Iran unrest continues/ US policy on settlements
Nov 29, 2019 | AIJAC staff
Update from AIJAC
Update 11/19 #04
This Update features material on two separate subjects – the ongoing popular unrest against the regime within Iran (which comes as the anti-Iranian element in protests in Iraq hits a new high with the burning of the Iranian consulate in Najaf), and the US Administration’s announcement last week of a policy that “The establishment of Israeli civilian settlements is not, per se, inconsistent with international law.”
We lead with a good summary of what is now known about the Iran protests – and much is unknown due to regime censorship of the media and efforts to close down the internet in Iran – prepared by the Jerusalem Centre for Public Affairs (JCPA). The article discusses the regime’s efforts to quell the protests, including the internet shutdown, and the evidence of large numbers of deaths as a result of the violent crackdown. It also analyses the damage allegedly done by the protestors as well as the significance of government organised pro-regime counter-protests. For everything you need to understand what has been going on in Iran, CLICK HERE. A follow-up piece from the JCPA discusses reports that wholesale large-scale violent repression by the regime may be succeeding in quelling the protests.
Next up is a political analysis of the announcement by US Secretary of State Mike Pompeo regarding the Israeli settlements and international law, from Douglas Feith, a former senior US official himself. Feith documents that the widely made claim that Pompeo’s announcement “upended decades of US policy” is just wrong – and it was only the Carter Administration from 1978-1980 and possibly the Obama Administration in its dying days that claimed settlements were illegal. He notes that all other US administrations, including ones in which Feith himself served, regarded settlements as a political, not a legal, issue – as Pompeo also asserted. Further, Feith makes a strong case that they were right to do so, and the insistence on making settlements a legal issue is a significant barrier to Israeli-Palestinian peace. For his full commentary, CLICK HERE.
Finally, noted Israeli international law expert, peace negotiator and former diplomat Alan Baker explores the details of international law discussion of the West Bank. He notes that, contrary to much of the simplistic discussion of the issue, there are at least three different forms of legal elements defining Israel’s rights in the West Bank – rights emanating from never revoked, internationally-recognised, historic Jewish claims to the area, rights related to how Israel took control of the area in 1967 and subsequent UN Security Council resolutions on the subject, and rights emanating from the 1995 Oslo accords between Israel and the Palestinians. For Baker’s erudite yet accessible discussion of the oft-ignored complexities relating to international law and the West Bank, CLICK HERE.
Readers may also be interested in…
- More on the actual history of US policy toward West Bank settlements from the US organisation CAMERA.
- More good comment on the settlements issue from former Israeli diplomat Dore Gold and American commentator John Podhoretz.
- More on the Iranian crackdown on the protestors – as the regime insists the US is behind the protests.
- Some good analysis of the Lebanon protests – and their anti-Iranian elements – from American expert Tony Badran.
- Signs France may now be advocating a tougher line with Iran – see here and here.
- Isi Liebler argues that, while he personally believes the corruption indictments against Israeli PM Netanyahu are unwarranted, Netanyahu needs to step aside for the good of the nation.
- Some examples from the many stories and comments now appearing at AIJAC’s daily “Fresh AIR” blog:
- AIJAC’s media release on the US announcement vis-a-vis settlements and international law.
- An AIJAC backgrounder analysing the latest International Atomic Energy Agency reports on Iran and how they suggest Iran is rapidly growing closer to nuclear weapons capabilities.
- An AIJAC video in which Aharon Shapiro analyses the state of the political standoff in Israel, and how this may be affected by the Attorney-General’s announcement that PM Binyamin Netanyahu will be indicted on corruption charges.
- AIJAC’s Colin Rubenstein spoke to Sky News about the antisemitism crisis engulfing the British Labour party under Jeremy Corbyn in the lead-up to the Dec. 12 election in the UK.
- An AIJAC video of top Israeli security analyst Ehud Yaari explaining the background and outcome of the latest rocket war around Gaza earlier this month.
