Mr. Speaker, today I would like to convey to the House important information regarding the legality of the presence of the State of Israel in Judea and Samaria under international law. Due to the unique and sui generis historic and legal…
Mr. Speaker, today I would like to convey to the House important information regarding the legality of the presence of the State of Israel in Judea and Samaria under international law. Due to the unique and sui generis historic and legal circumstances of Israel's presence in Judea and Samaria, this presence cannot be considered to be an occupation. Moreover, provisions of the 1949 Fourth Geneva Convention, regarding transfer of populations, cannot be considered applicable, and were never intended to apply to the type of settlement activity carried out by Israel in Judea and Samaria. According to international law, Israelis have the lawful right to settle in Judea and Samaria, and consequently, the establishment of settlements cannot in and of itself be considered to be illegal. The following is an excerpt from the 2012 Levy Commission Report on the Legal Status of Building in Judea and Samaria that deals with international law. The full report can be viewed in its entirety at http://regavim.org.il/en/ levy-report-translated-into-english/.
The Status of the Territories of Judea and Samaria According to
International Law
3. In light of the different approaches in regard to the
status of the State of Israel and its activities in Judea and
Samaria, any examination of the issue of land and settlement
thereon requires, first and foremost, clarification of the
issue of the status of the territory according to
international law.
Some take the view that the answer to the issue of
settlements is a simple one inasmuch as it is prohibited
according to international law. That is the view of Peace Now
(see the letter from Hagit Ofran from 2 April 2010); B'tselem
(see the letter from its Executive Director Jessica Montell
from 29 March 2012, and its pamphlet Land Grab: Israel's
Settlement Policy in the West Bank, published May 2002); Yesh
Din and the Association for Civil Rights in Israel (ACRI)
(see the letter from Attorney Tamar Feldman from 19 April
2012); and Adalah (see the letter from attorney Fatma Alaju
from 12 June 2012).
The approach taken by these organizations is a reflection
of the position taken by the Palestinian leadership and some
in the international community, who view Israel's status as
that of a ``military occupier,'' and the settlement endeavor
as an entirely illegal phenomenon. This approach denies any
Israeli or Jewish right to these territories. To sum up, they
claim that the territories of Judea and Samaria are
``occupied territory'' as defined by international law in
that they were captured from the Kingdom of Jordan in 1967.
Consequently, according to this approach, the provisions of
international law regarding the matter of occupation apply to
Israel as a military occupier, i.e. Regulations concerning
the Laws and Customs of War on Land. The Hague, 18 October
1907, which govern the relationship between the occupier, the
occupied territory, and the Fourth Geneva Convention Relative
to the Protection of Civilian Persons in Time of War. Geneva,
12 August (1949).
According to the Hague Regulations, the occupying power,
while concerning himself with the occupier's security needs,
is required to care for the needs of the civilian population
until the occupation is terminated. According to these
regulations, it is forbidden in principle to seize personal
property, although the occupying power has the right to enjoy
all the advantages derivable from the use of the property of
the occupied state, and public property that is not privately
owned without changing its fixed nature. Moreover, according
to this approach, Article 49 of the Fourth Geneva Convention
prohibits the transfer of parts of the occupying power's own
civilian population into the territory it occupies.
Accordingly, in their view, the establishment of settlements
carried out by Israel is in violation of this article, even
without addressing the type or status of the land upon which
they are built.
In this context, we were presented with an approach by some
of the abovementioned organizations, whereby they do not
accept the premise that the lands that do not constitute
personal property are state lands. It was claimed that in the
absence of orderly registration of most of the land in Judea
and Samaria, and precise registration of the rights of the
local inhabitants, it is reasonable to assume that the local
population is entitled to benefit from land that is neither
defined nor registered as privately owned land. From this it
follows that the use of land for the purpose of the
establishment of Israeli settlements impinges on the rights
of the local population, which is a protected population
according to the Convention, and Israel, as an occupying
power, is obliged to safeguard these rights and not deny them
by exploiting the land for the benefit of its own population.
