Statement of the US State Department Legal Adviser

THE LEGAL ADVISER

DEPARTMENT OF STATE
WASHINGTON

April 21, 1978

Dear Chairmen Fraser and Hamilton:

Secretary Vance has asked me to reply to your request
for a statement of legal considerations underlying
the United States view that the establishment of
the Israeli civilian settlements in the territories
occupied by Israel is inconsistent with international
law.  Accordingly, I am providing the following in response
to that request:

 
....
As noted above, Israeli armed forces entered  
Gaza, the West Bank, Sinai and the Golan Heights in 
June, 1967, in the course of an armed conflict.  Those 
areas had not previously been part of Israel’s sovereign 
territory nor otherwise under its administration.  By  
reason of such entry of its armed forces, Israel estab- 
lished control and began to exercise authority over these 
territories; and under international law, Israel thus be- 
came a belligerent occupant of these territories. 

  Territory coming under the control of a belligerent 
occupant does not thereby become its sovereign territory.  
International law confers upon the occupying state author- 
ity to undertake interim military administration over the 
territory and its inhabitants; that authority is not un- 
limited.  The governing rules are designed to permit  
pursuit of its military needs by the occupying power, to 
protect the security of the occupying forces, to provide  
for orderly government, to protect the rights and inter- 
ests of the inhabitants and to reserve questions of ter- 
ritorial change and sovereignty to a later stage when the  
war is ended.  See L. Oppenheim, 2 International Law 432- 
438 (7th ed., H. Lauterpacht ed., 1952); E. Feilchenfeld, 
The International Economic Law of Belligerent Occupation  
4-5, 11-12, 15-17, 87 (1942); M. McDougal & F. Feliciano, 
Law and Minimum World Public Order 734-46, 751-7 (1961); 
Regulations annexed to the 1907 Hague Convention on the  
Laws and Customs of War on Land, Articles 42-56, 1 Bevans 
643; Department of the Army, The Law of Land Warfare, 
Chapter 6 (1956) (FM-27-10). 

In positive terms, and broadly stated, the Occu- 
pant’s powers are (1) to continue orderly govern- 
ment, (2) to exercise control over and utilize  
the resources of the country so far as necessary  
for that purpose and to meet his own military  
needs.  He may thus, under the latter head, ap- 
ply its resources to his own military objects,  
claim services from the inhabitants, use, requi- 
sition, seize or destroy their property, within  
the limits of what is required for the army of 
occupation and the needs of the local population. 

But beyond the limits of quality, quantum and  
duration thus implied, the Occupant’s acts will  
not have legal effect, although they may in fact  
be unchallengeable until the territory is libera- 
ted.  He is not entitled to treat the country as  
his own territory or its inhabitants as his own 
subjects,...and over a wide range of public pro- 
perty, he can confer rights only as against him- 
self, and within his own limited period of de  
facto rule.  J. Stone, Legal Controls of International 
Conflict, 697 (1959). 

  On the basis of the available information, the civ- 
ilian settlements in the territories occupied by Israel  
do not appear to be consistent with these limits on Israel’s 
authority as belligerent occupant in that they do not seem 
intended to be of limited duration or established to pro- 
vide orderly government of the territories and, though some 
may serve incidental security purposes, they do not appear 
to be required to meet military needs during the occupation. 

  2.  Article 49 of the Fourth Geneva Convention rela- 
tive to the Protection of Civilian Persons in Time of War, 
August 12, 1949, 6 UST 3516, provides, in paragraph 6: 

The occupying power shall not deport or trans- 
fer parts of its own civilian population into the 
territory it occupies. 

  Paragraph 6 appears to apply by its terms to any 
transfer by an occupying power of parts of its civilian 
population whatever the objective and whether involun- 
tary or voluntary.*  It seems clearly to reach such in- 
volvements of the occupying power as determining the lo- 
cation of settlements, making land available and financ- 
ing of settlements, as well as other kinds of assistance  
and participation in their creation.  And the paragraph 
appears applicable whether or not harm is done by a 
particular transfer.  The language and history of the 
provision lead to the conclusion that transfers of a 
belligerent occupant’s civilian population into occu- 
pied territory are broadly proscribed as beyond the  
scope of interim military administration. 

(*Paragraph 1 of Article 49, prohibits “forcible” 
transfers of protected persons out of occupied territory; 
paragraph 6 is not so limited.)

