§2 The Laws of War Occupied Territories Israeli-Occupied Territories On March 1, 1980, the United Nations Security Council by unanimous vote adopted Resolution 465 (1980), regarding Israeli practices in the Arab territories, including Jerusalem, which Israel had occupied since 1967. Its operative paragraphs read in part: * 5. Determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof have no legal validity and that Israel's policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East; 6. Strongly deplores the continuation and persistence of Israel in pursuing those policies and practices and calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem; In explaining United States support for the resolution (as a whole-see, however, post), the United States Permanent Representative to the United Nations, Ambassador Donald F. McHenry, reiterated the United States Government's view that the Israeli settlements in the occupied territories were illegal under international law and that they were an obstacle to the successful outcome of negotiations leading to a comprehensive, just, and lasting peace in the Middle East. For Ambassador McHenry's statement, see U.N. Doc. S/PV. 2203, Mar. 4, 1980, pp. 7-8/10; the 1979 Digest, pp. 1755-1756; Press Release USUN (80) 16, Mar. 1, 1980; Dept. of State Bulletin, Vol. 80, No. 2037, Apr. 1980, p. 64; Doc. 318, "We Regard Settlements in the Occupied Territories as Illegal", American Foreign Policy: Basic Documents, 1977-1980 (1983), pp. 704-705. In response to questions about the U.S. vote the Department's Spokesman, Tom Reston, pointed out at a press briefing on Mar. 3, 1980, that: (1) basic U.S. policy on the Israeli settlements in occupied Arab territory and on Jerusalem had not changed; (2) that the United States considered the call for “dismantling of existing settlements" in Resolution 465 neither proper as to forum, nor practical, since the issue of the settlements would have to be dealt with in the (autonomy) negotiations underway; and (3) the United States would (continue to) oppose any effort to change or amend Security Council Resolution 242 (1967). Dept. of State Bulletin, Vol. 80, No. 2037, Apr. 1980, p. 64. On the same day President Carter issued a statement emphasizing that the U.S. vote in the United Nations had been approved with the understanding that all references to Jerusalem would be deleted, which the United States continued to believe should be undivided, with free access to the holy places for all faiths, its status to be determined in the negotiations for a comprehensive peace settlement. Ibid., Public Papers of the Presidents: Jimmy Carter, 1980-81, Bk. I (1981), p. 427; American Foreign Policy: Basic Documents, 1977-1980, ante, p. 705. On March 20, 1980, Secretary of State Vance appeared at a hearing held by the Senate Committee on Foreign Relations to examine in the context of United States support for S/RES 465, ante, the current status of United States policy regarding Israeli settlements in the occupied territories and regarding Jerusalem. Portions of Secretary Vance's statement follow: The current negotiations provide the context for concrete discussion of individual issues. It is important to define what the current negotiations are and what they are not. Let me turn to the U.N. resolution. In February, we were faced with a draft resolution on the question of Israeli settlements which was circulated in the Security Council. We disagreed with a reference in the resolution to dismantling existing settlements and sought, unsuccessfully, to have it removed. As often happens in the U.N. Security Council, we stated our reservations without opposing the resolution as a whole. President Carter has stated clearly our view that this call for dismantling was neither proper nor practical. As you know, we did succeed in removing paragraph 7 of the draft, which called on Israel to assure the exercise of religious freedom in Jerusalem, thereby wrongly implying that it is not already doing so. There was a misunderstanding, however, with regard to our position on other references to Jerusalem in the resolution. The President understood that all references to Jerusalem would be removed before we would vote for the resolution, believing that in the present phase of the autonomy negotiations it would not be helpful to raise the issue of Jerusalem in a U.N. resolution concerning settlements. As Ambassador McHenry stated in the Security Council immediately following the vote, the United States considers Resolution 465 as recommendatory rather than binding. With regard to the references in the resolution to "Palestinian and other Arab lands,' it is our position that this phrase should not be construed as in any way prejudicing the outcome of the autonomy negotiations or negotiations on the final status of the West Bank and Gaza. As the President unequivocally stated on March 3, our policies with respect to settlements in occupied territory, and with respect to Jerusalem, have not changed. I think it is important that I take a moment to reiterate briefly our policies on these two issues. First let me speak of settlements in occupied territory. U.S. policy toward the establishment of Israeli settlements in occupied territories is unequivocal and has long been a matter of public record. We consider it to be contrary to international law and an impediment to the successful conclusion of the Middle East peace process. We consistently have urged Israel to halt actions to create new settlements or to seize land to expand existing ones. We regard such restraint as particularly important while the autonomy negotiations are underway. The Camp David framework does not refer specifically to Israeli settlements in the West Bank and Gaza. Nevertheless, certain questions concerning the status of the settlements during the transitional period obviously will have to be resolved in the course of the autonomy negotiations. The permanent resolution of the settlements issue must then be decided in the subsequent negotiations on the final status of the occupied territories. U.S. Middle East Policy: Hearing before the Sen. Comm. on For. Rel., 96th Cong., 2d sess. (1980), pp. 5, 7-8; American Foreign Policy: Basic Documents, 1977-1980 (1983), pp. 706-707; Dept. of State Bulletin, Vol. 80, No. 2038, May 1980, pp. 61-62. See, also, Resolution of Inquiry Concerning the U.S. Vote in the U.N. Security Council on Israeli Settlements in the Occupied Territories: Hearings on H. Res. 598 before the House Comm. on For. Affairs, 96th Cong., 2d sess. (1980). See, further, this