The Israeli Settlements under Article 49 (paragraph 6) of the Fourth Geneva Convention

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The Israeli Settlements under Article 49 (paragraph 6) of the Fourth Geneva Convention

 Introduction

The Palestinian-Israeli conflict – as a product of developments in the entire region – is a conflict which unfortunately does not seem to come to an end soon. The year of 2017 symbolises 120 years of Zionism,[1] one century anniversary of the Balfour-declaration[2] which promised Jews a home in Palestine, 70 years since the 1947 United Nations (UN) Partition Plan[3] and 50 years of the occupation of Palestinian territories.[4]

The first Jewish populations inhabited only some parts of Palestine and lived side by side and peacefully with the Arabs. But especially after the Holocaust more and more Jews sought a safe home in Palestine based on their right[5] in the Balfour Declaration. By 1947, the Jewish movement to Palestine caused such a change in the demography of the country, that the United Nations General Assembly (UNGA) adopted the 1947 Partition Plan.[6] The neighbouring Arab countries (Egypt, Syria, Jordan, Lebanon and Iraq) did not agree upon this plan due to its imbalance.[7] The UN Partition Plan gave 56 percent of the land to Jews which were still a large minority of 33 per cent and 43 per cent of Palestinian land to the Arabs. The remaining 1 percent was Jerusalem which was a corpus seperatum, belonging to neither the Jews nor the Arabs.[8]  This plan led to a war between Arabs and Jews which the Arabs lost.[9]  The Jews who won the war then established Israel by the Declaration of Establishment of the State of Israel (14 May 1948).[10] Armistice Agreements were established between the newly established Israel and these countries except Iraq.[11] Palestine became divided into three parts being a) Israel (including West Jerusalem); b) the West Bank (including East Jerusalem) which was then occupied by Jordan; and c) the Gaza Strip which was then occupied by Egypt.[12]

Only since the occupation of 1967 Jews started moving to the occupied Palestinian areas by way of settlements built by the Israeli government which is the subject matter of this thesis.

In this thesis, the Israeli settlements in the West Bank are analysed on their compliance with Article 49 (paragraph 6) of the Fourth Geneva Convention. The West Bank is part of Palestine and lies between Israel and Jordan. The exact borders of the West Bank can be found in the Israel-Jordan Armistice Agreement.[13] According to this agreement some of the Palestinian villages from the West Bank – as defined in the UN Partition Plan – became part of Israel.[14]

The West Bank remained under Jordanian occupation until 1967.[15] Only after 1967, Israel occupied the West Bank and took over its military control after the Six-Day War.[16] Article 49 (paragraph 6) of the Fourth Geneva Convention is part of the law of occupation and therefore only applies when there is a de facto occupation. This thesis discusses the Israeli settlements based on the occupation of the West Bank since the 1967 Six Day War.

Although Gaza is also part of Palestine since the disengagement of the Israeli Defence Forces (IDF) from the Gaza Strip in 2005, the Israeli settlements in the Gaza Strip are dismantled.[17] Therefore the Gaza Strip will not be part of this thesis.[18]

This conflict is for sure highly sensitive and controversial, thus can be discussed from different perspectives as philosophical, religious or humanitarian. However, the anniversaries as mentioned above, the recent UN Security Council (UNSC) resolution 2334[19]  and Israel’s response by retroactively legalising some of the settlements by its national law (the Regularisation Bill)[20] make it necessary to discuss the Israeli settlements in the West Bank (also) from a legal perspective. This thesis, therefore, is based on the following research question:

 

“To what extent does the establishment and expansion of the Israeli settlements in the West Bank violate Article 49 (paragraph 6) of the Fourth Geneva Convention, and what are the legal consequences of such a violation for Israel and third States?”

 

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[1] The World Zionist Organization, Exhibition: Israel celebrates 120 years of Zionism after the First Zionist Congress in Basle (August 1897) <https://unitedwithisrael.org/ben-gurion-airport-celebrates-120-years-of-zionism/> accessed 16 July 2017.

[2] The Balfour Declaration (2 November 1917) <file:///C:/Users/Semra%20Altuntas/Downloads/The_Balfour_Declaration.pdf> accessed 16 July 2017.

[3] UNGA resolution 181(II), Future government of Palestine, A/RES/181(II) (29 November 1947) <https://unispal.un.org/DPA/DPR/unispal.nsf/0/7F0AF2BD897689B785256C330061D253> accessed 16 July 2017.

[4] J. Bowen, BBC News, 1967 war: Six days that changed the Middle East (5 June 2017) <http://www.bbc.com/news/world-middle-east-39960461> accessed 16 July 2017.

[5] Right in this relation is disputable, yet it will not be discussed further as it falls out of the scope of this thesis.

[6] UNGA resolution 181(II) (n 3).

[7] UNGA Special Session on Palestine, The Origins and Evolution of the Palestine Problem: 1917-1988 (30 June 1979) <https://goo.gl/2MDWoB> accessed 16 July 2017.

[8] J. Beinin and L. Hajjar, Primer on Palestine, Israel and the Arab-Israeli Conflict (Middle East Research and Information Project (MERIP), February 2014) <http://www.merip.org/sites/default/files/Primer_on_Palestine-Israel(MERIP_February2014)final.pdf> accessed 16 July 2017.

[9] The 1967 war (n 4).

[10] The Declaration of the Establishment of the State of Israel, Official Gazette: Number 1.

[11] Tel Aviv, 5 Iyar 5708, 14.5.1948 Page 1; Israel-Egypt, General Armistice Agreement, 1949, 42 UNTS 251; Israel-Lebanon, General Armistice Agreement, 1949, ibid., 287; Israel-Jordan, General Armistice Agreement, 1949, ibid., 303; Israel-Syria, General Armistice Agreement, 1949, ibid., 327.

[12] Y. Dinstein, The International Law of Belligerent Occupation (The case of Israel, 1st published, Cambridge University Press 2009) 13.

[13] Israel-Jordan, General Armistice Agreement, Article V (n 8) <http://www.mfa.gov.il/mfa/foreignpolicy/mfadocuments/yearbook1/pages/israel-jordan%20armistice%20agreement.aspx> accessed 16 July 2017.

[14] See below the maps of the UN Partition Plan (UN Resolution 181(II)) and the borders according to the Israel-Jordan General Armistice Agreement (Rhodes Armistice Line).

[15] Jordan Annexed West Bank after 1948 War <http://www.palestinefacts.org/pf_1948to1967_jordan_annex.php> accessed 16 July 2017.

[16] Israel-Jordan, Treaty of Peace, 1994, 275 ILM (article 3(2)) <http://peacemaker.un.org/sites/peacemaker.un.org/files/IL%20JO_941026_PeaceTreatyIsraelJordan.pdf> accessed 16 July 2017.

[17] The Disengagement Plan – General Outline (18 April 2004) <http://mfa.gov.il/MFA/ForeignPolicy/Peace/MFADocuments/Pages/Disengagement%20Plan%20-%20General%20Outline.aspx> accessed 16 July 2017.

[18] S.D. Dikker Hupkes, What Constitutes Occupation? Israel as the occupying power in the Gaza strip after the Disengagement (Jongbloed 2007) 15.

[19] UNSC resolution 2334 (2016), S/RES/2334 (23 December 2016), available from <http://www.un.org/webcast/pdfs/SRES2334-2016.pdf> accessed 16 July 2017.

[20] Knesset Press Releases, Knesset passes settlement regulation law, Publicized: 7th February 2017 <http://www.knesset.gov.il/spokesman/eng/PR_eng.asp?PRID=13341> accessed 16 July 2017.