777

UNITED STATES: LETTER OF THE STATE DEPARTMENT LEGAL ADVISER

CONCERNING THE LEGALITY OF ISRAELI
SETTLEMENTS IN THE OCCUPIED TERRITORIES*
APPENDIX

Letter From State Department Legal Adviser Concerning Legal

ity of Israeli Settlements in the Occupied Territories

The Legal Adviser

DEPARTMENT OF STATE
WASHINGTON

April 21, 1978

Dear Chairmen Praser and Hamilton:

Secretary Vance has asked me to reply to your re

quest for a statement of legal considerations underly
ing the United States view that the establishment of
the Israeli civilian settlements in the territories
occupied by Israel is inconsistent with international
law. Accordingly, I am providing the following in re
sponse to that request :

The Territories Involved

The Sinai Peninsula, Gaza, the West Bank and the

Golan Heights were ruled by the Ottoman Empire before
World War I. Following World War I, Sinai was part
of Egypt; the Gaza Strip and the West Bank (as well as
the area east of the Jordan) were part of the British
Mandate for Palestine; and the Golan Heights were part
of the French Mandate for -Syria. Syria and Jordan
later became independent. The West Bank and Gaza con
tinued under British Mandate until May, 1948.

The Honorable
Donald M. Fraser, Chairman
Subcommittee on International
Organizations,
Committee on International Relations
House of Representatives.

The Honorable
Lee H. Hamilton, Chairman
Subcommittee on Europe and the
Middle East,
Committee on International Relations,
House of Representatives.

*[Reproduced from U.S. Congress, House of Representatives (95th

Congress, 1st Session), Committee on International Relations, Commit
tee Print, Israeli Settlements in the Occupied Territories, Hearings
before the Subcommittees on International Organizations and on Europe
and the Middle East (Washington: GPO, 1978), appendix, pp. 167-72.
[The U.S. Department of State memorandum on Israel's right to
develop new oil fields in Sinai and the Gulf of Suez, dated October 1,
1976, appears at 16 I.L.M. 733 (1977). The response of the Ministry
of Foreign Affairs of Israel, dated August 1, 1977, at 17
appears
I.L.M. 432 (1978).]

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 ] -00

basis
the
On
of
available
information,
the
civ
pant's
(1)
powers
to
are
continue
orderly
govern facto
Legal
Controls
Stone,
Interna
J.
rule.
of
oming under
control of a belligerent is
2See
Oppenheim,
L.
International
ended.
Law
432
war438
ed.,
(7th
H. claim Customs
Lauterpacht
ed.,
1952);
E.
Peilchenfeld, onservices broadly
Laws
War
Articles
Land,
and
42-56,
of
1Bevans In
terms,
positive
the
and
stated,
Occu from do not appear
use, to
requi be these limits on Israel's
ity
interim
to
military
undertake
the
administration
over duration asandthus
ply
its inhabitants,
destroy
their
property,
resources
his
to
own sition,
seize
within
militaryoris
objects, be
libera
is
territory
the
they
have
legal
not
although
in
effect,
fact
may
Occupant's is
ted.
the
treat
He
to appublic
his
own
as
or
entitled
not
country subjects,..
wide
.and
pro
of.
arange
over
unchallengeable
untilas his
territory
its
inhabitants
he
perty,
him
rights
confer
against
only
can
as acts will with intended
duration
limited
be
to
established
of
pro
or
theoccupant
thereby
does
not
sovereign
become
its
territory.
International
law
confers
upon
occupying
the
state
author
of
its
protect
security
the
of
the
military
pursuit
the
by
needs
power,
occupying
to for
the
the
of
inhabitants
to
ests
and
questions
ter
of
occupying
forces,
to
providereserve
protect
to
orderly
rights
government,
inter
and
needs.
The(1942);
4-5,
11-12,
15-17,
87
McDougal
Feliciano,
M.
F.
& 1907
Heoccupation
But
Regulations
the
to
Hague
Convention
annexed
on
International
Law
Economic
Belligerent
of
Occupation
(1961);
Minimum
751-7
734-46,
Public
World
Law
Order
and
may
beyond
ment
,(2)
exercise
to
over
control
and
utilize
the
far
of
so
for
to
latter
thus,
the
resources
country
necessary
the
purpose
and
that
meet
his
own
military
local of the
limits
the
for
required
of
what
army
of
of
thehead, population.
his
de
limited
period
within
and
of
self,
own
quantum ilian
the
territories
in
settlements
by
Israel
occupied
belligerent
they
that
authority
in
as
occupant
do
not
seem vide
andconsistent some
may
serve
incidental
purposes,
security
they
do
not
territories
the
orderly
of
government
though
and, to
be
military
during
the
meet
required
needs
appear
its
inhabitants;
territory
that
and
authority
not
is
un later
ritorial
to
change
and
the
sovereignty
stage
awhen the quality,
implied,
needs
limited.
The
governing
rules
are
designed
to
permit the
643;
Army,
of
Department
The
Law
of
Land
Warfare, under
limits

