Settlements
“Settlements do constitute a form of colonisation in a world that has outlawed colonialism.” - John Dugard, Special Rapporteur to the UN Commission on Human Rights for the Occupied Palestinian Territories.
Since the 1970s, successive Israeli governments have constructed hundreds of settlements in the Gaza Strip and West Bank, including in and around occupied East Jerusalem. Some of these settlements are scattered on isolated hilltops, whilst others are enormous and look like large towns or “neighborhoods”.
According to the Israeli Central Bureau of Statistics there are 137 settlements in the West Bank, including in and around occupied East Jerusalem. The smallest settlement is Yafit, which is located in the Jordan valley of the West Bank. As of 2004, it had a population of 101 settlers. The largest West Bank settlement is Ma’ale Adummim, with a population of 28,923. The largest settlements in East Jerusalem are Ramot Allon with a population of 38, 720, followed by Pisgat Ze’ev with a population of 37, 210 and Gilo with 28, 716.
The purpose of the settlement enterprise is to disperse a large Jewish population in areas of high settlement priority to achieve the incorporation of parts of the West Bank into Israel. Areas of high settlement priority include occupied East Jerusalem and the area around Qalqilya, which is rich in underground water aquifers and prized agricultural land, as well as hilltops overlooking Palestinian population centres.
Israel refers to the Gaza Strip as the Gaza District and to the West Bank by the ancient names of Judea for the sector around Jerusalem, and Samaria for the northern sector near Jenin. The Israelis who live there are referred to as “settlers” in the Anglo-Saxon countries and as “colonialists” by most of the world (for example, in Spain they use the word “colono” and in France “colon” to describe Israeli settlers living in the Occupied Palestinian Territories). But as this primer is primarily aimed at an English-speaking readership, we will use the word “settlers” in the remainder of this section.
Development planning for settlements is undertaken by the Israeli government and the World Zionist Organisation. The WZO and the Jewish agency finance and organise civilian settlements. The Jewish National Fund builds roads to service the settlements.
In August 2005, after the Israeli Supreme Court ruled in HCJ 1661/05, The Gaza Coastal Regional Council v. The Knesset et al by a 10 – 1 majority that the West Bank and Gaza Strip are not part of the state of Israel, the government evacuated 8,000 settlers from Gaza. However, the Gaza disengagement plan violated the Palestinian people’s right of self-determination and the Oslo Accords. It is for the Palestinian people to determine their own destiny, not Israel. The Gaza Strip is not in itself a self-determination unit. According to Article IV of the 1993 Declaration of Principles: “The two sides view the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved during the interim period” [emphasis added]. Israel is required by law to withdraw not only from Gaza but from the West Bank as well.
Article XXX1.7 of the 1995 Israel-Palestine Interim Agreement on the West Bank and Gaza provides:
“Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations [emphasis added]”.
Since final-status negotiations have not yet taken place, and since the Palestinian people were not consulted about Israel’s unilateral military manoeuvres in the Gaza Strip, the disengagement plan violates the Oslo Accords. Moreover, according to Article XXI.5 of the Interim Agreement, the question of settlements is to be reserved for final-status negotiations. Yet Israel’s disengagement plan expressly provides in principle three that:
“In any future permanent status arrangement, there will be no Israeli towns and villages in the Gaza Strip. On the other hand, it is clear that in the West Bank, there are areas which will be part of the State of Israel, including major Israeli population centers, cities, towns and villages, security areas and other places of special interest to Israel” [emphasis added].
This is another violation of Oslo. The bulk of settlements and settlers (around 99%) will remain in the West Bank. According to the Yesha Settler Council, there were 225,028 settlers in the West Bank and 213,672 in occupied East Jerusalem in 2002. On 8 June 2005, the Israeli Central Bureau of Statistics reported that Israel had built almost twice as many homes in the first quarter of 2005 as in the same period of 2004. At the same time, new housing within Israel proper fell 6% from the first quarter of 2004.
Although Israel evacuated 8,475 settlers from the Gaza Strip in August 2005, 15,800 new settlers moved into the West Bank according to Mustafa Barghouti, Secretary of the Palestinian National Initiative. In a special report for the Guardian newspaper (“Israel redraws the roadmap, building quietly and quickly”, 18 October 2005), Chris McGreal wrote: “The total number of settlers has risen again this year with an estimated 14,000 moving to the West Bank, compared with 8,500 forced to leave Gaza.” In a report in the same newspaper (“Gaza Strip settlers may go to West Bank”, 17 November 2004) Conal Urquhart wrote that Yonathan Bassi, the director of the agency responsible for evacuating settlers, said they “are free people - they can go where they want. They can go to Canada, Jerusalem or any of the settlements in the West Bank” [emphasis added]. According to various news reports, some of Gaza’s settlers have made the move to the West Bank.
