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Israeli settlement
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Israeli settlements are communities inhabited by Israelis in territory that was captured during the 1967 Six-Day War. Such settlements currently exist in the West Bank, which is partially under Israeli military administration and partially under the control of the Palestinian National Authority, and in the Golan Heights, which are under Israeli civilian administration.
International bodies, including the United Nations Security Council, the International Court of Justice, the European Union, Amnesty International and Human Rights Watch and some legal scholars have characterized the settlements as a violation of international law.
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Encyclopedia
Israeli settlements are communities inhabited by Israelis in territory that was captured during the 1967 Six-Day War. Such settlements currently exist in the West Bank, which is partially under Israeli military administration and partially under the control of the Palestinian National Authority, and in the Golan Heights, which are under Israeli civilian administration.
International bodies, including the United Nations Security Council, the International Court of Justice, the European Union, Amnesty International and Human Rights Watch and some legal scholars have characterized the settlements as a violation of international law. Israel, the Anti-Defamation League, and other legal scholars disagree with this assessment. (See Legal background)
The term sometimes includes communities in territory that was captured in 1967, but has since been under Israeli civil law, administration and jurisdiction in
- East Jerusalem, which is incorporated within the municipal borders of Jerusalem, though annexation under the Jerusalem Law is not recognized by the international community; and
- The Golan Heights, where military rule was revoked in 1981 and has since been under Israeli civil law, administration and jurisdiction under the Golan Heights Law.
An additional eighteen settlements formerly existed in the Sinai Peninsula, twenty-one in the Gaza Strip and four in the northern West Bank. They were abandoned as part of Israeli withdrawals from these areas in 1982 (Sinai) and 2005.
Israeli policies toward these settlements have ranged from active promotion to removal by force, and their continued existence and expansion since the 1970s is one of the most contentious issues in the Israeli-Palestinian conflict.
Terminology
- In Hebrew, the common term for the Israeli settlements outside the Green Line is hitnakhluyot (Hebrew: ?????????; singular ???????/hitnakhlut, hitnakhalut). This term, 'evoking Biblical injunctions and promises to "inherit" the land through settlement', was introduced when the Likud party came to power, replacing the earlier emotionally neutral word hityashvut. Concomitantly, the terms Occupied Territory and West Bank, where settlement was to take place, were forbidden in news reports Hitnakhluyot is widely used in the media and in public, although some think it has acquired a derogatory connotation in recent years. Settlers are called mitnakhalim (Hebrew: ???????; singular - ?????/mitnakhel). The settlers and their sympathizers, as well as most official Israeli references use the term yishuvim (???????; singular - ?????/yishuv) for settlements and mityashvim (????????; singular - ??????/mityashev) for settlers. These terms also refer to settlements inside Israel proper. Furthermore, the term "settler" is often associated with the primarilyReligious Zionist movement, and other settler populations (such as the Haredi residents of Betar Illit and Modi'in Illit) do not associate themselves with it.
- In Arabic, settlements are called mustawtanaat (Arabic: ??????????), and settlers are mustawtineen (????????). Mustamaraat (????????) is another term used among Palestinians translates literally as colonies; from the Palestinian point of view, most settlers are foreigners to Palestine.
- Judea and Samaria is the official Israeli government term adopted in 1967 for the district covering the West Bank. "Judea" and "Samaria" are also the terms preferred by annexationists.
Historical timeline
The cease-fire agreement following the 1967 Six-Day War left Israel in control of a number of areas captured during hostilities.
Original Israeli policy at that time was to deny any Jewish settlement of these areas or even Jewish resettlement of specific locations where Jews had resided up until the 1948 Arab-Israeli War (see: List of villages depopulated during the 1948 Arab-Israeli war). Many attempts were made by Gush Emunim to establish outposts or resettle former Jewish areas, and initially the Israeli government forcibly disbanded these settlements. However, in the absence of peace talks to determine the future of these and other occupied territories, Israel ceased the enforcement of the original ban on settlement.
- In 1967, the municipal borders of Jerusalem were extended to include all of the Old City as well as other areas. Residents within the new municipal borders were offered the choice between citizenship (subject to a few restrictions) and permanent residency (if they wished to retain their Jordanian passports). This annexation has not been recognized by any foreign country.
- The Sinai, Gaza Strip, and West Bank were put under Israeli military occupation. Residents were not offered citizenship or residency, though they typically had de facto work permits within Israel and freedom of travel there.
- In 1978, Israel forcibly evacuated its citizens from the Sinai and demolished their homes when the area was returned to Egypt pursuant to the Camp David Accords. The last Israeli community in the area, Yamit, was evacuated in early 1982.
- In 1980, the Knesset asserted Jerusalem's status as the nation's "eternal and indivisible capital" by passing the Jerusalem Law.
- In 1981, Israel extended its law to the Golan Heights, passing the Golan Heights Law, which granted permanent residency, ID cards, and Israeli citizenship to the residents, but did not formally annex the territory.
- In August 2005, all settlements in the Gaza Strip and four in the northern West Bank (or northern Samaria) were forcibly evacuated as part of Israel's unilateral disengagement plan.
- In 2007 Israel decided to build 300 more Israeli homes in the Har Homa settlement in Shepherd's Field near Bethlehem, a move that has been condemned by both the United States and the European Union.
- In early 2008, Israel promised to engage in settlement expansion in the West Bank. US Secretary of State, Condoleezza Rice, stated that such expansion should stop and was inconsistent with 'road map' obligations.