(1959).
697
Conflict,
tional

(1956)
(FM-27-10).
6
Chapter

occupation.

During the June, 1967 forces occupied

Israeli
pied the West
In
1947/
the Bank.
Nations
United
recommended
aplan
of These lines of demarca As
Israeli
1.
noted
forces
above,
armed
entered lished
control
and
to
began
these
authority
exercise
over
Jewish
(including
to
tory
territory
state
other
aand war, private or municipal began
Israel
civilian
establishing
settlements
in lands for the
estab purpose.
its
entry
of
forces,
such
armed
Israel
reason
tion
tice were incorporated,
agreements theconcluded
October,and
Jordan
occu minor1973
changes,
hostilities
Egypt
ceased,
occupied
Gaza, 194.9.
war The Heights.
regained
Egypt
some
territory
in
Sinai
during
and
in thedisengagement
armistice
subsequentthrough
Heights
Golan
the
aagreement
on armis Israeli miliof
settlements
Some
agreedisengagement civilians
seventy-five
have
been have
recently
moved).
established
in Israel
established
territories
above
the
(excluding ernment,
and
by
also
non-governmental
settlement
move
affiliated
in
political
with
most
parties.
ments
cases
expropriated areas
previously
not
had
part
been
Israel's
of
sovereign territories;
international
and
law,
under
thus
Israel
be
ated
never to it under that
allocated Gaza, the therejected
aprovisional
of
government
Israel partition
plan.
proclaimedand
commenced
hostilities.
theWhen
theSinai some
establishment
Jewish
in
of
state
allo
a
areas
Mandate, territories
territorial
in The
was
terri Arab
not
West
League
in
1967the
except
Bank
for
and otherthe
its
first
settlements
minor in
the
territories
occupied
in
Golan
changes
A have
become
they
civilian
settlements
as 1968.
Civilian
settlements
supported
are
by
the
gov
public
lands
built
the
Most
outside
reportedly
on
are
number but boundaries
municipality,
built
of
are
on
some
any
1967,
June,
the
in
of
conflict.
Those
armed
course
an
ediately
Bank and ments expressly
Gaza)
Arab agreements,
state. denied
significance
termination
with but
lines,
Onthey
but
de
until Israeli
boundaries
facto
were
newMay 14, of
the of as para-military
to the
the West
the
tary
Bank
into
which
small
groups
on
camps occupied of "nahals" territory
its
otherwise
under
administration.
nor
By
an
to British
to control Gaza, the West Bank,
the Golan
territories. Heights
came
abelligerent
of
occupant
these
effectuated, partition Peninsula, affected, and
political "nahals".
prior
Sinai

Considerations
Legal
viable.
economically
The
with
Syria.
1967.
June, Settlements

