Israeli settlements and international law
Legal position paper, Israel Foreign Ministry, May 20, 2001
The Historical Context
– Jewish settlement in West Bank and Gaza Strip territory has existed from time
immemorial and was expressly recognised 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 emphasised 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.
Israeli-Palestinian Agreements
– The agreements reached between Israel and the Palestinians contain no
prohibition whatsoever on the building or expansion of settlements. On the
contrary, it is specifically provided that the issue of settlements is reserved for
permanent status negotiations, which are to take place in the concluding stage
of the peace talks.
Indeed, the parties expressly agreed that the Palestinian Authority has no
jurisdiction or control over settlements or Israelis, pending the conclusion of a
permanent status agreement.
– It has been charged that the prohibition on unilateral steps which alter the
“status” of the West Bank and Gaza Strip, which is contained in the Interim
Agreement and in subsequent agreements between the parties, implies a ban on
settlement activity.
This position is disingenuous. The building of homes has no effect on the
status of the area. The prohibition on unilateral measures was agreed upon in
order to ensure that neither side take steps to change the legal status of this
territory (such as by annexation or unilateral declaration of statehood), pending
the outcome of permanent status negotiations.
Were this prohibition to be applied to building, it would lead to the
ridiculous interpretation that neither side is permitted to build homes to
accommodate for the needs of their respective communities.
– It is important to note, that in the spirit of compromise and in an attempt to
take constructive confidence building measures in the peace process,
successive Israeli governments have expressly recognized the need for
territorial compromise in West Bank and Gaza Strip territory and have voluntary
adopted a freeze on the building of new settlements.
In this regard, the present National Unity Government, under Prime
Minister Ariel Sharon, has officially declared that it will not build any new
settlements, while remaining committed to the basic needs of the existing
settlement communities (Government of Israel, Policy Guidelines, March 2001).
Are Israel’s Settlements Legal?
By the late Eugene W. Rostow
This article ran in “The New Republic”, on October 21, 1991
Assuming the Middle East conference actually does take place, its official task will be to achieve
peace between Israel and its Levantine neighbors in accordance with Security Council
Resolutions 242 and 338. Resolution 242, adopted after the Six-Day War in 1967, sets out
criteria for peace-making by the parties; Resolution 338, passed after the Yom Kippur War in
1973, makes resolution 242 legally binding and orders the parties to carry out its terms
forthwith.
Unfortunately, confusion reigns, even in high places, about what those resolutions require.
For twenty-four years Arab states have pretended that the two resolutions are “ambiguous” and
can be interpreted to suit their desires. And some European, Soviet and even American officials
have cynically allowed Arab spokesman to delude themselves and their people–to say nothing of
Western public opinion–about what the resolutions mean. It is common even for American
journalists to write that Resolution 242 is “deliberately ambiguous,” as though the parties are
equally free to rely on their own reading of its key provisions.
Nothing could be further from the truth. Resolution 242, which as undersecretary of state for
political affairs between 1966 and 1969 I helped produce, calls on the parties to make peace
and allows Israel to administer the territories it occupied in 1967 until “a just and lasting peace
in the Middle East” is achieved. When such a peace is made, Israel is required to withdraw its
armed forces “from territories” it occupied during the Six-Day War–not from “the” territories nor
from “all” the territories, but from some of the territories, which included the Sinai Desert, the
West Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.
Five-and-a-half months of vehement public diplomacy in 1967 made it perfectly clear what the
missing definite article in Resolution 242 means. Ingeniously drafted resolutions calling for
withdrawals from “all” the territories were defeated in the Security Council and the General
Assembly. Speaker after speaker made it explicit that Israel was not to be forced back to the
“fragile” and “vulnerable” Armistice Demarcation Lines, but should retire once peace was made
to what Resolution 242 called “secure and recognized” boundaries, agreed to by the parties.
In negotiating such agreements, the parties should take into account, among other factors,
security considerations, access to the international waterways of the region, and, of course,
their respective legal claims.
