Yale University’s renowned law professor Eugene Rostow once applied his skill to the vexing issue of Israel’s right to build West Bank settlements in the wake of the Six-Day War in 1967. In light of the split decision 2-1 by the International Criminal Court in The Hague that could enable the legal prosecution of Israeli officials, including IDF officers, it is worthwhile to consider again how Rostow viewed the question. Due to the legal complexity, IsraCast has deemed fit to print Rostow’s verbatim analysis for those who are seriously interested in understanding the various aspects and why Rostow would probably have given an ‘F’ to two of those judges in The Hague.
ISRRAEL’S SETTLEMENTS – THEIR CONFORMITY WITH INTERNATIONAL LAW
1. THE HISTORICAL CONTEXT
Jewish settlements in the West Bank have existed for many hundreds of years. The Jewish community in Hebron existed throughout the centuries of Ottoman rule, while such settlements as Neve Ya’acov and the Gush Etsion block were established under the British Mandatory Administration, which allowed Jewish settlement in these areas.
The approach of the Mandatory Administration to Jewish settlement was fully in accord with the Mandate of the League of Nations, Article 6 of which provided:
“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 cooperation with the Jewish Agency referred to in Article 4, close settlement by Jews on the land, including State land not required for public use.”
Even though British Mandate Authorities, particularly in the latter period of the Mandate, were not sympathetic to the Zionist cause, they nevertheless permitted the establishment of Jewish settlements in the territories since they were implementing the League of Nations Mandate which called for Jewish settlement in the whole area west of the river Jordan.
The right of Jews to establish their homes in these areas is as valid today as always. As Former Under-Secretary of State for Political Affairs and Distinguished Fellow at the United States Institute of Peace, Eugene V. Rostow, has written:
“The right of the Jewish people to settle in Palestine has never been terminated for the West Bank…” (American Journal of International Law, vol. 84, July 1990, p. 718).
2. THE LAW OF OCCUPATION – even if it applies, does not prohibit Israeli settlements
Israel has consistently taken the position that the areas of the West Bank and Gaza cannot be considered as occupied territories under international law. Nonetheless, Israel has undertaken to comply with the humanitarian provisions of the Law of Occupation in its administration of the territories.
In this regard, it has been charged that the establishment of settlements by Israel in the administered areas violates article 49 of the Fourth Geneva Convention, and, in particular, paragraph 6, which provides that:
“The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
However, it is clear from both the full text of article 49 and from its title, “Deportations, Transfers, Evacuations”, that the full provision is directed against the forcible transfer of civilians with a view to protecting the local population from displacement. Oppenheim-Lauterpact confirms that the prohibition is intended to cover “cases of the occupant bringing its nationals for the purpose of displacing the population of the occupied territory” (Vol. II, 7th. ed., p. 452).
This understanding of the provision is underscored by its historical context. Drafted only four years after the end of the Second World War, the provision was intended to deal with forced transfers of population like those which took place in Czechoslovakia, Poland and Hungary before and during the war. The authoritative ICRC commentary states clearly that paragraph 6 was 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 colonise these territories” (Commentary: IV Geneva Convention ed. Pictet (1958), p. 283).
Accordingly, it is evident that Article 49 has no bearing as regards the settlements in the territories. The existence of Jewish settlements in these areas is a continuation of a long-standing Jewish presence. Moreover, the movement of individuals to these areas is entirely voluntary, while the settlements themselves are not intended to displace Arab inhabitants, nor do they do so in practice.
3. THE ISRAELI-PALESTINIAN PEACE AGREEMENTS – contain no prohibition on the building or expansion of settlements
It has been charged that the building or expansion of Israeli settlements is a breach of the provisions of the Israeli-Palestinian peace agreements.
In fact, neither of the agreements in force between Israel and the PLO – the Declaration of Principles and the Interim Agreement – contain any provision prohibiting or restricting the establishment or expansion of Israeli settlements. Similarly, none of the other agreements between the two sides, now superseded by the Interim Agreement, contained such a provision. At various stages during the negotiations over these agreements, requests were made by the Palestinian side to include such a provision. Israel, however, opposed the inclusion of such a provision, pointing out that Israeli policy in this regard had already been established in a number of decisions by the Israeli Government, and explaining that it was not prepared to undertake any commitment beyond these unilateral Government decisions.
