Challenging the Long-Held Notion That Israeli Settlements Are ‘Illegal’

Sharona Schwartz

It’s an almost undisputed consensus in diplomatic circles and much of the media that Israeli settlements are “illegal” or “illegitimate.” In news organizations like Al Jazeera, the adjective and noun “illegal settlement” are practically inseparable.
Australia’s foreign minister, therefore, caused quite a stir last month when she suggested that settlements may not be illegal under international law and that people should stop calling them illegal until their status is determined by Israeli-Palestinian peace negotiations.
“I would like to see which international law has declared them illegal,” Foreign Minister Julie Bishop told the Times of Israel.

Construction in Ariel, an Israeli settlement. (Getty Images)

Her remark stirred outrage from Palestinians and their supporters. Chief Palestinian negotiator Saeb Erakat accused Bishop of trying to “reinvent international law,” writing in the Sydney Morning Herald that it “does not allow acquiring land through the use of force.”
But, as Bishop asked, is international law clear-cut?

U.S. Secretary of State John Kerry has referred to settlements as “illegitimate” — as did his predecessor Hillary Clinton — and unhelpful to the peace process. Similar assessments have been voiced by administrations prior to President Barack Obama’s and have not been limited to Democrats.
“Every administration in recent memory has said that the settlements are illegitimate,” State Department spokeswoman Jen Psaki said in November. “So it’s been a pretty consistent position for quite some time now.”
Palestinian negotiator Erakat, who called settlements “colonies” and settlement building activity a “war crime,” based the core of his argument on the 1949 Fourth Geneva Convention, which, he wrote, “prohibits Israel, as an occupying power, from directly or indirectly transferring its citizens into occupied Palestinian territory.”
The Geneva document reads: “[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Israel’s parliament held a hearing to discuss the legality issue which is a key talking point used by supporters of the Boycott, Divestment and Sanctions campaign against Israel and pro-Palestinian students spearheading the so-called “Israel Apartheid Week” which kicked off on U.S. campuses Monday.
“If you repeat a lie often enough, it becomes the truth,” Harel Arnon of the pro-settlement Legal Grounds Coalition told lawmakers. “One of the biggest lies, which is feeding the wild incitement campaign that Israel has been dealing with over the last few years, is that Israel is unlawfully occupying Judea and Samaria, and that the presence of the settlements and of Israelis in Judea and Samaria is a violation of international law.”
William Jacobson, professor at Cornell Law School and author of the blog Legal Insurrection, told TheBlaze in an email that there are “serious and substantial arguments that Israel does not illegally occupy the West Bank, as well as that Israel has not illegally transferred population into that territory.”
In a 2010 column for the American Interest, Nicholas Rostow, then-counsel and vice chancellor for legal affairs at the State University of New York and today director of the Center for Strategic Research at National Defense University’s Institute for National Strategic Studies, described five of the arguments made by those who disagree that the Geneva Convention prohibits Jewish Israelis from living legally in the West Bank and east Jerusalem.

A picture taken on November 3, 2013, shows the east Jerusalem settlement of Ramat Shlomo. (AFP/Getty Images/Ahmad Gharabli)

In their view, the Geneva Convention is inapplicable because under Article 2, the Convention applies only to territory that is occupied by “a High Contracting Party.” Because no country has a legally recognized claim to the “occupied territories,” the argument goes, the West Bank, Gaza and east Jerusalem do not belong to any contracting party.
Rostow wrote: “In making this argument, advocates of legality stress that the international community did not recognize Jordan’s annexation of the West Bank and that now Jordan has withdrawn its claim.”
Jordan formally annexed the West Bank and east Jerusalem in 1950. Rostow explained that only Britain and Pakistan recognized the annexation of the West Bank, but that Britain would not recognize the annexation of Jerusalem. The Arab states did not recognize Jordan’s annexation of both the West Bank and Jerusalem, decisions that contribute to today’s questions about ultimate ownership of the land.
A second argument for legality of settlements is that “even if the Geneva Convention does apply, it was not directed at the kind of activity undertaken by Israel,” Rostow wrote.
Morris Abram, a member of the U.S. staff at the Nuremberg Tribunal who contributed to the writing of the Fourth Geneva Convention, once said that Article 49 of the Geneva Convention was aimed at the Nazis’ forced transfer of large populations to concentration camps and was not designed to apply to Israeli settlements.
“Proponents of this view argue that the nature and extent of Israeli settlements in the West Bank do not threaten the native population and therefore would not violate the Geneva Convention even if it applied,” Rostow wrote.
Those who argue that settlements are legal make a third argument, Rostow said: that the Geneva Conventions do not prohibit Jewish settlements, because Britain’s “Palestine Mandate granted extensive rights to Jews in Palestine and that, until the final status of a particular area is resolved, there is no legal basis for barring Jews from settling there.”
Another argument for legality asserts that because Jordan, the previous holder of the West Bank and east Jerusalem, had seized the territory unlawfully “the state subsequently taking the territory in lawful exercise of self-defense has, against the unlawful prior holder, better title,” Rostow said. Israel captured both the West Bank and Jerusalem in defending itself from Jordan and other Arab armies during the 1967 war.
The fifth argument that Rostow detailed rests on Jews’ historical claim to the land of Israel as described in the Bible, and the Jews’ continuous historical presence in the land for thousands of years, though this is not an argument based on modern law.
The “illegal settlement” mantra is the cornerstone of the push by the Boycott, Divestment and Sanctions campaign and allied groups like Code Pink in their effort to convince consumers to boycott products manufactured in the West Bank, east Jerusalem and the Golan Heights. It has also been the basis of their criticism of actress Scarlett Johansson who joined the Israeli company SodaStream as a brand ambassador.
Daniel Mandel, director of the Zionist Organization of America’s Center for Middle East Policy, wrote in the Canberra Times this month that because Jewish settlers have not been transferred forcibly to communities in the West Bank, but rather wanted to move there, Article 49 of Geneva does not apply.
“Palestinians are not being deported from the West Bank to another territory. Nor are Jews being deported from Israel to the West Bank; they are moving of their own free will,” Mandel wrote.
Mandel supported the Australian foreign minister’s skepticism regarding the “flat-earth assertion” that settlements are illegal, writing:

