Published: 21 November 2019 Author: Stefan Talmon DOI: 10.17176/20220127-110759-0
During the Six-Day War in June 1967 Israel captured all the territories which had constituted Palestine under British Mandate, including those known as the West Bank (including East Jerusalem). The international community has considered these territories to be under Israeli belligerent occupation ever since. For example, in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice (ICJ) stated in 2004:
“The territories […] were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories […] have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.”
Since 1977 Israel has conducted a policy and developed practices involving the establishment of settlements in the West Bank, including East Jerusalem, which is home to some 2.9 million Palestinians. There are currently some 413,000 Israeli settlers in Area C of the occupied West Bank and approximately 215,00 Israelis are living in East Jerusalem. This brings the number of Israelis living in the occupied territories to roughly 630,000 individuals in 143 Israeli settlements – 132 in the West Bank and 11 in East Jerusalem – and 113 outposts.
On 18 November 2019, U.S. Secretary of State Mike Pompeo, announced that the United States was reversing its approach to Israeli settlements in the West Bank and that, in future, it would consider the establishment of Israeli civilian settlements in the West Bank as “not per se inconsistent with international law”. This major change of U.S. policy drew a swift reaction from the German Government. Within less than 18 hours, the Federal Foreign Office issued the following statement:
“The Federal Government reaffirms its position with regard to Israel’s settlement policy in the occupied territories. In the Federal Government’s view, the construction of settlements is illegal under international law, represents an obstacle to the possibility of a peace process and makes a negotiated two-state solution more difficult. We wish to refer in this regard to Resolution 2334 of the UN Security Council, which reaffirms this assessment under international law. […].”
This was followed on 20 November 2019 by a joint statement together with Belgium, France, Poland, and the United Kingdom before a UN Security Council meeting on the Middle East in which the five EU member States on the Council reiterated that their position on Israeli settlement policy in the occupied Palestinian territory, including East-Jerusalem, was clear and remained unchanged: “all settlement activity is illegal under international law and it erodes the viability of the two-state solution and the prospects for a lasting peace, as reaffirmed by UN Security Council Resolution 2334.”
During the Security Council meeting, the German representative directly contradicted the U.S. assertion that “international law does not compel a particular outcome [with regard to the status of the West Bank], nor create any legal obstacle to a negotiated settlement,” stating that:
“We believe that international law provides the basis and framework for all political negotiations and for finding an agreement which is acceptable for both parties. One of the main obstacles to a political settlement of the Israeli-Palestinian conflict remains the ongoing Israeli occupation and the continued settlement activities in the territories occupied since 1967. We reiterate our position that Israeli settlement activities in the occupied Palestinian territories are illegal under international law and undermine the prospects for a negotiated two-state-solution. […] Resolution 2334 needs to be fully implemented […] with regard to settlement activities […].”
When the United States blocked a press statement on the Israeli settlements to be read out by the Council president after the meeting, the German representative took the lead and instead read out a joint statement of the 10 elected Council members reaffirming their “constant and unequivocal position, in line with international law and relevant Security Council resolutions, that Israeli settlement activities are illegal, erode the viability of the two-State solution and undermine the prospects for a just, lasting and comprehensive peace as reaffirmed by UN Security Council resolution 2334.”
Germany has taken a principled stance on the Israeli settlement policy at least since the 1980s. The Federal Government has repeatedly made it clear that the Israeli settlements in the occupied territories violate international law and has called on Israel to cease its settlement activities. For example, on 24 March 2017, Chancellor Angela Merkel reaffirmed Germany’s support for a two-State solution to the Israeli-Palestinian conflict and urged the Israeli Government to stop building new settlements in the occupied territories. Speaking at a joint news conference alongside Palestinian President Mahmoud Abbas in Berlin, Chancellor Merkel said: “I have always said that the settlements in the occupied territories violate international law and they are an obstacle to the resolution of the conflict.”
The United States under President Donald Trump have followed a staunch pro-Israel policy. The reversal of the U.S. position on the Israeli settlements in the West Bank follows the recognition of Jerusalem as the capital of Israel and the recognition of Israel’s sovereignty over the occupied Syrian Golan. Since President Trump took office on 20 January 2017, Israel’s settlement activities in the occupied Palestinian territories have intensified which has given Germany ample opportunity to state its legal position on these activities. For example, when on 22 January 2017 the Jerusalem District Planning and Building Committee granted construction approvals for a total of 566 additional housing units in East Jerusalem, the Federal Foreign Office spokesperson issued a statement which reads in part:
“We are following these developments with great concern and have made our position clear on repeated occasions. Settlement construction in occupied territories, and therefore also in East Jerusalem, is a violation of international law and jeopardises lasting peace between Israelis and Palestinians, which can only be achieved through a negotiated two-state solution.”
Some two weeks later, on 6 February 2017, the Knesset, Israel’s Parliament, passed the “Law for the Regulation of Settlement in Judea and Samaria [the West Bank]” which retroactively legalized almost 4,000 settler homes which had been built “in good faith or at the State’s instruction” on privately-owned Palestinian land. Although the law provided for monetary compensation or the provision of alternative plots of land, it effected the expropriation of Palestinian land owners. The German Government expressed its frustration at the law stating that the confidence it had “in the Israeli Government’s commitment to the two-state solution has been profoundly shaken.” For Germany, the new law represented “a violation of international law” which “jeopardises a lasting peace between Israelis and Palestinians.” Commenting on an earlier draft of the law, the Federal Government spokesperson stated:
“Such a law is contrary to international law. If the draft were adopted in this form, confidence in the Israeli Government’s commitment to the two-State solution would be shaken.”
