The Legality of Israeli Settlements

As a result of criticism, the Church of Scotland has agreed to change its controversial report of its committee which called for political action, including boycotts and disinvestment in Israel, because of "illegal settlements in the occupied territories." Though the Church has made clear that it has never challenged the right of Israel to exist, it has raised once again two issues: the claim of Israel to possess particular territory by the establishment of settlements; and the concerns faced by Palestinians in the "occupied Palestinian territories."

The question of whether Israeli settlements are immoral or politically unwise or present an obstacle to any peace process is arguable. However, what has been most important for many in the international community is the illegality of the settlements according to international law. About this, two things can be said. One is that it should be recognized at the outset that the whole issue is not really one of legality but is a crucial part of political factors: the territorial dispute between Israel and the Palestinians and other Arabs over areas to which both parties make claims; the question of who has legitimate sovereignty over the territory; a Palestinian state; and the desire of Israel for security. The other is that there is no clear universally accepted international law on the question of the settlements.

Many resolutions by international bodies have considered the settlements to be illegal. The most recent critical report was presented in January 2013 by a panel set up by the United Nations Human Rights Council. The panel of three judges, headed by Christine Chanet of France determined that the settlements violated the Fourth Geneva Convention of 1949. Moreover, Judge Chanet said that according to Article 8 of the statute of the International Criminal Court the actions of Israel constituted "war crimes."

It is appropriate to pay due respect if not total reverence to the historical as well as the political context in two ways: the relevant international agreements; and the facts on the ground. The crucial San Remo Treaty of 1920 that wrote the charter of the League of Nations dealt with the territory of the recemtly collapsed Ottoman Empire, and created a political structure in a geographical area it called "Palestine." The Mandate was given to Britain in 1922 by the League of Nations. Article 6 of the Mandate said that the Administration of Palestine, in fact Britain, "shall encourage close settlement by Jews on the land including State lands not required for public use." It did not speak of Jewish settlement on the east bank because Britain had established there a new entity, the emirate, later the kingdom, of Jordan.

The Palestinian Mandate recognized the historical connection of the Jewish people with Palestine, and called for the establishment of a national home for the Jewish people without specifying borders. The so-called "Green Line" is not a border but is where the contending armies stopped fighting and accepted a cease-fire in the war of 1948-49. It has no administrative, geographical, or topographical significance.

A simple definition of an Israeli settlement is a residential area built across the Green Line. This ignores the existence of Jewish settlements before the State of Israel was established. They include others such as Hebron, many centuries old, the Jewish Quarter of Jerusalem, and those established during the British Mandate, such as Neve Ya'acov, north of Jerusalem, the Gush Etzion bloc in the West Bank, some north of the Dead Sea, and Kfar Darom in the Gaza region. The only political body that prohibited Jewish settlement was the Jordanian administration, which between 1949 and 1967 claimed to have annexed the West Bank.

The simple definition also disregards the variety of the settlements. Some are small farming communities and frontier villages; others are urban suburbs, or towns, such as Modi'in Illit, Maale Adumim, and Betar Illit, with a considerable population. Some have been established for security reasons. A considerable number are outposts, small, unauthorized settlements, a few mobile homes, usually on hilltops.

Currently there are some 121 settlements and more than 100 unauthorized outposts. East Jerusalem and the adjacent West Bank blocs of Givat Zeev and Maale Adumin are on the West side of the line. Israel withdrew all the settlers from Sinai in 1982 and the 8,000 settlers from the Gaza Strip in 2005. About 534,000 now inhabit the settlements which occupy less than three per cent of the disputed land.

Critics of the settlements have always referred to Article 49 of the Fourth Geneva Convention. The controversial interpretations of it concerning the actions of Israel are ironic in view of the reality that it was adopted to prevent crimes such as the Nazi deportation of European Jews to their deaths. Article 49 (1) prohibits "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or that of any other country, occupied or not." In addition, Article 49 (6) states "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies."

About this argument a number of responses can be made. First and most important, no Israeli is being deported or transferred to the settlements; for various reasons Israelis are going to them voluntarily. Some stem from economic factors with settlers taking advantage of public and private incentives and beneficial mortgages. Others have been set up by religious members of Gush Emunim (Bloc of the Faithful) who view themselves as returning to the biblical Jewish homeland.

The areas of the settlements are neither under the legitimate sovereignty of any state, nor on private Arab land. They are also not intended to displace any Arab inhabitants nor have they done so. This was shown in 2012 by the Israeli High Court when it ordered the evacuation of settlers from illegal homes in Ulpana, an unauthorized outpost on the outskirts of Beit El.

Secondly, no Palestinian Arab is being deported from place of residence to anywhere else. Thirdly, no crime, much less a "war crime" has been committed.

Fourthly, on a technical level the Geneva Convention applies to actions by a signatory "carried out on the territory of another." Article 49 speaks of a "High Contracting Party" with a sovereign claim to territory. The West Bank, as Eugene W. Rostow stated in article on April 23,1990, "is not the territory of a signatory power, but an unallocated part of the British Mandate."

The competing claims of Israel and Palestinians and other Arabs can only be resolved by peaceful negotiations. If Palestinians can make legitimate claims to the disputed land so can Israel by virtue of its historic and religious connections. The international community appears to have forgotten the clear statements of the various Armistice Agreements of 1949 which provided that the Armistice Demarcation lines were "not to be construed in any sense" as political or territorial boundaries." No provision of those Agreements was in any way to prejudice the rights and claims of the parties in "the ultimate peaceful settlement of the Palestine problem." The Israeli presence in the disputed areas is lawful until a peace settlement, because Israel entered them lawfully in self-defense.

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