The Unrest in Iran Continues
Propaganda poster on Khamenei’s website blaming thugs and mercenaries for the protests in Iran. (Khamenei website)
- Despite a series of tough security steps taken by the Iranian regime, including live-fire against protesters and widespread arrests, the protests continue.
- Iranian government opponents in exile and some human rights activists estimate that the number of fatalities has crossed the threshold of 300. Radio Farda obtained data on the arrest of at least 4,800 civilians, mostly young people, in 18 provinces.
- The resumption of Internet connection is slow after eight days of total blackout; the Internet was only renewed on desktops in public institutions, several universities, and selected homes. With the partial resumption of Internet connection, hundreds of civilians sent clips showing the security forces’ harsh clashes with protesters, in which it appeared that the regime used tanks, snipers, helicopters, and direct live-fire on the protesters.
- The hashtag #IranProtests continues to be used by most Iranian media activists in both Persian and English and is a channel for updating videos.
- The BBC Persian, which reports extensively from the protests and was accused by the Iranian regime of inciting demonstrators and even supporting them, concluded that the regime’s forces set fire to the many government buildings, banks, and other public places to justify the violence by Iranian security forces.
For more than a week, the Iranian regime has been trying to deal with widespread protests, which erupted because of rising gas prices, and it seems that the protests have not subsided. Despite a series of tough security steps taken by the Iranian regime, including live-fire on protesters, ongoing widespread arrests, as well as extensive propaganda (such as staging rallies backing the regime and accusations of foreign involvement in the protests), the protests continue. The Iranian leader’s office has posted on Khamenei’s website a poster showing “thugs and mercenaries” trying to set fire to the Iranian home. In the notice attached to the poster, the leader expressed his support for the decision to raise the price of fuel.1
Iran’s Internet blackout, following the decision of the Supreme National Security Council (SNSC) to cut off Iran from the Internet, helped the regime in the early stages of the protests by preventing the mass coordination of protesters, but it has caused enormous economic damage. The President of the Iranian Chamber of Commerce admitted on November 24, 2019, that the Iranian Internet shutdown caused over $1.5 billion in damage to the economy and damaged trade and other economic fields.
Mohammad-Javad Azari Jahromi, Minister of Information and Communications, clarified on November 24, 2019, that his office did not support the decision to disconnect Iran from the Internet, but that it was accepted for security reasons by the Supreme National Security Council.
Despite the fact that the services provided by most Iranian businesses were available since they were present on the domestic network, a vast volume of their business is still dependent on the Internet’s foreign services. The shutdown has caused severe problems (marketing, payments, transactions, no access to Google) and losses for them.
Presidential Chief of Staff, Mahmoud Vaezi, voiced hope that the Internet would be up and running soon. Some member of the Majlis’ National Security and Foreign Policy Committee explained that since all the main perpetrators behind the unrest were detained, the Internet will be running again within the next coming days. Mobile Internet will only be restored with permission from the Council and with the Council’s delegated restrictions
Meanwhile, Iran’s official news agency (IRNA) said that overall price increases of 25 to 50 percent over the past week had been a result of the rising fuel prices, despite the sweeping promises by Khamenei and President Hassan Rouhani that there would be no increase in the price of other products and services.
Human rights organization Amnesty International, updated its figures on the death toll on Saturday, November 11, 2019, stating that at least 143 protesters were killed in the past week, though the organization adds that the exact number could be much higher.23
Radio Farda published the names of 138 dead. Iranian government detractors in exile and some human rights activists estimate that the number of fatalities in the first week has crossed the threshold of 300. Radio Farda has also obtained data on the arrest of at least 4,800 civilians, mostly young people, in 18 provinces. Hasan Khalilabadi, Chief of Shahr-e Rey (Tehran’s southern outskirts) City Council, in which Fashafouyeh prison is located, maintained that the prison does not have the facilities to deal with the growing number of detainees, describing some of them as “dangerous prisoners.”
