Settlements

Israeli settlements in occupied territories violate some of the highest norms under international law. This includes rules that are, in the words of the International Court of Justice, intransgressible principles that are fundamental to the respect of humanity. These rules are not abstract, but very recognizable. Specifically settlements violate the following peremptory norms:

  1. They obstruct the Palestinian right to self-determination and violate the prohibition on the acquisition of territory by use of force. Israel’s recent annexation plans are only a confirmation of this violation of fundamental norms . The practice of settlement expansion on occupied land has been going on for decades.
  2. They violate fundamental norms of international humanitarian law, which forbids the transfer of a country’s civil population to occupied territories under the 4th Geneva Convention.
  3. They constitute apartheid, that is, a crime against humanity

 

Breach of Jus Cogens by Israeli Settlements Legal sources
1) Obstruction of right to self-determination and acquisition of territory by use of force ICJ (Wall); ICJ Judges (e.g. Elaraby); UNSC Res. 2334; ILC Articles on State Responsibility
2) Violation of fundamental norms of international humanitarian law Transfer of population to occupied territories (4th Geneva Convention) ICJ (Wall – ‘intransgressible’); ICJ Judges (e.g. Nietonavia, Hannikainen, Bediaoui, Weeramantry, Koroma); SC Res. 271, 15 September 1969; SC Res. 446, 22 March 1979; SC Res. 465, 01 March 1980; SC Res. 469, 20 May 1980; SC Res. 471, 05 June 1980; SC Res 476, 30 June 1980; SC Res. 478, 20 August 1980; SC Res. 484, 19 December 1980; SC Res. 592, 08 December 1986; SC Res. 605, 22 December 1987; SC Res. 607, 08 January 1988; SC Res. 636 of 06 July 1989, SC Res. 641, 30 August 1989; SC Res. 672, 12 October 1990; SC Res. 681, 20 December 1990; SC Res. 694, 24 May 1991; SC Res. 726, 06 January 1992; SC Res. 799, 18 December 1992; SC Res. 904, 18 March 1994; SC Res. 1322, 07 October 2000; SC Res. 1435, 24 September 2002; SC 2334, 2016
3) Violation of prohibition on Apartheid ILC Articles on State Responsibility; Dugard & Reynolds (EJIL); Falk & Tilley (censored ESCWA report)

As a result of these breaches, all states and the United Nations have continuously emphasized that settlements are illegal. Because of their illegality and seriousness, international law mandates other states to not recognize or assist these violations. In this case that means that states cannot recognize or assist settlements and other grave breaches of those highest norms by Israel. This was confirmed by the International Court of Justice in its Wall Opinion and by the United Nations Security Council as early as 1980 when it “called upon all States not to provide Israel with any assistance to be used specifically in connection with settlements in the occupied territories”.

Unfortunately, even if they recognize that settlements are illegal and a grave threat to international peace and stability, many countries have not complied with their obligations under international law not to recognize or assist Israel’s settlements in Occupied Territories. In the European Union, this has happened through the consistent evasion of accountability. EU Member States say that the European Commission is responsible, whereas the European Commission says that the European Council is responsible. In reality, the obligation to stop trade with settlements is shared between both the Member States and the European Commission. This is because Member States are sovereign states that are also competent for importation, whereas the European Commission has the exclusive competence for trade.

Importantly, stopping trade with settlements is not a sanction. Sanctions are positive obligations that target a specific country and are withdrawn when a violation is stopped. They are optional or obligatory in response to a UN Security Council resolution. Stopping trade with settlements is however a negative obligation that requires that such trade does not take place with any settlements in any occupation. They are irrespective of country and time. The obligations of non-recognition and non-assistance are also automatic and self-executing, they do not need a determination of the UN Security Council or European Council exactly because some states might be able to use a veto.