Arguments based on UNSC Resolution 242 and the British Mandate[edit]Jewish people to "close settlement" in the whole of the Mandated territory
Application
In July 1999, the conference of the High Contracting Parties to the Fourth Geneva Convention ruled that the Convention did apply in the Israeli-occupied territories.[104][105] In 2001, the conference called upon "the Occupying Power to fully and effectively respect the Fourth Geneva Convention in the Occupied Palestinian Territory, including East Jerusalem, and to refrain from perpetrating any violation of the Convention." The High Contracting Parties reaffirmed "the illegality of the settlements in the said territories and of the extension thereof".[106] In response, some argued that the conference had amended history and had construed the Convention only for this specific situation.[citation needed] According to barrister and human rights activist Stephen Bowen, arguments dismissing the ruling as applying to more specific cases were rejected "because the Convention also states that it applies 'in all circumstances' (Article 1), and 'to all cases of declared war or of any other armed conflict' (Article 2)".[107]In practice, Israel does not accept that the Fourth Geneva Convention applies de jure, but has stated that on humanitarian issues it will govern itself de facto by its provisions, without specifying which these are.[17][18]
Arguments based on UNSC Resolution 242 and the British Mandate
Rostow and others further argue that UN Security Council Resolution 242 (which Rostow helped draft) mandates Israeli control of the territories, and that the original British Mandate of Palestine still applies, allowing Jewish settlement there.[63][66][108] In Rostow's viewThe British Mandate recognized the right of the Jewish people to "close settlement" in the whole of the Mandated territory. It was provided that local conditions might require Great Britain to "postpone" or "withhold" Jewish settlement in what is now Jordan. This was done in 1922. But the Jewish right of settlement in Palestine west of the Jordan river, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors. And perhaps not even then, in view of Article 80 of the U.N. Charter, "the Palestine article", which provides that "nothing in the Charter shall be construed ... to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments...."[108]According to Rostow "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there".[109]
This right is based on Article 6 of the Mandate, which states: "The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish Agency referred to in Article 4, close settlement by Jews on the land, including State lands not required for public use". In addition, many Israeli settlements have been established on sites that were home to Jewish communities before 1948 such as Neve Yaakov, Gush Etzion, Hebron, Kalia, and Kfar Darom.
Contrary to this view other legal scholars have argued that under Articles 31 and 32 of the Vienna Convention on the Law of Treaties the only common sense interpretation of UNSC 242 is that Israel must withdraw from all of the territory captured in 1967, as any interpretation permitting the extension of sovereignty by conquest would violate the relevant governing principle of international law as emphasized in the preambular statement, i.e., "the inadmissibility of the acquisition of territory by war" as established through the abolition of the right of conquest by the League of Nations following World War I.
Furthermore, it is argued that UNSC 242 has binding force under Article 25 of the UN Charter owing to its incorporation into UN Security Council Resolution 338 and that it is also binding on Israel and the PLO by agreement owing to its incorporation into the Oslo Accords.[110]
Others argue that the Oslo Accords supersede UNSC 242 rather than making it binding.[111] The Declaration of Principles in the accords only state that future negotiations will "lead to the implementation of Security Council Resolutions 242 and 338".[112]
Additionally, as the international community considered the status of Jerusalem to be unresolved, even after 1967, and did not deem any part of the city to be Israeli territory, including that part held since 1948, UNSC 242 did not settle territorial issues between Israel and Palestine left unresolved by the 1949 Armistice Agreements.[113] Indeed, Sir Elihu Lauterpacht and others have argued that, because of the disorder in Palestine at the time, the territorial framework of the 1947 Partition Plan did not come into effect in such a way as toipso jure grant Israel sovereignty over the territory allocated to the Jewish state under that plan.[110] Stone agrees with Lauterpacht's analysis, and his view that sovereignty was acquired through other means:
Lauterpacht has offered a cogent legal analysis leading to the conclusion that sovereignty over Jerusalem has already vested in Israel. His view is that when the partition proposals were immediately rejected and aborted by Arab armed aggression, those proposals could not, both because of their inherent nature and because of the terms in which they were framed, operate as an effective legal re-disposition of the sovereign title. They might (he thinks) have been transformed by agreement of the parties concerned into a consensual root of title, but this never happened. And he points out that the idea that some kind of title remained in the United Nations is quite at odds, both with the absence of any evidence of vesting, and with complete United Nations silence on this aspect of the matter from 1950 to 1967?... In these circumstances, that writer is led to the view that there was, following the British withdrawal and the abortion of the partition proposals, a lapse or vacancy or vacuum of sovereignty. In this situation of sovereignty vacuum, he thinks, sovereignty could be forthwith acquired by any state that was in a position to assert effective and stable control without resort to unlawful means.[95]Antonio Cassese disagrees with this analysis, arguing that although Israel's original occupation of West Jerusalem might have been carried out in an act of self-defense under Article 51 of the UN Charter, this did not confer legal title to the territory owing to the general prohibition in international law on the acquisition of sovereignty through military conquest. He further considers that "mere silence" could not constitute agreement by the United Nations to the acquisition of sovereignty by Israel or Jordan as a result of their de factocontrol of Jerusalem. Cassese concludes that "at least a tacit manifestation of consent through conclusive acts would have been necessary", whereas such relevant acts as did take place confirmed that no such consent to the transfer of sovereignty was given.[114]
Arguments based on the cause of the war