4. If this legal approach were correct, we would, in
accordance with our Terms of reference, be required to
terminate the work of this Committee, since in such
circumstances, we could not recommend regularizing the status
of the settlements. On the contrary, we would be required to
recommend that the proper authorities remove them.
However, we were also presented with another legal
position, inter alia by the Regavim movement (Attorneys
Bezalel Smotritz and Amit Fisher) and by the Benjamin
Regional Council (the expert legal opinion of Attorneys
Daniel Reisner and Harel Amon). They are of the view that
Israel is not an ``Occupying Power'' as determined by
international law inter alia because the territories of Judea
and Samaria were never a legitimate part of any Arab state,
including the kingdom of Jordan. Consequently, those
conventions dealing with the administration of occupied
territory and an occupied population are not applicable to
Israel's presence in Judea and Samaria.
According to this approach, even if the Geneva Convention
applied, Article 49 was never intended to apply to the
circumstances of Israel's settlements. Article 49 was drafted
by the Allies after World War II to prevent the forcible
transfer of an occupied population, as was carried out by
Nazi Germany, which forcibly transferred people from Germany
to Poland, Hungary and Czechoslovakia with the aim of
changing the demographic and cultural makeup of the
population. These circumstances do not exist in the case of
Israel's settlement. Other than the fundamental commitment
that applies universally by virtue of international
humanitarian norms to respect individual personal property
rights and uphold the law that applied in the territory prior
to the IDF entering it, there is no fundamental restriction
to Israel's right to utilize the land and allow its citizens
to settle there, as long as the property rights of the local
inhabitants are not harmed and as long as no decision to the
contrary is made by the government of Israel in the context
of regional peace negotiations.
5. Is Israel's status that of a ``military occupier'' with
all that this implies in accordance with international law?
In our view, the answer to this question is no.
After having considered all the approaches placed before
us, the most reasonable interpretation of those provisions of
international law appears to be that the accepted term
``occupier'' with its attending obligations, is intended to
apply to brief periods of the occupation of the territory of
a sovereign state pending termination of the conflict between
the parties and the return of the territory or any other
agreed upon arrangement. However, Israel's presence in Judea
and Samaria is fundamentally different: Its control of the
territory spans decades and no one can foresee when or if it
will end; the territory was captured from a state (the
kingdom of Jordan), whose sovereignty over the territory had
never been legally and definitively affirmed, and has since
renounced its claim of sovereignty; the State of Israel has a
claim to sovereign right over the territory.
As for Article 49 of the Fourth Geneva Convention, many
have offered interpretations, and the predominant view
appears to be that that article was indeed intended to
address the harsh reality dictated by certain countries
during World War II when portions of their populations were
forcibly deported and transferred into the territories they
seized, a process that was accompanied by a substantial
worsening of the status of the occupied population (see HCJ
785/87 Affo et al. v. Commander of IDF Forces in the West
Bank et al. IsrSC 42(2) 1; and the article by Alan Baker:
``The Settlements Issue: Distorting the Geneva Conventions
and Oslo Accords, from January 2011.
This interpretation is supported by several sources: The
authoritative interpretation of the International Committee
of the Red Cross (IRCC), the body entrusted with the
implementation of the Fourth Geneva Convention, in which the
purpose of Article 49 is stated as follows:
``It is intended to prevent a practice adopted during the
Second World War by certain Powers, which transferred
portions of their own population to occupied territory for
political and racial reasons or in order, as they claimed, to
colonize those territories. Such transfers worsened the
economic situation of the native population and endangered
their separate existence as a race.''
Legal scholars Prof. Eugene Rostow, Dean of Yale Law School
in the U.S., and Prof. Julius Stone have acknowledged that
Article 49 was intended to prevent the inhumane atrocities
carried out by the Nazis, e.g. the massive transfer of people
into conquered territory for the purpose of extermination,
slave labor or colonization.
