Legalizing the Occupation! YES, YOU’VE READ IT CORRECTLY

By: Hiba B’irat

On the sixth of February 2017, the Israeli Parliament (Knesset) passed the so called “Settlements Regularization” law with the final reading. The law, that was first discussed in the Knesset in 2016 and passed its first and second reading by the end of the same year, aims to impart a legal status on the Israeli illegal settlements built on Palestinian private lands in the West Bank.

This article discusses the impact of the law on the occupied territories and the reasons behind its illegality.

About The Law and its impact:

With 60 votes in favor and 52 votes against, the highly controversial act of legalizing Israeli settlements on Palestinian lands has passed. The law, suggested by the far right wing namely The Jewish Home Party and the leading Likud Party, considers settlements constructed previously on privately owned Palestinian lands in the West Bank to be legal in an obvious response to the Israeli Supreme Court rules on dismantling Jewish outpost constructed on private lands belong to Palestinians in the West Bank.

The law has been shortly passed after implementing a Supreme Court ruling on the settlement of Amona. The court has decided in 2014 that the settlement of Amona, where 300 settlers live since the nineties, is illegal according to the Israeli Law that prohibits constructing settlements on private Palestinian lands. The court ruled that the settlement must be demolished before December 2016. The government, however, asked for a one month extension to find alternative housing for the settlers. The ruling was finally implemented in the beginning of February 2017.

The law provides that the Israeli “state” has the right to confiscate “the usage” of Palestinian private lands where Israeli settlements have already been constructed with either the “consent” of the state or “the good faith” of the settlers. Therefore, the Israeli Supreme Court may not rule on the legality of such settlements or order their demolition.

In return, the law states that the Palestinian original owners of the lands will be compensated by a 125% of the lands’ usage value or by offering them an alternative similar land provided they succeed in proving their ownership of the land. In case no one could bear the burden of establishing ownership claims to the land, the law considers it a public one; thus, belongs to the Israeli government; especially that the Supreme Court itself never ruled on the legality of confiscating Palestinian public lands for settlement activities or even for other purposes.

The terms used in the law are extremely broad in a trial to include as many settlements as possible under its rules. For example, the term “state” exceeds the Israeli government to local authorities, military commander and different Israeli organizations. The term “consent”, on the other hand, is not less broad; as consent may be given directly, indirectly, implicitly, explicitly, in advance, or later. Providing a settlement with services is considered consent in this case.[1]

Settlements Regularization’s law would retroactively confer a legal status on 16 Israeli settlements and a 4000 housing unit built on 8183 acres of Palestinian private lands in the West Bank including Amona settlement.[2]

The above mentioned articles of the law make it obvious that the Israeli Government has already started a wide scale project of annexing West Bank lands; especially that the broad language of the law and the ambiguous meanings of the terms hint that most, if not all, of illegal settlements are included by the law’s applicability.

Reasons behind the Law’s Illegality:

Article 42 of Hague Regulations of 1907 respecting the laws and customs of war on land defines occupation by stating “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Similarly, the second article of the Fourth Geneva Convention of 1949 states “In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.” According to these two articles the West Bank is considered to be under a legal regime of belligerent occupation which means that international humanitarian law, the Fourth Geneva Convention, The Hague regulations, and the international customary law, applies to the occupied territories.

The settlements regularization law is completely illegal according to not only the international humanitarian law but also the Israeli national constitution “Basic Law” and local military laws that apply to the West Bank.  this section, however, discusses how the law is inconsistent with the Israeli obligations under international law.

In addition to general rulings that prohibit any harm against protected civilians in the times of war and prohibits depriving them from the protection of the law under any circumstances, for example what is stated in article 32 of the Fourth Geneva Convention which reads “The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents,” and what is stated in article 47 of the same convention which reads “Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory,” there are more specific articles and rules that apply to this case; such rules will be discussed here on:

  • Settlements by themselves are a war crime:

Settlements on the occupied territories are problematic and illegal as a principle under international law. Article 49 (6) of the Fourth Geneva Convention of 1949 states “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Such crime is considered by the Rome Statute of the International Criminal Court to be a war crime falls within the jurisdiction of the court. Article 8(2)(b) (viii) adds “ The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;” to the list of war crimes.

Further details on the illegality of settlements in occupied Palestine can be found in our previously published article “Security Council Resolution 2334: Legal Aspects and Implications.”

  • Confiscating private property on the occupied territories is illegal:

International Humanitarian Law has differentiated between three types of property in the occupied territories: movable public property, immovable public property, and private property. Rule 51 of the International Committee of Red Cross (ICRC) rules on Customary International Humanitarian Law, which by the way is obligatory to all members of international community, deals with the three mentioned types. The rule states “In occupied territory:
(a) movable public property that can be used for military operations may be confiscated;
(b) immovable public property must be administered according to the rule of usufruct; and
(c) private property must be respected and may not be confiscated;
except where destruction or seizure of such property is required by imperative military necessity.”