Settlement types and locations
The Jewish population in the areas held since 1967 live in a wide variety of centers:
- Self-contained towns and small cities with a stable population in the tens of thousands, infrastructure, and all other features of permanence, e.g. Beitar Illit (a city of close to 45,000 residents), Ma'ale Adummim, Modi'in Illit, Ariel.
- Jewish neighborhoods adjacent to Arab neighborhoods in the same city, e.g. Hebron, or the Muslim Quarter.
- Neighborhoods, where both Jews and Arabs live together, e.g. Jerusalem.
- Suburbs to other population centers, especially Jerusalem (e.g. Gilo), and the Sharon area (e.g. Karnei Shomron).
- Settlement blocs, e.g. Gush Etzion, the vicinity of Ariel, the Shechem/Nablus area.
- Frontier villages, such as those parallel to the Jordan River.
- Residential outposts, consisting of campers, trailers, and even tents; these are often referred to as "wildcat" outposts. Most of these settlements are the results of recent construction, but some are based on Jewish communities that were forced to leave or abandoned in 1948 or earlier. Newly constructed developments are largely on hilltops, at some distance from Arab communities, which are typically found in valleys.
Settlements on sites of former Jewish communities
A few of the settlements were established on sites that had been inhabited by Jews during the British Mandate of Palestine.
partial listing only
- Jerusalem – Jewish presence since biblical times, various surrounding communities and neighborhoods, including Kfar Shiloah, also known as Silwan - settled by Yemeni Jews in 1884, Jewish residents evacuated in 1938, settled again in 2004
- Gush Etzion Four communities - established between 1927 and 1947, destroyed 1948, reestablished beginning 1967
- Hebron - Jewish presence since biblical times, forced out in 1929 (because of Hebron massacre), some families return to the ruins in 1931 but the British evacuated them again to "prevent another massacre"; resettled in 1967
- Kfar Darom - established in 1946, evacuated in 1948, resettled in 1970, evacuated in 2005 as part of the withdrawal from the Gaza Strip.
- Kalia and Beit HaArava - The former was built in 1934 as a kibbutz for potash mining. The latter was built in 1943 as an agricultural community. Both were abandoned in 1948, and subsequently destroyed by Jordanian forces. Resettled after the Six Day War.
- Gaza City had a small Jewish community that was evacuated following riots in 1929. After the Six Day War, Jewish communities were built elsewhere on the Gaza Strip, but not in Gaza City.
Population
Except for areas that were effectively annexed to Jerusalem and the Golan Heights, Israeli citizens and others can only move to areas captured in 1967 with the permission of the Israeli government. According to various statistics, the demographics can be estimated as follows:
| Jewish population | 1948 | 1966 | 1972 | 1983 | 1993 | 2004 | 2006 |
|---|
| West Bank (excluding Jerusalem) | 480 (see Gush Etzion) | 0 | 1,182 | 22,800 | 111,600 | 234,487 | 282,400 | | Gaza Strip | 30 (see Kfar Darom) | 0 | 700 1 | 900 | 4,800 | 7,826 | 0 | | Golan Heights | 0 | 0 | 77 | 6,800 | 12,600 | 17,265 | 18,105 | | East Jerusalem | 2300 (see Jewish Quarter, Atarot, Neve Yaakov) | 0 | 8,649 | 76,095 | 152,800 | 181,587 | 184,057 2 | | Total | 2,810 | 0 | 10,608 1 | 106,595 | 281,800 | 441,165 | 484,562 |
|---|
- 1 including Sinai
- 2 2005 data
In addition to internal migration, in large though declining numbers, the settlements absorb annually about 1000 new immigrants from outside Israel. In the '90s, the annual settler population growth was more than three times the annual population growth in Israel. In the '00s, the large settler population growth continues.
The Israeli government has implemented a consistent and systematic policy intended to encourage Jewish citizens to migrate to the West Bank. One of the tools used to this end is to grant financial benefits and incentives to citizens.
Debate on the settlements
Palestinians argue that the policy of settlements constitutes an effort to pre-empt or even sabotage a peace treaty that includes Palestinian sovereignty, and claim that the settlements are built on land that belongs to Palestinians.
Israelis supportive of settlement respond that they are religiously justified in owning the land. Furthermore, the Israel Foreign Ministry asserts that some settlements are legitimate, as they took shape when there was no operative diplomatic arrangement, and thus they did not violate any agreement. Based on this, they assert the following specific reasons for accepting settlements as legitimate:
- Prior to the signing of the Israeli-Egyptian peace treaty, the eruption of the First Intifada in the late eighties, down to the signing of the Israeli-Jordanian peace treaty in 1994, Israeli governments on the left and right argued that the settlements were of strategic and tactical importance. The location of the settlements was primarily chosen based on the threat of an attack by the bordering hostile countries of Jordan, Syria, and Egypt and possible routes of advance into Israeli population areas .These settlements were originally thought of as contributing to the peace and security of the state of Israel at a time when peace treaties had not been signed. Some supporters of the settlements still cite these reasons.
- Many religious Jews assert the biblical Jewish connection to the areas in dispute, arguing that their claim to build is equal to the biblical Jewish connection to the other areas in Israel.