According to Dror Etkes, Director of Settlement Watch for Peace Now:
“It’s a trade off: the Gaza Strip for the settlement blocks; the Gaza Strip for Palestinian land; the Gaza Strip for unilaterally imposing borders … They [the Israeli Government] don’t know how long they’ve got. That’s why they’re building like maniacs.”
Israel’s E1 plan (meaning “East 1”, which is the name given to the stretch of land northeast of Jerusalem, to the west of the settlement of Ma’ale Adumim) is comprised of 12,000 dunams (12 square miles). This land has been set aside for new settlement activity and is designed to cut the West Bank into two units; to divide the north from the south. Dror Etkes says the E1 plan:
“…would, by design, block off the narrow undeveloped land corridor which runs east of Jerusalem and which is necessary for any meaningful future connection between the southern and the northern parts of the West Bank. It would thus break the West Bank into two parts – north and south. It would also sever access to East Jerusalem for Palestinians in the West Bank, and sever access to the West Bank for Palestinian residents of East Jerusalem.”
Settlements are linked by by-pass roads that are preserved solely for the use of settlers and those driving cars with yellow number plates. Palestinians can only drive cars with green number plates in their towns and villages which are surrounded by settlements, fences and walls (which have been built on their land). According to the Palestinian Society for the Study of International Affairs (PASSIA), Palestinians are forbidden to build near settlements or within 150 metres of the bypass roads that serve them. Bypass roads are under Israeli control and entail a 50-75-m buffer zone on each side of the road where no construction is allowed. There are 735.5 km of bypass roads in the West Bank.
According to a report by Israeli human rights organisation B’Tselem, Israel’s road regime in the West Bank is “based on the principle of separation through discrimination, bears striking similarities to the racist apartheid regime that existed in South Africa until 1994. In the roads regime operated by Israel, the right of every person to travel in the West Bank is based on his or her national origin.” (See “Forbidden Roads: The Discriminatory West Bank Road Regime”).
According to this report, the road regime in the West Bank is a based on a policy that “has never been enshrined in legislation, nor stated in official declarations, nor even indicated by road signs on the relevant roads. The policy is entirely based on verbal orders given to soldiers in the field.” This segregated road system is intrinsically linked to Israel’s settlement enterprise. As B’Tselem note:
“Contrary to the customary purpose of roads, which are a means to connect people with places, the routes of the roads that Israel builds in the West Bank … achieve the opposite purpose … These roads prevent the natural joining of communities and creation of a contiguous Palestinian built-up area in areas in which Israel wants to maintain control, either for military reasons or for settlement purposes … The vast majority of the roads that Israel has built in the West Bank was intended to aid the settlement enterprise. In some instances, the roads met the settlers’ transportation requirements, and in other cases, served to limit Palestinian construction in areas adjacent to settlements” [emphasis added].
On October 19, Reuters reported that Israeli security sources had revealed a plan to permanently ban Palestinians from using major roads in the West Bank. The Israeli army said it was considering designating several roads for separate use by Israelis and Palestinians. Palestinian chief negotiator Saeb Erekat said: “If they go ahead (and make the road restrictions permanent) it is the official introduction of an apartheid system.”
The type of people inhabiting settlements varies from place to place. For the most part, they are ordinary people who were offered generous subsidies and housing allowances on condition they bought their homes in settlements. Many of these people came from the former Soviet Union. A smaller number live in settlements for ideological reasons and are hostile to Palestinian aspirations for independence and statehood. These people will normally carry machine guns in public places strapped around their shoulders. They can frequently be seen in shops, bars and banks with their guns, especially in Jerusalem. Settlers have killed dozens of Palestinians and injured many more between September 2000 and October 2005. Settlers have also burned Palestinian crops, smashed property and poisoned water wells.
The Israeli government has spent decades encouraging people to move to settlements for “security” reasons. The reality, however, is that they have little to do with security. Rather, they are a form of neo-colonialism; a method of exerting a matrix of control over the local Palestinian population whilst depriving them of land to develop their own state.
What’s the problem with settlements?
1. They violate international law
Settlement activity is prohibited by Article 49 (6) of the Fourth Geneva Convention in Relation to the Protection of Civilian Persons in Times of War of 1949 to which Israel is a signatory. This article provides:
“The occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
On 9 July 2004, the International Court of Justice, which is the principal judicial organ of the UN, ruled that that this provision prohibits any measures “taken by an Occupying Power in order to organise or encourage transfers of parts of its own population into the Occupied Territory.” It then unanimously concluded that:
“Israeli settlements in the Occupied Palestinian Territory (including in East Jerusalem) have been established in breach of international law.”
In violating this provision, Israel is committing a “grave breach” of the Fourth Geneva Convention. Grave breaches of this Convention include “unlawful deportation or transfer … of a protected person”. Palestinians are “protected persons” according to Article 4. In order to acquire land to construct settlements Israel has had, on many occasions, to transfer Palestinians from the area in question. Article 146 of the said Convention provides:
“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case” [emphasis added].
