Kerry is mistaken on settlements
by Alan Baker, Dan Diker
Nov. 12, 2013
The express purpose of the permanent status negotiation continues to be to determine, by agreement, the status of the territory, to which Israel has a longstanding legitimate claim.
US Secretary of State John Kerry’s repeated assertions that “Israel’s settlements are illegitimate,” which he reiterated most recently in a November 6 interview with Israel’s Channel 2 television, are legally and factually mistaken. Publicly reasserting them, in fact, prejudges and even undermines the very negotiations Secretary Kerry has been brokering between the Palestinian Authority and Israel.
Pursuant to the “Oslo Accords,” and specifically the 1995 Israel-Palestinian Interim Agreement, the “issue of settlements” is one of the “core issues” to be negotiated in the permanent status negotiations between the parties.
President Bill Clinton, on behalf of the United States, is signatory as witness to that agreement, together with the leaders of the EU, Russia, Egypt, Jordan and Norway.
In fact, there is no requirement in any of the signed agreements between Israel and the PA that either side cease or freeze settlement activity until the final disposition of those disputed territories is negotiated between the sides. The opposite is in fact the case.
The above-noted 1995 interim agreement enables each party to plan, zone and build in the areas under its respective control.
In the context of these carefully crafted and mutually agreed upon arrangements under the internationally sanctioned Oslo accords, Israel wonders why Secretary Kerry has repeated determinations that Israel’s settlements are “illegitimate” – assertions that are not supported by international law.
The oft-quoted prohibition on the transfer of populations into occupied territory (Art. 49 of the 4th Geneva Convention) was, according to the International Committee of the Red Cross’s own official commentary on that convention, drafted in 1949 to prevent a re-occurrence of the Nazis’ forced mass relocation of populations during the Second World War.
The immediate post-war circumstances under which the convention was drafted underscore its inapplicability to sui generis situations such as Israel’s settlement activity.
Attempts by some in the international community to attribute Article 49 to Israel and suggest a comparison between former Nazi-coerced population transfers and Israeli housing starts in the West Bank emanate from longstanding partisan political sympathies as opposed to carefully considered legal arguments.
Moreover, the formal applicability of the 4th Geneva Convention of 1949 to the disputed territories of Judea and Samaria/the West Bank cannot be claimed since they were not occupied by a prior, legitimate sovereign power.
The Hashemite Kingdom of Jordan occupied the West Bank from 1949 to 1967. However, Jordan’s sovereignty was rejected by the international community, except for Britain and Pakistan.
While it has become popular in international circles to pre-assign ownership rights of the West Bank to the Palestinians, these disputed territories cannot be defined as “Palestinian territories” or as “Palestine.”
No such entity exists, and there has never been any binding agreement or international determination that Judea and Samaria/the West Bank are Palestinian.
In fact, the express purpose of the permanent status negotiation continues to be to determine, by agreement, the status of the territory, to which Israel has a longstanding legitimate claim, backed by international legal and historic rights.
Notably, Israel is the only country in the 193 member UN General Assembly whose rights to sovereignty in the territory west of the Jordan river were twice affirmed last century, first as part of the Mandate for Palestine by the League of Nations and then by its successor organization, the United Nations, via its founding charter.
Today, while Israel’s territorial rights are in force, its vibrant democracy continues to debate what concessions of its rights are possible in the framework of peace negotiations.
More important is the fact that Israel’s housing and settlement policy in geographically contested areas neither prejudice the outcome of current negotiations nor mandate displacement of local Palestinian residents from their private property.
Since 1993 and the Oslo Exchange of Letters with the PLO , and more specifically since the 1995 Oslo Interim Agreement, Israel has committed itself to negotiate the issue of settlements as well as other core issues.
It seems vitally important to avoid predeterminations that prejudge the outcome of peace negotiations. That is why Secretary Kerry must retract his comments on settlements to maintain his credibility and that of the US administration as “fair and honest” broker in the quest for a secure, viable and durable peace agreement between the PA and the State of Israel.
Amb (ret.) Alan Baker served as Israel’s Ambassador to Canada.
He was legal counsel of Israel’s Ministry for Foreign Affairs from 1996 to 2004 and was involved in all the negotiations of the Oslo peace process.
Dan Diker served as secretary- general of the World Jewish Congress from 2011 to 2013.