Author: Orit ben Tzvi

Israeli settlements in the West Bank have been tried in the New Zealand court of public opinion and found to be illegal. Waikato Professor of Law, Alexander Gillespie, recently declared in the NZ Herald that “There is no question in international law that these settlements are illegal.” Similarly, many of the mainstream media articles written on the subject, as well as the slogans and placards of anti-Israel activists, refer simply to “illegal settlements”. We hear this refrain time and again.

UN Security Council resolution 2334 stated that the establishment of settlements “has no legal validity and constitutes a flagrant violation under international law”.

However, despite the certainty with which these claims are made, there is very considerable evidence and analysis to suggest that it is not correct to label settlements as illegal.

Under the Reagan administration, the United States referred to the settlements as “not illegal” and, at least until resolution 2334, subsequent administrations have used the term “illegitimate”, because there are questions over the legal status.

The Israeli government describes the legal status of settlements this way:

In legal terms, the West Bank is best regarded as territory over which there are competing claims which should be resolved in peace process negotiations – and indeed both the Israeli and Palestinian sides have committed to this principle….“Israeli Ministry of Foreign Affairs

Northwestern University Professor of Law, Eugene Kontorovich has outlined the legalities of Israeli settlements, which explains why Gillespie is so grossly mistaken:

Here is a summary of some key legal points, which Gillespie and others have overlooked:

• Israel has the strongest historic and legal claim to the land
• UN Resolution 242 did not call for withdrawal from all “occupied territories”
• Settlements may not be in breach of the Geneva Conventions
• Israeli courts have ruled that some settlements are illegal

These points are elaborated below.

Israel has the strongest historic and legal claim to the land

The territory in question was historically called Judea (named after the Israelite tribe of Judah) and Samaria (from the ancient city of Israel) and has had a constant Jewish presence for millennia.

The term “Palestine” was first introduced around 135 CE when the Roman Emperor Hadrian decreed that the name “Judea” should be replaced by “Syria Palestina” as a way of punishing the Jews for revolting and to de-Judaise the land.

Prior to the First World War, the Ottoman Empire controlled the land from Constantinople (present-day Istanbul). Following defeat of the Turks, the League of Nations entrusted Great Britain with the “Mandate for Palestine”. The only binding resolution of international law, a resolution which has never been countermanded, is the 1922 Mandate for Palestine.

Adopted by the League of Nations, the 1922 resolution recognised the “historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home in that country”. It called for the creation of a Jewish national homeland and “close settlement by Jews on the land, including State lands and waste lands not required for public purposes” – this included the land West of the Jordan river (i.e.what is commonly referred to as the West Bank).

Shortly thereafter the League of Nations and Great Britain decided that the provisions for setting up a Jewish national home would not apply to the area East of the Jordan River.Transjordan was created for the Arabs with 75% of the original land administered under the mandate. Transjordan eventually became the Hashemite Kingdom of Jordan.

Under further Arab pressure, the British Mandatory government withdrew from its commitment to the Jews, especially with respect to immigration and land acquisition. The White Papers of 1930 and 1939 restricted immigration and acquisition of land by Jews. After the UN General Assembly adopted the resolution to partition Palestine on November 29, 1947 (which New Zealand voted in favor of and the Arabs rejected), Britain announced the termination of its Mandate over Palestine.

When Israel declared its independence in 1948, neighbouring Arab nations attacked, hoping to destroy the nascent Jewish state. Following this war (the War of Independence), Transjordan annexed Judea and Samaria, renamed it the “West Bank,” and occupied it for nearly two decades. During this time Jews and Christians once more faced discrimination and were banned from their Holy sites.

In the 1967 Six Day War, after Jordan attacked Israel, Israel regained the territory, reunified Jerusalem and administered it until the Oslo Accords era, at which point Israel turned areas over to the Palestinian Authority. The final borders of a Palestinian state were left contingent upon Palestinian progress in ending terrorism and bilateral negotiations over presumed land swaps.

According to Gillespie, the Israeli settlements are on “territory which they acquired by military force in 1967 and never returned”. The suggestion is that Israel, through an act of aggression, took the land from the Palestinians, to whom it must be returned. However, at that stage Arab Palestinian national identity was still in its infancy. There had never been a self-governing Arab Palestinian state. How could the land then be “returned” to them?

As Political Science Professor Miriam Elman wrote in 2016:

Jordan unlawfully invaded and annexed Judea and Samaria [in 1948]. In 1967, Israel ended this illegal occupation in a war of self-defense, taking control of the territory. This suggests that it’s actually Israel which has a strong claim of sovereign title to the territory, by virtue of its having retaken the area from an unlawful Jordanian presence. The case of Israel is unique because there’s no prior instances where a new state’s territory was immediately occupied. But Israel has valid claims to legal title of the West Bank, and now legally holds it.”Miriam Elman

Further, in a 1,100 page thesis researched over 20 years at the University of Geneva’s political science department and international law school, a Canadian international human rights lawyer, Jacques Paul Gauthier, concluded that Israel has a legal right to occupy territories under its control since 1967. The arguments that contradict Gillespie’s “there is no question” statement are expanded below.

