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Tuesday 18 May 2021
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Interview with Dr. Mark Ellis : Israeli Settlements under International Law

Par Ines Gil, Mark Ellis
Publié le 28/04/2021 • modifié le 28/04/2021 • Durée de lecture : 6 minutes

Dr. Mark Ellis

On February 5th, 2021, the International Criminal Court (ICC) judges declared themselves competent to investigate possible war crimes committed in the Palestinian territories. One aspect of the investigation concerns the transfer of Israeli civilians by Israel to those territories. Before addressing the issue of settlements, could you remind us of the status of the Palestinian territories under international law? Which texts define this status? Are there any contradictions between these texts, or different interpretations?

From an international law perspective, the territories (Gaza, the West Bank, including East Jerusalem) are considered to be under occupation by Israel. This has been confirmed by various international bodies, including the UN Security Council (UNSC), the International Court of Justice (ICJ), and the UN General Assembly. There are no contradictory international legal texts pertaining to the definition of that status. In addition, the ICC found in the Situation in Palestine, that the Court’s territorial jurisdiction (which does not coincide with territorial sovereignty) extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.

In 1993, the UNSC concluded that the law applicable in armed conflict as embodied in the Geneva Conventions and the Hague Convention had become part of international customary law (UNSC Res. 446). Breaches of these principles were then placed within the competence of international criminal tribunals. In 1999, the High Contracting Parties to the Fourth Geneva Convention found that the Convention did apply in the Occupied Palestinian Territory, including Jerusalem.

What remains debated is the exact demarcation line of these territories. The most widely accepted boundaries between Israel and Palestine seem to be the so-called “Green Line.” The Green Line is often referred to as pre-1967 borders, as it describes a demarcation prior to the Six Day War, when Israel took the Gaza Strip from Egypt and the West Bank and East Jerusalem from Jordan.

While Israel rejects the Green Line as indefensible, the international community (including the UNSC and the ICJ) seems to view the Green Line as the boundaries of a future Palestinian state. When Palestine submitted an application for membership to the United Nations in 2011, it used the Green Line to describe the territory.

Regarding settlements, defined as the transfer of civilians to an occupied territory:
- When can we speak of “transfer of civilians”?
- Why is it illegal according to international law? Which texts are used to emphasize this illegality?

It would be a challenge to find a government that holds the position that the settlements are legal. Likewise, not a single international body would dispute that they constitute a violation of international law. The UN Human Rights Council, the UN General Assembly, and the UN Special Rapporteur on human rights in the occupied Palestinian territories have all found that the settlements, like deportations, are flagrant and prima facie violations of the Fourth Geneva Convention.

Article 49 of the 1949 Fourth Geneva Convention is key. It states that: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”

Accordingly, the Geneva Conventions prohibit the occupying power – in this case Israel – to transfer parts of its own civilian population into the territory it occupies. This applies beyond forcible transfers and includes Israelis who voluntarily moved to the settlements. In addition, the Conventions are not limited to only situations when the transfer of the occupying power’s civilian population involves the displacement of the local population. Article 49 is interpreted along its intention to prevent the WWII practice of an occupying power transferring “portions of its own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories." Thus Article 49 is not limited to “force” nor “displacement.” This view was held by the ICJ in its 2004 Advisory Opinion.

The 2016 UN Security Council Resolution (Res. 2334) condemned Israeli settlement activities and called for the immediate cessation of all future settlements. The Security Council condemned the “transfer of Israeli settlers” as constituting a “violation of international humanitarian law.” Furthermore, the Resolution stated that mere incentives by the State of Israel leading to, or encouraging, the creation of settlements, and the ensuing movement of Israeli nationals to the occupied Palestinian territory is considered as constituting a “transfer” of population. Accordingly, the very notion of “transfer,” as contained in Art. 49 of the Geneva Convention encompasses “indirect transfers.”

Is there a status difference between the West Bank and East Jerusalem in international law?

There is no difference in terms of status in international law between the West Bank and East Jerusalem. The Fourth Geneva Convention applies to all the territories occupied by Israel in 1967. Israel’s legal view towards the 1967 occupation of the West Bank and Gaza is based on the premise that there was no "legitimate sovereign" in the West Bank and Gaza prior to the 1967 war. Moreover, Israel claims sovereignty to the territories of the former Palestinian Mandate, founded on historical and religious links to the biblical land.

However, we should note that the difference here is that Israel took control over East Jerusalem in 1980 through annexation. Israel has not annexed the West Bank. The majority of UN member states and most international organisations do not recognize Israel’s claims to East Jerusalem. UNSC Resolution 478 condemns Israel’s attempted annexation of East Jerusalem.

On December 23rd, 2016, resolution 2334 denouncing Israeli settlements in the occupied Palestinian territories was passed by the United Nations Security Council. This resolution was highly commented. But what concrete effects did it have?

UNSC Resolution 2334 “[r]eaffirms’ that Israeli settlement activity since the Six-Day War of 1967 “has no legal validity and constitutes a flagrant violation under international law.” Similarly, it “[r]eiterates its demand that Israel immediately and completely cease all settlement activities”, and “[u]nderlines that it will not recognize any changes to the 4 June 1967 lines” other than those reached through negotiation.