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All use subject to JSTOR Terms and Conditions
 Hansell
J.
Herbert
truly
Very
yours,

pied
territory
and
reserving
permanent
territorial
changes,
It has been the all personsprinciples
who While
"in of
Israel any
under
the
control
mayof
of
which
party
a are
they
not
nation in
the find themselves
occupied terri
whatsoever"
not the their parties,
Israel
between
its
and
ends
neighbors
concerned
war solethat or binds the
signatories
ereign
rights
respect
in
of
those
territories.
Protect
purpose; respect
civilian
ies
and
the paramount
territory
of
other to
settlements
contracting
parties,
and pur
their territor
to
for
during in
provide
the
government
orderly
occupation,
territories is inconsistent
6, of the Fourth Geneva maythe those
However,
ies.
principles
applicable
whe
appear
ther
Jordan
Egypt
not
legitimate
possessed
and
or
sov
respective
legitimate
sovereigns
of
these
territor not
poses
are apply
protecting
the
civilian
population
of
an
occufor thein armedthe
conflict
among
(Article
them
and
2)
with
respect
to
reasonsmanner indicated undertake, the
establishment of the
belligerent occupation, Article essential is 49,
the
ing
reversionary
interest
an
of
ousted
sovereign arewith
paragraph
Convention,
Geneva
Israel,
Egypt
Jordan
which
to
and
leaves
occupied
until
or canincluding
The
the by
facto
de
agreement
ac
express
or
ways,
territory.
with
particular
territory
Israel in
end
war
many
particular
it suggested
"in West
because
Gaza
and
Bank
Jordan
and
Egypt
were
not
all circumstances"tories, actions
1), in "all its
meet cases"those of
above military needs and
if
The
until
the
of
settlement
conflict.
Fourth
any, to
Convention,
ceptance
of
thebythe
quo
status
belligerents.
including
(Article necessary

with law.

international
(Article
4).
als

Conclusion

6
Under
of
Article
Fourth
the
3.
Geneva
Convention,
49
the
of
Article
Fourth
2.
Geneva
Convention
rela

The
view
that
has
been
advanced
transfer
is
pro
a if
limited
redundant
be
to
of
cases
displacement.
Another 1^Paragraph
Article
of
prohibits
49,
"forcible"
, 6 tive
Civilian
Protection
the
to
Persons
Time
War,
of
in
ofUST fer
its
population
of
civilian
parts
into
own Paragraph
its
6to
by
apply
terms
any
appears
in
ing
of
settlements,
well
other
as
kinds
of
assistance gotiating
of Lauterpacht,
the respected
took
authority,
this
evidently
one
displacement
local
volves
the
population.
Although the
history
of
Convention,
and
it
clearly
seems 6directed
that
it
view
is
paragraph
of
against
mass The
Israeli
civilian
thus
settlements
to
appear
population, whatever
The
Occupying
deport
Power
shall
not
trans
or
provides, the
andorin paragraph
voluntary.*
tary
It
seems
clearly
reach
to
such and and
land
cation
making whether 6: involun
participation
their
in
creation.
available
of And
the
paragraph
settlements,
financ is
it
in
view,
literature,
the
otherwise
unsupported
inthe
international
the
of
law
in
rules
language
or
and
ne notDisplacement
correct.
persons
protected
of
is
dealt
in
with
Convention
the
6separately
paragraph
and
would for
its
limiting
apparent
application
support
or
reason into
it
territory
the
ulation
within
occupies"
parts
own
its scope
constitute
a"transfer
of
civilian
pop be
paragraph
49
6to
Article
would
applicable
of
cease in
belligerent
territories.
those
laws
The
of
occupa transfers
of
protected
of
out
persons
occupied
territory;
its
by
transfer
parts
of
civilian
power
occupying
an determining
the
volvements
of
power
occupying
lo
as particular
transfer.
language
history
The
the
of
and hibited
under
paragraph
6
only
extent
to
the
that
it
in political,
but
racial
there
forcolonization
is
or
ends;
no
population
transfers
such
occurred
as
in
World
War
II in
if
it
by it
discontinues
the
functions
governmental
of
exercise
territories
to
Israel
the
occupied
and
when
a belligerent
lead
the population
that
to occupant's
civilian
into
occu
provision
transfers
conclusion
of tion
to
with
continue
generally
would
to
respect
apply
objective pied
territory
broadly
proscribed
the
beyond
are
as
3516,
applicable
whether
is
harm
not
done
appears
by
or
a
scope
of
interim
military
administration.

it
territory
the
occupies.
is
paragraph
6not
limited.
so

paragraph
of
6.
to
such
cases.

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