International Law and The Arab–Israeli Conflict - Legal Issues Related To Occupation - Settlement in Territories

Settlement in Territories

See related articles Israeli settlement and International law and Israeli settlements.

Article 49 of the Fourth Geneva Convention states in paragraph 1,

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

and states in paragraph 6,

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

Arguments supporting the position that establishing, funding, or allowing settlements in the territories is a violation of international law are,

  • The International Committee of the Red Cross' commentaries to the Geneva Conventions state that Article 49, paragraph 6, "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." It further notes "that in this paragraph the meaning of the words 'transfer' and 'deport' is rather different from that in which they are used in the other paragraphs of Article 49 since they do not refer to the movement of protected persons but to that of nationals of the occupying Power". The Committee has on several occasions described the establishment of Israeli settlements in the occupied territories as a violation of the Fourth Geneva Convention.
  • the International Court of Justice, in paragraph 120 of its advisory opinion on the "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory", asserts that: "That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory" and "concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law". The dissenting judge Thomas Buergenthal agreed that "this provision applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6".
  • Article 8(2)(b)(viii) of the International Criminal Court Rome Statute defines "he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" as a war crime. Israel did initially sign the statute, but later declared its intention not to ratify it.
  • The Security Council has in Resolution 446 determined: "that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity".

Arguments supporting the position that settlement in the territories does not violate international law are,

  • Israel ministry of foreign affairs argues "As the West Bank and Gaza Strip were not under the legitimate and recognized sovereignty of any state prior to the Six Day War, they should not be considered occupied territories."
  • Article 49 of the Fourth Geneva Convention is limited to transfers or deportations into or out of Occupied Territories which are 'forcible'.
  • Article 49 "cannot be viewed as prohibiting the voluntary return of individuals to the towns and villages from which they, or their ancestors, had been ousted" from living, e.g., in Gush Etzion, Jerusalem, or Hebron before 1948.
  • the Palestinians, as part of the Oslo Accords, agreed that the issue of settlements in the territories shall fall under the jurisdiction of final status negotiations (Article V, Section 3).
  • Jews have a legal right to settle the areas according to the Mandate for Palestine (specifically Article 6 of the mandate concerning Jewish settlements) and to such documents as the Faisal Weizmann Agreement. The British Mandate (granted by the League of Nations) specifically encouraged "close settlement by Jews on the land."

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