Kerry arrives in Geneva 370.
(photo credit: REUTERS)
US Secretary of State John Kerry’s repeated assertions that “Israel’s
settlements are illegitimate,” which he reiterated most recently in a November 6
interview with Israel’s Channel 2 television, are legally and factually
mistaken. Publicly reasserting them, in fact, prejudges and even undermines the
very negotiations Secretary Kerry has been brokering between the Palestinian
Authority and Israel.
Pursuant to the “Oslo Accords,” and specifically
the 1995 Israel-Palestinian Interim Agreement, the “issue of settlements” is one
of the “core issues” to be negotiated in the permanent status negotiations
between the parties.
President Bill Clinton, on behalf of the United
States, is signatory as witness to that agreement, together with the leaders of
the EU, Russia, Egypt, Jordan and Norway.
In fact, there is no
requirement in any of the signed agreements between Israel and the PA that
either side cease or freeze settlement activity until the final disposition of
those disputed territories is negotiated between the sides. The opposite is in
fact the case.
The above-noted 1995 interim agreement enables each party
to plan, zone and build in the areas under its respective control.
context of these carefully crafted and mutually agreed upon arrangements under
the internationally sanctioned Oslo accords, Israel wonders why Secretary Kerry
has repeated determinations that Israel’s settlements are “illegitimate” –
assertions that are not supported by international law.
prohibition on the transfer of populations into occupied territory
49 of the 4th Geneva Convention) was, according to the
International Committee of the Red Cross’s own official commentary on that
convention, drafted in 1949 to prevent a re-occurrence of the Nazis’ forced mass
relocation of populations during the Second World War.
post-war circumstances under which the convention was drafted underscore its
inapplicability to sui generis situations such as Israel’s settlement
Attempts by some in the international community to attribute
Article 49 to Israel and suggest a comparison between former Nazi-coerced
population transfers and Israeli housing starts in the West Bank emanate from
longstanding partisan political sympathies as opposed to carefully considered
Moreover, the formal applicability of the 4th Geneva
Convention of 1949 to the disputed territories of Judea and Samaria/the West
Bank cannot be claimed since they were not occupied by a prior, legitimate
The Hashemite Kingdom of Jordan occupied the West Bank
from 1949 to 1967. However, Jordan’s sovereignty was rejected by the
international community, except for Britain and Pakistan.
While it has
become popular in international circles to pre-assign ownership rights of the
West Bank to the Palestinians, these disputed territories cannot be defined as
“Palestinian territories” or as “Palestine.”
No such entity exists, and
there has never been any binding agreement or international determination that
Judea and Samaria/the West Bank are Palestinian.
In fact, the express
purpose of the permanent status negotiation continues to be to determine, by
agreement, the status of the territory, to which Israel has a longstanding
legitimate claim, backed by international legal and historic
Notably, Israel is the only country in the 193 member UN General
Assembly whose rights to sovereignty in the territory west of the Jordan river
were twice affirmed last century, first as part of the Mandate for Palestine by
the League of Nations and then by its successor organization, the United
Nations, via its founding charter.
Today, while Israel’s territorial
rights are in force, its vibrant democracy continues to debate what concessions
of its rights are possible in the framework of peace negotiations.
important is the fact that Israel’s housing and settlement policy in
geographically contested areas neither prejudice the outcome of current
negotiations nor mandate displacement of local Palestinian residents from their
Since 1993 and the Oslo Exchange of Letters with the
PLO , and more specifically since the 1995 Oslo Interim Agreement, Israel has
committed itself to negotiate the issue of settlements as well as other core
It seems vitally important to avoid predeterminations that
prejudge the outcome of peace negotiations. That is why Secretary Kerry must
retract his comments on settlements to maintain his credibility and that of the
US administration as “fair and honest” broker in the quest for a secure, viable
and durable peace agreement between the PA and the State of Israel.Amb
(ret.) Alan Baker served as Israel’s Ambassador to Canada.
He was legal
counsel of Israel’s Ministry for Foreign Affairs from 1996 to 2004 and was
involved in all the negotiations of the Oslo peace process.
served as secretary- general of the World Jewish Congress from 2011 to 2013.