Page last updated at 10:35 GMT, Thursday, 7 January 2010

Jerusalem Diary: Legal or illegal

Palestinian man working on Israeli settlement
A Palestinian at work building homes on an Israeli settlement in the West Bank

By Tim Franks
BBC News, Jerusalem


The nice people who run the Middle East section of the BBC News website once told me that the ideal length for a diary, such as this, is 500 words.

And so, it was with some mild concern that I went to what was billed as a colloquium with the former President of the Israeli Supreme Court, Aharon Barak, on "Israel and International Law". Oceans of ink have flowed from this particular source.

Those settlements which have a security rationale are legal, those settlements that have no security rationale are illegal
Aharon Barak
Former President Israeli Supreme Court

Internationally, Aharon Barak is regarded as the towering figure of the Israeli legal establishment. He became a judge in the Supreme Court in 1978. He was its Chief Justice from 1995 to 2006.

He wears his status in the style to which Israelis are accustomed: a heap of unparted white hair; his face and shirt wide open.

I was keen to hear what he had to say about the legal status of settlements.

In an effort to explain in a concise and neutral way why settlements are contentious, BBC journalists often use the formula: "settlement of occupied territory is illegal under international law." This is set out at the end of Article 49 of the Fourth Geneva Convention.

Israel argues that the West Bank cannot be seen as "occupied territory", because it had previously been "illegally" annexed by Jordan. There is no other country, as far as I know, that does not view the West Bank as occupied territory.

But let's be honest. That instant-mix formula may be a useful journalistic shorthand in the brutal concision demanded by our business, but it begs a long list of questions.

I was not aware of a distinction, for me the settlements have always been illegal on the basis of the Geneva Convention
Hans Correl
Former UN Under-Secretary General for Legal Affairs

Among them: if it is illegal, where are the court cases? And what does Mr Barak have to say about settlements, given that Israel prides itself on the rule of law and membership of the community of nations?

Fascinatingly - although that adverb might suggest I need a new hobby - Aharon Barak said that the issue was not whether the Fourth Geneva Convention should apply. The executive, long ago, had saved the justices the trouble.

After Israel captured the territories, the then-attorney general had come to the Israeli Supreme Court and said to the judges, in the words of Aharon Barak: "Don't adjudicate. Leave it open. We, the state... undertake to follow the Fourth Geneva Convention. So judge us according to the Fourth Geneva Convention."

In which case, I asked Mr Barak if the Court had spent 40 years dodging the issue? Yes, there have been ad hoc rulings on specific bits of land. But no overall ruling on the status of the settlements.


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Compare, for example, the British government's clarity. It says "settlements in East Jerusalem and the West Bank are illegal."

Aharon Barak disagreed with the idea that the Court had been dilatory.

"The Israeli Supreme Court is like any other Supreme Court. It's like a broken watch. If you hit it, it works. It doesn't work from its own initiative. Whenever settlements were brought to court, we judged them," he said.

He also said there was a clear legal standard. "Those settlements which have a security rationale are legal. Those settlements that have no security rationale are illegal. Point."

Listening to all this, in the audience, was Yisrael Harel, the former chairman of the Settlers' Council. He is a man who disputes the idea that the West Bank is occupied territory and who strongly believes in Israel's ideological claim to the land.

But Mr Harel told me that this legal reading should bolster the legal status of every settlement. "Historically, all the times we've been in conflict, each settlement has a security value." He conceded that the army also needs to protect the settlers. "But life, where there are settlements, is more calm."

There is the international position - the Security Council Resolutions, the Geneva Convention, the rulings of the International Court of Justice, on the one hand. We have all these just positions which have no effect on the ground
Ghassan Khatib
Spokesman for the Palestinian Authority

But the argument of "security rationale" prompted a raised eyebrow, along the platform, from Hans Corell.

Mr Corell, a Swede, was the United Nations' Under-Secretary General for Legal Affairs from 1994 until 2004. "I was not aware of this distinction. For me, the settlements have always been illegal on the basis of the Geneva Convention," he said.

And it is that which frustrates Ghassan Khatib, the spokesman for the Palestinian Authority. "There is the international position - the Security Council Resolutions, the Geneva Convention, the rulings of the International Court of Justice, on the one hand. We have all these just positions which have no effect on the ground."

The cases that the Israeli Supreme Court now hears on settlements tend to focus on whether they have been built illegally on, for example, privately owned Palestinian land.

Aharon Barak did leave open the possibility that new cases could be heard on the basis of the "military" criteria. Then he checked himself.

"Don't interpret me as suggesting people go to the Supreme Court on the legality of settlements. So much time has passed. My feeling is that the question of the legality of settlements is a question that should be decided in a peace agreement," he said.

Here is a selection of your comments on Tim Franks' Jerusalem diary.

