Israel's settlement policy in Arab land it occupied in 1967
constitutes a clear violation of the rules and laws of military
occupation pertaining to the Hague Agreement of 1907 and the Geneva
Convention of 1949, including their two appendices. This article
will show that Israel's settlement policy also violates
human-rights principles and infringes on the right of the
Palestinian people to achieve self-determination - a right which
has been guaranteed them by international law, the UN Charter and
various other international agreements.
The Right to Self-Determination
When the concept of self-determination was first evoked during the
First World War, it was taken to mean the right of a people to
determine its sovereignty over the region where it is living. It
was a principle that President Wilson endorsed before his country
joined the war.1 Although the right to self-determination was not
incorporated into the text of the Charter of the League of Nations,
it was implicit in the discourse relating to the protection of
minorities and that of the regulation of the Mandatory system.2 It
was only when the UN Charter was formulated in the wake of the
Second World War that self-determination was openly and clearly
mentioned in articles 1 and 55 of the UN Charter.3
In spite of disagreements over the definition and the determination
of its nature, it is possible to say that self-determination refers
to "the right of every nation to establish an independent state and
to freely choose its own political system."4 Self-determination is
a two-sided concept: one is internal and pertains to the choice of
a suitable governmental system; the second is international and is
embodied in the right of a people to independence and not to be
subject to transference or surrender against its will. It also
comprises the right of a nation to secede from the state to which
it belongs, to merge or unite with another one or to establish its
own independent state.5
Given the fact that self-determination is a collective and not an
individual right, it was not mentioned in the Universal Declaration
of Human Rights (which deals with individual rights), but was
nevertheless confirmed by this declaration in the first article
which deals with the principle of equality, from which that of
self-determination is derived.
The right to self-determination is denied in the presence of the
following:
• When population groups sharing a common existence in their
own region
are subjected to the domination of an alien power, be it military
or one
pertaining to another state, or a foreign colonialist power living
in the
same region;
• When these population groups, to whom the region belongs,
are denied the
right to exercise sovereignty over it.6
Before the advent of the UN Charter, the general tendency of
jurisprudence, at the time, was to consider self-determination as
merely a political principle used to put an end to certain
instances of colonialism and to regulate regional changes resulting
from international circumstances, especially after the First World
War. Following the UN Charter and its inclusion of the right to
self-determination in articles 1 and 55, for a large part of
jurisprudence it became indeed a legal right and not just a
political principle.7
This fact was subsequently underscored in several UN resolutions,
among them Resolution 637 of December 16, 1970, where the right of
people to self-determination was considered a basic condition for
the enjoyment of other rights and freedoms. This position was
further reinforced in the two international agreements - The
International Agreement for Civil and Political Rights and the
International Agreement for Economic, Social and Cultural Rights,
as well as several UN resolutions.8 Subsequently, there was a
succession of resolutions by the international body affirming the
right of people to self-determination, and it was in Resolution
1181 of December 11, 1957, that the term "right" was used instead
of "principle" for the first time. The General Assembly later
compiled all previous resolutions dealing with the subject into a
single one - Resolution 2625 - which was approved unanimously on
November 24, 1971.9
With the above resolution, the right to self-determination was
turned into a binding legal precept. It was applied in several
instances and was codified among the principles that govern the
relations of friendship and cooperation among the nations.
International jurisprudence goes further and acknowledges the
admissibility of the use of force to acquire this right.10
International recognition of this right carries great importance,
especially to persecuted nations and those struggling against
colonialism and foreign occupation, because its ratification in the
UN Charter gives them the legal and international base for the
achievement of self-determination.11
It should be noted that the right to self-determination is not
confined only to political and cultural aspects; it incorporates
economic ones as well, such as the right of nations to control
their own natural and human resources, as enunciated in the UN
Declaration of Permanent Sovereignty over Natural
Resources.12
The Right of the Palestinian People to
Self-Determination
The right of the Palestinian people to self-determination came in
the wake of the dismantlement of the Ottoman Empire and the
relinquishment by Turkey of its sovereignty over Palestine in 1923,
in accordance with the Treaty of Lausanne. Palestine then passed
under British Mandatory rule following a League of Nations
resolution. This the Palestinians rejected and resisted, especially
since in the Balfour Declaration [1917], Britain granted the Jews
the right to establish a national homeland in Palestine, denying
the Palestinians their own right to self-determination.