  The view has been advanced that a transfer is pro- 
hibited under paragraph 6 only to the extent that it in- 
volves the displacement of the local population.  Although 
one respected authority, Lauterpacht, evidently took this 
view, it is otherwise unsupported in the literature, in  
the rules of international law or in the language and ne- 
gotiating history of the Convention, and it clearly seems 
not correct.  Displacement of protected persons is dealt 
with separately in the Convention and paragraph 6 would be 
redundant if limited to cases of displacement.  Another  
view of paragraph 6 is that it is directed against mass 
population transfers such as occurred in World War II for 
political, racial or colonization ends; but there is no 
apparent support or reason for limiting its application  
to such cases. 

  The Israeli civilian settlements thus appear to 
constitute a “transfer of parts of its own civilian pop- 
ulation into the territory it occupies” within the scope  
of paragraph 6. 

  3.  Under Article 6 of the Fourth Geneva Convention, 
paragraph 6 of Article 49 would cease to be applicable  
to Israel in the territories occupied by it if and when  
it discontinues the exercise of governmental functions  
in those territories.  The laws of belligerent occupa-  
tion generally would continue to apply with respect to 
particular occupied territory until Israel leaves it or 
the war ends between Israel and its neighbors concerned  
with the particular territory.  The war can end in many  
ways, including by express agreement or by de facto ac- 
ceptance of the status quo by the belligerents.   

  4.  It has been suggested that the principles of 
belligerent occupation, including Article 49, paragraph  
6, of the Fourth Geneva Convention, may not apply in the  
West Bank and Gaza because Jordan and Egypt were not  
the respective legitimate sovereigns of these territor- 
ies.  However, those principles appear applicable whe- 
ther or not Jordan and Egypt possessed legitimate sov- 
ereign rights in respect of those territories.  Protect- 
ing the reversionary interest of an ousted sovereign is  
not their sole or essential purpose; the paramount pur- 
poses are protecting the civilian population of an occu- 
pied territory and reserving permanent territorial changes,  
if any, until settlement of the conflict.  The Fourth  
Geneva Convention, to which Israel, Egypt and Jordan are 
parties, bind signatories with respect to their territor- 
ies and the territory of other contracting parties, and  
“in all circumstances” (Article 1), in ”all cases” of  
armed conflict among them (Article 2) and with respect to 
all persons who “in any manner whatsoever” find themselves 
under the control of the party of which they are not nation- 
als (Article 4). 

Conclusion 

  While Israel may undertake, in the occupied terri- 
tories,actions necessary to meet its military needs and  
to provide for orderly government during the occupation,  
for the reasons indicated above the establishment of the 
civilian settlements in those territories is inconsistent 
with international law. 

        Very truly yours, 

             Herbert J. Hansell

[Note that the State Department Legal Adviser’s view of international law undermined the already irreparably ineffective argument by the dimwitted former US Supreme Court Justice and US UN ambassador, Goldberg, that, under UN Security Council Resolution 242, Israel is not obligated to vacate all the occupied territories simply because he had the definite article ‘the’ omitted before the word ‘occupied’ in one, only one, of the three official translations of the resolution over the unanimous, strenuous objections of the rest of the Security Council which, like the US State Department Legal Adviser, had absolutely no doubt about the state of international law before and after the passage of the resolution.  I believe I am the first and only one to point out the foregoing and the first and only one to point out (brilliantly, perhaps) that any agreements between war criminal Ariel Sharon and the George W. Bush administration regarding the settlements would be as unenforceable as one species of alternative reality ‘legal’ agreements such as those signed in a movie or play by actors, prompting the Zionist agent and then US Secretary of State Hillary Clinton to announce that there were no such agreements despite Israeli insistence to the contrary.  Zionist Jews, many or most of whom are atheist and all of whom are culturally mentally and intellectually stunted, think that if they can get something that means absolutely nothing in writing (like the promise that some Jews gave themselves about some god promising them some land) then somehow it can be binding on others.  The Security Council that ‘patted’ the idiot Goldberg on his head and the US State Department Legal Adviser who ignored Goldberg’s laughable ‘achievement’ at the UN realized and understood the foregoing at some level.  Perhaps, even the dimwitted George Bush and Condo Rice were doing the same: no harm in giving Zionist lunatics led by Sharon something that Adam Albrett will destroy in a few words.  It will only be a matter of time before the entire more than one century-old alternative reality ‘legal’ regime just comes tumbling down.]

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