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

(Institute for Contemporary Affairs-Jerusalem Center for Public Affairs) Amb. Alan Baker - The legal opinion submitted by State Department legal counsel Herbert Hansell in 1978, according to which Israel's settlements policy is inconsistent with international law, contains serious flaws. The opinion ignores the norms of international law. Israel's settlement policy is based on Article 55 of the 1907 Hague Regulations respecting the Laws and Customs of War on Land, enabling use of public lands and properties for settlement while strictly respecting private rights of ownership of local residents of the territories. Hansell contended that Israel's settlement policy violates the prohibition on deporting or transferring parts of its civilian population into the territory, according to Article 49 of the 1949 Fourth Geneva Convention. However, this provision was never intended to be applied to voluntary movement by individuals into the area. This movement is subject to strict legal monitoring and supervision by Israel's Supreme Court and is done with the knowledge that use of public land and property is pending the outcome of negotiations on the permanent status of the territory. Hansell's opinion treated Israel's presence in the territories as a standard situation of belligerent occupation, totally disregarding the legal, historic, and indigenous claims of Israel and the Jewish people, encapsulated in the 1917 Balfour Declaration and transformed into international legal instruments by the 1920 San Remo Declaration, the 1922 League of Nations Mandate for Palestine, and reaffirmed by Article 80 of the UN Charter. These historic and legal characteristics render the territory to be truly unique (sui generis) and, as such, outside the standard criteria used by Hansell. Moreover, the 1993-5 Oslo Accords instituted an agreed legal regime that overrides any other legal framework, including the 1949 Fourth Geneva Convention. The writer, former legal adviser and deputy director-general of Israel's Ministry of Foreign Affairs, participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon.
2019-11-21 00:00:00
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