Les colonies Israélienne dans la bande de Gaza et la Rive Occidentale (Première partie) Français
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The United Nations and the question of settlements
The nature and purpose of settlements
Acquisition of land and impact on the Arab residents
Settlements already established or being established in Judea and Samaria
Map showing Israeli settlements established, planned or under construction
in the territories occupied in June 1967
The establishment of settlements in the occupied territories started immediately after the 1967 war. In July 1967, a group of young Israelis founded the first settlement in the Golan (Herom ha Golan). In September 1967, near the city of Hebron (West Bank), children of the pre-1948 settlers persuaded the Government to let them rebuild a kibbutz known as the Etzion Bloc. During Passover 1968, a group of religious nationalists went to Hebron and stayed there despite government reluctance to let them establish themselves in an Arab town. Finally, a settlement was established (Kirvat Arba) on the north-east side of Hebron with the Government's permission. (An ancient Jewish community had been settled in Hebron until 1929).
The first official support to settlement construction came in June 1967, when 160 Arab houses were demolished in the old city of Jerusalem in order to open a court in front of the Western Wall. Immediately, 600 buildings were expropriated and approximately 6,500 Arabs, both tenants and land owners, were removed. New buildings were late» occupied by Israeli residents.
From 1967 to 1970, the Government's settlement priorities appeared to be the southern part of the Golan Heights, where agricultural settlements were established, and the north side of East Jerusalem. 1/
A more recent report entitled "Settlement in Judea and Samaria - strategy, policy and plans" by Matityahu Drobles, author of the master plan, is said to have been adopted by the Government of Israel in January 1981. In sending a copy of this report to the Secretary-General and the President of the Security Council, the Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People stated: "The perusal of this document leaves one in no doubt of Israel's intention to annex the Arab territories it has illegally occupied".
The report reads, in part:
"The majority of the settlements in Judea and Samaria are communal villages. The communal settlement is a relatively new form of settlement. Such a settlement is designed to have a population of 300 families, in order to enable the development of an intensive and productive form of communal life, a closed rural society capable of generating a quality of life and services on a higher level than normally found in larger and open urban societies on the same economic level.
"In light of the current negotiations on the future of Judea and Samaria, it will now become necessary for us to conduct a race against time. During this period, everything will be mainly determined by the facts we establish in these territories and loss by any other considerations. This is therefore the best time for launching an extensive and comprehensive settlement momentum, particularly on the Judea and Samaria hilltops which are not easily passable by nature and which preside over the Jordan Valley on the east and over the Coastal Plain on the west.
"It is therefore significant to stress today, mainly by means of actions, that the autonomy does not and will not apply to the territories but only to the Arab population thereof. This should mainly find expression by establishing facts on the ground. Therefore, the state-owned lands and the uncultivated barren lands in Judea and Samaria ought to be seized right away, with the purpose of settling the areas between and around the centres occupied by the minorities so as to reduce to the minimum the danger of an additional Arab state being established in these territories. Being cut off by Jewish settlements, the minority population will find it difficult to form a territorial and political continuity.
"There mustn't be even the shadow of a doubt about our intention to keep the territories of Judea and Samaria for good. Otherwise, the minority population may get into a state of growing disquiet which will eventually result in recurrent efforts to establish an additional Arab state in these territories. The best and most effective way of removing every shadow of a doubt about our intention to hold on to Judea and Samaria forever is by speeding up the settlement momentum in these territories.
"The population in these settlements will amount at the first stage to between 50 and 300 families which will find their means of livelihood mainly in industry, tourism and services and to a much lesser extent in sophisticated agriculture, owing to the shortage of agricultural means of production in these territories. Regional services in the educational, health and cultural spheres are planned to set up at the very first stage of the implementation of the settlement program - in each and every bloc, in one of the central settlements thereof. The setting up of these services as early as possible will contribute to the welfare of the new settlements. The establishment of the settlements is preceded by forming a group of potential settlers and getting them ready for taking occupancy of the land. The absorption unit of the Settlement Division sets up the framework for social assimilation activities among the settlers (both new immigrants and veteran citizens), in co-ordination with the various settlement movements and with other social bodies. It should be noted that the current potential for settlement is very high. There is an increasing stream of applications submitted by people wishing to settle in Judea and Samaria, and the number of families wishing to settle in these territories - either by setting up new settlements or by joining existing ones - amounts to many thousands, both in Israel and in the diaspora.
"Over the next five years it is necessary to establish 12 to 15 rural and urban settlements per annum in Judea and Samaria, so that five years from now the number of settlements will grow by 60 to 75 and the Jewish population thereof will amount to between 120,000 and 150,000 people." 4/
"As a whole, therefore, leaving aside the Sinai area, where settlements have been vacated. Israel has established 33 new settlements since the adoption by the Security Council of its resolution 446 (1979) referred to above, wringing the total number to 148. In addition, a number of the existing settlements have been expanded, sometimes to more than twice their original size."
