The Legality of Israel’s Settlements: Flaws in the Carter-Era Hansell Memorandum

Photo Credit: GPO

{Originally posted to the JCPA website}

The legal opinion submitted by State Department legal counsel Herbert Hansell on April 21, 1978, to the House Committee on Foreign Affairs,¹ according to which Israel’s settlements policy is inconsistent with international law, contains serious flaws that undermine its professional credibility.

The opinion ignores – deliberately or not – article 55 of the 1907 Hague Regulations respecting the Laws and Customs of War on Land.² These regulations are considered to be the guiding norms of customary international law regarding situations of belligerency, hostilities, and military authority over territory.

Article 55 enables a state that is occupying or otherwise exercising authority over territory following a war, to administer and be usufructuary of public lands, real estate, public buildings, forests, and agricultural estates belonging to the hostile state and situated in the territory. The article requires that these properties be administered and maintained, but not owned, while safeguarding their capital, pending settlement of the dispute, and determination of their final status.

Israel’s settlement policy is based on this premise, enabling use of public lands and properties for settlement while strictly respecting private rights of ownership of local residents of the territories. Residents of settlements are not given ownership rights to the land, which is provisionally leased to them, pending a solution to the territorial dispute. The land is held by a government custodian.

Establishment of any settlement requires extensive prior publicity, land surveys, and examination of deeds to ascertain that the land is indeed public, not privately owned, and that the rights of local residents are not harmed. Appeals committees deal with ownership claims. As such, Israel has justifiably claimed that its settlement policy accords with the norms and requirements of international law and does not violate the rights of the local population. Claims of private ownership of land or property are dealt with within Israel’s judicial system.

In his 1978 opinion, Hansell contended that Israel’s settlement policy violates the prohibition on deporting or transferring parts of its civilian population into the territory, set out in the sixth paragraph of article 49 of the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War.³ This view echoes similar positions of the International Red Cross and the UN.

However, this contention by Hansell ignored the learned expert legal opinions of Professors Stephen Schwebel, Eugene Rostow, Julius Stone, and others who, based on the travaux preparatoires of the Geneva Convention [official record of the negotiations], have contended that the prohibition on transfer, drafted in the post-World War II years, was intended to prevent the mass, forced transfer of populations carried out by the Nazis in Europe, in order to change the demographic structure of the country.

The ICRC 1958 commentary on the sixth paragraph of the Fourth Geneva Convention, states:

It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.⁴

The provision was never intended to be applied to voluntary movement by individuals into the area and their use of public land and property. This movement is subject to strict legal monitoring and supervision by Israel’s Supreme Court and done with the knowledge that such use is pending the outcome of negotiations on the permanent status of the territory.

Hansell’s 1978 opinion is, in fact, outdated and has been overtaken by circumstances.

The opinion treated Israel’s presence in the territories as a classical, routine, and standard situation of belligerent occupation, in which Israel was only entitled to belligerent rights of an interim military administration over foreign territory and its inhabitants.

The opinion appears to have totally disregarded the unique and extensive historic and legal status and characteristics of the territory. Additionally, the opinion ignored the concomitant legal, historic, and indigenous claims of Israel and the Jewish people, encapsulated in the 1917 Balfour Declaration⁵ and transformed into international legal instruments by the 1920 San Remo Declaration⁶ and the 1922 League of Nations Mandate for Palestine.⁷ It also ignores the affirmation in Article 80 of the UN Charter of the rights granted in such instruments.⁸

These unique historic and legal characteristics render the territory to be truly sui generis [unique] and as such, outside the classical, standard criteria seen by Hansell to be relevant to a routine situation of belligerent occupation.

In fact, the 1993-5 Oslo Accords,⁹ between the PLO and Israel, instituted an agreed sui generis legal regime, a form of lex-specialis [law governing a specific subject matter] that overrides any other legal framework, including the 1949 Fourth Geneva Convention. The two parties agreed, pending the completion of negotiations on the permanent status of the territories, that the control and governance will be divided between them such that the Palestinians would have powers and responsibilities in the major municipal and village areas A and B, and Israel in the less-populated area C, in which Israel’s settlements and military installations are located.

Such agreed powers and responsibilities enable each side inter alia to engage in planning, zoning, and construction in the areas under its respective control, without altering the status of the territory, pending the outcome of the permanent status negotiations, in which issues such as borders and settlements are on the agenda.

Beyond all the above, both Israel and the PLO have agreed in the Oslo Accords, that the issue of settlements is a permanent status negotiation issue, together with other central issues such as borders, refugees, Jerusalem, and the like:

It is understood that these negotiations shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.¹⁰

In this context, it is noteworthy that the Oslo Accords were countersigned by leaders of the United States, Russia, the EU, Egypt, and representatives of Norway, who signed as witnesses. The Accords were endorsed by the UN.

Thus, contentions as to the illegality of Israel’s settlement policy, whether by the EU, the UN or other international sources, in effect undermine the negotiation process and prejudge an agreed negotiating issue between the two parties.

Any evaluation of the legalities of Israel’s status and policies in the territories that pretends to be serious and professional, but ignores the above central factors, loses its credibility and professional standing.

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