Iain Scobbie on Israeli settlements in West Bank

As settlers continue to take revenge from Palestinians for the murder of an Israeli settler in the West Bank near Nablus last Thursday, after which the Israeli Defense Forces shot three Palestinian men who are members of the Fatah movement headed by Palestinian President Mahmoud Abbas, tensions continue among Palestinians about the measures taken. The implications will echo through the weeks ahead.

On the question of the status of the Israeli settlements in the occupied Palestinian territory, I just came upon an interesting opinion piece by international law expert Iain Scobbie (coauthor of “The Israel-Palestine Conflict in International Law: Territorial Issues“), published in the Los Angeles Times on 16 December.

Here are some excerpts:
“…since its inception, Israel has never claimed legal title to all of the territory of the former British Mandate of Palestine. On the contrary, it has repeatedly denied such a claim in official statements and acts. On May 22, 1948, soon after Israel’s declaration of independence, the country’s representative to the U.N. Security Council stated that its territory was ‘the area outlined in the map appended to the resolution of 29 November 1947, as constituting the area assigned to the Jewish state’ — namely that area accorded to the nascent Israel by the U.N. Partition Plan contained in General Assembly Resolution 181. This did not include the West Bank. The same view was consistently expressed by Israeli courts. In 1950, Israel’s Supreme Court ruled, ‘The territory of the state of Israel does not coincide with all the territory under the former mandate’. Israel thus refused to be seen as the successor state to the Palestinian mandate. Accordingly, it refused to accede to treaties that bound the mandate and refused to pay the public debt that Palestine owed to Britain. How then can there be a right of Israeli settlement in the West Bank, territory to which Israel itself has never made legal claim? … Article 49 [of the Fourth Geneva Convention of 1949, which prohibits the transfer of parts of a state’s population into territory it occupies] prohibits any and all population transfers from the occupying power to occupied territory. In 2004 [in its Advisory Opinion on the Legality of the Construction of a Wall in the occupied Palestinian territory], the International Court of Justice unanimously found that Israeli settlements in the occupied Palestinian territory breached Article 49 … Israel knew soon after the Six-Day War in 1967 that settlements in the occupied territory were illegal. As Gershom Gorenberg recounts in his book, ‘The Accidental Empire: Israel and the Birth of Settlements‘, Theodor Meron, then legal advisor to Israel’s ministry of foreign affairs and a distinguished international lawyer specializing in the law of armed conflict and human rights, advised the Israeli government in September 1967 that settlements in the newly occupied territory were prohibited by Article 49.  The fundamental point about settlements, then, is not that they obstruct diplomacy — which they do — but rather that they are illegal. Occupied territory is not under the sovereignty of the occupant. It cannot treat the territory it occupies as it sees fit. An occupant’s powers are circumscribed by international law, which unequivocally prohibits the settlement of part of its population, whether forcible or voluntary, in that territory. While this prohibition arises from Article 49, Article 1 requires parties not merely to respect the terms of the convention in their own conduct but also to ensure that others do. All states are party to the Geneva Conventions, therefore all states have the duty to ensure that Israel’s illegal policy of creating settlements in occupied Palestinian territory ceases without further delay”.

This opinion piece can be read in full here.

Of course, Israel does not view the territory in question as “occupied” — and thus rejects much of this occupation. In the legal memo written by Theodore Meron, to which Scobbie refers above, the oPt (occupied Palestinian territory) is referred to as “administered”…

Scobbie provides a link to an English-language translation of Meron’s legal memo, here.

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