The Green Line is where the hostilities stopped in 1948 at the end of Israel's war of independence. The war was the result of the decision of the Arab side to reject the UN partition plan and to throw the Jews into the sea - in other words, to establish a Palestinian Arab state in all of Palestine, and to expel the Jews. The Green Line was not established through legal proceedings. It is the 1948 ceasefire line.
Avi Nofech, Moshav Melilot, Israel

Numan Sharjah comments are interesting because they illustrate how hyperbole often comes into play. He talks about Israelis as "outsiders" but most were born in Israel, many also had families who have lived there for centuries and many more were refugees from Arab lands. One hears very little recognition of the fact that there were as many Jewish refugees from Arab lands in 1948 as Palestinian refugees from what is not Israel. Why should they and their descendants (most of whom now live in Israel) be described as "outsiders"?
Jeremy Woolf, London

Israel's ruthless seizures of Palestinian territory and evictions of Palestinians from whatever homes are not demolished make only too clear its determination to ethnically cleanse Palestine. Any discussion of the legality of its actions is superfluous: only sanctions, divestment from its economy and a boycott might influence it to behave decently
Brian, Pittsburgh, USA

There are no shades of grey here: all settlements on the Occupied Palestinian Territories are illegal, full stop. Having visited both countries, it seems to me that an internationally recognised border should be established by the UN along the Green Line. Any Israeli building, whether existing or new, on the Palestinian side should be regarded as being as illegal as any Palestinian building on the Israeli side. Furthermore, Israel should be required to dismantle their illegal Apartheid wall where it encroaches on Palestinian soil, which it does in numerous places. Humanity and Justice have to prevail if any real peace is ever to be achieved, for the sake of the citizens of both countries.
Scott Weatherstone, Edinburgh, Scotland

Take the Jewish quarter of the old city as an example - all of the Jews there were either killed or expelled in 1948. Does this mean that if they return it is illegal? Similarly the Jews from Hebron or the Etzion block, is their returning to the land they owned before being illegally expelled, illegal?
Miche Norman, H

The Palestinian people were forcefully evacuated and occupied by the Jewish settlers. I cannot understand how an international body can justify or discuss this on a legal basis. They recognize Israel yet the fight for Palestinian rights is considered as terrorist activity by the West. On the one hand you have punished Iraq for the illegal occupation of Kuwait on the other hand western countries have collaborated and still support the forceful evacuation of a people from land they have lived on for thousands of years by an outsider. The so-called war against terrorism will not be successful until unjust policies and grievances of people are redressed.
Numan, Sharjah, UAE

Building these settlements has led to two types of populations: Israelis with civil rights living on land where Israeli law is not applicable but with democratic rights in Israel, and Arabs living on land occupied by a democratic country but not having democratic rights. This is something a modern democracy cannot have. Looking forward, Israel needs to choose between making this land part of Israel and giving equal rights to all citizens or withdrawing from this land and dismantling the settlements. That's already been done from Gaza and if there was someone to take responsibility for the land among Palestinians, would already have been done in the West Bank.
GF, Tel-Aviv, Israel

Jerusalem was designated a corpus separatum by the UN in 1947 to be given a special international status and government. It seems that Palestinian claims for the Eastern part of the city as the capital of their future state are as illegal as Israel's unification of the city. I wonder if amid the oceans of ink the BBC spends on every building constructed in Jerusalem and its legality, it'll find a little more ink to discuss this point.
Vasilii, Washington, US

The case of the illegal settlements by Israel is hurting Israel's standing among other countries. Its continuous disobedience to international law may cause fallout of its most needed international support in the long run. An apartheid attitude toward Palestinians may be tolerated for some time in the name of security, but for how long?
Khawja Latif, Morden, Canada

I was very happy to read Tim Franks' current column on the legal status of the settlements. I was happy, because it brought the complexities of this issue to the surface, taking it beyond the simplistic statements usually used by the BBC and many other commentators. People often use the word "illegal" to make a moral or political point about the status of the settlements. However, even if settlements are unjust or just plain stupid, they're not necessarily illegal!
Michael, Israel (currently in the US)

Lovely article but I don't think the British position is as clear as you make it out to be. Although they call the West Bank et al, Occupied territory, this was not the case when Jordan occupied it from 1948-1967. The rules of the 4th Geneva convention did not apply. Can you explain that?

Aryeh, Formerly Jerusalem

There are some other reasons why the settlements are not illegal under international law. One is that the relevant provision, article 49(6) of the 4th Geneva Convention only applies to territories of the parties to that Convention - why? Because its article 2 says so. The West Bank is not the territory of any party to the Convention. Another is that article 49(6) applies to compulsory deportations and transfers, not to voluntary settlements. A third is that the Geneva Convention did not abrogate the rights of the Jewish people to re-settle their ancient homeland recognised in the League of Nations Mandate and preserved by article 80 of the UN Charter.
Jonathan Turner, London, UK

International law is flawed regarding the occupied territories - it deals with territories held by countries. But the West Bank didn't belong to anyone since WW1. As far as the law is concerned, this land is no more Palestinian than it's Israeli. And the sooner the Palestinians realize that and return to the negotiations table the better.
Gal, Jerusalem, Israel

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