|UN Security Council
|Date||22 March 1979|
|Vote||For: 12 — Abs. 3 — Against: 0|
|Subject||Territories occupied by Israel|
|Security Council composition|
United Nations Security Council resolution 446, adopted on 22 March 1979, concerned the issue of Israeli settlements in the "Arab territories occupied by Israel since 1967, including Jerusalem". This refers to the Palestinian territories of the West Bank, East Jerusalem and the Gaza Strip as well as the Syrian Golan Heights.
In the Resolution, the Security Council determined: "that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East"
The Resolution was adopted by 12 votes to none, with 3 abstentions from Norway, the United Kingdom and the United States of America.
Text of resolution
UNSC Resolution 446 and the Fourth Geneva Convention
Resolution 446 affirms "once more that the Fourth 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". Tomis Kapitan reports that:
- "In the eyes of the world community, its [Israel's] presence there [in the Occupied Territories] is subject to international law dealing with belligerent occupancy, specifically, the Fourth Geneva Convention of 1949... Allowing for measures of military necessity, the Convention forbids alterations of the legal system, forcible transfer or deportation of the resident population, and resettlement by the occupying power of its own civilian population within the occupied territory. Israel has violated these provisions, but contested their application on the grounds that the West Bank (in particular) is "disputed" or "unallocated" rather than the occupied territory of a nation that is party to the Geneva Convention."
Israel's argument against the applicability of the Convention was formulated by Meir Shamgar and is based on an interpretation of Article 2, which reads:
- "In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
- The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."
The government's argument (first made by Moshe Dayan in a speech to the UN in 1977) is that neither the West Bank nor Gaza were the territory of a "High Contracting Power" at the time they were occupied by Israel and that therefore the Convention does not apply.
In 1993 the UN Security Council "acting under Chapter VII of the Charter on the United Nations" approved a report by the Secretary General which concluded beyond doubt that the law applicable in armed conflict as embodied in the Geneva Conventions of 12 August 1949 and the Hague Convention (IV) of 18 October 1907 had become part of international customary law. Breaches of the principles contained in the conventions were subsequently placed within the competence of international criminal tribunals, including International Criminal Tribunal for the former Yugoslavia and International Criminal Court.
The Israeli MFA says that the Supreme Court of Israel has ruled that the Fourth Geneva Convention and certain parts of Additional Protocol I reflect customary international law that is applicable in the occupied territories. Gershom Gorenberg has written that the Israeli government knew at the outset that it was violating the Geneva Convention by creating civilian settlements in the territories under IDF administration. He explained that as the legal counsel of the Foreign Ministry, Theodor Meron was the Israeli government's expert on international law. On 16 September 1967 Meron wrote a top secret memo to Mr. Adi Yafeh, Political Secretary of the Prime Minister regarding "Settlement in the Administered Territories" which said "My conclusion is that civilian settlement in the Administered territories contravenes the explicit provisions of the Fourth Geneva Convention." Moshe Dayan authored a secret memo in 1968 proposing massive settlement in the territories which said “Settling Israelis in administered territory, as is known, contravenes international conventions, but there is nothing essentially new about that.”
Israel's positions have not been accepted by the International Committee of the Red Cross, nor has it been endorsed by the other High Contracting Parties to the Fourth Geneva Convention. Article 1 of the Convention states that "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances" (emphasis added).
On 15 July 1999 a conference of the High Contracting Parties to the Fourth Geneva Convention met at the United Nations headquarters in Geneva. It ruled that the Convention did apply in the Occupied Palestinian Territory, including Jerusalem. In 2001, at a one-day conference of High Contracting Parties, 114 countries adopted a three-page declaration re-affirming that the terms of the Convention applied to the Palestinian territories.
In August 2004 an Israeli justice ministry team set up by Attorney General Menachem Mazuz to study the ramifications of a ruling by the World Court recommended that the Israeli government should consider applying the Fourth Geneva Convention to the West Bank and Gaza.
Israel argues that it is not in violation of it. Firstly, Israel argues that the article was created in the context of World War II only.