The resumption of Internet connection is slow after eight days of total blackout; the Internet was only renewed on desktops in public institutions, several universities, and selected homes in several provinces, but not in all 31 of them. Even after the reconnection of Internet to desktops, access to sites outside Iran is extremely limited. Cell phones have not yet been reconnected to the Internet and because of this, users have difficulty reporting riots, unusual events, or uploading complex (longer, higher resolution) videos. With the partial resumption of Internet connection, hundreds of civilians sent clips showing the security forces’ harsh clashes with protesters, in which it appeared that the regime used tanks, snipers, helicopters, and direct live-fire on the protesters.
In any case, the hashtag #IranProtests continues to be used by most Iranian surfers in both Persian and English and is a thread for updating videos in which, there are photos against the regime, pictures of the murdered protesters, as well as photos of security forces acting against the protesters. Some Iranians on the Internet claim that security forces are demanding $3,500 from the families of those killed so that they can receive the bodies of their loved ones.
From all the clips, it is evident that the regime is threatened by the intensity of the protests. Although now it is also apparent that Iran was prepared in advance for these protests on the eve of the rise of fuel prices. Operations Commander of the Basij Paramilitary Forces (Iranian Revolutionary Guard’s branch of volunteers), Salar Abnoush, called the protests a “World War” which Iran’s sworn enemies had planned and invested for years lying in wait for an opportunity to exploit the situation and “only God saved the regime.” Other security chiefs admitted that protests took place in more than 100 cities in 28 out of 31 provinces, but they noted that “a very great danger has passed over the life of the regime.” Iran’s police Chief Hossein Ashatri called on state-run TV to air footage from the recent unrest in a bid to expose and eventually detain leaders. Qassem Mirzai-Nikoo, a representative in the Majlis from Damavand city, said on November 24, 2019 that the protests were held in more than 500 locations, and over 130 people were killed.
In this context, Ali Fadavi (Deputy Commander of the Revolutionary Guards and former Commander of the Revolutionary Guard Navy), in an attempt to justify the indiscriminate shooting by security forces, claimed “mercenaries” fired live ammunition into the protesters’ backs and burned banks, gas stations, government institutions, and privately owned stores. He did not specify where these incidents occurred. However, Fadavi added that within 48 hours, we (the Revolutionary Guards) put an end to these diabolical actions involving the United States and Britain, Germany, France, and Saudi Arabia. Security forces filmed the rioters, calling them “hypocritical mercenaries” (an Iranian nickname for the opposition Mojahedin-e Khalq) and promised to deal with them later. Fadavi called for called the Islamic Revolutionary Front (Islamic organizations and states opposing the United States and the West) “to establish a parallel system for the Internet to prevent enemy intervention in their internal affairs.”4
“Live Fire at Protesters from Justice Department Roof”
Some videos show that despite the brutal violence and the use of indiscriminate live-fire –sometimes from the roofs of government offices (in Javanrud, Kermanshah district, troops fired at demonstrators from the roof of the Department of Justice! In the city of Meriwan in the Kurdistan Province, helicopters fired at the demonstrators; and in the city of Shiraz, armored personnel carriers were seen on the streets of the city). In some of the videos, protesters were seen fighting with their bare hands and bravely blocking the security forces with their bodies (in Sari) against a Basij motorcycle charge.5 In several cases, situations were recorded of dozens of the regime’s armed forces fleeing shamefully, after they were encircled by protesters and their cars wrecked.
Protesters in various areas attack clerics, and offices of Khamenei’s representatives in various districts were set alight. In the city of Yazd, protesters attacked a Khamenei representative and set fire to his house. A number of religious seminaries affiliated with the regime were also set on fire. Opposition activists’ abroad report that many people affiliated with the regime have not slept in their home for several days for fear of renewed protests and becoming a target for angry protesters.
