JURIST Guest Columnist Victor Kattan of the Centre for International Studies and Diplomacy, School of Oriental and African Studies, University of London, says that morally, legally, and politically the Obama administration is on solid ground in its confrontation with the Israeli government over its refusal to stop constructing settlements in East Jerusalem….

US-Israel relations are reputedly at their lowest ebb in years. Last month, Vice-President Joe Biden visited Israel to bolster peace negotiations with the Palestinians. To shore up Israeli support, he told Prime Minister Netanyahu that the US had an ‘absolute, total, unvarnished commitment to Israel’s security’. He did not expect that on the very same day, Israel’s Interior Minister would announce that a decision had been made to construct 1,600 new housing units that would almost double the size of Ramat Shlomo, an ultra-Orthodox settlement in East Jerusalem. The expansion of the settlement, which is contrary to international law, killed off the proximity talks with President Abbas which were supposed to have begun in earnest that week. Biden reportedly left Israel embarrassed and angry. The rift was not healed when Netanyahu arrived in Washington later that month to speak at the American Israel Public Affairs Committee (AIPAC). The White House imposed a news blackout on the meeting between Netanyahu and Obama. There was no picture of the two men together and no press statement by the White House as is customary on such occasions.

The Obama administration is on solid ground in its confrontation with the Israeli government over its refusal to stop constructing settlements in East Jerusalem morally, legally, and politically. It has been long-standing US foreign policy to oppose Israel’s attempts to alter the facts on the ground by constructing settlements in the occupied territories in an attempt to alter its ethnic and demographic composition. Jerusalem is also home to the Holy Places which are of special significance to the three monotheistic religions. This is why various attempts were made in the past to internationalise the city, to diffuse religious and racial tensions, by having it administered by a third party. However, Israel has historically been opposed to plans to internationalise the city because it views Jerusalem as its ‘eternal and undivided capital’, although this has never been recognised by any other country, and for that reason they locate their embassies in Tel Aviv. Moreover, the eastern part of the city is considered occupied territory, which means it has a distinct and special status under international law. It is a cardinal rule of international humanitarian law that sovereignty does not pass to the occupying power which only has a right of temporary administration over the territory. No state has recognised Israel’s annexation of the eastern half of the city, where the Holy Places are located, and which has been condemned as ‘null and void’ by the UN Security Council.

Disputed or Occupied Territory?

Israel has employed a number of arguments, both legal and political, to justify its four decades long policy of constructing settlements in the occupied Palestinian territories. These arguments all relate to the legal status of the territory that was occupied by Israel in 1967. Under international law when territory is captured in an armed conflict, it is placed under belligerent occupation, regardless of whether the conflict which preceded it was lawful or not. One often comes across the argument that the territories are ‘disputed’ rather than ‘occupied’. Beyond the realm of propaganda, this argument is disingenuous since the Israeli government has in practice always treated the territories as occupied as has Israel’s Supreme Court in a number of rulings. This is why Israel uses military orders to channel Israeli legislation into the occupied territories for the benefit of the settlers, why the Supreme Court considers the norms of belligerent occupation in its assessment of government policy regarding ‘targeted killings’, its construction of the barrier, and the application of legislation from workers rights to human rights. The only issue that Israel contests is the applicability of the Fourth Geneva Convention of 1949. It disputes that the Convention applies in its entirety to the occupied territories, a view no one outside Israel accepts, and which does not affect the status of the territory as occupied. Israel has never contested the application of the Hague Regulations of 1907 concerning the Laws and Customs of War on Land which applies to occupied territory.

The Position under International Law

Article 49 (6) of the Fourth Geneva Convention provides that: ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’. The authoritative commentary of this convention prepared by the International Committee of the Red Cross states that this prohibition was adopted to prohibit the colonization of occupied territories. It does not distinguish between forcible and non-forcible population transfers and prohibits any and all population transfers from the occupying power to occupied territory. On 9 June 2004, the International Court of Justice ruled unanimously in an advisory opinion that the Fourth Geneva Convention was applicable to the occupied Palestinian territories and that Israeli settlements there are illegal. This included the opinion of Thomas Buergenthal, the US judge at the International Court and who, whilst exercising his discretion to refrain from hearing the case, concurred with the Court’s finding on the illegality of Israeli settlements.

It should be noted that the Israeli government was aware even before it began settling its population in the West Bank in the 1970s that its settlements policy would be illegal. Theodor Meron, a former judge at the International Criminal Tribunal for the former Yugoslavia, and presently Professor of Law at New York University’s School of Law, made this clear in a legal memorandum he wrote when he was the legal adviser to Israel’s Ministry of Foreign Affairs. ‘My conclusion,’ he advised the Israeli Government on 18 September 1967, ‘is that civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention’. An authoritative English translation of the declassified legal advice is currently available online at the website of the Sir Joseph Hotung Project in Law, Human Rights, and Peace Building in the Middle East at the School of Oriental and African Studies, University of London.

In 1978, Herbert J Hansell, the US State Department’s Legal Adviser concurred with Meron’s reasoning by reaching the same conclusion: Israeli civilian settlement activity in occupied territory is contrary to international law because it breaches Article 49 (6) of the Fourth Geneva Convention 1949. In addition to this legal advice there were a score of UN Security Council resolutions passed in the late 1970s and early 80s condemning Israeli settlement activity. When former President George H. W. Bush was Ambassador to the United Nations in 1971 he expressed his regret that Israel had failed to abide by its obligations to refrain from constructing settlements which he said were, and I quote, ‘contrary to the letter and spirit of the fourth Geneva Convention’. It has recently been reported
that the US government may abstain from voting on any draft resolution presented to the Security Council condemning Israeli settlement activity should the disagreement with Israel over the settlements in Jerusalem remain unresolved.

