The illegality of Israeli settlements in the Occupied Palestinian Territories

The Second World War saw horrendous forced and illicit population movements. Accordingly, on 12 August 1949, the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War was promulgated. It is under this international law that Israeli settlements established since the Six Day War of 1967 in the Occupied Palestinian Territories are illegal and criminal acts of war.

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
— Article 49, Fourth Geneva Convention (1949)

Article 49 of the Convention, amongst other provisions, clearly states that an Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. Plainly Israeli settlement in the OPT contravenes this provision in a manner no denial or obfuscation can conceal. This was confirmed by the International Court of Justice in a 2004 advisory opinion. UN Security Council Resolutions 446 (1979), 452 (1979), 465 (1980), 471 (1980) and 476 (1980) of 1979-80 also affirm that the settlements have no legal validity under this Convention. The UN General Assembly has repeatedly by overwhelming majorities declared the settlements illegal, as has the UN Human Rights Council. The European Union and the African Union agree that the settlements are illegal.

Moreover Article 147 of the Fourth Geneva Convention and Article 8(2)(b)(viii) of the Rome Statute of the International Court of Justice (ICJ) identify such illegal settlements as war crimes. Australia is a signatory to both the Conventions and the Statute. Moreover such crimes are crimes under Australian law in terms of the International Criminal Court (Consequential Amendments) Bill 2002, brought in by the Coalition.

 Road to the Israeli settlement of Kiryat Arba, outside Hebron, West Bank. [Photo: ISM Palestine -  Flickr: Settlers-only road , CC BY-SA 2.0]

Road to the Israeli settlement of Kiryat Arba, outside Hebron, West Bank. [Photo: ISM Palestine - Flickr: Settlers-only road, CC BY-SA 2.0]

The essential Israeli position that the settlements are 'disputed' rather than illegal on the grounds that Palestine has never as yet achieved national sovereignty replicates the infamous declaration of Golda Meir that the Palestinians are not a people. Israeli citation of Mandatory and Ottoman land legislation as grounds of entitlement to settle throughout historic Palestine are likewise repugnant, devious and an obstacle to peace.

Recent statements by Ministers Bishop and Pyne, apparently duplicating the Israeli position, seem to represent a sleight-of-hand policy shift that derogates from the historic bi-partisan national stance on the settlements and defy the plain sense of black letter law. This leaves Australia isolated in the international community to the detriment of the national interest. In January 2016 U.S. Ambassador to Israel, Daniel Shapiro, stated that Israel’s settlement policy raised questions about its stated support for a two state solution, and U.N. General Secretary Ban Ki Moon pointed out that Israel’s protracted and stifling occupation provokes resistance. It is high time for political equivocation on international law to cease.

Dr David Faber, Historian, Adjunct Senior Lecturer, Flinders University of SA, Australian Friends of Palestine Association Inc., February 2016