Memorandum submitted by Stephanie Koury, Senior Research Fellow at the School of Oriental and African Studies

 

 

1. Political Developments within the OPT since June 2007: Israeli Settlements

1.1 The issue of settlements impacts both the political process and economic development. Despite the launch of the Annapolis political process, settlement expansion has not slowed down in the West Bank including in occupied East Jerusalem.[1] Several studies have documented the relationship between Israel's settlements and its closure policy to facilitate movement of settlers, and their negative impact on the Palestinian economy and development.[2] Continued expansion of and presence of settlements and the accompanying restrictions on movement (i.e. closed roads, 569 physical obstacles to movement[3], etc) undermine international efforts for peace and donor government support for "quick start" economic projects or longer-term development. In light of these findings, this section will briefly illuminate the shortcomings of Israel's definition of and actions pertaining to a settlement freeze, a freeze which is required under the Quartet Roadmap and Israel's obligations under international law.

 

1.2 On March 12, Israeli Foreign Ministry spokesperson Arye Mekel is reported as saying that Israel's policy on construction in the settlements and a freeze was based on the following four principles[4]:

a. No expansion of existing settlements beyond the originally approved master plan of each community;

 

b. No establishment of new settlements;

c. No appropriation of land for settlement construction; and

d. Economic incentives to residents of existing settlements in Judea and Samaria have been cancelled.

1.3 Mekel said the government viewed this policy as fulfilling Israel's commitments under the road map and as in line with the understandings discussed at the Annapolis conference in November. While the above may represent the Israeli government's view of its obligation, it does not amount to a freeze in any reasonable definition of the word "freeze" nor by standards that are required under international humanitarian law and principles of international law.[5] Rather, this policy articulates loopholes to a settlement freeze for the following reasons:

1.4 Regarding 1.2.a "No expansion of existing settlements beyond originally approved master plan of each community." This criterion allows Israel to continue to expand geographically existing settlements, and several times their current size. For example, according to a 2007 Israel Peace Now Report, the built up areas of settlements constitute only 1/5 of the settlements currently approved jurisdiction areas.[6] Settlements such as Ariel, Ma'ale Addumim, Mitzpe Shalem, among many others, could expand several times their current geographical size.[7] Existing approved master plans could house approximately one million additional settlers.[8] This criterion also permits Israel to expand the current master plan or jurisdictional area and continue construction, all the while maintaining it is within its definition of a freeze.

 

1.5 Regarding 1.2.b "No new settlements." This term has no meaning in terms of stopping construction; rather it is a term which Israel uses for administrative purposes. This loophole allows Israel to continue construction in existing settlements or already constructed areas, many of them which could expand several times their current size as noted above in 1.4. Moreover, this loophole permits Israel to undertake construction of a new settlement area but under the guise of designating it as a "neighborhood" of an existing settlement. The settlements of Alon and Nofei Prat are examples of creating new settlements while designating them as a neighborhood of the settlement Kfar Adumim.[9] Talmon and its satellites settlements of B, C, and D offer an example of the types of semantics of not designating construction as new settlements but rather as a neighborhood or extension of an existing settlement.

 

1.6 Regarding 1.2.c. "No appropriation of land for settlement construction." This loophole permits Israel to continue to confiscate land which has already been appropriated or requisitioned by military order but not actually seized by the military. This loophole also permits Israeli confiscation of land for settlement agricultural purposes, for erecting fences and creating "buffer zones" around existing settlements, or for constructing portions of the Wall which follow existing and planned settlement expansion.

 

1.7 Regarding 1.2.d. "Economic incentives to residents of existing settlements have been cancelled." This language does not exclude economic incentives to attract potentially new residents (as opposed to existing residents) or other designated types of incentives to take up residency or invest within settlements.

