Argument from Palestine: The settlements are illegal
Since 1967, successive Israeli governments have established settlements
in violation of international law; colonizing Palestinian territories in
order to con-solidate and secure control of these areas and prevent the
emergence of a Palestinian state.
Originally used to describe any new Jewish develop-ment in Israel, the
term ‘settlements’ now refers to Jewish-only housing units built in
strategic areas of East Jerusalem and the West Bank, on land occupied
by Israel in 1967.
Most settlements begin as ‘outposts’. These are often composed of just a
few families who live in caravans whilst awaiting infrastructure and
financial support from the state and other sympathetic communities both
inside Israel and abroad.
Of the more than 120 settlement outposts in the West Bank, 58 were
established after March 2001. Only three have been dismantled since the
Annapolis process began.
Moreover, Israel continues to speak of removing only “unauthorized”
outposts (i.e., those established in violation of domestic Israeli law) and
have identified only 26 which fit this description. Neither the Road Map,
nor the successive UN resolutions, contain or respect Israel’s domestic
distinction between legal and illegal settlements or outposts.
Bypass Roads
Settlements are linked to each other and to Israel by an extensive
network of “bypass roads”. All bypass roads have a 50–75m buffer zone
on each side, where no construction is allowed. These buffer zones have
led to a great loss of agricultural and privately-owned Palestinian land.
Whilst illegally built on confiscated Palestinian land, these roads are
forbidden for use by Palestinians. They consolidate Israel’s creation of a
sys-tem of Apartheid in the West Bank and fracture communities across
Palestine.
In August of 2008 there were 794 kilometers of by-pass roads in the
West Bank. To date it is unclear how many kilometers of road Israel is
planning to build before it is finished. This is understandable within the
context of the on-going negotiations and the uncertainty that they pose
for the future of many settlements.
For Palestinian use there are currently a number of roads being
constructed to facilitate their movement in a way which will separate
them from the settlers. To date, about 40 kilometres of “fabric of life”
roads, including 44 tunnels and underpasses, were completed. In
addition, some five kilometres are under construction and another 40
kilometres and 18 tunnels are planned.
Resources
Settlements are the cause of great inequalities in access to natural
resources between Israelis and Palestinians. Many settlements are built
on prime agricultural land confiscated from Palestinians, or over key
water resources such as the Western Aquifer basin, springs and wells.
Israeli West Bank settlers domestically consume an amazing 280 liters
of water per day, per person com-pared to 86 liters per day available for
Palestinians in the West Bank - only 60 of which are considered po-
table. The World Health Organization recommends a minimum of 100
liters per day – meaning that settlers utilize far more than double the
water required, while Palestinians do not approach the minimum.
But only looking at domestic use is misleading. The brunt of water
resources consumed by Israel are for farming and industrial purposes.
When one looks at these numbers, the inequality between Israel and
Palestinian resource sharing grows dramatically.
It is also misleading to look at the amount of land actually ‘settled’ in
the West Bank (3%), as opposed to the more than 40% of West Bank
residential and vital agricultural land confiscated around the settlements
themselves.
By stealing both the land and water resources from Palestine, the Israeli
settlers and the Israeli state have literally made the ‘desert bloom’ whilst
Palestinians are left with little of their own wealth by which to compete.
Settler Violence
Settlers often carry out violent attacks against Pal-estinians and their
property with complete legal immunity, and often with more than
implicit sup-port from the military itself. In fact, Israeli soldiers often
protect and assist settlers, and legal proceed-ings are rarely brought
against them.
According to OCHA, 80-90% of the files opened against Israeli settlers
following attacks on Pales-tinians and their property are regularly closed
by the Israeli police without prosecution.
In the first eight months of 2008, there were a total of 112 people injured
as a result of settler attacks. Nearly 80% of these incidents have occurred
in the Hebron district.
