Astounding Facts Most People Don’t Know About Israel 31
The charge that Israel builds “illegal settlements” has no basis in international law – Part 1
Most people who damn Israel as a serial lawbreaker have no knowledge of international law; instead they absorb the torrent of legal smears about the country through a filter of disdain and assume they must be true. This illogical-logic even has a name: argumentum ad populum or “everyone knows.”
The phrase “illegal settlements” is an example of such inanity. It rolls off the tongue as though it were a statement of the obvious but like its twin, “Illegal occupation,” it poisons rational discourse on Israel. Both expressions are built on flimsy or non-existent foundations but their endless repetition – even within some relatively pro-Israel circles – has elevated them to a position of seemingly unassailable veracity.
Those who promote the “illegal settlements” charge know that few people will take the trouble to dissect its legal foundation. This apathy hands an advantage to those who indulge in “lawfare” – the weaponisation of the law for political ends – against Israel. Because the many issues surrounding the legality of the settlements are complex and important, I’m devoting two articles to this topic [see Footnote*].
A brief historical recap is necessary. Following Israel’s entry to the West Bank, Gaza and East Jerusalem in the defensive Six Day War of 1967, Israel’s Labour-dominated government established a network of strategically located IDF installations and Jewish communities in these territories. Their purpose was threefold: to bolster the state’s security in the face of the ongoing refusal of her enemies to abandon violence and negotiate peace; to restore Jewish access to historically and religiously significant sites (most notably in the Jewish Quarter of Jerusalem) from which Jews had been unlawfully ejected by Arab forces in the War of Independence of 1947-49; and to hold as bargaining chips in the event of future peace negotiations.
Following the election of the Likud in 1977, Israel approved the construction of additional settlements even if they served a minimal security need. This empowered militant Greater Israel groups who attempted to “create facts” by initiating unofficial settlements across the newly acquired territories. The government and Supreme Court responded by specifying strict conditions for a settlement to be formally recognised. First, its establishment had to be based on a government decision. Second, it could be built only on state-owned land or on land legally acquired by an Israeli citizen. Third, it had to accord with planning laws supervised by a municipal authority. If any of these conditions were not met, a settlement was deemed illegal and had to be removed, and thousands of such settlements have been evacuated and demolished over the years.
Unauthorised settlements are clearly different from those that have been officially sanctioned by the state. For political reasons, the UN (most notoriously in Security Council Resolution 2334 of 2016) and the wider international community have chosen to blur this distinction.
The UN, the International Court of Justice, the International Criminal Court and various NGOs offer three main arguments to justify the blanket designation of all Israeli settlements as illegal: that the occupation is illegal and therefore so are the settlements; that settlements violate the Fourth Geneva Convention; and that the Rome Statute outlaws the settlements.
Israel’s response to all three has been robust and evidence-based:
1. The occupation was an act of self-defence under Article 51 of the UN Charter and was therefore legal pending a peace treaty (Blog 30). UN Security Council resolution 242 of 1967 (accepted by Israel and rejected by her neighbours) implicitly recognised the legality of the occupation as it did not require Israel’s withdrawal from all the territories but to “secure and recognised boundaries” because at that time the Security Council acknowledged that the 1949 ceasefire lines – that resulted in Israel having a narrow waist only 9 miles wide – were indefensible. Resolution 242 has been the starting point for all attempts to achieve a negotiated peace agreement between Israel and her neighbours. While those efforts bore fruit with Egypt and Jordan, they have repeatedly floundered in relation to the Palestinians due to the intransigence of successive Palestinian leaders.
2. The 1949 Geneva Convention, formulated in response both to Nazi atrocities directed primarily against Jews and to the post-war displacement of millions of Europeans, outlawed the forcible transfer of civilians across the international borders of sovereign states (“High Contracting Parties”). These conditions are not met by the settlements as a) all Israeli settlers relocated themselves voluntarily, b) no settlers have crossed internationally recognised borders, c) no Palestinians have been displaced to make way for settlements, and d) prior to 1967, no states held legal sovereignty over the so-called “Palestinian territories” – to which the Jordanians in any case renounced all claims, excluding the Islamic holy sites, in 1988 (Blog 29).
