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Two-State Solution:
Israeli-Palestinian Peace

DR KAMAL HOSSAIN attended the UN Asian and Pacific Meeting in Support of Israeli-Palestinian Peace held in Bangkok, Thailand on July 10 11. There he delivered the following speech in a plenary session on the impact of settlement building on the human rights and humanitarian situation in the West Bank, including East Jerusalem.

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Imperatives Of Peace And Stability
This meeting brings us together at a time when the need is felt for urgent global initiatives to be taken to address the challenge of peace and stability in the Middle East. It is imperative that these initiatives succeed and meaningful steps are taken to deal with the obstacles to Israeli Palestinian peace.

The obstacles have been created by past patterns of global relations. These power relations are changing. To live in the past is a luxury indulged in by those who believe that the unacceptable status quo that exists in Israeli-Palestinian relations is unchangeable. This encourages Israel to take advantage of the situation and explains its intransigence in defying international law and UN Resolutions. It has led it to adopt a strategy based on false premises and a cynical disregard of international law.

In order to initiate change in Israel's actions and assertions, the international community, the International Court of Justice and global opinion have recognised the legitimacy of the two-nation solution and emphatically confirmed that Israel's position on the issue of settlements is in violation of international law and presents an obstacle to achieving that solution.

We need to remember that strategies built on relentless repetition of what is not true have failed to prevail in the face of determined and uncompromising affirmation of what is true in order to mobilise the power to compel change. Seeming acquiescence to what is untrue must yield to objective demonstrations of facts and affirmations of universally recognised principles of international law.

It is important to draw attention to cases where the seemingly impossible was achieved. Thus unchangeable realities such as apartheid in South Africa changed dramatically and hope is now enkindled by developments in nearby Myanmar. I remember how the UN Public Hearings on South Africa held in Geneva in the late eighties had presented powerful testimony against the untenability of Apartheid and recorded a consensus in favour of change. Its recommendation that Nelson Mandela be released and a negotiated end to Apartheid be pursued, within a short time had yielded results which those of us who conducted the hearings could not have believed to be possible. The Asian initiative undertaken by Kim DaeJung just before he took over the Presidency of South Korea together with President Corazon Aquino in association with other South Asian and South East Asian leaders to mobilise opinion focusing on Aung San Suu Kyi's predicament, had involved representations to the UN Secretary General and the ASEAN leadership and would seem today to have contributed to the process of initiating a process of change in Myanmar.

This meeting is being held at a time when global realities are changing, thus giving members of the international community an opportunity to generate the energy and resolve needed to seek solutions for what are thought to be insoluble. We need, therefore, to put the record straight and present objective facts regarding the obstacles to Israeli-Palestinian peace. We need to forge an Asia Pacific consensus on the urgency of ending the deadlock in moving towards Israeli-Palestinian peace. We can endorse the recommendations in the Report of the UN Special Committee to Investigate Israeli Practices affecting the Human Rights of the Palestinian People and other Arabs of the Occupied Territories (“UN Special Committee”) (A/66/364 of 16 September 2011). I would like to draw attention to relevant extracts from that Report. Before doing so there are certain significant facts on which the record needs to be set straight. For this I will draw upon the document entitled Fact Sheet: Forty Five Years of Occupation published by the Institute for Middle East Understanding (IMEU, 2012).

Facts regarding settlements
The following facts are noted in the Fact Sheet regarding Settlements:

1. Almost immediately after the 1967 War ended, Israel began to colonise the occupied territories in violation of international law, with Jewish-only “settlements.” The settlement enterprise was established with the purpose of creating irreversible “facts on the ground,” thereby solidifying Israeli control over the occupied territories and ensuring that under any future diplomatic agreement Israel would retain possession of vast and strategically important tracts of Palestinian territory.

2. The settlement enterprise was also intended to ensure that a genuinely sovereign Palestinian state would never emerge in the occupied territories. In the words of Henry Siegman, Executive Director of the American Jewish Congress from 1978 to 1994 and former Senior Fellow at the Council on Foreign Relations:

'A vivid recollection from the time I headed the American Jewish Congress is a helicopter trip over the West Bank on which I was taken by Ariel Sharon [the former Israeli prime minister and defense minister and godfather of Israel's settlement enterprise]. With large, worn maps in hand, he pointed out to me strategic locations of present and future settlements on east-west and north-south axes that, Sharon assured me, would rule out a future Palestinian state.'