Resolution 242 built on the text of the Armistice Agreements of 1949, which provided (except
in th case of Lebanon) that the Armistice Demarcation Lines separating the military forces were
“not to be construed in any sense” as political or territorial boundaries, and that “no provision”
of the Armistice Agreements “Shall in any way prejudice the right, claims, and positions” of the
parties “in the ultimate peaceful settlement of the Palestine problem.” In making peace with
Egypt in 1979, Israel withdrew from the entire Sinai, which had never been part of the British
Mandate.
For security it depended on patrolled demilitarization and the huge area of the desert rather than
on territorial change. As a result, more than 90 percent of the territories Israel occupied in 1967
are now under Arab sovereignty. It is hardly surprising that some Israelis take the view that
such a transfer fulfills the territorial requirements of Resolution 242, no matter how narrowly
they are construed.
Resolution 242 leaves the issue of dividing the occupied areas between Israel and its neighbors
entirely to the agreement of the parties in accordance with the principles it sets out. It was,
however, negotiated with full realization that the problem of establishing “a secure and
recognized” boundary between Israel and Jordan would be the thorniest issue of the
peace-making process.
The United States has remained firmly opposed to the creation of a third Palestinian state
on the territory of the Palestine Mandate. An independent Jordan or a Jordan linked in an
economic union with Israel is desirable from the point of view of everybody’s security and
prosperity. And a predominantly Jewish Israel is one of the fundamental goals of Israeli policy. It
should be possible to reconcile these goals by negotiation, especially if the idea of an economic
union is accepted.
The Arabs of the West Bank could constitute the population of an autonomous province of
Jordan or of Israel, depending on the course of the negotiations.
Provisions for a shift of populations or, better still, for individual self-determination are a possible
solution for those West Bank Arabs who would prefer to live elsewhere. All these approaches
were explored in 1967 and 1968. One should note, however, that Syria cannot be allowed to
take over Jordan and the West Bank, as it tried to do in 1970.
The heated question of Israel’s settlements in the West Bank during the occupation period
should be viewed in this perspective. The British Mandate recognized the right of the Jewish
people to “close settlement” in the whole of the Mandated territory. It was provided that local
conditions might require Great Britain to “postpone” or “withhold” Jewish settlement in what is
now Jordan. This was done in 1992.
But the Jewish right of settlement in Palestine west of the Jordan river, that is, in Israel,
the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never
been terminated and cannot be terminated except by a recognized peace between Israel and its
neighbors.
And perhaps not even then, in view of Article 80 of the U.N. Charter, “the Palestine
article,” which provides that “nothing in the Charter shall be construed . . to alter in any manner
the rights whatsoever of any states or any peoples or the terms of existing international
instruments . . .”
Some governments have taken the view that under the Geneva Convention of 1949, which
deals with the rights of civilians under military occupation, Jewish settlements in the West Bank
are illegal, on the ground that the Convention prohibits an occupying power from flooding the
occupied territory with its own citizens. President Carter supported this view, but President
Reagan reversed him, specifically saying that the settlements are legal but that further
settlements should be deferred since they pose a psychological obstacle to the peace process.
In any case, the issue of the legality of the settlements should not come up in the proposed
conference, the purpose of which is to end the military occupation by making peace. When the
occupation ends, the Geneva Convention becomes irrelevant. If there is to be any division of the
West Bank between Israel and Jordan, the Jewish right of settlement recognized by the Mandate
will have to be taken into account in the process of making peace.
This reading of Resolution 242 has always been the keystone of American policy. In launching a
major peace initiative on September 1, 1982, President Reagan said, “I have personally followed
and supported Israel’s heroic struggle for survival since the founding of the state of Israel
thirty-four years ago: in the pre-1967 borders, Israel was barely ten miles wide at its narrowest
point. The bulk of Israel’s population lived within artillery range of hostile Arab armies. I am not
about to ask Israel to live that way again.”
Yet some Bush administration statements and actions on the Arab-Israeli question, and
especially Secretary of State James Baker’s disastrous speech of May 22, 1989, betray a strong
impulse to escape from the resolutions as they were negotiated, debated, and adopted, and
award to the Arabs all the territories between the 1967 lines and the Jordan river, including East
Jerusalem. The Bush administration seems to consider the West Bank and the Gaza Strip to be
“foreign” territory to which Israel has no claim. Yet the Jews have the same right to settle there
as they have to settle in Haifa.