``The Convention prohibits many of the inhumane practices
of the Nazis and the Soviet Union during and before the
Second World War--the mass transfer of people into and out of
occupied territories for purposes of extermination, slave
labor or colonization, for example. . . . The Jewish settlers
in the West Bank are most emphatically volunteers. They have
not been ``deported'' or ``transferred'' to the area by the
Government of Israel, and their movement involves none of the
atrocious purposes or harmful effects on the existing
population it is the goal of the Geneva Convention to
prevent.'' (Rostow)
``Irony would . . . be pushed to the absurdity of claiming
that Article 49(6) designed to prevent repetition of Nazi-
type genocidal policies of rendering Nazi metropolitan
territories judenrein, has now come to mean that . . . the
West Bank . . . must be made judenrein and must be so
maintained, if necessary by the use of force by the
government of Israel against its own inhabitants. Common
sense as well as correct historical and functional context
excludes so tyrannical a reading of Article 49(6.).'' (Julius
Stone)
6. We are not convinced that an analogy may be drawn
between this legal provision and those who sought to settle
in Judea and Samaria, who were neither forcibly ``deported''
nor ``transferred,'' but who rather chose to live there based
on their ideology of settling the Land of Israel.
We have not lost sight of the views of those who believe
that the Fourth Geneva Convention should be interpreted so as
also to prohibit the occupying state from encouraging or
supporting the transfer of parts of its population to the
occupied territory, even if it did not initiate it. However,
even if this interpretation is correct, we would not alter
our conclusions that Article 49 of the Fourth Geneva
Convention does not apply to Jewish settlement in Judea and
Samaria in view of the status of the territory according to
international law. On this matter, we offer a brief
historical review.
7. On 2 November 1917-17 Heshvan 5678, Lord James Balfour,
the British Foreign Secretary, published a declaration saying
that:
``His Majesty's Government view with favor the
establishment in Palestine of a national home for the Jewish
people, and will use their best endeavors to facilitate the
achievement of this object, it being clearly understood that
nothing shall be done which may prejudice the civil and
religious rights of existing non-Jewish communities in
Palestine, or the rights and political status enjoyed by Jews
in any other country.
In this declaration, Britain acknowledged the rights of the
Jewish people in the Land of Israel and expressed its
willingness to promote a process that would ultimately lead
to the establishment of a national home for it in this part
of the world. This declaration reappeared in a different
form, in the resolution of the Peace Conference in San Remo,
Italy, which laid the foundations for the British Mandate
over the Land of Israel and recognized the historical bond
between the Jewish people and Palestine (see the preamble):
``The principal Allied powers have also agreed that the
Mandatory should be responsible for putting into effect the
declaration originally made on November 2nd, 1917, by the
Government of His Britannic Majesty, and adopted by the said
powers, in favor of the establishment in Palestine of a
national home for the Jewish people, it being clearly
understood that nothing should be done which might prejudice
the civil and religious rights of existing non-Jewish
communities in Palestine, or the rights and political status
enjoyed by Jews in any other country. [. . .] Recognition has
thereby been given to the historical connection of the Jewish
people with Palestine and to the grounds for reconstituting
their national home in that country.
It should be noted here that the mandatory instrument (like
the Balfour Declaration) noted only that ``the civil and
religious rights'' of the inhabitants of Palestine should be
protected, and no mention was made of the realization of the
national rights of the Arab nation. As for the practical
implementation of this declaration, Article 2 of the
Mandatory Instrument states:
``The Mandatory shall be responsible for placing the
country under such political, administrative and economic
conditions as will secure the establishment of the Jewish
national home, as laid down in the preamble, and the
development of self-governing institutions, and also for
safeguarding the civil and religious rights of all the
inhabitants of Palestine, irrespective of race and
religion.''
And Article 6 of the Palestine Mandate 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 co-operation with
the Jewish agency referred to in Article 4, close settlement
by Jews on the land, including State lands and waste lands
not required for public purposes.''
In August 1922 the League of Nations approved the mandate
given to Britain, thereby recognizing, as a norm enshrined in
international law, the right of the Jewish people to
determine its home in the Land of Israel, its historic
homeland, and establish its state therein.