Legal background
Land ownership
In November 2006 Peace Now acquired a report (which it claims was leaked from the Israeli Government's Civil Administration) that indicates that as much as 40 percent of the settlement land that Israel plans to retain is privately owned by Palestinians. Peace Now further claims that this is a violation of Israeli law. The Washington Post reported that "The 38-page report offers what appears to be a comprehensive argument against the Israeli government's contention that it avoids building on private land, drawing on the state's own data to make the case". Peace Now published statistics and aerial maps for each individual settlement. According to the spokesman of Israel’s Civil Administration, this report was based on a leaked map that indicated Palestinian claims rather than rights, and that Peace Now never contacted the Civil Administration to confirm the report. A recent report by Peace Now, allegedly based on official data provided by the Civil Administration following a court struggle cites a lower figure of 32%, a figure rejected by the Civil Administration.
In February 2008, The Civil Administration admitted that more than a third of West Bank settlements were built on private Palestinian land, originally seized by the IDF for 'security purposes'. The unauthorized seizure of private Palestinian land has been defined by the Civil Administration itself in a recent case as 'theft'.
The Spiegel report, commissioned by the Israeli Defense Ministry, also details a large amount of land theft by Israeli settlements in the West Bank. The report reveals that some settlements deemed legal by Israel are in part, and sometimes in large part, effectively illegal outposts, and that large portions of veteran Israeli settlements, including Ofra, Elon Moreh and Beit El were built on private Palestinian land.
Illegal seizure of land owned by Palestinians continues. For example, in 2007 for several months young settlers have been occupying a house belonging to an elderly Palestinian widow. The widow has turned to the Israeli government for redress; the Israeli police are present in the area for a half day every week and have evicted the settlers on several occasions, but they keep coming straight back and intend to stay.
According to the Israeli government, the majority of the land currently occupied by the new settlements was vacant or belonged to the state (from which it was leased) or bought fairly from the Palestinians. Former United States State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice, wrote in 1970 regarding Israel's case:
Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.
The recent use of the Absentee Property Law to "transfer, sell or lease any real estate property" in East Jerusalem owned by Palestinians who live elsewhere (usually in the West Bank) without compensation has been criticized both inside and outside of Israel.
Opponents of the settlements claim that "vacant" land had either belonged to Arabs who had fled or belonged collectively to an entire village, a practise that had developed under Ottoman rule. B'Tselem claims that the Israeli government used the absence of modern legal documents for the communal land as a legal basis for expropriating it.
Legal status of the territories
Although all areas in question were captured by Israel in the 1967 Six-Day War, Israel has treated them in three different ways:
- "East Jerusalem" - Jerusalem and its surroundings were envisioned as an international area under United Nations administration in the 1947 partition plan, which was accepted by Israel but rejected by all Arab nations. In 1948, Jordan captured and annexed the eastern half of Jerusalem, while Israel captured and annexed the west. Following the Six-Day War in 1967 Israel annexed the eastern part, together with several villages around it.
- The Israeli Golan Heights Law of 1981 applied Israel's "laws, jurisdiction and administration" in the Golan Heights, which were captured from Syria in 1967 . Israel has not stated that it has "annexed" the area.
- The Gaza Strip and West Bank, a section of the areas awarded by the UN to a prospective Arab state of Palestine, remained in Arab hands while the rest of that area was captured by Israel in the 1948 Arab-Israeli War. The former was administered by Egypt while the latter was annexed by Jordan.
The annexation of East Jerusalem and the Golan Heights Law have both been deemed illegal by the UN Security Council (resolutions 267 and 497 respectively), and have not been recognized by other states.
Israel has signed peace treaties with Egypt (removing all Israeli settlements and returning the Sinai Peninsula to Egyptian sovereignty), and Jordan (returning small sections to Jordanian sovereignty); there are currently no peace treaties governing Israel's borders related to the West Bank, the Gaza Strip, and the Golan Heights. Israel therefore asserts that the armistice lines (known as the Green Line) of 1949 have no other legal status.
Palestinians object to this view as the Israel-Jordan peace treaty was not to alter the status of any territories coming under Israeli control during the hostilities of 1967 (article 3(2) of the Israel-Jordan peace treaty).
Legal status of the settlements
See also International law and the Arab-Israeli conflict
The establishment and expansion of Israeli settlements in the West Bank and Gaza Strip have been described as "having no legal validity" by the UN Security Council in resolutions 446, 452, 465 and 471. These resolutions were made under Chapter VI of the United Nations Charter which relates to the "Pacific Settlement of Disputes" between parties, and as such have no enforcement mechanisms and are generally considered to have no binding force under international law. In 1971, however, a majority of the then International Court of Justice (ICJ) members asserted in the non-binding Namibia advisory opinion that all UN Security Council resolutions are legally binding. This assertion by the ICJ has been countered by Erika De Wet and others. De Wet argues that Chapter VI resolutions cannot be binding. Her reasoning, in part states:Allowing the Security Council to adopt binding measures under Chapter VI would undermine the structural division of competencies foreseen by Chapters VI and VII, respectively. The whole aim of separating these chapters is to distinguish between voluntary and binding measures. Whereas the pacific settlement of disputes provided by the former is underpinned by the consent of the parties, binding measures in terms of Chapter VII are characterised by the absence of such consent. A further indication of the non-binding nature of measures taken in terms of Chapter VI is the obligation on members of the Security Council who are parties to a dispute, to refrain from voting when resolutions under Chapter VI are adopted. No similar obligation exists with respect to binding resolutions adopted under Chapter VII... If one applies this reasoning to the Namibia opinion, the decisive point is that none of the Articles under Chapter VI facilitate the adoption of the type of binding measures that were adopted by the Security Council in Resolution 276(1970)... Resolution 260(1970) was indeed adopted in terms of Chapter VII, even though the ICJ went to some length to give the opposite impression. Pieter H.F. Bekker has argued that this non-binding character of ICJ advisory opinions does not mean that are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. In his view, an advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations. In practice the Security Council does not consider its decisions outside Chapter VII to be binding.
