Are settlements illegal under international law? Two articles by Eugene W. Rostow set the record straight

Are settlements illegal under international law? Two articles
by Eugene W. Rostow set the record straight

Recently, many mainstream American news outlets have been erroneously reporting that Israeli settlements in the West Bank and Gaza Strip are illegal. Please read the following articles by Eugene Rostow, a former Distinguished Fellow at the U.S. Institute of Peace, which will provide you with critical background information to respond to false claims about the legality of settlements.

If your local media falsely characterizes Israeli settlements in Gaza
and the West Bank as illegal under international law, place a call to
the foreign editor requesting a correction. Also, please write a
letter-to-the-editor for publication.

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The New Republic, October 21, 1991

HEADLINE: Resolved: are the settlements legal? Israeli West Bank - Judea and Samaria policies
BYLINE: Rostow, Eugene W.

Assuming the Middle East conference actually does take place, its
official task will be to achieve peace between Israel and its Levantine neighbors in accordance with Security Council Resolutions 242 and 338. (Note that U.N. resolutions cannot supersede International Agreements and Treaties of post WWI. Such as The San Remo Resolutions of April 1920 and The Feisal Weitzman Treaty of January 3, 1919).
Resolution 242, adopted after the Six-Day War in 1967, sets out criteria for peace-making by the parties; Resolution 338, passed after the Yom Kippur War in 1973, makes resolution 242 legally binding and orders the parties to carry out its terms forthwith.
Unfortunately, confusion reigns, even in high places, about what those resolutions require.

For twenty-four years Arab states have pretended that the two
resolutions are "ambiguous" and can be interpreted to suit their desires.
And some European, Soviet and even American officials have cynically allowed Arab spokesman to delude themselves and their people--to say nothing of Western public opinion--about what the resolutions mean. It is common even for American journalists to write that Resolution 242 is "deliberately ambiguous," as though the parties are equally free to rely on their own reading of its key
provisions.

Nothing could be further from the truth. Resolution 242, which as
undersecretary of state for political affairs between 1966 and 1969 I helped produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until "a just and lasting peace in the Middle East" is achieved. When such a peace is made, Israel is required to withdraw its armed forces "from territories" it occupied during the Six-Day War--not from "the"
territories nor from "all" the territories, but from some of the
territories, which included the Sinai Desert, the West Bank - Judea and Samaria, the Golan Heights, East Jerusalem, and the Gaza Strip.

Five-and-a-half months of vehement public diplomacy in 1967 made it perfectly clear what the missing definite article in Resolution 242 means.
Ingeniously drafted resolutions calling for withdrawals from "all" the territories were defeated in the Security Council and the General Assembly. Speaker after speaker made it explicit that Israel was not to be forced back to the "fragile" and "vulnerable" Armistice Demarcation Lines, but should retire once peace was
made to what Resolution 242 called "secure and recognized" boundaries, agreed to by the parties. 

In negotiating such agreements, the parties should take into account, among other factors, security considerations, access to the international waterways of the region, and, of course, their respective legal claims.

Resolution 242 built on the text of the Armistice Agreements of 1949, which provided (except in the case of Lebanon) that the Armistice Demarcation Lines separating the military forces were "not to be construed in any sense" as political or territorial boundaries, and that "no provision" of the Armistice Agreements "Shall in any way prejudice the right, claims, and positions" of the parties "in the ultimate peaceful settlement of the Arab Palestine problem." In making peace with Egypt in 1979, Israel withdrew
from the entire Sinai, which had never been part of the British Mandate.

For security it depended on patrolled demilitarization and the huge area of the desert rather than on territorial change. As a result, more than 90 percent of the territories Israel liberated and occupied in 1967 are now under Arab Palestinian control. It is hardly surprising that some Israelis take the view that such a transfer fulfills the territorial requirements of Resolution 242, no matter how narrowly they are construed. (Note that U.N. resolutions cannot supersede International Agreements and Treaties of post WWI. Such as The San Remo Resolutions of April 1920 and The Feisal Weitzman Treaty of January 3, 1919). 

