Are Israeli Settlements in the West Bank illegal under International Law?
by David Millstone
QUESTION: Are Israeli Settlements in the West Bank Illegal Under International Law?
We read in the news on a regular basis that Israeli settlements in the West Bank are illegal. In 2019, the Trump administration took the position that Israeli settlements in the West Bank are not inconsistent with international law, a change from the prior U.S. position.
Previously, the United States position on settlements had been mixed. Until 1978, the U.S. took no position on the legality of the settlements. In 1978, President Carter’s administration, relying on a State Department memo (the Hansell Memorandum), declared settlements to be inconsistent with international law. Less than three years later, President Reagan repudiated the Carter position. For the next thirty-five years, both Republican and Democratic administrations avoided taking any position on the legality of settlements. In 2011 President Obama exercised the U.S. veto power over a Security Council Resolution condemning Israeli settlements. However, in 2016, he abandoned the longstanding policy by abstaining on a Security Council Resolution which declared settlements illegal. In abstaining, the U.S. Ambassador to the U.N. stated the decision was “fully in line with the bipartisan history” of how the U.S. presidents have approached the issue for years.
So, the question for the month is “Are Israeli settlements in the West Bank illegal under international law?”
The Arguments Claiming Settlements Are Illegal
The United Nations General Assembly and Security Council, the International Court of Justice, as well as the international community in general have stated Israeli settlements violate the Geneva Conventions and international humanitarian laws.
It is important to understand that U.N. Security Council and General Assembly resolutions, such as those declaring the settlements illegal, are not binding. The International Court of Justice Opinion is an “Advisory Opinion” and, therefore, likewise not binding.
The argument against legality of the settlements under the Geneva Convention is laid out in The Hansell Memorandum. The essence of the argument is:
Israel’s armed forces entered into areas that were not part of its sovereignty or under its administration at the start of the 1967 War. Therefore, Israel became a belligerent occupant of the territories. As a result, the territories were “occupied.”
The creation of settlements appears to violate the prohibition of Article 49 of the Fourth Geneva Convention which provides:
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
Others have argued Israel expropriated thousands of acres of Palestinian land for settlements, thereby displacing the Palestinians and violating international humanitarian laws.
The Arguments Supporting the Legality of Israeli Settlements
To understand why settlements do not violate international law, it is important to first understand the history of the land. The West Bank, also known as Judea and Samaria, is where Jewish history began. There has been a Jewish presence for thousands of years in Judea and Samaria. Looking just at the 20th century here is a brief history of the region:
While routinely referred to as “Palestinian” land, at no point in history has Jerusalem or the West Bank been under Palestinian Arab sovereignty.
Prior to World War I, Israel, Jordan and the West Bank were provinces of the Ottoman Empire.
During World War I, British-led allied troops captured the area from the Turks.
In 1922 the League of Nations established the Mandate for Palestine providing for the establishment of a national home for the Jewish people on the land where they had a historic connection.
Both under the Ottomans and after World War I, Jewish settlements existed in places like Hebron, the Gush Etzion bloc in southern Judea and Neve Ya’acov, north of Jerusalem, all in what is now the West Bank. (For further information on Jewish settlement of Israel prior to Independence see https://jfedsrq.org/crconnect-section/did-jews-take-israel-away-from-palestinians)
In 1947, the United Nations partitioned Palestine between the Jews and the Arabs. When Israel declared its statehood in 1948, five Arab countries attacked the Jews to destroy the State of Israel. An armistice was reached based upon the areas held by each side, but with no peace agreement(s). No final borders were established.
By the end of the War of Independence in July 1949, Jews in the West Bank had been either massacred or driven out by the Arabs.
In the 1967 War, after Egypt committed an act of war and other Arab nations join in, Israel captured Jerusalem and all of Judea and Samaria.
After the 1967 War, many of the settlers returned to establish communities that had existed prior to the War of Independence.
Article 49 of the Geneva Convention does not apply because neither the Palestinian Arabs nor Jordanians had sovereignty over the West Bank. The lands were “disputed” territory into which Jews had the right to settle whether under the Mandate for Palestine or because of settlements prior to 1948 and the Jews historic connection to the land.
Even if the Geneva Convention applied, Article 49 was adopted after World War II with the intention of protecting against the enslavement, forced labor or extermination of the population. It prohibits forced movement. The settlements by Jews were voluntary.
Settlements have only been permitted by Israel following investigations to ensure that communities are only established on public lands or on private lands legally acquired.
The bilateral agreements between Israel and the Palestinians contain no prohibition against the building or expansion of settlements. The agreements specifically reserve the issue of settlements for permanent status negotiations. The agreements also recognize Israel has exclusive jurisdiction over the settlements pending permanent status agreement.
The issue of settlements is a complex one that will only be resolved through negotiations, not with charges of illegality. Both Jews and Palestinians have legitimate claims of connectivity to this ancient land.
Author: David Millstone
*Any opinions expressed in this article are those of the author and not necessarily those of The Jewish Federation of Sarasota-Manatee or of the Community Relations Committee.