The European Union considers the settlements to be illegal, and an April 21, 1978 opinion of the Legal Adviser of the Department of State to the United States Congress on the legal status of Israeli settlements concluded that "[w]hile Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for the reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with international law."
In 1967, Theodor Meron, legal council to the Israeli Foreign Ministry stated in a legal opinion to Adi Yafeh, the Political Secretary of the Prime Minister, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention." Nevertheless, Israel considers its settlement policy to be consistent with international law, including the Fourth Geneva Convention, while recognizing that some of the smaller settlements have been constructed "illegally" in the sense of being in violation of Israeli law. In 1998 the Israeli Minister of Foreign Affairs produced "The International Criminal Court Background Paper". It concludesInternational law has long recognised that there are crimes of such severity they should be considered "international crimes". Such crimes have been established in treaties such as the Genocide Convention and the Geneva Conventions. .... The following are Israel's primary issues of concern [ie with the rules of the ICC]: - The inclusion of settlement activity as a "war crime" is a cynical attempt to abuse the Court for political ends. The implication that the transfer of civilian population to occupied territories can be classified as a crime equal in gravity to attacks on civilian population centres or mass murder is preposterous and has no basis in international law.
International human rights groups Amnesty International and Human Rights Watch have denounced the settlements as illegal,, though the Anti-Defamation League has argued that they are legal.
Some legal scholars (including prominent international law expert Julius Stone, and Eugene Rostow, Dean of Yale Law School) and others, have also argued that the settlements are legal under international law, on a number of different grounds.
Arguments based on the Fourth Geneva Convention
There are two disputes regarding the Fourth Geneva Convention: whether the convention applies to the territories in question and whether the Convention forbids the establishment of Israeli settlements. Article 2 concerns the applicability of the Convention whereas article 49 concerns the legality of population transfers. In practice, Israel does not accept that the Fourth Geneva Convention applies de jure, but has stated that on humanitarian issues it will govern itself de facto by its provisions, without specifying which these are.
Article 2
Article 2 extends the Convention to "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties" and "all cases of partial or total occupation of the territory of a High Contracting Party". Supporters of the legality of the settlements argue that the Convention itself does not apply, as the West Bank and Gaza Strip have never been part of a sovereign state since the defeat of the Ottoman Empire, therefore do not meet the definition of "the territory of a High Contracting Party". This argument was articulated in 1971 by Israeli Attorney-General Meir Shamgar (who also created the legal framework of the Israeli military government in the administered territories) and presented by Moshe Dayan in a speech before the 32nd session of the United Nations General Assembly in 1977.
The International Court of Justice, in an advisory (i.e. non-binding) opinion to the UN General Assembly, argued that according to Article 2 of the Convention applies if “there exists an armed conflict” between “two contracting parties”, regardless of the territories status in international law prior to the armed attack. It also argued that "no territorial acquisition resulting from the threat or use of force shall be recognized as legal" according to customary international law (and defined by "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations" (General Assembly Resolution 2625).
On 15 July 1999 a conference of the High Contracting Parties to the Fourth Geneva Convention met at the United Nations headquarters in Geneva. It ruled that the Convention did apply in the Occupied Palestinian Territory, including East Jerusalem. The Conference of High Contracting Parties to the Fourth Geneva Convention held in Geneva on December 5, 2001 called upon "the Occupying Power to fully and effectively respect the Fourth Geneva Convention in the Occupied Palestinian Territory, including East Jerusalem, and to refrain from perpetrating any violation of the Convention." The High Contracting Parties reaffirmed "the illegality of the settlements in the said territories and of the extension thereof."
U.N. Security Council Resolution 446 refers directly to the Fourth Geneva Convention as the applicable international legal instrument, and specifically insists that Israel desist from transferring its own population into the territories or changing their demographic makeup.
However, others have objected to the ruling of the conference, which they argue has amended history and been construed only for this specific situation (see excerpt below). Under Article 2, the Convention pertains only to “cases of…occupation of the territory of a High Contracting Party” by another such party. The West Bank and Gaza Strip were never the territory of a High Contracting Party; the occupation after 1948 by Jordan and Egypt was illegal and neither country ever had lawful or recognized sovereignty. The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate, which stipulated the right of the Jewish people to settle in the whole of the Mandated territory. According to Article 6 of the Mandate, “close settlement by Jews on the land, including State lands not required for public use” was to be encouraged. Article 25 allowed the League Council to temporarily postpone the Jewish right to settle in what is now Jordan, if conditions were not amenable. Article 80 of the U.N. Charter preserved this Jewish right to settlement by specifying that:
nothing in the [United Nations] Charter shall be construed ... to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments.
According to barrister and human rights activist Stephen Bowen, Israel’s argument was rejected by the international community "because the Convention also states that it applies 'in all circumstances' (Article 1), and 'to all cases of declared war or of any other armed conflict' (Article 2)." Shamgar argues specifically against this point, stating:There is no rule of international law according to which the Fourth Convention applies in each and every armed conflict whatever the status of the parties.... The whole idea of the restriction of military government powers is based on the assumption that there has been a sovereign who was ousted and that he was a legitimate sovereign. Any other conception would lead to the conclusion, for example, that France should have acted in Alsace-Lorraine according to rule 42-56 of the Hague Rules of 1907, until the signing of a peace treaty.