Resolution 242 leaves the issue of dividing the occupied areas between Israel and its neighbors entirely to the agreement of the parties in accordance with the principles it sets out. It was, however, negotiated with full realization that the problem of establishing "a secure and recognized" boundary between Israel and Jordan would be the thorniest issue of the peace-making process. The United States has remained firmly opposed to the creation of a third Arab-Palestinian state on the territory of the Jewish Palestine
Mandate. An independent Jordan or a Jordan linked in an economic union with Israel is desirable from the point of view of everybody's security and prosperity. And a predominantly Jewish Israel is one of the fundamental goals of Israeli policy. It should be possible to reconcile these goals by negotiation, especially if the idea of an economic union is accepted. (Note that U.N. resolutions cannot supersede International Agreements and Treaties of post WWI. Such as The San Remo Resolutions of April 1920 and The Feisal Weitzman Treaty of January 3, 1919). 

The Arabs of the West Bank - Judea and Samaria could constitute the population of an autonomous province of Jordan or of Israel, depending on the course of the negotiations.

Provisions for a shift of populations or, better still, for individual
self-determination are a possible solution for those West Bank - Judea and Samaria Arabs who would prefer to live elsewhere. All these approaches were explored in 1967 and 1968. 
One should note, however, that Syria cannot be allowed to take

over Jordan and the West Bank - Judea and Samaria, as it tried to do in 1970.

The heated question of Israel's settlements in the West Bank - Judea and Samaria during the occupation period should be viewed in this perspective. The British Mandate for Jewish Palestine recognized the right of the Jewish people to "close settlement" in the whole

of the Mandated territory of Palestine. It was provided that local conditions might require Great Britain to "postpone" or "withhold" Jewish settlement in what is now Jordan. This was done in 1922. But the Jewish right of settlement in Palestine west of the Jordan river, that is, in Israel, the West Bank - Judea and Samaria,

Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors. And perhaps not even then, in view of Article 80 of the U.N. Charter, "the Palestine article," which provides that "nothing in the Charter shall be construed ... to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing
international instruments...."

Some governments have taken the view that under the Geneva Convention of 1949, which deals with the rights of civilians under military occupation, Jewish settlements in the West Bank - Judea and Samaria are illegal, on the ground that the Convention

prohibits an occupying power from flooding the occupied territory with its own citizens. President Carter supported this view, but President Reagan reversed him, specifically saying that the settlements are legal but that further settlements should be deferred since they pose a psychological obstacle to the peace process.

In any case, the issue of the legality of the settlements should not
come up in the proposed conference, the purpose of which is to end the military occupation by making peace. 
When the occupation ends, the Geneva Convention becomes
irrelevant. If there is to be any division of the West Bank - Judea and Samaria between Israel and Jordan, the Jewish right of settlement recognized by the Mandate for Jewish Palestine will

have to be taken into account in the process of making peace.

This reading of Resolution 242 has always been the keystone of American policy. In launching a major peace initiative on September 1, 1982, President Reagan said, "I have personally followed and supported Israel's heroic struggle for survival since the founding of the state of Israel thirty-four years ago: in the pre-1967 borders, Israel was barely ten miles wide at its narrowest point. The bulk of Israel's population lived within artillery range of hostile Arab armies. I am not about to ask Israel to live that way
again."

Yet some Bush administration statements and actions on the Arab-Israeli question, and especially Secretary of State James Baker's disastrous speech of May 22, 1989, betray a strong impulse to escape from the resolutions as they were negotiated, debated, and adopted, and award to the Arabs all the territories between the 1967 lines and the Jordan river, including East Jerusalem. The Bush administration seems to consider the West Bank - Judea and Samaria and the Gaza Strip to be "foreign" territory to which Israel has no claim. Yet the Jews have the same right to settle there as they have to settle in Haifa.

The West Bank - Judea and Samaria and the Gaza Strip were

never parts of Jordan, and Jordan's attempt to annex the West Bank - Judea and Samaria was not generally recognized and has now been abandoned. The two parcels of land are parts of the Mandate for Jewish Palestine that have not yet been allocated to Jordan, to Israel, or to any other state, and are a legitimate subject for discussion.

