TWN Info Service on UN Sustainable Development (Jul21/08)
13 July 2021
Third World Network

Rights: Israeli settlements amount to a war crime, says UN expert
Published in SUNS #9386 dated 13 July 2021

Geneva, 12 Jul (Kanaga Raja) – Israel’s policy of “settler implantation” meets the definition of “war crime” as per international humanitarian law and the 1998 Rome Statute of the International Criminal Court (ICC), a UN human rights expert has said.

In a report presented to the UN Human Rights Council, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, Mr Michael Lynk, recommended that the Government of Israel fully comply with its obligations under international law and completely dismantle its civilian settlements in the occupied Palestinian territory.

The Special Rapporteur also recommended that the international community fully support the work of the Office of the Prosecutor of the ICC as it investigates the allegation that Israeli settlements are in breach of the Rome Statute.

Mr Lynk also called upon all UN member states to implement the injunction of the Security Council in Resolution 465 (1980) not to provide Israel with any assistance to be used specifically in connection with settlements in the occupied territories.

The Human Rights Council is currently holding its forty-seventh regular session from 21 June to 13 July.

In presenting his report (A/HRC/47/57) to the Human Rights Council on 9 July, the Special Rapporteur said that the illegality of the Israeli settlements is one of the most settled and un-contentious issues in modern international law.

“The UN Security Council, the General Assembly and this Council have all made this determination repeatedly, and they have repeatedly demanded that Israel halt and unwind its settlement project,” he added.

Yet the international community has been re-markedly reluctant to enforce these laws, said the Special Rapporteur.

“As long as the international community criticizes Israel without seeking consequences and accountability, it is magical thinking to believe that the 54-year-old occupation will end and the Palestinians will finally realize their right to self-determination,” he added.

“In my report, I conclude that the Israeli settlements do amount to a war crime. I submit to you that this finding compels the international community to assess the plentiful accountability measures on its diplomatic and legal menu, and to make it clear to Israel that its illegal occupation, and its defiance of international law and international opinion, can and will no longer be cost-free,” said Mr Lynk.

“The evidence before our eyes is overwhelming that the Israeli occupation will not die of old age. As much as we may wish it, it will not end because the Israeli government will suddenly wake up one day and decide on its own that an alien occupation that is metastasizing into annexation and even apartheid, and a one-state reality of vastly unequal rights, is entirely out-of-step with the 21st century,” he added.

“It will only end with the continued activism of Palestinians and the decisive intervention of the international community,” the Special Rapporteur said.

He called upon the international community to amongst others develop a comprehensive menu of accountability measures to be applied to Israel should it continue to defy international law, including reviewing trade, investment and cultural agreements, and ending arms sales with Israel.

Mr Lynk also called upon the international community to ensure full accountability of Israeli political, military and administrative officials who are responsible for grave breaches of international law in the Occupied Palestinian territory.

According to the report by the Special Rapporteur, in July 1998, delegates from 120 states voted in favour of the negotiated text of the Rome Statute of the International Criminal Court.

The Rome Statute created, for the first time, a permanent international court to try alleged perpetrators of war crimes, crimes against humanity and other serious international crimes. Among the expressly listed war crimes in the Rome Statute is the transfer, directly or indirectly, by an occupying power of parts of its own population into the territory it occupies.

The prohibition against settler implantation by an occupying power was first entrenched into international law through the Fourth Geneva Convention of 1949, and it was subsequently characterized as a “grave breach” and a “war crime” by the 1977 Additional Protocol 1 to the Conventions.

The creation and expansion of the Israeli settlements in the occupied Palestinian territory is the state’s largest and most ambitious national project since its founding in 1948, said the Special Rapporteur.

Mr Lynk said that starting with the very first Israeli settlements that were erected in the months following the June 1967 war, the full apparatus of the Israeli state – political, military, judicial and administrative – has provided the leadership, financing, planning, diplomatic cover, legal rationale, security protection and infrastructure that has been indispensable to the enterprise’s incessant growth.

He noted that to incentivize Israeli and diaspora Jews to live in its settlements in the occupied territory, the Israeli government actively offers a range of financial benefits, including advantageous grants and subsidies for individuals, and favourable fiscal arrangements for settlements.

Mr Lynk said that these include subsidized housing benefits and premium mortgage rates, venture benefits for agricultural development, education and welfare benefits and the designation as a national priority area. It also makes available attractive business incentives for industrial zones in the settlements, such as discounted land fees, employment subsidies and reduced corporate taxes.

