Are Israel's settlements in the disputed territories illegal?
The Truth About the Geneva Convention
(This essay, originally written on April 6, 1979, and later published in Shmuel Katz's book Battletruth, is just as relevant today as when it was first written.)
[The claim by the State Department's legal adviser] that Jewish settlements in the "occupied Arab lands" are illegal is a distortion both of the relevant facts and of the international agreement Israel is alleged to have contravened: the Fourth Geneva Convention of 1949, "Relative to the Protection of Civilian Persons in Time of War."
The primary fact about this convention is that it is not relevant to Jewish settlements in Judea, Samaria and Gaza nor, indeed, to the Israeli presence there. The convention's applicability is defined precisely in its second article: "The present convention," it says, "shall apply to cases of partial or total occupation of the territory of a High Contracting Party."
Now Israel did not and does not occupy the territory of a High Contracting Party. True, she wrested the territories from Jordan and Egypt, but these territories did not belong to them.
They acquired them in an act of naked aggression in their invasion of Western Palestine in 1948.
This pact does rather create a dilemma for the [State Department's] legal adviser. It leaves him without a case.
To insist that Article Two is applicable would mean explicitly to condone the 1948 aggression (about whose political and genocidal purpose the invaders made no secret at the time).
What's he to do? The Jewish settlements have to be illegal. Otherwise the Arabs will be annoyed, oil prices might go up, who knows--Saudi Arabia might initiate an embargo.
The solution turns out to be simple: Ignore Article Two, do not quote it, do not mention it, erase it.
The legal adviser consequently boldly insists that the "principles" of the convention "appear applicable whether or not Jordan and Egypt possessed legitimate sovereign rights in respect of these territories." He then announces that the paramount purpose of the convention is "protecting the civilian population of an occupied country."
Having cleared the ground of the unhelpful text of the convention itself, and having amended it to suit his purpose, the legal adviser might now reasonably be expected to follow up with his proofs that Israeli settlements do indeed interfere with, or prevent, or reduce the protection of the Arab population in Judea, Samaria, and Gaza. The reader will wait with bated breath for the lurid details. He will wait in vain. After all his labors, the legal adviser obviously discovered that Jewish settlement has not had any adverse effect on the protection of civilians in the areas. He could, of course, make some up. That kind of thing has been done before. But this is apparently no job for a legal adviser. Therefore he simply leaves the subject, claims nothing, makes no charge, and goes on to the next "proof" of Israeli illegality.
Now indeed comes his tour de force: and here he advances from mere obfuscation to somewhat blatant misrepresentation.
His "exhibit" is Article 49 of the convention-made particularly famous by much debate among international lawyers.
Article 49 had a special history and a specific purpose. It was designed to proscribe actions of a specific nature that had characterized the Nazi occupation in Europe. They had deported people, sometimes whole communities, some to Germany, others to occupied territory, some to labor as slaves, some to be killed.
The first paragraph of Article 49 therefore lays down that: "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 motives."
In some cases, the Nazis transferred Germans into the occupied territories to replace and "inherit" from the expelled local population.
The last paragraph of the Article, therefore, proceeds to prohibit this type of action. Paragraph 6 says: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
It is on this sixth paragraph of Article 49 that the U.S. Government hangs its charge of illegality against Jewish settlement in Judea, Samaria, Gaza, Sinai and the Golan Heights.
The legal adviser obviously realizes that the bare text itself (about deportation or transfer of parts of a civilian population) is hardly a reasonable description of how the groups of young Jewish men and women went up to the Golan Heights, and down to the Jordan Valley and on to the bare hills of Samaria.
Without noticeably blinking an eyelid, he, therefore, seriously suggests that it is enough that the government was involved in the location of settlements, in making land available to them and in financing them in order to qualify as a government that meets the criteria of paragraph 6, that is, of "deporting or transferring parts of its own civilian population into the territory it occupies."
Far more grave is his pretence that he does not know the background and the significance of the form of words used in Article 49, nor what the specific purpose of the whole article was. Indeed, he denies there was such a purpose. He writes: "Another view of Paragraph 6 is that it is directed against mass population transfers, such as occurred in World War II for political, racial and colonization ends; but there is not apparent support or reasons for limiting its application to such cases."