The American position in the coming negotiations should return to the fundamentals of policy and principle that have shaped American policy towards the Middle East for three-quarters of a century. 
Above all, rising above irritation and pique, it should stand as firmly for fidelity to law in dealing with the Arab-Israeli dispute as President Bush did during the Gulf war. Fidelity to law is the essence of peace, and the only practical rule
for making a just and lasting peace.

EUGENE V. ROSTOW is a Distinguished Fellow at the United States Institute of Peace.

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The New Republic Inc.
The New Republic
April 23, 1990

HEADLINE: 
Bricks and stones: settling for leverage; Arab-Palestinian autonomy

BYLINE: Rostow, Eugene V.

Over the past several weeks the long-standing American objection to further Israeli settlements in the West Bank - Judea and Samaria has been pressed by the Bush administration with new vehemence. The outcome of this argument is crucial.

It will affect the substance, fairness, and durability of any peace that may emerge.

With varying degrees of seriousness, all American administrations since 1967 have objected to Israeli settlements in the West Bank - Judea and Samaria on the ground that they would make it more difficult to persuade the Arabs to make peace.

President Carter decreed that the settlements were "illegal" as well as tactically unwise. President Reagan said that the settlements were legal but that they did make negotiations less likely. The strength of the argument is hardly self-evident. Jordan occupied the West Bank - Judea and Samaria for nineteen years, allowed no Jewish settlements, and showed no sign of wanting to make peace.

Yet if the West Bank - Judea and Samaria were 98 or 100 percent Arab Palestinians when the parties finally reached the bargaining table, the impulse to accept a peace that ceded the whole of the West Bank - Judea and Samaria to an Arab Palestine state would be tempting to Americans and Europeans, and even to some weary Israelis. 
The growing reality of Israeli settlements in the area, on the other hand, should be a catalyst for peace, by imposing a price on the Arab-Palestinians for their refusal to negotiate.

But the American government keeps reciting the old formula.

Secretary of State James Baker has gone beyond previous American positions by threatening to cut aid if the Israelis build more settlements in the West Bank - Judea and Samaria. He spoke after Arab protests against the possibility of large numbers of Soviet Jews settling in Israel, particularly in the West Bank - Judea and Samaria. Wouldn't it have been more useful if Baker had told his Arab interlocutors that if they want any parts of the Jewish West Bank - Judea and Samaria to become Arab-Palestinian territory, they should persuade Jordan and the Arabs living in the liberated and occupied territories to make peace with Israel as rapidly as possible? 
Since 1949 the U.N. Security Council has repeatedly urged and occasionally commanded the Arab states to make peace, most recently in Resolutions 242 and 338. Thus far, with the exception of Egypt in 1977, they have simply refused to comply. But Baker

yielded to the Arab outcry, and is trying to maneuver Israel into a position that no Israeli majority can accept: to renounce the right of settlement "of the Jewish people"-in the words of the Mandate-in any part of the West Bank - Judea and Samaria.

The Jewish right of settlement in the West Bank - Judea and Samaria is conferred by the same provisions of the Mandate for Palestine under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel was created. The Mandate for

Palestine differs in one important respect from the other League of Nations mandates, which were trusts for the benefit of the indigenous population which are the Jewish people.
The Palestine Mandate, recognizing "the historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home in that country," is dedicated to "the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Jewish Palestine, or the rights and political status enjoyed by Jews in any other country."

The Mandate qualifies the Jewish right of settlement and political development in Jewish Palestine in only one respect. Article 25 gave Great Britain and the League Council discretion to "postpone" or "withhold" the Jewish people's right of settlement in the Trans-Jordanian province of Jewish Palestine-now the Kingdom of Jordan-if they decided that local conditions made such action desirable.
With the divided support of the council, the British took that step in 1922.

