“Israeli settlements in the West Bank are illegal under international law….”

Published: 19 November 2009
Briefing Number 247



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Summary:  It is almost universally believed that Israeli settlements in the West Bank are illegal under international law.  This claim is made automatically by  politicians, journalists, non-governmental organisations, and, of course, by the Palestinians and the entire Arab world.  The claim is built on four arguments:-

  1. that Israel illegally occupies the West Bank;
  2. that that land was sovereign Palestinian land at the time Israel took over;
  3. that Jews have no legal right to settle on that occupied Palestinian land;
  4. and that Israeli settlements violate the Geneva Convention of 1949.       

This Beyond Images Briefing provides responses to these arguments, showing:

  1. that Israel’s entry into the West Bank in 1967 was lawful;
  2. that that territory was not sovereign Palestinian territory at that time;
  3. that Jews have a legal right to settle in the West Bank, and that it is a political, diplomatic and ethical question whether they do so or not; and
  4. that settlement activity is not a violation of the Geneva Convention.

Why it is such a significant diplomatic issue:  The claim that “all Israeli settlements are illegal” is misconceived.  But because it is so widely believed, the Palestinians and the Arab world have no incentive to achieve territorial compromise.  They argue that international law demands the uprooting of all Israeli settlements, and that they should not have to be flexible on this matter.  The claim that “all settlements are illegal” is thus fatal to a negotiated two-state solution involving land swaps, and far-reaching territorial compromise.

The conventional wisdom about the ‘illegal settlements’

“We regard all settlements in the occupied territories as illegal under international law….”

  • Bill Rammell, British Minister of State in the Foreign and Commonwealth Office, in the UK parliament on 11 November 2008.

 
The statement is made routinely by Western politicians, journalists, expert commentators, NGOs, as well as by all the Palestinians and across the entire Arab world.  But is it correct? 

We outline four main arguments upon which the claim is built, and provide counter-arguments.

Argument 1: ‘The West Bank is land illegally occupied by Israel…..’

It is routinely assumed that Israel’s presence on the West Bank is an “illegal occupation”.  This is in fact not the case.

  • Summary: Israel’s presence in the West Bank today is not illegal under international law. Israel entered the West Bank lawfully in June 1967 in the exercise of its right of self-defence against Jordanian attack.  The occupation in and of itself is not unlawful.     
  • In November 1947, the United Nations had voted to divide mandatory Palestine (then administered by Britain) into a sovereign Jewish state and a sovereign Arab state – a two-state solution.  The Jewish leadership accepted this plan. The Arab leadership did not.
  • In 1948-49, Israel fought its war of independence against the Arab residents of Mandatory Palestine, and five neighbouring states.  In 1950,  Jordan illegally annexed the West Bank, of which it had taken control in the course of the war.  
  • In June 1967, Jordan launched a massive bombardment of civilian Israeli targets from the West Bank on the first day of the Six Day War (see Beyond Images Briefing 103), and despite appeals from Israel to Jordan to stay out of the war which had started with Egypt.
  • As a sovereign state, and member of the UN, Israel has a right of self-defence under the UN Charter against attack by another sovereign state.
  • Exercising that right, Israeli armed forces entered the West Bank to defend itself against the Jordanian assault. That is how the current ‘occupation’ began.
  • Israel is obliged under international law to withdraw from territories (not all territories) occupied in 1967 in accordance with UN Security Council Resolution 242, in the context of a negotiated peace agreement with its neighbours which recognises Israel’s legitimate security needs, and the need for defensible borders.  
  • Within weeks of the 1967 war, Israel had already proposed to withdraw from most of the West Bank – but this and many other steps were rebuffed by the Arab states. 
  • Israel’s subsequent Camp David Peace Accords with Egypt in 1978, and its total withdrawal from the Sinai peninsula in 1982, marked a partial fulfilment of UN Resolution 242.     
  • Resolution 242, which is the centrepiece of relevant international law on this topic, does not require Israeli withdrawal from all West Bank territory.
  • Thus, Israel’s entry into the West Bank was lawful. And its continued presence there is lawful too.  It is for all the parties to the conflict to reach a negotiated peace agreement under which Israel would withdraw. 
Argument 2: ‘The land was sovereign Palestinian land when Israel took over…’
  • The West Bank territory which Israel entered in 1967 was not sovereign Palestinian territory.

