The Carter Administration View: "Settlements are Inconsistent with International Law"
Settlement Report | Vol. 12 No. 7 | March 2002
The Settlements
Israel began establishing civilian
settlements in 1968. Civilian settlements are supported by the
government, and also by non-governmental settlement movements
affiliated in most cases with political parties. Most are reportedly
built on public lands outside the boundaries of any municipality, but
some are built on private or municipal lands expropriated for the
purpose.
Legal Considerations
1. As noted above, Israeli armed forces
entered Gaza, the West Bank, Sinai and the Golan Heights in June, 1967,
in the course of an armed conflict. Those areas had not previously been
part of Israel's sovereign territory nor otherwise under its
administration. By reason of such entry of its armed forces, Israel
established control and began to exercise authority over these
territories; and under international law, Israel thus became a
belligerent occupant of these territories.
Territory coming under the control of a belligerent occupant does not thereby become its sovereign territory. International law confers upon the occupying state authority to undertake interim military administration over the territory and its inhabitants; that authority is not unlimited. The governing rules are designed to permit pursuit of its military needs by the occupying power, to protect the security of the occupying forces, to provide for orderly government, to protect the rights and interests of the inhabitants and to reserve questions of territorial change and sovereignty to a later stage when the war is ended.
On the basis of the available information, the civilian settlements in the territories occupied by Israel do not appear to be consistent with these limits on Israel's authority as belligerent occupant in that they do not seem intended to be of limited duration or established to provide orderly government of the territories and, though some may serve incidental security purposes, they do not appear to be required to meet military needs during the occupation.
2. Article 49 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 UST 3516, provides, in paragraph 6:
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
Paragraph 6 appears to apply by its terms to any transfer by an occupying power of parts of its civilian population, whatever the objective and whether involuntary or voluntary.
The Israeli civilian settlements thus appear to constitute a "transfer of parts of its own civilian population into the territory it occupies" within the scope of paragraph 6.
4. It has been suggested that the principles of belligerent occupation, including Article 49, paragraph 6, of the Fourth Geneva Convention, may not apply in the West Bank and Gaza because Jordan and Egypt were not the respective legitimate sovereigns of these territories. However, those principles appear applicable whether or not Jordan and Egypt possessed legitimate sovereign rights in respect of those territories. Protecting the reversionary interest of an ousted sovereign is not their sole or essential purpose; the paramount purposes are protecting the civilian population of an occupied territory and reserving permanent territorial changes, if any, until settlement of the conflict.
Territory coming under the control of a belligerent occupant does not thereby become its sovereign territory. International law confers upon the occupying state authority to undertake interim military administration over the territory and its inhabitants; that authority is not unlimited. The governing rules are designed to permit pursuit of its military needs by the occupying power, to protect the security of the occupying forces, to provide for orderly government, to protect the rights and interests of the inhabitants and to reserve questions of territorial change and sovereignty to a later stage when the war is ended.
On the basis of the available information, the civilian settlements in the territories occupied by Israel do not appear to be consistent with these limits on Israel's authority as belligerent occupant in that they do not seem intended to be of limited duration or established to provide orderly government of the territories and, though some may serve incidental security purposes, they do not appear to be required to meet military needs during the occupation.
2. Article 49 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 UST 3516, provides, in paragraph 6:
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
Paragraph 6 appears to apply by its terms to any transfer by an occupying power of parts of its civilian population, whatever the objective and whether involuntary or voluntary.
The Israeli civilian settlements thus appear to constitute a "transfer of parts of its own civilian population into the territory it occupies" within the scope of paragraph 6.
4. It has been suggested that the principles of belligerent occupation, including Article 49, paragraph 6, of the Fourth Geneva Convention, may not apply in the West Bank and Gaza because Jordan and Egypt were not the respective legitimate sovereigns of these territories. However, those principles appear applicable whether or not Jordan and Egypt possessed legitimate sovereign rights in respect of those territories. Protecting the reversionary interest of an ousted sovereign is not their sole or essential purpose; the paramount purposes are protecting the civilian population of an occupied territory and reserving permanent territorial changes, if any, until settlement of the conflict.
Conclusion
While Israel may undertake, in the
occupied territories, actions necessary to meet its military needs and
to provide for orderly government during the occupation, for the
reasons indicated above the establishment of the civilian settlements
in those territories is inconsistent with international law.