 

UN Resolution 242 did not call for withdrawal from all “occupied territories”

In the wake of the 1967 war, the United Nations crafted resolution 242 to establish principles that were to guide the negotiations for a “peaceful and accepted settlement”. The most controversial clause in Resolution 242 is the call for the “Withdrawal of Israeli armed forces from territories occupied in the recent conflict”. It wasn’t, as many would like to claim, assumed that this meant all territory. In fact, the resolution deliberately eschewed the definite article, which would have required withdrawal from all “the” territories, on the understanding that they would only be yielded up if the Arabs ended their aggression.

Resolution 242 meant a negotiated agreement based on the resolution’s principles rather than one imposed upon the parties – and this has also been the longstanding policy of New Zealand. The withdrawal from occupied territories was also linked to the “termination of all claims or states of belligerency” and the recognition that “every State in the area” has the “right to live in peace within secure and recognized boundaries free from threats or acts of force”.

This has not been achieved because, in spite of several offers of land for peace Palestinian leaders have still not accepted the presence of a Jewish state in their midst.

 

Settlements may not be in breach of the Geneva Conventions

Another argument used by many to try and ‘prove’ that the settlements are illegal was also proffered by Gillespie when he claimed “The rule, very clear since the Geneva Conventions were created in the wake of the atrocities of World War II in 1949, is that the populations of occupied territories shall not be forced out and the occupying power shall not transfer its own civilians into the territory it possesses.”

It has been argued that the Geneva Conventions do not apply to the settlements for a number of reasons. One is that, as outlined above, Israel has the best legal claim to the land and is not an occupying power. Another is that the land was captured in a defensive war against countries which had illegally occupied them since 1949. However, a 1999 resolution was unanimously passed stating that the Fourth Geneva Convention does apply to Israeli settlements in the “occupied territories”.

Kontorovich has compared the situations of several ongoing occupations with settlement policies; Western Sahara, Northern Cyprus, and the Russian occupations of Ukraine and Georgia, in order to determine whether the Israeli settlements are in breach of the Geneva Conventions.

Clear patterns emerge from this systematic study of state practice. The allowed practices are significantly inconsistent with “conventional wisdom” concerning the Geneva Conventions, specifically Art. 49(6) to which Gillespie referred:

First, the migration of people into occupied territory is a near-ubiquitous feature of extended belligerent occupations.

Second, no occupying power has ever taken any measures to discourage or prevent such settlement activity, nor has any occupying power ever expressed opinio juris suggesting that it is bound to do so.

Third, and perhaps most strikingly, in none of these situations have the international community or international organizations described the migration of persons into the occupied territory as a violation of Art. 49(6). Even in the rare cases in which such policies have met with international criticism, it has not been in legal terms. This suggests that the level of direct state involvement in “transfer” required to constitute an Art. 49(6) violation may be significantly greater than previously thought.

Finally, neither international political bodies nor the new governments of previously occupied territories have ever embraced the removal of illegally transferred civilian settlers as an appropriate remedy.”Eugene Kontorovich

It seems that there are evidently double standards in the application of the Geneva Conventions and is the only state to have resolutions passed against it requiring the removal of civilians. Either the settlements are in breach of the Geneva Conventions – and then so are many other conflicts where the word “illegal” is not invoked – or the Israeli settlements are like many other disputed territories – not actually illegal.

Further, when the issue of legality was actually tested in the court of law, the occupation of Judea and Samaria by Israel was found to be unequivocally legal under international law. The Court of Appeal of Versailles issued this ruling in 2013, following a suit brought by the Palestinian Authority against Jerusalem’s light rail – because it was built by French companies. The Palestinian case, built primarily on reference to the Geneva Conventions was dismissed.

 

Israeli courts have ruled that some settlements are illegal

Despite the arguments above, there have been non-binding United Nations General Assembly and Security Council resolutions that call Israeli settlements illegal (in addition to some legal scholars and armchair critics). This does not remove any questions about the actual legalities but it has put pressure on the Israeli legal system.

Unlike its neighbours. Israel is a liberal democracy with an independent judiciary and a stringent rule of law. The Supreme Court has ruled on many controversial issues to ensure the law is upheld, including that of settlements. Every aggrieved inhabitant of the disputed territories, including Palestinian residents, can appeal directly to this Court. Ministers of the Israeli Parliament have tried recently to introduce bills that would legalise some “outpost” settlements (those built without proper permits), but the Attorney General of Israel has warned that the legislation would not be defensible in court.

Israel’s courts have ruled that some building activity, by Arab, Jewish, Bedouin, and others, is illegal. Most recently, Prime Minister Benjamin Netanyahu pledged a crackdown on illegal Jewish settlements and helped negotiate a peaceful resolution to removing settlers from the village of Amona, stating that the law on illegal construction “must be egalitarian. The same law that necessitates the evacuation of Amona, necessitates the evacuation of illegal construction elsewhere in our country”.

The Israeli courts have also ruled that some settlement activity is legal – when there are appropriate permits in place and the law is being followed, building is allowed. However, when there are individuals or groups who wish to unilaterally take land and claim it as their own, the courts step in. That is how the law should work.

You don’t need to be a professor of law to know that there are few legal issues so black and white that they can be answered with a “there is no question” or “everyone says so”. Contrary to Gillespie and others’ superficial statements, the question of the legality of the settlements is a complex one, which cannot be summed up as “all settlements are illegal”. While the Security Council can make recommendations, it is not a court of law. Rather, the evidence shows that there is considerable room for debate on this question.

Originally published in Shalom Kiwi.