“United Nations Security Council Resolution 446”的意思、由来-开放百科全书

United Nations Security Council resolution 446, adopted on 22 March 1979, concerned the issue of Israeli settlements in the "Arab territories occupied by Israel since 1967, including Jerusalem".^[1] This refers to the Palestinian territories of the West Bank, East Jerusalem and the Gaza Strip as well as the Syrian Golan Heights.

In the resolution, the Security Council determined: "that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East"

The resolution was adopted by 12 votes to none, with 3 abstentions from Norway, the United Kingdom and the United States of America.

Text of resolution

The Security Council,

Having heard the statement of the Permanent Representative of Jordan and other statements made before the Council,

Stressing the urgent need to achieve a comprehensive, just and lasting peace in the Middle East,

Affirming once more that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 1/ is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem,

1. Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;

2. Strongly deplores the failure of Israel to abide by Security Council resolutions 237 (1967) of 14 June 1967, 252 (1968) of 21 May 1968 and 298 (1971) of 25 September 1971 and the consensus statement by the President of the Security Council on 11 November 1976 2/ and General Assembly resolutions 2253 (ES-V) and 2254 (ES-V) of 4 and 14 July 1967, 32/5 of 28 October 1977 and 33/113 of 18 December 1978;

3. Calls once more upon Israel, as the occupying Power, to abide scrupulously by the 1949 Fourth Geneva Convention, to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem, and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories;

4. Establishes a Commission consisting of three members of the Security Council, to be appointed by the President of the Council after consultations with the members of the Council, to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem;

5. Requests the Commission to submit its report to the Security Council by 1 July 1979;

6. Requests the Secretary-General to provide the Commission with the necessary facilities to enable it to carry out its mission.

7. Decides to keep the situation in the occupied territories under constant and close scrutiny and to reconvene in July 1979 to review the situation in the light of the findings of the Commission.

UNSC Resolution 446 and the Fourth Geneva Convention

Resolution 446 affirms "once more that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem". Tomis Kapitan reports that:

Israel's argument against the applicability of the Convention was formulated by Meir Shamgar and is based on an interpretation of Article 2, which reads:

The government's argument (first made by Moshe Dayan in a speech to the UN in 1977) is that neither the West Bank nor Gaza were the territory of a "High Contracting Power" at the time they were occupied by Israel and that therefore the Convention does not apply.^[4]^[5]

In 1993 the UN Security Council "acting under Chapter VII of the Charter on the United Nations" approved a report by the Secretary General which concluded beyond doubt that the law applicable in armed conflict as embodied in the Geneva Conventions of 12 August 1949 and the Hague Convention (IV) of 18 October 1907 had become part of international customary law. Breaches of the principles contained in the conventions were subsequently placed within the competence of international criminal tribunals, including International Criminal Tribunal for the former Yugoslavia and International Criminal Court.^[6]

Israel's positions have not been accepted by the International Committee of the Red Cross, nor has it been endorsed by the other High Contracting Parties to the Fourth Geneva Convention. Article 1 of the Convention states that "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances" (emphasis added).^[9]^[10]

On 15 July 1999 a conference of the High Contracting Parties to the Fourth Geneva Convention met at the United Nations headquarters in Geneva. It ruled that the Convention did apply in the Occupied Palestinian Territory, including Jerusalem.^[11] In 2001, at a one-day conference of High Contracting Parties, 114 countries adopted a three-page declaration re-affirming that the terms of the Convention applied to the Palestinian territories.^[12]

In August 2004 an Israeli justice ministry team set up by Attorney General Menachem Mazuz to study the ramifications of a ruling by the World Court^[13] recommended that the Israeli government should consider applying the Fourth Geneva Convention to the West Bank and Gaza.^[14]

Israel argues that it is not in violation of it. Firstly, Israel argues that the article was created in the context of World War II only.

Secondly, it is only intended to cover forcible transfers and to protect the local population from displacement. Article 49(1)of the Convention specifically covers "[i]ndividual or mass forcible transfers" whereas the Israelis who live in the settlements have moved there voluntarily, and argue that settlements are not intended to, nor have ever resulted in, the displacement of Palestinians from the area. However, Article 49(6) also prohibits Israel to 'transfer parts of its own civilian population into the territory it occupies', which would cover the Israeli settlements.^[15]^[16]^[17]

Thirdly, Israel claims that some of the settlers have returned to areas where Jewish settlements existed before 1948 (such as Gush Etzion) and therefore it is an entirely different issue.