  • It formed part of Mandatory Palestine until 1948.  The Arabs rejected the partition plan approved by the UN which would have assured the permanent status of the West Bank as Palestinian sovereign territory.
  • No independent Palestinian Arab state was created in the West Bank between 1950 and 1967 either, when Jordan controlled that territory.  At the same time, Jews were completely barred by Jordan from the West Bank,  from East Jerusalem and from the old City of Jerusalem (the holiest site in the Jewish world).
  • In 2009, over 60 years after the UN partition plan, the final legal status of the West Bank – its sovereignty and the permanent, internationally recognised borders of Israel and a future state of Palestine – has not been resolved.  Israel has legitimate claims in relation to the territory too (see section (iii) below)
  • For these reasons, the West Bank is properly regarded as “disputed territory” rather than “occupied Palestinian land”, which it is always called, and which implies some prior Palestinian sovereignty which in fact has never existed.
Argument 3: ‘The Jewish people have no right to settle in the West Bank…’

Even if the territories were lawfully entered by Israel in 1967, and even if the land was not Palestinian sovereign land at the time, why should Israel be entitled to build settlements there now? 
 

  • The Jewish people have had an unbroken connection with the Land of Israel stretching back for over 3000 years (see Beyond Images Briefing 1 - Israel and the Jewish people: the 3500 year connection).  That connection is part of Jewish values, heritage and history.
  • The West Bank is not alien territory for the Jewish people, but the very heart of the territorial connection.  Even secular Israelis on the left of centre of Israeli politics acknowledge this connection.   
  • This does not mean that Israelis wish to retain the entire West Bank, or that it would be right or justified to do so. There is now a consensus in Israel that this cannot and should not happen.  But this is because of  politics, diplomacy, ethics and pragmatism.  It is not because Jewish settlement in the West Bank is illegal per se.       
  • The international community formally recognised the legality of Jewish settlement activity in the area now called the West Bank as far back as 1920.  
  • During the decades before Israel’s independence in 1948, thousands of returning Jews had been building up an embryonic state in British-administered mandatory Palestine.
  • In 1920, the League of Nations (the predecessor to the United Nations) defined the terms of the British Mandate over Palestine. Article 6 of the Mandate states:-

“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, in cooperation with the Jewish agency referred to in Article 4, close settlement by Jews on the land [Beyond Images emphasis], including state lands not required for public use….”

  • The territory to which this refers includes the area between the Jordan River and the Mediterranean Sea ie including the modern ‘West Bank’.
  • During the period 1920-1948 (ie before Israel was re-established), Jews settled in locations like Neve Ya’acov, the Etzion Bloc and other areas in the West Bank.  Meanwhile, Jews had had a virtually uninterrupted presence in the West Bank town of Hebron for well nearly 2000 years.  Hebron and other West Bank towns play a significant role in the Jewish national heritage.  Jews moving to live in these places were not carrying out “illegal settlement”.  They returned there lawfully, and their presence was considered legitimate by the Mandatory powers and the international community.
  • The presence of Jews in these locations was often ended by massacres carried out by Arabs (for example the Hebron massacre of 1929, and the Etzion Bloc massacre of 1948).
  • But neither massacre, nor the Jordanian policy of refusing all Jews entry between 1950 and 1967, can extinguish the right of Jews to settle there, and their connection.    
  • Some Israeli settlements on the West Bank are considered ‘illegal’ by the Israelis themselves, namely the so-called ‘illegal outposts’ which are usually just portacabins or tents.  But that is because those Jews establishing them – usually as an act of defiance following a Palestinian terrorist attack against Israeli civilians – have flouted Israeli administrative law relating to the territories in the way they have built them. It is not because the presence of Jews in the territories is illegal under international law.
  • Furthermore, Israel is obliged under the diplomatic accord reached in 2003, and known as the Road Map for Peace, to freeze settlement activity. But that is an agreement with the Palestinian Authority, under which the Palestinians also have obligations.  Israel’s commitment to freeze settlement activity has nothing to do with the legality of settlements per se.  Israel argues that the Road Map is a two-way accord, and that the Palestinians’ blatant non-compliance with its obligations means that Israel cannot be expected to comply by itself         
Argument 4: ‘Israel’s West Bank settlements violate the Fourth Geneva Convention…..’