Article 49
Article 49 (1) insists that "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive" and Article 49(6) insists that "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies". According the commentary of Jean Pictet of the International Red Cross, this is intended to prevent the World War II practice of an occupying power transferring "portions of its own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories" which in turn "worsened the economic situation of the native population and endangered their separate existence as a race".
Supporters of the legality of the settlements argue that even if the Convention did apply, it should be read only in the context of World War II forcible migrations at the time. It is only intended to cover forcible transfers and to protect the local population from displacement. They point out Article 49(1) specifically covers "[i]ndividual or mass forcible transfers" whereas the Israelis who live in the settlements have moved there voluntarily, and argue that settlements are not intended to, nor have ever resulted in, the displacement of Palestinians from the area. In addition, they state that the Geneva Convention only applies in the absence of an operative peace agreement and between two powers accepting the Convention. Since the Oslo Accords leave the issue of settlements to be negotiated later, proponents of this view argue that the Palestinians accepted the temporary presence of Israeli settlements pending further negotiation, and that there is no basis for declaring them illegal.
Those who reject that view have a different reading of the article. They note that Pictet's commentary on Article 49(6) states "[t]he paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words "transfer" and "deport" is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power." David Kretzmer, Professor of International Law at Hebrew University of Jerusalem, has argued:
As paragraph 1 of Article 49 refers expressly to forcible transfers, it seems fair to conclude that the term "transfer" in paragraph 6 means both forcible and nonforcible transfers. This conclusion would seem to flow from the object of the Fourth Geneva Convention, which is to protect civilians in the occupied territory, and not the population of the occupied power. From the point of view of the protected persons, whether the transfer of outsiders into their territory is forcible or not would seem to be irrelevant."
US State Department Legal Advisor, Herbert J. Hansell, in a letter dated 1 April, 1978, has reached the same conclusion, noting that "[p]aragraph 1 of article 49 prohibits "forcible" transfers of protected persons out of the occupied territory; paragraph 6 is not so limited."
He further argued that:
The view has been advanced that a transfer is prohibited under paragraph 6 only to the extent that it involves the displacement of the local population. Although one respected authority, Lauterpacht, evidently took this view, it is otherwise unsupported in the literature, in the rules of international law or in the language and negotiating history of the Convention, and it seems clearly not correct. Displacement of protected persons is dealt with separately in the Convention and paragraph 6 would seem redundant if limited to cases of displacement. Another view of paragraph 6 is that it is directed against mass population transfers such as occurred in World War II for political, racial or colonization ends; but there is no apparent support or reason for limiting its application to such cases.
The latter interpretation was adopted by the International Court of Justice in its 2004 advisory opinion , and 150 countries supported a (non-binding) General Assembly resolution demanding Israel to "comply with its legal obligations as mentioned in the advisory opinion".
Arguments based on UNSC Resolution 242 and the British Mandate
Rostow and others further argue that UN Security Council Resolution 242 (which Rostow helped draft) mandates Israeli control of the territories, and that the original British Mandate of Palestine still applies, allowing Jewish settlement there. In Rostow's view 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 U.N. 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...." According to Rostow "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there".
This right is based on Article 6 of the Mandate which states: "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". In addition, many Israeli settlements have been established on sites which were home to Jewish communities before 1948 such as Neve Yaakov, Gush Etzion, Hebron, Kalia, and Kfar Darom.
Contrary to this view other legal scholars have argued that under Articles 31 and 32 of the Vienna Convention on the Law of Treaties the only common sense interpretation of UNSC 242 is that Israel must withdraw from all of the territory captured in 1967, as any interpretation permitting the extension of sovereignty by conquest would violate the relevant governing principle of international law as emphasized in the preambular statement, i.e., "the inadmissibility of the acquisition of territory by war" as established through the abolition of the right of conquest by the League of Nations following World War I.
Furthermore, it is argued that UNSC 242 has binding force under Article 25 of the UN Charter owing to its incorporation into UN Security Council Resolution 338 and that it is also binding on Israel and the PLO by agreement owing to its incorporation into the Oslo Accords.
Others argue that the Oslo Accords supersede UNSC 242 rather than making it binding. The Declaration of Principles in the accords only state that future negotiations will "lead to the implementation of Security Council Resolutions 242 and 338."
Additionally, as the international community considered the status of Jerusalem to be unresolved, even after 1967, and did not deem any part of the city to be Israeli territory, including that part held since 1948, UNSC 242 did not settle territorial issues between Israel and Palestine left unresolved by the 1949 Armistice Agreements. Indeed, Sir Elihu Lauterpacht and others have argued that, because of the disorder in Palestine at the time, the territorial framework of the 1947 Partition Plan did not come into effect in such a way as to ipso jure grant Israel sovereignty over the territory allocated to the Jewish state under that plan. Stone agrees with Lauterpacht's analysis, and his view that sovereignty was acquired through other means:
Lauterpacht has offered a cogent legal analysis leading to the conclusion that sovereignty over Jerusalem has already vested in Israel. His view is that when the partition proposals were immediately rejected and aborted by Arab armed aggression, those proposals could not, both because of their inherent nature and because of the terms in which they were framed, operate as an effective legal re-disposition of the sovereign title. They might (he thinks) have been transformed by agreement of the parties concerned into a consensual root of title, but this never happened. And he points out that the idea that some kind of title remained in the United Nations is quite at odds, both with the absence of any evidence of vesting, and with complete United Nations silence on this aspect of the matter from 1950 to 1967?…
In these circumstances, that writer is led to the view that there was, following the British withdrawal and the abortion of the partition proposals, a lapse or vacancy or vacuum of sovereignty. In this situation of sovereignty vacuum, he thinks, sovereignty could be forthwith acquired by any state that was in a position to assert effective and stable control without resort to unlawful means.