Beyond this, the settlements are treated as an integral part of Israel’s municipal and regional governance system, with budgetary funding for education, utilities, infrastructure, housing, water, transportation and other services, said the Special Rapporteur.

The spatial placement of the Israeli settlements badly fragments Palestinian contiguity in East Jerusalem and the West Bank, he added.

In East Jerusalem, the 12 Jewish settlements are located primarily around the northern, eastern and southern perimeters of the city, blocking any Palestinian territorial continuity with the West Bank.

In the West Bank, the settlements are organized into two main settlement blocs. South of Jerusalem is the Gush Etzoin bloc, stretching from Bethlehem to Hebron. The northern bloc is spread out from the Ramallah area to Nablus. There are also smaller settlement blocs just east of Jerusalem and in the Jordan Valley.

In order to provide efficient transportation between the settlements and to Israeli urban areas, and to encourage new settlers and settlement expansion, the Israeli government has invested heavily in building a dense network of highways through the West Bank and East Jerusalem, built on confiscated Palestinian lands and which services only the settler population.

Aside from 150 officially-recognized settlements in East Jerusalem and the West Bank, there are another 150 so- called settlement outposts built without formal state authorization and which Israel does not officially recognize, said Mr Lynk.

However, Israel has granted retroactive authorization to dozens of these outposts, and it actively supports virtually all of the other remaining outposts.

The Special Rapporteur said beyond the expansive support for the settlements provided by the Israeli government, several significant international private organizations play a seminal role in supporting settler implantation. The World Zionist Organization’s Settlement Division, which is substantially funded by the Israeli government, acts as a government agent in assigning land to Jewish settlers in the West Bank, including to settlement outposts.

The Jewish National Fund has actively sought to purchase Palestinian lands in the West Bank as well as to support infrastructure development, tourism and roads in the Israeli settlements.

While the Israeli settlements have flourished and provide an attractive standard of living for the settlers, they have created a humanitarian desert for the Palestinians, reaching every facet of their lives under occupation, said Mr Lynk. “Human rights violations against Palestinians arising from the Israeli settlements are widespread and acute,” he added.

“Settler violence has created a coercive environment. There is an apartheid-like two-tier legal system granting full citizenship rights for the Israeli settlers while subjecting the Palestinians to military rule.”

Access to the natural resources of the occupied territory, especially to water, is disproportionately allocated to the settlements, and the fragmented territory left to the Palestinians has resulted in a highly dependent and strangled economy, mounting impoverishment, daily impositions and indignities, and receding hope for a reversal of fortune in the foreseeable future.

In the immediate aftermath of the 1967 war, the Israeli political leadership engaged in an intense debate over the future of the Palestinian territories that it now occupied, with two distinct but overlapping plans emerging, said Mr Lynk.

According to the rights expert, the Allon Plan (named after Yigal Allon, the Israeli labour minister) proposed to settle and eventually annex specific sectors of the West Bank and Gaza, with the heavily-populated Palestinian towns and cities consigned to some future Israeli-Jordanian governance condominium.

The more ambitious yet more ambiguous Dayan Plan (named after Moshe Dayan, the Israeli defense minister) proposed to retain de facto Israeli control indefinitely over the entire Palestinian territories, with a declaration of permanent de jure status to await some opportune moment in the future.

What these arguments shared was the desire for Israel to permanently retain significant portions of the Palestinian territories, with intensive Jewish civilian settlement as the prime method for securing its sovereignty claim, said Mr Lynk.

“These two plans, with ongoing modifications in response to the progress and challenges of the occupation, have dominated the Israeli political debate on the Palestinian territories and the Israeli settlement project ever since.”

Mr Lynk noted that in 1978, Matityahu Drobles, a senior official with the settlement division of the World Zionist Organization, re-articulated the strategy for Israeli settlement development as first proposed by Allon and Dayan: thicken the Jewish settlements through the West Bank in order to forestall the possibility of a Palestinian state and to ensure Israeli permanence.

This strategy has been immensely successful, said the Special Rapporteur, noting that at the end of 2019, there were approximately 300 settlements and 665,000 Jewish settlers in occupied East Jerusalem and the West Bank.

The settler population increase in the West Bank in 2019 was 3.2 percent, substantially higher than the overall 1.9 percent growth rate for Israeli citizens and residents.

In order to ensure maximum security and land base for the settlements and the upmost freedom of movement for the settlers, the Israeli government has confined the 2.7 million Palestinians in the West Bank within a fragmented archipelago of 165 disparate patches of land (Areas A and B), completely surrounded by an area under full Israeli control (Area C) and hemmed in by hundreds of road-blocks, walls, checkpoints and forbidden zones.

