The Illegal-Settlements Myth

Discussion in Commentary Magazine: The Illegal-Settlements Myth

The conviction that Jewish settlements in the West Bank are illegal is now so commonly accepted, it hardly seems as though the matter is even open for discussion. But it is. Decades of argument about the issue have obscured the complex nature of the specific legal question about which a supposedly overwhelming verdict of guilty has been rendered against settlement policy. There can be no doubt that this avalanche of negative opinion has been deeply influenced by the settlements’ unpopularity around the world and even within Israel itself. Yet, while one may debate the wisdom of Israeli settlements, the idea that they are imprudent is quite different from branding them as illegal. Indeed, the analysis underlying the conclusion that the settlements violate international law depends entirely on an acceptance of the Palestinian narrative that the West Bank is “Arab” land. Followed to its logical conclusion—as some have done—this narrative precludes the legitimacy of Israel itself.
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International-law arguments against the settlements have rested primarily upon two sources. First are the 1907 Hague Regulations, whose provisions are primarily designed to protect the interests of a temporarily ousted sovereign in the context of a short-term occupation. Second is the 1949 Fourth Geneva Convention, the first international agreement designed specifically to protect civilians during wartime.

While Israel was not and is not a party to the Hague Regulations, the Israeli Supreme Court has generally regarded its provisions as part of customary international law (that is, law generally observed by nations even if they have not signed an international agreement to that effect) and hence applicable to Israel. The regulations are transparently geared toward short-term occupations during which a peace treaty is negotiated between the victorious and defeated nations. The “no’s” of Khartoum signaled that there would be no quick negotiations.

Nonetheless, Israel established and maintains a military administration overseeing the West Bank in accordance with the Hague Regulations, probably the only military power since World War II other than the United States (in Iraq) that has done so. For example, consistent with Article 43 of the Regulations, which calls on the occupant to “respect, . . . unless absolutely prevented, the laws in force in the country,” Israel has for the most part continued to follow Jordanian law in the West Bank, despite its position that Jordan itself had illegally occupied it. Israel’s stance has been criticized as contradictory, but general continuance of Jordanian law can be justified on grounds of legal stability and long-term reliance reflected in most legal systems, including international law.
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Settlement opponents more frequently cite the Fourth Geneva Convention these days for their legal arguments. They specifically charge that the settlements violate Article 49(6), which states: “The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies.”

Frequently, this sentence is cited as if its meaning is transparent and its application to the establishment of Israeli settlements beyond dispute. Neither is the case.

To settlement opponents, the word “transfer” in Article 49(6) connotes that any transfer of the occupying power’s civilian population, voluntary or involuntary, is prohibited. However, the first paragraph of Article 49 complicates that case. It reads: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” Unquestionably, any forcible transfer of populations is illegal. But what about voluntary movements with the antecedent permission or subsequent acquiescence by the occupant?

Even settlement opponents concede that many settlements closest to Palestinian population areas, on the central mountain range of the West Bank, were built without government permission and often contrary to governmental policy; their continued existence forced the government to recognize the settlement as an existing fact. Given this history, it is questionable to claim that Israel “transferred” those settlers.

Gee, in light of this, was the evacuation of the settlements in Gaza legal?