Israeli Settlements and International Law

30 Nov 2015

Attempts to present Jewish settlement in West Bank territory (ancient Judea and Samaria) as illegal and "colonial" in nature ignores the complexity of this issue, the history of the land, and the unique legal circumstances of this case.​​

The Historical Context

Jewish settlement in the territory of ancient Judea and Samaria (the West Bank) is often presented as merely a modern phenomenon. In fact, Jewish presence in this territory has existed for thousands of years and was recognized as legitimate in the Mandate for Palestine adopted by the League of Nations in 1922, which provided for the establishment of a Jewish state in the Jewish people's ancient homeland.

After recognizing "the historical connection of the Jewish people with Palestine" and "the grounds for reconstituting their national home", the Mandate specifically stipulated in Article 6 as follows:

"The 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, in cooperation with the Jewish Agency referred to in Article 4, close settlement by Jews on the land, including State lands not required for public use".

Some Jewish communities and settlements, such as in Hebron, existed throughout the centuries of Ottoman rule, while settlements such as Neve Ya'acov, north of Jerusalem, the Gush Etzion bloc in southern Judea, and the communities north of the Dead Sea, were established under British Mandatory administration prior to the establishment of the State of Israel, and in accordance with the League of Nations Mandate.

Many contemporary Israeli settlements have actually been re-established on sites which were home to Jewish communities in previous generations, in an expression of the Jewish people's deep historic and abiding connection with this land - the cradle of Jewish civilization and the locus of the key events of the Hebrew Bible. A significant number are located in places where previous Jewish communities were forcibly ousted by Arab armies or militia, or slaughtered, as was the case with the ancient Jewish community of Hebron in 1929.

For more than a thousand years, the only administration which has prohibited Jewish settlement in these areas was the Jordanian occupation administration, which during the nineteen years of its rule (1948-1967) declared the sale of land to Jews a capital offense. The right of Jews to establish homes in these areas, and the private legal titles to the land which had been acquired, could not be legally invalidated by Jordanian  occupation - which resulted from their illegal armed invasion of Israel in 1948 and was never recognized internationally as legitimate - and such rights and titles remain valid to this day.

In short, the attempt to portray Jewish communities in the West Bank-Judea and Samaria as a new form of "colonial" settlement in the land of a foreign sovereign is as disingenuous as it is politically motivated. At no point in history were Jerusalem and the West Bank-Judea and Samaria subject to Arab Palestinian  sovereignty. At issue is the right of Jews to reside in their ancient homeland, alongside Arab Palestinian communities, in an expression of the connection of both peoples to this land.

International Humanitarian Law in the West Bank-Judea and Samaria and Gaza Strip

International Humanitarian Law (IHL) or the Laws of Armed Conflict (LOAC) prohibits the transfer of segments of the population of a state to the territory of another state which it has occupied as a result of the resort to armed force. This principle, which is reflected in Article 49(6) of the Fourth Geneva Convention (1949), was drafted immediately following the Second World War and as a response to specific events that occurred during that war.

As the International Red Cross' authoritative commentary to the Convention confirms, the principle was intended to protect the local population from displacement, including endangering its separate existence as a race, as occurred with respect to the forced population transfers in Czechoslovakia, Poland and Hungary before and during the war. Quite apart from the question of whether the Fourth Geneva Convention applies de jure to territory such as the West Bank-Judea and Samaria over which there was no previous legitimate sovereign, the case of Jews voluntarily establishing homes and communities in their ancient homeland, and alongside Arab-Palestinian communities, does not match the kind of forced population transfers contemplated by Article 49(6).

As Professor Eugene Rostow, former US Under-Secretary of State for Political Affairs has written: "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there" (AJIL, 1990, vol. 84, p.72). The provisions of Article 49(6) regarding forced population transfer to occupied sovereign territory should not be seen as prohibiting the voluntary return of individuals to the towns and villages from which they, or their ancestors, had been forcibly ousted. Nor does it prohibit the movement of individuals to land which was not under the legitimate sovereignty of any state and which is not subject to private ownership.

In this regard, it should be noted that Israeli settlements in the West Bank-Judea and Samaria have been established only after an exhaustive investigation process, under the supervision of the Supreme Court of Israel, and subject to appeal, which is designed to ensure that no communities are established illegally on private land. 

