Astounding Facts Most People Don’t Know About Israel 32
The charge that Israel builds “illegal settlements” has no basis in international law – Part 2
This is not a pro-settlement blog. Nor is it an anti-settlement blog. As I’ve made absolutely clear to the point where people become confused, the future of the settlements and other issues for which Israel’s government has responsibility are matters for Israel’s democratically elected politicians. What I am attempting to do in these two articles is to look critically at the evidence for the near-universal depiction of Israeli settlements as illegal. The phrase illegal settlements is a dyad so ubiquitous that it has almost become one word.
In Part 1 [Blog 31], I identified several allegations that demand careful scrutiny as they are the primary battlegrounds in the “lawfare” campaign against Israel’s settlement policies. All have been forcefully rebutted by successive Israeli governments of varying political hues but Israel’s counterarguments have rarely been publicised in the mainstream media and are never taken seriously. So the attacks continue and must be confronted.
Contrary to conventional wisdom, Israel’s legal approach to the settlements is not an eccentric one. Many heavyweight legal authorities have offered persuasive evidence that the settlements are legal. They have highlighted four specific topics: the Palestine Mandate, the Geneva Convention, the Oslo Accords, and the need for equality before the law.
Respected Canadian expert on international law Jacques Gauthier [1] explains that historical events established today's Jewish legal rights in their reconstituted homeland. The key decisions were taken by the Principal Allied Powers at San Remo in April 1920, endorsed at the Treaty of Sèvres in August of that year, and then accorded full legal force by the League of Nations Palestine Mandate of 1922. All point to Israel’s legal rights to the territories she has held since 1967. (Similar legal processes were applied to Syria and Iraq under the Mandate system). The legal Jewish title to Western Palestine (i.e. from the River Jordan to the Mediterranean Sea), including the right of “close settlement” (Article 6 of the Mandate), is extant under the UN Charter (Article 80), and is not nullified by military conquest. Declarations by the UN and others that the settlements are illegal reflect political opinions that are not evidence-based.
In 2011, award-winning legal analyst Cynthia Day Wallace [2] wrote this about the Geneva Convention Article 49(6) that is often invoked to condemn the settlements: "The drafters’ intent was that of protecting vulnerable civilians in times of armed conflict by creating an international legal instrument that would declare as unlawful all coerced deportation such as that suffered by over forty million Germans, Soviets, Poles, Ukrainians, Hungarians and others, immediately after the Second World war. In the case of Israel, under international law as embodied in the Mandate for Palestine, Jews were permitted and even encouraged to settle in every part of Palestine, but they were not deported or forcibly transferred by the Government. Accordingly, calling the “East Jerusalem”, Judea and Samaria Israeli settlements “illegal” is not an apt application of the Fourth Geneva Convention."
The Oslo Accords (1993-95) did not outlaw the building of Jewish settlements in Area C (under full Israeli control) just as they didn’t outlaw the building of Arab settlements in Area A (under full PA control). What Oslo did was prohibit Jewish settlements in area A and Arab settlements in area C – unless authorised by the respective authorities. Israel has always abided by these terms while the Palestinian Authority has repeatedly violated them. Turning legal reality on its head, the PA – shamelessly supported by the international community – condemns the former while ignoring the latter.
There’s more. In signing the Oslo accords, the PA recognised the settlements as a temporary reality the disposition of which would depend on the outcome of negotiations. Israel, in turn, gave two key assurances to President Bush (via a 2004 correspondence with PM Sharon) that went beyond her legal commitments at Oslo – that no new settlements would be built, and that existing ones would only develop from their outer perimeters inward to avoid encroachment on land that might comprise part of a future Palestinian state. Israel has abided by those promises.
So while Israel is wrongly excoriated for “illegal settlements” and even “war-crime settlements” the PA is actually the criminal, aided and abetted by the EU [3].