The West Bank and East Jerusalem are increasingly demarcated from each other by intense settlement construction, and both areas are separated from Gaza by severe travel restrictions.

Highlighting the strategy’s diplomatic achievement, the Special Rapporteur said that among senior diplomats who have worked on the Israel-Palestine file, there has been no serious effort in recent decades to demand that Israel comply with international law and UN resolutions by fully dismantling its settlements.

“Indeed, all of the international peace process initiatives over the past three decades, beginning with Madrid-Oslo in 1991, have accommodated the facts on the ground established by the Israeli settlements.”

Relying on realpolitik rather than international law, every peace proposal submitted by an American president, beginning with Bill Clinton in 2000, has assumed that Israel will retain most, if not all, of its settlement blocks in any final peace agreement, said Mr Lynk.

ISRAELI SETTLEMENTS AND INTERNATIONAL LAW

According to the report by the Special Rapporteur, the illegality of the Israeli settlements is one of the most settled issues in modern international law.

Among the international community, there is a virtual wall-to-wall consensus that the settlements violate the Fourth Geneva Convention’s prohibition on settler implantation, he said.

The illegality of the settlements has been affirmed by the International Court of Justice, the United Nations General Assembly, the UN High Commissioner for Human Rights, the UN Human Rights Council, the European Union, Amnesty International, the International Committee of the Red Cross, the High Contracting Parties to the Fourth Geneva Convention, the International Commission of Jurists, Human Rights Watch, Al-Haq, and B’Tselem.

Mr Lynk said that in December 2016, the UN Security Council, building upon a number of previous resolutions confirming the illegality of the Israeli settlements and the transfer of population, reaffirmed in Resolution 2334 that: “… the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.”

Yet, while the Israeli settlements are prohibited by an authoritative and well articulated body of international law, the international community has been remarkably reluctant to enforce these laws, said the Special Rapporteur.

He noted that the Security Council in Resolution 2334 reiterated its previous demands that Israel must immediately and completely cease all settlement activities.

Since early 2017, the Special Coordinator for the Middle East Peace Process has reported to the Security Council on 18 quarterly occasions that Israel has taken no steps to comply with its obligations under Resolution 2334, he said.

The Special Rapporteur noted that the Rome Statute requires three elements of the war crime of transfer of a civilian population in an occupied territory to be satisfied.

The first two elements constitute the material element of the crime: (i) The transfer by the perpetrator of parts of its own population into the occupied territory; and (ii) The conduct took place arising from an international armed conflict.

In the case of the Israeli settlements, both of the material elements are met, said the Special Rapporteur.

Israel captured the West Bank, including East Jerusalem, and Gaza in June 1967 as part of an international armed conflict, he said.

According to the Special Rapporteur, virtually the entire international community accepts the designation of the Israeli control of the Palestinian territory as an occupation, to which the full scope of international humanitarian law and international human rights law continues to apply.

He also said that the historical and contemporary evidence is abundantly clear that the senior political, military and administrative officials of the government of Israel, as well as important international private organizations, have actively developed and implemented a practice of transferring hundreds of thousands of Israeli citizens into the occupied Palestinian territory – through enabling large-scale housing, commercial and infrastructure construction, providing advantageous state funding and ensuring military security – in order to establish an immovable demographic presence.

According to the Special Rapporteur, the third element of the crime is the mental element that: (iii) the perpetrator was aware of the factual circumstances of the crime of transfer that established the existence of an armed conflict.

In other words, the perpetrator has both the intent and the knowledge of the crime. In this case, the mental element is satisfied, said Mr Lynk. The political, military and administrative leadership of Israel has directly and knowingly supported the decades-long state policy of encouraging and sustaining the growth of the settlements, he added.

Throughout these decades, said the Special Rapporteur, this leadership has been fully aware of the clear direction from the international community that such activities violate fundamental prohibitions in international law.

“It is the finding of the Special Rapporteur that Israel’s policy of settler implantation meets the definition of “war crime” as per international humanitarian law and the Rome Statute,” Mr Lynk declared.

The Special Rapporteur also endorsed the view that the Israeli settlements constitute a continuing crime, and therefore fall within the temporal jurisdiction of the ICC.

In conclusion, the Israeli settlements are the engine of this forever occupation, and amount to a war crime, said the Special Rapporteur.

An occupying power which initiates and expands civilian settlements in defiance of international law and the Rome Statute cannot be serious about peace, he added.

An international community which does not impose accountability measures on a defiant occupying power contrary to international law cannot be serious about its own laws, Mr Lynk concluded.