To complete the picture, we would add that upon the
establishment of the United Nations in 1945, Article 80 of
its Charter determined the principle of recognition of the
continued validity of existing rights of states and nations
acquired pursuant to various mandates, including of course
the right of the Jews to settle in the Land of Israel, as
specified in the abovementioned documents:
Except as may be agreed upon in individual trusteeship
agreements [. . .] nothing in this Chapter shall be construed
in or of itself to alter in any manner the rights whatsoever
of any states or any peoples or the terms of existing
international instruments to which Members of the United
Nations may respectively be parties'' (Article 80, Paragraph
1, UN Charter).
8. In November 1947, the United Nations General Assembly
adopted the recommendations of the committee it had
established regarding the partition of the Land of Israel
west of the Jordan into two states. However, this plan was
never carried out and accordingly did not secure a foothold
in international law after the Arab states rejected it and
launched a war to prevent both its implementation and the
establishment of a Jewish state. The results of that war
determined the political reality that followed: The Jewish
state was established within the territory that was acquired
in the war. On the other hand, the Arab state was not formed,
and Egypt and Jordan controlled the territories they captured
(Gaza, Judea and Samaria). Later, the Arab countries, which
refused to accept the outcome of the war, insisted that the
Armistice Agreement include a declaration that under no
circumstances should the armistice demarcation lines be
regarded as a political or territorial border. Despite this,
in April 1950, Jordan annexed the territories of Judea and
Samaria, unlike Egypt, which did not demand sovereignty over
the Gaza Strip. However, Jordan's annexation did not attain
legal standing and was opposed even by the majority of Arab
countries, until in 1988, Jordan declared that it no longer
considered itself as having any status over that area (on
this matter see Supreme Court President Landau's remarks in
HCJ 61/80 Haetzni v. State of Israel, IsrSC 34(3) 595, 597;
HCJ 69/81 Bassil Abu Aita et al. v. The Regional Commander of
Judea and Samaria et al., IsrSC 37(2) 197, 227).
This restored the legal status of the territory to its
original status, i.e. territory designated to serve as the
national home of the Jewish people, which retained its
``right of possession'' during the period of the Jordanian
control, but was absent from the area for a number of years
due to the war that was forced on it, but has since returned.
9. Alongside its international commitment to administer the
territory and care for the rights of the local population and
public order, Israel has had every right to claim sovereignty
over these territories, as maintained by all Israeli
governments. Despite this, they opted not to annex the
territory, but rather to adopt a pragmatic approach in order
to enable peace negotiations with the representatives of the
Palestinian people and the Arab states. Thus, Israel has
never viewed itself as an occupying power in the classic
sense of the term, and subsequently, has never taken upon
itself to apply the Fourth Geneva Convention to the
territories of Judea, Samaria and Gaza. At this point, it
should be noted that the government of Israel did indeed
ratify the Convention in 1951, although it was never made
part of Israeli law by way of Knesset legislation (on this
matter, see CrimA 131/67 Kamiar v. State of Israel, 22(2)
IsrSC 85, 97; HCJ 393/82 Jam'iat Iscan Al-Ma'almoun v.
Commander of the IDF Forces in the Area of Judea and Samaria,
IsrSC 37(4) 785).
Israel voluntarily chose to uphold the humanitarian
provisions of the Convention (HCJ 337/71, Christian Society
for the Holy Places v. Minister of Defense, IsrSC 26(1) 574;
HCJ 256/72, Electricity Company for Jerusalem District v.
Minister of Defense et al., IsrSC 27(1) 124; HCJ 698/80
Kawasme et al. v. The Minister of Defense et al., IsrSC 35(1)
617; HCJ 1661/05 Hof Aza. Regional Council et al. v. Knesset
of Israel et al., IsrSC 59(2) 481).
As a result, Israel pursued a policy that allowed Israelis
to voluntarily establish their residence in the territory in
accordance with the rules determined by the Israeli
government and under the supervision of the Israeli legal
system, subject to the fact that their continued presence
would be subject to the outcome of the diplomatic
negotiations.
In view of the above, we have no doubt that from the
perspective of international law, the establishment of Jewish
settlements in Judea and Samaria is not illegal.