Since the occupation (1967) and even after the signing of the
Israeli-Palestinian interim agreements (1993) and during their
implementation, Israel, more precisely its army, has had total
control over all the Israeli settlements in the West Bank and the
Gaza Strip.2 Until a final agreement is signed, the international
law applicable to the status of Israeli settlement is international
humanitarian law. Two major international instruments, which relate
to the treatment of civilians during war, deal with the subject:
the Hague Regulations (1907) and the Fourth Geneva Convention
(1949).
Applicability of the International Humanitarian
Conventions to the Occupied Territories
Israel's position on the applicability of these two agreements
confuses two issues:
a. The question of whether these instruments apply to Israel's acts
in the occupied territories; that is, does Israel's control of the
occupied territories constitute "occupation" according to these
agreements?
In 1971, Meir Shamgar, Israel's attorney general at the time and
later justice and president of its Supreme Court, framed Israel's
formal position on this point: the Hague Regulations and the Fourth
Geneva Convention apply only when the areas had a legitimate
sovereign government. Since Egyptian and Jordanian sovereignty over
the land occupied by Israel in 1967 had never been recognized, and
most countries (excepting Britain and Pakistan) had considered
their control to be illegitimate, these territories could not,
therefore, be considered "occupied territory" once Israel seized
control. Shamgar claimed that Israel is not bound by international
law to comply with the Hague Regulations and the Fourth Geneva
Convention. Nevertheless, Shamgar added, Israel would comply de
facto with the "humanitarian provisions" of these two instruments.
The applicable provisions have never been specified.
b. The question of whether Israeli courts have "jurisdiction" to
decide matters under these international agreements; that is, are
the instruments part of Israel's municipal law, which would empower
Israeli courts to adjudicate, in accordance with the instruments,
the government's actions?
As Regards the Hague Regulations
Since the Beit El case in 1978, the High Court of Justice (HCJ) has
considered the Hague Regulations of 1907 as part of customary
international law, i.e., as part of the principles of conduct
binding all states, including those not party to any agreements
dealing with these matters. Customary international law is broadly
applied because it reflects a consistent legal policy of most
states as regards what is permitted and what is prohibited and, in
the case of humanitarian law, what is permitted and prohibited
during war. When the High Court of Justice recognized the Hague
Regulations as a reflection of customary international law, they
thus became justiciable by it.
The HCJ examined, therefore, Israeli policy in the occupied
territories in the light of the Hague Regulations. Though the
government should have opposed this, since the Hague Regulations
deal with "Military Authority over the Territory of the Hostile
State," just as the Fourth Geneva Convention does, the government
never opposed the "justiciability" of the Hague Regulations by the
HJC, or referred to one regulation or another as "humanitarian" or
as not being such.
As Regards the Fourth Geneva Convention
Contrary to the Hague Regulations, the HCJ views the Geneva
Convention as belonging, as a rule, only to treaty-based law, i.e.,
they are included among those instruments that bind only the State
Parties (Israel being among them). Since the Knesset has not yet
"adopted" the Fourth Geneva Convention, the HCJ ruled that it is
not justiciable in the local courts. Once the HCJ determined that
the Geneva Convention is not justiciable before it, the court
refrained, as a rule, from deliberating over its provisions.
B'Tselem's Position
B'Tselem maintains that the HCJ should reexamine the status of the
Fourth Geneva Convention to determine whether it has become part of
customary international law. Reconsideration is necessary due to
the following facts:
* Almost every state has signed the Geneva Convention;
* The vast majority of states have unequivocally supported the
provisions of the Fourth Geneva Convention (for example, in
decisions of the UN General Assembly and Security Council, among
them decisions against Iraq and Israel);
* No states or legal experts have contended that compliance with
these provisions is not required;
* A body of comprehensive human-rights legislation has developed,
some of which duplicates provisions of the Geneva Conventions, and
many of whose provisions is not required;
* International humanitarian law has continued to develop, the
development being largely based on the Geneva Conventions,
particularly the protocols added to them in 1977, to which most
states became party.
More extensive discussion of the justiciability of the Fourth
Geneva Convention in Israeli courts is unnecessary here, as the
non-justiciability of a convention in local courts does not detract
from the state's international obligation to comply with it. The
Israeli Supreme Court shares this position.
