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.
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