In connexion with the acquisition of land, the Security Council Commission reported:
"Similarly in the Gaza Strip, according to witnesses, confiscation of land is final; however, no reliable figures have been made available to show the extent of the land confiscated so far." 7/
The United Nations General Assembly and Security Council have determined that the establishment of settlements in the occupied territories "constitute a serious obstruction to efforts aimed at achieving a just and lasting peace in the Middle East." 9/
On 27 January 1981, the following statement was made on behalf of the Secretary-General of the United Nations:
I. GENERAL LEGAL REQUIREMENTS UNDER MILITARY OCCUPATION
Israeli conduct in the occupied territories is assessed in light of the international law of military occupation. The basic rules of international law generally accepted as applicable to the Israeli occupied territories are given below.
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (referred to as the fourth Geneva Convention), and the Hague Convention on the Laws and Customs of War on Land, signed on 18 October 1907. The fourth Geneva Convention has been ratified by all States party to the Middle East problem. Israel ratified the Convention on 10 April 1951;
The articles of the fourth Geneva Convention applicable to the situation are:
(a) Article 2, first paragraph, which reads:
"The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.";
According to Leonard C. Meeker, Attorney, Centre for Law and Social Policy, and former legal adviser to the United States Department of Labor, 10/ the Regulations annexed to the Hague Convention IV on the Laws and Customs of War on land are also applicable to the occupied territories. Article 2 of the Convention states:
"The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when state property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings."
"With respect to public lands, belonging to or administered by a national government such as that of the Syrian Arab Republic, Egypt or Jordan, Israel, as military occupant, would be entitled to administer those lands and to derive current revenues from their accustomed use. But Israel would not be entitled to appropriate such lands on a permanent basis for new uses of its own choosing. An authority on the law applicable to international conflict [Julius Stone, Legal Controls of International Conflict 714 (1954)] has written as follows:
'The occupying state shall regard itself only as administrator and usufructuary of such public buildings, immovable property, forests and agricultural undertakings belonging to the hostile state (and situated in the occupied country). It must protect the capital of these properties and administer them according to the rules of usufruct. The usufructuary principle forbids wasteful or negligent destruction of the capital value, whether by excessive cutting or mining or other abusive exploitation, contrary to the rules of good husbandry. And though it permits the occupant to let or utilize public land and buildings, sell crops on public lands, cut and sell timber, and work mines, such contract or lease must not extend beyond the termination of the war'."
However, the applicability of the fourth Geneva Convention in the occupied territories has been asserted unequivocally by the International Committee of the Red Cross, by the United Nations, through both the General Assembly and the Security Council, and by most Governments in the world. 15/ Moreover, the Security Council unanimously adopted resolution 465 (1980) "Affirming once more that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem".
In connexion with article 2 of the Convention, Professor W. T. Mallison from George Washington University explained:
"... the idea that in order to apply the law of belligerent occupation it is necessary for the belligerent to recognize the displaced government's title to the territory finds no support in either the text of the Convention or its negotiating history. In addition, it is contrary to the well-established customary law based upon state practice. For example, during the American Civil War, the United States treated territory which it claimed as sovereign but which the Confederate States had held as de facto possessor as being subject to the law of belligerent occupation up until the conclusion of the Civil War. This was the widely accepted customary international law, with the exception of the Nazi and Japanese militarist practices of the Second world War, and there is nothing in the Geneva Convention which changes it."
The same interpretation of article 2 of the fourth Geneva Convention has been given by other international lawyers. For instance, Stephen M. Boyd, Assistant Legal Adviser for Near Eastern and South Asian Affairs, United states Department of State, in 1971 stated:
Leonard C. Meeker gives the following view on the issue:
"The Gaza Strip and the West Bank stand on a footing somewhat different from Golan and Sinai because they were part of the former Palestine mandate. There it should be noted that the whole mandate system, originally proposed by President Wilson, was designed to protect non-self-governing peoples and to lead to their exercise of the right of self-determination. The United Nations partition plan of 1947 had attempted to respect, in an approximate way, the location of Jewish and Arab communities within Palestine. However, the plan was not put into effect, and in the spring and summer of 1948 a large number of Arab residents were displaced and became refugees as a result of the hostilities. Today, both the Gaza Strip and West Bank continue to be areas inhabited by a large number of Palestinian Arabs; others became and still are refugees in neighbouring countries.
"It seems clear that the Palestinian Arabs constitute people entitled to self-determination within the meaning of various international instruments containing provisions on self-determination.
