Contravening International Law

Arjan El Fassed

ISRAELI POSITION ON THREE MAIN POINTS AT TABA TALKS CONTRAVENES INTERNATIONAL LAW

At its weekly meeting last week, the Israeli cabinet took cognizance of both Prime Minister Ehud Barak's statement regarding the departure of the delegation to the negotiations with the Palestinians at Taba and the Israeli position on three main points. However, all these points contravene international law and are therefore ink on paper.

The official Israeli cabinet communication stated that "Israel will never allow the right of Palestinian refugees to return to inside the State of Israel." However, according to international law, Palestinian and other refugees are entitled to full restitution, which includes the right of return of Palestinian refugees to return to their homes of origin, the return of their property, and the right to compensation for material and non-material losses.

The United Nations General Assembly Resolution 194 (December 1948) states that "refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for the loss or damage to property..." This resolution has been reaffirmed one hundred and ten times by the UN.

Article 13 of the Universal Declaration of Human Rights (1948) states that "everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country" and the the Fourth Geneva Conventions (1949) prohibit "individual or mass forcible transfers ... regardless of their motive" and calls for evacuated persons to be "transferred back to their homes as soon as hostilities in the area in question have ceased."

Moreover, UN General Assembly Resolution 3236 (1974) upholds "the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return" and UN General Assembly Resolution 52/62 (1997) "reaffirms that the Palestine Arab refugees are entitled to their property and to the income derived therefrom, in conformity with the principles of justice and equity."

Additionally, the Israeli communication stated that Israeli PM Barak would "not sign any document which transfers sovereignty over the Temple Mount to the Palestinians." That Israel has acquired territorial sovereignty in those areas is not sustainable in international law. Conquest, whether aggressive or defensive, does not confer title. Not only has the international community declined recognition of the title of Israel to Jerusalem, but they have, more positively, expressly and repeatedly declined to do so.

Between 1947 and 1996, the UN Security Council issued 21 resolutions condemning Israeli policies in Jerusalem that violate international (human rights) law. The General Assembly has also issued similar resolutions (54 resolutions between 1947 and 1992, excluding those that were vetoed by the US). These resolutions were issued either because of Israeli policies and measures on Jerusalem in particular, or they referred to Jerusalem in the context of the Occupied Territories.

The resolutions emphasise the illegitimacy of Jerusalem's annexation, based on the illegitimacy of acquiring territory by war. Additionally, these resolutions regard the city as an integral part of the Occupied Territories and emphasise the applicability of international humanitarian law, especially the Fourth Geneva Convention. There has been unheard-of international unanimity over these resolutions.

Finally, the Israeli communication stated that "Israel insists that in any settlement, 80% of the Jewish residents of Judea, Samaria and Gaza will be in settlement blocs under Israeli sovereignty." However, the establishment of permanent civilian settlements contravenes international humanitarian law, which prohibits an occupying power from transferring population from its territory into territory it occupies, and from performing any act in occupied territory that is not intended to meet its military needs or benefit the local population.

Article 49 of the Fourth Geneva Convention explicitly provides that, "the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." The commentary of the International Committee of the Red Cross to this article states that the article 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.

The declared purpose of the settlers, like that of Israeli governments that established the settlements, was and continues to be to change the demographics in the Occupied Territories, a change that was actually accomplished, at least in those areas in which there is congested Israeli settlement.

The Israeli government initiated most of the Jewish settlement in the Occupied Territories. All of the relevant ministries and authorities assisted by expropriating land, planning, implementing, and financing. The various Israeli governments encouraged and continue to encourage Israeli civilians to move to the Occupied Territories by providing benefits, such as grants and loans under favorable terms.

Even where individual settlers, rather than the government, established settlements, the government acted retroactively to turn these into permanent settlements. To achieve this, the government assisted with planning, infrastructure, establishment of public buildings and institutions, expropriation of land to expand the settlements, and encouragement of other Israeli civilians to live there.

Settlements established pursuant to the decision of a government committee, through governmental planning, implementation, assistance and encouragement, clearly breach article 49 of the Fourth Geneva Convention.

A fundamental principle of international humanitarian law relating to territory subject to belligerent occupation is that occupation is essentially a temporary situation. The temporary nature of occupation entails limitations imposed on the occupying power regarding the creation of permanent facts in the occupied territory.

Article 46 of the Hague Regulations prohibits the confiscation of private property. Article 52 allows the occupying power to requisition land in exchange for compensation, but only to meet its military needs. Requisition of land, contrary to confiscation, is temporary by definition, and the occupying power does not obtain ownership. Article 55 of the Hague Regulations stipulates that the occupying state is regarded only as trustee of public property in the area, and does not obtain ownership of the property.

Since the military commander is not the sovereign in the territory and his administration there is only temporary, he may exercise only two considerations when making decisions concerning the occupied territory: the welfare of the local population and his security needs. Thus, the occupying state may only institute permanent changes where they are intended for the local population.

Since it has never been contended that the settlements were established to benefit the Palestinian residents of the Occupied Territories, the legal justification for their establishment must be that they were temporary actions intended for security needs. Since this is clearly not the case, in establishing the settlements, Israel is violating a fundamental principle of international humanitarian law.