The Fourth Geneva Convention was incorporated into British law through the Geneva Conventions Act of 1957. This Act provides British courts with universal jurisdiction in the case of grave breaches of that convention. According to The Manual of the Law of Armed Conflict, which was recently produced by the Ministry of Defence for “members of the UK’s Armed Forces and officials within the Ministry of Defence and other departments of Her Majesty’s Government”, Additional Protocol 1 to the Geneva Conventions extended the definition of grave breaches. These now include: “The transfer by the Occupying Power of parts of its own civilian population into the territory it occupies.” Therefore, Israelis who have committed, aided or abetted grave breaches of the Fourth Geneva Convention can be prosecuted if they are on British territory.
In any event, the forced deportation or transfer of a civilian population is also considered a crime under international criminal law. According to the 1998 Rome Statute of the International Criminal Court, a “crime against humanity” includes the deportation or forcible transfer of a population which is defined as “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted by international law.” The Rome Statute was incorporated into British law via the International Criminal Court Act of 2001.
Even the Israeli Foreign Ministry's legal adviser at the time of the 1967 war, Theodor Meron, warned his government that settlement-building in the occupied territories "contravenes the explicit provision of the Fourth Geneva Convention," and said in May 2007 that "I would have given the same opinion today." Meron, a holocaust survivor and president of the International Criminal Tribunal for the former Yugoslavia until 2005, is today an appeal judge at the Tribunal, and one of the world's leading international jurists.
He says that Abba Eban, Israel's foreign minister at the time of the 1967 war, was "sympathetic" to his legal opinion, which was forwarded to then-Israeli Prime Minister Levi Eshkol but ignored by the government. "It's obvious to me that the fact that settlements were established and the pace of the establishment of the settlements made peacemaking much more difficult," Meron says.
http://news.independent.co.uk/world/middle_east/article2584164.ece
2. The settlement system is a form of legal apartheid
The separation in applicable law and court jurisdiction between Israeli settlers and Palestinians in the Occupied Territories is a form of legal apartheid. Article 2 of the International Convention on the Suppression and Punishment of the Crime of Apartheid of 1974 prohibits dividing a population on racial lines for administrative purposes.
Most Israeli settlers are deemed in Israeli law to be residents of Israel, resulting in a separate legal system for settlers and Arabs.
The legal regime for Israeli settlers is determined by the military governor. He or she issues military orders which replicate the texts of various Israeli laws. In this way, the settlers are freed from the local law of the Occupied Territories in terms of education, personal status, health and labour.
For law suits between settlers, the Israeli government created courts in the settlements and made their judgments enforceable in courts inside Israel. Arab courts continue to function in the Gaza Strip and West Bank, but the settlers do not file cases there because the Israeli government has provided non-Arab alternatives.
If an Arab wanted to sue a settler, the Arab courts would, theoretically, have jurisdiction. But in practice, they have no enforcement mechanism to compel an appearance in court by a settler defendant. Annex IV to the 1995 Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip concerning legal affairs provides: “The Palestinian authorities shall not arrest Israelis or place them in custody” (Article II).
In criminal matters, settlers are subject to the Israeli legal regime. Criminal cases against settlers are prosecuted either in Israeli courts within Israel, in settlement courts, or very rarely in Israeli military courts. According to Israeli military law, Arab courts are not permitted to try settlers in their courts for any infringement of criminal law.
The exclusion of criminal jurisdiction over settlers has left Palestinians unprotected from physical attacks by settlers, which occur with some frequency. Israeli authorities rarely prosecute the perpetrators of these attacks.
In June 2003, the Knesset (Israel’s Parliament) passed the Nationality and Entrance into Israel law which discriminates between Arabs and Jews resident in the Occupied Palestinian Territories for the acquisition of Israeli nationality. Whilst Jewish settlers are entitled to Israeli nationality, Palestinians or their offspring are not entitled to it even if they marry Israelis.
3. Settlements violate American and European policy
Since the 1960s, successive US governments have publicly opposed Israel’s settlement policy. On 21 April 1978, the State Department’s Legal Advisor Herbert J. Hansell wrote a letter “concerning the legality of Israeli settlements in the Occupied Territories” to Congressmen Donald M. Fraser and Lee H. Hamilton.
In the letter Hansell concluded that:
“…the establishment of…settlements in those territories is inconsistent with international law” [emphasis added].
On 30 April 2001, Senator George J. Mitchell - former member and majority leader of the US Senate, and chairman of the Report of the Sharm El-Sheikh Fact-Finding Committee – reiterated official US policy as follows (at pp. 15 - 16):
“During the half-century of its existence, Israel has had the strong support of the United States. In international forums, the U.S. has at times cast the only vote on Israel’s behalf. Yet, even in such a close relationship there are some differences. Prominent among those differences is the U.S. Government’s long-standing opposition to the GOI’s polices and practices regarding settlements.”