However, as this book goes to print, there has been a dramatic increase
in the number of settler attacks and murders coinciding with the
Palestinian Olive Harvest. The ferocity and sheer number of such
incidences have led to more calls within Israel to punish settler violence,
but as of yet there has been no real effect on the ground.
1
Israeli settlements are illegal under every basic reading of international
law because
1
Palestine Monitor: Factsheet, Israeli Settlements
Article 46 of the Hague Convention prohibits confiscation of private
property in occupied territory. Article 55 of the same Hague Convention
stipulates “the occupying state shall be regarded only as administrator
and usufructuary of public buildings, real estate, forests, and agricultural
estates belonging to the hostile State, and situated in the occupied
country. It must safeguard the capital of these properties, and administer
them in accordance with the rules of usufruct”.
Article 49, paragraph 6 of the Fourth Geneva Convention explicitly
stipulates that “the occupying power shall not deport or transfer parts of
its own civilian population into the territory it occupies”.
UN Security Council Resolution 465 (1980-unanimously adopted)
made it clear that “Israel’s policy and practices of settling parts of its
population and new immigrants” in the Occupied Territories constitutes
“a serious obstruction to achieving a comprehensive, just and lasting
peace in the Middle East”. The Security Council called upon Israel to
“dismantle the existing settlements and in particular to cease, on an
urgent ba-sis, the establishment, construction or planning of settlements
in the Arab territories occupied since 1967, including Jerusalem”.
The 2004 ruling of the International Court of Justice in The Hague
declared that “Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, are illegal and an obstacle to peace and to
economic and social development”.
Argument from Israel: The settlements are legal
Israeli settlements in the West Bank are legal both under international
law and the agreements between Israel and the Palestinians. Claims to
the contrary are mere attempts to distort the law for political purposes.
Yet whatever the status of the settlements, their existence should never
be used to justify terrorism.
The Palestinians often claim that settlement activity is illegal and call on
Israel to dismantle every settlement. In effect, they are demanding that
every Jew leave the West Bank, a form of ethnic cleansing. By contrast,
within Israel, Arabs and Jews live side-by-side; indeed, Israeli Arabs,
who account for approximately 20% of Israel's population, are citizens
of Israel with equal rights.
The Palestinian call to remove all Jewish presence from the disputed
territories is not only discriminatory and morally reprehensible; it has no
basis either in law or in the agreements between Israel and the
Palestinians.
The various agreements reached between Israel and the Palestinians
since 1993 contain no prohibitions on the building or expansion of
settlements. On the contrary, they specifically provide that the issue of
settlements is reserved for permanent status negotiations, which are to
take place in the concluding stage of the peace talks. 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.
It has been charged that the provision contained in the Israel-Palestinian
Interim Agreement prohibiting unilateral steps that alter the status of the
West Bank implies a ban on settlement activity. This position is
disingenuous. The prohibition on unilateral measures was designed to
ensure that neither side take steps that would change the legal status of
this territory (such as by annexation or a unilateral declaration of
statehood), pending the outcome of permanent status talks. The building
of homes has no effect on the final permanent status of the area as a
whole. Were this prohibition to be applied to building, it would lead to
the unreasonable interpretation that neither side is permitted to build
houses to accommodate the needs of their respective communities.
As the Israeli claim to these territories is legally valid, it is just as
legitimate for Israelis to build their communities as it is for the
Palestinians to build theirs. Yet in the spirit of compromise, successive
Israeli governments have indicated their willingness to negotiate the
issue and have adopted a voluntary freeze on the building of new
settlements as a confidence-building measure.
Furthermore, Israel had established its settlements in the West Bank in
accordance with international law. Attempts have been made to claim
that the settlements violate Article 49 of the Fourth Geneva Convention
of 1949, which forbids a state from deporting or transferring "parts of its
own civilian population into the territory it occupies." However, this
allegation has no validity in law as Israeli citizens were neither deported
nor transferred to the territories.
