Den som vill ha kunskap om judarnas lagliga rätt att bosätta sig i Judéen och Samarien (västbanken) borde läsa den här rapporten från The Hague Initiative for International Cooperation.
Författare är Andrew Tucker och Matthijs de Blois.
Hela rapporten kan läsas här:
ARE THE ISRAELI SETTLEMENTS
IN THE WEST BANK ILLEGAL
UNDER INTERNATIONAL LAW?
Redan sammanfattningen ger en hel del kunskap som de flesta saknar:
Executive Summary
This Position Paper is intended to assist in the analysis of the international legal aspects of what
are often referred to as “settlements” in the “Occupied Palestinian Territories.”1
The “West Bank” and East Jerusalem is an area of approximately 6000 km2
north/west, east
and south/west of Jerusalem. It encompasses most of the mountainous territory of what for
centuries after 70AD was known as “Palestine.”
For 2000 years the territory covering what is now current Israel and the West Bank was
part of larger empires. In 1922, the international community agreed that a Jewish national
home should be established in the area then known as Palestine—including all of Jerusalem
and the area now known as the “West Bank”. This was part of the desire to achieve an equitable
determination of the territories of the Ottoman Turkish Empire after WWI in order to
give the peoples of the Middle East self-determination. For millennia, the Jewish people had
been one of the most important peoples of the Middle East. In the Mandate for Palestine,
the international community recognized the unique connection of the Jewish people with
all of Palestine—including Jerusalem and Judea and Samaria (which only became known as
the “West Bank” after 1950).
In the Six-Day War in June 1967, the Israeli army unexpectantly gained control over a
large area of land that was prior to 1948 part of the Mandate for Palestine, but since the
conclusion of hostilities in 1949 had been controlled by Syria (Golan Heights), Egypt (Gaza
Strip and Sinai) and Jordan (the “West Bank”). Since June 1967, with the exception of “East
Jerusalem,” Israel has not annexed these territories, but has instead voluntarily submitted to
the application of the law of “belligerent occupation.” As a result, these territories are now
almost universally referred to as “the occupied Palestinian territories.”
Israel is heavily criticized for its military administration and for Israeli civilian “settlements”
in these territories. These territories are referred to in UN resolutions, by international
organizations and agencies, in the media and even by the International Court of
Justice as the “Occupied Palestinian Territories” (“OPT”). It is often stated that “Israel is
illegally occupying” these territories, and that “the settlements” are “illegal” and an “obstacle
to peace.” UN Security Council resolution 465 (1980), for example, calls on Israel to “dismantle
the existing settlements.” The International Court of Justice stated generically in the
Wall Advisory Opinion that “the Israeli settlements in the Occupied Palestinian Territory
(including East Jerusalem) have been established in breach of international law.”
On December 23, 2016, the UN Security Council adopted Resolution 2334, in which it
stated that the establishment by Israel of “settlements” in the “Palestinian territory occupied
since 1967” “has no legal validity and constitutes a flagrant violation of international law and
a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive
peace.” In referring to “Palestinian territory occupied since 1967,” the Security
Council is referring to the Gaza Strip, the Sinai, the Golan Heights and the “West Bank” and
“East Jerusalem.” This paper focusses on the status of East Jerusalem and the West Bank. We
argue that the statements by the Security Council that the establishment by Israel of “settlements”
in these territories are illegal is both incorrect and misleading.
The term “Occupied Palestinian Territories” is often used to make the suggestion that:
a. the 1949 Armistice Lines constitute legally binding “borders”;
b. these territories “belong” to the “Palestinians”;
c. Israel’s “occupation” of these territories is illegitimate.
This paper sets out the main legal issues involved in characterizing these territories.
The main conclusions of this analysis are:
1. International law applicable to the West Bank is extremely complex and controversial.
International law does not provide “cut-and-dried” solutions to the conflict between
Israel and its neighbors in relation to these territories. Care should be taken to avoid
generalizations. When referring to international law, it is essential to specify precisely
which actions by the State of Israel are considered to be in breach of international
law. For the reasons set out below, blanket statements that “the settlements are illegal”
completely fail to take account of these complexities.
2. Israel has potentially legitimate claims to territorial sovereignty (title) with respect
to all of the territory included in the former Mandate for Palestine. This covers all of
the West Bank (including East Jerusalem).
3. In light of these (potential) claims, and Israel’s rights to “territorial integrity”, neither
the United Nations, the EU nor any other party or organization has the jurisdiction
to impose any legally-binding “solution” with respect to these territories without
Israel’s consent.
4. The International Court of Justice (ICJ) also does not have jurisdiction to make
legally-binding determinations concerning these territories without Israel’s consent.
5. Given Israel’s potentially legitimate sovereign territorial claims with respect to all or
part of these territories, it is inaccurate and misleading to refer to them as “Palestinian”
in so far as this is intended to imply that these territories are part of the sovereign
territory of another people or State.
6. Although the West Bank is (almost) universally referred to as “occupied” (including
by Israel itself—at least for the territories outside Jerusalem), the international law
of belligerent occupation arguably does not apply to the West Bank.
7. But even if the West Bank does constitute “occupied” territory within the meaning
of the law of occupation, that law does not prohibit occupation as such. It does not
require Israel to “withdraw” its military personnel or its citizens from the West Bank
pending the finalization of a negotiated peace treaty.
8. The international law of belligerent occupation only prohibits specific kinds of conduct
by occupying States. At best, it could be argued that article 49(6) of the Fourth
Geneva Convention prohibits the State of Israel from taking measures to transfer (or
encourage the transfer of) Israeli citizens from Israel to the West Bank.
9. But even on this reading, international law only applies to the activities of the State of
Israel. It does not prohibit or restrict the right of Israeli citizens to settle voluntarily
in the West Bank, or to move in and out of, or to conduct activities or build houses
or other infrastructure in, the West Bank.
10. While the “Palestinians” arguably have a right to self-determination, international
law does not mandate the establishment of a “Palestinian” state next to Israel. The
“two-state” solution is a political goal, not a legal requirement. It is therefore invalid
to claim that settlements are “illegal” because they somehow frustrate the establishment
of a Palestinian state.
11. It is also incorrect to state or imply that “Palestine” is already a state.
12. Additional considerations are raised by the unique status of Jerusalem. The fact that
“East Jerusalem” contains sites regarded as holy by Jews, Christians and Moslems
raises additional issues of concern. In particular, no steps should be taken that would
limit the freedom of members of any of these religions to access their holy places.
Allowing East Jerusalem to come under the exclusive control of an Islamic regime
would by definition arguably result in the illegitimate restriction of the rights of
Christians and Jews to access these holy sites.
13. Israel and the PLO remain bound by the terms of the Oslo Accords. Until such time
as these binding agreements are revoked, they provide the legal framework for the
settlement of disputes between Israel and the PLO. Under the Oslo Accords, Israel
and the PLO are both entitled and obliged to negotiate directly with each other
concerning all “final status” issues, including Jerusalem, borders and settlements.
Under Article XXXI of the Interim Agreement, neither party is entitled to take unilateral
action that will “change the status” of the West Bank pending the outcome of
permanent status negotiations.
14. The UN Security Council and General Assembly, the EU and individual member
states have no authority to limit the rights of Israel and its citizens with respect to
the West Bank, including “East Jerusalem.” In fact, measures by the EU or United
Nations organs to comply with PLO requests to change the status of the West Bank
unilaterally, or to impose limitations on the rights of Israel to negotiate as set out
above, could arguably themselves constitute infringements of international law.
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