Digest, Ch. 2, §§ 1 and 7, ante. On May 1, 1980, armed men attacked Israeli settlers in the West Bank town of Hebron, killing six and wounding seventeen others. Israeli military authorities took a number of responsive measures, including the summary expulsion of three West Bank officials, Mayor Milhem of Halhul, Mayor Qawasmeh of Hebron, and the Islamic Judge of Hebron, Sheikh Tamimi, all of whom they deported to Lebanon. The Israeli military authorities justified their actions by claims that the three officials had made inflammatory public statements contributing to the atmosphere that led to the attack. The United Nations Security Council took up the question of the expulsions on three subsequent occasions during 1980. While the United States considered that the expulsion of the officials was contrary to the provisions of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), it abstained on the first two of the three resolutions adopted by the Security Council calling on Israel to allow the officials to return. The United States voted in favor of the third resolution, however, which followed upon a decision of Prime Minister Begin to re-expel the two Mayors after they lost their appeal against deportation (they had been allowed to return for the purpose of the appeal). The rationale for the United States actions in regard to the Security Council resolutions follows: On May 8, the Security Council met at the request of Tunisia and adopted the first of three resolutions on this question, calling on Israel to "rescind these illegal measures" and allow the officials to return, after a debate in which the officials addressed the Council. The resolution was adopted by a vote of 14 to 0, with 1 abstention (U.S.). (Resolution 468 (1980).) In explanation of the U.S. vote, the U.S. Representative, Ambassador William J. van den Heuvel, stated that while the United States believed that the expulsion of the officials was contrary to the provisions of the applicable Fourth Geneva Convention, the United States considered that the resolution should also have referred to the attack on Israeli citizens in Hebron which preceded the deportations. He noted that his Government was also participating in difficult and complex negotiations on Palestinian autonomy and had therefore abstained in the vote on the resolution. On May 20, the Security Council met again in response to the request of Jordan. The Mayors were present at this time and made statements. The Security Council then adopted a resolution by the same vote of 14 to 0, with 1 (U.S.) abstention. (Resolution 469 (1980).) In addition to repeating the call in resolution 468 (1980) for Israel to allow the officials to return, the second resolution "strongly deplored" Israel's failure to comply with the first. In explanation of vote, Ambassador van den Heuvel stated only that the U.S. position had been fully set forth in the Council on May 8 and had not changed. During July and August, the two Mayors were allowed to return to the West Bank in order to submit their appeal against the deportation order. Pending the outcome of their appeal, they were placed in detention. Ultimately, the Israeli High Court of Justice upheld the original deportation order by the military administration, but suggested in its majority opinion that the Government might suspend its execution. Prime Minister Begin nevertheless decided to expel the Mayors again. On December 19, after again hearing statements by the Mayors, the Security Council adopted by unanimous vote yet another resolution again calling on Israel to allow the Mayors to return. (Resolution 484 (1980).) Ambassador McHenry stated that the United States would vote in favor of the resolution, noting that his Government had consistently maintained that the deportations were contrary to the provisions of the Fourth Geneva Convention, which prohibits deportations regardless of motive, and expressed regret that the Government of Israel had reexpelled the Mayors after they had voluntarily submitted their appeal to Israel's judicial authorities. He suggested that in the future the United States hoped that the Security Council would be as prompt in condemning violence against Israel as in criticizing Israeli actions. United States Participation in the United Nations: Report by the President to the Congress for the Year 1980 (1981), pp. 7-8. §4 §5 Neutrality and Nonbelligerency United Nations and Regional Peacekeeping U.N. Interim Force in Lebanon (UNIFIL) The United Nations Security Council met between April 13 and 16, and again on April 18 and 24, 1980, at the request of the Government of Lebanon to consider its complaint that the Israeli Army had been engaging in military action inside Lebanese territory and had come into direct confrontation with UNIFIL, taking up positions within UNIFIL's area of operations. On April 24, the Council, by a vote of 12-0-3 (the United States, the Union of Soviet Socialist Republics, and the German Democratic Republic), adopted as S/RES 467 a draft resolution sponsored by Lebanon that, inter alia, condemned "Israel's military intervention in Lebanon" as well as militia attacks against UNIFIL (see, post). Prior to the vote, the Permanent Representative of the United States, Ambassador Donald F. McHenry, explained that the United States would abstain on the draft resolution because it did not "deal with the grave problems in a balanced and comprehensive way." The United States, he said, would have preferred a resolution that concentrated on constructive proposals rather than one that concentrated on condemnation. The major portion of Ambassador McHenry's statement follows: It is important for this Council to mince no words about exactly what the problem is. The lack of authority and discipline in the area permits lawless elements to attack each other, to attack and murder United Nations soldiers, to harass them and to engage in acts of violence and terrorism against innocent civilians across international borders. Because of the inability of any authority to impose the necessary discipline and control, the southern LebanonIsrael border region has been a focal point of infiltration, terrorism, intimidation and confrontation. Violence has produced counter-violence and a rising scale of dangers to all innocent inhabitants of the area. We cannot allow a return to the terrible violence of last summer. Two years ago this Council adopted resolution 425 (1978) setting up the United Nations Interim Force in Lebanon to help to provide discipline and to extend the authority of the Lebanese Government |