"It would seem clear that Israel, a member of the United Nations, assumed responsibility for the administration of territories 'whose peoples have not yet obtained a full measure of self-government', when it occupied the Gaza Strip and the West Bank. The Israeli Government asserts claims to those territories that are in no way related to the principle of self-determination of peoples and that, indeed, run counter to self-determination. Strategic and security considerations are among the arguments advanced. Establishing settlements within those occupied territories has been undertaken to bolster the Israeli claims, and the whole process of colonization appears designed to defeat exercise of the right of self-determination by the Palestinian Arabs resident there.
"It might be noted in connexion with the principle of self-determination that it occupies a very prominent place in the United Nations Covenants on Human Rights. Article 1 of the Covenant on Civil and Political Rights and article 1 of the Covenant on Economic, Social and Cultural Rights are identical.
"Israel and Egypt have signed these Covenants but not ratified them, while Jordan and the Syrian Arab Republic have both signed and ratified.
"Similarly, resolution 2633 (XXV) of the General Assembly adopted in 1970 ...
"This declarative resolution of the General Assembly was adopted through consensus procedures without a vote, meaning that all members concurred, or at least had no objection to the resolution. The General Assembly does not have law-making power. However, when the members join without dissent in a declaration expressing their view concerning the content of international law in a particular area, their expression constitutes strong and persuasive evidence of what the law is. The declaration confirms the rights and obligations with respect to self-determination that are set forth in Article 73 of the Charter.
"To sum up, I believe that the Israeli establishment of settlements in the occupied territories contravenes the obligations of Israel both under customary international law and under the Geneva Convention relative to the Protection of Civilian Persons in Time of War. In addition, the establishment of these settlements are incompatible with Israel's obligation to respect and to promote the rights of self-determination of the peoples of these territories." 18/
II. THE UNITED NATIONS AND THE QUESTION OF SETTLEMENTS
The Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, established by the General Assembly in resolution 2443 (XXIII), has expressed grave concern in several of its reports about the implications of the establishment of settlements in the occupied territories.
In its second report, of 17 September 1971, the Special Committee observed:
"The distinction between annexation of conquered territory and occupation of territory in wartime is clarified in the following passage in the commentary published by the International Committee of the Red Cross on the fourth Geneva Convention:
'Consequently, occupation as a result of war, while representing actual possession to all appearances, cannot imply any right whatsoever to dispose of territory. As long as hostilities continue, the Occupying Power cannot therefore annex the occupied territory, even if it occupies the whole of the territory concerned. A decision on that point can only be reached in the peace treaty. That is a universally recognized rule which is endorsed by jurists and confirmed by numerous rulings of international and national courts.
'A fundamental principle emerges from the foregoing considerations: an Occupying Power continues to be bound to apply the Convention as a whole even when, in disregard of the rules of international law, it claims during a conflict to have annexed all or part of an occupied territory ...'
"The following facts tend to support the conclusion that it is the Government of Israel's policy to annex and settle the occupied territories:
"(a) The existence, in the Government of Israel, of a 'Ministerial Committee for Settlement of the Territories';
"(b) Express pronouncements to this effect by Israeli Ministers and leaders;
"(c) A memorandum presented on 8 July 1971 to the Special Committee by Mr. Rouhi El-Khatib, Mayor of Jerusalem at the time of the June 1967 hostilities, the facts of which are confirmed by other evidence;
"(d) Uncontradicted reports, appearing in the information media, of the planned establishment of Israeli settlements in the occupied territories;
"(e) Allegations, as yet unrefuted but consistent with other facts and contained in several letters addressed by the Governments of Jordan and the Syrian Arab Republic concerning measures by the Government of Israel in violation of the human rights of the persons living in occupied territories;
"(f) The absence of any serious attempt at repatriation of the refugees to their homes in the occupied territories;
"(g) The mass expulsion and continued deportation of individuals from the occupied territories;
"(h) The continued transfer of the population of the occupied territories to other areas within the occupied territories." 19/
"The evidence before the Special Committee clearly established that the fact that the Government of Israel is continuing with its policy of the unilateral annexation of the occupied part of Jerusalem and the enlargement of the municipal boundaries of the city by the incorporation of considerable areas of land forming part of the occupied West Bank."
(a) The annexation of any part of the occupied Arab territories;
(b) The establishment of Israeli settlements on those territories and the transfer of parts of its civilian population into the occupied territory;
(c) The destruction and demolition of villages, quarters and houses and the confiscation and expropriation of property.
General Assembly resolution 3525 (XXX) of 15 December 1975 condemns in particular the following Israeli policies:
(a) The annexation of parts of the occupied territories;
(b) The establishment of Israeli settlements therein and the transfer of an alien population thereto;
(c) The destruction and demolition of Arab houses;
(d) The confiscation and expropriation of Arab property in the occupied territories and all other transactions for the acquisition of land involving the Israeli authorities, institutions or nationals on the one hand, and the inhabitants or institutions of the occupied territories on the other.
