committeepaperpalestine

8/7/2019 committeepaperpalestine

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Argument from Palestine: The settlements are illegal

Since 1967, successive Israeli governments have established settlementsin violation of international law; colonizing Palestinian territories in

order to con-solidate and secure control of these areas and prevent theemergence of a Palestinian state.

Originally used to describe any new Jewish develop-ment in Israel, theterm settlements now refers to Jewish-only housing units built instrategic 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 andfinancial support from the state and other sympathetic communities bothinside Israel and abroad.

Of the more than 120 settlement outposts in the West Bank, 58 wereestablished after March 2001. Only three have been dismantled since theAnnapolis process began.

Moreover, Israel continues to speak of removing only unauthorizedoutposts (i.e., those established in violation of domestic Israeli law) andhave identified only 26 which fit this description. Neither the Road Map,nor the successive UN resolutions, contain or respect Israels domesticdistinction 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 5075m buffer zoneon each side, where no construction is allowed. These buffer zones haveled to a great loss of agricultural and privately-owned Palestinian land.

Whilst illegally built on confiscated Palestinian land, these roads areforbidden for use by Palestinians. They consolidate Israels creation of a


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sys-tem of Apartheid in the West Bank and fracture communities acrossPalestine.

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 isplanning to build before it is finished. This is understandable within thecontext of the on-going negotiations and the uncertainty that they posefor the future of many settlements.

For Palestinian use there are currently a number of roads beingconstructed to facilitate their movement in a way which will separatethem from the settlers. To date, about 40 kilometres of fabric of liferoads, including 44 tunnels and underpasses, were completed. In

addition, some five kilometres are under construction and another 40kilometres and 18 tunnels are planned.

Resources

Settlements are the cause of great inequalities in access to naturalresources between Israelis and Palestinians. Many settlements are builton 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 litersof water per day, per person com-pared to 86 liters per day available forPalestinians in the West Bank - only 60 of which are considered po-table. The World Health Organization recommends a minimum of 100liters per day meaning that settlers utilize far more than double thewater required, while Palestinians do not approach the minimum.

But only looking at domestic use is misleading. The brunt of waterresources consumed by Israel are for farming and industrial purposes.When one looks at these numbers, the inequality between Israel andPalestinian resource sharing grows dramatically.


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It is also misleading to look at the amount of land actually settled inthe West Bank (3%), as opposed to the more than 40% of West Bankresidential and vital agricultural land confiscated around the settlementsthemselves.

By stealing both the land and water resources from Palestine, the Israelisettlers and the Israeli state have literally made the desert bloom whilstPalestinians 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 settlersfollowing 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 injuredas a result of settler attacks. Nearly 80% of these incidents have occurredin the Hebron district.

However, as this book goes to print, there has been a dramatic increasein the number of settler attacks and murders coinciding with thePalestinian Olive Harvest. The ferocity and sheer number of suchincidences have led to more calls within Israel to punish settler violence,

but as of yet there has been no real effect on the ground.


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1Israeli settlements are illegal under every basic reading of internationallaw because

Article 46 of the Hague Convention prohibits confiscation of private

property in occupied territory. Article 55 of the same Hague Conventionstipulates the occupying state shall be regarded only as administratorand usufructuary of public buildings, real estate, forests, and agriculturalestates belonging to the hostile State, and situated in the occupiedcountry. It must safeguard the capital of these properties, and administerthem in accordance with the rules of usufruct.

Article 49, paragraph 6 of the Fourth Geneva Conventionexplicitly stipulates that the occupying power shall not deport or

transfer parts of its own civilian population into the territory itoccupies.

UN Security Council Resolution 465 (1980-unanimously adopted)made it clear that Israels policy and practices of settling parts of its

population and new immigrants in the Occupied Territories constitutesa 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 anurgent ba-sis, the establishment, construction or planning of settlementsin the Arab territories occupied since 1967, including Jerusalem.