The West Bank, illegally seized by Jordan in 1948, captured by Israel following Jordanian attack in 1967, is unallocated territory under international law. Only Israeli annexation or an Arab/Israeli agreement could alter its status – neither of which have occurred. In short, Article 49 has no bearing on the situation, as it deals solely with sovereign territories.
The original international decision at the 1920 San Remo Conference earmarking this territory for Jewish settlement has never been superseded by an internationally binding agreement. The 1947 UN partition plan, which sought to create Arab and Jewish states, could have been such an agreement, but it was rejected by the Arab powers and Palestinian Arabs. Being a UN General Assembly resolution, the plan had no legal force of its own.

Last year, Jacobson, the Cornell professor, directed readers to what he described as “one of the best explanations” of the legal status of the disputed territories, delivered by Northwestern University law professor Eugene Kontorovich.
“He puts the lie to the currently fashionable notion that the ‘1967 borders’ have any legal or historical significance, and demonstrates that Israel does not ‘illegally occupy’ the West Bank.  In fact, it was Jordan which illegally occupied the West Bank prior to 1967,” Jacobson wrote.
Pro-Israel blogger Elder of Ziyon who attended Kontorovich’s 2012 lecture wrote of the presentation that decades of decisions by international players and armistice agreements such as in 1949 failed to establish legal borders and therefore do not offer incontrovertible backing to Palestinian claims to ownership of the West Bank and east Jerusalem.
That point was echoed in Rostow’s survey in the American Interest: “Since 1949, despite several wars, innumerable U.N. resolutions, and endless argument about the relative merits of claims to the lands of the Mandate, the status of the West Bank, Gaza and Jerusalem has never been resolved finally as a legal matter.”
“If the Arabs had accepted the 1947 Partition Plan, then the further partition of Palestine into an Arab and Jewish state would have legal weight. But since they didn’t, the Jewish claim on all of Palestine remained in force,” Elder of Ziyon wrote, summarizing one of Kontorovich’s explanations. “Kontorovich said that there is a big question in international law about whether one can legally acquire territory via conquest in a defensive war. He looked up five sources written before 1967 on the question; two said yes, two said no and one didn’t think about it.”
Those supporting the notion that settlements are legal also cite the 1967 U.N. Security Council Resolution 242 which called for “withdrawal of Israeli armed forces from territories occupied in the recent conflict.” They note that the phrase used was “territories occupied” not “the territories occupied,” leaving open the exact boundaries to which Israel was being called on to withdraw.
In 2004, the U.N.’s International Court of Justice gave an advisory opinion that Israeli settlements are illegal. The website Myths and Facts presented arguments here about why it believes that decision was misguided.
Emphasizing the power of words, Myths and Facts described the evolution of U.N. resolution phrasing which gradually adopted as fact Palestinian ownership of land that as some legal scholars have suggested, may not be an established fact.
“Examination reveals how over the years U.N. General Assembly resolutions and the wording of resolutions by sub-committees moves from ‘territories’ to ‘occupied territories’ to ‘Occupied Territories’ and ‘Arab territories’ to ‘occupied Palestinian territories’ to ‘Occupied Palestinian Territory’ and ‘occupied Palestinian territory, including Jerusalem,’” the site wrote.