Destruction of private or public property is rendered illegal unless performed for absolute military necessity. Article 53 of the Fourth Geneva Convention of 1949 rules “any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations is prohibited, except where such destruction is rendered absolutely necessary by military operations.” Similarly, article 46 of the Hague Regulations of 1907 states “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.”

For public property, however, the law allows the occupying power to use property, whether movable or immovable, belongs to the occupied state only in case of absolute military necessity.  The rule of the occupying power in immovable property such as lands, forests, and real estate belonging to the occupied state is, nonetheless, limited according to the law to administration and safeguarding. Article 53 of the Hague Regulations states “An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.” Article 55 of the same regulations provides “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.”

Additionally, the law treated some public properties in the occupied territories as private ones. Article 56 of the Hague Regulations provides “The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.”

On the other hand, article 49 of the convention makes it illegal to transfer or deport protected civilians from their lands in the occupied territories unless for security reasons providing that the occupying power sends them back once it is safe for them. The first paragraph of article 49 states  “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.”

Moreover, destruction of protected property under the Fourth Geneva Convention of 1949 is considered to be a war crime according to the Rome Statute of the International Criminal Court (ICC). Article 8(2)(a)(4) of the Statue adds “Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;” to the list of war crimes fall within the jurisdiction of the ICC; while the same article 8(2)(b) (xiii)  adds “Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;” to the list.

 

  • Implementing the occupier laws on the occupied territories is illegal

According to international humanitarian law, the occupying power has no sovereignty over the occupied territories; therefore, may not impose its laws on such territories unless under specific and limited situations provided by the law and accompanied by strict conditions. Moreover, the occupying power is obligated to respect the laws in force in the occupied territories, and limit its powers there to maintain security and public order. Article 43 of the Hague Regulations of 1907 states “the authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Article 64 of the Fourth Geneva Convention, on the other hand, states “The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws.”

The above mentioned articles obligate the occupying power to respect the laws in force in the occupied territories unless they constitute a threat to security and an obstacle before the applicability of the law.

 

  • The law openly and directly violates all UN decisions and rulings on the matter

Chapter 1 of the United Nations Charter of 1945 sets for the organizations purposes and principles. Article 2 (4) of the chapter states “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.,” while the same article paragraph 5 obligates all member states to comply with the organization’s purposes and principles stating “All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.”

The charter is more specific on the compliance with the Security Council’s decisions. Article 24 (a) of the charter states “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf,” while article 25 of the charter provides “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

All United Nations resolutions and decisions on the matter of settlements in Palestine, whether passed by the General Assembly or by the Security Council, declares Israeli settlements in West Bank and East Jerusalem as illegal and a flagrant violation of international law. Security Council resolution 2334 on settlements passed couple of months ago is the last UN ruling on the matter. Therefore, the settlement regularization law directly violates all relevant binding and non-binding rulings and decisions of the UN.

Details of many more resolutions and decisions on Israeli settlements, including 2334, can be found in our article “Security Council Resolution 2334: Legal Aspects and Implications” previously published on Palestine Watch Blog.

Conclusion:

By passing the “settlements regularization” law, Israel has decided to take its violation of international law and consensus to another level. The Israeli law violates international humanitarian law in many ways. Confiscating private lands, deporting civilians, implementing occupier’s laws on occupied territories and violating UN decisions are only examples of such violations. This alarming move of the Israeli Knesset amounts to an obvious and open theft of the Palestinian lands, ignoring the Israeli law itself, the international law, and the international community customs and consensus.

It is still unclear whether the law will survive the Israeli Supreme Court constitutionality test; however, the international community has to move quickly and strictly with this explicit and direct violation.

The UN has to move in order to obligate Israel to comply with its responsibilities under international law and stop all its violations and intended foes of rules of international legitimacy. Similarly, the high contracting parties to the Geneva Conventions have to convene in order to decide on this shameless breach of the conventions’ rules.

The Palestinian leadership, on the other hand, has to move legally, politically and diplomatically in order to stop this farce from destroying Palestinians’ lives and rights. A legal case must be brought in front of the International Criminal Court, and Israeli leaders and involved persons should be tried for war crimes. Not to mention the rule of organizations and activists in moving within their communities and boarders to bring attention to this violation and spread awareness on its danger and seriousness.

[1] https://www.lawfareblog.com/explaining-proposed-israeli-settlement-regularization-law

[2] http://www.aljazeera.net/encyclopedia/events/2017/2/7/%d9%85%d8%a7%d8%b0%d8%a7-%d9%8a%d8%b9%d9%86%d9%8a-%d9%82%d8%a7%d9%86%d9%88%d9%86-%d8%aa%d8%a8%d9%8a%d9%8a%d8%b6-%d8%a7%d9%84%d9%85%d8%b3%d8%aa%d9%88%d8%b7%d9%86%d8%a7%d8%aa

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