 

1.8 Moreover, the Israeli government's position that current settlement construction is private and non-governmental, does not exempt Israel from its obligation to bring to an end to and prohibit such construction for the following reasons: First, it is misleading to suggest that the construction is private. Although the final stage of construction (the actual building of the housing unit) may be carried out by a private company, the Israeli government is responsible for the settlement process at all stages: land classification and subsequent appropriation and seizures; approval of master plans and other administrative aspects related to construction; financial incentives for settling or investing; construction of settler "by-pass" roads, provision of military support to undertake the seizure of the land and secure it; and military orders which prevent Palestinian residents from accessing their lands in or near Israeli settlement areas or roads on which settlers travel.[10] Second, as the occupying power, Israel exercises effective control of the territory and is responsible for maintaining law and order.[11] It is obliged to ensure that its nationals respect international humanitarian law throughout the occupation and not engage in settlement activity.

 

1.9 Moreover, the Israeli government position that it has frozen the issuance of new construction permits does not address construction that is permitted under outstanding permits. Some estimates place that number of outstanding permits to be in the thousands; hence, the focus should be on cessation of all construction.[12]

 

1.10 Statements from the Israeli Prime Minister's office that construction is allowed to continue in "large settlement blocs" or areas which Israel has decided it will keep in a final settlement with the PLO, clearly contravenes any definition of a settlement freeze.[13] Such a policy also begs the question of what then is the purpose of negotiations if Israel has unilaterally determined final borders.

 

1.11 Finally, the Israeli government's position that occupied East Jerusalem is not included in its formulations of a freeze also does not accord with international law. The International Court of Justice in its 2004 Advisory Opinion on the Legal Consequences of Israel's Construction of the Wall in the occupied Palestinian territory (Wall Advisory Opinion) affirmed the findings of the Security Council that all of the territory Israel occupied in 1967 remains occupied and that all settlement activity therein is illegal.[14] The European Union in its 28 January 2008 Conclusions on the Middle East Peace Process and the 14 March 2008 Declaration by the Presidency on behalf of the EU on the Middle East affirmed the illegality of settlements including in occupied East Jerusalem. The Security Council maintains the same position.[15]

 

1.12. The following elements must constitute a freeze and serve as the benchmark by which to determine Israel's compliance with its Roadmap obligations and those under international law:

 

Ø a cessation of all settlement construction;

Ø a cessation of the appropriation and confiscation of land under any circumstances related to settlements and of the use of land already appropriated for settlement construction;

Ø a full cessation of incentives for settlers (existing or potential) or that are designated for a particular settlement area; and

Ø the territorial scope of the freeze must include all of the occupied Palestinian territory, including East Jerusalem

 

1.13 Recommendations:

 

1.13.1 Require the British Government to put its citizens on notice that buying property in occupied Palestinian territory may not give clear title. Historically, sales of property in occupied territory by the occupying power have been declared null and void or subject to judicial review once the occupation is ended.[16] This recommendation comes in response to UK registered companies advertising property for sale in Israeli settlements. The UK government provides notice to its citizens that any property bought in northern Cyprus may not have clear title as northern Cyprus is considered occupied under international law; the same should be done for the Occupied Palestinian Territory.

 

1.13.2 Slow or deny the expansion of Israeli ties and/or participation in EU programs until Israel complies fully with its obligation to end settlement expansion.

 

1.13.3 Call on all members of the Quartet to hold Israel properly to account for what effectively is a game of semantics in respect of its obligations regarding a settlement freeze and adhere to the elements described above in 1.12.

 

 

2. The Role of the Middle East Quartet

 

2.1 The events over the last six months have shown a extensive disregard for international humanitarian and human rights law, both of which remain applicable to the parties 'conduct. Several international and local human rights and United Nations organizations have documented actions which violate provisions of both bodies of law and hence I will not be restating those here. What I would like to briefly address however is the role of the Quartet in contributing to a climate in which these violations occur.

