Alan Baker, Attorney, Ambassador (ret')
November 8, 2013
Dear Secretary Kerry,
After listening to you declare repeatedly over the past weeks that "Israel's settlements are illegitimate", I respectfully wish to state, unequivocally, that you are mistaken and ill advised, both in law and in fact.
Pursuant to the "Oslo Accords", and specifically the Israel-Palestinian Interim Agreement (1995), the "issue of settlements" is one of subjects to be negotiated in the permanent status negotiations. President Bill Clinton on behalf of the US, is signatory as witness to that agreement, together with the leaders of the EU, Russia, Egypt, Jordan and Norway.
Your statements serve to not only to prejudge this negotiating issue, but also to undermine the integrity of that agreement, as well as the very negotiations that you so enthusiastically advocate.
Your determination that Israel's settlements are illegitimate cannot be legally substantiated. The oft-quoted prohibition on transferring population into occupied territory (Art. 49 of the 4th Geneva Convention) was, according to the International Committee Red Cross's own official commentary of that convention, drafted in 1949 to prevent the forced, mass transfer of populations carried out by the Nazis in the Second World War. It was never intended to apply to Israel's settlement activity. Attempts by the international community to attribute this article to Israel emanate from clear partisan motives, with which you, and the US are now identifying.
The formal applicability of that convention to the disputed territories cannot be claimed since they were not occupied from a prior, legitimate sovereign power.
The territories cannot be defined as "Palestinian territories" or, as you yourself frequently state, as "Palestine". No such entity exists, and the whole purpose of the permanent status negotiation is to determine, by agreement, the status of the territory, to which Israel has a legitimate claim, backed by international legal and historic rights. How can you presume to undermine this negotiation?
There is no requirement in any of the signed agreements between Israel and the Palestinians that Israel cease, or freeze settlement activity. The opposite is in fact the case. The above-noted 1995 interim agreement enables each party to plan, zone and build in the areas under its respective control.
Israel's settlement policy neither prejudices the outcome of the negotiations nor does it involve displacement of local Palestinian residents from their private property. Israel is indeed duly committed to negotiate the issue of settlements, and thus there is no room for any predetermination by you intended to prejudge the outcome of that negotiation.
By your repeating this ill-advised determination that Israel's settlements are illegitimate, and by your threatening Israel with a "third Palestinian intifada" and international isolation and delegitimization, you are in fact buying into, and even fueling the Palestinian propaganda narrative, and exerting unfair pressure on Israel. This is equally the case with your insistence on a false and unrealistic time limit to the negotiation.
As such you are taking sides, thereby prejudicing your own personal credibility, as well as that of the US.
With a view to restoring your own and the US's credibility, and to come with clean hands to the negotiation, you are respectfully requested to publicly and formally retract your determination as to the illegitimate nature of Israel's settlements and to cease your pressure on Israel.
Respectfully,
Alan Baker, Attorney, Ambassador (ret'),
Former legal counsel of Israel's Ministry for Foreign Affairs,
Former ambassador of Israel to Canada,
Director, Institute for Contemporary Affairs, Jerusalem Center for Public Affairs,
Director, International Action Division, The Legal Forum for Israel
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