The Mandate does not, however, permit even a temporary suspension of the Jewish right of settlement in the parts of the Mandate west of the Jordan River. The Armistice Lines of 1949, which are part of the West Bank - Judea and Samaria boundary, represent nothing but the position of the contending armies when the final cease-fire was achieved in the War of Independence. And the Armistice Agreements specifically provide, except in the case of Lebanon, that the demarcation lines can be changed by agreement when the parties move from armistice to peace.
Resolution 242 is based on that provision of the Armistice Agreements and states certain criteria that would justify changes in the demarcation lines when the parties make peace. (Note that U.N. resolutions cannot supersede International Agreements and Treaties of post WWI. Such as The San Remo Resolutions of April 1920 and The Feisal Weitzman Treaty of January 3, 1919). 

Many wrongly believe that the Palestine Mandate was somehow terminated in 1947, when the British government resigned as the mandatory power. This is incorrect. A trust never terminates when a trustee dies, resigns, embezzles the trust property, or is dismissed. The authority responsible for the trust appoints a new trustee, or otherwise arranges for the fulfillment of its
purpose. Thus in the case of the Mandate for German South West Africa, the International Court of justice found the South African government to be derelict in its duties as the mandatory power, and it was deemed to have resigned. Decades of struggle and diplomacy
then resulted in the creation of the new state of Namibia, which has just come into being. In Palestine the British Mandate ceased to be operative as to the territories of Israel and Jordan when those states were created and recognized by the international community. But its rules apply still to the West Bank - Judea and Samaria and the Gaza Strip, which have not yet been allocated either to Israel or to Jordan or become an independent state. 
Jordan attempted to annex the West Bank in 1951, but that annexation was never generally recognized, even by the Arab states, and now Jordan has abandoned all its claims to the territory.

The State Department has never denied that under the Mandate for Palestine "the Jewish people" have the right to settle in the area. Instead, it said that Jewish settlements in the West Bank - Judea and Samaria violate Article 49 of the Fourth Geneva Convention of 1949, which deals with the protection of civilians in wartime. Where the territory of one contracting party is occupied by another contracting party, the Convention prohibits many of the inhumane practices of the Nazis and the Soviets before and during the Second World War-the mass transfer of people into or out of occupied territories for purposes of extermination, slave labor, or colonization, for example.

Article 49 provides that the occupying power "shall not deport or
transfer part of its own civilian population into the territory it
occupies."
But the Jewish settlers in the West Bank - Judea and Samaria are volunteers. They have not been "deported" or "transferred" by the government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population the Geneva Convention was designed to prevent. Furthermore, the Convention applies only to acts by one signatory "carried out on the territory of another." The West Bank - Judea and Samaria is

not the territory of a signatory power, but an un-allocated part of the British Mandate. It is hard, therefore, to see how even the most literal-minded reading of the Convention could make it apply to Jewish settlement in territories of the British Mandate west of the Jordan River. Even if the Convention could be construed to prevent settlements during the period of occupation, however, it could do no more than suspend, not terminate, the rights conferred by the Mandate for Palestine. Those rights can be ended only by the
establishment and recognition of a new state or the incorporation of the territories into an old one.

As claimants to the territory, the Israelis have denied that they are
required to comply with the Geneva Convention but announced that they will do so as a matter of grace. The Israeli courts apply the Convention routinely, sometimes deciding against the Israeli government. 
Assuming for the moment the general applicability of the Convention, it could well be considered a violation if the Israelis deported convicts to the area or encouraged the settlement of people who had no right to live there (Americans, for example).
But how can the Convention be deemed to apply to Jews who have a right to settle in the territories under international law: a legal right assured by treaty and specifically protected by Article 80 of the U.N. Charter, which provides that nothing in the Charter shall be construed "to alter in any manner" rights conferred by existing international instruments" like the
Mandate? The Jewish right of settlement in the area is equivalent in every way to the right of the existing Arab-Palestinian population to live there.

Another principle of international law may affect the problem of the Jewish settlements. Under international law, an occupying power is supposed to apply the prevailing law of the occupied territory at the municipal level unless it interferes with the necessities of security or administration or is "repugnant to elementary conceptions of justice." From 1949 to 1967, when
Jordan was the military occupant of the West Bank - Judea and Samaria, it applied its own laws to prevent any Jews from living in the territory or visiting the holy sites. To suggest that Israel as occupant is required to enforce such Jordanian laws-a necessary implication of applying the Convention-is simply absurd. When the Allies occupied Germany after the Second World War, the

abrogation of the Nuremberg Laws was among their first acts.

