(see the letter from Attorney Tamar Feldman from 19 April 2012); and Adalah (see the letter from attorney Fatma Alaju from 12 June 2012).
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