International Humanitarian Law in the West Bank and Gaza Strip

International humanitarian law prohibits the forcible transfer of segments of the population of a state to the territory of another state which it has occupied as a result of the resort to armed force. This principle, which is reflected in Article 49 of the Fourth Geneva Convention, was drafted immediately following the Second World War. As International Red Cross'' authoritative commentary to the Convention confirms, the principle was intended to protect the local population from displacement, including endangering its separate existence as a race, as occurred with respect to the forced population transfers in Czechoslovakia, Poland and Hungary before and during the war. This is clearly not the case with regard to the West Bank and Gaza.

The attempt to present Israeli settlements as a violation of this principle is clearly untenable. As Professor Eugene Rostow, former Under-Secretary of State for Political Affairs has written: "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there" (AJIL, 1990, vol. 84, p.72).

The provisions of the Geneva Convention regarding forced population transfer to occupied sovereign territory cannot be viewed as prohibiting the voluntary return of individuals to the towns and villages from which they, or their ancestors, had been ousted. Nor does it prohibit the movement of individuals to land which was not under the legitimate sovereignty of any state and which is not subject to private ownership. In this regard, Israeli settlements have been established only after an exhaustive investigation process, under the supervision of the Supreme Court of Israel, designed to ensure that no communities are established on private Arab land.

It should be emphasized that the movement of individuals to the territory is entirely voluntary, while the settlements themselves are not intended to displace Arab inhabitants, nor do they do so in practice.

 Repeated charges regarding the illegality of Israeli settlements must therefore be regarded as politically motivated, without foundation in international law. Similarly, as Israeli settlements cannot be considered illegal, they cannot constitute a "grave violation" of the Geneva Convention, and hence any claim that they constitute a "war crime" is without any legal basis. Such political charges cannot justify in any way Palestinian acts of terrorism and violence against innocent Israelis.

Politically, the West Bank and Gaza Strip is best regarded as territory over which there are competing claims which should be resolved in peace process negotiations. Israel has valid claims to title in this territory based not only on its historic and religious connection to the land, and its recognized security needs, but also on the fact that the territory was not under the sovereignty of any state and came under Israeli control in a war of self-defense, imposed upon Israel. At the same time, Israel recognizes that the Palestinians also entertain legitimate claims to the area. Indeed, the very fact that the parties have agreed to conduct negotiations on settlements indicated that they envisage a compromise on this issue.

Israeli-Palestinian Agreements

The agreements reached between Israel and the Palestinians contain no prohibition whatsoever on the building or expansion of settlements. On the contrary, it is specifically provided that the issue of settlements is reserved for permanent status negotiations, which are to take place in the concluding stage of the peace talks. Indeed, the parties expressly agreed that the Palestinian Authority has no jurisdiction or control over settlements or Israelis, pending the conclusion of a permanent status agreement.

It has been charged that the prohibition on unilateral steps which alter the "status" of the West Bank and Gaza Strip, which is contained in the Interim Agreement and in subsequent agreements between the parties, implies a ban on settlement activity. This position is disingenuous. The building of homes has no effect on the status of the area. The prohibition on unilateral measures was agreed upon in order to ensure that neither side take steps to change the legal status of this territory (such as by annexation or unilateral declaration of statehood), pending the outcome of permanent status negotiations. Were this prohibition to be applied to building, it would lead to the ridiculous interpretation that neither side is permitted to build homes to accommodate for the needs of their respective communities.

It is important to note, that in the spirit of compromise and in an attempt to take constructive confidence building measures in the peace process, successive Israeli governments have expressly recognized the need for territorial compromise in West Bank and Gaza Strip territory and have voluntary adopted a freeze on the building of new settlements. In this regard, the present National Unity Government, under Prime Minister Ariel Sharon, has officially declared that it will not build any new settlements, while remaining committed to the basic needs of the existing settlement communities (Government of Israel, Policy Guidelines, March 2001).

2. The Israeli military says that Palestinians are allowed to walk anywhere other than Shuhada Street. Is it really such an inconvenience to have one street closed to pedestrians?

It is not for the Israeli military to decide whether it is convenient or inconvenient for the Palestinians, yet this attitude of entitlement and legitimacy is the by-product of prolonged foreign occupation of a local population. The Palestinian residents of Hebron are not considered or consulted regarding whether or not the closure of their streets is in their security interest. Rather, the Israeli army makes decisions on their behalf and thus dictates the way Palestinians are allowed to live in their city. Shuhada Street is Hebron’s main street; traveling on it and crossing over it are essential to vibrant life and commerce in the area.

2. Response

First, Israel is not ''occupying a foreign city.'' In 1967 Israel came back home to Hebron, where Jews had lived for hundreds and thousands of years prior to the 1929 riots, massacre and expulsion.

