The following is a excerpt of a legal opinion by renowned international law scholar Prof. John Dugard on the question of whether Israeli universities operating in the Occupied Palestinian Territory are lawful under international law. See also the full text of the opinion on relations between the University of Cape Town and Israeli Universities.

A. Whether Israeli Universities operating in the OPT are lawful under international law

There is only one Israeli university in the OPT – the University of Ariel, situated in the Israeli settlement of Ariel. Whether this University operates lawfully in the OPT must be considered in the context of the lawfulness of Israeli settlements in the West Bank, which Israel prefers to call Judea and Samaria.

There is no doubt that Israeli settlements in the West Bank of the OPT are unlawful under international law. This clear from international treaties, resolutions of the UN Security Council and General Assembly, an advisory opinion of the International Court of Justice, an International Fact-Finding Mission established by the UN Human Rights Council, decisions of the International Committee of the Red Cross (ICRC) and the practice of States.

(i) The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949 provides in Article 49(6) that “ The Occupying Power shall not …transfer parts of its own civilian population into the territory it occupies.” According to the Commentary on this provision, it is intended to prohibit the transfer into an occupied territory of portions of the population of the occupying power “for political or racial reasons or in order… to colonize those territories”.[1] This practice is defined as a war crime by Article 85(4) of the Additional Protocol to this Convention of 1977. The Rome Statute of the International Criminal Court of 1998 includes “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” among its list of war crimes.[2]

(ii) The Security Council of the United Nations in Resolution 2334 of December 2016 condemned Israeli settlements as having “no legal validity” and as a flagrant violation of international law. This resolution was adopted by 14 votes to one with the USA abstaining.[3] The General Assembly has likewise condemned Israeli settlements as unlawful in many resolutions.[4]

(iii) In 2004 the International Court of Justice unanimously held that Israeli settlements in the West Bank and East Jerusalem had been established in violation of international law.[5]

(iv) In 2013 an Independent Fact-Finding Mission established by the UN Human Rights Council found that settlements are illegal and that they are responsible for “daily violations of a multitude of the human rights of the Palestinians in the OPT, including , incontrovertibly, violating their right to non-discrimination, equality before the law and the equal protection of the law”.[6]

(v) In 1981 the International Conference of the Red Cross reaffirmed that settlements in occupied territory are incompatible with Article 49 of the Fourth Geneva Convention. Subsequent resolutions of the International Committee of the Red Cross have confirmed this.

On the basis of these decisions and the practice of States, as evidenced in their military manuals, legislation and official statements, the authoritative study of the ICRC on Customary International Humanitarian Law, declares that State practice establishes the rule that States may not transfer parts of their own civilian population into a territory they occupy as “a rule of customary international law applicable to international armed conflicts”.[7]

The above evidence establishes clearly that Israeli settlements in the West Bank and East Jerusalem are unlawful. The inevitable consequence is that the University of Ariel, situated in a settlement, is part of an illegal and criminal enterprise under international law.

Article 25(3)(c) of the Rome Statute provides that a person shall be criminally liable if “for the purpose of facilitating the commission of a crime” he or she “aids, abets or otherwise assists in the commission” of a crime provided for in the Statute, including war crimes.

Notes:
[1] Commentary by Jean Pictet, Geneva, International Committee of the Red Cross, 1958.
[2] Article 8(2)(b)(viii).
[3] See too Security Council resolutions 446. 352, 476.
[4] See, for example, resolutions 36/147C, 40/161D, 54/78.
[5] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. 2004 ICJ Reports, 136, para 120. Judge Buergenthal, who dissented on the finding that the wall in the OPT was illegal, agreed that settlements were illegal.
[6] Report of the Independent Fact-Finding Mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian People throughout the OPT, UN Doc A/HRC/22/63, 7 February 2013, para 49.
[7] J-M Henkaerts and L Doswald – Beck, Customary International Humanitarian Law, Cambridge University Pres,2005, vol 1, p. 462.

Published by University of Cape Town Palestine Solidarity Forum