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ARE THE SETTLEMENTS LEGAL? (THE NEW REPUBLIC) Consolidated Articles of April 23, 1990 and October 21, 1991 By Eugene W. Rostow, `former U.S. Assistant Secretary of State, (1966-1969) and former Dean of the Yale Law School)Source: http://www.thenewrepublic.com NEW REPUBLIC NEW REPUBLIC Articles-Index-TopPublishers-Index-Top
With varying degrees of seriousness, all American administrations since 1967 have objected to Israeli settlements in the West Bank (Judea and Samaria) on the ground that it would make it more difficult to persuade the Arabs to make peace.

President Carter decreed that the settlements were "illegal" as well as tactically unwise. President Reagan said the settlements were legal but that they made negotiations less likely. The strength of the argument is hardly self-evident. Jordan occupied the West Bank (Judea and Samaria) for nineteen years, allowed no Jewish settlements, and showed no signs of wanting to make peace.

(United Nations) Security Council Resolutions 242 and 338. Resolution 242, adopted after the Six-Day War in 1967, set out criteria for peace-making by the parties (to the conflict); Resolution 338, passed after the Yom Kippur War in 1973, makes resolution 242 legally binding and orders the parties to carry out its terms forthwith. Unfortunately, confusion reigns, even in high places, about what those resolutions require.

(Since 1967) Arab states have pretended that the two resolutions are "ambiguous" and can be interpreted to suit their desires. And some Europeans (Russian) and even American officials have cynically allowed Arab spokesman to delude themselves and their people – to say nothing of Western public opinion – about what the resolutions mean. It is common even for American journalists to write that Resolution 242 is "deliberately ambiguous," as if the parties are equally free to rely on their own reading of its key provisions.

Nothing could be further from the truth. Resolution 242, which as Under Secretary of State for Political Affairs between 1966 and 1969, I helped produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until " a just and lasting peace in the Middle East" is achieved. When such a peace is made, Israel is required to withdraw its armed forces "from territories" it occupied during the Six-Day War – not from "the" territories, nor from "all" the territories, but some of the territories, which included the Sinai Desert, the West Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.

Five-and-a-half months of vehement public diplomacy made it perfectly clear what the missing definite article in Resolution 242 means. Ingeniously drafted resolutions calling for withdrawals from "all" the territories were defeated in the Security Council and the General Assembly. Speaker after speaker made it explicit that Israel was not to be forced back to the "fragile" and "vulnerable" Armistice Demarcation Lines, but should retire once peace was made to what Resolution 242 called "secure and recognized" boundaries agreed to by the parties. In negotiating such agreement, the parties should take into account, among other factors, security considerations, access to the international waterways of the region, and, of course, their respective legal claims.

Resolution 242 built on the text of the Armistice Agreements of 1949, which provided (except in the case of Lebanon) that the Armistice Demarcation Lines separating the military forces were "not to be construed in any sense" as political or territorial boundaries, and that "no provision" of the Armistice Agreements "shall in any way prejudice the right, claims, and positions" of the parties "in the ultimate peaceful settlement of the Palestine problem." In making peace with Egypt in 1979, Israel withdraw from the entire Sinai, which had never been part of the British Mandate ….

Resolution 242 leaves the issue of dividing the occupied areas between Israel and its neighbors entirely to the agreement of the parties in accordance with the principles it sets out. It was, however, negotiated with full realization that the problem of establishing "a secure and recognized" boundary between Israel and Jordan would be the thorniest issue of the peace making process.

The heated question of Israel settlements in the West Bank during the occupation period should be viewed in this perspective. The British Mandate recognized the right of the Jewish People to "close settlement" in the whole of the Mandated territory. It was provided that local conditions might require Great Britain to "postpone" or "withhold" Jewish settlement in what is now Jordan. This was done in 1922. But the Jewish right of settlement in Palestine, west of the Jordan River, that is in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated, and cannot be terminated except by a recognized peace between Israel and its neighbors. And perhaps not even then, in view of Article 80 of the UN Charter, "the Palestine Article," which provides that nothing in the Charter shall be construed… to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments…"

Some governments have taken the view that under the Geneva Convention of 1949, which deals with the rights of civilians under military occupation, Jewish settlements in the West Bank are illegal, on the ground that the Convention prohibits an occupying power from flooding the occupied territory with its own citizens. President Carter supported this view, but President Reagan reversed him, specifically saying that the settlements are legal but that further settlements should be deferred since they pose an obstacle to the peace process.