The 2004 ruling of the International Court of Justice in The Haguedeclared that Israeli settlements in the Occupied Palestinian Territory,including East Jerusalem, are illegal and an obstacle to peace and toeconomic and social development.

1Palestine Monitor: Factsheet, Israeli Settlements


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Argument from Israel: The settlements are legal

Israeli settlements in the West Bank are legal both under internationallaw 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 onIsrael to dismantle every settlement. In effect, they are demanding thatevery 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 citizensof Israel with equal rights.

The Palestinian call to remove all Jewish presence from the disputedterritories is not only discriminatory and morally reprehensible; it has no

basis either in law or in the agreements between Israel and thePalestinians.

The various agreements reached between Israel and the Palestinians

since 1993 contain no prohibitions on the building or expansion ofsettlements. On the contrary, they specifically provide that the issue ofsettlements is reserved for permanent status negotiations, which are totake place in the concluding stage of the peace talks. The partiesexpressly agreed that the Palestinian Authority has no jurisdiction orcontrol over settlements or Israelis, pending the conclusion of a

permanent status agreement.

It has been charged that the provision contained in the Israel-PalestinianInterim Agreement prohibiting unilateral steps that alter the status of theWest Bank implies a ban on settlement activity. This position isdisingenuous. The prohibition on unilateral measures was designed toensure that neither side take steps that would change the legal status ofthis territory (such as by annexation or a unilateral declaration of


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statehood), pending the outcome of permanent status talks. The buildingof homes has no effect on the final permanent status of the area as awhole. Were this prohibition to be applied to building, it would lead tothe 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 aslegitimate for Israelis to build their communities as it is for thePalestinians to build theirs. Yet in the spirit of compromise, successiveIsraeli governments have indicated their willingness to negotiate theissue and have adopted a voluntary freeze on the building of newsettlements as a confidence-building measure.

Furthermore, Israel had established its settlements in the West Bank inaccordance with international law. Attempts have been made to claimthat the settlements violate Article 49 of the Fourth Geneva Conventionof 1949, which forbids a state from deporting or transferring "parts of itsown civilian population into the territory it occupies." However, thisallegation has no validity in law as Israeli citizens were neither deportednor transferred to the territories.

Although Israel has voluntarily taken upon itself the obligation to upholdthe humanitarian provisions of the Fourth Geneva Convention, Israelmaintains that the Convention (which deals with occupied territories)was not applicable to the disputed territory. As there had been nointernationally recognized legal sovereign in either the West Bank orGaza prior to the 1967 Six Day War, they cannot be considered to have

become "occupied territory" when control passed into the hands ofIsrael.

Yet even if the Fourth Geneva Convention were to apply to theterritories, Article 49 would not be relevant to the issue of Jewishsettlements. The Convention was drafted immediately following theSecond World War, against the background of the massive forced

population transfers that occurred during that period. As the


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International Red Cross' authoritative commentary to the Conventionconfirms, 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 placeany prohibition on individuals voluntarily choosing their place ofresidence. Moreover, the settlements are not intended to displace Arabinhabitants, nor do they do so in practice. According to independentsurveys, the built-up areas of the settlements (not including roads orunpopulated adjacent tracts) take up about 3% of the total territory of theWest Bank.

Israel's use of land for settlements conforms to all rules and norms ofinternational law. Privately owned lands are not requisitioned for theestablishment of settlements. In addition, all settlement activity comesunder the supervision of the Supreme Court of Israel (sitting as the HighCourt 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 preventindividuals from living on their ancestral lands or on property that had

been illegally taken from them. Many present-day Israeli settlementshave been established on sites that were home to Jewish communities inthe West Bank (Judea and Samaria) in previous generations, in anexpression of the Jewish people's deep historic and religious connectionwith the land. Many of the most ancient and holy Jewish sites, includingthe Cave of the Patriarchs (the burial site of Abraham, Isaac and Jacob)and Rachel's Tomb, are located in these areas. Jewish communities, suchas in Hebron (where Jews lived until they were massacred in 1929),

existed throughout the centuries. Other communities, such as the GushEtzion bloc in Judea, were founded before 1948 under the internationallyendorsed British Mandate.

