The Israeli government recently issued a Legal Position
Paper detailing its view of the status of the settlements in
the area known as the West Bank and the Gaza Strip.
The paper argues that Jews have the same right to settle in
those areas as Palestinians, and it points out that Jewish
settlement is carried out without displacing any Palestinian
residents or even taking their land. Thus the settlements
are perfectly legal and cannot be considered a violation of
the Geneva Convention nor any sort of "war crime." The
prohibition against taking steps that might change the
"status" of the territories was intended to ban legal steps
that might be taken, and if it prohibits building housing,
the prohibition applies to the Palestinians as well as to
Israel.
We do not mean by publishing this to take a stand on the
advisability of Jews settling in these areas at such a
difficult time and certainly not to promote the Eretz
Yisroel Hashleimoh movement. However we think that it is
very important to set the record straight when we are
publicly accused of war crimes by moving in there.
Following is the text of that statement:
The Historical Context
Jewish settlement in West Bank and Gaza Strip territory has
existed from time immemorial and was expressly recognized 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 Yaakov, 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 emphasized 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).