B'Tselem shares the position held by other human-rights
organizations and the international community that Israel must
fully comply with the Geneva Convention as well as the Hague
Regulations, and that the Israeli government's refusal to recognize
that the Fourth Geneva Convention applies to the occupied
Palestinian territories is a serious and dangerous evasion of its
obligation as a member of the international community. Without
providing a detailed legal brief, we shall present the main
arguments supporting this position.
a. Compliance with the entire Geneva Convention as a single unit
that should be complied with in full
Israel's undertaking to comply only with the "humanitarian
provisions" of the Fourth Geneva Convention implies a division of
the Convention into "humanitarian parts," in the words of Justice
Barak, and to those that supposedly are not included within that
category, which are not binding.
Humanitarian law, including the Fourth Geneva Convention, is, by
definition and nature, entirely humanitarian, and deals with the
most difficult and dangerous situation in relations between nations
and war. War inevitably results in harm to individuals and their
rights. The humanitarian law conventions are intended to establish
the maximum borders of this harm that the international community
is willing to accept, and to enable, even under war conditions,
protection of basic rights and human dignity. Israel's position,
which holds that under certain circumstances it is permissible to
transgress and disregard these borders, contradicts these
principles and must be rejected outright.
Moreover, a division of the Geneva Convention into "humanitarian"
and "non-humanitarian" parts opens a dangerous path, which any
state party to this humanitarian convention can exploit to evade
its undertakings, and to decide which provisions it wishes to
implement, and which it does not.
b. Previous sovereignty over the occupied territory does not
affect applicability of the Convention
The laws relating to occupation, or "belligerent occupation," do
not condition their application on recognition of sovereignty of a
power that controlled the territory prior to occupation.
The Fourth Geneva Convention does not deal with questions like who
initiated the war or which side was justified in fighting the war,
nor does it relate to the status of the territory prior to the
conflict. The Convention defines "protected persons" as
follows:
Persons protected by the Convention are those who, at a given
moment and in any manner whatsoever, find themselves, in case of a
conflict or occupation, in the hands of a Party to the conflict or
Occupying Power of which they are not nationals [writers'
emphasis].
Israel's position, based on the argument that the Fourth Geneva
Convention is not applicable to territory that had not been under
the control of another recognized sovereign prior to occupation,
is, therefore, insupportable.
c. Broad international agreement that the Convention applies to
the Occupied Territories
Consensus exists among the international community that the Fourth
Geneva Convention applies to the occupied territories. This
consensus also encompasses Israel's closest friends, and has been
expressed, inter alia, in the 1981 resolution of the UN General
Assembly, supported by 141 states, which only one state opposed.
The International Committee of the Red Cross, which is charged with
implementing the Convention, considers the Convention to be
applicable in the occupied territories, as do the vast majority of
international law experts who have expressed their opinion on this
matter.
Israel stands alone in accepting Shamgar's interpretation, which
most leading jurists in Israel also dispute.
If Israel does not intend to harm residents of the occupied
territories by violating the Fourth Geneva Convention, it has no
reason not to undertake to implement all of its provisions, even
without recognizing its applicability to the occupied territories.
Israel's failure to define the Convention's provisions it considers
to be "humanitarian provisions" reinforces the suspicion that it
had adopted its position only to try to evade complying even with
those, and to grant the government almost free rein in the occupied
territories, allowing it to disregard the protection granted their
residents by the Convention.
International Law on the Legality of Settlements
Israeli settlement in the occupied territories violates two
principles of international humanitarian law: the prohibition on
the transfer of civilians from the occupying power to the territory
occupied, and the prohibition on creating in the occupied territory
permanent change that does not benefit the local population.
a. Prohibition on transferring civilians from the territory of
the occupying power to the occupied territory
Article 49 of the Fourth Geneva Convention explicitly stipulates
that transfer of citizens of the occupying power, and even housing
them temporarily in the occupied territory, is permitted, but only
to assist the military administration in the occupied territory.
Prof. Yoram Dinstein, an Israeli authority, maintains that
"…where the occupation extends for a lengthy period, it is
acceptable to bring civilian professionals who will operate within
the framework of the military administration, and will assist it in
various matters." The Jewish settlers in the occupied territories
clearly do not come, as a whole, within this category of
persons.
