Initialement publié le 28 décembre 2016 @ 08:46

The approach taken by these organizations is a reflection of the position taken by the Palestinian leadership and some in the international community, who view Israel’s status as that of a “military occupier,” and the settlement endeavor as an entirely illegal phenomenon. This approach denies any Israeli or Jewish right to these territories. To sum up, they claim that the territories of Judea and Samaria are “occupied territory” as defined by international law in that they were captured from the Kingdom of Jordan in 1967. Consequently, according to this approach, the provisions of international law regarding the matter of occupation apply to Israel as a military occupier, i.e. Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907,1 which govern the relationship between the occupier the occupied territory, and the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August (1949).2 

According to the Hague Regulations, the occupying power, while concerning himself with the occupier’s security needs, is required to care for the needs of the civilian population until the occupation is terminated. According to these regulations, it is forbidden in principle to seize personal property, although the occupying power has the right to enjoy all the advantages derivable from the use of the property of the occupied state, and public property that is not privately owned without changing its fixed nature. Moreover, according to this approach, Article 49 of the Fourth Geneva Convention prohibits the transfer of parts of the occupying power’s own civilian population into the territory it occupies.3 Accordingly, in their view, the establishment of settlements carried out by Israel is in violation of this article, even without addressing the type or status of the land upon which they are built.

In this context, we were presented with an approach by some of the abovementioned organizations, whereby they do not accept the premise that the lands that do not constitute personal property are state lands. It was claimed that in the absence of orderly registration of most of the land in Judea and Samaria, and precise registration of the rights of the local inhabitants, it is reasonable to assume that the local population is entitled to benefit from land that is neither defined nor registered as privately owned land. From this it follows that the use of land for the purpose of the establishment of Israeli settlements impinges on the rights of the local population, which is a protected population according to the Convention, and Israel, as an occupying power, is obliged to safeguard these rights and not deny them by exploiting the land for the benefit of its own population.4 

If this legal approach were correct, we would, in accordance with our Terms of reference, be required to terminate the work of this Committee, since in such circumstances, we could not recommend regularizing the status of the settlements. On the contrary, we would be required to recommend that the proper authorities remove them.

However, we were also presented with another legal position, inter alia by the Regavim movement (Attorneys Bezalel Smotritz and Amit Fisher) and by the Benjamin Regional Council (the expert legal opinion of Attorneys Daniel Reisner and Harel Arnon). They are of the view that Israel is not an “Occupying Power” as determined by international law inter alia because the territories of Judea and Samaria were never a legitimate part of any Arab state, including the kingdom of Jordan. Consequently, those conventions dealing with the administration of occupied territory and an occupied populations are not applicable to Israel’s presence in Judea and Samaria.

According to this approach, even if the Geneva Convention applied, Article 49 was never intended to apply to the circumstances of Israel’s settlements. Article 49 was drafted by the Allies after World War II to prevent the forcible transfer of an occupied population, as was carried out by Nazi Germany, which forcibly transferred people from Germany to Poland, Hungary and Czechoslovakia with the aim of changing the demographic and cultural makeup of the population. These circumstances do not exist in the case of Israel’s settlement. Other than the fundamental commitment that applies universally by virtue of international humanitarian norms to respect individual personal property rights and uphold the law that applied in the territory prior to the IDF entering it, there is no fundamental restriction to Israel’s right to utilize the land and allow its citizens to settle there, as long as the property rights of the local inhabitants are not harmed and as long as no decision to the contrary is made by the government of Israel in the context of regional peace negotiations.

Is Israel’s status that of a “military occupier” with all that this implies in accordance with international law? In our view, the answer to this question is no.

After having considered all the approaches placed before us, the most reasonable interpretation of those provisions of international law appears to be that the accepted term “occupier” with its attending obligations, is intended to apply to brief periods of the occupation of the territory of a sovereign state pending termination of the conflict between the parties and the return of the territory or any other agreed upon arrangement. However, Israel’s presence in Judea and Samaria is fundamentally different: Its control of the territory spans decades and no one can foresee when or if it will end; the territory was captured from a state (the kingdom of Jordan), whose sovereignty over the territory had never been legally and definitively affirmed, and has since renounced its claim of sovereignty; the State of Israel has a claim to sovereign right over the territory.

As for Article 49 of the Fourth Geneva Convention, many have offered interpretations, and the predominant view appears to be that that article was indeed intended to address the harsh reality dictated by certain countries during World War II when portions of their populations were forcibly deported and transferred into the territories they seized, a process that was accompanied by a substantial worsening of the status of the occupied population (see HCJ 785/87 Affo et al. v. Commander of IDF Forces in the West Bank et al. IsrSC 42(2) 1; and the article by Alan Baker: “The Settlements Issue: Distorting the Geneva Conventions and Oslo Accords, from January 2011.5)

This interpretation is supported by several sources: The authoritative interpretation of the International Committee of the Red Cross (IRCC), the body entrusted with the implementation of the Fourth Geneva Convention,6 in which the purpose of Article 49 is stated as follows:

“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 and 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.” 

