Published: 19 January 2021 Authors: Stefan Talmon and Julian Craven
During the Six-Day-War in June 1967, Israel captured the Gaza Strip, the West Bank – including East Jerusalem – and the Syrian Golan. It has occupied these territories ever since. In 1980, Israel annexed East Jerusalem, and in the following year it annexed the Syrian Golan. Both acquisitions of territory were not recognised by the international community, which considered these annexations null and void and without international legal effect. The United Nations and most States, including Germany, continue to regard Israel as the “occupying Power” in the territories captured in 1967, to which the provisions of the Fourth Geneva Convention continue to apply. Notwithstanding the position of the international community, over the years Israel has moved some 25,000 Israeli settlers to the Syrian Golan, who today live in the territory alongside the remaining Syrian Druze population, which is about equal in size. In the West Bank, more than 611,000 people live in 131 official Israeli settlements and some 110 so-called “out-posts” without any legal basis. Some 210,000 of these Israeli settlers live in annexed East Jerusalem and in the Palestinian areas which Israel incorporated into Greater Jerusalem. In 2005, Israel evacuated all settlements in the Gaza Strip. Today, about 11% of the Israeli population live in settlements in the occupied or annexed territories. The Israeli settlements are of varying forms and sizes: while some are proper cities with several, sometimes tens of thousands of inhabitants and comprehensive infrastructure, others are little more than a few buildings or mobile homes. Some of the settlements are independent towns, while others lie on the edge of or as enclaves within Palestinian towns. Israeli settlements are accompanied by the building of roads and other infrastructure in the occupied territories. Settlement activities in strategic locations, especially around East Jerusalem, foreclose the creation of a viable and contiguous State of Palestine and thus make impossible any negotiated two-State solution of the Israeli-Palestinian conflict.
Germany has long taken the position that Israeli settlements in the occupied territories are “contrary to international law” and an “impediment to peace” in the Middle East, and has called on Israel to cease its settlement activities. Germany continued to maintain its principled position even after the U.S. Government under President Trump in November 2019 changed its position and declared that, in future, it would consider the establishment of Israeli civilian settlements in the West Bank as “not per se inconsistent with international law”. The U.S. policy change led to a further increase in Israeli settlement activity throughout 2020. On 5 and 6 January 2020, the Higher Planning Council of the Israeli Civil Administration of the occupied Palestinian territories approved plans to build over 1,900 housing units in Israeli settlements in the occupied West Bank, including the retroactive approval of already existing constructions, some of which were built on private Palestinian land. Commenting on this decision, a Federal Foreign Office spokesperson issued the following statement on 8 January 2020:
“We have noted with great concern the Israeli authorities’ decisions to further expand settlements in the West Bank. The German Government calls on those involved to refrain from taking any steps that would further hinder a peaceful resolution to the conflict in the Middle East. Like its partners in the European Union, the German Government regards the building of settlements in the Palestinian territories as illegal under international law and as a major obstacle to the possibility of a two-state solution to be negotiated between Israel and the Palestinians.”
This statement was in stark contrast to the position of the United States, which was expressed by U.S. Secretary of State, Mike Pompeo, on the very same day. Speaking at a Jerusalem policy forum, Secretary Pompeo declared that the United States was “recognising that these [Israeli] settlements don’t inherently violate international law.” He also announced that the Trump Administration was “disavowing the deeply flawed” 1978 memorandum drafted by U.S. State Department Legal Adviser Herbert Hansell that considered all Israeli settlements beyond the 1949 armistice lines as illegal. A fortnight later, in a thinly veiled rebuke of the U.S. position, the German Permanent Representative to the United Nations stated in a Security Council debate on the situation in the Middle East, including the Palestinian question, that:
“[…] international law is not à la carte. We are all therefore called upon to implement the resolutions adopted by the Security Council. That is binding international law. Among those there are several resolutions on the Middle East. They are all summarized in the most recent resolution adopted on the matter — resolution 2334 (2016). According to that resolution and previous ones, settlements are illegal under international law. Annexations, which have been announced and are now part of the Israeli election campaign, are a violation of international law. That is also true of changes to the status of Jerusalem. That, too, is a violation of international law.”
The German statements, however, had no effect. On 20 February 2020, the Israeli Government announced plans for the construction of more than 5,000 new housing units in the existing settlements of Givat Hamatos and Har Homa in occupied East Jerusalem. This was followed only five days later by the announcement that Israeli Prime Minister Benjamin Netanyahu had given instructions to publish plans on settlement construction in the so-called “E1 zone”. The Israeli plans for construction in this strategically important 12 km2 area between the Israeli settlement of Ma’ale Adumin in the West Bank and East Jerusalem had been frozen since 2009. The construction of Israeli settlements in this area would effectively sever East Jerusalem from the West Bank. On both occasions, the German Federal Government expressed its deep concern about the Israeli announcement stating that the settlement construction “would further divide [sic] occupied East Jerusalem from the West Bank” and thus undermine or significantly impede chances of a “contiguous and viable Palestinian state as part of a negotiated two-state solution.” The Federal Government made it clear that it considered the settlement activities in the occupied territories “in contravention” or “in violation of international law”. A Federal Foreign Office spokesperson explained:
“We refer in this regard to UN Security Council Resolution 2334, which reaffirms this assessment under international law. The Federal Government takes 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 by the parties through negotiations.”
