Israel’s Settlement Policy
For 41 years Israel has consistently and aggressively pursued settlement construction and expansion in the West Bank. Approximately 30 settlements were established in the first 18 months of the occupation, and Israel has used its effective control over the OPT ever since to construct a total of 149 settlements, now home to more than 470,000 settlers. The development of these settlements has required extensive expropriation and annexation of Palestinian land and the construction of separate roads for settlers and Palestinians that carve up the West Bank into enclaves. Currently the settlements control over 40 percent of the West Bank, including essential agricultural and water resources, and are accompanied by a vast infrastructure that violates a range of fundamental human rights of the Palestinian people. The most prominent aspect of this infrastructure is the Annexation Wall, which encloses and further dissects Palestinian communities and incorporates illegal Israeli settlements on its western side. The settlement infrastructure also includes Draconian physical and administrative restrictions on Palestinian freedom of movement, including an arbitrary permit system, checkpoints, roadblocks and gates that further separate West Bank locations from one another.
Despite international condemnation, East Jerusalem has been a focal point of Israel’s illegal settlement policy, and is a microcosm of the broader issue of settlement in the West Bank. It is a particularly clear example of the extremely detrimental effect of the settlement policy on the Palestinian right to self-determination. In 1967, 12 settlements were built in East Jerusalem alone, which are now home to more than 200,000 Israeli settlers. While Palestinians constitute over 50 percent of the population of East Jerusalem, only 7.3 percent of its land is available for Palestinian construction. The majority of the remaining land was re-zoned to prevent Palestinian use, and in effect serves as a land reserve for further settlement construction and expansion. Since 1967, Israel has persisted in illegal policies aimed not only at securing a demographic superiority of the Jewish population in occupied East Jerusalem, but also at isolating East Jerusalem from the rest of the West Bank, with which it is territorially, politically, socially and historically contiguous. Recently, Israel has confiscated more Palestinian property in order to build a Light Rail system connecting the settlements in East Jerusalem with West Jerusalem, further entrenching them in occupied Palestinian territory.
Palestinian self-determination, the prerequisite to a just and lasting peace, cannot be meaningfully realised without the removal of the settlements. Instead of removing them, however, the Israeli government has consistently expanded settlements, despite repeated guarantees during peace negotiations to, at a minimum, freeze settlement construction. The most recent promise to stop construction was made by Ehud Olmert in the wake of the Annapolis Conference in November 2007. Notwithstanding this promise, a further 1,920 new housing units have been approved in East Jerusalem. This figure includes the 884 new residential units referred to in an announcement this week by Israeli Ministry of Housing spokesperson, Eran Sidis, which were approved as a celebratory gesture of Israel’s illegal annexation of East Jerusalem.
Settlement Construction under International Law
The settlements in the OPT violate a number of international legal norms, and their illegality has been recognised by the International Court of Justice (ICJ) and several United Nations (UN) resolutions. They are a flagrant violation of Article 49(6) of the Fourth Geneva Convention, which prohibits an Occupying Power from transferring parts of its civilian population into occupied territory. Israel further violates international humanitarian and human rights law through the expropriation of Palestinian property not justified by military necessity, and severe movement restrictions resulting from the construction and expansion of settlements and their associated infrastructure.
In addition to these violations, Israel’s settlement policy in the OPT, and particularly in East Jerusalem, clearly indicates an intention to retain control over these areas in any future political settlement. This violates a core principle of the UN Charter: Article 2(4), which prohibits the acquisition of territory by the use or threat of force. Moreover, the settlements fragment the West Bank, including East Jerusalem, into isolated geographical units, severely limiting the possibility of a contiguous territory and the ability to dispose freely of natural resources, both of which are required for the meaningful exercise of the right to self-determination. As such, Israel’s settlement policy is a blatant assault on the realisation of the Palestinian right to self-determination – a right that constitutes a peremptory norm of international law, from which no derogation is permitted.
Obligations of the International Community in Relation to Settlements
The international community has a moral imperative to end these violations and is under several legal obligations to bring Israel into compliance with international law, yet it has repeatedly failed to do so. These include the obligation on High Contracting Parties under Article 1 to ensure respect for Fourth Geneva Convention and the duty to ensure respect for the principles of the UN Charter. The international community also has a duty to promote respect for international human rights law. Moreover, under customary international law States have an obligation not to recognise or assist in the creation or maintenance of an internationally wrongful act, such as the transfer of the civilian population of the Occupying Power into the occupied territory. In its failure to live up to any of these responsibilities, the international community has tacitly endorsed the continuation of Israel’s illegal policies and practices in the OPT.
The UN Security Council, in particular, has failed to adopt concrete measures in respect of Israel’s egregious violations of international law, despite multiple resolutions condemning the illegal settlements and their violation of the Palestinian right to self-determination. The paralysis of the Security Council in this regard is in large part due to the failure of the United States to exercise restraint in using its veto power. Since 1983 the United States has vetoed over 20 draft Security Council resolutions critical of Israel’s policies and practices in the OPT.
UN member States can overcome the paralysis of the Security Council and, through the General Assembly, act in the interests of international peace and security. UN General Assembly Resolution 377 A (V), “Uniting for Peace” (1950) provides the General Assembly with the ability to recommend collective measures to ensure respect for fundamental provisions of the UN Charter. Past measures recommended under this resolution have included calls upon member States to impose “comprehensive mandatory sanctions in accordance with the provisions of the Charter” and urging the political, economic, military and cultural isolation of South Africa as a result of its occupation of Namibia and its apartheid regime. After 41 years of occupation, and the systematic failure of Israel to abide by UN Security Council and General Assembly resolutions or to respect fundamental principles of international law, such measures must also be considered in relation to Israel.
With the occupation now into its fifth decade and the prospects for peace receding, Al-Haq therefore calls upon:
UN member States to use the powers granted to the General Assembly under the ‘Uniting for Peace’ resolution to reconvene the 10th Emergency Special Session under agenda item five (Illegal Israeli actions in Occupied East Jerusalem and the rest of the OPT). Israel must be subjected to the full weight of collective measures, including diplomatic and economic sanctions, until the settlements are removed from the OPT, including East Jerusalem, the occupation is ended and the right of the Palestinian people to self-determination is meaningfully exercised.
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