The right of Jews to settle in all parts of the Land of Israel was firstrecognized by the international community in the 1922 League of


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Nations Mandate for Palestine. The purpose of the Mandate was tofacilitate the establishment of a Jewish national home in the Jewish

people's ancient homeland. Indeed, Article 6 of the Mandate providedfor "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 wasprohibited in the West Bank was under the Jordanian occupation (1948-1967) that resulted from an armed invasion. During this period ofJordanian rule, which was not internationally recognized, Jordaneliminated the Jewish presence in the West Bank (as Egypt did in theGaza Strip) and declared that the sale of land to Jews was a capital

offense. It is untenable that this outrage could invalidate the right ofJews to establish homes in these areas, and accordingly, the legal titlesto land that had already been acquired remain valid to this day.

In conclusion, the oft-repeated claim regarding the illegality' of Israelisettlements has no legal or factual basis under either international law orthe agreements between Israel and the Palestinians. Such charges canonly be regarded as politically motivated. Most importantly, any

political claim - including the one regarding settlements - should neverbe used to justify terrorist attacks on innocent civilians.2

2Israel, the Conflict and Peace: FAQ ministry of foreign affairs, Israel


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Opinion of the International Court of Justice

The International Court of Justice (ICJ) issued an advisory opinion inJuly 2004 that Israel's building of a barrier in the occupied Palestinian

territory is illegal and said construction must stop immediately and Israelshould make reparations for any damage caused.

Responding to a request from the United Nations General Assembly, theWorld Court's opinion said the Assembly and the Security Councilshould consider what steps to take "to bring to an end the illegalsituation resulting from the construction of the wall and the associatedrgime, taking due account of the present Advisory Opinion.

By a majority of 14 to 1, the judges found that the barrier's constructionbreaches international law, saying it violated principles outlined in theUN Charter and long-standing global conventions that prohibit the threator 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 Palestinianterritory now live between the barrier and the so-called Green Line

marking the 1949 boundary of Israel, the Court said the structure's routecould "prejudge the future frontier between Israel and Palestine."

The ICJ the UNs principal judicial organ said construction "wouldbe tantamount to de facto annexation" as it explained that the barriercould create a potentially permanent "fait accompli" on the ground.

The judges noted that, combined with the Israeli settlements, which havebeen deplored by the Security Council, the barrier's construction alters

the demographic composition of the occupied Palestinian territory andimpedes the Palestinians' right to self-determination.

Concluding that Israel could not rely on a right of self-defence or on astate of necessity to justify the barrier, the Court said it was notconvinced the specific route chosen was necessary for security reasons.


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RESOLUTION ADOPTED BY THE GENERALASSEMBLY

[on the report of the Special Political and Decolonization

Committee (Fourth Committee) (A/51/592)]

51/133. Israeli settlements in the occupiedPalestinian territory, includingJerusalem, and the occupied SyrianGolan

The General Assembly,

Guided by the principles of the Charter of the United Nations,and affirming the inadmissibility of the acquisition of territory byforce,

Recalling its relevant resolutions, as well as relevant SecurityCouncil resolutions, including resolutions 242 (1967) of 22 November1967, 446 (1979) of 22 March 1979, 465 (1980) of 1 March 1980 and497 (1981)of 17 December 1981,

Reaffirming the applicability of the Geneva Convention relative tothe Protection of Civilian Persons in Time of War, of 12 August1949, 1/ to the occupied Palestinian territory, including Jerusalem, andto the occupied Syrian Golan,

Welcoming the Middle East peace process started at Madrid and theagreements reached between the parties, in particular the Declaration ofPrinciples on Interim Self-Government Arrangements of 13 September1993 2/ and the Interim Agreement on the West Bank and the Gaza Stripof 28 September 1995,