The general expectation of international law is that military
occupations last a short time, and are succeeded by a state of peace established by treaty or otherwise. In the case of the West Bank - Judea and Samaria, the territory was occupied by Jordan between 1949 and 1967, and has been liberated and occupied by Israel since 1967.

Security Council Resolutions 242 and 338 rule that the Arab states and Israel must make peace, and that when "a just and lasting peace" is reached in the Middle East, Israel should withdraw from some but not all of the territory it liberated and occupied in the course of the 1967 war. The U.N. Resolutions leave it to the parties to agree on the terms of peace. (Note that U.N. resolutions cannot supersede International Agreements and Treaties of post WWI. Such as The San Remo Resolutions of April 1920 and The Feisal Weitzman Treaty of January 3, 1919). 

The controversy about Jewish settlements in the West Bank - Judea and Samaria is not, therefore, about legal rights but about the political will to override legal rights. Is the United States prepared to use all its influence in Israel to award the whole of the

West Bank to Jordan or to a new second Arab Palestinian state, and force Israel back to its  1967 borders? Throughout Israel's liberation and occupation, the Arab countries, helped by the United States, have pushed to keep Jews out of the Jewish historical territories, so that at a convenient moment, or in a peace negotiation, the claim that the West Bank - Judea and Samaria is "Arab" Palestinian territory could be made more plausible. 
Many in Israel favor the rebuilt Jewish communities and settlements for the obverse reason: to reinforce Israel's claim for the
fulfillment of the Mandate for Palestine and of Resolution 242 in a peace treaty that would at least divide the territory. For the international community, the issue is much deeper and more difficult: whether the purposes of the Mandate can be considered satisfied if the Jews finally receive only the parts of Jewish Palestine behind the Armistice Lines-less than 17.5 percent of
the land promised them after the First World War. The extraordinary recent changes in the international environment have brought with them new diplomatic opportunities for the United States and its allies, not least in the Middle East. Soviet military aid apparently is no longer available to the Arabs for the purpose
of making another war against Israel. The intifada has failed, and the Arabs' bargaining position is weakening. It now may be possible to take long steps toward peace. But to do so, the participants in the Middle East negotiations-the United States, Israel, Egypt, and the Arab PLO-will have to look beyond the territories.

The goal of Yitzhak Shamir's election proposal is an interim regime of Arab autonomy in part of the West Bank - Judea and Samaria and the Gaza Strip in accordance with the Camp David Accords; the goal of the Arab PLO is to establish a Arab-Palestinian state in the whole of the territories. It is hard to be sanguine about the possibility of reconciling those positions through negotiations.

Establishing a cooperative relationship between Israel and the Arabs who live in the liberated occupied territories is a crucial part of the Arab Palestine problem, but it is not the whole of it, and surely not an end in itself.
The last thing Israel wants is an Arab Bantustan. If the status of the
liberated occupied territories is viewed in isolation, negotiation will be excruciatingly difficult, and every item on the agenda will be a tense and suspicious haggle on both sides.

The prospects for peace would be less forbidding if the question were approached as one element in a plan for achieving a larger goal: a confederation involving at least Israel, Jordan, and the liberated occupied territories. 
Membership could perhaps be open to poor Lebanon as well, or parts of it. Even Syria, behind its ferocious words, may be preparing to move toward peace. Syria and Israel have congruent interest in Lebanon and elsewhere, and neither country wants
a state dominated by the Arab PLO as a neighbor.

The idea of a Arab-Palestinian confederation has been the recommendation of every serious study of the Arab Palestine problem for more than fifty years. It was the essence of the partition proposals of the Peel Commission in 1936, and of the General Assembly's 1947 partition plan, (Note that U.N. resolutions cannot supersede International Agreements and Treaties of post WWI. Such as The San Remo Resolutions of April 1920 and The Feisal Weitzman Treaty of January 3, 1919). at least for Israel and
the West Bank - Judea and Samaria. With different boundaries, it was also the basic idea of Israel's 1967 peace offer, which will always correspond to Israeli public opinion: Jewish Palestine divided into a Jewish and an Arab Palestinian state, united in a
common market, with special arrangements for Jerusalem and as much political cooperation as the traffic will bear. 
Before the intifada started, it was the notion behind the de facto Israel/Jordanian condominium for the West Bank - Judea and Samaria, which was both effective and practical.