The West Bank and the Gaza Strip were never parts of Jordan, and Jordan’s attempt to annex
the West Bank was not generally recognized and has now been abandoned. The two parcels of
land are parts of the Mandate that have not yet been allocated to Jordan, to Israel, or to any
other state, and are a legitimate subject for discussion.
The American position in the coming negotiations should return to the fundamentals of policy
and principle that have shaped American policy towards the Middle East for three-quarters of a
century. Above all, rising above irritation and pique, it should stand as firmly for fidelity to law in
dealing with the Arab-Israeli dispute as President Bush did during the Gulf war. Fidelity to law is
the essence of peace, and the only practical rule for making a just and lasting peace.
Historical approach to the issue of legality of Jewish settlement activity
By the late Eugene W. Rostow
This article appeared in The New Republic on April 23, 1990
. . . The Jewish right of settlement in the West Bank is conferred by the same provisions of the
Mandate under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel
was created. The Mandate for Palestine differs in one important respect from the other League
of Nations mandates, which were trusts for the benefit of the indigenous population.
The Palestine Mandate, recognizing “the historical connection of the Jewish people with
Palestine and the grounds for reconstituting their national home in that country,” is dedicated to
“the establishment in Palestine of a national home for the Jewish people, it being clearly
understood that nothing should be done which might prejudice the civil and religious rights of
existing nonjewish communities in Palestine, or the rights and political status enjoyed by Jews in
any other country.”
The Mandate qualifies the Jewish right of settlement and political development in Palestine in
only one respect. Article 25 gave Great Britain and the League Council discretion to “postpone”
or “withhold” the Jewish people’s right of settlement in the TransJordanian province of
Palestine-now the Kingdom of Jordan-if they decided that local conditions made such action
desirable.
With the divided support of the council, the British took that step in 1922.
The Mandate does not, however, permit even a temporary suspension of the Jewish right of
settlement in the parts of the Mandate west of the Jordan River.
The Armistice Lines of 1949, which are part of the West Bank boundary, represent nothing but
the position of the contending armies when the final cease-fire was achieved in the War of
Independence. And the Armistice Agreements specifically provide, except in the case of
Lebanon, that the demarcation lines can be changed by agreement when the parties move from
armistice to peace. Resolution 242 is based on that provision of the Armistice Agreements and
states certain criteria that would justify changes in the demarcation lines when the parties make
peace.
Many believe that the Palestine Mandate was somehow terminated in 1947, when the British
government resigned as the mandatory power. This is incorrect. A trust never terminates when
a trustee dies, resigns, embezzles the trust property, or is dismissed. The authority responsible
for the trust appoints a new trustee, or otherwise arranges for the fulfillment of its purpose.
Thus in the case of the Mandate for German South West Africa, the International Court
of justice found the South African government to be derelict in its duties as the mandatory
power, and it was deemed to have resigned. Decades of struggle and diplomacy then resulted in
the creation of the new state of Namibia, which has just come into being.
In Palestine the British Mandate ceased to be operative as to the territories of Israel and
Jordan when those states were created and recognized by the international community. But its
rules apply still to the West Bank and the Gaza Strip, which have not yet been allocated either to
Israel or to Jordan or become an independent state.
Jordan attempted to annex the West Bank in 1951, but that annexation was never generally
recognized, even by the Arab states, and now Jordan has abandoned all its claims to the
territory.
The State Department has never denied that under the Mandate “the Jewish people” have the
right to settle in the area. Instead, it said that Jewish settlements in the West Bank violate
Article 49 of the Fourth Geneva Convention of 1949, which deals with the protection of civilians
in wartime.
Where the territory of one contracting party is occupied by another contracting party, the
Convention prohibits many of the inhumane practices of the Nazis and the Soviets before and
during the Second World War-the mass transfer of people into or out of occupied territories for
purposes of extermination, slave labor, or colonization, for example.
Article 49 provides that the occupying power “shall not deport or transfer part of its own civilian
population into the territory it occupies.”