3. In 2011, the respected Israeli human rights organization B'Tselemnoted: “The extreme change that Israel has made in the map of the West Bank prevents any real possibility to establish an independent, viable Palestinian state in the framework of exercising the right to self-determination.”

4. From 1993 to 2000, as Israel and the Palestine Liberation Organization (PLO) negotiated what came to be known as the Oslo Accords, the settler population expanded by more than 70%, to more than 370,000.

5. Settlements and related infrastructure (including Israeli-only roads, army bases, the separation wall, closed military zones, and checkpoints) cover approximately 42% of the West Bank.

6.As of 2012, there are more than half a million Israeli settlers living in the occupied West Bank and East Jerusalem. Of those, upwards of 300,000 live in the expanded boundaries of East Jerusalem. In addition, approximately 20,000 settlers live in settlements in the occupied

7.As of 2012 there are some 130 official settlements and more than 110 “outposts” (nascent settlements built without official government approval) in the occupied West Bank and East Jerusalem.

8.In a 2012 report entitled “Torpedoing The Two State Solution,” Peace Now, the leading experts on Israel's settlement enterprise, documented a 20% rise in constructions in the West Bank in 2011 over the previous year. They also published a study (October 2006) on the basis of government maps and figures that nearly 40% of the land held by Israeli settlements in the West Bank was privately owned by Palestinians.

Impact Of Settlements
The following views regarding the impact of Settlements on the prospects for peace and a two state solution are to be noted:

According to Human Rights Watch: “Palestinians face systematic discrimination merely because of their race, ethnicity, and national origin, depriving them of electricity, water, schools, and access to roads, while nearby Jewish settlers enjoy all of these state-provided benefits… While Israeli settlements flourish, Palestinians under Israeli control live in a time warp -- not just separate, not just unequal, but sometimes even pushed off their lands and out of their homes.”

In 2004, DovWeisglass, a top advisor to then-Prime Minister Ariel Sharon, said that the withdrawal of settlers from Gaza (the “disengagement” plan) was intended to “freeze” the peace process, by alleviating international pressure on Israel to take further action, stating,

'And when you freeze that process, you prevent the establishment of a Palestinian state, and you prevent a discussion on the refugees, the borders and Jerusalem. Effectively, this whole package called the Palestinian state, with all that it entails, has been removed indefinitely from our agenda. And all this with authority and permission. All with a presidential blessing and the ratification of both houses of Congress.'

'The disengagement is actually formaldehyde. It supplies the amount of formaldehyde that is necessary so there will not be a political process with the Palestinians.'

Legal position
Israel's Guide to the Middle East Peace Process takes the position that the charges regarding illegality of Israeli settlements in the Occupied Palestinian territory (OPT) have no foundation in international law. It is noteworthy, however, that all UN Special Rapporteurs on the situation of human rights in the Occupied territories consider Israel's settlement policy to be a serious violation of international law and a stumbling block in the Middle East Peace Process. UN Special Rapporteur John Dugard in his report to the UN Human Rights Council dated 29 January 2007, stated categorically that Jewish settlements on the West Bank are illegal. They violate article 49, paragraph 6 of the Fourth Geneva Convention and their illegality has been confirmed by the International Court of Justice in its advisory opinion on the Wall. Despite the illegality of settlements and the unanimous condemnation of settlements by the international community, the Government of Israel persists in allowing settlements to grow.” (A/HRC/4/17, 29 January, 2007) The UN High Commissioner on Human Rights in her press conference in Jerusalem on her first visit to the occupied Palestinian Territory (11 February, 2011) categorically stated that: “The settlements of Israeli citizens in occupied Palestinian Territory is clearly prohibited under international law. As a result all State actions in support of the establishment and maintenance of the settlements including incentives to create them and the establishment of infrastructure to support them are illegal under international law. They should be stopped altogether.”

The preamble of UN Security Council Resolution 242, which was passed shortly after the 1967 War, in November 1967, stresses “the inadmissibility of the acquisition of territory by war.” The text of Resolution 242, which is the cornerstone of the two-state solution and international efforts to make peace in the region for more than two decades, calls for the “Withdrawal of Israel armed forces from territories occupied in the recent conflict.”

