Palestinian human rights organization Al Haq published a new report on the illegality of ‘land swap’ agreements on 8 December. The exchange of territory may form part of the solution of final status issues. However, as long as Israel occupies the Palestinian territory, any ‘land swap’ agreement has no value because it is contrary to international law, says the rights group.
Shawan Jabarin, general director of Al-Haq, said in a press release on the report that the Fourth Geneva Convention protects the interests of the occupied population. It clearly states that agreements that undermine its rights are prohibited because they are borne of a clear imbalance of power between the two parties involved. ‘Land swap’ agreements concluded under occupation will result in further fragmentation of Palestinian society and will effectively constitute official sanctioning of the dispossession of Palestinian land.
Proposed land swaps respect Israel’s claim on major settlements
During the failed ‘peace process’, members of the international community supported proposals for land swap deals between Israel and the Palestinians. Recently, Mahmoud Abbas, the president of the Palestinian Authority in Ramallah whose elected mandate expired in January 2009, once again showed his preparedness to discuss a land swap. All proposed deals have met Israel’s claim on major settlements in the occupied West Bank, including East Jerusalem. In return for granting settlements to Israel, Palestinians will receive sparsely populated farmland close to the Gaza Strip, the Sinai Desert, part of the West Bank and possibly territory in the Naqab (Negev) Desert.
Israeli settlements in the occupied West Bank and the annexation of East Jerusalem are illegal under international law. Numerous UN resolutions and the 2004 advisory opinion of the International Court of Justice on Israel’s wall in the West Bank have confirmed this. The settlements that Israel wants to keep are built on stolen Palestinian land; more than 30 percent of the land on which the settlements are built is Palestinian private property. This includes 86.4 percent of Ma’ale Adumim, 44.7 percent of Kedumim, 44.3 percent of Giv’at Ze’ev and 35.1 percent of Ariel. Following from this, land swap deals that will grant settlements to Israel will also affect private Palestinian landowners. Their ability to reclaim possession of their land will be undermined.
Fourth Geneva Convention clear about unequal ‘agreements’
The rights of the occupied Palestinian population are protected under the Fourth Geneva Convention. The Convention prohibits the conclusion of agreements in which the imbalanced position of the two parties would coerce Palestinian negotiators to sign agreements that hamper the rights of the occupied population. For example, Article 7 strictly prohibits agreements that “adversely affect the situation of protected persons” or “restricts the rights which it confers upon them.” In addition, Article 47 prevents Israel to use agreements with Palestinian representatives as a means to free itself from its obligations under international law. The article also prevents Israel from forcing Palestinian representatives to conclude agreements that harm the rights of the protected persons in the OPT. Moreover, the article stipulates that no act or agreement of annexation will have any effect on the rights of protected persons.
The Convention protects the rights of Palestinian landowners who will remain the owner of the land on which Israel has built settlements, also after a land swap agreement. Palestinian leaders have no right and no power to transfer the legal title over privately owned land.
The right to self-determination
The right to self-determination entails the right “freely to determine, without external interference, their political status and to pursue their economic, social and cultural development.” It also contains sovereignty over natural resources, including land and water resources. In 1967 – immediately after Israel occupied the Palestinian territory - the UN Security Council recognized the right to self-determination of the Palestinian people. The International Court of Justice (ICJ) confirmed this right in its Advisory Opinion on the Wall of 2004.
Meanwhile, Israel’s policies and practices deliberately deny the Palestinians the full exercise of their sovereign rights and their right to self-determination.
Israel has created facts on the ground by the establishment of settlements and enterprises, the creation of a network of roads and the construction of the wall. These projects are for the sole benefit of the settlers. The major settlement blocs in the West Bank are positioned strategically to control the land with the purpose of maintaining a system of domination over Palestinians.
Jewish settlers in the West Bank enjoy the benefits of Palestinian arable land and Palestinian natural resources. Israel’s domestic laws and institutions convey special rights and privileges to Jewish settlers. Meanwhile, Israel denies fundamental rights and freedoms to Palestinians.
According to Al-Haq, Israel’s practices and policies in the occupied West Bank and Gaza Strip can be qualified as apartheid. Under the International Convention on the Suppression and Punishment of the Crime against Apartheid of 1973, the crime of apartheid is prohibited. The Russell Tribunal on Palestine arrived at the same conclusion at its meeting in Cape Town, concluding that “Israel subjects the Palestinian people to an institutionalized regime of domination amounting to apartheid as defined under international law.” Therefore, land swap deals based on Israel’s apartheid practices are null and void under international law.
Palestinian cultural heritage threatened
Some settlements are built on archeological sites that are significant for the cultural heritage and identity of the Palestinians as a people. The Convention on Protection of Cultural Property of 1954 determines that such sites are significant to all mankind. In 2010, Israel announced that the al-Ibrahimi mosque in occupied Hebron, and Rachel’s Tomb in occupied Bethlehem will be designated as Israeli national heritage sites. Israel already has appropriated Palestinian Christian sites in the recent past. Palestinians run the risk of losing a substantial part of their ancient heritage if this land is given to Israel. In that case, they will also lose out on a source of income in tourism.
States should act to end Israel’s violations of international law
Politically motivated calls for ‘mutually agreed land swap’ by the US, members of the European Union or any other state are contrary to their responsibilities under international law. The ICJ ruled in 2004 that all states have the obligation not to recognize the illegal situation and not to render aid or assistance in maintaining the situation. In addition, state parties to the Fourth Geneva Convention were reminded by the ICJ of their obligation to ensure Israel’s compliance with international humanitarian law and human rights. By pushing for land swap agreements while the occupation is ongoing, states are effectively condoning the existing illegal situation. Instead, states should recognize that Israel’s occupation, colonization and apartheid policies and practices are unlawful and act to bring these violations to an end.