Antonio Cassese disagrees with this analysis, arguing that whilst Israel's original occupation of West Jerusalem might have been carried out in an act of self-defense under Article 51 of the UN Charter, this did not confer legal title to the territory owing to the general prohibition in international law on the acquisition of sovereignty through military conquest. He further considers that "mere silence" could not constitute agreement by the United Nations to the acquisition of sovereignty by Israel or Jordan as a result of their de facto control of Jerusalem. Cassese concludes that "at least a tacit manifestation of consent through conclusive acts would have been necessary", whereas such relevant acts as did take place confirmed that no such consent to the transfer of sovereignty was given.
Arguments based on historical agreements
Some have argued that Israel has a right to settle in areas agreed upon with Emir Faisal, the recognized political leader of the Arab world at the time. Faisal signed an agreement with Chaim Weizmann, the recognized leader of the modern Zionisim movement.
The agreement, known as the Faisal-Weizmann Agreement, signed in January 1919, agreed conditional terms of borders between the Jewish state and the Arab states, which include the present day territories in dispute.
Arguments based on the cause of the war
It has been argued that Israel took control of the West Bank as a result of a defensive war. Former Israeli diplomat Dore Gold writes that: "The language of "occupation" has allowed Palestinian spokesmen to obfuscate this history. By repeatedly pointing to "occupation", they manage to reverse the causality of the conflict, especially in front of Western audiences. Thus, the current territorial dispute is allegedly the result of an Israeli decision "to occupy", rather than a result of a war imposed on Israel by a coalition of Arab states in 1967".
He quotes Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, and wrote in 1970 regarding Israel's case: Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.
However, international law scholar John Quigley has noted that "...a state that uses force in self-defense may not retain territory it takes while repelling an attack. If Israel had acted in self-defense, that would not justify its retention of the Gaza Strip and West Bank. Under the UN Charter there can lawfully be no territorial gains from war, even by a state acting in self-defense. The response of other states to Israel's occupation shows a virtually unanimous opinion that even if Israel's action was defensive, its retention of the West Bank and Gaza Strip was not."
Arguments based on property rights and private ownership
On January 30, 2009, the Associated Press reported that Israeli human rights group Yesh Din plans to use a classified Israeli Government database to prove that many West Bank Israeli settlements were built on land privately owned by Palestinian citizens without compensation.
Illegal outposts
Jewish Israelis have also built a number of outposts that are illegal even under Israeli law. According to a the Sasson report, an official report commissioned by the Sharon government, the government of Israel has funded the creation of such Jewish settler outposts in the West Bank even though the government itself regards them as illegal. The report of the Sasson investigation found “blatant violations of the law” by officials and state institutions. Many of the more than 100 outposts investigated added at state expense paved roads, permanent housing, power lines and other infrastructure. According to the report, some of the outposts were established on private lands owned by Palestinians with the help of Housing Ministry architects, the Housing Ministry funded many of the trailers used to start the outposts, and Defence Ministry officials allocated such private land to the quasi-official Jewish Agency.
According to a report of the Israeli Environmental Protection Ministry, waste water management is "virtually nonexistent" in illegal Jewish settler outposts and some other settlements, thus raw sewage is contaminating the ground water in parts of the West Bank. Accoridng to the report, the main cause of the contaminated water is that raw waste water flows from Hebron, Ramallah, Nablus, Jenin and other villages, without proper treatment. The report blames Israeli settlements for pumping contaminated water into the sewars, not Palestinian villages. 70% of the Jewish communities east of the Green Line are connected to treatment facilities, so "illegal outposts" are the main source of the untreated water, according to the Israeli report.
Settlements, Palestinians, and human rights
Amnesty International argues that Israel's settlement policy is not only illegal, but is discriminatory and a violation of Palestinian human rights: 'As well as violating international humanitarian law per se, the implementation of Israel's settlement policy in the Occupied Territories violates fundamental human rights provisions, including the prohibition of discrimination. The seizure and appropriations of land for Israeli settlements, bypass roads and related infrastructure and discriminatory allocation of other vital resources, including water, have had a devastating impact on the fundamental rights of the local Palestinian population, including their rights to an adequate standard of living, housing, health, education, and work, and freedom of movement within the Occupied Territories."
The Israeli human rights centre B'Tselem and other sources have indicated that the road blocks scattered inside the West Bank between Palestinian cities and villages which are designed to "protect the settlers" from Arab snipers firing on Israeli drivers, as well as Arab ambushes of Israelis, have had a significant impact on freedom of movement. While the road blocks are also said to protect Israelis within Israel, according to B'Tselem, the (siege) "imprisons entire populations within their communities or in a small geographic area and limits their access to other parts of the West Bank."
In Hebron, where 500-600 settlers live among 167,000 Palestinians, B'Tselem argues that there have been "grave violations" of Palestinian human rights because of the "presence of the settlers within the city." The organization cites regular incidents of "almost daily physical violence and property damage by settlers in the city", curfews and restrictions of movement that are "among the harshest in the Occupied Territories", and violence and by Israeli border policemen and the IDF against Palestinians who live in the city's H2 sector.