General Assembly resolution 32/5 of 28 October 1977 reads, in part:
"2. Strongly deplores the persistence of Israel in carrying out such measures, in particular the establishment of settlements in the occupied Arab territories;
"3. Calls upon Israel to comply strictly with its international obligations in accordance with the principles of international law and the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949;
"4. Calls once more upon the Government of Israel, as the occupying Power, to desist forthwith from taking any action which would result in changing the legal status, geographical nature or demographic composition of the Arab territories occupied since 1967, including Jerusalem;
"5. Urges all States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War to ensure respect for and compliance with its provisions in all the Arab territories occupied by Israel since 1967, including Jerusalem;".
In the same resolution, the Security Council further determines;
"4. Establishes a commission consisting of three members of the Security Council, to be appointed by the President of the Council after consultation with the members of the Council ...".
"(a) The Israeli Government is actively pursuing its wilful, systematic large-scale process of establishing settlements in the occupied territories;
"(b) A correlation exists between the establishment of Israeli settlements and the displacement of the Arab population;
"(c) In the implementation of its policy of settlements, Israel is resorting to methods -often coercive and sometimes more subtle - which include the control of water resources, the seizure of private property, the destruction of houses and the banishment of persons in complete disregard for basic human rights;
"(d) The settlement policy has brought drastic and adverse changes to the economic and social pattern of the daily life of the remaining Arab population; and is causing profound changes of a geographical and demographic nature in the occupied territories including Jerusalem;
"(e) Those changes constitute a violation of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and of the relevant decisions adopted by the Security Council in the matter.
"Consequently, the Commission wishes to reiterate that Israel's policy of settlement, by which, as an example, 33.3 per cent of the West Bank has been confiscated to date, has no legal validity and constitutes a serious obstruction to achieving a comprehensive, just and lasting peace in the area.
"In view of the recent deterioration of the situation in the occupied Arab territories, the Commission considers that Israel's settlement policy, with the unjustified sufferings which it imposes on a defenceless population, is an incitement to further unrest and violence.
"The Israeli policy of settlements has led to major displacements and dispossession of Palestinians, adding to the ever-growing number of refugees with all the attendant consequences.
"Available evidence shows that Israeli occupying authorities continue to deplete the natural resources, particularly water resources, in the occupied territories for their advantage and to the detriment of the Palestinian people.
"As water is a scarce and precious commodity in the area, its control and apportionment means control of the most vital means of survival. It would seem, therefore, that Israel employs water both as an economic and even political weapon to further its policy of settlements. Consequently, the economy and agriculture of the Arab population is adversely affected by the exploitation of water resources by the occupying authorities.
"On Jerusalem, the Commission has noted with grave concern that tension and confrontation between Israel and the Islamic world have increased, especially following the enactment of a basic law in the Israeli Knesset, proclaiming a change in the character and status of the Holy City, which has also affected Christendom." 20/
"5. Determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof have no legal validity and that Israel's policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;
"6. Strongly deplores the continuation and persistence of Israel in pursuing those policies and practices and calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem;
"7. Calls upon all states not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories;
"8. Requests the Commission to continue to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, to investigate the reported serious depletion of natural resources, particularly the water resources, with a view to ensuring the protection of those important natural resources of the territories under occupation, and to keep under close scrutiny the implementation of the present resolution;".
III. NATURE AND PURPOSE OF SETTLEMENTS
Settlements may be classified as military or civilian. The military settlements also called Nahal (Soldier-Pioneer Youth) outposts are both military installations and farming villages. Israeli leaders stress their fundamental strategic role. In January 1977, the Prime Minister, Yitzhak Rabin, declared that settlements increased Israel's security and provided a firm basis for its demand for peace with defensible borders. This type of settlement is the core of the Israeli Defence Force and combines agricultural tasks with military service.
Civilian settlements are of two kinds: the kibbutz, or collective farm, and the moshav, which is an individual farm benefiting from collective farming.
According to the report of the 1977 Middle East Delegation of the National Lawyers Guild:
In addition to the prohibitions provided by special conventions, article 23 (g) of the Hague Convention states that it is particularly forbidden "to destroy or seize enemy property, unless such destruction or seizure be imperatively demanded by the necessities of war".
Article 52 states that "requisitions in kind and services shall not be demanded from local authorities or inhabitants except for the needs of the army of occupation".