The Declaration of Principles does provide, in Article V, that the issues of settlements and Israelis are among a number of issues to be negotiated in the permanent status negotiations. Article IV provides that the jurisdiction of the Palestinian Council covers “West Bank and Gaza Strip territory, except for those issues that will be negotiated in the permanent status negotiations.” Accordingly, not only is there no restriction on settlement activity during the interim period, but the Council has no jurisdiction over settlements or Israelis. Settlements and Israelis remain under exclusive Israeli authority throughout the interim period.
Finally, the suggestion has been made that settlement activity is prohibited by the Interim Agreement, which provides in Article XXXI.7:
“Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.”
The suggestion that this provision prohibits settlement activity is disingenuous. The building of homes has no effect on the status of the area. The prohibition on changing the status of the areas is intended to ensure that neither side takes any unilateral measures to change the legal status of these areas (such as by annexation or a declaration of statehood) pending the final status talks. Moreover, since the provision applies to both sides (“Neither side…”), were it to prohibit building, it would prohibit the construction of homes for Israelis and Arabs alike. This is not only impractical but also clearly not what was envisaged by the Interim Agreement, which contains provisions dealing with planning and zoning, on the assumption that building is to continue throughout the interim period.
4. ACQUISITION OF LAND FOR SETTLEMENT CONSTRUCTION – is effected in strict conformity with international law
Israel’s actions relating to the use and allocation of land under its administration are all taken with strict regard to the rules and norms of international law. All such actions are under the supervision of the Supreme Court of Israel sitting as the High Court of Justice which is accessible to any aggrieved resident of the areas.
Although the Hague Regulations, in Article 52, permit the administering authority to requisition private property for reasons of military necessity, Israel does not requisition private land for the establishment of settlements, even where there is military justification.
Where land is not subject to private ownership, Article 55 of the Hague Regulations provides that the administering authority is permitted to utilize such public land and to enjoy the “usufruct”. Indeed, there is a positive duty which obliges the authority to take possession of public property in order to safeguard it pending the final determination as to the status of the territory concerned. Felichenfeld in “The International Economic Law of Belligerent Occupation” (1942) (at page 55) observes that the right to enjoy the usufruct includes the right to lease or utilize public lands or buildings, sell the crops, cut and sell timber, and work the mines.”
Contrary to allegations frequently made in this regard, Israel does not expropriate any private land for the purpose of establishing settlements. Settlements are only established on public land after an exhaustive investigation has confirmed that no private rights exist in the land in question. The process of investigation includes an appeals process, through which any individual claiming rights in the land can object. Decisions of the Appeals Board and any declaration that land is state-owned can also be appealed to the High Court of Justice.
Jewish settlements have existed in the areas for hundreds of years. During the time of the League of Nations Mandate, settlements were set up with the Mandate’s permission and encouragement.
Although the status of the territories is not strictly “occupied territory”, Israel complies with the provisions of international law regarding occupied territory. It does not confiscate or seize private land, nor does it displace the local population. Professor Eugene Rostow has written:
“The Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there” (AJIL, 1990, vol. 84, p. 720).
Israel has agreed to negotiate the future of the settlements in the permanent status negotiations with the Palestinians. Until then, the two sides have agreed that settlements in the areas are to remain unaffected and under exclusive Israeli authority. The Israel-PLO agreements do not place any restrictions on the continued building or expansion of settlements.
In political fora, there have been repeated allegations that Israel’s settlements in the areas are a violation of international law. Such allegations have no legal or factual basis and reflect political motivations. The allegations are particularly troubling since they demonstrate an approach to international law that is less than objective or rigorous. It is only on the basis of an honest respect for the provisions of international law that there can be serious hope for a durable and lasting peace.
This is the considered legal opinion of Prof. Eugene Rostow, who died in 2002.