Those who conduct lawfare against Israel deliberately conflate the legal and political arguments surrounding the settlements. A cruel irony lies at the heart of the matter: if the spurious legal assertions were put aside, politics might stand a chance. The overwhelming majority of Israeli settlers live in the large settlement blocs of the West Bank, such as Ma’ale Adumim and Ariel, located close to the 1949 ceasefire lines. This means that almost all of the West Bank could potentially still be relinquished to the Palestinians as part of a future peace agreement, while these settlements could be integrated into Israel in a land swap [4].
The settlements are undoubtedly politically contentious and an irritant to the prospects of peace. But Israel is not responsible for the diplomatic impasse. As Sabel [5] has written: “The political wisdom of setting up Israeli settlements in the West Bank is a controversial issue. It can well be argued, however, that the Palestinians should have been aware that it is impossible to freeze a situation for over forty years. By refusing to reach a peace agreement they have incurred the inevitable result that the demographics of the area have changed over the years by the natural phenomena of population movement and natural increase.”
The debate is not merely an academic one. In a convergence of lawfare and BDS (boycott, divestment, sanctions), several governments and international bodies (including the EU) have issued guidance discouraging trade involving Israel’s settlements on the grounds that they violate the Geneva Convention. Such guidance has not been issued in relation to Northern Cyprus, Western Sahara, Tibet, Crimea and other occupied territories on which settlements have been built. Kontorovich [6] reveals this blatant double standard regarding the applicability of the Geneva Convention to settlements: “No one has ever been prosecuted for this war crime, and its interpretation has been confined to academic and political statements — entirely within the particular context of Israel.”
The unfair singling out of Israel is part of a longstanding pattern of discrimination. We’ve seen how the other states emerging from the Mandate system established borders that reflected the administrative frontiers of their Mandates in keeping with uti possidetis juris, a doctrine denied only to Israel. We’ve seen how the Geneva Convention has been used to vilify Israeli settlements and no other settlement projects around the world. We’ve seen the way the Rome Statute of the International Criminal Court was deliberately formulated to attack Israel and only Israel. And we’ve seen this pattern of inequitable behaviour being replicated in other international fora. Such selectivity is a violation of the principle of equality as enshrined in article 2(1) of the UN Charter [7] and declared by the International Court of Justice as a fundamental pillar of international law.
Moreover, the disproportionate political and media focus on Israeli settlements – whose municipal boundaries occupy under 5% of the area of the West Bank – arguably represents a greater obstacle to peace than either their existence or their disputed legal status.
Anti-Israel activists who claim that they are merely upholding international law are being disingenuous. Don’t be shy in challenging them if you don’t have a legal training – most of them don’t either. Next time you are faced with the “illegal settlements” smear, I suggest you retort with another dyad in the form of this simple request – evidence please. But don’t hold your breath for the answer.
1. Gauthier J. The Jewish Claim to Jerusalem. https://bbcwatch.org/2013/11/23/dr-jacques-gauthier-the-jewish-claim-to-jerusalem-the-case-under-international-law/
2. Wallace CD (2011). Foundations of the International Legal Rights of the Jewish People and the State of Israel: Implications for the Current Debate: Executive Summary. European Coalition for Israel.
3. Honest Reporting. https://honestreporting.com/honestreporting-exclusive-how-european-union-funding-of-west-bank-activities-breaches-intl-law-undermines-peace/
4. Cornell S, Shaffer B. Occupied Elsewhere. Selective Policies on Occupations, Protracted Conflicts, and Territorial Disputes. Washington D.C., FDD, 2020.
5. Sabel R. International Legal Issues of the Arab-Israeli Conflict: An Israeli Lawyer’s Position. Journal of East Asia and International Law 2010, 3(2):8-8.
6. Kontorovich E. Unsettled: A Global Study Of Settlements In Occupied Territories. Journal of Legal Analysis 2017, Vol 9 (2), 285–350 https://doi.org/10.1093/jla/lax004
7. United Nations. United Nations Charter (Full Text), Preamble, Article 2(1). Geneva, United Nations, 1945.
