Palestinian [sic] representatives at the UN have prepared a draft resolution that will seek to declare that Israeli settlements are "illegal and constitute a major obstacle to the achievement of peace." The issue of the legality of Israel's settlements policy has long been a central issue on the agenda of the international community.
It is claimed that settlements are a violation of the Fourth Geneva Convention Relative to the Protection of Civilians (1949). But both the text of that convention, and the post-World War II circumstances under which it was drafted, clearly indicate that it was never intended to refer to situations like Israel's settlements. According to the International Committee of the Red Cross, Article 49 relates to situations where populations are coerced into being transferred. There is nothing to link such circumstances to Israel's settlement policy.
During the negotiation on the 1998 Rome Statute of the International Criminal Court, Arab states initiated an addition to the text in order to render it applicable to Israel's settlement policy. This was indicative of the international community's acknowledgment that the original 1949 Geneva Convention language was simply not relevant to Israel's settlements.
The continued reliance by the international community on the Geneva Convention as the basis for determining the illegality of Israel's settlements fails to take into account the unique nature of the history, legal framework, and negotiating circumstances regarding the West Bank [sic, i.e., Judea and Samaria].
A special regime between Israel and the Palestinians is set out in a series of agreements negotiated between 1993 and 1999 that are still valid — that govern all issues between them, settlements included. In this framework there is no specific provision restricting planning, zoning, and continued construction by either party. The Palestinians cannot now invoke the Geneva Convention regime in order to bypass previous internationally acknowledged agreements.
[Written by: Ambassador Alan Baker is former Legal Adviser to Israel's Foreign Ministry and former Ambassador of Israel to Canada. He participated in the negotiation and drafting of the various agreements comprising the Oslo Accords.]