The Federal Government therefore called upon the Israeli Government to refrain from these settlement activities. This call was repeated during a UN Security Council meeting on the situation in the Middle East on 30 March 2020. The German representative stated:
“We reiterate our position that Israeli settlement activities in the occupied Palestinian territories are illegal under international law […]. We call upon Israel to end the expansion of settlements, the legalization of settlement outposts, the confiscation of Palestinian land and the demolition and seizure of Palestinian-owned structures.”
Germany restated its position that “Israeli settlement activities in the occupied Palestinian territories are illegal under international law” at almost every Security Council meeting on the Middle East throughout 2020. It made it clear that the illegality referred to both the “building” and the “expansion of settlements” and the “legalisation of settlement outposts”. Germany also foresaw that the expansion of settlements, in particular in critical areas around East Jerusalem, and the legalisation of settlement outposts may lead to “a de facto annexation” of occupied Palestinian territories; especially after the Israeli Prime Minister had told German Federal Foreign Minister Heiko Maas during a visit to Israel on 10 June 2020 that “any realistic [Middle East peace] plan must recognize the reality of Israelis settlement on the ground and not foster the illusion of uprooting people from their homes.”
After Israeli Prime Minister Benjamin Netanyahu had announced that he would annex Israeli settlements in the occupied West Bank, the prospect of a de jure annexation became more real in 2020. This triggered the German representative on the Security Council to declare during a meeting on the situation in the Middle East on 30 March 2020:
“We remain extremely concerned about repeated statements, plans and steps on the ground towards the annexation of parts of the occupied Palestinian territories.
We strongly advise the Israeli government against the annexation of or the “extension of Israeli sovereignty” to occupied Palestinian territories as this would constitute a clear violation of international law and have serious, negative repercussions on the viability of the two-state solution and the entire peace process.
We reiterate that Germany will continue to distinguish between the territory of the State of Israel and the territories occupied since 1967 and that we will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, unless agreed to by both parties.”
A similar statement was made during the Security Council meeting on the situation in the Middle East on 23 April 2020, where the German representative added that the annexation of occupied Palestinian territories would not only “constitute a clear violation of international law” but would also have “negative repercussions for […] Israel’s standing within the international community.”
In light of the fact that the period from March to August 2020 saw the highest average destruction rate of Palestinian properties in four years, Germany joined current and incoming EU members of the UN Security Council in a statement reaffirming that the illegality of the settlement activities extended to “forced transfers, evictions, demolitions and confiscations of homes in the Occupied Palestinian Territory”. In addition, during the UN Security Council meeting on the Middle East on 29 September 2020, the German representative stated:
“We are particularly concerned about the ongoing confiscation and demolition of Palestinian-owned structures and properties in Area C of the West Bank. […] In some cases, they contravene existing property rights of Palestinian residents in the area, rendering such practices incompatible with international law.”
Following the decision by the Israeli authorities to grant permits for the construction of more than 4,900 settlement building units in the occupied West Bank on 14 and 15 October 2020, the German representative commented on this “regrettable illegal development” during the Security Council meeting on the Middle East on 26 October 2020 as follows:
“This is a counterproductive move. Israeli settlement activities in the occupied Palestinian territories are and remain illegal under international law. They severely undermine the prospects for ending the occupation and for a viable and contiguous Palestinian state within the framework of a negotiated two-state solution. […]We call on Israel to immediately halt all settlement constructions, including in East Jerusalem and sensitive areas such as Har Homa, Givat Hamatos and E1, as well as confiscations, evictions and demolitions of Palestinian structures in East Jerusalem and the West Bank. We trust that Israeli annexation plans are truly and permanently suspended and call upon Israel to end the expansion of settlements. We emphasize that we will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, unless agreed to between the parties.”
Rather than halting all settlement constructions, as called for by Germany and other States, Israel accelerated its settlement activities during the last few months of the outgoing Trump Administration. On 3 November 2020, Israeli forces engaged in a large-scale demolition of more than 70 Palestinian housing structures in the village of Khirbet Hamsa al-Foqa, in the northern Jordan Valley in the West Bank. On 9 November 2020, a Federal Foreign Office spokesperson stated with regard to these events:
“It is part of a worrying trend of seizures and demolitions of Palestinian structures in the West Bank which has been seen since the beginning of this year. […]International humanitarian law obliges all states to ensure particular protection for civilians during conflicts. We call on Israel to observe these obligations, in particular those contained in the Fourth Geneva Convention relative to the Protection of Civilian Persons, in the occupied territories.”