Legal scholars Prof. Eugene Rostow, Dean of Yale Law School in the US, and Prof. Julius Stone have acknowledged that Article 49 was intended to prevent the inhumane atrocities carried out by the Nazis, e.g. the massive transfer of people into conquered territory for the purpose of extermination, slave labor or colonization:7 8 

“The Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War – the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example….The Jewish settlers in the West Bank are most emphatically volunteers. They have not been “deported” or “transferred” to the area by the Government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva Convention to prevent.”(Rostow)

“Irony would…be pushed to the absurdity of claiming that Article 49(6) designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that…the West Bank…must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49(6.).” (Julius Stone)

We are not convinced that an analogy may be drawn between this legal provision and those who sought to settle in Judea and Samaria, who were neither forcibly “deported” nor “transferred,” but who rather chose to live there based on their ideology of settling the Land of Israel.

We have not lost sight of the views of those who believe that the Fourth Geneva Convention should be interpreted so as also to prohibit the occupying state from encouraging or supporting the transfer of parts of its population to the occupied territory, even if it did not initiate it.9 However, even if this interpretation is correct, we would not alter our conclusions that Article 49 of the Fourth Geneva Convention does not apply to Jewish settlement in Judea and Samaria in view of the status of the territory according to international law. On this matter, we offer a brief historical review.

On 2 November 1917 –17 Heshvan 5678, Lord James Balfour, the British Foreign Secretary, published a declaration saying that:

 “His Majesty’s Government view with favor the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.10 ’’

In this declaration, Britain acknowledged the rights of the Jewish people in the Land of Israel and expressed its willingness to promote a process that would ultimately lead to the establishment of a national home for it in this part of the world. This declaration reappeared in a different form, in the resolution of the Peace Conference in San Remo, Italy, which laid the foundations for the British Mandate over the Land of Israel and recognized the historical bond between the Jewish people and Palestine (see the preamble):

“The principal Allied powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country. […] Recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”11 

It should be noted here that the mandatory instrument (like the Balfour Declaration) noted only that “the civil and religious rights” of the inhabitants of Palestine should be protected, and no mention was made of the realization of the national rights of the Arab nation. As for the practical implementation of this declaration, Article 2 of the Mandatory Instrument states:12

“The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.”

And Article 6 of the Palestine Mandate states:

“The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.” 

In August 1922 the League of Nations approved the mandate given to Britain, thereby recognizing, as a norm enshrined in international law, the right of the Jewish people to determine its home in the Land of Israel, its historic homeland, and establish its state therein.

To complete the picture, we would add that upon the establishment of the United Nations in 1945, Article 80 of its Charter determined the principle of recognition of the continued validity of existing rights of states and nations acquired pursuant to various mandates, including of course the right of the Jews to settle in the Land of Israel, as specified in the abovementioned documents:

‘Except as may be agreed upon in individual trusteeship agreements […] nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties” (Article 80, Paragraph 1, UN Charter).

In November 1947, the United Nations General Assembly adopted the recommendations of the committee it had established regarding the partition of the Land of Israel west of the Jordan into two states.13 However, this plan was never carried out and accordingly did not secure a foothold in international law after the Arab states rejected it and launched a war to prevent both its implementation and the establishment of a Jewish state. The results of that war determined the political reality that followed: The Jewish state was established within the territory that was acquired in the war. On the other hand, the Arab state was not formed, and Egypt and Jordan controlled the territories they captured (Gaza, Judea and Samaria). Later,

the Arab countries, which refused to accept the outcome of the war, insisted that the Armistice Agreement include a declaration that under no circumstances should the armistice demarcation lines be regarded as a political or territorial border.14 Despite this, in April 1950, Jordan annexed the territories of Judea and Samaria,15 unlike Egypt, which did not demand sovereignty over the Gaza Strip. However, Jordan’s annexation did not attain legal standing and was opposed even by the majority of Arab countries, until in 1988, Jordan declared that it no longer considered itself as having any status over that area (on this matter see Supreme Court President Landau’s remarks in HCJ 61/80 Haetzni v. State of Israel, IsrSC 34(3) 595, 597; HCJ 69/81 Bassil Abu Aita et al. v. The Regional Commander of Judea and Samaria et al., IsrSC 37(2) 197, 227).

This restored the legal status of the territory to its original status, i.e. territory designated to serve as the national home of the Jewish people, which retained its “right of possession” during the period of the Jordanian control, but was absent from the area for a number of years due to the war that was forced on it, but has since returned. 

Alongside its international commitment to administer the territory and care for the rights of the local population and public order, Israel has had every right to claim sovereignty over these territories, as maintained by all Israeli governments. Despite this, they opted not to annex the territory, but rather to adopt a pragmatic approach in order to enable peace negotiations with the representatives of the Palestinian people and the Arab states. Thus, Israel has never viewed itself as an occupying power in the classic sense of the term, and subsequently, has never taken upon itself to apply the Fourth Geneva Convention to the territories of Judea, Samaria and Gaza. At this point, it should be noted that the government of Israel did indeed ratify the Convention in 1951, although it was never made part of Israeli law by way of Knesset legislation (on this matter, see CrimA 131/67 Kamiar v. State of Israel, 22 (2) IsrSC 85, 97; HCJ 393/82 Jam’iat Iscan Al-Ma’almoun v. Commander of the IDF Forces in the Area of Judea and Samaria, IsrSC 37(4) 785).