Allan Gerson
ALLAN GERSON GUEST C O L U M \ IS T Are U.S. policymakers targeting Israeli settlements on the West Bank as illegal? In the spring of 1983 Jeane J. Kirkpatrick, then U.S. ambassador to the...
...Allan Gerson is an international lawyer with the American Enterprise Institute for Public Policy Research...
...Ever since the famous flap during the waning days of the Carter administration (when the United States voted for a UN Security Council resolution deeming East Jerusalem "occupied territory" only to have that vote subsequently repudiated as unauthorized), the United States had stayed away from putting the label "occupied territory" on East Jerusalem...
...Together their inhabitants number about 28,000...
...Rostow, a former dean of the Yale Law School and Under Secretary of State during the Johnson administration, thinks that Israeli settlement activity is legal because Jewish settlement rights in the "unallocated" parts of the Palestine Mandate (the West Bank and the Gaza Strip) were never curbed by any international agreement or peace treaty...
...This question was a sleeper for a long time...
...For a while it seemed that the Bush administration was prepared to change that policy and vote in favor of resolutions deeming East Jerusalem to be occupied territory...
...Reagan also considered the attempts to label Israeli settlement activity as illegal as part of a larger orchestrated campaign waged by the Arab bloc in conjunction with the Soviet and non-aligned bloc, to condemn Zionism as racism and push for Israel's expulsion from the United Nations...
...Prominent among these scholars is Eugene V. Rostow, who has recently defended the legality of Israeli settlements...
...There are, however, two new wrinkles to the current phase of this old drama...
...Indeed, the Reagan administration vetoed UN Security Council resolutions containing that language...
...There were at the time—as there are today— only three major fixed Israeli civilian settlements on the West Bank with a substantial population not subject to having its make-shift housing and prefab construction disassembled in a day or so—Ma'aleh Adumim in the Judean desert about 12 miles from Jerusalem, the Kiryat Arba housing complex outside Hebron and Ariel on the outskirts of Nablus...
...Those who contend that Israeli settlement activity is illegal point to this language as a flat prohibition of the settlement of an occupying power's civilian population on the territory under its military control...
...Nevertheless, this administration is not enamored with its Israeli counterpart, and recent changes in the international climate make Israel seem strategically less significant, no longer necessary to serve as a bulwark against aggressive Communist expansion in the region...
...One lever the administration could use is finances to tighten the screws of that malleable instrument, international law, to say it requires Israel to cease settlement activity on the West Bank—including, with or without modification, East Jerusalem...
...Ah, you may say, but that is a tricky way to approach the problem...
...Are they illegal...
...it would only serve to distract from the real task of peacemaking—pushing the parties to direct face-to-face negotiations...
...Last March, President George Bush and Secretary of State James Baker revived it with their pointed reference to Israeli "occupied territory" as including East Jerusalem...
...Open spaces...Oklahoma"—that was something that didn't fit with the accepted wisdom of massive Israeli settlement activity on the West Bank...
...This brings up the question of how far the West Bank extends: Does it include East Jerusalem, and if so which parts of East or post-1967 Jerusalem...
...During his presidential campaign Reagan took the position that the Israeli settlements are "not illegal...
...If anything, the reference in the recent joint Bush-Gorbachev news conference to Soviet Jewish emigration and the conditions for allowing it to continue unhampered was a further nudge, or squeeze, in this direction...
...at the UN Security Council, the Carter administration, by abstaining, allowed resolutions to pass declaring the settlements to be illegal...
...That only a tiny fraction of Soviet Jewish emigres has elected to settle on the West Bank and less than 10 percent is settling in Jerusalem has not forestalled the effort by the Arab bloc to put Soviet Jewish emigration at the top of their agenda...
...They broke down a few weeks ago when their Arab sponsors refused to budge on their demand for a clear statement that the settlements "violate prevailing international law, and are an obstacle to peace"—a formula unacceptable to the Bush administration, which announced that it was willing to allow passage of a resolution declaring settlement not helpful to the peace process, but would not be prepared at this point to join in one declaring them illegal...
...Her response shocked them: "Frankly," she said, "having been at the United Nations for over two years now and having seen countless maps dotted with black spots for every place there was to be an Israeli settlement, so much so that the dots nearly overpowered the page, I was totally unprepared for what I saw when I flew over the area yesterday in an Israeli military helicopter...
