Mr. Kerry, Those “Territories” Are Not Arab And Not “Occupied”

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kerry1The Honorable John Kerry, U.S. Secretary of State,
The State Department,
Washington D.C.

Dear Secretary Kerry,

After listening to you declare repeatedly over the past weeks that “Israel’s settlements are illegitimate”, I respectfully wish to state, unequivocally, that you are mistaken and ill advised, both in law and in fact.

Pursuant to the “Oslo Accords,” and specifically the Israel-Palestinian Interim Agreement (1995), the “issue of settlements” is one of subjects to be negotiated in the permanent status negotiations. President Bill Clinton on behalf of the US, is signatory as witness to that agreement, together with the leaders of the EU, Russia, Egypt, Jordan and Norway.

Your statements serve to not only to prejudge this negotiating issue, but also to undermine the integrity of that agreement, as well as the very negotiations that you so enthusiastically advocate.

Your determination that Israel’s settlements are illegitimate cannot be legally substantiated. The oft-quoted prohibition on transferring population into occupied territory (Art. 49 of the 4th Geneva Convention) was, according to the International Committee Red Cross’s own official commentary of that convention, drafted in 1949 to prevent the forced, mass transfer of populations carried out by the Nazis in the Second World War. It was never intended to apply to Israel’s settlement activity. Attempts by the international community to attribute this article to Israel emanate from clear partisan motives, with which you, and the US are now identifying.

The formal applicability of that convention to the disputed territories cannot be claimed since they were not occupied from a prior, legitimate sovereign power.

The territories cannot be defined as “Palestinian territories” or, as you yourself frequently state, as “Palestine”. No such entity exists, and the whole purpose of the permanent status negotiation is to determine, by agreement, the status of the territory, to which Israel has a legitimate claim, backed by international legal and historic rights. How can you presume to undermine this negotiation?

There is no requirement in any of the signed agreements between Israel and the Palestinians that Israel cease, or freeze settlement activity. 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.

Israel’s settlement policy neither prejudices the outcome of the negotiations nor does it involve displacement of local Palestinian residents from their private property. Israel is indeed duly committed to negotiate the issue of settlements, and thus there is no room for any predetermination by you intended to prejudge the outcome of that negotiation.

By your repeating this ill-advised determination that Israel’s settlements are illegitimate, and by your threatening Israel with a “third Palestinian intifada” and international isolation and delegitimization, you are in fact buying into, and even fueling the Palestinian propaganda narrative, and exerting unfair pressure on Israel. This is equally the case with your insistence on a false and unrealistic time limit to the negotiation.

As such you are taking sides, thereby prejudicing your own personal credibility, as well as that of the US.

With a view to restoring your own and the US’s credibility, and to come with clean hands to the negotiation, you are respectfully requested to publicly and formally retract your determination as to the illegitimate nature of Israel’s settlements and to cease your pressure on Israel.

Respectfully,

Alan Baker, Attorney, Ambassador (ret’)

Former legal Counsel of Israel’s Ministry for Foreign Affairs,
Former ambassador of Israel to Canada,
Director, Institute for Contemporary Affairs, Jerusalem Center for Public Affairs,
Director, International Action Division, The Legal Forum for Israel

Copy: H.E. Daniel B. Shapiro, US Ambassador to Israel

Israel Commentary

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9 COMMENTS

  1. Well written and spoken.

    Kerry who himself is married to a Muslim woman has no ear or interest in the truth, rather sell Israel down the stream for a few wooden coins.

  2. It’s time for Israel and the AMERICAN JEWISH COMMUNITY examine the situation and recognise what he and OB want to acheive.This is a replay of the attitude of the US State Dept before and throughout WWII.The Jewish people payed a terrible price by not speaking out

  3. “Your determination that Israel’s settlements are illegitimate cannot be legally substantiated. The oft-quoted prohibition on transferring population into occupied territory (Art. 49 of the 4th Geneva Convention) was, according to the International Committee Red Cross’s own official commentary of that convention, drafted in 1949 to prevent the forced, mass transfer of populations carried out by the Nazis in the Second World War. ”

    That isn’t exactly what the ICRC says. Here is a quote from their web site:

    “The Convention adopted in 1949 takes account of the experiences of World War II. It is composed of 159 articles. It contains a short section concerning the general protection of populations against certain consequences of war, without addressing the conduct of hostilities, as such, which was later examined in the Additional Protocols of 1977. The bulk of the Convention deals with the status and treatment of protected persons, distinguishing between the situation of foreigners on the territory of one of the parties to the conflict and that of civilians in occupied territory. It spells out the obligations of the Occupying Power vis-à-vis the civilian population and contains detailed provisions on humanitarian relief for populations in occupied territory. ”

    “It was never intended to apply to Israel’s settlement activity. ”

    To the contrary, it applies directly to Israel’s settlement activity:

    “The Occupying Power shall not deport or transfer parts of its own civilian
    population into the territory it occupies”

    Israel’s deliberate policy, especially from 1977 to 1992, was to flood the territory with Israeli Jews in order to extinguish the national rights of the Arab residents. That is exactly the kind of thing that the Fourth Geneva Convention was trying to prohibit.

    And the United States warned Israel about his on April 8, 1968! Here is the text of this warning; you can find it on the US State Department web site:

    FOREIGN RELATIONS OF THE UNITED STATES, 1964–1968
    VOLUME XX, ARAB-ISRAELI DISPUTE, 1967–68, DOCUMENT 137

    137. Airgram From the Department of State to the Embassy in Israel1

    Washington, April 8, 1968, 3:04 p.m.

    SUBJECT
    Israeli Settlements in Occupied Territories
    REF
    Tel Aviv 2722, A-716, Jerusalem A-1762
    CA-7122

    We have noted press and posts’ reporting that the GOI is under increasing pressure to authorize and facilitate the establishment of civilian settlements in the occupied areas. Existing settlements in the Golan Heights, Sinai, and at Etzion were justified by the GOI as para-military encampments serving security purposes. Recent reports (Tel Aviv A-716) indicate that these settlements are taking on aspects of permanent, civilian, kibbutz-like operations and some are, in fact, civilian kibbutzim with Nahal covers. Thus far, we have no information on the establishment of settlements by the 17 groups which Prime Minister Eshkol announced in the Knesset February 26 he had approved. While there was no suggestion in his statement that these groups would be associated with Nahal, we note that the groups filed applications with the GOI and it seems probable they are non-Nahal.

    Although we have expressed our views to the Foreign Ministry and are confident there can be little doubt among GOI leaders as to our continuing opposition to any Israeli settlements in the occupied areas, we believe it would be timely and useful for the Embassy to restate in strongest terms the US position on this question.

    You should refer to Prime Minister Eshkol’s Knesset statement and our awareness of internal Israeli pressures for settling civilians in occupied areas. The GOI is aware of our continuing concern that nothing be done in the occupied areas which might prejudice the search for a peace settlement. By setting up civilian or quasi-civilian outposts in the occupied areas the GOI adds serious complications to the eventual task of drawing up a peace settlement. Further, the transfer of civilians to occupied areas, whether or not in settlements which are under military control, is contrary to Article 49 of the Geneva Convention,3 which states “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Finally, you should emphasize that no matter what rationale or explanation is put forward by the GOI, the establishment of civilian settlements in the occupied areas creates the strong appearance that Israel, contrary to the principle set forth in the UNSC Resolution and to US policy expressed in the President’s speech of June 19, does not intend to reach a settlement involving withdrawal from those areas.

    Rusk

    1 Source: National Archives and Records Administration, RG 59, Central Files 1967-69, POL 27 ARAB-ISR. Confidential. Drafted by Precht; cleared by Wiley, Wehmeyer, and Day, and in draft by Bovis and Atherton; and approved by Davies. Repeated to Amman, Beirut, Cairo, USUN, London, and Jerusalem.

    2 Telegram 2722 from Tel Aviv, March 1, reported on a question-and-answer session in the Knesset on February 26 during which Eshkol answered questions dealing with Jewish settlement in the occupied territories, and discussed the negotiability of Jerusalem. (Ibid.) In airgram A-716 from Tel Aviv, March 29, the Embassy reported on the growth of six Israeli settlements in the Golan Heights area. (Ibid., REF ISR) Airgram A-176 from Jerusalem, March 6, reported on an Israeli settlement developing at a former Jordanian Army installation on the Dead Sea. (Ibid., POL 27 ARAB-ISR)

    3 Reference is to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949. (6 UST 3516, TIAS 3365)

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