Alan Baker, director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, is former legal adviser to Israel’s Foreign Ministry and former ambassador to Canada. He recently wrote an excellent article on The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords which is a must read. But for me it opened up a can of worms.
The international community considers the settlements illegal because of the sixth paragraph of Article 49 of the Fourth Geneva Convention, which states:
“The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
But, what does this mean?
The International Committee of the Red Cross, in 1958, clarified this provision 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.”
Baker interprets it thus: “In other words, according to the ICRC commentary, Article 49 relates to deportations, meaning the forcible transfer of an occupying power’s population into an occupied territory.”
He then quotes leading experts on international law who are in agreement with this understanding.
Baker distinguishes Israel’s actions from what is proscribed:
“It has consistently maintained a policy enabling people to reside voluntarily on land that is not privately owned. Their continued presence is subject to the outcome of the negotiation process on the status of the territory, and without necessarily prejudicing that outcome.
“In some cases Israel has permitted its citizens who have for many years owned property or tracts of land in the territory, and who had been previously dispossessed and displaced by Jordan, to return to their own properties. The presence in these areas of Jewish settlement from Ottoman and British Mandatory times is totally unrelated to the context of, or claims regarding, the Geneva Convention.
He is right of course, but seems almost apologetic.
And then comes the can of worms:
“Israel has never expressed any intention to colonize the territories, to confiscate land, nor to displace the local population for political or racial reasons, nor to alter the demographic nature of the area.”
In effect he is saying that Israel disavows ownership. But why? Israel should be asserting her right to keep all of the land.
The proscription above is against forcible transfer in order to colonize. There is no proscription against voluntary transfer for that or other reasons. Yet he makes it seem so by denying any intention to “colonize”. Is not the building of settlements colonizing?
He avoids the issue of why Israel built settlements in the first place. Originally, Israel began building settlements for security purposes. She continued to build them with the intention of keeping them, did she not? The rationale for security became less and less apparent.
Nowhere does he argue that Article 49 of the Fourth Geneva Convention has absolutely no applicability to the territories whatsoever. This case is amply set out in The truth about the “occupation” and the “settlements”. The government of Israel has always taken the position that it doesn’t apply, but nevertheless, said she would apply the humanitarian provisions contained in it. Is Israel now conceding that it does apply? Certainly Baker seems to be.
This is a huge omission. The Convention is invoked only when lands on one High Contracting Party (HCP) are occupied by another High Contracting Party. The territories were never the lands of a High Contracting Party and thus the convention doesn’t apply at all. The international community prefers to ignore this requirement and so does Baker.
Nor does he argue that the San Remo Resolution of 1920 awarded all of then Palestine to the Jewish people to reconstitute their homeland. Thus by international law, Israel is legally entitled to the territories and to settle there. For confirmation of this, one need only to listen the great lecture by Dr. Jacques Gauthier in which he definitively makes the case. Or one can peruse this précis of same. Dr. Gauthier wrote his doctoral thesis on the subject. In his law practice, he specializes in international law.
Instead Baker cites the Oslo Accords of which he was one of the drafters:
“The series of agreements signed with the Palestinian leadership has in fact placed the entire issue of the status of the territory, as well as Israel’s settlements, on the negotiating table — a factor that proves the lack of any intention to colonize or displace.”
I argue that the Oslo Accords do not disprove Israel’s intention to colonize some of the land. While everything is on the table, Israel retains the right to argue her rights. These rights include the right to live on the land, the right to secure borders, the exclusive right to Jerusalem and the right to be recognized as a Jewish state. She also has the right to reject the return of any refugee to what is now Israel and for that matter even to Judea and Samaria.
It is important to note that the Oslo Accords were negotiated and entered into by a Labor government anxious to rid Israel of the territories. It is also important to note that all Likud governments since have continued on its path. At least all governments supported the settlement enterprise. Seems schizophrenic to me.
Normally with agreements such as these, pertinent facts are set out in recitals. It was a glaring omission not to have recited the San Remo Resolution and the Palestine Mandate as having awarded the land to the Jewish people. Such an omission is concrete evidence that the Labor government didn’t intend to assert our ownership of the land.
The Accords were approved by the Knesset by only a 51% majority. The support for the Accords has diminished considerably since then.
Although “settlements” are identified as a “permanent status” issue, nothing was implied that meant their removal. Furthermore there was nothing in the Accords that implied that a sovereign state of Palestine would be the end result. The language is quite consistent with autonomy only. Nor do these resolutions in any way suggest the creation of another state. These are not foregone conclusions.
Resolution 242 sets out two principles for settlement, namely, “Withdrawal of Israeli armed forces from territories occupied in the recent conflict” and “[the] right to live in peace within secure and recognized boundaries free from threats or acts of force”.
Much has been written to explain that the exclusion of the adjective “all” before “territories” meant that not all the territories had to be evacuated. Otherwise there would be no need to negotiate borders. In this regard, Israel has evacuated the Sinai and Gaza which constituted 78% of the territories and thus, it may be argued, Israel has fulfilled her obligation to “withdraw from territories”. Furthermore, only by Israel retaining the Golan and Judea and Samaria (West Bank) can she have secure borders.
The Israeli government from time to time argues that the lands are not “occupied” but “disputed”. I submit this concedes too much. She should be arguing that Israel has legal title to the land as the beginning point of negotiations.
One of the reasons that Israel wanted to divest itself of the land with proper security safeguards after the ’67 war is that she didn’t have a large enough population to retain a Jewish majority after annexation. Now, if she were to abandon the Oslo Accords and annex Judea and Samaria, Jews would outnumber the Arabs in the combined territory, 2:1; sufficient to be democratic and Jewish.
The Arab claim to the land is predicated on the rejection of both the San Remo Resolution and the Palestine Mandate. In fact, they also reject the Partition Plan, which was recommended by the UN General Assembly in ’47, and refuse to recognize Israel as a Jewish state. They also refuse to recognize Resolution 242 which calls for defensible borders. For Israel to call the lands “disputed” is to give legitimacy and credence to their illegal claims.
As Gauthier says, the matter is res judicata, i.e., legally determined. It’s time that the government of Israel said so too.