...The question reveals a certain naivete about the nature of international law...
...And does the Fourth Geneva Convention really apply to instances of prolonged occupation, especially where the ousted sovereign, Jordan, disclaims responsibility for the area...
...The Arab population of the West Bank is about 800,000 (1.7 million including the Gaza strip...
...Such talks are reported to have been going on since February...
...Nudging Israel to modify its position on the peace process remains a major concern of the Bush administration...
...ambassador to the United Nations, arrived at Cairo International Airport from Tel Aviv on a U.S...
...The purpose of this approach was to facilitate a peaceful resolution through a trade of occupied land for guarantees of peace...
...Another 60,000 or so Israelis live in these bedroom communities—in apartment buildings that cannot be disassembled...
...In my writings, I have approached the matter from a somewhat different perspective, focusing—as does Rostow—on relevant legal conventions, particularly Article 49 of the Fourth Geneva Convention of 1949, most often cited in dealing with this issue...
...These are difficult questions that the Reagan administration deliberately chose to ignore—at least in public debate...
...There is also an apparent willingness by the Bush administration to negotiate with the Arab bloc over the terms of a UN resolution condemning Israeli settlement activity...
...If the occupying power were permitted to introduce significant changes into the existing system, no matter how benevolent those changes might be, this would make the occupying power less inclined to trade territory it had grown attached to and whose institutions and way of life it had molded in exchange for peace...
...The Reagan administration, therefore, decided that the United States would veto any UN Security Council resolution condemning the settlements as illegal...
...In contrast, the Reagan administration adopted the position that because of diverse viewpoints on the legality of Israeli settlements, UN discussion of the legality issue was bound to be counterproductive...
...you have excluded East Jerusalem and its major new suburbs like Ramot, Gilo, East Talpiot and Neve Yaakov, situated on the outskirts of Jerusalem's expanded municipal border...
...In international law, there is no authoritative judge or judgment...
...The world has changed and administrations have changed but the Arab bloc's effort to obtain the condemnation of Israeli settlements as illegal continues...
...Air Force jet for a meeting with Egyptian president Hosni Mubarak...
...That effort has not been altogether unsuccessful...
...Toward the end of Carter's term, a three-page letter from the State Department legal advisor, Herbert Hansell declared the Israeli settlements illegal as a matter of international law...
...This was a clear departure from the policy of the Carter administration...
...Paragraph 6 of Article 49 states: 'The occupying power shall not deport or transfer part of its own civilian population into the territory it occupies...
...Another 45,000 to 50,000 Israeli settlers live in settlements that can easily be disassembled, each with less than 2,000 people...
...It was her first trip to the region since assuming office and as I followed her off the plane she was accosted by a throng of reporters, anxious to learn her reaction to the Israeli settlements on the West Bank...
...President Bush and the State Department have spoken of their concern...
...What of the West Bank settlements...
...In domestic legal systems the law is what the judge says it is...
...Instead, you have almost invariably governments interpreting the law to suit their own convenience and policies and a handful of legal scholars commenting on these issues...
...But so far the change has not occurred...
...He is the author of Israel, the West Bank and International I^aw (Cass, 1978) and The Kirkpatrick Mission (Free Press/MacMillan, 1990...
...The thrust of the Fourth Geneva Convention is that the situation as it existed before the outbreak of hostilities be frozen, without changes in existing laws and institutions...
...Until such time as that occurs, rights of Jewish settlement derive from the Palestine Mandate, which permits them...
...But the authoritative Lauterpacht-Oppenheim treatise (7th ed., 1955, p. 452) on international law notes that the prohibition in Article 49 was "intended to cover cases of the occupant bringing in its nationals far the purpose of displacing the population of the territory...
...But how much settlement activity is significant enough to change the status quo ante...
...Since the massive influx of Soviet Jews, the Arab bloc claims that Soviet Jewish settlement is an effort to displace the Arab population on the West Bank...
...The official commentator on the Geneva conventions, Professor R. Pictet, noted at the time the conventions were adopted that this provision was intended to prevent a repetition of Nazi practices during World War II, which involved massive resettlement of its own population to held territory...
...It reminded me of nothing so much as the open spaces out West in my native state of Oklahoma...
Vol. 15 • August 1990 • No. 4