Just as the settlements do not violate the terms of Article 49(6) of the Fourth Geneva Convention, they do not constitute a "grave breach" of the Fourth Geneva Convention or "war crimes", as some claim. In fact, even according to the view that these settlements are inconsistent with Article 49(6), the notion that such violations constitute a "grave breach" or a "war crime" was introduced (as a result of political pressure by Arab States) only in the 1977 Additional Protocols to the Geneva Conventions, to which leading States including Israel are not party and which, in this respect, does not reflect customary international law. 

In legal terms, the West Bank-Judea and Samaria 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 Arab/Palestinian sides have committed to this principle. Israel has valid claims to title in this territory based not only on the historic Jewish connection to, and long-time residence in this land, its designation as part of the Jewish state under the League of Nations Mandate for Palestine, and Israel's legally acknowledged right to secure boundaries, but also on the fact that the territory was not previously under the legitimate sovereignty of any state and came under Israeli control in a war of self-defense. At the same time, Israel recognizes that the Arab/Palestinians also entertain claims to this area. It is for this reason that the two sides have expressly agreed to resolve all outstanding issues, including the future of the settlements, in direct bilateral negotiations to which Israel remains committed.

Israeli-Arab/Palestinian Agreements

The bilateral agreements reached between Israel and the Arab/Palestinians, and which govern their relations, contain no prohibition on the building or expansion of settlements. On the contrary, it is specifically provided that the issue of settlements is reserved for permanent status negotiations, reflecting the understanding of both sides that this issue can only be resolved alongside other permanent status issues, such as borders and security.  Indeed, the parties expressly agreed - in the Israeli-Arab/Palestinian Interim Agreement of 1995 - that the Arab Palestinian Authority has no jurisdiction or control over settlements or Israelis and that the settlements are subject to exclusive Israeli jurisdiction pending the conclusion of a permanent status agreement.

It has been charged that the prohibition, contained in the Interim Agreement (Article 31(7), against unilateral steps which alter the "status" of the West Bank-Judea and Samaria and Gaza Strip implies a ban on settlement activity. This position is unfounded. This prohibition was agreed upon in order to prevent either side from taking steps which purport to change the legal status of this territory (such as by annexation or unilateral declaration of statehood), pending the outcome of permanent status negotiations. Were this prohibition to be applied to building - and given that the provision is drafted to apply equally to both sides - it would lead to the dubious interpretation that neither side is permitted to build homes to accommodate for the needs of their respective communities until permanent status negotiations are successfully concluded.

In this regard, Israel's decision to dismantle all settlements from the Gaza Strip and some in the Northern West Bank-Judea and Samaria in the context of the 2005 Disengagement Plan were unilateral Israeli measures rather than the fulfillment of a legal obligation.

Conclusions

• Attempts to present Jewish settlement in ancient Judea and Samaria (the West Bank) as illegal and "colonial" in nature ignores the complexity of this issue, the history of the land, and the unique legal circumstances of this case.

• Jewish communities in this territory have existed from time immemorial and express the deep connection of the Jewish people to land which is the cradle of their civilization, as affirmed by the League of Nations Mandate for Palestine, and from which they, or their ancestors, were ousted.
• The prohibition against the forcible transfer of civilians to territory of an occupied state under the Fourth Geneva Convention was not intended to relate to the circumstances of voluntary Jewish settlement in the West Bank-Judea and Samaria  on legitimately acquired land which did not belong to a previous lawful sovereign and which was designated as part of the Jewish State under the League of Nations Mandate for Palestine.
• Bilateral Israeli-Arab/Palestinian Agreements specifically affirm that settlements are subject to agreed and exclusive Israeli jurisdiction pending the outcome of peace negotiations, and do not prohibit settlement activity.
• Israel remains committed to peace negotiations without preconditions in order to resolve all outstanding issues and competing claims. It continues to ask the Arab-Palestinian side to respond in kind. It is hoped that such negotiations will produce an agreed secure and peaceful settlement which will give legitimate expression to the connection of both Jews and Palestinians to this ancient land.

See Also

• The Peace Process and the Settlements
  
• Guide to the peace process: Israel-Palestinian negotiations

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-Judea and Samaria 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-Judea and Samaria 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.

*********************************

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.
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. 
(U.N. Resolutions cannot supersede International Agreements and Treaties of post WWI).
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
sovereignty or 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.

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
recognized the right of the Jewish people to "close settlement" in the whole
of the Mandated territory. 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 1992. 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 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 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.

*****************************
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 were 98 or 100 percent Arab 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 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 Arabs 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 West Bank - Judea and Samaria to become Arab territory, they should persuade Jordan

and the Arabs living in the 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.

