Israeli Government Doc: Population Exchange Legal Under International Law

The move would require consent of the Palestinians, could not leave anyone without citizenship and would involve a mechanism for compensation.

ברק רביד - צרובה
Barak Ravid
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Foreign Minister Avigdor Lieberman
Foreign Minister Avigdor LiebermanCredit: Emil Salman
ברק רביד - צרובה
Barak Ravid

Foreign Minister Avigdor Lieberman received a few weeks ago a classified legal opinion that paves the way for making Arab areas of Israel part of a future Palestinian state.

The document’s authors concluded that the move would comply with international law on condition that it were done with the consent of the Palestinians, did not leave anyone without citizenship and included a mechanism for providing compensation, similar to the one used with Jewish settlers during Israel’s 2005 disengagement from the Gaza Strip.

Lieberman has been raising the idea of a land and population exchange for the past several years. Addressing the annual conference of Israeli ambassadors on January 5, he said that such an arrangement was a necessary condition of a comprehensive arrangement with the Palestinians.

He took pains to emphasize that he was proposing not a “transfer,” but rather “simply moving the border” to the other side of Israel’s Route 6.

A few days earlier, as United States Secretary of State John Kerry began negotiating a framework agreement for peace talks with Israeli and Palestinian officials, Lieberman instructed the Foreign Ministry’s legal department to draft the legal opinion, and on February 17, ministry legal advisor Ehud Keinan submitted an 18-page document, “Territorial Exchange: Transfer of Sovereignty over Populated Areas in the Framework of a Final Arrangement with the Palestinians, Legal Aspects.”

According to the document, a copy of which was obtained by Haaretz, such an arrangement, even if carried out without the explicit consent of the population involved, “is not wrongful under international law, as long as the transferred population has a clear citizenship of some kind after the transfer.”

The legal opinion references a number of historical precedents from the past 100 years, including from Israel’s agreements with neighboring states, as follows:

- The 1919 convention between Greece and Bulgaria, after World War I, which included the transfer of Bulgarian territory to Greece and significant exchanges of population between both countries.

- The Israel-Egypt Armistice of February 1950, which included territorial exchanges. The Gazan village of Abasan and its inhabitants were placed under

Egyptian sovereignty in exchange for the transfer to Israel of territory of similar size in the northern Gaza Strip.

- The Evian Accords of 1962, ending French control of Algeria and giving the French colonialists three years to choose between French and Algerian citizenship.

- The 1997 transfer of sovereignty over Hong Kong from Britain to China. The crown colony’s British inhabitants were slated to give up their British citizenship in favor of Chinese citizenship, but after a fight they were granted a special status that cannot be passed down to their children.

A 1992 ruling by the International Court of Justice in a border dispute between Honduras and El Salvador, permitting the transfer of populated territories between states while emphasizing that it must be carried out in a sensitive and organized manner, in accordance with promises by both states to find appropriate solutions for the inhabitants.

In the past three months, a number of polls have been published in Israel on the issue of territorial and population exchange. Of the 500 Israeli

Arabs from Wadi Ara and the Triangle, Nazareth, Sakhnin and Shfaram (areas with large Arab populations) who responded to a survey conducted for Haaretz in January by the Dialog Institute under the supervision of professor Camil Fuchs of Tel Aviv University, 42 percent expressed a general interest in a territorial exchange and 31 percent said they would want their communities to come under Palestinian sovereignty, while 65 percent opposed the idea.

Lieberman believes support for the measure is much higher among Israeli Jews. For now, the idea’s biggest detractor is the Palestinian leadership, in part because of its association with Lieberman. Keinan’s legal opinion states very clearly that without Palestinian cooperation, the measure is unfeasible and illegal.

Lieberman has raised the issue at nearly every meeting with his foreign counterparts in the past two months. Now, with the Israeli-Palestinian negotiations at the brink of collapse, he hopes to return the issue to the international debate on the two-state solution.

Keinan also stresses in the document that while international law sanctions the transfer of sovereignty over inhabited territories between states, “The forced transfer of a population is defined as an international crime.”