Article 49 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War states that, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

A formerly classified document dated September 1967 shows that the legal counsel to Israel's Foreign Ministry, Theodor Meron, had advised the government of Prime Minister Levi Eshkol that “civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.” Disregarding this opinion, in September 1967, Eshkol's Labor government authorised the establishment of the first civilian settlement, KfarEtzion, on the outskirts of Hebron in the West Bank.

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In 2004, the International Court of Justice in its Advisory Opinion held that the Wall that Israel was building in the West Bank was illegal. All 15 judges also found Israeli settlements in the occupied territories, including East Jerusalem, to be in contravention of international law.

International human rights organizations including the International Committee of the Red Cross, Amnesty International, and Human Rights Watch have all condemned Israel's settlement enterprise as illegal.

Numerous United Nations resolutions have also affirmed that Israel's colonisation of Palestinian land in the occupied territories is a violation of international law. In 1979, the Security Council passed Resolution 446, which states: “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 official policy of the United States, in line with the rest of the international community, has always been that Israeli settlements are illegal. In 1979, the State Department issued a legal opinion declaring that settlements were “inconsistent with international law”.

Report of the UN Special Committee to investigate Israeli practices affecting the human rights of the Palestinian people and other Arabs of the occupied territories (A/66/364, 16September, 2011).

This Report comprehensively reviews settlement activities. It cites UN GA resolution 65/104 which expressed grave concern “about the continuation by Israel, the occupying Power, of settlement activities in the Occupied Palestinian territory, including East Jerusalem in, violation of international humanitarian law, relevant United Nations resolutions, agreements reached between the parties and obligations under the Quartet Road Map.” Grave concern was also expressed about the rising incidence of violence, harassment, provocation and incitement by armed Israeli settlers in the Occupied Palestinian territory including East Jerusalem against Palestinian civilians, including children and their properties. The General Assembly reaffirmed that settlements in the Occupied Palestinian territory and in the occupied Syrian Golan are illegal.

In the same resolution, the General Assembly called upon Israel to strictly comply with its obligations under international law including international humanitarian law, with respect to the alteration of the character, status and demographic composition of the Occupied Palestinian territory including East Jerusalem. It reiterated its demand for the immediate and complete cessation of all Israeli settlements in that territory and also for the prevention of all acts of violence and harassment by Israeli settlers.

The most relevant international humanitarian law standards concerning Israel's responsibilities in the occupied territory are set out in the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and in the Hague Regulations, which are recognised as part of customary international law. Article 49 of the Fourth Geneva Convention explicitly prohibits an occupying Power from transferring its civilian population into occupied territory. Israel's continued settlement activities flagrantly violate this provision, as confirmed by the International Court of Justice in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. A number of United Nations resolutions, including General Assembly resolution 65/104, have confirmed that conclusion. In addition to the construction of the settlements themselves, other settlement-related activities, such as the confiscation of land, destruction of houses and orchards, the construction of roads for Israeli settlers only and the exploitation of natural resources within the occupied territory and altering the character and status of the occupied territory are also prohibited by international law.

In addition to those provisions of international humanitarian law, Israel has obligations under the international human rights treaties it has ratified, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. In its advisory opinion on the Wall, the International Court of Justice affirmed that the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child were applicable in respect of acts carried out by Israel in the occupied territory. Similarly, a number of United Nations human rights treaty bodies also reaffirm that as a party to international human rights instruments, Israel continues to bear responsibility for implementing its human rights obligations in the occupied territory.

Israeli settlement policies and practices, namely construction of settlements, land confiscation, zoning and planning regime, forced evictions and demolitions, and the preferential treatment of settlers perpetrating violent acts against Palestinians, are discriminatory and violate Israel's international human rights obligations. In its consideration of Israel in July 2010, the UN Human Rights Committee concluded that Israel was in violation of article 2 and 26 of the International Covenant on Civil and Political Rights, non-discrimination and equality before the law and equal protection of the law, in its treatment of the Palestinian population of the occupied territory, including the Bedouins. The Committee concluded that Israel's policy and practice of demolition, zoning and planning (particularly in Area C and East Jerusalem), access to water and sanitation for Palestinians, and forced eviction of the Bedouin population are discriminatory.

Despite the repeated calls from the international community and the illegality of settlements, the State of Israel is continuing to expand settlements in the Occupied Palestinian Territory, including East Jerusalem, in violation of its international legal obligations.

