territory should not be changed by establishment of permanent settlements by the occupying power" President Carter, Q&A with American Jewish Press Association, June 13, 1980, Washington.

"U.S. Policy toward the establishment of Israeli settlements in the occupied territories is unequivocal and has long been a matter of public record. We consider it to be contrary to international law and an impediment to the successful conclusion of the Middle East peace process" Secretary of State Cyrus Vance, before House Ctee. on Foreign Affairs, March 12, 1980.

"Since the end of the 1967 war, the U.S. has regarded Israel as the occupying power in the occupied territories, which includes the West Bank, Gaza, East Jerusalem, and the Golan Heights. The U.S. considers Israel's occupation to be governed by the Hague Regulations of 1907 and the 1949 Geneva Conventions concerning the protection of civilian populations under military occupation" US Ambassador to the UN Pickering, 27 November 1989.

"Our particular opposition to today to settlement activity is that it constitutes an obstacle to peace. In the past, the position of the U.S. has been that it was, in fact, illegal" Secretary of State James Baker, July 20, 1991.