3. The 1998 Rome Statute that established the International Criminal Court declared that “indirect transfer” of civilians was a war crime – a novel notion that had no precedent in international relations The clause was inserted by the Arab states because they knew that invoking the Geneva Convention was inappropriate. In the words of blogger Elder of Ziyon [1], it was “a law written only for Israel. European powers went along with this hijacking of international law to target a single state. This makes the Rome Statute a travesty of international law.”
Several further counterarguments are offered by Israel and her supporters:
1. The legal provisions of the 1922 League of Nations’ British Mandate, guaranteeing the right of “close settlement by Jews” (Article 6) throughout Western Palestine (i.e. from the River Jordan to the Mediterranean Sea), were never rescinded and still apply under Article 80 of the UN Charter [2].
2. All of the states, with one exception, that emerged from the Mandate system adopted borders derived from the territorial frontiers of the Mandates based on the doctrine of uti possidetis juris; the one exception was Israel. Since article 2(1) of the UN Charter requires that all states and conflicts be treated equally, Israel has a legitimate claim to sovereignty based on the territorial frontiers of the Palestine Mandate as of May 1948 when she became an independent state [3].
3. Many settlements are located in areas (including Greater Jerusalem) that had not been allocated to the putative Arab state in the 1947 UN partition resolution that was accepted by the Zionist leadership and rejected by their Arab counterparts. Consequently, these areas cannot be retrospectively defined, in legal terms, as “Palestinian territory.”
4. Many settlements are located in places from which Jews were forcibly expelled in 1948 despite having lived there for centuries or millennia and to which they had legal title (e.g. Gush Etzion, Jerusalem’s Jewish Quarter).
5. The legal status of the settlements was transformed in 1993 when Israel signed the Oslo Accords with the Palestinian Authority, thereby ending her “belligerent occupancy” and thus the applicability of the Fourth Geneva Convention. The terms of these accords, formally endorsed by the international community, relegated a resolution of the settlement problem to final status negotiations, all attempts at which have floundered due to Palestinian intransigence.
6. The right of Jews (and indeed Arabs) to live peaceably and lawfully anywhere is enshrined in international treaties such as the International Covenant on Civil and Political Rights (1966), just as the discriminatory denial of Jewish (and indeed Arab) rights is illegal under the UN Charter [4].
Out of this morass of disputation, which specific legal squabbles have paramountcy? That’s a matter of opinion but I suggest there are four: the Palestine Mandate, the Geneva Convention, the Oslo Accords, and the principle of equality before the law. I’ll explore those in more detail in the next blog.
Meanwhile, keep half an eye out for the ubiquitous argumentum ad populum and watch what happens when you point out to its advocates the absurdity of elevating populist dogma to the status of legal fact. I’d wager that your challenge will, more often than not, be met with a revealing response – stunned silence.
*Full transparency: I am not an international lawyer but in these articles I cite many authorities who are and they deserve to be taken seriously – as does the legal position of all Israeli governments, whether of the left, right or centre, since 1967. That has not happened to date.
1 Elder of Ziyon (2015). How the Arabs added specifically anti-Israel language to the Rome Statute of the ICC. https://elderofziyon.blogspot.com/2015/01/how-arabs-added-specifically-anti.html
2 De Blois, M, Tucker A. Israel on Trial: How international law is being misused to delegitimise the state of Israel. The Netherlands, The Hague Initiative for International Cooperation, 2018.
3 Thinc. The Hague Statement of Jurists on the Israel-Palestine conflict. The Netherlands, The Hague Initiative for International Cooperation, 2017.
4 United Nations. United Nations Charter (Full Text), Preamble, Article 2(1). Geneva, United Nations, 1945.