Although Israel has voluntarily taken upon itself the obligation to uphold
the humanitarian provisions of the Fourth Geneva Convention, Israel
maintains that the Convention (which deals with occupied territories)
was not applicable to the disputed territory. As there had been no
internationally recognized legal sovereign in either the West Bank or
Gaza prior to the 1967 Six Day War, they cannot be considered to have
become "occupied territory" when control passed into the hands of
Israel.
Yet even if the Fourth Geneva Convention were to apply to the
territories, Article 49 would not be relevant to the issue of Jewish
settlements. The Convention was drafted immediately following the
Second World War, against the background of the massive forced
population transfers that occurred during that period. As the
International Red Cross' authoritative commentary to the Convention
confirms, Article 49 (entitled "Deportations, Transfers, Evacuations")
was intended to prevent the forcible transfer of civilians, thereby
protecting the local population from displacement. Israel has not forcibly
transferred its citizens to the territory and the Convention does not place
any prohibition on individuals voluntarily choosing their place of
residence. Moreover, the settlements are not intended to displace Arab
inhabitants, nor do they do so in practice. According to independent
surveys, the built-up areas of the settlements (not including roads or
unpopulated adjacent tracts) take up about 3% of the total territory of the
West Bank.
Israel's use of land for settlements conforms to all rules and norms of
international law. Privately owned lands are not requisitioned for the
establishment of settlements. In addition, all settlement activity comes
under the supervision of the Supreme Court of Israel (sitting as the High
Court of Justice) and every aggrieved inhabitant of the territories,
including Palestinian residents, can appeal directly to this Court
The Fourth Geneva Convention was certainly not intended to prevent
individuals from living on their ancestral lands or on property that had
been illegally taken from them. Many present-day Israeli settlements
have been established on sites that were home to Jewish communities in
the West Bank (Judea and Samaria) in previous generations, in an
expression of the Jewish people's deep historic and religious connection
with the land. Many of the most ancient and holy Jewish sites, including
the Cave of the Patriarchs (the burial site of Abraham, Isaac and Jacob)
and Rachel's Tomb, are located in these areas. Jewish communities, such
as in Hebron (where Jews lived until they were massacred in 1929),
existed throughout the centuries. Other communities, such as the Gush
Etzion bloc in Judea, were founded before 1948 under the internationally
endorsed British Mandate.
The right of Jews to settle in all parts of the Land of Israel was first
recognized by the international community in the 1922 League of
Nations Mandate for Palestine. The purpose of the Mandate was to
facilitate the establishment of a Jewish national home in the Jewish
people's ancient homeland. Indeed, Article 6 of the Mandate provided
for "close settlement by Jews on the land, including State lands not
required for public use."
For more than a thousand years, the only time that Jewish settlement was
prohibited in the West Bank was under the Jordanian occupation (1948-
1967) that resulted from an armed invasion. During this period of
Jordanian rule, which was not internationally recognized, Jordan
eliminated the Jewish presence in the West Bank (as Egypt did in the
Gaza Strip) and declared that the sale of land to Jews was a capital
offense. It is untenable that this outrage could invalidate the right of
Jews to establish homes in these areas, and accordingly, the legal titles
to land that had already been acquired remain valid to this day.
In conclusion, the oft-repeated claim regarding the illegality' of Israeli
settlements has no legal or factual basis under either international law or
the agreements between Israel and the Palestinians. Such charges can
only be regarded as politically motivated. Most importantly, any
political claim - including the one regarding settlements - should never
be used to justify terrorist attacks on innocent civilians.2
Opinion of the International Court of Justice
The International Court of Justice (ICJ) issued an advisory opinion in
July 2004 that Israel's building of a barrier in the occupied Palestinian
territory is illegal and said construction must stop immediately and Israel
should make reparations for any damage caused.