Dinstein contends that the intention of the article is "to prevent
basic demographic change in the occupied territory's population
structure." Consequently, he argues, "it is not necessarily wrong"
where there is "voluntary settlement, little by little, of
civilians of the occupying power in the occupied territory…
if it is neither done by the government of the occupying power nor
in an official manner."
Dinstein's interpretation is problematic from two perspectives:
First, the Fourth Geneva Convention defines "protected persons" as
the residents of an occupied territory (and not the civilian
population of the occupying power), and the goal of Article 49 is
to protect them from civilians of the occupying power who settle on
their land.
Second, Dinstein's interpretation is inconsistent with the language
of Article 49. Contrary to the prohibition on deportation of
protected persons from the occupied territory, stated at the
beginning of the article, which prohibits "individual or mass
forcible transfers, as well as deportations of protected persons
[writers' emphasis]," the end of the article stipulates that the
occupying power "shall not deport or transfer" its civilians into
the territory it occupies. The prohibition on transferring a
civilian population from the occupying power to the occupied
territory is, therefore, broader, and also includes non-forcible
transfers.
However, even if Dinstein's interpretation is accepted, the lenient
conditions he presents are not met in the case of Israeli
settlement in the occupied territories:
1. The declared purpose of the settlers, like that of Israeli
governments that establish the settlements, was and continues to be
to create "basic demographic change in the population structure."
Such a change was actually accomplished, at least in those areas in
which there is congested Israeli settlement.
2. The Israeli government initiated most of the Jewish settlement
in the occupied territories. All of the relevant ministries and
authorities assisted by expropriating land, planning,
implementation, and financing. The various Israeli governments
encouraged and continue to encourage Israeli civilians to move to
the occupied territories by providing benefits, like grants and
loans under favorable terms.
Even where the settlers, rather than the government, established
the settlements (as in the cases of Kedumim, Shilo, and Ofra), the
government acted retroactively to turn them into permanent
settlements. To achieve this, the government assisted with planning
the infrastructure, with the establishment of public buildings and
institutions, with the expropriation of land to expand the
settlements, and by encouraging other Israeli civilians to live
there.
This cannot be considered "voluntary settlement" of private
persons. Consequently, the act of settlement in the occupied
territories breaches Article 49 of the Fourth Geneva Convention
even when it is narrowly construed.
b. Prohibition on creating in occupied territory permanent
changes not intended to benefit the local population
A fundamental principle of international humanitarian law relating
to territory subject to belligerent occupation is, according to
Jean S. Pictet, an international legal authority, that "the
occupation of territory in wartime is essentially a temporary de
facto situation." The temporary nature of occupation entails
limitations imposed on the occupying power regarding the creation
of permanent facts in the occupied territory on private or
government property.
"Underlying all the limitations," Dinstein writes, "is the idea
that the occupying power is not the sovereign in the territory."
Consequently, the occupying power may not commit any act that
constitutes "unilateral annexation of all or part of the occupied
territory."
The High Court of Justice also recognizes the temporary nature of
the occupation. Justice Barak held that the powers of the military
commander "are, legally, temporary by their nature, since
belligerent occupation is temporary by its nature."
Since it has never been contended that the settlements were
established to benefit the residents of the occupied territories,
the legal justification for their establishment must be that they
were intended for security needs. In petitions to the HCJ regarding
settlements established on privately owned land, the court adopted
the State's contention that the settlements are temporary and are
militarily necessary, and approved their establishment.
The High Court of Justice - The Judicial Approval for Israeli
Settlement
The legal discussions in the High Court of Justice on the
settlements focused primarily on those established in the 1970s on
private expropriated land on the pretext of military necessity. The
HCJ granted approval in principle to expropriations for that
purpose and for the establishment of civilian settlements on the
expropriated land. As of the end of the 1970s, most of the
settlements were established on "state lands," and the HCJ also
approved this procedure. In this way, the HCJ legitimized Jewish
settlement and ultimately blocked all judicial means to oppose
it.
a. The 1970s: settlement on private land as a "temporary act to
meet security needs"
During the 1970, residents of the occupied territories whose land
had been taken to erect settlements filed several petitions with
the HCJ. In all of its judgments, the HCJ held that expropriating
private land for the purpose of establishing a civilian settlement
is legal as long as it is for military needs and is
temporary.