But the Jewish settlers in the West Bank are volunteers. They have not been “deported” or
“transferred” by the government of Israel, and their movement involves none of the atrocious
purposes or harmful effects on the existing population the Geneva Convention was designed to
prevent.
Furthermore, the Convention applies only to acts by one signatory “carried out on the territory
of another.” The West Bank is not the territory of a signatory power, but an unallocated part of
the British Mandate. It is hard, therefore, to see how even the most literal-minded reading of the
Convention could make it apply to Jewish settlement in territories of the British Mandate west of
the Jordan River.
Even if the Convention could be construed to prevent settlements during the period of
occupation, however, it could do no more than suspend, not terminate, the rights conferred by
the Mandate. Those rights can be ended only by the establishment and recognition of a new
state or the incorporation of the territories into an old one.
As claimants to the territory, the Israelis have denied that they are required to comply with the
Geneva Convention but announced that they will do so as a matter of grace. The Israeli courts
apply the Convention routinely, sometimes deciding against the Israeli government. Assuming
for the moment the general applicability of the Convention, it could well be considered a
violation if the Israelis deported convicts to the area or encouraged the settlement of people who
had no right to live there (Americans, for example).
But how can the Convention be deemed to apply to Jews who have a right to settle in the
territories under international law: a legal right assured by treaty and specifically protected by
Article 80 of the U.N. Charter, which provides that nothing in the Charter shall be construed “to
alter in any manner” rights conferred by existing international instruments” like the Mandate?
The Jewish right of settlement in the area is equivalent in every way to the right of the existing
Palestinian population to live there.
Another principle of international law may affect the problem of the Jewish settlements. Under
international law, an occupying power is supposed to apply the prevailing law of the occupied
territory at the municipal level unless it interferes with the necessities of security or
administration or is “repugnant to elementary conceptions of justice.”
From 1949 to 1967, when Jordan was the military occupant of the West Bank, it applied
its own laws to prevent any Jews from living in the territory. To suggest that Israel as occupant
is required to enforce such Jordanian laws-a necessary implication of applying the Convention-is
simply absurd. When the Allies occupied Germany after the Second World War, the abrogation
of the Nurenberg Laws was among their first acts.
The general expectation of international law is that military occupations last a short time, and
are succeeded by a state of peace established by treaty or otherwise. In the case of the West
Bank, the territory was occupied by Jordan between 1949 and 1967, and has been occupied by
Israel since 1967.
Security Council Resolutions 242 and 338 rule that the Arab states and Israel must make peace,
and that when “a just and lasting peace” is reached in the Middle East, Israel should withdraw
from some but not all of the territory it occupied in the course of the 1967 war. The Resolutions
leave it to the parties to agree on the terms of peace.
The controversy about Jewish settlements in the West Bank is not, therefore, about legal rights
but about the political will to override legal rights. Is the United States prepared to use all its
influence in Israel to award the whole of the West Bank to Jordan or to a new Arab state, and
force Israel back to its 1967 borders? Throughout Israel’s occupation, the Arab countries,
helped by the United States, have pushed to keep Jews out of the territories, so that at a
convenient moment, or in a peace negotiation, the claim that the West Bank is “Arab” territory
could be made more plausible. Some in Israel favor the settlements for the obverse reason: to
reinforce Israel’s claim for the fulfillment of the Mandate and of Resolution 242 in a peace treaty
that would at least divide the territory.
For the international community, the issue is much deeper and more difficult: whether the
purposes of the Mandate can be considered satisfied if the Jews finally receive only the parts of
Palestine behind the Armistice Lines-less than 17.5 percent of the land promised them after the
First World War. The extraordinary recent changes in the international environment have brought
with them new diplomatic opportunities for the United States and its allies, not least in the
Middle East.
Soviet military aid apparently is no longer available to the Arabs for the purpose of making
another war against Israel. The intifada has failed, and the Arabs’ bargaining position is
weakening. It now may be possible to take long steps toward peace. But to do so, the
participants in the Middle East negotiations-the United States, Israel, Egypt, and the PLO-will
have to look beyond the territories.
