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