The three main judgments issued on this subject were in the Pithat
Rafah, Beit El, and Elon Moreh cases.
Pithat Rafah
In the Pithat Rafah case, the army ordered Bedouin tribes to move
from their places of residence in order to establish a "partition
zone" between Sinai and the Gaza Strip. Nine heads of these tribes
petitioned the HCJ.
For the first time, and for what would serve as a long-standing
precedent, the HCJ ruled that civilian settlement in the occupied
territories is legitimate as a security measure.
Beit El
In the Beit El case, several landowners petitioned the HCJ against
the requisition of their land to build the Beit El and Beqa'ot
settlements. In both instances, the military commander of the
region issued an order in which he held that the lands were
required for "necessary and urgent military needs." The HCJ
rejected the petition, accepting the State's argument that
requisition of the land was temporary and intended to meet security
needs.
The HCJ further held that requisition of the land was also legal
under international law.
Elon Moreh
About six months after ruling in Beit El, the HCJ issued its
judgment in the matter of Elon Moreh. This judgment ended the
requisition of private property to establish new settlements.
In January of 1979, the Elon Moreh founders attempted to establish
a settlement in the northern part of the West Bank. When the
military forbade the establishment of the settlement, the group
refused to evacuate the site.
On the morning of June 7, 1979, construction of the settlement
began and the requisition orders were served on the residents. On
June 14, 1979, the landowners petitioned the HCJ.
In its opinion, the justices repeated the comments made in Beit El
that requisition of private land to establish a civilian settlement
is legal a long as the requisition is temporary and is intended to
meet military needs. However, unlike earlier petitions, the
justices found in favor of the petitioners after holding that, in
this instance, the orders were not intended to meet military needs
and the settlement was intended to be permanent.
Justice Landau held that in this instance, the primary reasons for
the requisitioning of the land were the ideology of the
decision-makers (the Ministerial Committee for Settlement Matters)
and the pressure of Gush Emunim (a religious group that established
and populated Jewish settlements in the occupied territories) to
establish the settlement, and not security needs:
Basing its decision on the way in which the government had reached
its decision to establish the settlement, and on the fact that the
justices were not convinced that in this instance there was a
military necessity for the settlement, the HCJ ordered the IDF to
evacuate the settlement and return the land to its owners. The
government was compelled to find an alternative site to establish
the Elon Moreh settlement, and this was done.
Criticism
The late Yitzhak Rabin, as prime minister and defense minister,
held that most of the settlements added nothing to security, and
even were a burden on the army. Annexed to the various petitions to
the HCJ were affidavits of former generals who questioned the
contention that there was a security need to establish
settlements.
The HCJ's ruling that establishment of a "permanent settlement"
does not "create permanent facts" emasculates the relevant
provisions of international law. Military actions in occupied
territory, among them the establishment of camps and facilities,
and even housing military personnel, are temporary in both form and
content, and are allowed, as mentioned earlier, under international
law. However, building permanent civilian settlements and housing
civilians in them constitutes a patent act of creating permanent
facts, which is prohibited under international law.
The HCJ time and again accepted the government's position that the
settlements are temporary, and elected to disregard the "matters
that are common knowledge to every Israeli citizen," such as the
government's unambiguous out-of-court declarations, on
"establishment of security encampments and permanent settlements,
rural and urban, on the soil of the homeland."
What the expropriation or requisition of tens of thousands of
dunams, the establishment of thousands of residential dwellings and
public buildings, the settlements of thousands of Jews, the
establishment of cemeteries in some of the the settlements, and the
numerous explicit declarations of settlers and politicians,
concerning the eternal nature of settlements, failed to accomplish,
one affidavit of the settlers on the eternal nature of their
settlement succeeded in doing, and it was that which created "a
legal obstacle that cannot be over come."
b. The 1980s and 1990s: Settlement on "state lands"and
neutralizing the HCJ
Shortly after the decision in Elon Moreh, the government overcame
this legal obstacle. When the government learned that widescale
requisition of private land to establish settlements would have to
ensure in each instance that the military heads initiated the
requisition of land, and that the settlers who would populate the
settlements were willing to refrain from declaring that their
purpose was to create permanent settlements, the government changed
tactics. It abandoned the "security" justification for establishing
the settlements, and turned to extensive settlement on "state
land." To accomplish this, Israel began a process of "proclaiming
lands to be state lands," the primary goal being to expand the
amount of land considered "state lands" in the occupied
territories.