The resolution states that all measures aimed at changing the demographic composition and status of Palestinian territories occupied by Israel, including construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians are in violation of international humanitarian law, Israel’s obligation as the occupying Power according to the Fourth Geneva Convention, and previous resolutions.

’’To date, it appears that the resolution has had no discernible effect on either settlement activity, demolition of Palestinian property, or efforts of de-escalation’’.

Since the passing of the Resolution, the Secretary General continues to issue quarterly reports on the implementation of the resolution to the UNSC. However, to date, the resolution has had no discernible effect on either settlement activity, demolition of Palestinian property, violence against civilians or efforts of de-escalation.

The implementation report of early 2020 states that
• “…demolitions and seizures of Palestinian-owned structures continued across the occupied West Bank, including East Jerusalem, despite the coronavirus disease (COVID-19)”
• “the reporting period […] was characterized by acts of violence throughout the Occupied Palestinian Territory, including violent clashes between Palestinians and Israeli security forces, settler-related violence, stabbing and ramming attacks, the firing of rockets by Palestinian militants from Gaza towards Israel, retaliatory Israeli airstrikes against militant targets in Gaza and the use of lethal force by Israeli security forces against Palestinian civilians”
• “…Fatah continued to glorify perpetrators of previous terrorist attacks against Israelis… Members of militant factions continued to praise acts of violence against Israelis…”; “Senior Israeli government officials continued to make inflammatory statements in support of the illegal annexation of parts of the occupied West Bank, with some calling it a “historic opportunity.” One Israeli minister stated that “under no circumstances will we allow for the establishment of a Palestinian state.’”; “…some Israeli political leaders made demeaning comments with regard to Palestinians, outlining their goal as gaining ‘maximum territory with minimum Arabs’”

Some have argued that the Resolution actually accelerated Israel’s plans to construct thousands of new homes in illegal settlements in the occupied West Bank.

Despite prohibition by international law, settlements have accelerated. Can we say that international law has limited means of enforcement at its disposal?

International law governing the settlements is, as described above, plentiful. However, international law is only as good as the willingness of the international community to enforce it. Willingness of states to comply with their obligations under international law is the main factor. It is two-fold: first, the absence of domestic political will, and second, international pressure to act in accordance with international law.

Domestically, Israel’s High Court has not been consistent with its interpretations of international law. It has ruled that the Geneva Conventions’ prohibition on the transfer of the occupying powers’ population into the occupied territory is not enforceable in domestic courts. Further it says that the Hague Convention’s prohibition on the confiscation of private property cannot be addressed domestically either.

A similar position has been taken by the High Court on the effective deportation of Palestinian communities. The Court did find that the Israeli Defence Force had to give Palestinians a hearing before their deportation in most situations, stopping the practice of detention followed by immediate deportation, however like the other major international pronouncements, the High Court ruled against international law and found the general policy of forced deportation legal, stating that the Fourth Geneva Convention that forbids the deportation of civilian populations from occupied territory did not apply.

Thus, despite the obligations detailed earlier under the Fourth Geneva Convention, the 1907 Hague Convention, the UN Charter, UNSC resolutions, and customary international law, Israel continues on its trajectory.

In mid-October 2020, it was reported in the press that Israel had stopped issuing visas to employees of the United Nations High Commissioner for Human Rights. What power does this UN agency have? What consequences will the departure of its employees bring?

Deciding on entry and access to a country is that state’s sole sovereign prerogative. The OHCHR does not have any hard power to force Israel to grant access or to issue visas to its staff.

Operationally, OHCHR works at the national level to protect human rights in accordance with international norms. In particular, it engages in dialogue with governments to secure respect for all human rights. At least in the short-term, actions like these tend to attract more attention than they deter. Nevertheless, this will most likely hamper the work OHCHR is doing in the region.

Publié le 28/04/2021


Ines Gil est Journaliste freelance basée à Beyrouth, Liban.
Elle a auparavant travaillé comme Journaliste pendant deux ans en Israël et dans les territoires palestiniens.
Diplômée d’un Master 2 Journalisme et enjeux internationaux, à Sciences Po Aix et à l’EJCAM, elle a effectué 6 mois de stage à LCI.
Auparavant, elle a travaillé en Irak comme Journaliste et a réalisé un Master en Relations Internationales à l’Université Saint-Joseph (Beyrouth, Liban). 
Elle a également réalisé un stage auprès d’Amnesty International, à Tel Aviv, durant 6 mois et a été Déléguée adjointe Moyen-Orient et Afrique du Nord à l’Institut Open Diplomacy de 2015 à 2016.


Dr. Mark Ellis is the Executive Director of the International Bar Association. He served as Legal Advisor to the Independent International Commission on Kosovo and was appointed by the Organization for Security and Co-operation in Europe to advise on the creation of Serbia’s War Crimes Tribunal. He was also actively involved with the Iraqi High Tribunal and was a legal consultant to the defense team of Nuon Chea at the Cambodian War Crimes Tribunal. In 2013, Dr Mark Ellis was admitted to the List of Assistants to Counsel of the International Criminal Court. He is presently an Adjunct Professor at The Florida State University College of Law.


 


Diplomatie

Israël

Politique