United Nations Security Council Resolution 446
Encyclopedia
United Nations
Security Council Resolution
446, adopted on March 22, 1979, concerned the issue of Israeli settlements in the "Arab territories occupied by Israel since 1967, including Jerusalem". This refers to the Palestinian territories
of the West Bank
, East Jerusalem
and the Gaza Strip
as well as the Syria
n Golan Heights.
In the Resolution, the Security Council determined: "that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East"
The Resolution was adopted by 12 votes to none, with 3 abstentions from Norway
, the United Kingdom
and the United States of America.
relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem". Tomis Kapitan reports that:
Israel's argument against the applicability of the Convention was formulated by Meir Shamgar
and is based on an interpretation of Article 2, which reads:
The government's argument (first made by Moshe Dayan
in a speech to the UN in 1977) is that neither the West Bank nor Gaza were the territory of a "High Contracting Power" at the time they were occupied by Israel and that therefore the Convention does not apply.
In 1993 the UN Security Council "acting under Chapter VII of the Charter on the United Nations" approved a report by the Secretary General which concluded beyond doubt that the law applicable in armed conflict as embodied in the Geneva Conventions of 12 August 1949 and the Hague Convention (IV) of 18 October 1907 had become part of international customary law. Breaches of the principles contained in the conventions were subsequently placed within the competence of international criminal tribunals, including International Criminal Tribunal for the former Yugoslavia and International Criminal Court
.
The Israeli MFA says that the Supreme Court of Israel has ruled that the Fourth Geneva Convention and certain parts of Additional Protocol I reflect customary international law that is applicable in the occupied territories. Gershom Gorenberg
has written that the Israeli government knew at the outset that it was violating the Geneva Convention by creating civilian settlements in the territories under IDF administration. He explained that as the legal counsel of the Foreign Ministry, Theodor Meron was the Israeli government's expert on international law. On September 16, 1967 Meron wrote a top secret memo to Mr. Adi Yafeh, Political Secretary of the Prime Minister regarding "Settlement in the Administered Territories" which said "My conclusion is that civilian settlement in the Administered territories contravenes the explicit provisions of the Fourth Geneva Convention." Moshe Dayan authored a secret memo in 1968 proposing massive settlement in the territories which said “Settling Israelis in administered territory, as is known, contravenes international conventions, but there is nothing essentially new about that.”
Israel's positions have not been accepted by the International Committee of the Red Cross
, nor has it been endorsed by the other High Contracting Parties to the Fourth Geneva Convention. Article 1 of the Convention states that "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances" (emphasis added).
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 Jerusalem. In 2001, at a one-day conference of High Contracting Parties, 114 countries adopted a three-page declaration re-affirming that the terms of the Convention applied to the Palestinian territories.
In August 2004 an Israeli justice ministry team set up by Attorney General
Menachem Mazuz
to study the ramifications of a ruling by the World Court recommended that the Israeli government should consider applying the Fourth Geneva Convention to the West Bank and Gaza.
Israel argues that it's not in violation of it. Firstly, Israel argues that the article was created in the context of World War II
only.
Secondly, it is only intended to cover forcible transfers and to protect the local population from displacement. Article 49(1)of the Convention 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. However, Article 49(6) also prohibits Israel to 'transfer parts of its own civilian population into the territory it occupies', which would cover the Israeli settlements.
Thirdly, Israel claims that some of the settlers have returned to areas where Jewish settlements existed before 1948 (such as Gush Etzion
) and therefore it's an entirely different issue.
Fourthly, Israel claims 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.
the Gaza Strip in September 2005, and removed all of the settlements and military forces that were in it. Parts of the West Bank, East Jerusalem and the Golan Heights remain under control of Israel as of July 2006. Israel remains in control of Gaza's airspace and territorial waters. It has not controlled the Rafah crossing into Egypt since the unilateral disengagement plan of 2005 took effect.
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
Security Council Resolution
United Nations Security Council Resolution
A United Nations Security Council resolution is a UN resolution adopted by the fifteen members of the Security Council; the UN body charged with "primary responsibility for the maintenance of international peace and security"....
446, adopted on March 22, 1979, concerned the issue of Israeli settlements in the "Arab territories occupied by Israel since 1967, including Jerusalem". This refers to the Palestinian territories
Palestinian territories
The Palestinian territories comprise the West Bank and the Gaza Strip. Since the Palestinian Declaration of Independence in 1988, the region is today recognized by three-quarters of the world's countries as the State of Palestine or simply Palestine, although this status is not recognized by the...
of the West Bank
West Bank
The West Bank ) of the Jordan River is the landlocked geographical eastern part of the Palestinian territories located in Western Asia. To the west, north, and south, the West Bank shares borders with the state of Israel. To the east, across the Jordan River, lies the Hashemite Kingdom of Jordan...