This reading of Resolution 242 has always been the keystone of American policy. In launching a major peace initiative on September 1, 1982, President Reagan said, "I have personally followed and supported Israel´s heroic struggle for survival since the founding of the state of Israel thirty-four years ago: in the pre-1957 borders, Israel was barely 10 miles wide at its narrowest point. The bulk of Israel´s population lived within artillery range of hostile Arab armies. I am not about to ask Israel to live that way again."

Yet some Bush (Sr.) administration statements and actions on the Arab- Israeli question, and especially Secretary of State James Baker´s disastrous speech of May 22, 1989 betray(ed) a strong impulse to escape from the Resolutions as they were negotiated, debated, and adopted, an award to the Arabs all the territories between the 1967 lines and the Jordan River, including East Jerusalem. The Bush (Sr.) administration seem (ed) to consider the West Bank and the Gaza Strip to be "foreign" territory to which Israel has no claim. Yet the Jews have the same right to settle there as they have to settle in Haifa. The West Bank and the Gaza Strip were never parts of Jordan, and Jordan´s attempt to annex the West Bank was not generally recognized and has now been abandoned. The two parcels of land are parts of the Mandate that have not yet been allocated to Jordan, to Israel, or to any other state, and are a legitimate subject for discussion….

The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel was created. The Mandate for Palestine differs in one important respect from the other League of Nations mandates, which were trusts for the benefit of the indigenous population. The Palestine Mandate, recognizing "the historical connection of the Jewish People with Palestine, and the grounds for reconstituting their national home in that country, " is dedicate to "the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country."

The Mandate qualifies the Jewish right of settlement and political development in Palestine in only one respect. Article 25 gave Great Britain and the League Council discretion to "postpone" or "withhold" the Jewish People´s right of settlement in the Trans-Jordanian province of Palestine – now the Kingdom of Jordan – if they decided that local conditions made such action desirable. With the divided support of the council, the British took that step in 1922.

The Mandate does not, however, permit even a temporary suspension of the Jewish right of settlement in the parts of the Mandate west of the Jordan River. The Armistice Lines of 1949, which are part of the West Bank boundary, represent nothing but the position of the contending armies when the final cease-fire was achieved in the War of Independence. And the Armistice Agreements specifically provide, except in the case of Lebanon, that the demarcation lines can be changed by agreement when the parties move from Armistice to peace. Resolution 242 is based on that provision of the Armistice Agreements and states certain criteria that would justify changes in the demarcation lines when the parties make peace.

Many believe that the Palestine Mandate was somehow terminated in 1947, when the British Government resigned as the mandatory power. This is incorrect. A trust never terminates when a trustee dies, resigns, embezzles the trust property, or is dismissed. The authority responsible for the trust appoints a new trustee, or otherwise arranges for the fulfillment of its purpose. Thus in the case of the Mandate for German South West Africa, the International Court of Justice found the South African government to be derelict in its duty as the Mandatory power and it was deemed to have resigned. Decades of struggle and diplomacy then resulted in the creation of the new state of Namibia which has just come into being. In Palestine the British Mandate ceased to be operative as to the territories of Israel and Jordan when those states were created and recognized by the international community. But its rules apply still to the West Bank and the Gaza Strip, which have not yet been allocated either to Israel or to Jordan or become an independent state. Jordan attempted to annex the West Bank in 1951 but that annexation was never generally recognized, even by the Arab states, and now Jordan has abandoned all its claims to the territory.

The State Department has never denied that under the Mandate "the Jewish people" have the right to settle in the area. Instead, it said that Jewish settlements in the West Bank violate Article 49 of the 4th Geneva Convention of 1949, which deals with the protection of civilians in wartime. Where the territory of one contracting party is occupied by another contracting party, the convention prohibits many of the inhumane practices of the Nazis and the Soviets before and during the Second World War – the mass transfer of people into or out of occupied territories for purposes of extermination, slave labor or colonization, for example.