This is simply not true. This is not "another view" (though the thrust of the text makes such a "view" unanswerable). It is the official explanation for the drafting of Article 49.
It is hard to believe that the legal adviser to the State Department has not read the official Red Cross commentary on the Geneva convention (even if only for his brief on Israeli illegality). It was the Red Cross that organized the diplomatic conference in 1949 in Geneva where the convention was adopted, and the commentary it prepared at that time is the official authoritative source for the background and the meaning and the purpose of its provisions.
On Paragraph 6 of Article 49, the commentary says: "It 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 or racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race."
Shmuel Katz, the author of numerous books and articles about Israel, is former Adviser on Information to the Prime Minister and former columnist for the Jerusalem Post and Ma'ariv.
(Note: During the years since Syria began its occupation of Lebanon, the Syrian government has forcibly transferred hundreds of thousands of Syrian citizens to Lebanon, in clear violation of the Fourth Geneva Convention--yet there has not been the slightest protest from the international community.)
Are Israel's Settlements Legal?
Eugene V. Rostow (U.S. Undersecretary of State for Political Affairs, 1966-1969)
(C) The New Republic (1991)
Assuming the Middle East conference actually does take place, its official task will be to achieve peace between Israel and its Levantine neighbors in accordance with Security Council Resolutions 242 and 338. Resolution 242, adopted after the Six-Day War in 1967, sets out criteria for peace-making by the parties; Resolution 338, passed after the Yom Kippur War in 1973, makes resolution 242 legally binding and orders the parties to carry out its terms forthwith.
Unfortunately, confusion reigns, even in high places, about what those resolutions require.
For twenty-four years Arab states have pretended that the two resolutions are "ambiguous" and can be interpreted to suit their desires. And some European, Soviet and even American officials have cynically allowed Arab spokesman to delude themselves and their people--to say nothing of Western public opinion--about what the resolutions mean. It is common even for American journalists to write that Resolution 242 is "deliberately ambiguous," as though the parties are equally free to rely on their own reading of its key provisions.
Nothing could be further from the truth. Resolution 242, which as undersecretary of state for political affairs between 1966 and 1969 I helped produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until "a just and lasting peace in the Middle East" is achieved. When such a peace is made, Israel is required to withdraw its armed forces "from territories" it occupied during the Six-Day War--not from "the" territories nor from "all" the territories, but from some of the territories, which included the Sinai Desert, the West Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.
Five-and-a-half months of vehement public diplomacy in 1967 made it perfectly clear what the missing definite article in Resolution 242 means. Ingeniously drafted resolutions calling for withdrawals from "all" the territories were defeated in the Security Council and the General Assembly. Speaker after speaker made it explicit that Israel was not to be forced back to the "fragile" and "vulnerable" Armistice Demarcation Lines, but should retire once peace was made to what Resolution 242 called "secure and recognized" boundaries, agreed to by the parties.
In negotiating such agreements, the parties should take into account, among other factors, security considerations, access to the international waterways of the region, and, of course, their respective legal claims.
Resolution 242 built on the text of the Armistice Agreements of 1949, which provided (except in th case of Lebanon) that the Armistice Demarcation Lines separating the military forces were "not to be construed in any sense" as political or territorial boundaries, and that "no provision" of the Armistice Agreements "Shall in any way prejudice the right, claims, and positions" of the parties "in the ultimate peaceful settlement of the Palestine problem." In making peace with Egypt in 1979, Israel withdrew from the entire Sinai, which had never been part of the British Mandate.
For security it depended on patrolled demilitarization and the huge area of the desert rather than on territorial change. As a result, more than 90 percent of the territories Israel occupied in 1967 are now under Arab sovereignty. It is hardly surprising that some Israelis take the view that such a transfer fulfills the territorial requirements of Resolution 242, no matter how narrowly they are construed.
Resolution 242 leaves the issue of dividing the occupied areas between Israel and its neighbors entirely to the agreement of the parties in accordance with the principles it sets out. It was, however, negotiated with full realization that the problem of establishing "a secure and recognized" boundary between Israel and Jordan would be the thorniest issue of the peace-making process. The United States has remained firmly opposed to the creation of a third Palestinian state on the territory of the Palestine Mandate. An independent Jordan or a Jordan linked in an economic union with Israel is desirable from the point of view of everybody's security and prosperity. And a predominantly Jewish Israel is one of the fundamental goals of Israeli policy. It should be possible to reconcile these goals by negotiation, especially if the idea of an economic union is accepted. The Arabs of the West Bank could constitute the population of an autonomous province of Jordan or of Israel, depending on the course of the negotations.