The process worked as follows: The Civil Administration's
supervisor of government property made the "proclamation of land as
state lands" following an examination, based on the Ottoman Lands
Law of 1855, by the Civil Division of the State Attorney's Office.
The residents had 45 days in which to appeal the decision to the
Military Appeals Committee. If no appeal was filed, possession of
the land passed to the military. If an appeal was filed, the matter
was heard by an Appeals Committee appointed for that purpose, the
person claiming ownership having the burden of proof.
This procedure had numerous flaws. It was not provided for in
Jordanian law; it circumvents the procedure of land registration
under this law, a procedure which the military commander in the
West Bank froze ("suspended," in the order's terminology); it
imposes the burden of proof regarding land registration and use on
the person claiming ownership; and disregards landowners who are
outside the occupied territories at the time the procedure is being
conducted.
Under international law, where a question arises as to whether land
is publicly or privately owned, it is considered public unless
proven otherwise. Ownership of two-thirds of West Bank land is not
recorded in an orderly manner and results from long-term
possession. Thus, placing the burden of proof as to ownership on
the residents eases the path for the State when it proclaims land
to be public.
Indeed, as a result of the proclamation procedure, "state lands"
increased substantially. Prior to the Israeli occupation, 527,000
dunums of land in the West Bank, whose total area encompassed some
5.5 million dunums, were recorded as Jordanian government lands.
According to data collected by Meron Benvenisti and Shlomo Khayat,
by 1973, the amount of "state lands" had increased to some 700,000
dunums. Most of the increase, however, occurred in the early 1980s.
By 1984, the amount of lands that had been proclaimed and taken as
"state lands" had reached, according to Benvenisti and Khayat, 1.8
million dunums. According to data of the Yesha (Judea, Samaria, and
Gaza Strip) Council, at the beginning of 1993, some 2.5 million
dunums of the West Bank were "state land," an increase of 450
percent since 1967. In other words, the area of "state lands" in
the West Bank increased, according to those sources, from about 10
percent to about 450 percent.
The HCJ rejected arguments that the procedure of proclaiming "state
lands" was illegal under both the international law and military
law applying in the occupied territories.
While the HCJ had previously found it necessary to intervene in the
procedure of requisitioning private land in order to protect the
owner's property rights, now, when the settlements are being built
on what is declared to be "state property," the HCJ refrained from
intervening. From the moment that it found the proclamation
procedure lawful, i.e., that the State owned the lands, the HCJ did
not recognize the locus standi of Palestinian residents in matters
dealing with the use made of the land, even if they had previously
claimed ownership, because no petitioner could prove that the use
harmed him or her individually.
Criticism
It was the procedure of "proclaiming land state lands" that enabled
the massive settlement in the 1980s and thereafter.
Article 55 of the Hague Regulations, which deals with public land,
allows exploitation of lands insofar as "enjoyment of their fruits"
(usufruct) is concerned, and is, therefore, only temporary. In
contrast, the settlements are established, as mentioned previously,
as permanent settlements in every regard, with "state lands" being
leased to the settlers for 49 years, like lands leased by the
Israel Lands Authority to home- and apartment-owners within Israel.
In addition, the perception of permanent settlement established for
settlement of civilians of the occupying power, as "fruits" of the
land, is unreasonable.
Moreover, the use of government property allowed the occupying
power is subject to its obligation "to restore, and ensure, as far
as possible, public order and safety," i.e., to act, where its
security needs do not prevent it, for the welfare of the local
population. Therefore, the use of "state lands," or even the
procedure of "proclaiming land state lands," would be legitimate
only where it is done in conformity with international law and
benefits the Palestinians in the occupied territories. No Israeli
official has yet claimed that the settlements were established for
the benefit of that population.