The BBC Persian, which reports extensively from the protests and was accused by the Iranian regime of inciting demonstrators and even supporting them, concluded that the regime’s forces set fire to the many government buildings, banks, and other public places to justify the violence by Iranian security forces.6 This conclusion is also common believed by many Iranian citizens. According to them, the regime wants to prove that the protesters were “mercenaries” who received funds from the United States, Israel, France, and Saudi Arabia. In recent days, the regime emphasized foreign involvement in the planning and execution of the riots and tries to distinguish between “legitimate” protesters who sought to protest fuel prices and these “mercenaries and thugs who were recruited by external parties.”
“Spontaneous” Pro-Regime Rallies
Iranian pro-government protesters attend a demonstration in Teheran, Iran November 25, 2019. Nazanin Tabatabaee/WANA (West Asia News Agency) via REUTERS
As part of the measures taken by the regime to contain the riots, it organized on November 25, 2019, proactive “spontaneous” rallies aired live by state-run TV channels and continues to accuse foreign parties and opposition organizations of organizing and orchestrating protests. During the rallies, crowed chanted “Death to America,” “Death to Israel,” “Death to the rioters,” and “Death to plotters.”
The Iranian regime is trying to project to Iran and beyond that it has widespread popular support. In the Kayhan newspaper, which reflects the opinion of the Iranian leader, the headline on November 25, 2019, read that the “Iranians will humiliate President Trump and Pompeo today.” Another newspaper’s headline read “We have complaints, but we continue to support the Islamic Revolution.”
IRGC Commander: “We Will Annihilate our Enemies”
In his speech during the main rally in Tehran on November 25, 2019, IRGC commander lambasted Iran’s enemies, “America, the UK, Israel and Al-Saud” (Saudi royal family). He “warned them not to push Tehran into ‘devastating retaliation’ for their support for the ‘rioters’.”
You experienced Iran in the battlefield where you were slapped on the face. You failed to respond (probably referring to the attack on oil infrastructure in Saudi Arabia and U.S. drone interception) Whoever attacks our borders, our nation’s way of life, righteousness, dignity, and assets, will be severely punished in such a way that everyone would learn a lesson…We have shown restraint but – be careful – our patience is limited … We do not leave any actions without retaliation.
Referring to the protests Salami added, “We know that our people do not exchange their revolution for petrol. The entire Iranian nation knows that petrol is just an excuse. You witnessed how in 48 hours, a global sedition (protests) was ended abruptly and peace was restored (to Iran).”7
Iranian Foreign Ministry spokesman Abbas Mousavi criticized the “poor level” of foreign policy conducted by some foreign countries whose foreign ministers asked to record and send videos of recent demonstrations in Tehran that show the burning of banks, cars, and buildings. Those countries that “knowingly and unknowingly” support rioters and riots, he continued, should take responsibility for their actions, and they should watch the support rallies for the regime in Tehran to understand “where Iran’s real citizens are.”
Exiled Iranian Prince Reza Pahlavi (the son of the Shah) sent a sharp and unprecedented message to Khamenei. In another missive, he called on the Iranian people to mourn the hundreds of those killed in the protests, wear black ribbons, and visit mourning families. Thousands of Iranians in the diaspora have been holding demonstrations in support of protesters in Iran for several days, calling for the removal of the Ayatollah regime in their homeland. Dozens of demonstrations took place in Barcelona, Tbilisi, Berlin, Hanover, Cologne, Bern, Hamburg, Paris, Rome, various cities in Sweden, Norway, Finland, Canada, and the United States (New York, Washington, Los Angeles, and more). Exiled Iranian artists, including famous ones, appeared on stations affiliated with the expatriates and expressed overwhelming support for the removal of the regime. They called for the unification of the ranks behind the Iranian people until the mullahs’ regime is overthrown. Some even appeared in the demonstrations.
And in Iran – former Iranian President Mahmoud Ahmadinejad was the first of the former regime-linked personalities to break his silence and denounced the heavy-hand applied to the protesters who “were only expressing their opposition the deterioration in their economic situation.”