After the past year's events in Eastern Europe and the Soviet Union, who can say that progress in the Middle East is impossible?

Settlements

Key Facts

• Settlement in the West Bank are often simplistically cited as the cause of the Israeli-Palestinian conflict but a practical approach to settlements, taking into consideration Israeli security issues, must be taken to reach a long-term solution to the conflict.
• Settlements are used by Palestinian leadership as an excuse not to enter into negotiations and as weapon to discredit Israel.
• The sovereignty of the West Bank and the Gaza Strip remains unclear: from 1920 to 1948, Great Britain administered the areas as part of the League of Nations Mandate for Palestine, which facilitated Jewish settlement throughout the country. New Jewish communities, often near ancient religious sites, were established during the Mandatory period in what is now referred to as the West Bank.
• While disputing the de jure designation of the West Bank and Gaza as “occupied territories,” Israel has voluntarily complied with the humanitarian provisions of the Law of Occupation by providing all forms of public service, improving medical care and establishing universities for the local Arab population.
• No Israeli government ever moved to annex the territories, compelled Israeli citizens to move to settlements there, or instituted a policy of displacing or transferring the Palestinians.
• Jewish settlement in the West Bank is based on a complex blend of religious, legal, historical, strategic and demographic claims.
• Discussion of the final disposition of the settlements issue must account for the fact that some 350,000 Jews now reside in communities in the West Bank. Various formulas have been developed for consolidating the majority of settlers into geographic blocs that would remain part of Israel in exchange for concomitant land swaps, adjusting the political boundaries between Israel and a future Palestinian state.
• The 1993 Oslo Accords stipulated that discussion of the final disposition of the settlements question should be deferred until the last phase of Israeli-Palestinian peace talks.
• Land-swap formulas that would allow a large proportion of Jewish settlers to remain in a small proportion of the West Bank are viewed by many as an expression of an emerging national consensus among Israelis on how to resolve the settlements issue.

More Information

The disposition of Jewish settlements in the West Bank (Judea and Samaria) is one of the most complex issues affecting the Israeli-Palestinian relationship. The settlements issue is made all the more complicated by serious misconceptions about the moral, political, historical, religious and legal right of Jews to reside in these “disputed territories” and by the vital security function performed by many of the settlements (as “trip wires” and “early-warning stations” against possible future attack). It is only when Israeli claims vis-à-vis the West Bank and practical considerations regarding settlement activity are taken into account that a permanent resolution of the Israeli-Palestinian conflict might be possible.

Since 1967, official Palestinian policy (backed by widespread international public opinion) has argued that all Jewish settlement activity in the West Bank and Gaza is illegal under international law and must be withdrawn as a precondition for peace. This policy is based primarily on a narrow interpretation of the Fourth Geneva Convention, which prohibits the “occupying power” from altering the status of territories taken in war. Specifically, the Palestinians charge that Israeli settlement activity violates Article 49 of the Convention, which states that the occupying power:

shall not deport or transfer parts of its own civilian population into the territory it occupies.

With the active encouragement of their supporters internationally, Palestinian leaders have used the settlements issue and the Geneva Convention as their principal excuses to avoid direct negotiations or reach a peace agreement with Israel.

The settlements issue is also used as a weapon in the Palestinian campaign to discredit, delegitimize and isolate Israel at the United Nations and in other international fora. In July 1998, Israel initially declined to support the draft treaty for the International Criminal Court, mainly because of the inclusion – at the insistence of Arab countries – of a clause implying that settlement activity in “Occupied Palestinian Territory, including Jerusalem” is a violation of the Geneva Convention and a “war crime” and “grave offense” comparable to the Holocaust and other more contemporary atrocities.