Human Rights Watch reports on physical violence against Palestinians by settlers, including, "frequent[ly] stoning and shooting at Palestinian cars. In many cases, settlers abuse Palestinians in front of Israeli soldiers or police with little interference from the authorities."
B'Tselem also documents settler actions against Palestinians that include "blocking roadways, so as to impede Palestinian life and commerce. The settlers also shoot solar panels on roofs of buildings, torch automobiles, shatter windowpanes and windshields, destroy crops, uproot trees, abuse merchants and owners of stalls in the market. Some of these actions are intended to force Palestinians to leave their homes and farmland, and thereby enable the settlers to gain control of them."
According to B'Tselem, more than fifty percent of the land of the West Bank has been expropriated from Palestinian owners "mainly to establish settlements and create reserves of land for the future expansion of the settlements". While the seized lands mainly benefit the settlements, the Palestinian public is prohibited from using them in any way. According to Meron Benvenisti,'the entire "settlement enterprise" has become a commercial real estate project, which conscripts Zionist rhetoric for profit'.
A series of modern roads have been established by Israel throughout the West Bank which bypass Palestinian areas, some of which are closed to vehicles with Palestinian license-plates in varying degrees, can fluctuate based on arbitrary Israeli security concerns: some roads (mostly leading into Israel) are closed to all Palestinian traffic; many roads are closed to private traffic but allow public and commercial transportation; some roads are fully open to all Palestinian traffic and are shared completely with Israeli motorists. At the same time, Palestinian areas and roads are closed to vehicles with Israeli license-plates, though these roads are often of poorer quality, are less upkept and new roads are rarely built by Palestinians. Israel argues that such a system is needed for security reasons because of many incidents in which Israelis who entered Palestinians areas were endangered or killed, and that the restrictions generally reduce tension between the two populations. B'Tselem has described this system as nevertheless 'discriminatory': "Rather than use the main roads between the cities, most of the population is forced to use long and winding alternate routes. The regime has forced most Palestinians to leave their cars at home and travel by public transportation, in part because private cars are not allowed to cross some of the checkpoints." B'Tselem lists the effects of this separate roads regime, including: Wasted (additional) time to reach destinations, tardiness or inability to reach destinations, exhaustion, increased cost of travel, and increased wear and tear on vehicles resulting from travel on worn down or dirt roads.
The recent construction of the Israeli West Bank barrier routed inside the green line to encompass a variety of settlements has also been cited as an infirengement on Palestinian human and land rights. The United Nations Office for the Coordination of Humanitarian Affairs estimates that 10% of the West Bank will fall on the Israeli side of the barrier.
Settler violence
Settlers have attacked Palestinians, unhindered by Israeli army and police units, in an incident described by the Israeli press and by Prime Minister Olmert as a "pogrom." In Hebron on the West Bank in December, 2008, a few dozen masked Jewish settlers attacked the house of an innocent Palestinian family numbering close to 20 people, all of them women and children save for three men. The women of the Palestinian family cried for help but their neighbors were too scared to approach the house, frightened of the Jewish security guards from Kiryat Arba who sealed off the home and who cursed the journalists documenting the attack. The masked settlers set fire to the house and shattered the windows with stones with the Palestinian family still inside, as hundreds of Jewish settlers witnessed the attack and offered suggestions to the attackers to harm the family more effectively. The Israeli army personnel nearby did not call for backup until after the house was destroyed.
Another incident that sparked coverage in the New York Times was a violent settler protest at the Palestinian village of Funduk in November 2007, in which hundreds of settlers converged at the entrance of the village and rampaged. The protest occurred five days after a settler was killed in response to settlers' illegal seizure of Palestinian land without Israeli government response to Palestinian complaints of the land seizure. The settlers smashed the windows of houses and cars. According to Funduk villagers, Israeli soldiers and police accompanied the protesters but mostly stood aside while the settlers rampaged.
Settlers are particularly active during the Palestinian olive harvest season. Olive farmers and families are targeted by settlers while on their fields, and are assaulted or shot-at. Numerous organizations have documented serious abuses by settlers during this season, and many international and Israeli organizations organize campaigns to protect Palestinians on the fields during the harvest.
Since the beginning of Second Intifada, 41 Palestinians were killed by Israeli civilians in the Palestinian territories, while 233 Israeli civilians were killed by Palestinians in the territories in the same period. (Note: according to B'Tselem, many of the Israeli civilians who were killed in the territories were not residents of the territories at the time, and as such would not be considered 'settlers'). The total number of Palestinians killed in the territories is over 3300 (though this number does not differentiate between Palestinian combatants and Palestinian civilians), while the total number of Israelis is 458.
Diplomatic reactions, proposals, and criticisms
The settlements have on several occasions been a source of tension between Israel and the U.S. President Jimmy Carter insisted that the settlements were illegal and unwise tactically, but President Ronald Reagan stated that they were legal, though he considered them an obstacle to negotiations. In 1991 there was a clash between the Bush administration and Israel, where the U.S. delayed a subsidized loan in order to pressure Israel not to proceed with the establishment of settlements for instance in the Jerusalem-Bethlehem corridor. In 2005 the United States ambassador to Israel, Dan Kurtzer, expressed U.S. support "for the retention by Israel of major Israeli population centres [in the West Bank] as an outcome of negotiations", reflecting President Bush's statement a year earlier that a permanent peace treaty would have to reflect "demographic realities" in the West Bank.