On 30 March 2017, the Israeli security cabinet decided to build a new settlement in the West Bank for the first time since 1991. A Federal Foreign Office spokesperson commented upon the decision as follows:
“The continued construction of settlements violates international law and makes a solution to the conflict increasingly difficult – especially since it has now been decided, for the first time in many years, to found a new settlement. […]
The German Government […] will not recognise any change to the pre-1967 borders that has not been agreed between the parties.”
In 2017, the Israeli Government significantly expanded the settlements in the West Bank, announcing or approving plans to build three times more new settler homes than in 2016. On 19 October 2017, a Federal Foreign Office spokesperson commented on a decision to expand existing settlements in the West Bank:
“Plans to construct almost 3000 additional housing units in the West Bank were adopted this week.
The Federal Government would like to take this opportunity to reiterate the fact that it will only recognise amendments to the lines of 4 June 1967, including those with regard to Jerusalem, that are agreed to by the parties through negotiations.
While settlement construction in violation of international law is not the only obstacle to a two-state solution, each new housing unit cements a one-state reality in which the Palestinians continue to be denied the full enjoyment of their political rights.
The feasibility of a contiguous and viable Palestinian state is undermined, among other things, by the fact that East Jerusalem is becoming increasingly cut off from the West Bank. Against this backdrop, we are following reports on the continued construction of the Givat Hamatos settlement with particular concern. We call on the Israeli side to refrain from these actions.”
Throughout 2018 and 2019, the Israeli Government approved the construction of thousands of new housing units in settlements in the occupied West Bank, including East Jerusalem – mostly on land owned by Palestinians. On several occasions, the Federal Government expressly reiterated its position that the Israeli settlements in the Palestinian territories are “illegal under international law”. On 4 June 2019, a Federal Foreign Office spokesperson issued the following statement on the issue of tenders for hundreds of new housing units in two Israeli settlements in East Jerusalem:
“The latest issue of tenders for new housing units in settlements in occupied East Jerusalem is clearly irreconcilable with the goal of a negotiated two-state solution.
The German Government reaffirms its opposition to all unilateral steps which jeopardise a two-state solution. This includes settlement activity in contravention of international law and the associated demolition of Palestinian structures in Area C.
In line with UN Security Council Resolution 2334, the German Government will continue to refuse to recognise any unilateral changes to the lines of 4 June 1967. This also applies to unilateral steps relating to Jerusalem which have not been agreed to by Israel and the Palestinians through negotiations.”
That the Israeli settlement activity in the West Bank, including East Jerusalem, may be just a precursor to the annexation of the territory became clear when three days ahead of the 9 April 2019 poll Israeli Prime Minister Benjamin Netanyahu indicated that he might be annexing Israeli settlements in the West Bank, if he won another term in office. The elections proved inconclusive and a rerun was scheduled for September. On 10 September 2019, Prime Minister Netanyahu announced that he would annex about one-third of the West Bank if he was re-elected and hinted that this move may have been approved by the U.S. Government. Any such annexation, according to the German Government, would constitute “a clear violation of international law.” On 12 September 2019, Germany, together with France, Italy, Spain and the United Kingdom issued a joint statement on the possible annexation of areas in the West Bank, particularly the Jordan valley and the northern shore of the Dead Sea, warning that this “would, if implemented, constitute a serious breach of international law.” During the Security Council meeting on 20 November 2019, the German representative reiterated this position, stating:
“We remain extremely concerned about repeated statements alluding to or even announcing an intended annexation of areas of the occupied West Bank.
Should such statements turn into actual government policy or law, it would constitute a clear violation of international law. We strongly advise any Israeli government against taking any steps in this direction. That could have serious negative repercussions on the viability of the two-state solution and the entire peace process. We reiterate that Germany will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties.”
In an answer to a parliamentary question the Federal Government set out the reasons for the illegality of the Israeli settlement activities under international law:
“In the territories occupied by Israel, the international law rules of the Convention of 18 October 1907 Respecting the Laws and Customs of War on Land (Hague Convention IV) and the Geneva Convention of 12 August 1949 Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV) shall apply. Pursuant to Article 49(6) of the Fourth Geneva Convention, the Occupying Power is prohibited from transferring parts of its own civilian population into the territory it occupies. The permissibility of the Israeli settlement policy under international law is to be judged on the basis of these criteria.”
This reasoning is in line with that of the ICJ which held in its 2004 Advisory Opinion that the establishment of settlements in the occupied Palestinian territories, including East Jerusalem, is “contrary to the terms of Article 49, paragraph 6” and that, consequently, the Israeli settlements “have been established in breach of international law.”
In addition, the Federal Government referred to UN Security Council Resolution 2334 (2016) which reaffirmed that “the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.”
Resolution 2334 (2016) was the latest in a series of UN Security Council resolutions which held that the policy and practices of Israel in establishing settlements in the Palestinian territories occupied since 1967 had no legal validity and called upon Israel, as the occupying power, to abide scrupulously by the Fourth Geneva Convention, to rescind its previous measures and to desist from taking any action which would result in materially affecting the demographic composition of the territories occupied since 1967, including Jerusalem, and, in particular, not to transfer parts of its own civilian population into the occupied territories.
Germany’s swift and assertive reaction to the United States’ reversal of approach to Israeli settlements in the West Bank is to be welcomed. While the United States cannot unilaterally alter international law, its State practice and opino juris are important factors in the creation and development of customary international law. It is therefore crucial that other States which do not agree with the United States clearly demonstrate their opposition to the new U.S. legal position. For Germany, all settlement activity in the West Bank is illegal or, in the words of the U.S. Government, “per se inconsistent with international law”. Israel as the occupying power is therefore under an obligation to cease any construction, expansion or purported legalization of settlements in the West Bank, including East Jerusalem, and rescind the existing settlements.