The Jewish right of settlement in the West Bank - Judea and Samaria is conferred by the

same provisions of the Mandate 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.
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 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.

Many 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 "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. 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. 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 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
occupied in the course of the 1967 war. The Resolutions leave it to the parties to agree on
the terms of peace.

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 Arab 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 territories, so that at a
convenient moment, or in a peace negotiation, the claim that the West Bank
is "Arab" territory could be made more plausible. Some in Israel favor the
settlements for the obverse reason: to reinforce Israel's claim for the
fulfillment of the Mandate 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 Palestinian
Arab 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 occupied territories is a crucial part of the 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
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 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, at least for Israel and
the West Bank. 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 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,
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-Judea and Samaria are often simplistically cited as the cause of the Israeli-Arab/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 Arab-Palestinian leadership as an excuse not to enter into negotiations and as weapon to discredit Israel.
• The sovereignty of the West Bank-Judea and Samaria 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-Judea and Samaria.
• While disputing the de jure designation of the West Bank-Judea and Samaria 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 Arab-Palestinians.
• Jewish settlement in the West Bank-Judea and Samaria 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 550,000 Jewish families now reside in communities in the West Bank-Judea and Samaria. 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 Arab-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-Arab/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-Judea and Samaria 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-Arab/Palestinian relationship. The Jewish communities and 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-Judea and Samaria and practical considerations regarding settlement activity are taken into account that a permanent resolution of the Israeli-Arab/Palestinian conflict might be possible.

Since 1967, official Arab-Palestinian policy (backed by widespread international public opinion) has argued that all Jewish communities and settlement activity in the West Bank-Judea and Samaria 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 Arab-Palestinians charge that Israeli communities and 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, Arab-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 Arab-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 Arab-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 Arab-Palestinian perspective on several grounds. It disputes the applicability of the Fourth Geneva Convention to the West Bank-Judea and Samaria 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-Judea and Samaria 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-Judea and Samaria 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-in all the region of Palestine. 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-Judea and Samaria, often near ancient religious sites.

The Arab repudiation of the UN Partition Plan (General Assembly Resolution 181 of November 1947), which is only a recommendation with no legal standing and cannot supersede International Agreements and Treaties of post WWI, combined with the termination of the Mandate on May 14, 1948, left the status of the West Bank-Judea and Samaria 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-Judea and Samaria. But at no time did Egypt incorporate Gaza nor was Jordan’s 1950 annexation of the West Bank-Judea and Samaria 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-Judea and Samaria 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 Arab-Palestinians.

Jewish communities and settlement in the West Bank-Judea and Samaria 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-Arab/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 Arab-Palestinian autonomy, from which Israel would undertake a phased, partial redeployment within the context of permanent status talks. (The Oslo Accords of 1995 was to expire after 5 years and in view of Arab-Palestinians statements it is null and void and therefore; The Arab-Palestinian Authority is dismantled and has no legitimate existence or standing. Therefore all official charges and claims by the Arab-Palestinian Authority which is now defunct shall be and must be ignored and have no legal validity).

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 Arab-Palestinian population centres, and the remaining territory in the West Bank-Judea and Samaria and Gaza Strip would be transferred to Arab-Palestinian control. Settlers wishing to remain in areas not incorporated in Israel would be subject to Arab Palestinian authority. In secret discussions concluded in the fall of 1995, Israel government minister Yossi Beilin and Arab-Palestinian official Abu Mazen (Mahmmoud Abbas) reportedly agreed on a plan calling for Israel to annex about 10% of the West Bank-Judea and Samaria, 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 Arab-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 Arab-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 Arab 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 Labor or Likud, the so-called “Beilin-Eitan” understandings of January 1997 – in which a bipartisan committee of Israeli parliamentarians headed by Labor’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 and legal 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 re-deployments in the Wye River Memorandum (October 1998). For its part, the Labor 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-Judea and Samaria 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 Arab-Palestinian negotiators reportedly reached agreement in principle on a plan that would leave Israel in permanent retention of about 5% of the West Bank-Judea and Samaria, 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 Arab-Palestinians of territory inside the Green Line to compensate for the 5% of the West Bank-Judea and Samaria 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

The Oslo Accords of 1995 was to expire after 5 years and in view of Arab-Palestinians statements it is null and void and therefore; The Arab-Palestinian Authority is dismantled and has no legitimate existence or standing. Therefore all official charges and claims by the Arab-Palestinian Authority which is now defunct shall be and must be ignored and have no legal validity.