The High Court expressed the view that the Hague Convention was applicable in this case for it constituted customary international law and, in their view, was not contrary to specific Israeli legislation. This Convention permits settlements for the fulfilment of military needs and the principle does not apply to the purely civilian character of Elon Moreh. The Court also affirmed that "land expropriation for military purposes must, by nature, be temporary and that an outpost cannot be designed to outlive the temporary military administration of an occupied territory". 22/
Military encampments are often transformed into civilian settlements, though the "military disguise is not an innovation of the Likud Government which came to power in May 1977. Israel Galili, in charge of Israeli settlements policy in the previous Labour Government, undertook and authorized military 'stations' in Bethlehem and Kochar-Hashar "to avoid foreign policy problems and domestic opposition'. And in December 1976, Minister of Social Affairs Hammer suggested that new settlements be given the character of 'security settlements'".23/
Raymond Tanner, Professor of Political Science at the University of Michigan, giving testimony before the United States House Committee on International Relations affirmed that "a majority of civilian settlements are former Nahal camps".24/
The Israeli Government maintained strict control over the location of settlements in the West Bank and Gaza. In 1974, the Minister of Justice, Chaim Tzadok, indicated that Government permission was required to live in that area since the West Bank was a "closed area" under military law.
According to Israeli officials, Israeli policy on settlements in the occupied territories "was based on a series of priorities, on security and political considerations, on settlement requirements and on the existing possibilities and restrictions".
In 1977, the Minister of Social Affairs reaffirmed the concern of the Government in connexion with the settlements policy.
In an interview, Yigal Allon commented: "...if you sum up the empirical behaviour of the Government of Israel in determining the points of settlement, you will find that they add up to a concept: that is, settlements are placed in strategically important areas along existing borderlines or in the vicinity of areas likely to become borderlines in the future".25/
Other interpretations of the purposes of the settlement policy have, however, been put forward. According to Paul Quiring, Director of the Mennonite Relief Agency:
"Settlements have been established along three prongs which appear to be aimed at containing and isolating the Palestinian communities.
"The first prong runs along the Jordan River, which separates the West Bank from Jordan. This string of settlements isolates West Bank Palestinians from Jordan.
"The second prong runs along the 1948 armistice line between Jordan and Israel, commonly referred to as the 'Green Line'. This string separates West Bank Palestinians from Israel.
"The third prong (not yet completed) calls for settlements to ring the most populous Palestinian towns, like Nablus and East Jerusalem."26/
Since 1967, successive Israeli Governments have clearly encouraged and contributed to the policy of settlements. The Government sees the West Bank and Gaza as part of the natural boundaries of the Jewish homeland, or biblical Israel.
According to the 1977 report of the national Lawyers' Guild:
"Under this 'homeland' doctrine, the Israeli Government regards the Palestinian inhabitants of the West Bank and Gaza as being there by sufferance only. Prime Minister Menachem Begin and others refer to the West Bank as 'Judea and Samaria' - the ancient names of the region. Israeli Ministry of Tourism maps obtained by the delegation 27/ show the West Bank and Gaza as part of Israel, with no indication of their status as occupied areas. The maps refer to the West Bank as 'Judea' and 'Samaria'."28/
As regards Jerusalem, the policy of settlements promoted by the Israeli Government aims at a complete annexation of the city.
Soon after the 1967 war, Israel officially annexed East Jerusalem into Israel. The Government promoted Jewish immigration into the area. A 10-year Israeli Government plan proposed the reconstruction and substitution of Jewish families for Palestinians.
The National Lawyers' Guild report of 1977 contains the following information:
"By 1975, more than 6,000 Palestinians had been evicted after being offered some compensation and their homes were detroyed; 200 Jewish families had already moved in, while only 20 Palestinian families remained."29/
The Israeli Government has closely co-operated in the establishment of settlements in the occupied territories. "Co-operation has taken many forms, all directed toward the successful transfer of Israeli citizens into the occupied territories".30/
The aid provided by the Israeli Government includes income tax exemptions, inexpensive loans, and material assistance such as water, electricity, telephone service, bulldozer and transportation facilities. According to one source:
"The primary method by which the Israeli Government encourages settlers to transfer to the occupied territories is with direct subsidies to the settlements. The Government acknowledged that, through June 1977, it had allocated 400 million dollars to settlements in the occupied territories.
"The 1978 Israeli budget provides a considerable increase in expenditures for the absorption of new settlers into the settlements already established in the occupied areas...
"The 1978 allocation to the Ministry of Agriculture includes the highest amount ever set aside for new settlements - 426 million Israeli pounds (it was 267 million Israeli pounds in 1977). In the Ministry of Housing's budget, 840 million Israeli pounds have been allocated for the construction of 1,550 building units in the new settlements."31/
It was reported in The New York Post on 28 February 1981 that "Parliament's Finance Committee has approved about 4 million dollars for the construction of 400 homes in already existing settlements..." and it has been estimated that by 1976 Israel had spent at least 500 million dollars on settlements.