, East Jerusalem
East Jerusalem
East Jerusalem or Eastern Jerusalem refer to the parts of Jerusalem captured and annexed by Jordan in the 1948 Arab-Israeli War and then captured and annexed by Israel in the 1967 Six-Day War...
and the Gaza Strip
Gaza Strip
thumb|Gaza city skylineThe Gaza Strip lies on the Eastern coast of the Mediterranean Sea. The Strip borders Egypt on the southwest and Israel on the south, east and north. It is about long, and between 6 and 12 kilometres wide, with a total area of...
as well as the Syria
Syria
Syria , officially the Syrian Arab Republic , is a country in Western Asia, bordering Lebanon and the Mediterranean Sea to the West, Turkey to the north, Iraq to the east, Jordan to the south, and Israel to the southwest....
n Golan Heights.
In the Resolution, the Security Council determined: "that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East"
The Resolution was adopted by 12 votes to none, with 3 abstentions from Norway
Norway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...
, the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and the United States of America.
UNSC Resolution 446 and the Fourth Geneva Convention
Resolution 446 affirms "once more that the Fourth Geneva ConventionFourth Geneva Convention
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians...
relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem". Tomis Kapitan reports that:
- "In the eyes of the world community, its [Israel's] presence there [in the Occupied Territories] is subject to international law dealing with belligerent occupancy, specifically, the Fourth Geneva Convention of 1949... Allowing for measures of military necessity, the Convention forbids alterations of the legal system, forcible transfer or deportation of the resident population, and resettlement by the occupying power of its own civilian population within the occupied territory. Israel has violated these provisions, but contested their application on the grounds that the West Bank (in particular) is "disputed" or "unallocated" rather than the occupied territory of a nation that is party to the Geneva Convention."
Israel's argument against the applicability of the Convention was formulated by Meir Shamgar
Meir Shamgar
Meir Shamgar was President of the Israeli Supreme Court from 1983 until 1995.-Biography:Shamgar was born Meir Sterenberg in the Free City of Danzig to Eliezer and Dina Sterenberg.He emigrated to Palestine in 1939.He was arrested by the British in 1944 for anti-British activity and being...
and is based on an interpretation of Article 2, which reads:
- "In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
- The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."
The government's argument (first made by Moshe Dayan
Moshe Dayan
Moshe Dayan was an Israeli military leader and politician. The fourth Chief of Staff of the Israel Defense Forces , he became a fighting symbol to the world of the new State of Israel...
in a speech to the UN in 1977) is that neither the West Bank nor Gaza were the territory of a "High Contracting Power" at the time they were occupied by Israel and that therefore the Convention does not apply.
In 1993 the UN Security Council "acting under Chapter VII of the Charter on the United Nations" approved a report by the Secretary General which concluded beyond doubt that the law applicable in armed conflict as embodied in the Geneva Conventions of 12 August 1949 and the Hague Convention (IV) of 18 October 1907 had become part of international customary law. Breaches of the principles contained in the conventions were subsequently placed within the competence of international criminal tribunals, including International Criminal Tribunal for the former Yugoslavia and International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
.
The Israeli MFA says that the Supreme Court of Israel has ruled that the Fourth Geneva Convention and certain parts of Additional Protocol I reflect customary international law that is applicable in the occupied territories. Gershom Gorenberg
Gershom Gorenberg
Gershom Gorenberg is an American-born Israeli historian, journalist and blogger, specializing in Middle Eastern politics and the interaction of religion and politics. He is currently a senior correspondent for The American Prospect, a monthly American political magazine...
has written that the Israeli government knew at the outset that it was violating the Geneva Convention by creating civilian settlements in the territories under IDF administration. He explained that as the legal counsel of the Foreign Ministry, Theodor Meron was the Israeli government's expert on international law. On September 16, 1967 Meron wrote a top secret memo to Mr. Adi Yafeh, Political Secretary of the Prime Minister regarding "Settlement in the Administered Territories" which said "My conclusion is that civilian settlement in the Administered territories contravenes the explicit provisions of the Fourth Geneva Convention." Moshe Dayan authored a secret memo in 1968 proposing massive settlement in the territories which said “Settling Israelis in administered territory, as is known, contravenes international conventions, but there is nothing essentially new about that.”
Israel's positions have not been accepted by the International Committee of the Red Cross
International Committee of the Red Cross
The International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...
, nor has it been endorsed by the other High Contracting Parties to the Fourth Geneva Convention. Article 1 of the Convention states that "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances" (emphasis added).
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 Jerusalem. In 2001, at a one-day conference of High Contracting Parties, 114 countries adopted a three-page declaration re-affirming that the terms of the Convention applied to the Palestinian territories.
