Construction in the West Bank - how illegal is it?

World opinion, led by the Obama administration, is in no doubt.

“These activities set back the cause of a negotiated peace,” was US Secretary of State Hillary Clinton’s immediate reaction when the Israeli government authorised the construction of 3000 new homes in East Jerusalem and the West Bank, following the Palestinians winning their bid in the UN General Assembly to become a "non-member observer state".

She did not use the world “illegal”, but Britain’s foreign secretary, William Hague, was less inhibited in his condemnation.

"I am extremely concerned by reports that the Israeli cabinet plans to approve the building of 3,000 new housing units in illegal settlements in the West Bank and East Jerusalem. Israeli settlements are illegal under international law... The UK strongly advises the Israeli government to reverse this decision.”

Hague summoned to the Foreign Office Israel’s ambassador to the UK, Daniel Taub, to convey the government’s displeasure in person. Hague’s move in calling in the Israeli ambassador was followed by France and Sweden. Australia and Brazil followed suit.

That the West Bank and Gaza are Palestinian land, that Israel has no legal right to any of it, and that all settlements built on land that Israel did not occupy before the 1967 war, including east Jerusalem, are illegal in international law − all this is now taken for granted by a kind of generalised world consensus. On its website the BBC, obligated by its Charter to impartiality, sets out the case both for and, in somewhat mealy-mouthed fashion, against:

“It is widely accepted that under international law, the Jewish settlements in the territories occupied by Israel in 1967 are illegal. Article 49 of the Fourth Geneva Convention relative to the protection of civilian persons in time of war states: ‘The occupying power shall not deport or transfer parts of its own population into the territories it occupies.’ Within the international community the overwhelming view is that Article 49 is applicable to the occupation of the West Bank including East Jerusalem, the Gaza Strip and the Golan Heights…Israel is a party to the Geneva Conventions, and bound by its obligations.

“But its government argues that the international conventions relating to occupied land do not apply to the Palestinian territories because they were not under the legitimate sovereignty of any state in the first place… Israel therefore denies the formal, de jure, applicability of the 4th Geneva Convention in the occupied territories.”

As for these territories belonging to the Palestinians, Israel would argue that no Palestinian state existed in 1967, nor does it today, despite the recent UN General Assembly vote. What does exist are the Oslo Accords, negotiated between Israel and the Palestinian National Authority (PA) as the “sole legitimate representative of the Palestinian people”. Under the Accords the issue of settlements was to be decided in the permanent status negotiations. None of the agreements signed between the parties contain any limitation on building by the parties in the areas under their respective jurisdictions.

One legal opinion holds that while Article 49 of the Fourth Geneva Convention prohibits "individual or mass forcible transfers" of civilians, this has not happened, and is not happening, in the territories under Israeli administration. Further, under Article 49 the Occupying Power is obliged not to "deport or transfer parts of its own civilian population" to territories under its control, and that there has been no such active or forcible deportation or transfer of Israeli civilians. On the other hand, it is opined, Article 49 does not oblige Israel to prevent voluntary settlement by its civilian population.

More broadly, the case has been made by international lawyers that Judea and Samaria legally belong to Israel and the Jewish people under international law. Professor Talia Einhorn, for example, is on the record as saying that Judea, Samaria and the Gaza Strip are all incorrectly categorized by the world community as “occupied,” because prior to Israel’s liberation of those areas in 1967 no sovereign power legally controlled them, while the original Mandate for Palestine − never revoked and still valid − designated those areas as part of the Jewish national home.

“From the standpoint of international law,” says Einhorn, “there is no essential difference between the areas on the two sides of the Green Line.” The last legally binding document to be adopted regarding the areas in question, she says, remains the 1920 San Remo resolution, which deeds full sovereignty to the Jewish people.

It has also been pointed out that Article 80 of the United Nations Charter, by recognizing the continuing validity of rights granted to all states or peoples under already existing international instruments, including those adopted by the League of Nations, protects Article 5 of the Mandate ("The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of, the Government of any foreign Power."}

It is time for a clear ruling, one way or the other. Either construction in the occupied areas under Israel’s jurisdiction is illegal, or Israel’s position on Article 49 of the Geneva Convention is valid. Where can an authoritative legal opinion be sought?

The International Court of Justice (ICJ), established under the UN charter, is composed of fifteen judges, each from a different nation. One of its main functions is to provide advisory opinions on legal questions. To clear the fog of confusion that surrounds this issue, there is surely a case for Israel applying to the ICJ for an opinion on whether the provisions of the Mandate survived the demise of the League of Nations, and on the legality or otherwise of its construction policies in the occupied territories.

Published in the on-line Jerusalem Post magazine, 11 December 2012:
http://www.jpost.com/Magazine/Opinion/Article.aspx?id=295442&prmusr=x3CWBZkdZpodobqeOio2DhWjWHHRQ7XE1N2sMucxcBfo61pv7RgWpbCZQ%2boocCKh