According to the paper, the degree of legitimacy conferred by the international community on the transfer of the Triangle and Wadi Ara area to Palestinian sovereignty would depend on the motivation for and goal of the move. Keinan notes the global response to apartheid-era South Africa’s creation of Bantustans in the 1970s. To preclude a similar situation, he stipulates a number of conditions that must be present for the measure envisioned by Lieberman to conform to international law, starting with the express agreement of the leadership of the future Palestinian state, whose citizens the inhabitants of this area would become.

One reason for this is Israel’s status as a signatory to the United Nations' 1961 Convention on the Reduction of Statelessness, stipulating that any agreement involving territorial exchange must guarantee that no one will be made stateless as a result.

Keinan rejects as unacceptable and illegal under international law any transfer plan that would leave its subjects without citizenship. He notes that the accepted arrangement today is for the transferred inhabitants to gain citizenship of their new country and forfeit their previous citizenship the day the agreement goes into effect.

But in most of the precedents around the world, the population received a measure of choice in the matter, the most basic being the right to leave their homes and remain in the first country while retaining their original citizenship. In the case of Israel, this would of course mean Israeli Arabs staying in Israel as citizens. A second option would be for them to remain in their homes, now in Palestine, while retaining Israeli citizenship.

Keinan says in the legal opinion that while the right to choice is accepted practice, it is not required by international law. Noting that individuals are usually given a deadline for choosing their citizenship in such cases, he wrote that it is permissible to make the existence of an ethnic, religious or language link between the individual and the state a condition for citizenship.

Noting that Israeli law does not prohibit its citizens from holding dual citizenship, except in rare cases, Keinan wrote that dual Israeli and

Palestinian citizenship could be restricted, but would require an amendment to Israel’s citizenship law. He wrote that such restrictions were defensible in the light of the complexity of the arrangements between Israel and the Palestinians. “A Palestinian who seeks to maintain his Israeli citizenship while living in the Palestinian state would be considered an Israeli citizen who resides outside the state,” Keinan wrote, adding, “He cannot vote in Knesset elections and would be barred from passing his [Israeli] citizenship beyond one generation.”

A central condition for the legality of a population and territorial exchange program, Keinan wrote, is the creation of a compensation scheme similar to that of the disengagement from Gaza and northern Samaria in 2005. He quotes from the minority, dissenting opinion of then-Supreme Court Justice Edmond Levy, who died March 11, according to which the evacuations constituted “the destruction of the fabric of life” of the settlers. Keinan stresses that for the population involved, the transfer of sovereignty from Israel to Palestine would affect their ability to maintain the social, economic, cultural and community ties they have in Israel.

“These residents could find themselves in a state that is different from Israel regarding economic aspects, living conditions and individual rights and to be harmed in terms of freedom of occupation, freedom of movement, the right to education, the right to social security and the right to vote and be elected,” Keinan wrote, adding that they might view Palestine as a politically and economically unstable state that is insufficiently democratic and lacking in social services.

Because of these possibilities, Israel must provide sufficient financial compensation to make up for the loss in the property values of the affected population, as well as acclimatization payments, severance pay and aid in purchasing a new home or to compensate for lost businesses, as needed.

Keinan stressed that the state had learned the lesson of the need for adequate compensation from the aftermath of the disengagement from Gaza, writing that there was a definite correlation between the success of the measure, and its chance of passing civil and judicial review, and the ability to recreate, insofar as possible, the conditions that existed for the inhabitants before the plan was carried out.

In his conclusion, Keinan notes that the entire program for exchanging territory and populations must be approved in a public referendum and grounded in legislation that is proved to meet the values of the state and not to violate individual rights more than is necessary. In addition, in order to avoid discrimination, care must be taken to ensure that the Israeli settlers who are evacuated from the West Bank and the inhabitants of the areas in Israel that are to become part of the Palestinian state receive equal rights and conditions.

“The measure raises not only legal questions but also questions in the diplomatic, political and economic realms, in the social realm with regard to the relations between Jews and Arabs in the State of Israel and questions in the media-image sphere, that is, its effect on Israel’s image in the world,” Keinan wrote in the concluding paragraph of the legal opinion.

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