Israeli Settlements and International Law
The Historical Context
Jewish settlement in West Bank and Gaza Strip territory has existed from time immemorial and was expressly recognized as legitimate in the Mandate for Palestine adopted by the League of Nations, which provided for the establishment of a Jewish state in the Jewish people's ancient homeland. Indeed, Article 6 of the Mandate provided as follows:
"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, including State lands not required for public use".
Some Jewish settlements, such as in Hebron, existed throughout the centuries of Ottoman rule, while settlements such as Neve Ya'acov, north of Jerusalem, the Gush Etzion bloc in Judea and Samaria, the communities north of the Dead Sea and Kfar Darom in the Gaza region, were established under British Mandatory administration prior to the establishment of the State of Israel. To be sure, many Israeli settlements have been established on sites, which were home to Jewish communities in previous generations, in an expression of the Jewish people's deep historic and religious connection with the land.
For more than a thousand years, the only administration which has prohibited Jewish settlement was the Jordanian occupation administration, which during the nineteen years of its rule (1948-1967) declared the sale of land to Jews a capital offense. The right of Jews to establish homes in these areas, and the legal titles to the land which had been acquired, could not be legally invalidated by the Jordanian or Egyptian occupation which resulted from their armed invasion of Israel in 1948, and such rights and titles remain valid to this day.
International Humanitarian Law in the West Bank and Gaza Strip
International humanitarian law prohibits the forcible transfer of segments of the population of a state to the territory of another state, which it has occupied as a result of the resort to armed force. This principle, which is reflected in Article 49 of the Fourth Geneva Convention, was drafted immediately following the Second World War. As International Red Cross' authoritative commentary to the Convention confirms, the principle was intended to protect the local population from displacement, including endangering its separate existence as a race, as occurred with respect to the forced population transfers in Czechoslovakia, Poland and Hungary before and during the war. This is clearly not the case with regard to the West Bank and Gaza.
The attempt to present Israeli settlements as a violation of this principle is clearly untenable. As Professor Eugene Rostow, former Under-Secretary of State for Political Affairs has written: "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there" (AJIL, 1990, vol. 84, p.72).
The provisions of the Geneva Convention regarding forced population transfer to occupied sovereign territory cannot be viewed as prohibiting the voluntary return of individuals to the towns and villages from which they, or their ancestors, had been ousted. Nor does it prohibit the movement of individuals to land which was not under the legitimate sovereignty of any state and which is not subject to private ownership. In this regard, Israeli settlements have been established only after an exhaustive investigation process, under the supervision of the Supreme Court of Israel, designed to ensure that no communities are established on private Arab land.
It should be emphasized that the movement of individuals to the territory is entirely voluntary, while the settlements themselves are not intended to displace Arab inhabitants, nor do they do so in practice.
Repeated charges regarding the illegality of Israeli settlements must therefore be regarded as politically motivated, without foundation in international law. Similarly, as Israeli settlements cannot be considered illegal, they cannot constitute a "grave violation" of the Geneva Convention, and hence any claim that they constitute a "war crime" is without any legal basis. Such political charges cannot justify in any way Palestinian acts of terrorism and violence against innocent Israelis.
Politically, the West Bank and Gaza Strip is best regarded as territory over which there are competing claims which should be resolved in peace process negotiations. Israel has valid claims to title in this territory based not only on `its historic and religious connection to the land, and its recognized security needs, but also on the fact that the territory was not under the sovereignty of any state and came under Israeli control in a war of self-defense, imposed upon Israel. At the same time, Israel recognizes that the Palestinians also entertain legitimate claims to the area. Indeed, the very fact that the parties have agreed to conduct negotiations on settlements indicated that they envisage a compromise on this issue.
Letter to Ha'aretz newspaper on this subject:
Letter for publication
Sub: Settlements and International Law (Moshe Gorali: "Legality is in the Eye of the Beholder" - 7 October)
Moshe Gorali's article "Legality is in the Eye of the Beholder" (7 October) buries the straightforward international law relating to the settlements in unnecessary complexity.
As Gorali notes, the current assertion that the settlements are illegal is based on the paragraph (6) of Article 49 of the Fourth Geneva Convention which provides that "The occupying Power shall not deport or transfer parts of its own civilian population into territory it occupies." However under Article 2, the Convention applies only "to cases of . occupation of the territory of a High Contracting Party, by another such Party". The result is that, since the Territories do not belong to any other sovereign state, Israel is not an occupying Power within the meaning of the Convention, which simply does not apply.
It is also significant that the aim of the Fourth Geneva Convention is to provide humanitarian protection in occupied territory. Article 49 contributes to this aim by outlawing the forceful deportation or transfer of unwilling populations. This does not apply to the settlements, and no other serious humanitarian consideration of the type contemplated by the Convention arises.
It follows that charges of illegality, inflated to "war crimes", levied against the settlements, are mere propaganda.
None of this implies any judgment about the advisability of the existing settlements, the future of which is in any case reserved for the final status negotiations under the Oslo Accords. Meanwhile future settlement activity is arguably governed by the interim power-sharing agreements under the Accords, which is another question altogether.