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| Jerusalem Diary: Legal or illegal | Jerusalem Diary: Legal or illegal |
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| A Palestinian at work building homes on an Israeli settlement in the West Bank By Tim Franks BBC News, Jerusalem | A Palestinian at work building homes on an Israeli settlement in the West Bank By Tim Franks BBC News, Jerusalem |
| OCEANS OF INK | OCEANS OF INK |
| The nice people who run the Middle East section of the BBC News website once told me that the ideal length for a diary, such as this, is 500 words. | The nice people who run the Middle East section of the BBC News website once told me that the ideal length for a diary, such as this, is 500 words. |
| And so, it was with some mild concern that I went to what was billed as a colloquium with the former President of the Israeli Supreme Court, Aharon Barak, on "Israel and International Law". Oceans of ink have flowed from this particular source. | And so, it was with some mild concern that I went to what was billed as a colloquium with the former President of the Israeli Supreme Court, Aharon Barak, on "Israel and International Law". Oceans of ink have flowed from this particular source. |
| Those settlements which have a security rationale are legal, those settlements that have no security rationale are illegal Aharon BarakFormer President Israeli Supreme Court | Those settlements which have a security rationale are legal, those settlements that have no security rationale are illegal Aharon BarakFormer President Israeli Supreme Court |
| Internationally, Aharon Barak is regarded as the towering figure of the Israeli legal establishment. He became a judge in the Supreme Court in 1978. He was its Chief Justice from 1995 to 2006. | Internationally, Aharon Barak is regarded as the towering figure of the Israeli legal establishment. He became a judge in the Supreme Court in 1978. He was its Chief Justice from 1995 to 2006. |
| He wears his status in the style to which Israelis are accustomed: a heap of unparted white hair; his face and shirt wide open. | He wears his status in the style to which Israelis are accustomed: a heap of unparted white hair; his face and shirt wide open. |
| I was keen to hear what he had to say about the legal status of settlements. | I was keen to hear what he had to say about the legal status of settlements. |
| In an effort to explain in a concise and neutral way why settlements are contentious, BBC journalists often use the formula: "settlement of occupied territory is illegal under international law." This is set out at the end of Article 49 of the Fourth Geneva Convention. | In an effort to explain in a concise and neutral way why settlements are contentious, BBC journalists often use the formula: "settlement of occupied territory is illegal under international law." This is set out at the end of Article 49 of the Fourth Geneva Convention. |
| Israel argues that the West Bank cannot be seen as "occupied territory", because it had previously been "illegally" annexed by Jordan. There is no other country, as far as I know, that does not view the West Bank as occupied territory. | Israel argues that the West Bank cannot be seen as "occupied territory", because it had previously been "illegally" annexed by Jordan. There is no other country, as far as I know, that does not view the West Bank as occupied territory. |
| But let's be honest. That instant-mix formula may be a useful journalistic shorthand in the brutal concision demanded by our business, but it begs a long list of questions. | But let's be honest. That instant-mix formula may be a useful journalistic shorthand in the brutal concision demanded by our business, but it begs a long list of questions. |
| I was not aware of a distinction, for me the settlements have always been illegal on the basis of the Geneva Convention Hans CorrelFormer UN Under-Secretary General for Legal Affairs | I was not aware of a distinction, for me the settlements have always been illegal on the basis of the Geneva Convention Hans CorrelFormer UN Under-Secretary General for Legal Affairs |
| Among them: if it is illegal, where are the court cases? And what does Mr Barak have to say about settlements, given that Israel prides itself on the rule of law and membership of the community of nations? | Among them: if it is illegal, where are the court cases? And what does Mr Barak have to say about settlements, given that Israel prides itself on the rule of law and membership of the community of nations? |
| Fascinatingly - although that adverb might suggest I need a new hobby - Aharon Barak said that the issue was not whether the Fourth Geneva Convention should apply. The executive, long ago, had saved the justices the trouble. | Fascinatingly - although that adverb might suggest I need a new hobby - Aharon Barak said that the issue was not whether the Fourth Geneva Convention should apply. The executive, long ago, had saved the justices the trouble. |
| After Israel captured the territories, the then-attorney general had come to the Israeli Supreme Court and said to the judges, in the words of Aharon Barak: "Don't adjudicate. Leave it open. We, the state... undertake to follow the Fourth Geneva Convention. So judge us according to the Fourth Geneva Convention." | After Israel captured the territories, the then-attorney general had come to the Israeli Supreme Court and said to the judges, in the words of Aharon Barak: "Don't adjudicate. Leave it open. We, the state... undertake to follow the Fourth Geneva Convention. So judge us according to the Fourth Geneva Convention." |
| In which case, I asked Mr Barak if the Court had spent 40 years dodging the issue? Yes, there have been ad hoc rulings on specific bits of land. But no overall ruling on the status of the settlements. | In which case, I asked Mr Barak if the Court had spent 40 years dodging the issue? Yes, there have been ad hoc rulings on specific bits of land. But no overall ruling on the status of the settlements. |
