Har Homa – legal aspects
March 3, 1997
In light of repeated attempts by the Palestinians and others to present
the Israel government approval of the Har Homa project as an alleged
violation of the agreements between Israel and the PLO, the following
legal points should be noted:
BUILDING IN THE TERRITORIES AND IN JERUSALEM
1. The Declaration of Principles of September 1993, the Interim
Agreement of 1995, and all related documents contain no commitment to
refrain from the construction of settlements, neighborhoods, houses,
roads, or any other such building project. Hence, the approval of the Har
Homa project and its implementation do not constitute any violation of
these agreements.
2. It should be noted in this context that in the course of
negotiations on the Interim Agreement in 1995, the Palestinian side sought
to include in this agreement restrictions on the building of settlements.
This issue was discussed but was not agreed upon, and no ban or limitation
on building — either in the territories or in Jerusalem — is contained
anywhere in the agreement.
3. To the contrary. Building is permitted, under the agreement, to
both Palestinians and Israelis, in those areas under their respective
jurisdictions, subject to the provisions of the agreement regarding
planning and construction.
JERUSALEM
4. Israel and the Palestinians agreed that the Palestinian autonomy
authorities have no powers or responsibility in Jerusalem. Accordingly,
their offices and institutions are to be located only in those areas in
which the Palestinian autonomy enjoys territorial authority — namely,
outside Jerusalem. It was explicitly agreed that the authority of the
Palestinian autonomy would extend over the West Bank and Gaza, to the
exclusion of those issues to be discussed in the permanent status
negotiations, including Jerusalem and the Israeli settlements.
5. In agreeing that the issue of Jerusalem is to be part of the
permanent status negotiations, the parties recognized Jerusalem as a
separate issue, which does not constitute a part of the agreed
arrangements for redeployment and transfer of authorities in the West Bank
and Gaza Strip. Namely, life in Jerusalem, and all this entails,
continues, with the status of the city remaining unchanged so long as no
decision to the contrary is taken in the permanent status negotiations.
6. Therefore, the approval of building plans within Jerusalem, or
the implementation of any construction work, does not constitute a change
in the status of Jerusalem; neither does it create a situation which can
adversely affect or influence the permanent status negotiations. In any
event, the existing agreements do not accord the Palestinians any standing
with regard to any actions taken in Jerusalem, and Israel is under no
obligation to coordinate such actions with them or to consult with
them.
CHANGE OF STATUS IN JUDEA, SAMARIA AND GAZA
7. In Article XXXI (7) of the Interim Agreement, Israel and the PLO
agreed that “Neither side shall initiate or take any step that will change
the status of the West Bank and the Gaza Strip pending the outcome of the
permanent status negotiations.” Since, as noted above, Jerusalem is not
included in the agreement as part of those arrangements which apply to the
West Bank and Gaza Strip, and since there is no change in the status of
Jerusalem, this article is not relevant in this context.
8. In contrast, any action taken by either side to alter the status
of this area (such as by declaration of an independent state) would
constitute a violation of the Interim Agreement — allowing the other side
to decide whether to view the agreement as void, thus releasing that side
from its obligations under the agreement.
9. It should be noted that even the letters from the PLO to the
President of the Security Council (5/1997/149 of Feb 21, 1997 and
S/1997/165 of Feb 27, 1997) make no claim of any violation of the agreements. Rather,
they refer to a threat to the integrity of the agreements — this because
there has in fact been no violation.
SETTLEMENTS
10. The position of the Israeli government, since 1967, has been that
international law does not forbid the building of settlements on occupied
territory, and that the standard rules of international law, including the
Hague Rules of 1907, permit the administering authority to utilize public
land and to enjoy the “usufruct” as long as it occupies the territory.
Israel therefore rejects any claim or decision as to the illegality of its
settlements policy.
APPEALS TO THE INTERNATIONAL COMMUNITY
11. The very appeal by the PLO to the international community for
intervention, particularly to the UN Security Council, is inconsistent
with its explicit agreement to settle all issues under dispute directly
through negotiation. This commitment is contained in the letter (see index
‘reference documents’ from the
PLO Chairman to the late Prime Minister Rabin of September 9, 1993, on the
eve of the signing of the Declaration of Principles, as well as in the
texts of the DOP and the Interim Agreement which refer issues under
dispute to the appropriate mechanisms of coordination, cooperation and
conciliation between the parties, without the involvement of outside
parties. The PLO’s activity in this matter thus undermines the principles
of the agreement, reflecting the desire to avoid confrontation and to
foster relations built on mutual trust by resolving differences directly
between the parties.
