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Are Israeli settlements legal?

Vrijdag, November 30, 2007

Israel Ministry of Foreign Affairs, December 2007.

Israeli settlements in the West Bank are legal both under international law and
the agreements between Israel and the Palestinians. Claims to the contrary are
mere attempts to distort the law for political purposes. Yet whatever the status
of the settlements, their existence should never be used to justify terrorism.

The Palestinians often claim that settlement activity is illegal and call on Israel
to dismantle every settlement. In effect, they are demanding that every Jew
leave the West Bank, a form of ethnic cleansing. By contrast, within Israel,
Arabs and Jews live side-by-side; indeed, Israeli Arabs, who account for
approximately 20% of Israel’s population, are citizens of Israel with equal
rights.

The Palestinian call to remove all Jewish presence from the disputed territories
is not only discriminatory and morally reprehensible; it has no basis either in law
or in the agreements between Israel and the Palestinians.

The various agreements reached between Israel and the Palestinians since 1993
contain no prohibitions on the building or expansion of settlements. On the
contrary, they specifically provide that the issue of settlements is reserved for
permanent status negotiations, which are to take place in the concluding stage
of the peace talks. 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 provision contained in the Israel-Palestinian Interim
Agreement prohibiting unilateral steps that alter the status of the West Bank
implies a ban on settlement activity.

This position is disingenuous. The prohibition on unilateral measures was
designed to ensure that neither side take steps that would change the legal
status of this territory (such as by annexation or a unilateral declaration of
statehood), pending the outcome of permanent status talks. The building of
homes has no effect on the final permanent status of the area as a whole. Were
this prohibition to be applied to building, it would lead to the unreasonable
interpretation that neither side is permitted to build houses to accommodate the
needs of their respective communities.

As the Israeli claim to these territories is legally valid, it is just as legitimate for
Israelis to build their communities as it is for the Palestinians to build theirs. Yet
in the spirit of compromise, successive Israeli governments have indicated their
willingness to negotiate the issue and have adopted a voluntary freeze on the
building of new settlements as a confidence-building measure.

Furthermore, Israel had established its settlements in the West Bank in
accordance with international law. Attempts have been made to claim that the
settlements violate Article 49 of the Fourth Geneva Convention of 1949, which
forbids a state from deporting or transferring “parts of its own civilian
population into the territory it occupies.” However, this allegation has no
validity in law as Israeli citizens were neither deported nor transferred to the
territories.

Although Israel has voluntarily taken upon itself the obligation to uphold the
humanitarian provisions of the Fourth Geneva Convention, Israel maintains that
the Convention (which deals with occupied territories) was not applicable to the
disputed territory. As there had been no internationally recognized legal
sovereign in either the West Bank or Gaza prior to the 1967 Six Day War, they
cannot be considered to have become “occupied territory” when control passed
into the hands of Israel.

Yet even if the Fourth Geneva Convention were to apply to the territories,
Article 49 would not be relevant to the issue of Jewish settlements. The
Convention was drafted immediately following the Second World War, against
the background of the massive forced population transfers that occurred during
that period.

As the International Red Cross’ authoritative commentary to the
Convention confirms, Article 49 (entitled “Deportations, Transfers,
Evacuations”) was intended to prevent the forcible transfer of civilians, thereby
protecting the local population from displacement. Israel has not forcibly
transferred its citizens to the territory and the Convention does not place any
prohibition on individuals voluntarily choosing their place of residence.
Moreover, the settlements are not intended to displace Arab inhabitants, nor do
they do so in practice. According to independent surveys, the built-up areas of
the settlements (not including roads or unpopulated adjacent tracts) take up
about 3% of the total territory of the West Bank.

Israel’s use of land for settlements conforms to all rules and norms of
international law. Privately owned lands are not requisitioned for the
establishment of settlements. In addition, all settlement activity comes under
the supervision of the Supreme Court of Israel (sitting as the High Court of
Justice) and every aggrieved inhabitant of the territories, including Palestinian
residents, can appeal directly to this Court

The Fourth Geneva Convention was certainly not intended to prevent
individuals from living on their ancestral lands or on property that had been
illegally taken from them. Many present-day Israeli settlements have been
established on sites that were home to Jewish communities in the West Bank
(Judea and Samaria) in previous generations, in an expression of the Jewish
people’s deep historic and religious connection with the land.

Many of the most ancient and holy Jewish sites, including the Cave of
the Patriarchs (the burial site of Abraham, Isaac and Jacob) and Rachel’s Tomb,
are located in these areas. Jewish communities, such as in Hebron (where Jews
lived until they were massacred in 1929), existed throughout the centuries.
Other communities, such as the Gush Etzion bloc in Judea, were founded
before 1948 under the internationally endorsed British Mandate.

The right of Jews to settle in all parts of the Land of Israel was first recognized
by the international community in the 1922 League of Nations Mandate for
Palestine. The purpose of the Mandate was to facilitate the establishment of a
Jewish national home in the Jewish people’s ancient homeland. Indeed, Article
6 of the Mandate provided for “close settlement by Jews on the land, including
State lands not required for public use.”

For more than a thousand years, the only time that Jewish settlement was
prohibited in the West Bank was under the Jordanian occupation (1948-1967)
that resulted from an armed invasion. During this period of Jordanian rule,
which was not internationally recognized, Jordan eliminated the Jewish
presence in the West Bank (as Egypt did in the Gaza Strip) and declared that
the sale of land to Jews was a capital offense. It is untenable that this outrage
could invalidate the right of Jews to establish homes in these areas, and
accordingly, the legal titles to land that had already been acquired remain valid
to this day.

In conclusion, the oft-repeated claim regarding the illegality’ of Israeli
settlements has no legal or factual basis under either international law or the
agreements between Israel and the Palestinians. Such charges can only be
regarded as politically motivated. Most importantly, any political claim –
including the one regarding settlements – should never be used to justify
terrorist attacks on innocent civilians.

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