Between 1997 and 1999 a series of Emergency Special Sessions of the United Nations General Assembly were convened to condemn Israeli settlement activity as was, in July 1999, an unprecedented meeting of the High Contracting Parties to the Fourth Geneva Convention. Settlement activity was also a central focus of Arab-led efforts to delegitimize Israel and Zionism at the World Conference Against Racism, Racial Discrimination, Xenophobia and Other Intolerance (Durban, South Africa, September 2001), a second meeting of the High Contracting Parties (December 2001), and at yet another Emergency Special Session of the UNGA (December 2001).

Israel rejects the Palestinian perspective on several grounds. It disputes the applicability of the Fourth Geneva Convention to the West Bank and Gaza, inasmuch as the Convention relates explicitly to the responsibilities of a foreign power in belligerent occupation of another country as the consequence of an aggressive war, whereas Israel came into possession of the disputed areas in 1967 as the result of a purely defensive war. With specific reference to settlement activity, Israel discounts the Arab interpretation of Article 49 of the Convention, arguing that the reference was clearly to the forced transfer of civilian populations (along the lines of that committed by the Nazis during the Second World War), whereas settlement activity in the West Bank is entirely voluntary (Israel withdrew all settlements from Gaza in 2005).

The settlement issue is complicated by the fact that the sovereignty of the West Bank and the Gaza Strip remains unclear. From 1920 to 1948, Great Britain administered the areas as part of the League of Nations Mandate for Palestine. The Mandate both legitimized Jewish immigration to Palestine and instructed the Mandatory authority to encourage and facilitate Jewish settlement throughout the country. It was partly on this basis that new Jewish communities were established during the Mandatory period in what is now referred to as the West Bank, often near ancient religious sites.

The Arab repudiation of the UN Partition Plan (General Assembly Resolution 181 of November 1947), combined with the termination of the Mandate on May 14, 1948, left the status of the West Bank and Gaza in limbo. Though Israeli sovereignty was applied to areas under Jewish control at the end of the 1948-1949 War, no legal regime was instituted in Arab-controlled areas to replace Mandatory law. From 1948 to 1967 no Jews resided in Egyptian-occupied Gaza and Jordanian law prohibited Jews from living in the West Bank. But at no time did Egypt incorporate Gaza nor was Jordan’s 1950 annexation of the West Bank and eastern Jerusalem recognized internationally. According to international legal authority Eugene Rostow:

The right of the Jewish people to settle in Palestine has never been terminated…The Jewish right of settlement in the area is equivalent in every way to the right of the local population there.

While disputing the de jure designation of the West Bank and Gaza as “occupied territories” as defined by the Fourth Geneva Convention, Israel has, since 1967, voluntarily complied with the humanitarian provisions of the Law of Occupation in its administration of the territories. In practical terms, this has meant providing all forms of public service to the territories, including improving the quality of medical care and establishing universities for the local Arab population. No Israeli government ever moved to annex the territories, compelled Israeli citizens to move to settlements there, or instituted a policy of displacing or transferring the Palestinians.

Jewish settlement in the West Bank is based on a complex blend of religious, legal, historical, strategic and demographic claims.

Religious

Legal

Historical

Strategic

Demographic

The 1993 Oslo Accords stipulated that discussion of the final disposition of the settlements question should be deferred until the last phase of Israeli-Palestinian peace talks. The 1995 Oslo II agreement incorporated all settlements in “Area C”, areas of the West Bank and Gaza over which Israel retained exclusive control during the interim period of partial Palestinian autonomy, from which Israel would undertake a phased, partial redeployment within the context of permanent status talks.

In a 1994 study undertaken for Tel Aviv University‘s Jaffee Center for Strategic Studies, Joseph Alpher proposed a plan involving minor adjustments to the Green Line so as to permit Israel to annex about 11% of the West Bank – incorporating most settlements in Western Samaria (where the vast majority of Jewish settlers reside) as well as a corridor of trip-wire settlements in the Jordan Valley and around Jerusalem. Additional fine-tuning of the political boundary would be undertaken to avoid Israel’s annexing Palestinian population centres, and the remaining territory in the West Bank and Gaza Strip would be transferred to Palestinian control. Settlers wishing to remain in areas not incorporated in Israel would be subject to Palestinian authority. In secret discussions concluded in the fall of 1995, Israel government minister Yossi Beilin and Palestinian official Abu Mazen (Mahmoud Abbas) reportedly agreed on a plan calling for Israel to annex about 10% of the West Bank, thereby incorporating under Israeli sovereignty the large blocs of Jewish settlements, then accounting for approximately 70% of the settlers. As compensation for the small percentage of West Bank land retained by Israel, the Palestinians would receive territory from inside the Green Line near the Gaza Strip. It was agreed that no settlements would be required to dismantle and that settlers residing in non-annexed areas would retain Israeli citizenship but live under Palestinian sovereignty with special security arrangements (including safe passage between settlement blocs and to and from Israel).