IV. ACQUISITION OF LAND AND IMPACT ON THE ARAB RESIDENTS
Article 11 of the Jordanian Constitution, which applied to the West Bank at the time it was occupied by Israel in 1967, forbids expropriation of private property for public benefit unless fair compensation is paid according to law. The law provides publication of the intended expropriation, in order to allow the person the right to appeal the decision to the Court of First Instance. According to Jordanian law, an authority or corporate body wanting to expropriate land must first publish in the Official Gazette its intention to submit to the Council of Ministers the application for expropriation. The approval of the Council of Ministers is provided if within 15 days no objections are submitted. The approval must be endorsed by the King. Then it is published in the Official Gazette. The authority interested in the expropriation must compensate the owners of the land with an amount equal to the market value of the property on the date of the expropriation.
In his article "The West Bank and the rule of law". Raja Shehadeh claims that, in order to facilitate the expropriation of land, soon after 1967 Israel modified the regulations concerning the matter.
The principal steps taken were:
"By these means the Israelis ensured that title to large areas of land remained in dispute, providing the possibility of conflicting claims. Furthermore, a military authority appointed by the area commander has been given all the powers that were previously vested in the Jordanian Government.
"A new article has been added to the law whereby the Area Commander may order that force be used to evacuate the owner of the land if he refuses to vacate it within the period decided upon by the Area Commander. Anyone resisting, such an order may be imprisoned for a period of five years or fined or made to suffer both punishments."33/
Besides the legislation mentioned above, other Israeli laws apply to the West Bank and Gaza.
These include article 125 of the Defense Emergency Regulations of 1945. This provision, passed during the British mandate, permits the Israeli Government to declare an area "closed" for security reasons. A permit is required to leave or enter the area. Implementation of this article is left to the Israeli Military Governor. Article 90 of the Security Provisions Order, put into effect when the Israeli Army entered the West Bank in 1967, also has a "closed area" provision.
In the report of the 1977 Middle East delegation of the National Lawyers' Guild, it is alleged:
"'Expropriation' refers to land where the title has been transferred through legal proceedings and where the original landowner may have been compensated in cash or may have been offered other property in exchange. The expropriation process is often used for annexation of small plots of land in urban settings, especially Jerusalem.
"'Confiscation' refers to land which is usually cordoned off by the Military Governor of the district who then informs the landowner that the land must be vacated for reasons of 'state security". In some cases this is government land which is occupied by tenants. The confiscation process is a method frequently used in rural areas. The landowner has no legal rights once his land is confiscated. His only alternative is to petition the Military Governor, pleading for reversal of the confiscation order."36/
It further states
"In the seventh edition of Oppenheim's International Law, Lauterpacht, commenting on the subject of warfare on land, states:
'Appropriation of public immovables is not lawful so long as the territory on which they are found has not become state property of the occupant through annexation. During mere military occupation of enemy territory, a belligerent may not sell, or otherwise alienate, public enemy land and buildings, but may only appropriate their produce'.
"As regards immovable private property, Lauterpacht goes on to state:
'Immovable private enemy property may under no circumstances or conditions be appropriated by an invading belligerent. Should he confiscate and sell private land or buildings, the buyer would acquire no right whatever to the property.'"
The Absentee Property Law is similar to the Absentee's Property Law passed after the end of the 1948 Arab-Israeli war and was enacted on 23 July 1967. It deals with property in general, not only with immovables. It defines "absentee" as a person who left the area of the West Bank before, on or after 7 June 1967. Few of these people have been allowed to return to the occupied territories. Article 2 of the law created a Custodian. He acts as a trustee to hold the property in trust for the absentee until his return. A jurist explains:
"By virtue of their 1948 victory, Zionists fell heir to the legal apparatus of the State, which in turn permitted them to enter into possession of all but 53,000 hectares of cultivable land within their lines. Firstly, they inherited the mandate's public domain, a not inconsiderable portion of which consisted of land actually farmed or used for grazing by Arabs. Secondly, they took over an enormous amount of land owned by Arabs who had fled or were driven beyond Jewish lines and whom they did not subsequently permit to return. Forty per cent of land owned by Arabs who were still in Israel was also appropriated and assigned to a Custodian of abandoned property. By far the largest part of the property acquired by the Jewish State in the late 1940s or early 1950s was property owned by Arabs and classified by the State as vacant or abandoned. A third widely used technique of land acquisition was the use of the power of expropriation for the benefit of public interest ... Arabs were deprived of property at fixed 1950 prices even many years after 1950 so that Jews could be settled in their places. While some Palestinians accepted the compensation offered, many would not, wishing to avoid definitively signing away their rights. In these cases expropriation amounted in fact to confiscation.
"A final technique was the imposition of ex post facto legal texts of land ownership. In order to regularize what the Israelis perceived as a confused land tenure situation, a law required all Arab proprietors to produce deeds of ownership or other proof of continuous holding of a property for the past 15 years. Many smallholders could produce neither and subsequently lost their houses, gardens, farms and shops."
