More on Israeli Settlements

(Map of the West Bank in June 2011 from B'tselem)

Further to the recent posts on the (il)legality of Israeli settlements in the occupied territories, (shown above in the latest map from B'tselem) and the threat of a US veto of a Palestinian UN membership application, I was interested in looking more closely at what current US policy is on the issue of Israeli settlements.  Israel, remember, claims that settlements themselves are legal as the Fourth Geneva Convention doesn't apply in the Occupied Territories, though it accepts that there are some settlements that are illegal under Israeli domestic law, e.g. Migron. This analysis is wrong as a matter of international law, as the Geneva Conventions have customary - and therefore binding - status on all States, a fact underscored by UNSCR 827 in 1993, itself binding on all UN Members as it was adopted under Chapter VII.


In particular, I was curious about whether US policy was as lock-step behind the current Israeli Likud administration on the question of legality? It is certainly true that America's detractors and opponents would like the rest of the world to believe that the Obama Administration is in the pocket of the Likudniks, and that therefore the US was fundamentally flawed as an interlocutor in the Middle East.

(To their detractors, puppet and puppeteer. If true, which is which?)

Digging through the record, it's clear that this isn't the case, despite the visuals. 

As long ago as 1979, the UN Security Council has held that Israeli settlements constructed on land captured by Israel in 1967 are illegal through the passage of Resolution 446 on 22 March 79. UNSCR 446 was adopted 12-0-3, with Norway, UK and USA abstaining - meaning that the US allowed passage.

On 18 Feb this year, the UNSC sat for its' 6484th meeting, and considered a draft UNSCR which was proposed by 100 states in the UNGA*. The draft UNSCR's Operational Paragraphs stated:

1. Reaffirms that the Israeli settlements established in the Palestinian Territory occupied since 1967, including East Jerusalem, are illegal and constitute a major obstacle to the achievement of a just, lasting and comprehensive peace;

2. Reiterates its demand that Israel, the occupying Power, immediately and completely ceases all settlement activities in the Occupied Palestinian Territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard;

3. Calls upon both parties to act on the basis of international law and their previous agreements and obligations, including under the Roadmap, aimed, inter alia, at improving the situation on the ground, building confidence and creating the conditions necessary for promoting the peace process;

4. Calls upon all parties to continue, in the interest of the promotion of peace and security, with their negotiations on the final status issues in the Middle East peace process according to its agreed terms of reference and within the time frame specified by the Quartet in its statement of 21 September 2010;

5. Urges in this regard the intensification of international and regional diplomatic efforts to support and invigorate the peace process towards the achievement of a comprehensive, just and lasting peace in the Middle East;

6. Decides to remain seized of the matter.

For the UN, this is strong stuff; and it was duly defeated by a US veto, 14-1-0.

So far, so normal for the US's critics who assert that the US is simply a nebbish covering up for Israel's illegal excesses.

(The estimable US UN Ambassador Dr. Susan Rice).

After each Security Council vote, the UNSC members may choose to speak explaining what just happened. These speeches are known, (with a stunning lack of diplomatic originality) as "Explanation of Vote", or EOVs. Here's what Ambassador Rice had to say after the US vetoed the draft in the face of unanimity on the rest of the Security Council and against the wishes of 100 UN member states:

"The United States has been deeply committed to pursuing a comprehensive and lasting peace between Israel and the Palestinians. In that context, we have been focused on taking steps that advance the goal of two States living side by side in peace and security, rather than complicating that goal. That includes a commitment to work in good faith with all parties to underscore our opposition to continued settlements.

Our opposition to the resolution before this Council today should therefore not be misunderstood to mean we support settlement activity. On the contrary, we reject in the strongest terms the legitimacy of continued Israeli settlement activity. For more than four decades Israeli settlement activity in territories occupied in 1967 has undermined Israel’s security and corroded hopes for peace and stability in the region. Continued settlement activity violates Israel’s international commitments, devastates trust between the parties and threatens the prospects for peace.
 

The United States and our fellow Council members are also in full agreement about the urgent need to resolve the conflict between the Israel and the Palestinians on the basis of the two-State solution and an agreement that establishes a viable, independent and contiguous State of Palestine once and for all. We have invested a tremendous amount of effort and resources in pursuit of that shared goal, and we will continue to do so. But the only way to reach that common goal is through direct negotiations between the parties, with the active and sustained support of the United State and the international community. It is the Israelis’ and Palestinians’ conflict, and even the best-intentioned outsiders cannot resolve it for them."