This demolition of Palestinian housing was followed on 15 November 2020 by a call for tenders to build 1,257 new housing units at the Givat Hamatos settlement area in East Jerusalem. This settlement construction would close the so-called settlement ring south of East Jerusalem and thus separate the city from Bethlehem, making a two-State solution with East Jerusalem as the capital of the Palestinian State impossible. On 16 November 2020, a Federal Foreign Office spokesperson issued the following statement:
“The Federal Government notes with great concern the opening of the bidding process on the building of the Givat Hamatos settlement in East Jerusalem. This step sends the wrong message at the wrong time. Settlement activities in the occupied territories are not compatible with international law and endanger the possibility of a negotiated two-state solution. The tendering procedure for Givat Hamatos should be stopped.”
On 18 November 2020, the German representative on the Security Council repeated these statements in the meeting on the situation in the Middle East. In addition to re-emphasising that Germany would not recognise any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties, Germany also reminded “all states to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967 in accordance with their obligations under international law, in particular resolution 2334.” Germany also joined five other current or incoming European members of the Security Council commenting on these “negative decisions” by Israel and reiterating that “[s]ettlements are illegal under international law” and that the States “will not recognise any changes to the pre-1967 borders, including with regard to Jerusalem, other than those agreed by the parties.”
On the same day, the Minister of State at the Federal Foreign Office, Niels Annen, stated in the Federal Parliament:
“The Israeli settlement construction in the occupied territories violates international law […] The bidding process is not compatible with international law and threatens the possibility of a negotiated two-State solution with the vision of Jerusalem as capital of two States.”
Israeli settlement activities continued unabated throughout December 2020. For example, on 6 December 2020, it was reported that Israeli authorities had approved four new settlement projects in the occupied West Bank and were planning the construction of 9,000 settlement units north of Jerusalem. This time, the Federal Foreign Office did not respond to individual announcements. However, on 21 December 2020, during the last meeting on the Middle East as a non-permanent member of the Security Council, the German permanent representative to the UN took stock more generally, stating:
“I don’t have much to add to what I have said over the last two years. Things have not become any better. Germany has a principled position. As you know, we defend the rules-based international order. Conflicts should be resolved politically and based on international law, which comprise resolutions adopted by the Security Council. From our perspective, resolutions are not a menu à la carte. One cannot pick and choose and forget about the last parameter Resolution 2334, or Resolution 478 with regard to Jerusalem, or Resolution 497 with regard to the Golan Heights. We believe that the implementation of landmark Resolution 2334 remains the only viable way forward.With regard to the implementation of 2334, we continue to be deeply concerned by the negative trends on the ground, which are increasingly threatening the two-state solution: annexation plans, settlement expansion, demolitions, seizures, evictions, plans to retroactively legalize illegal settlement outposts or to take over private Palestinian land by declaring it ‘state land’. […]Over the past four years, since the adoption of 2334, plans for more than 28,000 settlement units have been advanced or approved in Area C and East Jerusalem. Tenders have been announced for some 12,000 units and the construction of more than 6,000 new units began in Area C.”
This bleak stock-taking led the German representative to ask the UN Special Coordinator for the Middle East Peace Process whether, in light of the Israeli settlement activities – including in sensitive areas around East Jerusalem – which effectively prevent a contiguous Palestinian State, he still believed in a two-State solution.
International law is clear: the territories captured by Israel during the Six-Day-War in June 1967 – the Gaza Strip, the West Bank, including East Jerusalem, and the Syrian Golan – are “occupied territories”. In these territories, Israel has the status of an “occupying Power” bound by international humanitarian law, including Article 49(6) of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, which prohibits the occupying power from transferring parts of its own civilian population into the territory it occupies. This was confirmed by the International Court of Justice (ICJ) in the Wall Advisory Opinion, where the Court concluded that “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.” The UN Security Council has demanded that “Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem”. The establishment of settlements creates a fait accompli on the ground which over time leads to a de facto annexation of the occupied territories and a violation of the right of self-determination of the Palestinian people.
The problem with the German statements on Israeli settlement activities is that they were not – nor have they ever been – backed by any action. This became clear, for example, in June 2020, when Federal Foreign Minister Heiko Maas visited Israel in order to personally deliver the message that any annexation of Israeli settlements in the West Bank would constitute a serious breach of international law and would not be recognised by Germany. However, when asked about possible sanctions against Israel, Maas said: “I did not set any price tags”, thereby indicating that he would not be issuing any threats. If “a clear violation of international law” is never met with any sanctions, and if those responsible are never held to account, international law is ultimately undermined. Germany’s statements are thus nothing more than an empty show of bravado. Almost every month, Israel is hauled over the coals – only to continue undeterred with its settlement activities afterwards.