In the West Bank, "the extent of the confiscated land increased from 27 per cent of the total areas in May 1979 to 33 per cent last September (1980)". 41/
The Commission also noted:
In relation to Israel's announcement that Jerusalem had become the united capital of Israel, "on the buildings to be used by the Prime Minister and his Cabinet, the work is said to be proceeding. Arab properties adjacent to it have already been confiscated and several Arab families have been ordered to vacate their nearby houses due to be demolished".43/
The policy of demographic changes has taken another step. In September 1980, Israeli officials announced the Government's decision to speed up the process of "thickening" (in the official terminology) the settler population before June elections. 45/ The number of Jews in the West Bank increased in the last four years (from 1977 to 1981) from 3,200 to 20,000. That means an increase of 620 per cent.
The Council of Jewish Settlements in the West Bank and Gaza appointed a special team to seek ways to increase the Jewish population from 17,000 to 40,000 within a year (an increase of 150 per cent in 1981).46/
Salim Tamari, a Professor of Sociology at the University of Birzeit (occupied territories) stated the following:
"This has created a situation where academicians and professionals, and also labourers who were made redundant and who no longer can find employment in the occupied territories, or in Israel, as a result of a recession, have left the country, many of them because of political repression, and created a demographic inbalance in that section of the population which is most productive.
"So, if we look at the structure of the population between the ages of 30 years and 44 years, we find that the ratio of females to males is in excess. The consequence of this in social terms is very severe because it creates a distorted composition of the population. It leaves a very important section of the productive population out of the country and creates conditions for further reduction of the population in the occupied territories." 47/
The economic and social patterns of the Arab population in the occupied territories have been substantially modified. The Security Council Commission states that "a number of Arab landowners are now compelled to earn their living and that of their family by working on their own land as the hired employees of the Israeli settlers".49/
Another aspect of the social consequences of the policy of settlements is the relationship between the settlers and the Arabs. It can be said that:
"Increasingly, West Bankers recognize settlements as the most threatening consequence of the occupation. Whereas the occupation intended to govern, the settlements seek to transform. Regardless of their location, size or stated purpose, West Bankers regard each settlement as little more than a euphemism for the theft of their land and political future." 51/
1. The establishment of settlements in the occupied territories has been widely condemned by the international community and the United Nations through its various bodies, the General Assembly, the Security Council, the Commission on Human Rights etc. United Nations resolutions have called upon Israel to desist from taking any action which would result in changing the legal status and geographical nature and demographic composition of the Arab territories occupied since 1967.
2. Taking into account that the fourth Geneva Convention and the Hague Convention are applicable to the territories occupied by Israel, the General Assembly has declared that the establishment of settlements and the transfer of population that it entails are illegal.
3. The General Assembly has condemned the evacuation, deportation, expulsion, displacement and transfer of Arab inhabitants of the occupied territories and denial of their right of return.
4. The Security Council, in its resolution 465 (1980), called upon the Government and people of Israel to dismantle the existing settlements and to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem.
5. The international community considers that the policy of settlements constitutes a serious obstruction to the achievement of a comprehensive, just and lasting peace in the Middle East.
6. The Security Council has determined that the policy and practices/of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity.
NOTES AND REFERENCES
2/ Ibid., p. 11.
3/ Letter dated 18 October 1979 from the Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People addressed to the Secretary-General and the President of the Security Council (A/34/605-S/13582), contained in Bulletin No. 9-10 of September/October 1979 of the Special Unit on Palestinian Rights, p. 7.
4/ Letter dated 19 June 1981 from the Acting Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People to the Secretary-General, contained in document A/36/341-S/14566.
5/ Report of the Security Council commission established under resolution 446 (1979), document S/14268 of 25 November 1980, p. 31.
6/ The Jerusalem Post, 26 December 1980.
7/ Report of the Security Council Commission established under resolution 446 (1979), document S/14268 of 25 November 1980, p. 32.
8/ John Ruedy, Professor of History at Georgetown University, "Israeli land acquisition in occupied territory, 1967-1977", United States Senate Subcommittee on Immigration and Naturalization (Committee on the Judiciary), Ninety-fifth Congress, first session, 17 October 1977, pp. 124, 127.
9/ General Assembly resolution 35/122 B of 11 December 1980 and Security Council resolution 446 (1979) of 22 March 1979.
10/ Leonard C. Meeker. Statement prepared for the Subcommittees on International Organizations and on Europe and the Middle East, United States House of Representatives, Ninety-fifth Congress, first session, 21 September 1977, p. 110.
13/ Ibid., p. 111.
14/ Statement made by Moshe Dayan before the General Assembly on 10 October 1977. See Official Records of the General Assembly, Thirty-second session. Plenary Meetings, 27th meeting.