Provisions for a shift of populations or, better still, for individual self-determination are a possible solution for those West Bank Arabs who would prefer to live elsewhere. All these approaches were explored in 1967 and 1968. One should note, however, that Syria cannot be allowed to take over Jordan and the West Bank, as it tried to do in 1970.
The heated question of Israel's settlements in the West Bank during the occupation period should be viewed in this perspective. The British Mandate recognized the right of the Jewish people to "close settlement" in the whole of the Mandated territory. It was provided that local conditions might require Great Britain to "postpone" or "withhold" Jewish settlement in what is now Jordan. This was done in 1992. But the Jewish right of settlement in Palestine west of the Jordan river, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors. And perhaps not even then, in view of Article 80 of the U.N. Charter, "the Palestine article," which provides that "nothing in the Charter shall be construed . . . to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments . . ."
Some governments have taken the view that under the Geneva Convention of 1949, which deals with the rights of civilians under military occupation, Jewish settlements in the West Bank are illegal, on the ground that the Convention prohibits an occupying power from flooding the occupied territory with its own citizens. President Carter supported this view, but President Reagan reversed him, specifically saying that the settlements are legal but that further settlements should be deferred since they pose a psychological obstacle to the peace process.
In any case, the issue of the legality of the settlements should not come up in the proposed conference, the purpose of which is to end the military occupation by making peace. When the occupation ends, the Geneva Convention becomes irrelevant. If there is to be any division of the West Bank between Israel and Jordan, the Jewish right of settlement recognized by the Mandate will have to be taken into account in the process of making peace.
This reading of Resolution 242 has always been the keystone of American policy. In launching a major peace initiative on September 1, 1982, President Reagan said, "I have personally followed and supported Israel's heroic struggle for survival since the founding of the state of Israel thirty-four years ago: in the pre-1967 borders, Israel was barely ten miles wide at its narrowest point. The bulk of Israel's population lived within artillery range of hostile Arab armies. I am not about to ask Israel to live that way again."
Yet some Bush administration statements and actions on the Arab-Israeli question, and especially Secretary of State James Baker's disastrous speech of May 22, 1989, betray a strong impulse to escape from the resolutions as they were negotiated, debated, and adopted, and award to the Arabs all the territories between the 1967 lines and the Jordan river, including East Jerusalem. The Bush administration seems to consider the West Bank and the Gaza Strip to be "foreign" territory to which Israel has no claim. Yet the Jews have the same right to settle there as they have to settle in Haifa.
The West Bank and the Gaza Strip were never parts of Jordan, and Jordan's attempt to annex the West Bank was not generally recognized and has now been abandoned. The two parcels of land are parts of the Mandate that have not yet been allocated to Jordan, to Israel, or to any other state, and are a legitimate subject for discussion.
The American position in the coming negotiations should return to the fundamentals of policy and principle that have shaped American policy towards the Middle East for three-quarters of a century. Above all, rising above irritation and pique, it should stand as firmly for fidelity to law in dealing with the Arab-Israeli dispute as President Bush did during the Gulf war. Fidelity to law is the essence of peace, and the only practical rule for making a just and lasting peace.
Get the word out
Shmuel Katz, Jerusalem Post
Dec. 17, 2001
When Menachem Begin paid his first visit to president Jimmy Carter as prime minister, Carter spent much of the time pressing Begin to "freeze the settlements."
Begin's reply was simple: "You, Mr. President, have in the United States a number of places with names like Bethlehem, Shiloh, and Hebron, and you haven't the right to tell prospective residents in those places that they are forbidden to live there. Just like you, I have no such right in my country. Every Jew is entitled to settle wherever he pleases."
Nevertheless the Carter administration launched a veritable propaganda campaign to spread the "ruling" that Jewish settlement in the West Bank - that is, Judea and Samaria - and in the Gaza Strip were illegal (in addition to being an "obstacle to peace").
