"Israeli" Settlement in the Occupied Territories as a Violation of Human Rights:
Legal and Conceptual Aspects
March, 1997
Summary
Between 1967 and 1995, one hundred and thirty-six Jewish settlements were established in the West Bank and Gaza Strip. These settlements contained 138,600 residents. The various "Israeli" governments established the vast majority of settlements directly, and all settlements received governmental support for infrastructure, construction, establishment of public institutions, and the like.
Establishing the settlements, populating them with Jewish "Israeli" citizens, and expanding them was carried out while the Occupied Territories were controlled by the "Israel" Defense Forces* and subject to "belligerent occupation," i.e., to occupation resulting from war. Pursuant to the agreements between "Israel" and the Palestinians, the future of the settlements will be determined only at the stage of negotiations on the final agreement, which the parties intend to reach in 1999. Until then, the IDF, as the occupying army, must act in accordance with international humanitarian law, i.e., the laws of war, particularly those relating to treatment of the civilian population residing in occupied territory.
This report analyzes, from a conceptual-legal perspective, the legality of the settlements. It includes a discussion of whether the Fourth Geneva Convention applies to the Occupied Territories, the provisions of international law relating to settlement, and the interpretation of these provisions by "Israeli" governments and "Israel"'s Supreme Court.
Examination of Jewish settlement in the West Bank and Gaza Strip from the human rights perspective means that Jewish settlement will not be considered in its narrow political context. Questions relating to the right of one people or another to the Occupied Territories, or to the ultimate permanent boundaries of the region's states are matters to be decided by political negotiations. As a human rights organization, B'Tselem welcomes peace negotiations, but takes no position on these questions, and will support any agreement that will ensure the human rights of all persons concerned.
The sole criteria used to examine the act of Jewish settlement are those set by the international community, including "Israel", concerning military conduct in territories occupied during war.
CONCLUSIONS OF THE REPORT
The establishment of permanent civilian settlements in the Occupied Territories contravenes international humanitarian law. According to that law, an occupying power is prohibited from transferring population from its territory into territory it occupies, and from performing any act that is not intended to meet its military needs or benefit the local population. In addition, international law prohibits creating permanent change not intended for the benefit of that population. In their settlement policy, the various "Israeli" governments have violated international law, in general, and international agreements to which "Israel" is a party, in particular.
The settlement policy could be implemented, inter alia, because the High Court of Justice refused to view these violations for what they are, and order their cessation. One of the world's leading commentators on the laws of war, Georg Schwartzenberger, whom the HCJ frequently cites, maintains:
As in international law in general, and the laws of war in particular, what matters is not the appearance, but the reality of a situation.
The HCJ preferred to ignore this principle, granting legitimacy to civilian settlements under the guise of "military-security action," the requisition of land under the guise of "safeguarding the safety of public property," and their transfer to the permanent possession of settlers under the guise of "administration of government property" or temporary "enjoyment of the fruits."
The HCJ ruled in this manner although it is common knowledge that the "Israeli" government had expropriated hundreds of thousands of dunams of land from Palestinians on which it settled Jews with the goal of changing the demography of the region and of creating political facts on the ground. "Israel" did all this, as stated above, in patent violation of both the language and spirit of international law.
The "Israeli"-Palestinian agreements, first signed in September of 1993, in effect perpetuated the special status of the settlements, at least until the parties reach a final agreement. During implementation of the interim agreements, "Israel" evacuated numerous military bases in the Gaza Strip and throughout the West Bank. However, it did not evacuate even one settlement. "Israel" insisted that all the settlements remain where they are, even where it is especially difficult to defend the settlers, 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 and defend settlements, and to build roads bypassing Palestinian towns and villages in order to increase settlers' security. These actions ended once and for all the arguments presented by the various "Israeli" governments to the HCJ, and the holdings of the HCJ itself, that "military-security necessity" is involved, for it is clear that protection of the settlers cannot be considered a military necessity of an occupying army. In spite of this obvious fact, the HCJ approved these expropriations as well.
It is thus clear that establishment of the settlements was, and is, a political, and not a military, act. Its goal, as this report shows, is to create permanent facts that will perpetuate "Israeli" control in the settlement areas. For the time being, this goal has been accomplished to a large extent.
All "Israeli" governments have declared that in future negotiations, they would demand the annexation of the Occupied Territories, or part of them, to "Israel".
* This term is absolutely unacceptable. "Israel's" Army is that of war and aggression for its protects land gained by force, confiscation and war in contradiction with the simplest rights of human confessed by the international laws and conventions.