15/ Stephen M. Boyd, "The applicability of international law to the occupied territories" in Israel Yearbook on Human Rights, vol. 1 (published under the auspices of the Faculty of Law, Tel Aviv University), 1971, p. 259.
16/ W. T. Mallison, Professor at George Washington University. Testimony given before the Subcommittee on Immigration and Naturalization of the Committee of the Judiciary, United States Senate, Ninety-fifth Congress, first session, 17 October 1977, p. 50.
17/ Stephen M. Boyd, op. cit., p. 367.
18/ Leonard C. Meeker, op. cit., p. 112.
19/ Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, document A/8389 of 5 October 1971, p. 27.
20/ Report of the Security Council Commission established under resolution 446 (1979), document S/14268, p. 47. The first and second reports of the Commission were submitted to the Council on 12 July 1979 (S/13450 and Add.l) and 4 December 1979 (S/13679), respectively.
21/ "Treatment of Palestinians in Israeli-occupied West Bank and Gaza", report of the National Lawyers Guild, 1977, Middle East delegation (National Lawyers Guild, New York, 1978), p. 10.
22/ The Washington Post, 22 October 1979.
23/ "Treatment of Palestinians in Israeli-occupied West Bank and Gaza", op. cit., p. 10.
24/ Raymond Tanner, Professor of Political Science at the University of Michigan. Statement made before the Subcommittee on International Organizations and on Europe and the Middle East of the Committee on International Relations, United States House of Representatives, Ninety-fifth Congress, first session, 12 September 1977, p. 52.
25/ "Treatment of Palestinians in Israeli-occupied West Bank and Gaza", op. cit., p. 9.
27/ In July 1977, the National Lawyers' Guild sponsored a visit to the Middle East by 10 of its members to study the situation of the Palestinian people and to investigate allegations of violations of human rights. The group visited Lebanon, Jordan, Israel, the West Bank and Gaza.
28/ "Treatment of Palestinians in Israeli-occupied West Bank and Gaza", op. cit., p. 12.
29/ Ibid., p. 14.
30/ Ibid., p. 9.
31/ Ibid., p. 11.
32/ Raja Shehadeh. The West Bank and the rule of law (The International Commission of Jurists, 1980) , p. 61.
33/ Ibid., p. 108.
34/ See, in this connexion. Raja Shehadeh, op. cit., p. 30.
35/ "Treatment of Palestinians in Israeli-occupied West Bank and Gaza", op. cit., p. 5.
36/ Paul Quiring, Director of the Mennonite Relief Agency. Statement made before the Subcommittees on International Organizations and on Europe and the Middle East of the Committee on International Relations, United States House of Representatives, Ninety-fifth Congress, first session, 12 September 1977, p. 44.
37/ Document A/9148 of 25 October 1973, p. 11.
38/ Baja Shehadeh, op. cit., p. 60.
39/ "Treatment of Palestinians in Israeli-occupied West Bank and Gaza", op. cit., p. 6.
40/ Report of the Security Council Commission established under resolution 446 (1979), document S/14268 of 25 November 1980, p. 33.
41/ Ibid., p. 34.
42/ Ibid., p. 32.
43/ Ibid., p. 34.
44/ Ibid., document S/13450 of 12 July 1979, p. 40.
45/ The New York Times, 19 and 20 February 1981.
46/ The Jerusalem Post, 26 December 1980.
47/ Salim Tamari, Professor of Sociology at the University of Birzeit. Statement made before the Subcommittee on Immigration and Naturalization of the Committee on the Judiciary, United States Senate, Ninety-fifth Congress, first session, 17 October 1977, p. 77.
48/ Report of the Security Council Commission established under resolution 446 (1979), document S/13450, p. 41.
50/ Ann M. Lesch, op. cit., p. 8.
51/ Paul Quiring, op. cit., p. 49.
LIST OF SETTLEMENTS a/
A. ISRAELI SETTLEMENTS ON THE WEST BANK
a/ Report of the Security Council Commission established under resolution 446 (1979), document S/14268 of 25 November 1980.
b/ Settlement planned for expansion (for details, see annex III below).
c/ Work on settlement suspended following Israeli Supreme Court order. Instead, a new settlement was started (Tell Kebir) as an alternative. Elon Moreh settlement was not abandoned.
B. ISRAELI SETTLEMENTS IN THE GOLAN HEIGHTS a/
a/ Report of the Security Council Commission established under resolution 446 (1979), document S/14268 of 25 November 1980.
C. ISRAELI SETTLEMENTS IN THE GAZA STRIP
Annex II a/
SETTLEMENTS ALREADY ESTABLISHED OR BEING ESTABLISHED IN JUDEA AND SAMARIA
(Map showing Israeli settlements)
MAP NO.3070 Rev.1
(Map of West Bank and Gaza)
MAP NO.3071 Rev.1
81-33457 0161h (E) 66