Second, it must be noted that Arafat and the PLO (PA) accepted the legitimacy of a Jewish presence in Hebron when he signed and agreed to implementation of the 1997 ''Hebron Accords'' which transferred some 80% of Hebron to the total control of the PA.

Third, let it be known that until the advent of ''peace'' Hebron was an open city, the Jews and Arabs were able to access the entire city. That ended in 1997 when the H1 PA controlled area of Hebron was closed to Jews, despite the fact that according to the accords, Hebron was to be an ''open city.''

Fourth, unfortunately, since the advent of Oslo, Jews must now travel kilometers out of their way in order to reach various destinations, being that many areas are now ''closed to Jews'' and ''open to Arabs only.''

The ''inconvenience'' to Arabs in Hebron is miniscule, as compared to the distances Jews have to travel throughout Israel.

3. Wasn’t Shuhada Street closed as a response to terrorism?

No. Shuhada Street was initially closed to Palestinian shops and vehicular traffic in 1994 after the Israeli settler Baruch Goldstein killed 29 and injured 150 Palestinians when he opened fire in the Ibrahimi Mosque (Tomb of the Patriarchs) during prayers. The army cited fear of Palestinian revenge attacks as its rationale for closing the street. This main artery of the street and the former sight of the market place was reopened to traffic (but not commerce) in 1997 in accordance with the Hebron Protocol. In 2000, Shuhada Street was closed completely to traffic and partially to pedestrians. The street was effectively "sterilized" in 2002 by closing it off to all forms of all Palestinian movement.

How does the closure of Shuhada Street work legally?

It doesn’t. In 2004, Palestinians appealed to the Israeli Supreme Court about restrictions on their movement in H2. In November 2005, the State replied that Shuhada Street is open to all regular traffic, only closed to shops and vehicles, admitting that there were legal problems during the preceding years with the closure of areas all over Hebron without warrants. (Since 2005, the State has produced warrants to impose various restrictions of movement on 21 areas around the city.) In reality, areas marked on State and military maps as open to various forms of traffic and commerce are actually closed. A 2005 ''Children of Abraham'' video demonstrated that soldiers regularly prevent Palestinians from walking in areas that are indicated as open to traffic, and that some areas without any indications of closure on the maps are actually sealed with barbed wire and concrete blocks. A letter of complaint received a reply from the military in December 2006 stating that the street had been closed by mistake. The next Friday, the street was opened and on that Sunday, Palestinians were allowed to cross but only after being detained for two hours in both directions while international volunteers escorting them were arrested for disturbing the peace. The street was closed de facto by military orders and it was later revealed, via soldiers’ testimonies, that soldiers received orders to prevent people from wanting to be there. In 2007, the Supreme Court discussed the case again but the night before the decision was made the military unsealed the welding on the doors to homes on Shuhada Street and gave the families special permission to come out of their houses. They declared that by oral warrant from a General in the central command, the street is generally closed to Palestinian movement because all business and homes are closed anyways, therefore, there is nothing to see there.

Isn’t the policy of separation necessary to protect Jews from terrorism?

There is a real fear of terrorism which is supported by hundreds of successful and attempted Palestinian attacks on Israeli settlers, soldiers and police officers in Hebron. The separation policy responds to this fear by insisting that it is a necessary measure for protecting the Israeli settlers as long as they are inhabiting the center of the Palestinian city of Hebron. However, this security policy of separation reflects the political reality in the city, and not vice versa. As long as there is a policy that allows for Israeli settlement in Hebron, infringement of Palestinians'' civil and human rights necessarily follows. Our focus is on bringing Palestinian life back to Hebron and we believe that there is no way to ensure a dignified life for Palestinians if the foreign presence in the city remains in control.

3. Response

1.July 6, 2011: After 7 years of discussions, Supreme Court rejects Arab appeals that a Jewish street in Hebron be opened to Arab traffic http://goo.gl/9OKlA

In the early 2000s the Israeli courts required that the road be reopened to Arab traffic. As a result, during the first-stage, public transportation (Arab taxis) and municipal vehicles) were permitted to travel on the road. Pedestrian traffic was allowed on the entire road.

During this period of time, Israeli women were constantly accosted, physically and verbally, primarily by Arab teenagers and young adults. Arab taxis filled the road, causing constant traffic issues. However the road remained open.

Following the beginning of the second intifada in October, 2000, Arab terrorist forces began constant shooting attacks at the Jewish neighborhoods in Hebron from the hills surrounding the community, hills which were transferred to PA control as part of the Hebron Accords in January, 1997.

Shalhevet Pass was murdered, and others were wounded. The Levi couple from Kiryat Arba was murdered by a homicide bomber who exploded next to them on the road.

'King David Street' or 'Street of the Martyrs' - Shuhada?