Fourthly, Israel claims that the Geneva Convention only applies in the absence of an operative peace agreement and between two powers accepting the Convention. Since the Oslo Accords leave the issue of settlements to be negotiated later, proponents of this view argue that the Palestinians accepted the temporary presence of Israeli settlements pending further negotiation, and that there is no basis for declaring them illegal.^[16]^[18]

Unilateral withdrawal from the Gaza Strip

Israel left the Gaza Strip in September 2005, and removed all of the settlements and military forces that were in it. Parts of the West Bank, East Jerusalem and the Golan Heights remain under control of Israel as of today. Israel remains in control of Gaza's airspace and territorial waters. It has not controlled the Rafah crossing into Egypt since the unilateral disengagement plan of 2005 took effect.

See also

References

1. ^United Nations Security Council Resolution 446. 22 March 1979
2. ^{{cite book| last= Kapitan| first= Tomis| year=1997| title=Philosophical Perspectives on the Israeli-Palestinian Conflict| publisher= M. E. Sharpe| isbn=1-56324-878-6| pages= 28}}
3. ^{{cite book| last=Kretzmer| first= David| year=2002| title=The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories| publisher= SUNY Press| isbn=0-7914-5337-5| pages=33}}
4. ^Kretzmer, 2002, p. 34.
5. ^{{cite book| last=Hajjar| first= Lisa| year=2005| title=Courting Conflict: The Israeli Military Court System in the West Bank and Gaza| publisher=University of California Press| isbn= 0-520-24194-0| pages=54}}
6. ^See Security Council Resolution 827, 25 May 1993, the commentary with regard to customary law in the UN article on The Statute For the International Criminal Tribunal for the Former Yugoslavia, and "War crimes law comes of age", By Theodor Meron, Oxford University Press, 1998, {{ISBN|0-19-826856-4}}, page 212 [https://books.google.com/books?id=qLKF0LCPlsIC&pg=PA232&dq=&ei=-TbsSeifKoyuMv_1ZQ&client=#PPA212,M1]
7. ^See page 99 of Gorenberg, Gershom, "The accidental empire: Israel and the birth of the settlements, 1967–1977", Macmillan, 2006, {{ISBN|0-8050-7564-X}}
8. ^See Israeli State Archives 153.8/7920/7A, Document 60, dated 15 October 1968, cited on page 173 of Gorenberg's "The accidental empire"
9. ^{{cite book| last=Kassim| first= A F| year=1988| title=The Palestine Yearbook of International Law 1987-1988| publisher=Martinus Nijhoff Publishers| isbn= 90-411-0341-4 |pages= 112}}
10. ^{{cite book| last=Takkenberg| first= Alex| year=1998| title=The Status of Palestinian Refugees in International Law| publisher= Oxford University Press| isbn= 0-19-826590-5| pages= 214}}
11. ^{{cite book| author= United Nations| year=2002| title=Yearbook of the United Nations, 2000| publisher= United Nations Publications| isbn= 92-1-100857-3| pages=421, 437}}
12. ^Israel castigated for 'rights abuses'.
13. ^UN rules against Israeli barrier.
14. ^Consider Geneva pact, Israel told.
15. ^Rostow, Eugene. Bricks and stones: settling for leverage; Palestinian autonomy {{webarchive|url=https://web.archive.org/web/20100204104301/http://www.tzemachdovid.org/Facts/islegal2.shtml |date=4 February 2010 }}, The New Republic, 23 April 1990.
16. ^¹Israeli Settlements and International Law, Israel Ministry of Foreign Affairs website, 20 May 2001. URL accessed 11 April 2006.
17. ^Geneva Convention relative to the Protection of Civilian Persons in Time of War, United Nations High Commission for Human Rights website
18. ^Helmreich, Jeffrey. Diplomatic and Legal Aspects of the Settlement Issue, Jerusalem Center for Public Affairs, Jerusalem Issue Brief, Volume 2, Number 16, 19 January 2003.