Although the Oslo accords did not include any obligation on Israel's part to stop building in the "settlements", Palestinians argue that Israel has undermined the Oslo accords, and the peace process more generally, by continuing to expand the settlements after the signing of the Accords. Israel previously also had settlements in the Sinai Peninsula, but these were forcibly evacuated and destroyed as a result of the peace agreement with Egypt.
Most Israeli and U.S. proposals for final agreement have also involved Israel being allowed to retain long established communities in the territories near Israel and in "East Jerusalem" (the majority of the settler population is near the "Green Line"), with Israel annexing the land on which the communities are located. This would result in a transfer of roughly 5% of the West Bank to Israel, with the Palestinians being compensated by the transfer of a similar share of Israeli territory (i.e. territory behind the "Green Line") to the Palestinian state. Palestinians complain that this would legitimize what they see as an illegitimate land grab, and that the land offered in exchange is situated in the southern desert, whereas the areas that Israel seeks to retain are among the West Bank's most fertile areas, including major aquifers. Israel, however, sees the current "Green Line" as unacceptable from a security standpoint - Israel would have at some points no more than 17 kilometers from the border to the sea. For more details, see Proposals for a Palestinian state.
President George Bush has stated that he does not expect Israel to return entirely to pre-1967 borders, due to "new realities on the ground." One of the main compromise plans put forth by the Clinton Administration would have allowed Israel to keep some settlements in the West Bank, especially those which were in large blocs near the pre-1967 borders of Israel. in return, Palestinians would have received some concessions of land in other parts of the country.
Both U.S. President Bill Clinton and U.K. Prime Minister Tony Blair, who played notable roles in attempts at mediation, noted the need for some territorial and diplomatic compromise on this issue, based on the validity of some of the claims of both sides.
Dismantlement of settlements
Background
Given the dispute over the territories where the settlements were built, the issue of dismantling them has been considered. Arab parties to the conflict have demanded the dismantlement of the settlements as a condition for peace with Israel. As part of the Israel-Egypt Peace Treaty, Israel was required to evacuate its settlers from the 18 Sinai settlements. The evacuation, which took place in 1982, was done forcefully in some instances, such as the evacuation of Yamit. The settlements were demolished, as it was feared that settlers might try to return to their homes after the evacuation.
During the peace process with the Palestinians, the issue of dismantling the West Bank and Gaza Strip settlements has been raised.
As part of the Disengagement Plan, Israel has evacuated the Gaza Strip and part of the West Bank, including all 21 settlements in Gaza and four in the West Bank, while retaining control over Gaza's borders, coastline, and airspace. Most of these settlements have existed since the early 80's, some are over 30 years old, and with a total population of more than 10,000, many of whom have yet to find permanent housing. There was significant opposition to the plan among parts of the Israeli public, and especially those living in the territories. American President George W. Bush has said that a permanent peace deal would have to reflect "demographic realities" in the West Bank regarding Israel's settlements.
Within the former settlements, almost all buildings were demolished by Israel, with the exception of certain government and religious structures, which were completely emptied. Under an international arrangement, productive greenhouses were left to assist the Palestinian economy but these were destroyed within hours by Palestinians. Following the withdrawal, many of the former synagogues were vandalized by Hamas supporters, as a symbol of victory against Israel.
Some Israelis believe the settlements need not necessarily be dismantled and evacuated, even if Israel withdraws from the territory where they stand, as they can remain under Palestinian rule. These ideas have been expressed both by people from the left , who see this as a possible situation in a two-state solution, and by extreme right-wingers and settlers that, while objecting to any withdrawal, claim stronger links to the land than to the state of Israel.
Recent events
Israeli political activist group Peace Now states that settlement construction rose by 60% from 2007 to 2008. A classified Israel Defense Force study allegedly leaked to the Israeli media in January 2009 reported that 3 out of every 4 settlement building projects did not have proper permits. Palestinian solidarity group Yesh Din argued that the report described Israelis "systematically violating international law and the property rights of Palestinian residents". The Israeli government has not commented on the authenticity of the report. The New York Times has published a Google Maps-based .
Newly elected President Barack Obama and his special envoy to the Middle East, George Mitchell, both support taking down the settlements. In January 2009, Kadima Chairwoman Tzipi Livni vowed to dismantle them should her party win in the that month's election. Likud Chairman Benjamin Netanyahu plans to expand them, saying specifically that "I have no intention of building new settlements in the West Bank... But like all the governments there have been until now, I will have to meet the needs of natural growth in the population. I will not be able to choke the settlements." Avigdor Liberman supports both expanding legal settlements and illegal ones. Most settlers themselves support Liberman.
Operation Price Tag
Operation Price Tag is a coordinated tactic adapted by the Israeli settlers movement of attacking Palestinian property in retaliation for attempts by the Israeli government efforts to remove illegal West Bank outposts. Several hundred, mostly young Israeli settlers, are involved. Israeli security forces, the Israeli Defense Force, IDF, are poorly equipped to deal with the outbreak. The Israeli government has responded with a plan to increase law enforcement and cut off aid to illegal outposts.
See also
Further reading
- , UN OCHA oPt.
- Bregman, Ahron Elusive Peace: How the Holy Land Defeated America.
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- History, legal aspects
- Coverage, false assertions, facts
- Jewish Virtual Library:
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- by Chaim Herzog.
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- by Rabbi Jon-Jay Tilsen
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