Study Guide: Settlements are illegal

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STUDY GUIDE TO THE ICJ ADVISORY OPINION ON THE ISRAELI WALL BEING BUILT IN PALESTINE

General Assembly request for the Advisory Opinion - articles 1 - 12, 18 - 23 (text & notes)

ICJ jurisdiction - articles 13 - 17, 24 - 31, 65 (text & notes)
ICJ summary of its Advisory Opinion - article 163 (text & notes)
ICJ member judges voting on the Opinion- article 163 (text & notes)

International humanitarian law, applicability of - articles 86 - 101 (text & notes)

International human rights law, applicability of - articles 102 - 113 (text & notes)

Israeli opposition to ICJ ruling on the wall - articles 33 - 64 (text & notes)
Israeli settlements, violations of international law - article 99, 120 (text & notes)

Wall, legal consequences of - articles 144 - 162 (text & notes)
Wall, use of the term - article 67 (text & notes)
Wall, violation of international law - articles 115 - 142 (text & notes)

Israeli Settlements, Violations of International Law (article 99, 120)

TEXT OF THE ADVISORY OPINION

NOTES ON THIS SECTION

99. The Security Council, for its part, had already on 14 June 1967 taken the view in resolution 237 (1967) that "all the obligations of the Geneva Convention relative to the Treatment of Prisoners of War . . . should be complied with by the parties involved in the conflict".

Subsequently, on 15 September 1969, the Security Council, in resolution 271 (1969), called upon "Israel scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation".

Ten years later, the Security Council examined "the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967". In resolution 446 (1979) of 22 March 1979, the Security Council considered that those settlements had "no legal validity" and affirmed "once more that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem". It called "once more upon Israel, as the occupying Power, to abide scrupulously" by that Convention.

On 20 December 1990, the Security Council, in resolution 681 (1990), urged "the Government of Israel to accept the de jure applicability of the Fourth Geneva Convention . . . to all the territories occupied by Israel since 1967 and to abide scrupulously by the provisions of the Convention". It further called upon "the high contracting parties to the said Fourth Geneva Convention to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with article 1 thereof".

Lastly, in resolutions 799 (1992) of 18 December 1992 and 904 (1994) of 18 March 1994, the Security Council reaffirmed its position concerning the applicability of the Fourth Geneva Convention in the occupied territories.

120. As regards these settlements, the Court notes that Article 49, paragraph 6, of the Fourth Geneva Convention provides: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.

In this respect, the information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, just cited.

The Security Council has thus taken the view that such policy and practices "have no legal validity". It has also called upon "Israel, as the occupying Power, to abide scrupulously" by the Fourth Geneva Convention and:

"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 Arab territories occupied since 1967, including Jerusalem and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories" (resolution 446 (1979) of 22 March 1979).

The Council reaffirmed its position in resolutions 452 (1979) of 20 July 1979 and 465 (1980) of 1 March 1980. Indeed, in the latter case it described "Israel's policy and practices of settling parts of its population and new immigrants in [the occupied] territories" as a "flagrant violation" of the Fourth Geneva Convention.

The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.

Articles 99 & 120 - The Court rulesIsraeli settlements are in violation of international law.

99. THE UN Security Council declared in resolutions 237 (1967), 271 (1969), 446 (1979), 681 (1990), and 799 (1992) the applicability of the Geneva Conventions (1949) to the Israeli occupation of the Palestinian territories. These resolutions also include the Security Council conclusions that the Israeli settlements in those occupied territories are illegal as per article 49, para. 6 of those same Geneva Conventions (1949).

REFERS TO: Geneva Conventions IV (1949); SC res 237 (1967), 271 (1969), 446 (1979), 681 (1990), 799 (1992), 904 (1994).

120. In agreement with Security Council resolution 452 (1979) and 465 (1980), "the Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law".

REFERS TO: Geneva Conventions IV (1949) (art. 49 (para.6)); SC res 446 (1979) & 452 (1979) & 465 (1980).

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