The settlements are illegal under international law

It is abundantly clear to most observers that settlements built in the territories were always intended to eventually be permanent parts of the State of Israel.

By DANIEL STEIMAN
West Bank security fence barrier wall settlement 370 (photo credit: Reuters)
West Bank security fence barrier wall settlement 370
(photo credit: Reuters)
Every few months or so, I come across an op-ed on an Israeli or Jewish website that attempts to argue that the world’s uproar against settlements is illegitimate, and that settlements are perfectly legal under international law.
The latest such op-ed I read, about a month ago in this publication, was from Yair Shamir, the current Israeli minister of agriculture and son of the late Yitzchak Shamir.
While I do not dispute that there has always been an intense bias toward Israel when it comes to applying the standards of international law, this does not, however, change the fact that Israel’s settlement enterprise is, and has always been, grossly illegal under international law.
Shamir’s arguments to the contrary are not only misinterpretations of the articles of international law, but also run counter to the very spirit of that law.
As a first principle to this question, it must be understand that the West Bank is under a legal regime of belligerent occupation. Belligerent occupation is a specific category under the international laws of war that comes into effect when a state captures territory from another state during the course of war.
On the first day that Israel came into possession of the West Bank and Gaza Strip from Jordan and Egypt, respectively, the IDF declared its authority over the territories, and that the international law of belligerent occupation would be the law of the land in those territories. Much to Israel’s credit, it has been the only state since the end of World War II to have formally applied the international law of occupation in a territory it has conquered through war. Occupation law in the territories is still enforced to this day, 46 years after it was established.
It is in regard to the West Bank’s legal status that we get to the first of Shamir’s major misinterpretations of international law. Shamir argues that because Jordan illegally occupied and annexed the West Bank during the Israeli War of Independence, it did not have legal sovereignty over the land. Thus, there is no lawful sovereign that Israel can return the land to, and therefore Israel’s occupation must be considered sui generis, and not a normal military occupation to which the main pillars of international occupation law, the Hague Regulations of 1907, and the 4th Geneva Convention, are applicable.
It is indeed true that the Hague Regulations as a legal document is primarily concerned with protecting the sovereign titles of territory under occupation. But this is not the case with the 4th Geneva Convention, of which Israel is a signatory. Established in 1949, in response to the horrific atrocities committed against civilians during World War II, the primary focus of that convention is to protect the human rights of civilians who find themselves under occupation, not with the legal titles of sovereigns.
As Yoram Dinstein, former rector of Law at Tel Aviv University and world authority on the international laws of war, notes, any confusion about whether the 4th Geneva Convention is applicable in the West Bank is cleared up by Article 4 of the Convention (Dinstein 2009), which states: Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. (Geneva Convention IV).
By the fact that Israel conquered a territory that was inhabited by civilians who are not Israeli citizens (i.e. Palestinian Arabs in the West Bank), this makes the Fourth Geneva Convention applicable, and de jure, makes Israel’s control of the West Bank a military occupation.

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Israeli jurist Theodor Meron also concludes that “the application of the [4th Geneva] Convention should not be interpreted as the recognition of the status of Jordan in the West Bank. It must be remembered that, as a humanitarian convention par excellence, the Fourth Geneva Convention is concerned primarily with people, rather than territory; with human rights, rather than with legal questions pertaining to territorial status” (Meron 1979: 109).
Furthermore, in how many cases of war and occupation are the sovereign rights to a particular land not disputed? Is Israel’s situation really that unique? It would appear to be a very narrow and ineffective interpretation of international law if the rights afforded to civilians under the 4th Geneva Convention are disregarded in every case when it cannot be determined which sovereign has legal ownership to the land under occupation.
If the Fourth Geneva Convention is applicable in the West Bank, than the question becomes whether Israeli settlements conform to Article 49(6) of the convention: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Shamir argues that this law only prevents the occupying power from forcing its own citizens into the territories it has conquered, i.e. in reaction to when Germany deported its Jewish citizens to the death camps in Poland and elsewhere, and not in cases of citizens voluntarily moving to the occupied territory. Both Shamir’s interpretation of the wording of the law and the background of its formulation are completely false.
First, such an interpretation implies that Article 49(6) is intended to protect the citizens of the occupying power, in this case Israeli citizens. However, the sole purpose of the 4th Geneva Convention is to protect the civilians living under occupation, not the citizens of the occupying power, who are not afforded any protection by the Convention.
Second, the term “transfer” does not imply forced, as evidenced by another article in the Convention, Article 49(1), which forbids the deportation of civilians from the occupied territories, and uses the phrase “forcible transfer,” not simply the term “transfer,” as Article 49(6) does.
Further, to quote Dinstein, the settler’s “voluntary cooperation in the transfer does not diminish from its illicit character, pursuant to the sixth paragraph of Article 49, as long as the Occupying Power stands behind the project.”
Article 49(6) is always applicable as long as the occupying power is facilitating the transfer of its own citizens, whether forced or not. What Article 49 (6) aimed to prevent was not situations such as those in which Nazi Germany was deporting its Jewish citizens to the death camps, but instead Nazi Germany’s intention to transfer its ethnic German citizens into the Eastern European territories it conquered as part of its Lebensraum policy to alter the demographics of those territories.
This is not to compare in any way Nazi Germany with Israel’s settlement policy, but instead to illustrate how the voluntary transfer of citizens of the occupying power could be used to violate the human rights of the occupied, and thus was prohibited under Article 49(6).
Furthermore, if one concedes that Israel’s rule over the territories is an occupation, then the settlement project is violating the most fundamental principle of international occupation law: that the occupying power may not unilaterally annex any territory it conquers.
It is abundantly clear to most observers that the settlements built in the territories were always intended to eventually be permanent parts of the State of Israel.
Under international law, the occupying power may temporarily requisition the private property of a civilian living under occupation only if it is done strictly for the purposes of security. Thus, whenever a West Bank Palestinian, whose land was confiscated by the IDF to build a settlement, challenged the legality of that confiscation in Israel’s High Court, the military always argued that the settlement in question was temporary and was built strictly for the purposes of security.
But, of course, anyone who saw through the IDF’s smokescreen could see that all settlements are intended to be permanent in nature, and a large number, especially those built for religious Zionist settlers, were built for ideological reasons, not security. Thus, the settlement enterprise can be seen to be a grave violation of international occupation law as it violates the very fundamental core of that law: there is no legitimacy to annexation through conquest.
For people like Shamir who remain pro-settlement, there are really only two arguments they can make with respect to settlements and international law.
One could argue that international legal community is simply biased against Israel anyway, and therefore Israel does not need to follow laws that other nations have ignored with impunity. Or, two, they could say that Jewish law supersedes international law, and that it is the law of the Torah that truly governs Israel’s rule in the West Bank. But what they cannot say is that international law is on the side of the settlement project. Nothing could be further from the truth.The writer received an MA from Georgetown University’s Department of Government in 2012. He currently lives and works in Jerusalem.