| KEY BACKGROUND Dilemma of Palestinian builders Israeli outposters vow to stay In the shadow of a settlement Israeli settlement in close-up Obstacles to peace: Borders and settlements Detailed Peace Now map of outposts and settlements [2.5MB] Most computers will open this document automatically, but you may need Adobe Reader Download the reader here | KEY BACKGROUND Dilemma of Palestinian builders Israeli outposters vow to stay In the shadow of a settlement Israeli settlement in close-up Obstacles to peace: Borders and settlements Detailed Peace Now map of outposts and settlements [2.5MB] Most computers will open this document automatically, but you may need Adobe Reader Download the reader here |
| Compare, for example, the British government's clarity. It says "settlements in East Jerusalem and the West Bank are illegal." | Compare, for example, the British government's clarity. It says "settlements in East Jerusalem and the West Bank are illegal." |
| Aharon Barak disagreed with the idea that the Court had been dilatory. | Aharon Barak disagreed with the idea that the Court had been dilatory. |
| "The Israeli Supreme Court is like any other Supreme Court. It's like a broken watch. If you hit it, it works. It doesn't work from its own initiative. Whenever settlements were brought to court, we judged them," he said. | "The Israeli Supreme Court is like any other Supreme Court. It's like a broken watch. If you hit it, it works. It doesn't work from its own initiative. Whenever settlements were brought to court, we judged them," he said. |
| He also said there was a clear legal standard. "Those settlements which have a security rationale are legal. Those settlements that have no security rationale are illegal. Point." | He also said there was a clear legal standard. "Those settlements which have a security rationale are legal. Those settlements that have no security rationale are illegal. Point." |
| Listening to all this, in the audience, was Yisrael Harel, the former chairman of the Settlers' Council. He is a man who disputes the idea that the West Bank is occupied territory and who strongly believes in Israel's ideological claim to the land. | Listening to all this, in the audience, was Yisrael Harel, the former chairman of the Settlers' Council. He is a man who disputes the idea that the West Bank is occupied territory and who strongly believes in Israel's ideological claim to the land. |
| But Mr Harel told me that this legal reading should bolster the legal status of every settlement. "Historically, all the times we've been in conflict, each settlement has a security value." He conceded that the army also needs to protect the settlers. "But life, where there are settlements, is more calm." | But Mr Harel told me that this legal reading should bolster the legal status of every settlement. "Historically, all the times we've been in conflict, each settlement has a security value." He conceded that the army also needs to protect the settlers. "But life, where there are settlements, is more calm." |
| There is the international position - the Security Council Resolutions, the Geneva Convention, the rulings of the International Court of Justice, on the one hand. We have all these just positions which have no effect on the ground Ghassan KhatibSpokesman for the Palestinian Authority | There is the international position - the Security Council Resolutions, the Geneva Convention, the rulings of the International Court of Justice, on the one hand. We have all these just positions which have no effect on the ground Ghassan KhatibSpokesman for the Palestinian Authority |
| But the argument of "security rationale" prompted a raised eyebrow, along the platform, from Hans Corell. | But the argument of "security rationale" prompted a raised eyebrow, along the platform, from Hans Corell. |
| Mr Corell, a Swede, was the United Nations' Under-Secretary General for Legal Affairs from 1994 until 2004. "I was not aware of this distinction. For me, the settlements have always been illegal on the basis of the Geneva Convention," he said. | Mr Corell, a Swede, was the United Nations' Under-Secretary General for Legal Affairs from 1994 until 2004. "I was not aware of this distinction. For me, the settlements have always been illegal on the basis of the Geneva Convention," he said. |
| And it is that which frustrates Ghassan Khatib, the spokesman for the Palestinian Authority. "There is the international position - the Security Council Resolutions, the Geneva Convention, the rulings of the International Court of Justice, on the one hand. We have all these just positions which have no effect on the ground." | And it is that which frustrates Ghassan Khatib, the spokesman for the Palestinian Authority. "There is the international position - the Security Council Resolutions, the Geneva Convention, the rulings of the International Court of Justice, on the one hand. We have all these just positions which have no effect on the ground." |
| The cases that the Israeli Supreme Court now hears on settlements tend to focus on whether they have been built illegally on, for example, privately owned Palestinian land. | The cases that the Israeli Supreme Court now hears on settlements tend to focus on whether they have been built illegally on, for example, privately owned Palestinian land. |
| Aharon Barak did leave open the possibility that new cases could be heard on the basis of the "military" criteria. Then he checked himself. | Aharon Barak did leave open the possibility that new cases could be heard on the basis of the "military" criteria. Then he checked himself. |
| "Don't interpret me as suggesting people go to the Supreme Court on the legality of settlements. So much time has passed. My feeling is that the question of the legality of settlements is a question that should be decided in a peace agreement," he said. | "Don't interpret me as suggesting people go to the Supreme Court on the legality of settlements. So much time has passed. My feeling is that the question of the legality of settlements is a question that should be decided in a peace agreement," he said. |
| Please send us your views on Tim Franks' latest Jerusalem diary. | |
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