In March 1980, the US voted in favour of UN Security Council resolution 465, which determined in the operative paragraphs that:
“all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel's policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East” [emphasis added].
Resolution 465 also deplored the “continuation and persistence of Israel in pursuing those policies and practices and calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem”. It also called upon “all States not to provide Israel with any assistance to be used specifically in connection with settlements in the occupied territories.”
The EU has consistently opposed Israel’s settlement policy. Its member states have voted in favour of several UN Security Council resolutions critical of Israeli settlements. In 1980, The European Nine (as it was then called) issued its Venice Declaration in which it considered that “settlements, as well as modifications in population and property in the occupied Arab territories, are illegal under international law” and constitute a serious obstacle to the peace process in the Middle East.
4. Settlements in occupied East Jerusalem do violate US policy
The US does not recognise Israel’s unlawful annexation of occupied East Jerusalem, nor has it moved its embassy to West Jerusalem. In 1969, only three years after Israel captured and occupied the West Bank and Gaza, Charles Yost, the US ambassador to the UN, told the Security Council:
“… Among the provisions of international law which bind Israel, as they would bind any occupier, are the provisions that the occupier has no right to make changes in laws or in administration other than those which are temporarily necessitated by his security interests, and that an occupier may not consolidate or destroy private property. The pattern of behaviour authorized under the Geneva Conventions … and international law is clear: the occupier must maintain the occupied area as intact and unaltered as possible, without interfering with the customary life of the area, and any changes must be necessitated by the immediate needs of the occupation. I regret to say that the actions of Israel in the occupied portion of Jerusalem present a different picture, one which gives rise to understandable concern that the eventual disposition of East Jerusalem may be prejudiced and that the private rights and activities of the population are already being affected and altered” [emphasis added].
“My Government regrets and deplores this pattern of activity, and it has so informed the Government of Israel on many occasions since June 1967. We have consistently refused to recognize those measures as having anything but a provisional character and do not accept them as affecting the ultimate status of Jerusalem” [emphasis added].
In 1971, then-Ambassador George H.W Bush, the father of the incumbent US President, delivered a formal statement on Jerusalem to the UN Security Council. He said:
“We regret Israel’s failure to acknowledge its obligations under the fourth Geneva Convention … We are distressed that the actions of Israel in the occupied portion of Jerusalem give rise to understandable concern that the eventual disposition of the occupied section of Jerusalem may be prejudiced … We have on a number of occasions discussed this matter with the Government of Israel, stressing the need to take more fully into account the sensitivities and concerns of others. Unfortunately, the response of the Government of Israel has been disappointing.”
In 1971, the US supported Security Council resolution 298 which confirmed “in the clearest possible terms that all legislative and administrative actions taken by Israel to change the status of the City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section, are totally invalid and cannot change that status.”
The US also voted for UN Security Council resolution 465 (1980), referred to above, and abstained from resolutions 446 (1979) and 452 (1979):
Resolution 446 “calls once more upon Israel to abide scrupulously by the 1949 Fourth Geneva Convention, to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem, and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories.”
Resolution 452 also calls upon "the Government and people of Israel to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem.”
To sum up
Settlements are inimical to a final peace deal between Israel and the Palestinians based on the two-state solution. Without the settlements a two-state solution is possible; with them it becomes impossible. Settlements do nothing to advance good neighbourly relations between Jews and Arabs in the Middle East. They are illegal and should be dismantled.
Governments all around the world are legally obliged to ensure the respect for the IV Geneva Convention “in all circumstances”. This includes ensuring that civilian settlement activity in occupied Palestinian territory ceases completely.
Settlements are a remnant of the past, a relic of the colonial era. They are bad for the environment, bad for Palestinians and bad for humanity. They blight the beautiful and ancient valleys and hills of the Holy land as well as the ancient city of Jerusalem. Israel’s wall has been specifically designed and constructed to buttress the settlement enterprise. It has grossly disfigured the landscape for generations of Israelis and Palestinians.
Roger O’Keefe, lecturer in law at the University of Cambridge commented on the link between Israel’s wall and the settlement enterprise in an article he wrote on the ICJ’s advisory opinion in the Revue Belge De Droit International (2004):
“In short, the opinion finds not only the construction of the wall to be illegal but with it the policy and practice of Israeli settlements in the occupied territories, considered as parts of its associated régime.”
This associated régime includes the range of legislative and regulatory measures associated with the wall, from requisitions of land to the restrictions imposed on the Palestinian populace by the declaration of the Closed Area. In other words, not only are the settlements illegal per se, but so are the laws, regulations and roads that serve them.