2
Israel, the Conflict and Peace: FAQ ministry of foreign affairs, Israel
Responding to a request from the United Nations General Assembly, the
World Court's opinion said the Assembly and the Security Council
should consider what steps to take "to bring to an end the illegal
situation resulting from the construction of the wall and the associated
régime, taking due account of the present Advisory Opinion.”
By a majority of 14 to 1, the judges found that the barrier's construction
breaches international law, saying it violated principles outlined in the
UN Charter and long-standing global conventions that prohibit the threat
or use of force and the acquisition of territory that way, as well as
principles upholding the right of peoples to self-determination.
Observing that 80 per cent of Israeli settlers in the occupied Palestinian
territory now live between the barrier and the so-called Green Line
marking the 1949 boundary of Israel, the Court said the structure's route
could "prejudge the future frontier between Israel and Palestine."
The ICJ – the UN’s principal judicial organ – said construction "would
be tantamount to de facto annexation" as it explained that the barrier
could create a potentially permanent "fait accompli" on the ground.
The judges noted that, combined with the Israeli settlements, which have
been deplored by the Security Council, the barrier's construction alters
the demographic composition of the occupied Palestinian territory and
impedes the Palestinians' right to self-determination.
Concluding that Israel could not rely on a right of self-defence or on a
state of necessity to justify the barrier, the Court said it was not
convinced the specific route chosen was necessary for security reasons.
The judges also said Israel is obliged to stop construction immediately
and dismantle the sections of the barrier that have already been built.
They added that Israel must nullify any laws relating to its construction
and make reparations for any damage caused by its erection.
Voting 13-2, the judges found that all States should not "recognize the
illegal situation resulting from the construction of the wall" and not give
any aid or assistance in maintaining the situation.
The judges' advisory opinion, released at the ICJ's headquarters in The
Hague, is non-binding. It follows three days of court hearings in
February.
In December 2003 the General Assembly, during an emergency special
session on the occupied Palestinian territories, adopted a resolution
asking the ICJ to urgently render an opinion on the legal consequences
of the construction of a barrier.3
RESOLUTION ADOPTED BY THE GENERAL
ASSEMBLY
[on the report of the Special Political and Decolonization
Committee (Fourth Committee) (A/51/592)]
3
International Court of Justice: Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Request for advisory opinion), 9 th July 2004
51/133. Israeli settlements in the occupied
Palestinian territory, including
Jerusalem, and the occupied Syrian
Golan
The General Assembly,
Guided by the principles of the Charter of the United Nations,
and affirming the inadmissibility of the acquisition of territory by
force,
Recalling its relevant resolutions, as well as relevant Security
Council resolutions, including resolutions 242 (1967) of 22 November
1967, 446 (1979) of 22 March 1979, 465 (1980) of 1 March 1980 and
497 (1981)
of 17 December 1981,
Reaffirming the applicability of the Geneva Convention relative to
the Protection of Civilian Persons in Time of War, of 12 August
1949, 1/ to the occupied Palestinian territory, including Jerusalem, and
to the occupied Syrian Golan,
Welcoming the Middle East peace process started at Madrid and the
agreements reached between the parties, in particular the Declaration of
Principles on Interim Self-Government Arrangements of 13 September
1993 2/ and the Interim Agreement on the West Bank and the Gaza Strip
of 28 September 1995,
Expressing grave concern over the decision of the Government of
Israel to resume settlement activities in violation of international
humanitarian law, relevant United Nations resolutions and the
agreements reached between the parties,
Gravely concerned in particular about the dangerous situation
resulting from actions taken by the illegal armed Israeli settlers in the
occupied territory, as illustrated by the massacre of Palestinian
worshippers by an illegal Israeli settler in Al-Khalil on 25 February
1994,
Taking note of the report of the Secretary-General, 3/
1. Reaffirms that Israeli settlements in the Palestinian territory,
including Jerusalem, and in the occupied Syrian Golan are illegal and an
obstacle to peace and economic and social development;
2. Calls upon Israel to accept the de jure applicability of the
Geneva Convention relative to the Protection of Civilian Persons in
Time of War, of 12 August 1949, 1/ to the occupied Palestinian territory,
including Jerusalem, and to the occupied Syrian Golan and to abide
scrupulously by the provisions of the Convention, in particular article
49;
3. Demands complete cessation of all illegal Israeli settlement
activities;
4. Stresses the need for full implementation of Security
Council resolution 904 (1994) of 18 March 1994, in which, among other
things, the Council called upon Israel, the occupying Power, to continue
to take and implement measures, including, inter alia, confiscation of
arms, with the aim of preventing illegal acts of violence by Israeli
settlers, and called for measures to be taken to guarantee the safety and
protection of the Palestinian civilians in the occupied territory.
