Israeli Settlements Are Not Illegal

Seventeen nations of the European union did not listen to or remember the remarks of Julie Bishop, foreign minister of Australia, made on January 21, 2014. She asserted that the international community should refrain from calling Israeli settlements illegal under international law while their status is not yet determined.

The EU members neglected this wise advice and impetuously issued a warning that financial transactions, investments, and economic activity with Israeli settlements or benefiting them carry legal and financial risks.  In their view, this dire analysis stems from the “fact” that the Israeli settlements, according to international law, are built on occupied land and are not recognized as a legitimate part of Israel’s territory.

Three reasons are usually given by those international bodies, academic institutions, and mainstream churches who hold this conviction about the settlements.  They are: Israeli settlements are illegal under international law; they constitute an obstacle to peace; and they threaten to make a two-state solution to the Israeli-Palestinian conflict impossible.  The reality is that none of the three can be justified on the basis of real evidence.

First, are the Israeli settlements illegal?  They can be criticized on grounds of lack of prudence or wisdom, or are unnecessarily provocative, but that is not consonant with illegality.  To make an informed opinion, the large number of very varied settlements, built for economic, religious, or security reasons, should not be assessed in a categorical way, as the critics assess them.  These critics rarely, if ever, distinguish among the 121 settlements that are officially recognized by the State of Israel, with 350,000 inhabitants; the 300,000 in East Jerusalem; the 20,000 in the Golan Heights; and the 102 illegal outposts.  Farming communities, frontier villages, modular homes, and urban suburbs, and towns of considerable size – such as Mod’in Illit with 55,000, Beitar Illit with 42,000, and Ma’ale Adumin with 36,000 – all are part of the diverse settlement movement.

The beginning of wisdom is that the territories in question are disputed, in spite of the constant repetition by so many in the international community that they are “occupied territories.”  Though Jordan, between 1950 and 1967, claimed to have annexed the area that is now called the West Bank, the international community did not accept this claim as valid.  Jordan never had any legal title to the area. Even Jordan later withdrew its claim.

No other political entity has had legal title or sovereignty or statehood over the area since the days of the Ottoman Empire.  The legal claim to the area thus remains disputed.  There is no sovereign authority to which Israel can return the land without negotiated agreement.  After the 1967 Six-Day War, a war fought in Israel’s lawful exercise of the inherent right of self-defense, as Article 51 of the U.N. Charter justifies, Israel established the international law of belligerent occupation to the area it had captured.  Control is exercised on the basis of international law, the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949, and Israeli law, with the objective of ensuring public order and civil life.  The Israeli High Court has determined that this control must be carried out on the basis of “proportionality.”

What international law declares the settlements illegal?  The critics of Israel all rely on an interpretation of one clause in an international document – namely, Article 49 of the Fourth Geneva Convention of 1949.  Article 49(6) forbids transfers of populations to occupied territories, stating, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”  It is concerned with people and with their rights, not with territory or legal questions relating to that territory.  But no one is being transferred involuntarily.  Israelis are not being deported to the West Bank, nor are Palestinians being deported from the West Bank. 

Nor can the movement of Israelis be regarded as violating the human rights of the occupied individuals.  The situation is totally unlike that of the deportation of Jews to their deaths in the Nazi extermination camps.  The 1949 Geneva Convention was aimed at preventing in the future what had happened in World War II: the forced transfer of large numbers of Jews by Nazi Germany and associates to the extermination camps.  It was never intended to apply to Israeli settlements.

There is no international law to ban Jews, whether Israelis or otherwise, from settling in the area of the original Palestine Mandate established by the League of Nations.  The Mandate clearly says, in Article 6, that the administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage ... close settlement by Jews on the lands, including State lands and waste lands not required for public purposes.”  Eugene Rostow argued thirty years ago that “until the final status of a particular area is resolved, there is no legal basis for barring Jews from settling there.”

That settlement is fulfillment of the historic right, going back 3,000 years, of Jews to live in the land. T his of course is not a legal right, but it is a moral and well as historic one.

Do the settlements prevent a two-state solution?  There were no boundaries between Israel and Palestinians ever drawn up, and therefore the future and extent of the territories is to be decided by negotiations, as called for by U.N. Security Council Resolutions 242 and 338.  It was the rejection by the Arab League and Palestinians of the U.N. Partition Resolution of November 29, 1947 calling for two states, one Jewish and the other Arab, that prevented the creation of an Arab state.  It is noticeable that almost all the continuing construction in the settlements are in those of the units that are suburbs of Jerusalem, areas that Palestinians accept would be part of Israel in any final status agreement. The settlements in no way prejudge the outcome of negotiations.  On the contrary, their existence must not be used as an excuse to prevent those negotiations.

The essence of the matter is that there are no “1967 borders”; there are only 1949 Armistice Lines and a Green Line.  Resolutions in the United Nations organizations unhelpfully changed from referring to the disputed area as “ territories occupied,” as in U.N. Security Resolution 242 that does not use the words “all territories,” to a formula such as “occupied Palestinian territories, including Jerusalem.”  Yet there are no “Palestinian territories” on the basis of history.  The conclusion can only be that the issue of the settlements must be part of the final status negotiations.

Michael Curtis is author of Jews, Antisemitism, and the Middle East.

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