When the UN passed a resolution calling for the partition of
Palestine, it recognized the right of the Palestinian people to
self-determination, as the partition plan allows for the
establishment of an Arab Palestinian state - a right which stands
to this day. And lest the Palestinians be considered merely
refugees and war victims, the international body passed several
resolutions securing them their right to return to their homeland
and to determine themselves.13
This notwithstanding, Israel has consistently denied the
Palestinians the right to self-determination using various pretexts
which defy legal logic, and its continued occupation of Palestinian
land since 1967 is the gravest violation of this right. In UN
Resolution 3089 of December 7, 1973, which asserts equality of
rights, the international body expressed its concern over the
preventing by Israel of the Palestinian people from exercising its
inalienable rights on its own land.14 Furthermore, General Assembly
Resolution 3070 of November 1973 incorporates into its text the
admissibility of the use of armed struggle as one of the means for
the achievement of self-determination. It should be noted that this
method was legally used in the 18th century during the American
Revolution. Consequently, legists recognize the legitimacy of such
a method, which can be considered an application of the right of
legitimate defense as stipulated in Article 51 of the UN
Charter.15
Since Resolution 2533 (XXIV) of December 10, 1969, the General
Assembly ceased to treat the Palestinian problem as one of refugees
needing care and shelter. In Resolution 3236 (XXIX) of November 22,
1974,16 it recognized the "inalienable rights" of the Palestinian
people, including that of return and self-determination and the
right to independence. The Palestinians came to be considered a
basic party in securing a just and lasting peace in the Middle
East, and the UN recommended that the General Secretary meet with
the PLO for the discussion of all matters relating to the
Palestinian people. Additionally, the General Assembly in
Resolution 3376 went as far as to set up a special committee (The
Committee for the Exercise of the Inalienable Rights of the
Palestinian People) stating that, in the eventuality those rights
were not met by July 1976, the Security Council was to debate the
issue in accordance with the UN Charter.17 In 1976, the committee
presented its first report in which it stressed the fact that it
would not be possible for the Palestinian people to exercise its
right to self-determination unless Israel withdrew from the
Palestinian territories it occupied by force and in violation of
the UN Charter, and it allowed those expelled in 1948 or displaced
in 1967 to return to their homes and properties.18
Israeli Settlements: A Violation of Rights
In light of the above, Israeli settlement policy in Palestinian
land is a grave violation of human rights. Article 2/17 of the
Universal Declaration of Human Rights affirms that "no one can be
forcibly stripped of one's property." This, however, has not been
respected in the case of Palestinians, who are still subject to
expulsion, house demolition and expropriation of their property for
the establishment of Jewish settlements there, especially within
the context of Israel's policy of creeping annexation of the
occupied territories.19
The settlement policy also violates the principle of equality
called for in more than one article of the Universal Declaration of
Human Rights. This is especially so since the settlements are built
exclusively for Jews, are separated from the rest of the
inhabitants of the occupied territories, and are closed to
Palestinians--- Muslim and Christian alike. Additionally, the
Israeli authorities have set up legal and judicial systems specific
to the settlements, whereby settlers are subject to one set of laws
and
courts of law and the Palestinian inhabitants to completely
different ones. Such a policy can only be viewed as discriminatory,
not unlike apartheid that has been consistently condemned by the UN
and various international
bodies.20 As a result, Israel?s settlement policy has elicited a
great deal of condemnation, both worldwide and among a large
section of the Israeli public itself.
Furthermore, the building of settlements on occupied Palestinian
lands is tantamount to their de facto annexation to Israel because
it hinders the achievement of self-determination by the Palestinian
people.21 This is due to the fact that settlements change the
demographic character of the occupied territories, especially when
the original inhabitants of the land are expelled to be supplanted
by foreigners. The Palestinians will be turned into a minority -
strangers in their own land, as was the case in 1948 and as is
happening in East Jerusalem today.22
Through its settlement policy (especially after the signing of the
Declaration of Principles in September 1993), Israel aims at giving
Jewish settlers demographic superiority which will enable them to
participate, alongside the Palestinians, in negotiations regarding
the future of the occupied territories. These settlements will,
therefore, constitute an encroachment on the Palestinians? right to
exercise self-determination.23 A report by the International
Convention dealing with the question of Palestine states that the
several declarations made by Israeli leaders leave no doubt
as to the real intent of their settlement policy which is to
"create irreversible facts, making unlikely the achievement of
self-determination by the Palestinians... Israel does not think
anymore in terms of peace for land but rather wants both the land
and the peace...."24
In summary, Israel's settlement policy in occupied Palestinian land
constitutes a transgression of the powers and authorities mandated
to it by public international law pertaining to military
occupation. It is a blatant violation of the rules of conventional
international law and the Fourth Geneva Convention (especially
Article 6/49) pertaining to the protection of civilians in times of
war. It also constitutes an aggression on the right of the
Palestinian people to self-determination, and stands in
contradiction to Israel's commitment to the necessity of respecting
and promoting this right among the people in the occupied
territories.
