Israeli settlements: Not illegal, but expansion should be suspended

The widely-held belief that the Israeli communities or settlements in the West Bank/Judea and Samaria are illegal is not true--at least, not true in a simple, straightforward and non-controversial way. Their status under international law bears closer scrutiny. However, even if the settlements are legal under international law, it doesn't follow that there are no constraints on their growth. Israeli law has something to say about the matter, as well.

Law professor David Phillips has written an article, "The Illegal-Settlements Myth," in the December 2009 issue of Commentary, that analyzes the legality question. It is worthwhile to read the entire piece; here is a summary of its main points.

To begin with, is the West Bank/Judea and Samaria properly considered to be "Palestinian territory"? No. There has never in the history of the world been a sovereign Palestinian state. For hundreds of years the area was a province in the Turkish Empire. During World War I in 1917 the British took all of "Palestine" (what is now Israel, the West Bank/Judea and Samaria, and Jordan) from the Turks. Shortly thereafter the League of Nations granted the U.K. a mandate to govern Palestine in order to create a "Jewish national home." In 1922 the Briish government split off the larger, east-of-the-Jordan-River bit in order to create the Hashemite Kingdom of Trans-Jordan. The remaining bit of "Palestine" (what is now Israel and the West Bank/Judea and Samaria) was everywhere open to Jewish and Arab habitation without ethnic distinction.

After World War II, the British abandoned Palestine; the United Nations voted to divide Palestine into a Jewish state and an Arab state. At that moment, when the Arabs of Palestine were offered their own state, they (and the then-existing Arab countries) said, "No." The Palestinian Arabs rejected statehood because it would have meant also accepting the existence of a neighboring Jewish state. During Israel's Independence War Jordan occupied the West Bank/Judea and Samaria, as well as eastern Jerusalem, killing or drivng out all the Jews living there, and destroying their homes and communities. This occupation was never recognized as legitimate. Nineteen years later, Jordan lost eastern Jerusalem and the West Bank/Judea and Samaria to Israel in the Six Day War.

What therefore is the status of the West Bank/Judea and Samaria, and Israel's relationship to it? Phillips writes:

This left open the question of the sovereign authority over the West Bank. The legal vacuum in which Israel operated in the West Bank after 1967 was exacerbated by Jordan’s subsequent stubborn refusal to engage in talks about the future of these territories. King Hussein was initially deterred from dealing with the issue by the three “no’s” of Khartoum. Soon enough, he was taught a real-world lesson by the Palestine Liberation Organization, which fomented a bloody civil war against him and his regime in 1970. With the open support of Israel, Hussein survived that threat to his throne, but his desire to reduce rather than enlarge the Palestinian population in his kingdom ultimately led him to disavow any further claim to the lands he had lost in 1967. Eventually, this stance was formalized on July 31, 1988.

Thus, if the charge that Israel’s hold on the territories is illegal is based on the charge of theft from its previous owners, Jordan’s own illegitimacy on matters of legal title and its subsequent withdrawal from the fray makes that legal case a losing one. Well before Jordan’s renunciation, Eugene Rostow, former dean of Yale Law School and undersecretary of state for political affairs in 1967 during the Six-Day War, argued that the West Bank should be considered “unallocated territory,” once part of the Ottoman Empire. From this perspective, Israel, rather than simply “a belligerent occupant,” had the status of a “claimant to the territory.”

To Rostow, “Jews have a right to settle in it under the Mandate,” a right he declared to be “unchallengeable as a matter of law.” In accord with these views, Israel has historically characterized the West Bank as “disputed territory” (although some senior government officials have more recently begun to use the term “occupied territory”).

Then why would anyone consider that Israeli communities in the West Bank/Judea and Samaria are illegal? The prinicipal argument rests on the Fourth Geneva Convention, Article 49(6), which states: “The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies.”

Phillips argues persuasively that "transfer" in that sentence is intended to prohibit involuntary transfers:

At the Geneva Conference itself, both the Final Report of the Committee charged with drafting the text of the 4th Convention for consideration by the delegates as well as comments by delegates generally differentiated between transfers that were voluntary and therefore permitted and those that were involuntary and therefore prohibited. As the Final Report to the delegates stated while explaining the differences between various articles dealing with the right of an occupying power to evacuate an area, primarily in the interest of the security of the civilian population’s security: “Although there was general unanimity in condemning such deportations as took place during the recent war, the phrase at the beginning of Article 45 [current Article 49] caused some trouble. . . . In the end the Committee had decided on a wording that prohibits individual or mass forcible removals as well as deportations of protected persons from occupied territory to any other country, but which permits voluntary transfers.”

Phillips goes on to make this salient point:

Concluding that Israeli settlements violate Article 49(6) also overlooks the Jewish communities that existed before the creation of the state in areas occupied by today’s Israeli settlements, for example, in Hebron and the Etzion bloc outside Jerusalem. These Jewish communities were destroyed by Arab armies, militias, and rioters, and, as in the case of Hebron, the community’s population was slaughtered. Is it sensible to interpret Article 49 to bar the reconstitution of Jewish communities that were destroyed through aggression and slaughter? If so, the international law of occupation runs the risk of freezing one occupier’s conduct in place, no matter how unlawful.

The claim that the Israeli settlement enterprise is illegal under international law is one of those propositions that "everyone" knows to be true, but likely isn't. The ability of the Muslim bloc to command majorities in the U.N. doesn't alter the analysis. The credulity and anti-Israel animus of the illiberal Left and the anti-Semitic Right doesn't change the facts.

But--and this is a big proviso--that doesn't by itself end the discussion. There is another important fact, which is that the Netanyahu government has undertaken a ten-month settlement freeze, as a gesture to the Palestinians to try to restart negotiations. This promise, whether wise or foolish, must be upheld; or, if the circumstances materially change, formally renounced. But Israel cannot make a commitment which it does not mean to keep. That is is not the way of liberal democracies.

Thus, the matter of enforcement of the suspension is of the keenest importance. Settler leaders in the West Bank/Judea and Samaria are threatening to resist the government's expansion freeze. There have already been arrests. Violence is not unthinkable.

As Prime Minister Binyamin Netanyahu said: "You have the right to demonstrate. You have the right to protest. You have the right to express an opinion, but it's unacceptable not to respect a decision that was taken by law." Respect for the rule of law is a paramount value of liberal democracy. If settlers or their sympathizers step outside of the law, the goverment of Israel must have the backbone to prosecute them.

This would have nothing to do with the legitimacy of the settlements, but everything to do with the legitimacy of the government of Israel.