But what about the Geneva Convention?

A further argument for why Israel’s settlements are supposedly “illegal” is that they violate Article 49 of the Fourth Geneva Convention on the Protection of Civilian Persons In Time of War, which was enacted in 1949.

Summary of response: This Article has been seriously misrepresented by those who argue that Israeli settlements violate it. It was enacted for a completely different purpose.    

Article 49 applies between states – ie so-called ‘High Contracting Parties’.  It forbids a sovereign state from “deporting or transferring parts of its own civilian population into the territory it occupies”. Earlier on the Article describes such transfers as “forcible transfers”.   The purpose of the Article, according to the International Red Cross guidance (see www.icrc.org, cited by the Israeli Foreign Ministry), has always been to protect civilian populations from being forcibly relocated against their will by their own country into the territory of a state which had been conquered.    

  •    The West Bank is not a ‘High Contracting State’: Firstly, the territory to which the settlers have moved is, as we explained the response to argument 2 above, not sovereign Palestinian territory, but “disputed territory” whose final status has still to be decided by agreement.  The Geneva Convention applies to the territory of High Contracting States – ie recognised sovereign states.  It is highly questionable whether the Fourth Geneva Convention applies even in principle to such territory.
  • It is forcible transfers of civilian populations to occupied territory, not voluntary settlement, which is made unlawful:  Even if the Geneva Convention does apply, Article 49 was enacted to prevent an occupying power from forcibly moving part of its own population against their will to another sovereign territory.  Germany had done this repeatedly before and during the Second World War, when it carried out forced population transfers of German nationals into occupied Poland, Czechoslovakia and Hungary.  Article 49 was designed to render such acts illegal in the future.  But the Israeli settlers move voluntarily – they have not been coerced into doing so.    
  • The Article applies to the movement of a civilian population into genuinely alien territory, not territory from which they were criminally expelled:   Article 49 does not render illegal the return of civilian populations to places from which they were criminally ousted in the first place (eg Jews re-establishing a presence in Kfar Etzion or in Hebron)
  • There has been no displacement of Palestinians as a result of settlements as such: It is implicit in Article 49 that the forcible transfer needs to force out parts of the previously present population, and replace them with the alien population.  But Palestinians have not been forcibly displaced as a result of Jewish settlements. The Palestinian Arab population of the West Bank has soared during the 42 years that Israel has been present in the territories, as has Palestinian Arab life expectancy.  There has been no replacement of the Palestinian Arabs by the Jews, nor forced expulsion.   

The establishment of Jewish settlements in the West Bank is thus not a violation of the 1949 Geneva Convention.  Article 49, properly read and interpreted, has no application to the Jewish settlements.  It was enacted for a completely different purpose. 

Why does the issue matter?

The claim that “all Israeli settlements are illegal” is misconceived.  But because it is so widely believed, the Palestinians and the Arab world have no incentive to achieve territorial compromise.  They argue that international law demands the uprooting of all Israeli settlements, and that they should not have to be flexible on this matter.  The claim that “all settlements are illegal” is thus fatal to a negotiated two-state solution involving land swaps and far-reaching territorial compromise.

Related Beyond Images Briefings

‘Why settlements? Israeli arguments for and against’ – Briefing 25, July 2003

1967: Why Israel entered the West Bank’ – Briefing 103, dated 21 October 2004