Article 49 provides that the occupying power "shall not deport or transfer part of its own civilian population into the territory it occupies." But the Jewish settlers in the West Bank are volunteers. They have not been "deported" or "transferred" by the government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population the Geneva Convention was designed to prevent. Furthermore, the Convention applies only to "acts by one signatory carried out on the territory of another." The West Bank is not the territory of a signatory power, but an unallocated part of the British Mandate. It is hard, therefore, to see how even the most literal minded reading of the Convention could make it apply to Jewish settlement in territories of the British Mandate west of the Jordan River. Even if the Convention could be construed to prevent settlements during the period of occupation, it could do no more than suspend, not terminate, the rights conferred by the Mandate. Those rights can be ended only by the establishment and recognition of a new state or the incorporation of the territories into an old one.

As claimants to the territory the Israelis have denied that they are required to comply with the Geneva Convention but announced that they will do so as a matter of grace. The Israeli courts apply the Convention routinely, sometimes deciding against the Israeli Government. Assuming for the moment the general applicability of the Convention, it could well be considered a violation if the Israelis deported convicts to the area, or encouraged the settlement of people who had no right to live there (Americans for example). But how can the convention be deemed to apply to Jews who have a right to settle in the territories under international law: a legal right assured by treaty and specifically protected by Article 80 of the UN Charter, which provides that nothing in the Charter shall be construed "to alter in any manner rights conferred by existing international instruments." The Jewish right of settlement in the area is equivalent in every way to the right of the existing Palestinian population to live there.

Another principle of international law may affect the problem of the Jewish settlements. Under international law an occupying power is supposed to apply the prevailing law of the occupied territory at the municipal level unless it interferes with the necessities of security or administration or is "repugnant to elementary conceptions of justice." >From 1949 to 1967 when Jordan was the military occupant of the West Bank it applied its own laws to prevent any Jews from living in the territory. To suggest that Israel as occupant is required to enforce such Jordanian laws – a necessary implication of applying the Convention – is simply absurd. When the Allies occupied Germany after the Second World War, the abrogation of the Nuremberg Laws was among their first acts.

The general expectation of international law is that military occupations last a short time, and are succeeded by a state of peace established by treaty or otherwise. In the case of the West Bank the territory was occupied by Jordan between 1949 and 1967 and has been occupied by Israel since 1967. Security Council Resolutions 242 and 338 ruled that the Arab states and Israel must make peace, and that when " a just and lasting peace is reached in the Middle East, Israel should withdraw from some but not all of the territory it occupied in the course of the 1967 war. The Resolutions leave it to the parties to agree on the terms of peace.

The controversy about Jewish settlements is not, therefore, about legal rights but about the political will to override legal rights. Is the United States prepared to use all its influence in Israel to award the whole of the West Bank to Jordan or to a new Arab state, and force Israel back to its 1967 borders? Throughout Israel´s occupation, the Arab countries helped by the United States, have pushed to keep Jews out of the territories so that at a convenient moment, or in a peace negotiation, the claim that the West Bank is "Arab" territory could be made more plausible. Some in Israel favor the settlements for the obverse reason: to reinforce Israel´s claim for the fulfillment of the Mandate and of Resolution 242 in a peace treaty that would at least divide the territory.

Are Israeli settlements legal? (MFA) MINISTRY FOREIGN AFFAIRS) November 2007)

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. (Copyright ©2007 The State of Israel.)

Israeli Settlements and International Law May 2001 (MFA) MINISTRY FOREIGN AFFAIR)

The Historical Context

Jewish settlement in West Bank and Gaza Strip territory has existed from time immemorial and was expressly recognised as legitimate in the Mandate for Palestine adopted by the League of Nations, which provided for the establishment of a Jewish state in the Jewish people´s ancient homeland. Indeed, Article 6 of the Mandate provided as follows:

- "The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish Agency referred to in Article 4, close settlement by Jews on the land, including State lands not required for public use".

- Some Jewish settlements, such as in Hebron, existed throughout the centuries of Ottoman rule, while settlements such as Neve Ya´acov, north of Jerusalem, the Gush Etzion bloc in Judea and Samaria, the communities north of the Dead Sea and Kfar Darom in the Gaza region, were established under British Mandatory administration prior to the establishment of the State of Israel. To be sure, many Israeli settlements have been established on sites which were home to Jewish communities in previous generations, in an expression of the Jewish people´s deep historic and religious connection with the land.