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Expressing grave concern over the decision of the Government ofIsrael to resume settlement activities in violation of internationalhumanitarian law, relevant United Nations resolutions and theagreements reached between the parties,

Gravely concerned in particular about the dangerous situationresulting from actions taken by the illegal armed Israeli settlers in theoccupied territory, as illustrated by the massacre of Palestinianworshippers by an illegal Israeli settler in Al-Khalil on 25 February1994,

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 anobstacle to peace and economic and social development;

2. Calls upon Israel to accept the de jure applicability of theGeneva Convention relative to the Protection of Civilian Persons inTime of War, of 12 August 1949, 1/ to the occupied Palestinian territory,including Jerusalem, and to the occupied Syrian Golan and to abidescrupulously by the provisions of the Convention, in particular article49;

3. Demands complete cessation of all illegal Israeli settlementactivities;

4. Stresses the need for full implementation of SecurityCouncil resolution 904 (1994) of 18 March 1994, in which, among other

things, the Council called upon Israel, the occupying Power, to continueto take and implement measures, including, inter alia, confiscation ofarms, with the aim of preventing illegal acts of violence by Israelisettlers, and called for measures to be taken to guarantee the safety and

protection of the Palestinian civilians in the occupied territory.


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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, 2011called on the international community to take steps to compel Israel toend 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 theCommittee on the Exercise of the Inalienable Rights of the Palestinian

People said in a statement, voicing great alarm at the recent upsurge inIsraeli settlement activity, despite repeated international calls for acomplete cessation.

The international community should send a clear and unambiguousmessage: settlement activity is illegal and incompatible with peace. Itmust stop. This is imperative for having credible negotiations that canachieve the stated objective of the peace process, it added, referring tovarious 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 notinclude East Jerusalem, when it expired at the end of September andPalestinian President Mahmoud Abbas has refused to resume peace talkswith Israel until it ends all settlement activity.

The Committee, set up in 1975 by the General Assembly to enable thePalestinians to exercise their rights to self-determination, national

independence and sovereignty and to return to their homes and propertyfrom which they were displaced, noted that Israels settlements wereillegal under international law and a major obstruction to resuming the

peace process for a comprehensive, just and lasting settlement of thequestion of Palestine.


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The recent allocation of more than $500 million in subsidies to expandsettlements through 2012 signals Israels clear intent to continue itsillegal policies, thus rendering the negotiations with the Palestiniansfutile and further threatening the possibilities for achieving the two-State

solution on the basis of the pre-1967 borders, it said, referring to thelines that existed before the Six-Day War brought Gaza, the West Bankand East Jerusalem under Israeli control.

Palestinian homes continue to be demolished to make room for illegalsettlers in defiance of universal condemnations of such unlawful and

provocative practices, said the Committee, referring to recent activitiesin East Jerusalem.

In addition, actions by settlers, such as the uprooting of olive treesbelonging to Palestinians, vandalism, theft, desecration of cemeteries,and harassment and intimidation of Palestinians have become an almostdaily occurrence and often seem to be tolerated by the Israeli authorities.Such actions violate Palestinian human rights, raise tensions between thetwo 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 byengaging in direct negotiations with Israel, while making it abundantlyclear at the outset that Israel would have to choose between settlementsand peace.

It regretted the lack of political will by the world community, despite anunambiguous consensus on the illegality of the settlements, to takeaction to stop settlement expansion and eventually remove them, andcalled on all international stakeholders to unequivocally reaffirm their

position of principle on the settlement issue with a view to compellingIsrael to live up to its obligations.

These obligations, it noted, stem from various Security Councilresolutions, the Geneva Conventions on occupied territory, and the RoadMap peace plan for a two-State solution sponsored by the diplomatic


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Quartet comprising the UN, European Union, Russia and the UnitedStates.

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