Settlements: the position of the UN and the ICJ

Printable version of: http://www.diakonia.se/sa/node.asp?node=3288

The United Nations Security Council (UNSC) has in a number of resolutions declared the settlements a violation of international law and called on Israel to dismantle them. The Security Council has also declared the annexation of Jerusalem null and void. The International Court of Justice (ICJ) stated that the settlements in the oPt are in breach of Article 49(6) of the Fourth Geneva Convention.

Pertinent United Nations Security Council resolutions

Resolution 242 (November 22, 1967)

This is one of the most quoted resolutions pertaining to the Middle Eastern conflict. It was adopted unanimously by the UNSC in the aftermath of the 1967 war. It calls for "the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles: (i) Withdrawal of Israeli armed forces from territories occupied in the recent conflict", "(ii) Termination of all claims or states of belligerency" and respect for the right of every state in the area to live in peace within secure and recognized boundaries.

In later UNSC resolutions, such as Resolution 446 (below), the settlements have been identified as a serious obstruction to the just and lasting peace resolution 242 talks about.

Resolution 446 (March 22, 1979)

The resolution affirms that the Fourth Geneva Convention is applicable to the oPt, including East Jerusalem. It further expresses that the settlements constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East. Therefore, it calls upon Israel to abide scrupulously by the Fourth Geneva Convention, to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the territories occupied and, in particular, not to transfer parts of its own civilian population into the occupied territories.

To UNSC Resolution 446

Resolution 465 (March 1, 1980)

This resolution again calls upon Israel to dismantle the settlements, and upon other states not to support Israel’s settlement project. It also includes a section on the need to investigate the situation relating to water and other natural resources connected with the settlement project.

To UNSC Resolution 465

Resolution 478 (August 20, 1980)

This resolution was a response to Israel's Basic Law: Jerusalem, Capital of Israel (July 30, 1980), which on a higher constitutional level, declared Jerusalem to be Israel 's "eternal and indivisible" capital including the occupied East Jerusalem territory.

The resolution begins by affirming that acquisition of territory, annexation, by force is forbidden according to International Law. It then continues, declaring this Israeli basic law null and void, and states the continued application of the Fourth Geneva Convention. It also calls upon member states to withdraw their diplomatic missions from the city.

To the website of the Israeli Knesset and the text of the Basic Law: Jerusalem, Capital of Israel

To the UNSC Resolution 478

The International Court of Justice

The International Court of Justice (ICJ) in its Advisory Opinion of July 2004 found that the construction of the Wall in the West Bank, and its associated régime, are contrary to international law. In the analysis leading to this conclusion, the Court also reiterated the de jure application of the Fourth Geneva Convention, the status of the oPt as an occupied territory, and the illegality of Israeli settlements built therein.

The Court stated that Israel established settlements in the oPt, including East Jerusalem, in breach of Article 49(6) of the Fourth Geneva Convention. It quoted the UN Security Council position on settlements, namely that such policy and practices “have no legal validity” and constitute a “flagrant violation” of the Fourth Geneva Convention.

The ICJ also expresses a fear that even though the settlements themselves are not intended to displace Palestinian inhabitants, in practice the construction of the Wall will lead to a “fait accompli” on the ground, that could well become permanent, in which case it would be tantamount to de facto annexation.