Statement adopted by The Bureau of the Committee on the Exercise
of the Inalienable Rights of the Palestinian People
A United Nations committee on Palestinian rights on 17th January, 2011
called on the international community to take steps to compel Israel to
end its “illegal” settlement activity in occupied Palestinian territory,
including East Jerusalem, warning that such actions preclude the
possibility of peace.
“The future of the peace process hangs in the balance,” the Bureau of the
Committee on the Exercise of the Inalienable Rights of the Palestinian
People said in a statement, voicing “great alarm” at the recent upsurge in
Israeli settlement activity, despite repeated international calls for a
complete cessation.
“The international community should send a clear and unambiguous
message: settlement activity is illegal and incompatible with peace. It
must stop. This is imperative for having credible negotiations that can
achieve the stated objective of the peace process,” it added, referring to
various UN resolutions and internationally agreed objectives based on a
two-State solution, with Israel and Palestine living side by side in peace.
Israel did not renew a 10-month settlement moratorium, which did not
include East Jerusalem, when it expired at the end of September and
Palestinian President Mahmoud Abbas has refused to resume peace talks
with Israel until it ends all settlement activity.
The Committee, set up in 1975 by the General Assembly to enable the
Palestinians to exercise their rights to self-determination, national
independence and sovereignty and to return to their homes and property
from which they were displaced, noted that Israel’s settlements were
illegal under international law and a major obstruction to resuming the
peace process for a comprehensive, just and lasting settlement of the
question of Palestine.
The recent allocation of more than $500 million in subsidies to expand
settlements through 2012 signals “Israel’s clear intent to continue its
illegal policies, thus rendering the negotiations with the Palestinians
futile and further threatening the possibilities for achieving the two-State
solution on the basis of the pre-1967 borders,” it said, referring to the
lines that existed before the Six-Day War brought Gaza, the West Bank
and East Jerusalem under Israeli control.
“Palestinian homes continue to be demolished to make room for illegal
settlers in defiance of universal condemnations of such unlawful and
provocative practices,” said the Committee, referring to recent activities
in East Jerusalem.
“In addition, actions by settlers, such as the uprooting of olive trees
belonging to Palestinians, vandalism, theft, desecration of cemeteries,
and harassment and intimidation of Palestinians have become an almost
daily occurrence and often seem to be tolerated by the Israeli authorities.
Such actions violate Palestinian human rights, raise tensions between the
two sides, and must be halted,” the statement stressed.
The Committee declared its full support for the “principled stance” of
the Palestinian leadership which “has demonstrated political maturity by
engaging in direct negotiations with Israel, while making it abundantly
clear at the outset that Israel would have to choose between settlements
and peace.”
It regretted the lack of political will by the world community, despite an
unambiguous consensus on the illegality of the settlements, to take
action to stop settlement expansion and eventually remove them, and
called on all international stakeholders to “unequivocally reaffirm their
position of principle on the settlement issue with a view to compelling
Israel to live up to its obligations.”
These obligations, it noted, stem from various Security Council
resolutions, the Geneva Conventions on occupied territory, and the Road
Map peace plan for a two-State solution sponsored by the diplomatic
Quartet comprising the UN, European Union, Russia and the United
States.
