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by Peter A. Belmont / 2010-04-15
© 2010 Peter Belmont
Are the UN Security Council and the International Court of Justice agreed that Israel’s settlements are illegal? You betcha. So was the US State Department’s Legal Adviser on the only occasion the holder of that office addressed the matter in public.
How many of us knew that the UNSC not only called the settlements violations of international law but went beyond that to call upon Israel (as President Obama has not yet done) to dismantle the existing settlements. Read on! Look for bolded passages.
[1] UN SC Res. 446:
The Security Council,
Having heard the statement of the Permanent Representative of Jordan and other statements made before the Council,
Stressing the urgent need to achieve a comprehensive, just and lasting peace in the Middle East,
Affirming once more that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 1/ is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem,
1. Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity (emphasis added) and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;
2. Strongly deplores the failure of Israel to abide by Security Council resolutions 237 (1967) of 14 June 1967, 252 (1968) of 21 May 1968 and 298 (1971) of 25 September 1971 and the consensus statement by the President of the Security Council on 11 November 1976 2/ and General Assembly resolutions 2253 (ES-V) and 2254 (ES-V) of 4 and 14 July 1967, 32/5 of 28 October 1977 and 33/113 of 18 December 1978;
3. Calls once more upon Israel, as the occupying Power, to abide scrupulously by the 1949 Fourth Geneva Convention, to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem, and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories; (emphasis added)
4. Establishes a Commission consisting of three members of the Security Council, to be appointed by the President of the Council after consultations with the members of the Council, to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem;
5. Requests the Commission to submit its report to the Security Council by 1 July 1979;
6. Requests the Secretary-General to provide the Commission with the necessary facilities to enable it to carry out its mission.
7. Decides to keep the situation in the occupied territories under constant and close scrutiny and to reconvene in July 1979 to review the situation in the light of the findings of the Commission.
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[2] UNSC Res. 465
The Security Council,
Taking note of the reports of the Commission of the Security Council established under resolution 446 (1979) to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, contained in documents S/13450 and Corr. 1 and S/13679,
Taking note also of letters from the Permanent Representative of Jordan (S/13801) and the Permanent Representative of Morocco, Chairman of the Islamic Group (S/13802),
Strongly deploring the refusal by Israel to co-operate with the Commission and regretting its formal rejection of resolutions 446 (1979) and 452 (1979),
Affirming once more that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem,
Deploring the decision of the Government of Israel to officially support Israeli settlement in the Palestinian and other Arab territories occupied since 1967,
Deeply concerned over the practices of the Israeli authorities in implementing that settlement policy in the occupied Arab territories, including Jerusalem, and its consequences for the local Arab and Palestinian population,
Taking into account the need to consider measures for the impartial protection of private and public land and property, and water resources, (emphasis added)
Bearing in mind the specific status of Jerusalem and, in particular, the need for protection and preservation of the unique spiritual and religious dimension of the Holy Places in the city,
Drawing attention to the grave consequences which the settlement policy is bound to have on any attempt to reach a comprehensive, just and lasting peace in the Middle East,
Recalling pertinent Security Council resolutions, specifically resolutions 237 (1967) of 14 June 1967, 252 (1968) of 21 May 1968, 267 (1969) of 3 July 1969, 271 (1969) of 15 September 1969 and 298 (1971) of 25 September 1971, as well as the consensus statement made by the President of the Security Council on 11 November 1976,
Having invited Mr. Fahd Qawasmeh, Mayor of Al-Khalil (Hebron), in the occupied territory, to supply it with information pursuant to rule 39 of the provisional rules of procedure,
1. Commends the work done by the Commission in preparing the report contained in document S/13679;
2. Accepts the conclusions and recommendations contained in the above-mentioned report of the Commission;
3. Calls upon all parties, particularly the Government of Israel, to co-operate with the Commission;
4. Strongly deplores the decision of Israel to prohibit the free travel of Mayor Fahd Qawasmeh in order to appear before the Security Council, and requests Israel to permit his free travel to the United Nations headquarters for that purpose;
5. Determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (emphasis added) and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;
6. Strongly deplores the continuation and persistence of Israel in pursuing those policies and practices and calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem; (emphasis added)
7. Calls upon all States not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories;
8. Requests the Commission to continue to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, to investigate the reported serious depletion of natural resources, particularly the water resources, with a view to ensuring the protection of those important natural resources of the territories under occupation, and to keep under close scrutiny the implementation of the present resolution;
9. Requests the Commission to report to the Security Council before 1 September 1980, and decides to convene at the earliest possible date thereafter in order to consider the report and the full implementation of the present resolution.
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International Court of Justice, advisory opinion of July 9, 2004, states at paragraph 120:
120. As regards these settlements, the Court notes that Article 49, paragraph 6, of the Fourth Geneva Convention provides: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” 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. In this respect, the information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, just cited. The Security Council has thus taken the view that such policy and practices “have no legal validity”. It has also called upon “Israel, as the occupying Power, to abide scrupulously” by the
Fourth Geneva Convention and: “to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories” Resolution 446 (1979) of 22 March 1979). The Council reaffirmed its position in resolutions 452 (1979) of 20 July 1979 and 465 (1980) of
1 March 1980. Indeed, in the latter case it described “Israel’s policy and practices of settling parts of its population and new immigrants in [the occupied] territories” as a “flagrant violation” of the Fourth Geneva Convention.
The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.
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[4] A legal opinion was given in the Letter of the State Department Legal Advisor, Mr. Herbert J. Hansell, Concerning the Legality of Israeli Settlements in the Occupied Territories of 21 April, 1978. International Law Materials (1978) 777-779. In that Letter, the Legal Advisor to the State Department of the United States stated as follows:
(conclusion only here):
Conclusion
While Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with international law.”
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