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7 https://tinyurl.com/Salami-Riots2511; https://en.abna24.com/news//irgc-commander-us-israel-britain-s-arabia-not-to-cross-irans-redlines_989232.html
Israeli Settlements Are a Political, Not a Legal Issue
National Review, November 22, 2019 2:53 PM
It was not radical for Secretary of State Mike Pompeo to revive the Reagan policy.
Secretary of State Mike Pompeo has just upended longstanding, widely held opinion about the legality of Israel’s West Bank settlements. Critics say he is off on the law, has radically broken with U.S. policy, and is undermining the pursuit of peace. Those critics are wrong on all scores.
Pompeo made four main points. First, the settlements are not “inherently illegal.” Second, the West Bank’s fate should be determined through negotiations. Third, international law “does not compel a particular outcome” in favor of Israel or the Palestinians. And fourth, the issue is political in nature, not legal, and attacking the settlements’ legality “hasn’t advanced the cause of peace.”
For 35 years U.S. administrations refrained from repeating President Carter’s criticism of Israeli settlements as illegal, Pompeo recounted, but then President Obama broke with this policy by taking the Carter position at the United Nations. President Reagan had rejected Carter’s view. “This administration,” Pompeo said, “agrees with President Reagan.”
I advised President Reagan on the subject. Here’s some background.
The 1978 Carter Administration claim that Israeli settlements violate international law was rooted in the strained relationship between then US President Jimmy Carter (right) and then Israeli PM Menachem Begin (left).
President Carter had a famously strained relationship with Israeli prime minister Menachem Begin. Carter pressured him to make concessions to the Palestinians. This included condemnation of Israeli settlements as illegal, supported by a five-page letter dated April 21, 1978, and signed by State Department legal adviser Herbert Hansell.
That letter was a poor piece of work, dealing only with authority that Israel acquired as victor of the 1967 war. It ignored entirely the rights of Jews under the 1922 Palestine Mandate, which called for “close settlement by Jews on the land.” How could those rights have been extinguished by Jordan’s unlawful attack on Israel in 1948 or by Jordan’s purported West Bank annexation in April 1950, which the United States never recognized?
From ancient times until 1949, Jews could lawfully live in the West Bank. Mr. Hansell didn’t explain when that right was terminated, though he did admit that Jordan was not the legitimate sovereign of the West Bank between 1949 and 1967.
Seeing that Carter invoked law simply as a stick for whacking Israel, Reagan rose to Israel’s defence, declaring he disagreed with Carter. As one of the three Middle East specialists on the National Security Council staff, I was asked for a short note on the subject for the president.
Recalling Reagan’s February 1981 statement that the settlements are not illegal, I concurred and said, “The issue is properly a political question, not a legal question.” The U.S. government “has recognized no country’s sovereignty over the West Bank since Britain controlled the area under the Palestine Mandate.”
The sovereignty issue “is open and will not be closed until the actual parties to the conflict formally consent to a peace agreement.” In the meantime, “there is no law that bars Jews from settling on the West Bank” and no one should be excluded from living there “simply on account of his nationality or religion.”
It was not radical for Pompeo to revive the Reagan policy. What was radical — and what impeded diplomatic progress — was the Obama administration’s return to Carter’s legalistic criticism of Israel.
A demonstrator holds a Palestinian flag during a protest against Jewish settlements in Kofr Qadom, in the West Bank, November 22, 2019. (Mohamad Torokman/Reuters)
Carter held the conventional view that the Arab–Israeli conflict is in some essential way about the settlements. Trump-administration officials see it differently. Their view evidently is that the conflict reflects the hopes of Israel’s enemies that they can weaken the Jewish state, separate it from its U.S. ally, and ultimately destroy it. What fuels the conflict is the notion that Israel is a vulnerable, alien presence that lacks roots, legitimacy, and moral confidence.