- For more than a thousand years, the only administration which has prohibited Jewish settlement was the Jordanian occupation administration, which during the nineteen years of its rule (1948- 1967) declared the sale of land to Jews a capital offense. The right of Jews to establish homes in these areas, and the legal titles to the land which had been acquired, could not be legally invalidated by the Jordanian or Egyptian occupation which resulted from their armed invasion of Israel in 1948, and such rights and titles remain valid to this day.

International Humanitarian Law in the West Bank and Gaza Strip

- International humanitarian law prohibits the forcible transfer of segments of the population of a state to the territory of another state which it has occupied as a result of the resort to armed force. This principle, which is reflected in Article 49 of the Fourth Geneva Convention, was drafted immediately following the Second World War. As International Red Cross´ authoritative commentary to the Convention confirms, the principle was intended to protect the local population from displacement, including endangering its separate existence as a race, as occurred with respect to the forced population transfers in Czechoslovakia, Poland and Hungary before and during the war. This is clearly not the case with regard to the West Bank and Gaza.

The attempt to present Israeli settlements as a violation of this principle is clearly untenable. As Professor Eugene Rostow, former Under-Secretary of State for Political Affairs has written: "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there" (AJIL, 1990, vol. 84, p.72).

- The provisions of the Geneva Convention regarding forced population transfer to occupied sovereign territory cannot be viewed as prohibiting the voluntary return of individuals to the towns and villages from which they, or their ancestors, had been ousted. Nor does it prohibit the movement of individuals to land which was not under the legitimate sovereignty of any state and which is not subject to private ownership. In this regard, Israeli settlements have been established only after an exhaustive investigation process, under the supervision of the Supreme Court of Israel, designed to ensure that no communities are established on private Arab land.

- It should be emphasised that the movement of individuals to the territory is entirely voluntary, while the settlements themselves are not intended to displace Arab inhabitants, nor do they do so in practice.

- Repeated charges regarding the illegality of Israeli settlements must therefore be regarded as politically motivated, without foundation in international law. Similarly, as Israeli settlements cannot be considered illegal, they cannot constitute a "grave violation" of the Geneva Convention, and hence any claim that they constitute a "war crime" is without any legal basis. Such political charges cannot justify in any way Palestinian acts of terrorism and violence against innocent Israelis.

- Politically, the West Bank and Gaza Strip is best regarded as territory over which there are competing claims which should be resolved in peace process negotiations. Israel has valid claims to title in this territory based not only on its historic and religious connection to the land, and its recognized security needs, but also on the fact that the territory was not under the sovereignty of any state and came under Israeli control in a war of self-defense, imposed upon Israel. At the same time, Israel recognizes that the Palestinians also entertain legitimate claims to the area. Indeed, the very fact that the parties have agreed to conduct negotiations on settlements indicated that they envisage a compromise on this issue.

Israeli-Palestinian Agreements

- The agreements reached between Israel and the Palestinians contain no prohibition whatsoever on the building or expansion of settlements. On the contrary, it is specifically provided that the issue of settlements is reserved for permanent status negotiations, which are to take place in the concluding stage of the peace talks. Indeed, 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 prohibition on unilateral steps which alter the "status" of the West Bank and Gaza Strip, which is contained in the Interim Agreement and in subsequent agreements between the parties, implies a ban on settlement activity. This position is disingenuous. The building of homes has no effect on the status of the area. The prohibition on unilateral measures was agreed upon in order to ensure that neither side take steps to change the legal status of this territory (such as by annexation or unilateral declaration of statehood), pending the outcome of permanent status negotiations. Were this prohibition to be applied to building, it would lead to the ridiculous interpretation that neither side is permitted to build homes to accommodate for the needs of their respective communities.

- It is important to note, that in the spirit of compromise and in an attempt to take constructive confidence building measures in the peace process, successive Israeli governments have expressly recognized the need for territorial compromise in West Bank and Gaza Strip territory and have voluntary adopted a freeze on the building of new settlements. In this regard, the present National Unity Government, under Prime Minister Ariel Sharon, has officially declared that it will not build any new settlements, while remaining committed to the basic needs of the existing settlement communities (Government of Israel, Policy Guidelines, March 2001). (Copyright ©2007 The State of Israel. 2001)

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