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Israeli West Bank settlements illegal? Julie Bishop not so sure

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17 January 2014 08:02

Foreign Minister Julie Bishop has argued in an interview with the Times of Israel that the international community should avoid labeling Israeli settlements in the West Bank, East Jerusalem and the Golan Heights illegal under international law. The interviewer quotes Ms Bishop as saying 'I would like to see which international law has declared them illegal.' 

The legality of Israeli settlements is a prickly subject in international law, and then Foreign Minister Bob Carr caused a minor furore when he called Israeli settlements 'illegal' on two occasions in 2013

The crux of the matter is whether the Geneva Convention relative to the Protection of Civilian Persons in Time of War (the Fourth Geneva Convention) applies to the territory Israel gained control of in the June 1967 Six Day War. Article 49 (6) of the Convention states that 'the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.' At least six UN Security Council resolutions have argued that the Fourth Geneva Convention does indeed apply to these territories, with Resolution 465 of 1980 stating that 'Israel's policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention.' The Carter Administration voted in favour of this resolution.

This may seem like a rather irrelevant debate, considering that it is almost certain that some Israeli settlements in the West Bank will be transferred to Israeli sovereignty in any two-state peace agreement.

Well, maybe. But for Israel's defenders, having settlement activity continually labelled as illegal contributes to the ostracising of Israel, particularly in the West. And for those who think Israel has for decades been able to get away with 'colonising' someone else's land, having much of the international community say that the settlements are illegal gives the Palestinians an extra bit of international support (and perhaps negotiating power).

Aside from the Security Council, the High Contracting Parties to the Fourth Geneva Convention, the International Court of Justice (p. 52) and the US State Department (in 1978) have all agreed that Israeli settlements are illegal under international law. Even Canada, one of Israel's strongest friends in the UN, states on its Foreign Affairs, Trade and Development website that 'Israeli settlements in the occupied territories are a violation of the Fourth Geneva Convention.'

In the other camp, the Government of Israel and a number of lawyers (including Sydney University and University of New South Wales professor Julius Stone) have provided various legal arguments as to why the Convention does not apply, or that even if it does, why Article 49(6) is not relevant to Israeli settlements particularly.  The US has not used the world 'illegal' or supported any UN Security Council resolution using that language since 1980 (although in 1990 it voted in favour of a resolution that urged 'the Government of Israel to accept de jure applicability of the Fourth Geneva Convention' to the occupied territories, without settlements being mentioned). President Reagan stated that he thought settlements were 'not illegal'.

The Obama Administration has however used some rather strong language on settlements. While it vetoed a Security Council resolution in February 2011 that would have described all settlements outside Israel's 1949 boundaries as illegal, Ambassador Susan Rice denounced at the time the 'folly and illegitimacy' of settlement activity. Secretary Kerry used the 'illegitimate' line himself in August 2013.

The Times of Israel also quotes Foreign Minister Bishop as saying that she doesn't 'think it’s helpful to prejudge the settlement issue if you’re trying to get a negotiated solution'. But doesn't the implication that the settlements might be legal 'prejudge' the issue too? 

Photo by Flickr user delayed gratification.

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