Secondly, it is only intended to cover forcible transfers and to protect the local population from displacement. Article 49(1)of the Convention specifically covers "[i]ndividual or mass forcible transfers" whereas the Israelis who live in the settlements have moved there voluntarily, and argue that settlements are not intended to, nor have ever resulted in, the displacement of Palestinians from the area. However, Article 49(6) also prohibits Israel to 'transfer parts of its own civilian population into the territory it occupies', which would cover the Israeli settlements.
Thirdly, Israel claims that some of the settlers have returned to areas where Jewish settlements existed before 1948 (such as Gush Etzion) and therefore it is an entirely different issue.
Fourthly, Israel claims that the Geneva Convention only applies in the absence of an operative peace agreement and between two powers accepting the Convention. Since the Oslo Accords leave the issue of settlements to be negotiated later, proponents of this view argue that the Palestinians accepted the temporary presence of Israeli settlements pending further negotiation, and that there is no basis for declaring them illegal.
Unilateral withdrawal from the Gaza Strip
Israel left the Gaza Strip in September 2005, and removed all of the settlements and military forces that were in it. Parts of the West Bank, East Jerusalem and the Golan Heights remain under control of Israel as of today. Israel remains in control of Gaza's airspace and territorial waters. It has not controlled the Rafah crossing into Egypt since the unilateral disengagement plan of 2005 took effect.
- International law and the Arab-Israeli conflict
- Israeli–Palestinian conflict
- Israeli-occupied territories
- Israeli settlement
- Israeli West Bank barrier
- List of United Nations Security Council Resolutions 401 to 500 (1976–1982)
- Palestinian territories
- Jordanian occupation of the West Bank
- Status of territories captured by Israel
- United Nations Security Council Resolution 446. 22 March 1979
- Kapitan, Tomis (1997). Philosophical Perspectives on the Israeli-Palestinian Conflict. M. E. Sharpe. p. 28. ISBN 1-56324-878-6.
- Kretzmer, David (2002). The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories. SUNY Press. p. 33. ISBN 0-7914-5337-5.
- Kretzmer, 2002, p. 34.
- Hajjar, Lisa (2005). Courting Conflict: The Israeli Military Court System in the West Bank and Gaza. University of California Press. p. 54. ISBN 0-520-24194-0.
- See Security Council Resolution 827, 25 May 1993, the commentary with regard to customary law in the UN article on The Statute For the International Criminal Tribunal for the Former Yugoslavia, and "War crimes law comes of age", By Theodor Meron, Oxford University Press, 1998, ISBN 0-19-826856-4, page 212 
- See Operation Gaza: factual and legal aspects
- See page 99 of Gorenberg, Gershom, "The accidental empire: Israel and the birth of the settlements, 1967–1977", Macmillan, 2006, ISBN 0-8050-7564-X
- See Israeli State Archives 153.8/7920/7A, Document 60, dated 15 October 1968, cited on page 173 of Gorenberg's "The accidental empire"
- Kassim, A F (1988). The Palestine Yearbook of International Law 1987-1988. Martinus Nijhoff Publishers. p. 112. ISBN 90-411-0341-4.
- Takkenberg, Alex (1998). The Status of Palestinian Refugees in International Law. Oxford University Press. p. 214. ISBN 0-19-826590-5.
- United Nations (2002). Yearbook of the United Nations, 2000. United Nations Publications. pp. 421, 437. ISBN 92-1-100857-3.
- Israel castigated for 'rights abuses'.
- UN rules against Israeli barrier.
- Consider Geneva pact, Israel told.
- Rostow, Eugene. Bricks and stones: settling for leverage; Palestinian autonomy, The New Republic, 23 April 1990.
- Israeli Settlements and International Law, Israel Ministry of Foreign Affairs website, 20 May 2001. URL accessed 11 April 2006.
- Geneva Convention relative to the Protection of Civilian Persons in Time of War, United Nations High Commission for Human Rights website
- Helmreich, Jeffrey. Diplomatic and Legal Aspects of the Settlement Issue, Jerusalem Center for Public Affairs, Jerusalem Issue Brief, Volume 2, Number 16, 19 January 2003.
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