United Nations Security Council Resolution 446

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United Nations Security Council Resolution 446 concerned the issue of Israeli settlements in the "Arab territories occupied by Israel since 1967, including Jerusalem".^[1] This refers to the Palestinian territories of the West Bank including East Jerusalem, Gaza Strip and the 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 on March 22, 1979 at the 2134th meeting by 12 votes to none, with 3 abstentions (Norway, United Kingdom of Great Britain and Northern Ireland, United States of America).

Resolution 446 was not adopted under Chapter VII of the UN Charter and therefore is generally considered to have no binding force under international law, ^[2] ^[3]

1 UNSC Resolution 446 and the Fourth Geneva Convention
2 Unilateral withdrawal from the Gaza Strip
3 References
4 See also
5 External links

[edit] 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.^[4]

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.^[5]

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.^[6] ^[7]

Israel's position has 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).^[8] ^[9]

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.^[10] 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.^[11]

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^[12] recommended that the Israeli government should consider applying the Fourth Geneva Convention to the West Bank and Gaza.^[13]

Even if the convention does apply, Israel argues that it's 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. ^[14] ^[15] ^[16] ^[17] ^[18]

Thirdly, Israel claims that some of the settlers have returned to areas where Jewish settlements existed before 1948 and therefore it's 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. ^[14] ^[17] ^[19] ^[20] ^[21] ^[18]

[edit] 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 July 2006.

[edit] References

^ UNSC 446.
^ "Additionally it may be noted that the Security Council cannot adopt binding decisions under Chapter VI of the Charter" (De Hoogh, Andre. Obligations Erga Omnes and International Crimes, Martinus Nijhoff Publishers, Jan 1, 1996, p. 371).
^ "Council recommendations under Chapter VI are generally accepted as not being legally binding". (Magliveras, Konstantinos D. Exclusion from Participation in International Organisations, Martinus Nijhoff Publishers, Jan 1, 1999, p. 113).
^ Kapitan, Tomis (1997). Philosophical Perspectives on the Israeli-Palestinian Conflict. M. E. Sharpe, 28. ISBN 1-56324-878-6.
^ Kretzmer, David (2002). The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories. SUNY Press, 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, 54. ISBN 0-520-24194-0.
^ Kassim, A F (1988). The Palestine Yearbook of International Law 1987-1988. Martinus Nijhoff Publishers, 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, 421, 437. ISBN 92-1-100857-3.
^ Israel castigated for 'rights abuses'.
^ UN rules against Israeli barrier.
^ Consider Geneva pact, Israel told.
^ ^a ^b
^
^ Rostow, Eugene. Bricks and stones: settling for leverage; Palestinian autonomy, The New Republic, April 23, 1990.
^ ^a ^b Israeli Settlements and International Law, Israel Ministry of Foreign Affairs website, 20 May 2001. URL accessed April 11, 2006.
^ ^a ^b
^ Helmreich, Jeffrey. Diplomatic and Legal Aspects of the Settlement Issue, Jerusalem Center for Public Affairs, Jerusalem Issue Brief, Volume 2, Number 16, January 19, 2003.
^
^ What is the background of Jewish settlements in Palestinian Arab areas?, Palestine Facts website, 2006. URL accessed April 12, 2006.