 

2.2 The Quartet was established in 2002 by its members to consult more closely over the Israeli-Palestinian conflict and its resolution. It takes decisions, elaborates principles in order to influence the peace process, and issues declarations which embody those principles. These declarations are the result of discussions among the four members, although no one within the Quartet appears to be bound by the position adopted.[17]

 

2.3 Of concern is that the Quartet's absence of reference to international law, particularly international humanitarian and human rights law, is contributing to a creating a climate of disrespect for these legal obligations by the concerned parties. The Quartet will refer to the Roadmap, which does not mention humanitarian law or human rights, or relevant Security Council Resolutions which are directed more at the outcome of a negotiated process (i.e. United Nations Security Council Resolutions 242 and 338); it does not refer to resolutions which embody humanitarian or human rights law which are applicable to the conflicting parties pending a final peace agreement. Any Quartet references to "law" appear to be solely in the context of the Quartet Envoy's mandate to help promote the rule of law within the Palestinian Authority or a call for the respect for human rights in response to the fighting between Hamas and Fatah members.[18] There are not calls on Israel to abide by its obligations as an Occupying Power under humanitarian and human rights law Moreover, in response to rocket attacks or suicide bombings, the Quartet condemns such actions but there is no direct reference to the illegality of such actions under these relevant bodies of law.[19]

 

2.4 This phenomenon is not new with Hamas's assumption to power in Gaza in June 2007.[20] The 2004 International Court of Justice's Wall Advisory Opinion requires Israel to cease construction of the Wall, remove constructed portions and respect international humanitarian and human rights law.[21] The Opinion also calls on both parties to respect human rights and humanitarian law.[22] In its twenty-four statements issued since that Opinion, the Quartet has refered to the Wall Advisory Opinion or the legal obligations embodied therein, only one time.[23] In contrast, some members of the Quartet will refer to international law in their individual capacities. Most recently the European Union, in its January 28 conclusions on the Middle East Peace process and in its 14 March 2008 Declaration on the Middle East, stated that it considers settlements to be illegal. The UK government has stated that "it is also the long-standing position of the British government that any response by Israel should be in accordance with international law"; however similar references or pronouncements to international law and the parties' legal obligations do not appear in Quartet statements.

 

2.5 Obviously, references to international law alone are not sufficient to stop the violations of humanitarian and human rights law; the will to enforce those obligations by third states is also what is needed. Nonetheless, references to international law and use of legal statements have a greater pull than not in seeking to compel actors, particularly state actors, to change their behavior. States do not like to appear to be acting outside the bounds of international law.[24] Nor do non-state actors seeking acceptance by the international community. Were the Quartet to include references to the applicable international law and ultimately begin to shape its engagement with all parties on that basis, the Quartet could play a more effective role in bringing the violence to an end, reviving the Palestinian economy, and facilitating a political solution which would more effectively guarantee the personal security, freedom, and the economic well-being of all involved.

 

2.6 Recommendations:

 

2.6.1. As a first step, the UK Government should take the lead and call on the EU in its membership in the Quartet to incorporate international humanitarian and human rights international law in its statements; otherwise, it should consistently issue separate statements that accompany the Quartet declarations and which reference and reiterate the parties' legal obligations

 

3. The Response of the UK Government to the Changing Situation, and in particular, the Contribution of the Department for International Development

3.1 In keeping with the International Development Committee mandate to examine the expenditure, administration and policy of the Department for International Development, it is important that the Committee ensure that the provision of donor aid is not provided in such a way which contravenes the United Kingdom's legal obligations. Those obligations, articulated inter alia in the Wall Advisory Opinion, obliges all states not to recognize the illegal situation resulting from the construction of the Wall in the occupied Palestinian Territory, including in and around East Jerusalem.[25] States are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.[26]

 

