Israeli Position on Three
Main Points at Taba Talks
Contravenes International
Law
by Arjan El Fassed
At its weekly meeting yesterday, the Israeli cabinet took cognizance of
both Prime Minister Ehud Barak's statement regarding the departure of
the delegation to the negotiations with the Palestinians at Taba and the
Israeli position on three main points. However, all these points
contravene international law and are therefore ink on paper.
The official Israeli cabinet communication stated that "Israel will never
allow the right of Palestinian refugees to return to inside the State of
Israel." However, according to international law, Palestinian and other
refugees are entitled to full restitution, which includes the right of return
of Palestinian refugees to return to their homes of origin, the return of
their property, and the right to compensation for material and
non-material losses.
The United Nations General Assembly Resolution 194 (December 1948)
states that "refugees wishing to return to their homes and live at peace
with their neighbors should be permitted to do so at the earliest
practicable date, and that compensation should be paid for the property
of those choosing not to return and for the loss or damage to
property..." This resolution has been reaffirmed one hundred and ten
times by the UN.
Article 13 of the Universal Declaration of Human Rights (1948) states
that "everyone has the right to freedom of movement and residence
within the borders of each state. (2) Everyone has the right to leave any
country, including his own, and to return to his country" and the the
Fourth Geneva Conventions (1949) prohibit "individual or mass forcible
transfers ... regardless of their motive" and calls for evacuated persons
to be "transferred back to their homes as soon as hostilities in the area
in question have ceased."
Moreover, UN General Assembly Resolution 3236 (1974) upholds "the
inalienable right of the Palestinians to return to their homes and
property from which they have been displaced and uprooted, and calls
for their return" and UN General Assembly Resolution 52/62 (1997)
"reaffirms that the Palestine Arab refugees are entitled to their property
and to the income derived therefrom, in conformity with the principles of
justice and equity."
Additionally, the Israeli communication stated that Israeli PM Barak
would "not sign any document which transfers sovereignty over the
Temple Mount to the Palestinians." That Israel has acquired territorial
sovereignty in those areas is not sustainable in international law.
Conquest, whether aggressive or defensive, does not confer title. Not
only has the international community declined recognition of the title of
Israel to Jerusalem, but they have, more positively, expressly and
repeatedly declined to do so.
Between 1947 and 1996, the UN Security Council issued 21 resolutions
condemning Israeli policies in Jerusalem that violate international
(human rights) law. The General Assembly has also issued similar
resolutions (54 resolutions between 1947 and 1992, excluding those
that were vetoed by the US). These resolutions were issued either
because of Israeli policies and measures on Jerusalem in particular, or
they referred to Jerusalem in the context of the Occupied Territories.
The resolutions emphasize the illegitimacy of Jerusalem's annexation,
based on the illegitimacy of acquiring territory by war. Additionally,
these resolutions regard the city as an integral part of the Occupied
Territories and emphasize the applicability of international humanitarian
law, especially the Fourth Geneva Convention. There has been
unheard-of international unanimity over these resolutions.
Finally, the Israeli communication stated that "Israel insists that in any
settlement, 80% of the Jewish residents of Judea, Samaria and Gaza
will be in settlement blocs under Israeli sovereignty." However, the
establishment of permanent civilian settlements contravenes
international humanitarian law, which prohibits an occupying power from
transferring population from its territory into territory it occupies, and
from performing any act in occupied territory that is not intended to
meet its military needs or benefit the local population.
Article 49 of the Fourth Geneva Convention explicitly provides that, "the
Occupying Power shall not deport or transfer parts of its own civilian
population into the territory it occupies." The commentary of the
International Committee of the Red Cross to this article states that the
article 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.
The declared purpose of the settlers, like that of Israeli governments
that established the settlements, was and continues to be to change
the demographics in the Occupied Territories, a change that was
actually accomplished, at least in those areas in which there is
congested Israeli settlement.
The Israeli government initiated most of the Jewish settlement in the
Occupied Territories. All of the relevant ministries and authorities
assisted by expropriating land, planning, implementing, and financing.
The various Israeli governments encouraged and continue to encourage
Israeli civilians to move to the Occupied Territories by providing benefits,
such as grants and loans under favorable terms.
Even where individual settlers, rather than the government, established
settlements, the government acted retroactively to turn these into
permanent settlements. To achieve this, the government assisted with
planning, infrastructure, establishment of public buildings and
institutions, expropriation of land to expand the settlements, and
encouragement of other Israeli civilians to live there.
Settlements established pursuant to the decision of a government
committee, through governmental planning, implementation, assistance
and encouragement, clearly breach article 49 of the Fourth Geneva
Convention.
A fundamental principle of international humanitarian law relating to
territory subject to belligerent occupation is that occupation is
essentially a temporary situation. The temporary nature of occupation
entails limitations imposed on the occupying power regarding the
creation of permanent facts in the occupied territory.
Article 46 of the Hague Regulations prohibits the confiscation of private
property. Article 52 allows the occupying power to requisition land in
exchange for compensation, but only to meet its military needs.
Requisition of land, contrary to confiscation, is temporary by definition,
and the occupying power does not obtain ownership. Article 55 of the
Hague Regulations stipulates that the occupying state is regarded only
as trustee of public property in the area, and does not obtain ownership
of the property.
Since the military commander is not the sovereign in the territory and
his administration there is only temporary, he may exercise only two
considerations when making decisions concerning the occupied
territory: the welfare of the local population and his security needs.
Thus, the occupying state may only institute permanent changes where
they are intended for the local population.
Since it has never been contended that the settlements were
established to benefit the Palestinian residents of the Occupied
Territories, the legal justification for their establishment must be that
they were temporary actions intended for security needs. Since this is
clearly not the case, in establishing the settlements, Israel is violating a
fundamental principle of international humanitarian law.
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