For years, anti-Israel propaganda concentrated so intensely on attacking the settlements as illegal because that line of argument was deeper than a criticism of policy: It called Israel’s legitimacy into question. As Israel’s chief enemies know, asserting that the Jews have no right to live in the West Bank — an important part of the ancient Jewish homeland — calls into question the Jews’ right to have created Israel in the first place. In both cases, the right relates to the Palestine Mandate, which linked Zionist legitimacy to “the historical connection of the Jewish people with Palestine.” Israel’s first prime minister, David Ben-Gurion, invoked the Palestine Mandate in the state’s Declaration of Independence.
This question of rights is distinct from whether it is sensible policy for Israel to build or expand settlements in the West Bank. And that is a different question from whether and how Israel should divide the West Bank in a peace deal, if Palestinian leaders are ever truly willing to end the conflict through compromise.
Pompeo drew the line prudently. He repudiated the unconstructive Carter-Obama policy by rejecting the claim of illegality. He bolstered Israel’s legitimacy. And he kept open the issue of how the parties should divide the West Bank in a peace deal, except to say that they should do so through mutual agreement.
By moving the U.S. embassy in Israel to Jerusalem, recognizing Israeli sovereignty over the Golan Heights, and declaring the West Bank settlements legal, Trump administration officials are strengthening U.S. ties to Israel. They are systematically contradicting those who argue that Israel can be isolated and destroyed. In the despair of the eliminationists is the best hope for a negotiated peace.
DOUGLAS J. FEITH, a senior fellow at Hudson Institute, served as under secretary of defense for policy in the George W. Bush administration.
Israel’s Rights in the West Bank Under International Law
By Alan Baker
Tablet magazine, November 18, 2019
US Secretary of State Mike Pompeo delivers a statement on the Trump administration’s position on Israeli settlements in the West Bank during a news briefing at the State Department in Washington, DC, Nov. 18, 2019. Photo: Reuters / Yara Nardi.
This article will briefly analyze the three major elements defining Israel’s rights in the West Bank.
Firstly, and underscoring all other considerations, are the international legal rights emanating from the indigenous and historic claims of the Jewish people in the area as a whole, virtually from time immemorial. These rights were acknowledged in 1917 by the Balfour Declaration’s promise of a national home for the Jews in Palestine, and subsequently recognized internationally and encapsulated into international law through a series of international instruments.
Secondly, Israel’s legal rights following the 1967 Six-Day War, as the power administering the West Bank areas of Judea and Samaria (so described in the U.N. 1947 Partition Resolution 181), and the concomitant, unique sui genesis status of the area.
Thirdly, Israel’s rights under international law following the 1993-1995 Oslo Accords between Israel and the PLO, and especially the 1995 Interim Agreement, (commonly known as Oslo 2) which established a unique territorial arrangement as a form of lex specialis, that divided the control and governance of the West Bank areas between a Palestinian Authority established for that purpose, and Israel.
Israel’s rights in the West Bank areas of Judea and Samaria did not originate with Israel’s attaining control of the area following the 1967 Six-Day War.
Long before, the Balfour Declaration issued by the British government in 1917 acknowledged the indigenous presence and historic aspirations of the Jewish people to reestablish their historic national home in Palestine. While legally the Balfour Declaration, in and of itself, was a unilateral governmental declaration, it received international legal acknowledgement and validity in a series of instruments, commencing with the 1920 San Remo Conference and Declaration by the Supreme Council of the Principal Allied Powers. San Remo encapsulated the content of the Balfour Declaration into the post-World War I arrangements dividing the former Ottoman Empire. In this way, the Principal Allied Powers finalized the territorial dispositions regarding the Jewish people in respect to Palestine and the Arabs in respect to Mesopotamia (Iraq), Syria, and Lebanon.
The 1917 Balfour Declaration set off a chain of international agreements and resolutions which provide legitimacy to an Israeli presence in the West Bank.