3.2 In the immediate aftermath of this Opinion, donors appeared to comply with their obligations. For example, in late 2004, Israel requested donor governments to fund the construction of a separate road network in order to facilitate Palestinian movement and economic development. Many donors refused to fund this project as it was deemed that funding such a project would be in breach of their obligations as articulated in the Wall Advisory Opinion because the proposed separate road network would help maintain the illegal regime of the wall and settlements.[27] Donors also developed guidelines to assist their decision-making as to whether a potential assistance or development project is in accordance with their obligations articulated in the Wall Opinion.[28]

3.3 Governments, in their good intention to support the peace process, at times fund proposals which promise short-term movement but which "accommodate" the illegal acts by Israel (i.e. the settlements, wall and closure regime); Support for such projects can serve to "normalize" Israel's closure policy and the illegal presence of its settlements within the occupied Palestinian territory rather than projects which would be designed and implemented to help compel the reversal of such illegal activities. Since Annapolis, restrictions on movement have increased and the tendency persists to fund projects which accommodate the "illegal situation." An example of such a violation could include donor support for proposed housing projects which would entail construction of separate roads or tunnels to ensure the separation of Palestinian traffic from Israeli settlers. Nor would it serve donor states' interests to support projects that facilitate fast movement (e.g. tourist entry into Bethlehem) while Palestinians remain consigned to using the illegal terminal built as part of the regime of the Wall.[29]

 

3.4 Recommendations:

3.4.1 Ensure that all projects put forward by the Quartet Envoy and/or funded by DFID are in compliance with the UK's obligations under international law in light of the ICJ Wall opinion and its other international law obligations. An assessment should be undertaken for each project prior to securing the support of the Quartet envoy's office and the provision of funding.

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[1] Prior to the Annapolis meeting, 138 tenders had been issued in 2007. After the Annapolis meeting, 747 tenders were issued in the remaining four weeks of 2007.

2 See e.g. the May 2007 World Bank report, Movement and Access Restrictions in the West Bank: Uncertainty and Inefficiency in the Palestinian Economy and the July 2007 Office for the Coordination of Humanitarian Affairs (OCHA) report, The Humanitarian Impact on Palestinians of Israeli settlements and other Infrastructure within the West Bank..

[3] OCHA, The Humanitarian Monitor, January 2008.

[4] "Shas vows more settlement construction," Jerusalem Post, March 12, 2008, by Tovah Lazaroff and Gil Hoffman, http://www.jpost.com/servlet/Satellite?cid=1205261308516&pagename=JPost%2FJPArticle%2FPrinter (last viewed on 14 March 2008).

[5] Those principles would require, as a first step, a cessation of the unlawful activity. The unlawful activities amount to the direct or indirect transfer of its population into the occupied territory; the requisitioning, expropriation, and seizure of land not required for military purposes (the establishment of settlements do not constitute or serve a lawful military purpose); and Israel's extraterritorial extension of its personal and territorial jurisdiction to the Occupied Palestinian territory, including the provision of economic incentives for settling. In response to any illegal act, a state is required to immediately cease such action, including all elements of that action and undertake reparations.

[6] See And Thou Shall Spread: Construction and development of settlements beyond the official limits of jurisdiction, Special Report of the Peace Now Settlement Watch Team, June 2007, p 8, at http://www.peacenow.org.il/data/SIP_STORAGE/files/1/3201.pdf (last viewed on 14 March 2007).

[7] Ibid, p. 9-13.

[8] This number is based on an estimate by an Israeli government official responsible for advising on settlements. He stated in 1999 that approved master plans could accommodate 1.5 million settlers. See Report on Israeli Settlement in the Occupied Territory, Vol. 9, No. 3, May-June 1999, Foundation for Middle East Peace, at www.FMEP.org.

[9] Ibid, p. 13.

[10] For a detailed account of the Israeli government's involvement in the settlement process, see Land Grab, Israel's Settlement Policy in the West Bank, of May 2003, by B'tselem, The Israeli Information Center for Human Rights in the Occupied Territories. Moreover, the Israeli government does retain the power to end those private contracts. Although the Israeli government might be responsible for restitution were it to end such contracts, it would not be responsible for lost profits to those private companies, thus minimizing compensation it would owe. Israeli government liability is based on an study on file with the author. Also, ceasing construction now helps to minimize the amount of future compensation owed by Israel government to its citizens and to Palestinians for inter alia the illegal use of their land.