During the reporting period, impunity for settlers perpetrating violent attacks continued. The Israel Defense Forces not only failed to protect Palestinians, but instances documented by OHCHR of their direct involvement in violence perpetrated against Palestinians are specifically cited in the Report.

Impact of settlement building on human rights and humanitarian situation
Based on the facts reviewed and their assessment the following observations can be made with regard to settlements:

Settlements are illegal under international humanitarian law (article 49 (6) of the Fourth Geneva Convention; and international law - the International Court of Justice deemed them illegal in para. 120 of its ruling).

Settlements are built on confiscated Palestinian-owned land which its owners can no longer use for agriculture etc; settlements are also located above the West Bank aquifers from which the supply of water is controlled; certain villages have become enclaves surrounded by settlements.

Settlements are turning the Palestinian-controlled parts of the West Bank into unconnected Bantustans whose map has been described as looking like a Swiss cheese or a leopard skin; you cannot have a State without territorial contiguity (not to mention the lack of territorial connection between the West Bank and the Gaza Strip which were considered as a single territorial unit under the Oslo Accords).

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Waste (liquid and solid, including toxic) from settlements and factories located in settlements pollutes the West Bank environment and poses a threat to the health of its inhabitants.

Construction of very large settlement blocks near and around Jerusalem appear to reflect Israel's intention to annex those areas in case of a peace agreement; a similar intention is reflected with respect to all the West Bank territory between the Wall and Israel.

Settlements are built on the best land, mostly on hilltops, and are connected by a road network which also connects them to Israel - and the road network is for the exclusive use of Israelis and settlers and is prohibited for Palestinians. Settlements and the settler roads take up a huge portion of the West Bank.

Gthe strategic importance of the Jordan Valley, the settlements there also serve to exercise control (including military) of the West Bank.

Settler violence is among the biggest problems currently linked to settlements: physical violence against Palestinians, including schoolchildren, and their property, the burning of houses, cars, fields and crops as well as the burning and desecration of mosques, with the Israeli army standing by and watching and the Government not acting to stop it, while officially condemning the so-called “price-tag”attacks by the settlers against Palestinians and their properties.

Role of Asian and Pacific governmental and non-governmental actors in support of recommendations of the international community

The UN Special Committee Report concludes with strong recommendations urging Israel to comply with its obligations under international law and UN Resolutions. These recommendations reflect the consensus of the international community. It is critically important that Asian and Pacific governmental and non-governmental actors, including ASEAN and SAARC, undertake a pro-active role intensively to mobilise support within the region and globally for the effective compliance by Israel with the obligation urgently to implement the measures recommended as follows:

The Government of Israel should bring its policies and practices into compliance with its international legal obligations and its commitments in the Road Map, as well as the repeated calls made by the international community immediately to cease the transfer of its civilian population into occupied territory and to completely freeze all settlement activities in the West Bank, including in East Jerusalem, and to dismantle all “outposts”.

The Government of Israel should end its discriminatory policies and practices against Palestinians, in particular those that violate Palestinians' right to adequate housing. Non-discriminatory planning policies that take account of natural growth of Palestinians should be developed and implemented as a matter of urgency. The current situations in Area C and East Jerusalem merit priority action by the Government in this regard.

The Government of Israel should take all necessary measures to prevent attacks by Israeli settlers against Palestinian civilians and their property in the West Bank, including East Jerusalem. In this respect, there is an urgent need for a comprehensive training programme for Israel Defense Forces and other Israeli security forces deployed in the West Bank on applicable international legal standards. The Government of Israel may consider requesting technical cooperation from the Office of the United Nations High Commissioner for Human Rights to design and deliver such a training programme.

The Government of Israel should ensure that all serious allegations concerning criminal acts committed by settlers or the Israel Defense Forces are subject to independent, impartial, effective, thorough and prompt investigations, in accordance with international standards.

The Government of Israel should ensure that, in line with its international legal obligations, all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In particular, it should ensure that all judicial guarantees and procedural safeguards, including fair trial and due process, are guaranteed for all.

The General Assembly and the international community should more actively seek the implementation of their decisions, resolutions and recommendations, as well as those of the Security Council, the International Court of Justice and the United Nations human rights mechanisms, including treaty bodies and special procedure mandate holders, in relation to the situation of human rights and international humanitarian law in the Occupied Palestinian Territory.

Dr Kamal Hossain is an eminent jurist and one of the main architects of the Constitution of Bangladesh.