The San Remo Declaration stated inter alia that:
“The mandatory will be responsible for putting into effect the declaration originally made on the 8th [2nd] of November, 1917, by the British Government, and adopted by other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people …”
This was incorporated into Article 95 of the (unratified) Treaty of Sèvres of Aug. 10, 1920, and subsequently in the Preamble and Article 2 of the Mandate for Palestine approved by the Council of the League of Nations on July 24, 1922:
“The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.”
The continued validity of these foundational legal rights encapsulated in the various international instruments predating the establishment of the United Nations was also assured under Article 80 of the United Nations Charter:
“… nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.”
The second element defining Israel’s rights under international law in the West Bank areas of Judea and Samaria relates to the period following the 1967 Six-Day War, subsequent to Jordan’s participation in the combined military action against Israel, in concert with Egypt and Syria. During this conflict Israel attained control of the areas of Judea and Samaria and established a military administration to govern the local population, pursuant to the accepted norms and requirements of international law.
However, the issue of Israel’s international rights in administering the area was complex in light of the unique legal and political status of the territory.
In classical situations of belligerent occupation of the territory of a sovereign state, the rights and obligations vis-a-vis the territory and the local population are set out in the 1907 Hague Regulations of Land Warfare and the 1949 Fourth Geneva Convention on the Protection of Civilian Persons in Time of War.
These instruments prescribe clear norms of behavior between an occupier and the local population as to the rights and duties involved in administering the area, protecting the forces of the occupier and respecting the humanitarian rights of the local population. Such norms cover issues of property, respect for local law and private property rights, ensuring public order and safety, and respecting the territorial rights of the sovereign pending settlement of the dispute.
With regard to the West Bank areas, the legal situation was not the classical situation of belligerent occupation of the land of a sovereign state. This irregularity stemmed from the fact that Jordan was not considered by the international community as having attained legitimate sovereign rights over the areas of Judea and Samaria, following its 1950 unrecognized annexation of the areas. As such, from the legal point of view, since there existed no legitimate sovereign power, a sui generis situation existed in which the classic laws of occupation were not legally applicable.
The late Israeli judge and legal scholar Meir Shamgar set out the case that the West Bank is legally Sui Generis, and not “occupied” as such under the Fourth Geneva Convention.
Israel’s status, as explained by its then Military Advocate General, Meir Shamgar (later to become Israel’s attorney general and chief justice), was:
“The territorial position is … sui generis, and the Israeli government tried therefore to distinguish between theoretical juridical and political problems on the one hand, and the observance of the humanitarian provisions of the Fourth Geneva Convention on the other hand.”
From the start, Israel distinguished between the unique nature and status of the territory on the one hand, and accepted and requisite international obligations vis-a-vis the local population in the day-to-day administration of the territory, on the other hand, pending a peaceful solution regarding its final status.
Concomitant with its assuming control in June 1967 Israel committed itself, through a series of military proclamations and orders to act in accordance with the relevant norms of international law in all matters including property, respecting existing local legislation, and other general provisions.
In the same context, without officially acknowledging the formal applicability of the Fourth Geneva Convention to the territories, which would have been tantamount to recognizing that the territory was Jordanian, Israel committed itself to apply vis-a-vis the local population, the humanitarian provisions of the Fourth Geneva Convention.
Pursuant to Article 55 of the 1907 Hague Regulations dealing with the issue of property, Israel, as “administrator and usufructuary,” maintained the right to use public, non-privately owned land and property, pending the final outcome of the dispute.
This premise served as the basis for Israel’s settlement policy, enabling use of public lands and properties while strictly respecting private rights of ownership of local residents of the territories. Thus, residents of Israeli settlements never received ownership rights to the land, which is provisionally leased to them by a government custodian pending an agreed determination of the territorial dispute.