The Missing Reversioner Thesis

In December 2009, Danny Ayalon, Israel’s Deputy Foreign Minister, published an article in The Wall Street Journal in which he claimed that the occupied territories are not occupied but rather ‘disputed’ because the Palestinians ‘had not attained recognised sovereignty before Israel’s conquest’. The argument that the Palestinian Arabs had not attained sovereignty after the Britain relinquished its mandate and before Israel’s conquest in 1948-9 is highly questionable. This is because upon the termination of the mandate sovereignty vested in the population of Palestine as of 15 May 1948 as a whole. The majority of Palestine’s inhabitants on that date viewed themselves as belonging to Palestine’s Arab community to whom sovereignty would vest. The demography of Palestine would vastly change after the war, but an unlawful conquest is no basis to deny them sovereignty to this day. Moreover, Ayalon’s argument is self-defeating because prior to Israel’s conquest of Palestine in 1948-9, no state had recognised Jewish sovereignty over Palestine. As regards the application of the Fourth Geneva Convention, Ayalon advanced the argument that Israel has better title to the West Bank because no one else had a stronger claim to sovereignty over it (apart from the Palestinian Arabs of course) after Britain relinquished its mandate over Palestine on 15 May. This argument has been referred to by legal scholars who have adopted it as ‘the missing reversioner thesis’. It was expounded in a number of legal articles published in Israel and the United States in the 1970s which included an article published by Meir Shamgar, who was then Israel’s Attorney-General. The ‘missing reversioner’ argument was expressly rejected by the ICJ in the Wall advisory opinion. The ICJ ruled that the Convention applies to any armed conflict between High Contracting Parties and that it was irrelevant whether or not territory occupied during that conflict was under their sovereignty. Judge Buergenthal expressly concurred with the opinion of the majority in his separate opinion on this point. This conclusion is also foreshadowed by the Meron opinion, which noted that the international community had rejected Israel’s claim that the territories were not occupied.

Eugene Rostow’s Argument

In 1979, Eugene Rostow, who served as Under Secretary of State for Political Affairs under President Lyndon B. Johnson and who was once Dean of Yale Law School. published a paper in the Yale Studies in World Public Order in which he invoked the history of the British Mandate of Palestine to support Israeli claims to sovereignty over the whole of the Holy Land including the West Bank and Gaza. He attacked the US State Department’s advice on the illegality of Israeli settlements and reached the rather strange opinion that, ‘Jewish rights of immigration and close settlement in the West Bank and Gaza Strip, established by the [British] Mandate, have never been qualified’.

The argument advanced by Rostow is at variance with British law and state practice in the mandatory era which I am familiar with as I wrote a 400-page book on it. This is because on 15 May 1948, the British Mandate was legally terminated by the British authorities in Palestine and Westminster. One cannot rely on an international instrument which no longer exists. Moreover, Jewish rights to settle in Palestine during the mandate were always subject to restrictions from immigration, to land usage, to the political rights of the indigenous Arab population. This was implicit from the terms of the mandate and from the safeguard clauses in the Balfour Declaration protecting the civil and religious rights of the non-Jewish community. Moreover, throughout the mandatory years the British government proposed several Partition Plans that envisaged the creation of an independent Arab state in Palestine. Thus the right of the Palestine Arabs to self-determination and to establish an independent state of their own in Palestine was explicitly recognised even during the mandate era. Continued Jewish settlement in the West Bank conflicts with the right of the Palestinians to self-determination which has since been recognised in numerous international instruments and resolutions. In its 2004 opinion the ICJ referred to the Palestinian people’s right of self-determination as an obligation erga omnes. It is therefore incumbent on the international community to see to it that all efforts are made to secure a democratic, independent, and viable Palestinian state living side by side in peace and security with Israel. This can only emerge once Israel relinquishes control over the occupied territories and ceases settlement activity.

Concluding Remarks

In 1947, the United Kingdom turned over the future destiny of Palestine to the United Nations which voted in favour of the Partition Plan that sought to create a Jewish state and an Arab state in Palestine. Jerusalem was to be placed under some form of international administration as a corpus separatum. Israel accepted that Plan, which is mentioned in its Declaration of Independence. It was also on the basis of Israel’s acceptance of that Plan that many states afforded it recognition in 1948-49. Thus they did not recognise Israeli claims to Jerusalem or to those areas which had been assigned to the Arab state in that Plan. The Arab states opposed the UN Plan because they thought that it was unfair to the Palestinian Arabs who in 1948 still formed a majority of the population and owned most of the land. After several Arab-Israeli wars, including the June 1967 War, when Israel occupied East Jerusalem, the West Bank, and the Gaza Strip, the Palestinians have come to accept that Israel is an accomplished fact. In 1993, Yasser Arafat recognised the state of Israel, in the hope that Israel might one day reciprocate and recognise the right of his people to an independent homeland as well. This has yet to happen. In 2002, the Arab League—comprised of 22 member states including Egypt and Jordan who have already made peace with Israel—offered full normality and diplomatic relations with Israel if it would withdraw from the territories it occupied in 1967, cease settlement activity, and allow the Palestinian to create an independent state. Israel spurned the offer. Instead the party political platform of the Likud that Netanyahu chairs is totally uncompromising. ‘The Government of Israel’, the Platform dictates, ‘flatly rejects the establishment of a Palestinian Arab state west of the Jordan river’. On the question of settlements, the Platform states that ‘the Likud will continue to strengthen and develop’ them, thus further diminishing the prospects for peace in the Middle East.

Victor Kattan is a Teaching Fellow at the Centre for International Studies and Diplomacy at the School of Oriental and African Studies, University of London. Victor is the author of From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict 1891-1949 (London: Pluto Books 2009). You can read more about Victor here.
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