The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords

Alan Baker
JCPA
Vol. 10, No. 20
05 January '11

- Palestinian representatives at the UN have prepared a draft resolution that will seek to declare that Israeli settlements are "illegal and constitute a major obstacle to the achievement of peace." The issue of the legality of Israel's settlements policy has long been a central issue on the agenda of the international community.

- It is claimed that settlements are a violation of the Fourth Geneva Convention Relative to the Protection of Civilians (1949). But both the text of that convention, and the post-World War II circumstances under which it was drafted, clearly indicate that it was never intended to refer to situations like Israel's settlements. According to the International Committee of the Red Cross, Article 49 relates to situations where populations are coerced into being transferred. There is nothing to link such circumstances to Israel's settlement policy.

- During the negotiation on the 1998 Rome Statute of the International Criminal Court, Arab states initiated an addition to the text in order to render it applicable to Israel's settlement policy. This was indicative of the international community's acknowledgment that the original 1949 Geneva Convention language was simply not relevant to Israel's settlements.

- The continued reliance by the international community on the Geneva Convention as the basis for determining the illegality of Israel's settlements fails to take into account the unique nature of the history, legal framework, and negotiating circumstances regarding the West Bank.

- A special regime between Israel and the Palestinians is set out in a series of agreements negotiated between 1993 and 1999 that are still valid - that govern all issues between them, settlements included. In this framework there is no specific provision restricting planning, zoning, and continued construction by either party. The Palestinians cannot now invoke the Geneva Convention regime in order to bypass previous internationally acknowledged agreements.

Palestinian representatives at the UN have prepared a draft resolution dated December 21, that will seek to declare that Israeli settlements are "illegal and constitute a major obstacle to the achievement of peace."1 The claim is not new. The issue of the legality of Israel's settlements and the rationale of Israel's settlements policy have for years dominated the attention of the international community. This has been evident in countless reports of different UN bodies, rapporteurs, and resolutions,2 as well as in political declarations and statements by governments and leaders. In varying degrees, they consider Israel's settlements to be in violation of international law, specifically Article 49 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of August 12, 1949.3

But apart from the almost standardized, oft-repeated, and commonly accepted clichés as to the "illegality of Israel's settlements," or the "flagrant violation" of the Geneva Convention, repeated even by the International Court of Justice,4 there has been little genuine attempt to elaborate and consider the substantive legal reasoning behind this view. Yet there are a number of very relevant factors that inevitably must be considered when making such a serious accusation against Israel. These factors include:

- the text of the sixth paragraph of Article 49 of the Fourth Geneva Convention and the circumstances of, and reasons for, its inclusion in the Convention in December 1949;

- the unique circumstances of the territory and the context of the Israeli-Palestinian relationship that has developed since 1993 through a series of agreements between them. These agreements have created a sui generis framework that, of necessity, influences and even overrides any general determinations unrelated to that framework.

What Does Article 49 of the Fourth Geneva Convention Say?

Immediately after the Second World War, the need arose to draft an international convention to protect civilians in times of armed conflict in light of the massive numbers of civilians forced to leave their homes during the war, and the glaring lack of effective protection for civilians under any of the then valid conventions or treaties.5 In this context, the sixth paragraph of Article 49 of the Fourth Geneva Convention states:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.6

What is the exact meaning of this language?

(Read full "The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords")

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