The language is direct, and strikingly similar to that used by President Obama in threatening a veto on the Palestinian application for UN membership: if nothing else, the US was being entirely consistent. It is also heartening to hear that the US "reject[s] in the strongest terms the legitimacy of continued Israeli settlement activity", by which I presume were are suppose to understand that the US considers them illegal under international law, though they don't actually want to say so.

What is missing, of course, is successful economic or political pressure from the US to force the Israelis to freeze the settlements as a prelude to negotiations. But that is a political, not a legal matter. 

(*For the record, the co-sponsors of the draft Resolution were: Afghanistan, Algeria, Argentina, Austria, Azerbaijan, Bahrain, Bangladesh, Belarus, Belgium, the Plurinational State of Bolivia, Botswana, Brunei Darussalam, Chile, Comoros, Costa Rica, Cuba, Cyprus, the Democratic People’s Republic of Korea, Djibouti, Ecuador, Egypt, Finland, Greece, Grenada, Guatemala, Guinea, Guyana, Iceland, Indonesia, Iraq, Ireland, Israel, Jordan, Kuwait, the Lao People’s Democratic Republic, Lesotho, Liechtenstein, Luxembourg, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco, Namibia, Nicaragua, Norway, Oman, Pakistan, Papua New Guinea, Peru, the Philippines, Qatar, Saint Vincent and the Grenadines, Saudi Arabia, Senegal, Serbia, Slovenia, Somalia, the Sudan, Sweden, Switzerland, Tajikistan, Tunisia, Turkey, Turkmenistan, the United Arab Emirates, Uruguay, the Bolivarian Republic of Venezuela, Viet Nam, Yemen and Zimbabwe.) 

Israeli Settlements are illegal. Points? Questions?

(Israeli settlement of Migron*. Even the Israeli Supreme Court agrees this one is illegal.)

I've been asked a couple of times about whether or not the Israeli settlements built on territory occupied in the 1967 Six Day War are legal, and if not, why not - given that the Israeli Government distinguishes between legal and illegal settlements in the West Bank.

The Israeli Ministry of Foreign Affairs marshals an extensive argument on their website explaining why Article 49(6) of the Fourth Geneva Convention 1949 which forbids an occupying power from "deport[ing] or transfer[ing] parts of its own civilian population into the territory it occupies" doesn't apply in the West Bank, the Golan Heights (and formerly, Gaza). The Israeli MFA's claims that:

"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."

This is arguably true but irrelevant. It is interesting that even the Israeli MFA makes the case that ancestors - presumably back to biblical times - present a legal basis for the appropriation of land and the construction of settlements. In legal terms this is a nonsense, and in practical terms it is hopeless - it would appear to give Italians legitimate title to most of the Mediterranean world, for instance.

The Israeli MFA goes on:

"Nor does [Article 49] 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."

There are at least two problems with these assertions. First, the Israeli MFA in asserting that the territories it occupied in 1967 were "not under the legitimate sovereignty of any state" implies that it was terra nulius. Simply put, this isn't true: in 1967 the West Bank and East Jerusalem were either under the sovereignty of Jordan, or it was illegally occupied by Jordan with rights reverting to the previous legitimate sovereign. (I assume that in this case the previous legitimate sovereign was the UN as the League of Nations mandate was handed back by Britain, though I'd have to do some more work on this.) In any event, the West Bank and the other other occupied territories were not terra nulius - because if they had been, then in 1967 the UNSC would not have passed Resolution 242 calling for the withdrawal of Israeli forces from "territories occupied in the recent conflict".

Second, the record is clear that Israel does appropriate Arab land, and has used it for building settlements. 

In any event, the UN Security Council made clear in 1967 that the Geneva Conventions applied to the occupied territories in Resolution 237, and in 1979 that the settlements are illegal in Resolution 446, OP1 of which reads that the Security Council

 "Determines 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."

Indeed - and the situation has only deteriorated since then. 

*Migron is significant as in a major victory for Peace Now, the Israeli Supreme Court ruled in August 2011 that Migron was illegal and demanded that the Israeli government remove it by April 2012, which is the first time this has happened in the West Bank.