The Legality of Settlements
By The Committee for Truth and Justice contact@truthandjustice-online.com
The Jewish “settlements” in the West Bank have been characterized as illegal by Arabs and many on the left in the media and in politics, but the legal status of these settlements has received little or no attention in the mainstream media. These settlements are not illegal and we provide the proof below.
From 1511 to 1917, “Palestine” was part of the Ottoman Empire, although the term did not denote or define a people or area. World War I resulted in the end of the Ottoman Empire, but also in the creation of the British Mandate for Palestine, covering what is now Israel, Jordan, the West Bank and the Gaza Strip. On July 24, 1922, the League of Nations Council confirmed the Mandate, thus making this Mandate part of international law.
The Mandate explicitly recognized “the historical connection of the Jewish people with Palestine” and the Mandatory Power was responsible “for reconstituting their national home in that country.” The Mandate was also dedicated to facilitation of Jewish immigration and Jewish settlement while ensuring “that nothing should be done which might prejudice the civil and religious rights of existing non- Jewish communities in Palestine.” Thus by international law only the Jews were given political rights over Palestine, while the Arabs were given religious and civil rights. Political rights form the basis of a state, but religious and civil rights do not.
With the consent of the League of Nations, the Mandatory Power was permitted to “postpone or withhold application” of the provisions of the Mandate in the area east of the Jordan River, and, thus, Britain postponed Jewish immigration and settlement in that area. Indeed, that area was separated from the area of the Mandate. In 1946, Jordan became an independent state.
In 1947, the British asked the United Nations to consider the question of a government in Palestine in light of Britain’s determination to withdraw as Mandatory Power in 1948. On November 29, 1947, the UN General Assembly passed Resolution 181, which recommended to the Mandatory Power and to the Security Council the adoption of a partition plan for the remaining area, i.e., the land west of the Jordan river, of the Mandate. The plan would have created one Jewish and one Arab state, but the Security Council never acted on this recommendation. Resolution 181 was not and is not legally binding, because it is only a recommendation, and under the UN charter General Assembly has no power to act on its resolutions.
Israel accepted UN Resolution 181 and formed a state in 1948 on the land recommended by the UN for a Jewish state. The Arabs of Palestine rejected UN Resolution 181 and the surrounding Arab states attacked Israel. Israel survived the war and in 1949 concluded armistice agreements with Lebanon, Syria, Egypt and Jordan. Jordan annexed the West Bank and Egypt occupied Gaza. Israel was again attacked by all surrounding Arab armies in 1967, but Israel prevailed in six days and captured the territories of the West Bank and Gaza. These territories were the unallocated remainder, i.e. not Jordan or Israel, of the League of Nations Mandate; and were considered “disputed territories” due to competing interests.
As a result of the 1967 war the UN adopted UN Resolutions 242 which affirmed its commitment to Middle East peace, acknowledgement of the sovereignty of all states in the region, and withdrawal of Israel from portions of the occupied disputed territories consistent with Israel’s security. This resolution confirmed that the 1967 war was a lawful exercise of the inherent right of selfdefense by Israel recognized in Article 51 of the UN Charter. Thus, Israel’s occupation of the disputed territories was legally justified as a result of aggression by its neighbors, although withdrawal from some of this land was expected as part of a peace process.
Israel attempted to comply with the UN resolution 242 by seeking peace and withdrawing from the disputed territories, but both endeavors were rejected by the Arabs. The Arab League met in Khartoum in 1967 and declared that they will not negotiate with Israel, will not recognize Israel, and will not seek peace with Israel. Thus the disputed territories remained under Israel’s control.
Over the succeeding years, Jews in Israel decided to return to their ancestral lands of Judea and Samaria, which were in the disputed territories. The Israeli government did not prohibit settlement, but did offer financial incentives to Jews to move to the territories. However, these settlements did not exploit any Arab ownership or displace any Arab community or farm. The Jewish settlements have been established only on land in pre-existing Jewish communities, land that was not private property, i.e. land previously controlled by Jordan and now controlled by Israel, or land purchased from established owners.
There is no provision of international law that addresses settlements. There is no international legal instrument that bars settlements, settlement activity, settlement construction, settling, or anything similar. Therefore, the legality of the Jewish settlements in the disputed territories is based principally on the Fourth Geneva Convention of 1949. The Fourth Geneva Convention was established in response to the inhumane actions of the Nazis during WWII and it governed the protection of civilian populations in times of war. Article 49, paragraph 6 provides that “[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Article 2 provides that it shall apply “to all cases of partial or total occupation of the territory of a High Contracting Party.”
Based on prior history, international law, and the Fourth Geneva Convention, the Jewish settlements in the disputed territories of Palestine are legal for the following reasons:
1. The Geneva Convention is not applicable to Israel because Article 2 of the Convention applies only to occupation of “territory of a High Contracting Party.” Since no country has a recognized legal claim to the disputed territories they are not territories “of” any contracting party, and therefore the Convention does not apply to Jewish settlements. Jordan did annex the West Bank in 1967, but this was never recognized by the international community and regardless Jordan withdrew its claim in 1988.
2. Even if the Geneva Convention did apply to Israel, it was not directed at the kind of activity undertaken by Israel. Article 49 of the Geneva Convention responded to the Nazi experience and is directed at transfers of large populations into occupied territories intended to colonize territories so as to endanger the economic situation or separate existence of the existing populations. 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 did apply.
3. Even if the Geneva Convention applies and prohibits settlements established by the Israeli government, it does not prohibit Jewish settlements in the occupied territories. The 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. Rather, the occupied territories are to be thought of as the unallocated remainder of the Mandate Territory, and settlement rights under the Mandate persist until a final allocation is made. Article 6 of the Mandate, which provides that ‘‘[t]he 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 . . . close settlement by Jews on the lands, including State lands and waste lands not required for public purposes.” Therefore, not only are the Jewish settlements not illegal under international law, international law requires that Jewish settlement of the disputed territories be encouraged and facilitated.
4. There is a principle of international law that, where a prior holder of territory had seized that territory unlawfully (e.g., Jordan in 1949), the state subsequently taking the territory in lawful exercise of self-defense (e.g., Israel in 1967) has, against the unlawful prior holder (e.g., Jordan), better title. This law applies because in the 1967 war Israel acted in lawful self-defense as established by UN Resolution 242 against Egypt’s blockade of an Israeli port, amassing troops on the border, and removal of UN peacekeepers; and Syria’s attacks and provocations.
Not only does international law not find the Jewish settlements in the disputed territories to be illegal, but there have been numerous cases of belligerent occupation of lands and in no other case have states forbidden their citizens from moving to occupied territories. These include Turkey capturing part of Cyprus in 1974, Morocco capturing most of Western Sahara in 1975, China capturing Paracel Islands in 1974, India capturing Bangladesh in 1971, Iran capturing islands in the Straits of Hormuz in 1971, etc. If one sets aside the case of Israel, the universal state practice is to accept that Article 49 of the Fourth Geneva Convention does not require states to prevent voluntary movement of their citizens into occupied territory, or even encouraging such movement. Therefore, settlement activity has been universally accepted by state practice, and thus accepted as a part of international law.
Whenever the mainstream media mentions the Jewish settlements in the West Bank it is always assumed, and never justified, that these settlements are illegal, but international law in theory and practice says otherwise.