[11] Article 43, Regulations concerning the Laws and Customs of War on Land of the The Hague Convention (IV) respecting the Laws and Customs of War on Land of 18 October 1907. (1907 Hague Regulations).

[12] "Sharon freezes tender announcements in settlement blocs, but thousands of housing units are being constructed using old permits," Nadav Shragai, in Ha'aretz of 7 April, 2005, at http://www.aad-online.org/2005/english/7-July/16-21/16-7/aad8/4.htm (last viewed on March 14, 2008);see also Report on Israeli Settlement in the Occupied Territory, vol. 17, no. 6, November-December 2007, p. 6, at Foundation for Middle East Peace, at www.FMEP.org.

[13] "Olmert Approves Construction of 750 new homes in Givat Ze'ev", by Barak Ravid, Ha'aretz, http://www.haaretz.com/hasen/spages/962368.html. (last viewed on 14 March 2008)

[14] Legal Consequences of Israel's Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, at p. 184, para. 120.

[15] See e.g. S.C. Resolution 446 of 22 March 1979.

[16] Declaring land sales void was particularly common during World War II but also subsequent occupations as well.

[17] For example, after the Quartet issued its principle conditions in response to Hamas's election, Russia hosted a delegation of Hamas members. On the other hand, the UN Secretary-General issued instructions to his staff to not meet with Hamas officials of a certain level.

[18] See e.g. Quartet StatementS of 20 July 2007 and 24 August 2007; on the call for human rights, see Quartet Statement of 18 June 2007.

[19] See i.e. Quartet Statement of 30 May 2007.

[20] Political commentators note that Hamas won the January 2006 elections in large part due to the worsening situation on the ground for Palestinians - the expansion of illegal settlements, assassinations, home demolitions, (all prohibited under the laws of occupation), etc and the failure of the negotiation process to address these concerns.

[21] Wall AdvisoryOpinion, supra n. 14 at p. 195, para. 149-153.

[22] Ibid., at p. 200, para. 162.

[23] This period covers August 2004 - February 2008. The one statement "takes note of the ICJ opinion on the subject" is from 22 September 2004. The subsequent statement of 1 March 2005 reaffirms the principles and positions outlined in its May 4 2004 and 22 September 2004 statements. The May 4, 2004 statement, prior to the Wall Advisory Opinion, "...recognizes Israel's legitimate right to self-defense in the face of terrorist attacks against its citizens, within the parameters of international humanitarian law."

[24] See Omar M. Dajani, Shadow or Shade: The Role of International Law in Palestinian-Israeli Peace Talks, 32 J. Yale Int'l L. 61, 2007, at pp 78-81 for a discussion of legal theories on state compliance with international law.

[25] Wall AdvisoryOpinion, supra n. 14, at p. 200, para. 159.

[26] Ibid.

[27] "Donor Countries Won't fund Israeli-Planned Separate Roads for Palestinians," by Amira Haas, Ha'aretz, November 30, 2004 as reported in LAAC Secretariat, Wall Mitigation: Implications for Donors and Implementing Agencies Operating in Areas affected by the Separation Barrier, Report to the Local Aid Coordinating Committee, 30 January 2005.

[28] Ibid.

[29] Quartet Envoy Blair and other members of the international community have expressed their displeasure at Israel's failure to remove roadblocks and cease construction and expansion of settlements. Past experience has shown that initiatives or projects aimed at economy recovery projects which are not based on a reversal of the closure and settlement policy, but rather accommodate it, have limited effect and no long-term sustainability and certainty. See May 2007 World Bank report, Movement and Access Restrictions in the West Bank: Uncertainty and Inefficiency in the Palestinian Economy.