Israel has consistently rejected the oft-heard accusation in international political bodies that its settlement policy violates the prohibition in Fourth Geneva Convention on the mass transfer of its residents into the territory. This in light of the provenance of such prohibition in the post-Second World War mass transfers of populations in Europe by the Nazis in an attempt to alter the demographic structure of the countries involved. This was made clear in the official Red Cross commentary, edited by Jean Pictet, on the sixth paragraph of the Geneva Convention article 49, regarding deportation and transfer of persons into occupied territory.
“…. It 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. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.”
The fact that the 1993-95 Oslo Accords determined that the issue of settlements will be a negotiating issue in the permanent status negotiations underlines the fact that the settlement issue has yet to be agreed upon, and is, of necessity, inherently linked to the other permanent status issues, including borders, Jerusalem, security and the like. As stated in the Oslo Accords:
“It is understood that these negotiations shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.”
Pursuant to the 1967 Six-Day War, U.N. Security Council Resolution 242, adopted on Nov. 22, 1967, set out the basic framework of rights and obligations intended to lead to a solution of the Middle East conflict. The nonbinding but key resolution, adopted under Chapter VI of the U.N. Charter dealing with the pacific settlement of disputes, affirmed inter alia the rights of all states in the area to just and lasting peace, termination of belligerency, respect for sovereignty and independence, and secure and recognized boundaries, and called for negotiations to achieve a peaceful and accepted settlement.
This resolution has constituted the basis for the subsequent peace treaties between Israel and its neighbors Egypt and Jordan. It also serves as the central pillar in the series of agreements signed between Israel and the PLO regarding the West Bank. Such negotiations proceeded over the years to develop possible models for Israel and the Palestinians to negotiate between them the rights that they respectively claim in the areas of the West Bank.
During this period, and up to the signing of the 1993-1995 Oslo Accords, Israel continued to administer the areas on the basis of the rights to which it was entitled pursuant to international law.
The 1996 Oslo Accords between Israel and the Palestinians also helped define Israel’s rights in the West Bank.
The third element defining Israel’s rights in West Bank was the landmark 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo 2) witnessed by the world leaders and endorsed by the U.N.
The parties agreed, pending the negotiation an agreement to determine the permanent status of the area, to divide the effective control between a Palestinian Authority established for that purpose, and Israel. In this way the Oslo Accords created a sui generis legal regime, a lex specialis that overrides any other, previously applicable legal framework that may have been applicable, including the Geneva Convention.
As such, the PLO, as the formal representative of the Palestinian people, formally agreed that in addition to those West Bank and Gaza Strip areas in which all powers and responsibilities for governance and administration would be transferred into the hands of the Palestinian Authority (Areas A and B and the Gaza Strip), Israel would retain powers and responsibilities in part of the area (Area C) vis-a-vis both local Palestinian residents in the area, as well as the Israeli citizens residing in settlements and villages. The parties agreed that this arrangement would remain valid pending the outcome of negotiations between them on the permanent status of the areas.
Despite attempts by the international community, through nonbinding political statements and resolutions in the U.N., to prejudge the outcome of the negotiations by claiming that the territories are “occupied Palestinian territories,” there exists no such legally accepted or agreed to determination.
Similarly, the Oslo Accords did not specify the form the permanent status of the area would take—whether one state, two states, federation, confederation or otherwise. Thus, states and organizations advocating a “two-state solution” are, in fact preempting the outcome of the negotiations that have yet to take place. Any agreed solution will only emanate from negotiations between the Palestinian leadership and Israel and cannot be imposed unilaterally by U.N. resolutions, or by any international forum, or individual leaders.
Any permanent status agreement, if and when reached, will be the sole agreed upon instrument duly determining the status of the area and the respective international and bilateral rights and commitments both of Israel and the Palestinians.
Time will tell.
Alan Baker currently directs the international law program at the Jerusalem Center for Public Affairs. He served as the legal counsel of Israel’s foreign ministry and Israel’s ambassador to Canada. He was involved in all the negotiations on the various agreements between Israel and its neighbors.