Endnotes
1.Ja'afar Abdel Salam, The Egyptian-Israeli Peace Agreement: An
Analytical Study According to Rulings of International Law (Cairo:
Dar Nahdat Misr lil Taba' wa Nashr, 1980) pp.219--220
(Arabic).
2."The Right to Self-Determination of the Palestinian People,"
prepared for, and under the guidance of, the Committee on the
Exercise of the Inalienable Rights of the Palestinian People (New
York: United Nations, 1979, Document ST/SG/SER.F/3).
3.Yousef al-Qara'een, The Right of the Arab Palestinian People to
Self-Determination (Amman: Dar al-Jalil lil Nashr, 1981) pp.
18-19.
4.Muhsin Ali Jad, Peace Agreements in Public International Law,
Ph.D. diss. (Cairo: Ein Shams University, 1978), p.688
(Arabic).
5.Salah Eddin Amer, "Settlements in the Occupied Territories in
Contemporary
Public International Law" (Arabic), al-Majallah al-Masriyyah
lil-Qanun
al-Duwali, 35 (1979): 33.
6.Tayseer Nabulsi, Israeli Occupation of Arab Territories, Ph.D
diss. (Cairo: Ein Shams University, 1975) p.254 (Arabic).
7.Ibid., pp.256-257. For a detailed discussion of the controversy
over the nature of the right to self-determination, see Hassan
Kamel al-Muhami, "The Right to National Self-Determination"
(Arabic), al-Majallah al-Masriyyah lil-Qanun al-Duwali, 35 (1979):
29--39.
8.Abdel-Aziz Muhammad Sirhan, An Introduction to the Study of the
Palestinian State (Cairo: Dar an-Nahda al-Arabiyyah, 1989), p.91
(Arabic).
9.Yousef al-Qara'een, op. cit., p.20.
10.Ja?afar Abdel Salam, op. cit., pp.219-220.
11.Ezzedin Ali al-Khairo, Palestinian Resistance and the Right to
Self-Determination (Baghdad: University of Baghdad, 1971), p.23
(Arabic).
12.Abdel-Aziz Muhammad Sirhan, op. cit., p.94.
13.Abdallah al-Ash'al, The PLO's Legal Center (Cairo: Dar an-Nahda
al-Arabiyyah, 1988), p.102 (Arabic). See also, Sharif Bassiouni,
"The Palestinian Rights of Self-Determination and National
Independence, Association of Arab-American University Graduates,
information paper No. 22, December 1978.
14.Abdel-Qader Yassin, Israeli Violations of Palestinian
National
Rights, 1st ed. (Beirut: Manshurat Filastin al-Muhtallah, 1981),
p.61 (Arabic).
15.Abdallah al-Ash'al, op. cit., p.104.
16.The resolution was passed with a majority of 87 votes, 8 against
and 37 abstentions. For a complete text of the resolution, see "The
Right to Self-Determination of the Palestinian People," op. cit.,
pp.33--34.
17.Yousef al-Qara'een, op. cit., p.162.
18."The Right to Self-Determination of the Palestinian People," op.
cit., p.36.
19.Michael Adams, "The Universal Declaration of Human Rights and
the Israeli Occupation of the West Bank and Gaza," Palestinian
Rights: Affirmation and Denial, ed. Ibrahim Abu Lughod (USA: Medina
Press, 1982), pp. 75-76.
20.Atallah Kuttab, "Human Rights in the West Bank," Human
Rights
Crisis in the Arab World, Center of Arab Lawyers for Research
and
Legal Studies, n.d., p.163.
21.Richard Falk, "Some Legal Reflections on Prolonged Israeli
Occupation of Gaza and the West Bank," Journal of Refugees Studies,
2.1 (1989): 44.
22.Salah Eddin Amer, op. cit., pp.34-35.
23.Abdel-Aziz Muhammad Sirhan, op. cit., p.206.
24.See the declaration of Mustafa Niyassi, Senegal's foreign
minister and president of the International Conference on the
Question of Palestine, Geneva, August 29, 1983.