It has been argued that Israel took control of the West Bank as a result of a defensive war. Former Israeli diplomat Dore Gold writes that:The language of "occupation" has allowed Palestinian spokesmen to obfuscate this history. By repeatedly pointing to "occupation", they manage to reverse the causality of the conflict, especially in front of Western audiences. Thus, the current territorial dispute is allegedly the result of an Israeli decision "to occupy", rather than a result of a war imposed on Israel by a coalition of Arab states in 1967.He quotes Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, and wrote in 1970 regarding Israel's case:
Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.However, international law scholar John Quigley has written, "... a state that uses force in self-defense may not retain territory it takes while repelling an attack. If Israel had acted in self-defense, that would not justify its retention of the Gaza Strip and West Bank. Under the UN Charter there can lawfully be no territorial gains from war, even by a state acting in self-defense. The response of other states to Israel's occupation shows a virtually unanimous opinion that even if Israel's action was defensive, its retention of the West Bank and Gaza Strip was not."[115]
Arguments based on property rights and private ownership[edit]
On January 30, 2009, the Associated Press reported that Israeli political group Yesh Din plans to use a classified Israeli Government database to prove that many West Bank Israeli settlements were built on land privately owned by Palestinian citizens without compensation.[116]Unauthorized or illegal outposts
See also: Sasson Report
In two cases decided shortly after independence (the Shimshon and Stampfer cases) the Israeli Supreme Court held that the fundamental rules of international law accepted as binding by all "civilized" nations were incorporated in the domestic legal system of Israel. The Nuremberg Military Tribunal had already determined that the articles annexed to the Hague IV Convention of 1907 were customary law, recognized by all civilized nations.[19]The Court determined in the 1979 Elon Moreh case that only the military commander of an area may requisition land according to article 52 of the Hague regulations. Military necessity had been an afterthought in the planning portions of the Elon Moreh settlement. That situation did not fulfill the precise strictures laid down in the articles of the Hague Convention, so the Court ruled the requisition order had been invalid and illegal.[117]
In subsequent cases, the Court has ruled that Article 43 of the Hague IV Convention is a mandatory planning consideration for approval of building projects on state lands in the West Bank.[118]
Pressured by America, the Sharon administration commissioned the Sasson Report, which found that the Israeli government had funded the creation of Jewish settler outposts in the West Bank that were unauthorized and in violation of stated government policy. According to the report, the Housing and Construction Ministry, the World Zionist Organization, the Education Ministry and the Defense Ministry cooperated to "systematically establish illegal settlement points", paying millions of dollars to create the infrastructure for scores of settlements.[119][120]
The summary of the Sasson Report[121] explains that local law requires the fulfillment of a number of basic conditions before establishing a settlement in the Judea, and Samaria. It lists four pre-conditions that must be fulfilled in each case. The second pre-condition regarding title to the land cites the precedent established in the Elon Moreh case. The third pre-condition is that a settlement can only be established according to a lawfully designed building scheme, which has the power to produce a building permit. The fourth pre-condition is that the bounds of jurisdiction of the settlement must be determined in advance by order of the Commander of the area. The Israeli Supreme Court has ruled that the fulfillment of the applicable Hague IV Convention criteria is a mandatory and integral part of satisfying those three pre-conditions of the local law. Sasson summed up the situation by explaining:
An unauthorized outpost is a settlement which does not fulfill at least one of the above mentioned conditions. And I must emphasize: an unauthorized outpost is not a "semi legal" outpost. Unauthorized is illegal.The report found "blatant violations of the law" by officials and state institutions. Many of the more than 100 outposts investigated added at state expense paved roads, permanent housing, power lines and other infrastructure. According to the report, some of the outposts were established on private lands owned by Palestinians with the help of Housing Ministry architects, the Housing Ministry funded many of the trailers used to start the outposts, and Defence Ministry officials allocated such private land to the quasi-official Jewish Agency.[122]
As part of the 2003 "Road map" for peace, Israel committed itself to remove about two dozen such settlements, an obligation it has yet to fulfill.[123]
In response to settler violence directed towards Israeli security forces, Israel declared it would no longer fund unauthorized outposts from November 2008. Settlers claim the violence was sparked by the beating of a settler child; border police spokesman Moshe Pinchi said he had no knowledge of the alleged beating and accused the settlers of "cynically" sending minors to attack the police.[124] However there is evidence that support continues unabated for illegal outposts. At one unauthorized settlement, Eli there has been recent work on a new road that cuts through Palestinian territory.[125]
According to a report of the Israeli Environmental Protection Ministry, waste water management is "virtually nonexistent" in unauthourized Jewish settler outposts and some other settlements, thus raw sewage is contaminating the ground water in parts of the West Bank. According to the report, the main cause of the contaminated water is that raw waste water flows from Hebron, Ramallah, Nablus, Jenin and other villages, without proper treatment. The report blames Israeli settlements for pumping contaminated water into the sewers, not Palestinian villages. 70% of the Jewish communities east of the Green Line are connected to treatment facilities, so "illegal outposts" are the main source of the untreated water, according to the Israeli report.[126]
In May 2009, Defense Minister Ehud Barak said that over two dozen illegal outposts in the West Bank had been "declared as such by the Talia Sasson Commission", and would be dismantled.[127]
On August 17, 2009, four ministers on Netanyahu cabinet (Deputy Prime Minister and Minister of Internal Affairs Eli Yishai (Shas), Vice Prime Minister and Minister of Strategic Affairs Moshe Ya'alon (Likud), Minister of Information Yuli Edelstein (Likud), and Minister of Science and Technology Daniel Hershkowitz (The Jewish Home)) embarked on a tour of West Bank outposts. During the tour, Yishai stated that the outposts are not illegal:[128][129]
These are legal settlements built by the governments of Israel. The people of Israel should know this settlement is legal. If someone thinks otherwise and plans to evacuate them, it will have to be approved by the government. You cannot just evacuate people from their homes without due process.
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