Most of the media willingly fell into line. Following opposition and protest from various quarters, the Carter administration recognized that if one talks of illegality one must provide chapter and verse. Thus the State Department came up with the Fourth Geneva Convention as proof.
But the Fourth Geneva Convention proves nothing of the sort. It proves the opposite. The Fourth Geneva Convention does not apply to Israel and its presence in Judea, Samaria, and the Gaza district. The convention defines itself strictly in its second clause: "The present convention shall apply to cases of partial or total occupation of the territory of a High Contracting Party."
Judea, Samaria, and Gaza, which Israel occupied in 1967, were not territories of a High Contracting Party. Judea and Samaria did not belong to Trans-Jordan nor did Gaza belong to Egypt. In the war of Pan-Arab aggression in 1948, Trans-Jordan had invaded Judea and Samaria, occupied them and, in blatant illegality, annexed them. It then celebrated the annexation by changing its name to Jordan. Egypt had similarly annexed the Gaza district. The annexations of course gave Trans-Jordan and Egypt no rights of sovereignty. Israel's presence in the West Bank and Gaza is perfectly legal.
Indeed, the last sovereign of both areas was the Ottoman Turkish Empire. Defeated in World War I, it had relinquished sovereignty over vast areas including Palestine; Palestine was handed over to the British to govern as a trustee - a mandatory for the purpose of bringing about the "reconstitution of the Jewish National Home."
When Britain retired from the Mandate, Jewish historical rights which the Mandate had recognized were not canceled; and no new sovereign ever took over in Judea and Samaria or in Gaza.
The legal adviser of the State Department, called upon to defend the Carter claim that Jewish settlement in the West Bank and Gaza was illegal, got over the difficulty by simply ignoring Article 2 of the convention. In his opinion he didn't even mention it. He loftily declared that "the principles of the convention appear applicable whether or not Jordan and Egypt possessed legitimate sovereign rights in respect of the territories." No less.
Further on in his statement, he markedly avoided mentioning that in 1967 it was once again the aggressors of 1948 who attacked Israel (then confined to the narrow armistice lines of 1949). He did mention the Six Day War of 1967, but how? He wrote: "During the June 1967 war, Israeli forces occupied Gaza, the Sinai peninsula, the West Bank, and the Golan Heights." That was all. Not a word about who started the war or about its flaunted gruesome purpose: the destruction of Israel.
The continuing smear on Israel on the part of the government was brought to an end by the successor administration of Ronald Reagan, who personally had strongly and repeatedly denounced it. His administration issued a declaration that Israeli settlements were not illegal (though they were regarded as "an obstacle to peace").
A prominent member of the administration, law professor Eugene Rostow - himself a former assistant secretary of state - subsequently wrote: "Israel has a stronger claim to the West Bank than any other nation or would-be nation [and] the same legal right to settle the West Bank, the Gaza strip and east Jerusalem as it has to settle Haifa or west Jerusalem."
But the damage was done; and never did Israel launch a counter-campaign to lay bare the monstrous falsity of Arab historical claims, their grave annihilatory intent towards Israel, the skewed misleading interpretation of the Fourth Geneva Convention and the effort to acquit the Arabs of their aggression. Never a serious reply to Arab fabrications point by point so as to combat the widespread ignorance among even our own people. Never an educational campaign to demonstrate the unique roots of our people in Eretz Yisrael.
The policies of government after government encouraged the Arabs to believe that we were weakening in the belief of the justice of our cause, and on the other hand played down the repeated declarations of Arab leaders, from Abdel Nasser to Yasser Arafat, that their objective was the demolition of Israel. Our leaders talked of compromise. The Arabs saw compromise as a station on the road to complete Israeli surrender - something which, but for the hardening of Arafat's heart, almost occurred last year.
But the change that has taken place in the international political climate since the US tragedy of September 11, which has helped people abroad to understand the unique nature of our place in the world, gives us a chance to meet squarely the bitter struggle ahead of us.
Moreover, a great majority of the people in Israel has been shocked into recognizing the Arabs' lethal purpose. The government however must realize that it is essential that the physical, the military struggle, be accompanied by a sane national policy of information - to tell our people, and the rest of the world, at every step of the way, the whys and the wherefores of our existence, our actions and our beliefs.