by Alan Baker
Dear Secretary of State Kerry,
After listening to you
declare repeatedly over the past weeks that "Israel's settlements are
illegitimate," I respectfully wish to state, unequivocally, that you are
mistaken and ill-advised, both in law and in fact.
Pursuant to the Oslo
Accords, and specifically the Israel-Palestinian Interim Agreement
(1995), the "issue of settlements" is one of subjects to be negotiated
in the permanent-status negotiations. President Bill Clinton on behalf
of the U.S., is signatory as witness to that agreement, together with
the leaders of the EU, Russia, Egypt, Jordan and Norway.
Your statements serve
to not only to prejudge this negotiating issue, but also to undermine
the integrity of that agreement, as well as the very negotiations that
you so enthusiastically advocate.
Your determination that
Israel's settlements are illegitimate cannot be legally substantiated.
The oft-quoted prohibition on transferring population into occupied
territory (Article 49 of the Fourth Geneva Convention) was, according to
the International Committee of the Red Cross' own official commentary
of that convention, drafted to prevent a repeat of the forced, mass
transfer of populations carried out by the Nazis in World War II. It was
never intended to apply to Israel's settlement activity. Attempts by
the international community to attribute this article to Israel emanate
from clear partisan motives, with which you and the U.S. are now
identifying.
The formal
applicability of that convention to the disputed territories cannot be
claimed, since they were not occupied from a prior, legitimate sovereign
power.
The territories cannot
be defined as "Palestinian territories" or, as you yourself frequently
state, as "Palestine." No such entity exists, and the whole purpose of
the permanent-status negotiation is to determine, by agreement, the
status of the territory to which Israel has a legitimate claim, backed
by international legal and historic rights. How can you presume to
undermine this negotiation?
There is no requirement
in any of the signed agreements between Israel and the Palestinians
that Israel cease or freeze settlement activity. The opposite is in fact
the case. The 1995 interim agreement enables each party to plan, zone
and build in the areas under its respective control.
Israel's settlement
policy neither prejudices the outcome of the negotiations nor does it
involve displacement of local Palestinian residents from their private
property. Israel is indeed duly committed to negotiating the issue of
settlements, and there is no room for any predetermination by you
intended to prejudice the outcome of that negotiation.
By your repeating this
ill-advised determination that Israel's settlements are illegitimate,
and by your threatening Israel with a "third Palestinian intifada" and
international isolation and delegitimization, you are in fact buying
into, and even fueling, the Palestinian propaganda narrative and
exerting unfair pressure on Israel. This is equally the case with your
insistence on a false and unrealistic time limit to the negotiations.
As such you are taking sides, prejudicing your own personal credibility, as well as that of the U.S.
With a view to
restoring your own and the U.S.'s credibility, and to come with clean
hands to the negotiations, you are respectfully requested to publicly
and formally retract your determination as to the illegitimate nature of
Israel's settlements and to cease your pressure on Israel.
Alan Baker is a former legal counsel to the
Foreign Ministry, a former Israeli ambassador to Canada, director of the
Institute for Contemporary Affairs at the Jerusalem Center for Public
Affairs, and director of the International Action Division at the Legal
Forum for Israel.
Source: http://www.israelhayom.com/site/newsletter_opinion.php?id=6285
Copyright - Original materials copyright (c) by the authors.
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