The Israeli Settlements in the West Bank

Say it over and over again, and never stop saying it.  It is a truth that should be universally acknowledged that Israeli settlements in the West Bank are not the central nor the only problem preventing a peace process to resolve the Israeli-Palestinian conflict. Other factors -- Arab terrorism, refugees, Jerusalem, Iran -- can be considered as equal or more important.  Nevertheless, the conviction that Jewish settlements in the West Bank (Judea and Samaria) are illegal and violate international law are "imprudent" is widespread in the international community.

One example of this conviction was the speech of President Barack Obama in Cairo on June 4, 2009, stating the U.S. does not accept the legitimacy of continued Israeli settlements, "it is time for these settlements to stop," The U.S. abstained from voting on UN Security Council 2334, passed 14-0 on December 23, 2016, which condemned  Israeli settlements in the occupied Palestinian territories  including East Jerusalem as "flagrant violation" of International Law and said they had "no legal validity." The UNSC and other UN bodies on many occasions have held the settlements are a major obstacle to the achievement of a two-state solution and to a just, lasting, and comprehensive peace.

A new book, Israeli Settlements: Land Politics Beyond the Geneva Convention by Martin Blecher, a Swedish political scientist, challenges this conviction, while in unusual fashion not accepting or rejecting its validity. He does not clearly answer whether the settlements are illegal or imprudent but remains concerned with issues of land laws and ownership, issues that have been neglected.

Blecher argues that much of the legal case against Israel is based on two sources in international law. One is the Hague Regulations (International Committee of the Red Cross, ICRC) of October 18, 1907, intended to protect the interests of an ousted sovereign in a short-term occupation. The second is the Fourth Geneva Convention (ICRC) of August 12, 1949, designed specifically to protect civilians during wartime.

Blecher correctly argues two points: the issue of the settlements has been politicized through a particular understanding of Geneva; and an essential factor, the land laws in West Bank that were based on legal principles set up prior to Geneva, have been neglected.  The fundamental question is why Article 49 of Geneva Convention has been given such centrality and prominence in discussion of the settlements while Article 43 of Hague has usually been neglected or omitted. 

A few words are necessary to explain. Article 49 (1) states that individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power... are prohibited. Article 49 (6) states that the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.  Article 43 of Hague states that the authority of the occupying power shall restore and ensure public order and safety while respecting the laws in the country.

Blecher is not the first to challenge the use of and reliance on Geneva made by critics of Israel. For example, Morris Abrams, a prominent U.S. lawyer who was involved in drafting Geneva, argued that it was designed not to cover situations like the presence of Israel in the Occupied Territories, but rather the forcible transfer, deportation, or resettlement of large numbers of people.  In his highly academic and convoluted work, largely addressed to fellow scholars rather than to practicing politicians, Blecher tries to explain why the settlements have been and are viewed in the way they are. 

Indirectly, he touches on the question of whether Israel is stealing land from the Palestinians.  He discusses among other matters the historical background to Israeli land policy, the Zionist emphasis on public, not private ownership of land, collective land ownership that belongs to the Jewish people as a whole, Zionist ideology focusing on agricultural policies, the decisions of Israeli Supreme Court jurisprudence, the views of U.S. presidents from Lyndon Johnson to Donald Trump, and above all the complex laws and regulations on the subject.

To this end of gaining insight into the complexity of land policies Blecher surveys old land laws, a heritage from the Ottoman Empire, categories of the legal status of different parts of the land that remained under the British Mandate (1922-48), and still are present in the State of Israel. True understanding of the issue involves analysis of the various articles and laws.  He deplores the fact that analysts mostly look at the settlements issue from one specific legal article when a number of other factors are pertinent.  One is that there was no comprehensive regulation of the West Bank available in 1967, and only one-third of the land had been registered. A second is that any land that is uncultivated or uncultivable and is not private land is therefore state land; today 60% of the West Bank is not cultivable. A third is that the Israel Land Authority (ILA), leases property for 49 years rather than selling it outright. A fourth is that the settlements, according to the Israeli Supreme Court, may be legitimate for security purposes.

Blecher does not venture his own opinion on whether the settlements are legitimate according to Geneva Article 49, but is more interested how the settlements are viewed by commentators. Blecher maintains that the highly controversial issue of Israeli settlements and land policies should be examined not simply through Geneva but also through Hague and by considering laws and regulations of different judiciaries, British and Jordanian connected with the West Bank, and especially Ottoman land laws, that have been neglected in discussion of the issue.  His hope is that his contribution will open the path to future scholars who will examine Israeli settlement policies in the context of different legal sources.

He points out the obvious: at no point in history has Jerusalem or the West Bank been under any form of Palestinian Arab sovereignty. His starting point is that few who deal with the issue recognize the importance of land laws and policies, including the old land laws on the legal status of different parts of the land from the Ottoman Empire, in the West Bank were based on legal principles in effect before Geneva. Blecher considers those regulations in comparative perspective.

We know that Israel is held to a different standard than other territories, Russia/Crimea, Morocco/West Sahara, Turkey/North Cyprus.  Geneva Article 49, (6) has never been invoked regarding any other occupation.

He also views it in the context of other parameters and policies, such as land laws, ownership, and the respect of laws in force in the occupied territory. The Geneva Convention was specially directed against a recurrence of Nazi and Soviet practices during World War II -- the transfer of people to occupied territory for political, racial or colonization reasons. Israel says it is not relevant to its own case: Israeli settlers have not been deported or transferred. Using Article 49 is akin to equating Israeli land policy, in relation to Israeli citizens, Bedouins and Arabs, with Nazi ideology.

Moreover, two other factors are pertinent. Zionist ideology was important on this issue.  Land occupied a central position in the Zionist policy of public land ownership, common and inalienable property of the Jewish people exemplified by Jewish National Fund (1901) according to which land was inalienable and is now on a 49-year lease. Israel's security is relevant. If the settlements have military purposes, they have been considered legal.

The complexity and discussion of settlements remains.  Blecher skirts and ducks some issues, but his book, if scholarly, lays out the case for understanding the rationale behind land policies. and the arguments made by Israeli authorities and judiciary in an area, the West Bank, in which Jews have been historically present.

Whether the West Bank is "occupied" or "disputed" land is still an open question, but objective decision should take into account the factors dealt with in Blecher's book.