The government and the HCJ have indeed emphasized both the
occupying power's obligation, under article 55 of the Hague
Regulations, "to safeguard the integrity of public property," and
the principle of international law that, where doubt exists,
property is considered public until proven otherwise, if such
should be the case. However, the reason that lies behind the
procedure of "proclaiming land state lands" should be understood as
attorney Albeck, who headed the Civil Division of the State
Attorney's Office, explained it:
How, then, were a hundred settlements established in such a short
period of time? The answer is that the government directed the
Attorney General to determine whether land is privately owned
before a decision is made to build a settlement on it. Over the
years, it developed that the matter required my own meticulous
examination and approval, rather than that of the Attorney General,
of any area that was required for the purpose of establishing a
Jewish settlement or enlarging a settlement.
In other words, examination of the ownership of land for the
purpose of proclaiming it "state land" was conducted as regards
"any area that was required for the purpose of establishing a
Jewish settlement," and was intended for that purpose. The
proclamation was not, therefore, made to safeguard public property,
but was intended ab initio and intentionally to dispossess the
Palestinian public, whose property the IDF was obligated to protect
under international humanitarian law, and to transfer its permanent
possession to another "public," which had been transferred
illegally from the territory of the occupying power, namely, to the
Jewish settlers.
In its 1993 decision in Bargil, the HCJ refrained from discussing
in principle the act of Jewish settlement, and continued its line
of nonintervention in the process of establishing settlements. This
line, which began when it accepted the State's argument concerning
the military necessity of the settlements and their temporary
nature, continued in one episode of intervention in a specific case
(Elon Moreh), which changed the arrangements for establishing
settlements but not the fact of their establishment, and ended in
nonintervention because of the predominance of "political
matters."
In effect, the HCJ provided judicial approval of the settlements,
in all their forms, thus decisively contributing to the
establishment of settlements in the occupied territories, to the
violation of human rights of the Palestinian residents of the
occupied territories, and to the breach of international law.
Conclusions
The establishment of permanent civilian settlements in the occupied
territories contravenes international humanitarian law. According
to that law, an occupying power is prohibited from transferring
population from its territory into territory it occupies, and from
performing any act that is not intended to meet its military needs
or benefit the local population. In addition, international law
prohibits creating permanent change not intended for the benefit of
that population. In their settlement policy, the various Israeli
governments have violated international law, in general, and
international agreements to which Israel is a party, in
particular.
The HCJ grants legitimacy to civilian settlements under the guise
of "military-security action," the requisition of land under the
guise of "safeguarding the safety of public property," and their
transfer to the permanent possession of settlers under the guise of
"administration of government property" or temporary "enjoyment of
the fruits."
The HCJ ruled in this manner, although it is common knowledge that
the Israeli government had expropriated hundreds of thousands of
dunums of land from Palestinians on which it settled Jews, with the
goal of changing the demography of the region and of creating
political facts on the ground. Israel did all this, as stated
above, in patent violation of both the language and spirit of
international law.
The Israeli-Palestinian agreements, first signed in September of
1993, in effect perpetuated the special status of the settlements,
at least until the parties reach a final agreement. During the
implementation of the interim agreements, Israel evacuated numerous
military bases in the Gaza Strip and throughout the West Bank.
However, it did not evacuate even one settlement. Israel insisted
that all the settlements remain where they are, even where it is
especially difficult to defend the settlers, as in Hebron.
In implementing the interim agreement in the West Bank, Israel has
invested substantial efforts and means to protect the settlements
and their residents. Israel has also expropriated or requisitioned
additional Palestinian lands, both private and public, to expand
and defend settlements, and to build roads bypassing Palestinian
towns and villages in order to increase settlers' security. These
actions ended once and for all the arguments presented by the
various Israeli governments to the HCJ that "military-security
necessity" is involved, for it is clear that the protection of the
settlers cannot be considered a military necessity of an occupying
army. In spite of this obvious fact, the HCJ approved these
expropriations as well.
It is thus clear that the establishment of the settlements was, and
is, a political and not a military act. Its goal, as this report
shows, is to create permanent facts that will perpetuate Israeli
control in the settlement areas. For the time being, this goal has,
to a large extent, been accomplished.
1. Israeli Settlement in the Occupied Territories As a
Violation of Human Rights: Legal and Conceptual Aspects.
2. Jewish settlement in Jerusalem is not dealt with in this
article.