In August 2004 an Israeli justice ministry team set up by Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
Menachem Mazuz
Menachem Mazuz
Menachem Mazuz is an Israeli jurist, who served as the Israeli Attorney General in the years 2004-2010. Mazuz was born in Djerba, Tunisia, the fourth in a family of nine children of the rabbi of one of the island's Jewish communities...
to study the ramifications of a ruling by the World Court recommended that the Israeli government should consider applying the Fourth Geneva Convention to the West Bank and Gaza.
Israel argues that it's not in violation of it. Firstly, Israel argues that the article was created in the context of World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
only.
Secondly, it is only intended to cover forcible transfers and to protect the local population from displacement. Article 49(1)of the Convention 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. However, Article 49(6) also prohibits Israel to 'transfer parts of its own civilian population into the territory it occupies', which would cover the Israeli settlements.
Thirdly, Israel claims that some of the settlers have returned to areas where Jewish settlements existed before 1948 (such as Gush Etzion
Gush Etzion
Gush Etzion is a cluster of Israeli settlements located in the Judaean Mountains directly south of Jerusalem and Bethlehem in the West Bank, Palestinian territories. The core group includes four agricultural villages that were founded in 1940-1947 on property purchased in the 1920s and 1930s, and ...
) and therefore it's an entirely different issue.
Fourthly, Israel claims 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
Oslo Accords
The Oslo Accords, officially called the Declaration of Principles on Interim Self-Government Arrangements or Declaration of Principles , was an attempt to resolve the ongoing Palestinian-Israeli conflict...
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.
Unilateral withdrawal from the Gaza Strip
Israel leftIsrael's unilateral disengagement plan
Israel's unilateral disengagement plan , also known as the "Disengagement plan", "Gaza expulsion plan", and "Hitnatkut", was a proposal by Israeli Prime Minister Ariel Sharon, adopted by the government on June 6, 2004 and enacted in August 2005, to evict all Israelis from the Gaza Strip and from...
the Gaza Strip in September 2005, and removed all of the settlements and military forces that were in it. Parts of the West Bank, East Jerusalem and the Golan Heights remain under control of Israel as of July 2006. Israel remains in control of Gaza's airspace and territorial waters. It has not controlled the Rafah crossing into Egypt since the unilateral disengagement plan of 2005 took effect.
See also
- International law and the Arab-Israeli conflictInternational law and the Arab-Israeli conflictThere is a broad international consensus that the actions of the nations involved in the Arab-Israeli conflict violate prohibitions contained in international law. However, this legality is disputed by some of the nations involved...
- Israeli–Palestinian conflictIsraeli–Palestinian conflictThe Israeli–Palestinian conflict is the ongoing conflict between Israelis and Palestinians. The conflict is wide-ranging, and the term is also used in reference to the earlier phases of the same conflict, between Jewish and Zionist yishuv and the Arab population living in Palestine under Ottoman or...
- Israeli-occupied territoriesIsraeli-occupied territoriesThe Israeli-occupied territories are the territories which have been designated as occupied territory by the United Nations and other international organizations, governments and others to refer to the territory seized by Israel during the Six-Day War of 1967 from Egypt, Jordan, and Syria...
- Israeli settlementIsraeli settlementAn Israeli settlement is a Jewish civilian community built on land that was captured by Israel from Jordan, Egypt, and Syria during the 1967 Six-Day War and is considered occupied territory by the international community. Such settlements currently exist in the West Bank...
- Israeli West Bank barrierIsraeli West Bank barrierThe Israeli West Bank barrier is a separation barrier being constructed by the State of Israel along and within the West Bank. Upon completion, the barrier’s total length will be approximately...
- List of United Nations Security Council Resolutions 401 to 500 (1976 – 1982)
- Palestinian territoriesPalestinian territoriesThe Palestinian territories comprise the West Bank and the Gaza Strip. Since the Palestinian Declaration of Independence in 1988, the region is today recognized by three-quarters of the world's countries as the State of Palestine or simply Palestine, although this status is not recognized by the...
- Rule of the West Bank and East Jerusalem by JordanRule of the West Bank and East Jerusalem by JordanThe West Bank and East Jerusalem were occupied by Jordan for a period of nearly two decades starting from the 1948 Arab-Israeli War. In 1950, the British extended formal recognition to the union between the Hashemite Kingdom and of that part of Palestine under Jordanian occupation and control -...
- Status of territories captured by IsraelStatus of territories captured by IsraelThe United Nations Security Council and the International Court of Justice both describe the West Bank and Golan Heights as "occupied territory" under international law, Israel's government calls all of them "disputed" rather than "occupied",...