Open Letter To Secretary Kerry

Alan Baker, Attorney, Ambassador (ret')
P.O.B. 182, Har Adar, Israel 90836

The Hon. John Kerry, U.S. Secretary of State,
The State Department,
Washington D.C.
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

Copy:

H.E. Daniel B. Shapiro, US Ambassador to Israel,
71 Hayarkon Street