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 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.
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.
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.
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.
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.
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.
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.