The Beilin-Abu Mazen formula was never formally approved by Israel or the Palestinian Authority. Nevertheless, it appeared to contain the essence of a pragmatic and creative solution to the settlements issue. By the same token, though not endorsed as official policy by Labour or Likud, the so-called “Beilin-Eitan” understandings of January 1997 – in which a bipartisan committee of Israeli parliamentarians headed by Labour’s Yossi Beilin and the Likud’s Michael Eitan agreed in principle to terms similar to those discussed by Beilin and Abu Mazen – were nevertheless viewed by many analysts as an expression of an emerging national consensus among Israelis on how to resolve the settlements issue.

Evidence of this emerging Israeli national consensus is reflected in several interesting developments. While continuing to proclaim the moral right of Jews to settle in all of the “disputed territories”, Benjamin Netanyahu’s Likud-led coalition government withdrew from 80% of the city of Hebron (in January 1997) and agreed to additional phased redeployments in the Wye River Memorandum (October 1998). For its part, the Labour Party undertook significant modifications in its own policy toward the settlements issue. In the 1992 election campaign, Yitzhak Rabin drew vague distinctions between “political” and “security” settlements, implying a readiness to abandon the former while retaining the latter in the context of a negotiated agreement. As Prime Minister, Ehud Barak took the discussion to a different plane by:

1. Drawing a more precise distinction than did Rabin between political and security settlements;
2. Acknowledging the likelihood that many of the former would have to be evacuated in order for Israel to retain the latter; and
3. Formally establishing as one of his “red lines” a permanent peace agreement in which the vast majority of Jewish residents of the West Bank would be incorporated in large settlement blocs under Israeli sovereignty. (These blocs were to include Gush Etzion, Ma’aleh Adumim and Ariel.)

At secret talks in Stockholm, Sweden, in the winter-spring of 2000, in preparation for the Camp David summit (July 2000), Israeli and Palestinian negotiators reportedly reached agreement in principle on a plan that would leave Israel in permanent retention of about 5% of the West Bank, into which would be incorporated three large settlement blocs comprising some 80% of the settlers. It was generally assumed (though never formally confirmed by Israeli officials) that most of the remaining settlements, many in isolated and indefensible areas, would be evacuated.

The essence of this working agreement drove the limited discussion about settlements at Camp David and was incorporated in the “bridging” ideas presented by US President Bill Clinton in late December 2000; the Clinton proposal further spoke about Israel’s transfer to the Palestinians of territory inside the Green Line to compensate for the 5% of the West Bank to be retained by Israel. Even though this proposal marked a significant departure from Israel’s longstanding interpretation of UNSC Resolution 242 (according to which Israel is not obligated to withdraw from all territory taken in the June 1967 war), it reportedly was accepted by the Barak government. However, the Palestinians prevaricated, requesting additional “clarifications” from the Americans.

In the meantime, as a gesture of good faith, the Barak government adhered to the practice adopted by successive Israeli governments since Oslo of voluntarily limiting the construction of new settlements, while permitting the controlled expansion of existing settlements. It is important to emphasize that, according to the Oslo accords and all subsequent signed agreements, Israel was under no obligation to limit settlement construction but did so purely as a “confidence-building measure.” Under the terms of the March 2001 coalition agreement, the national unity government headed by Prime Minister Ariel Sharon also pledged not to build new settlements, though it committed itself to fulfilling its responsibility to provide for the welfare of existing settlements, including their expansion to accommodate “natural increase.”c