Discussing the multifaceted issue of Jewish population centers in Judea and Samaria, a.k.a. the West Bank (of the river Jordan) which was formerly held by the Kingdom of Jordan and its British and Ottoman predecessors, is difficult.
There are historical, legal, moral, religious and political considerations that should be taken into account in order to do the subject justice. It would be impossible for me to take everything into account, even if I had known all the intricacies, in a simple post. I’m neither a legal nor historical scholar. However, I wish to make an attempt to spell out my own views and how I arrived at them, even if I wish to acknowledge that they are somewhat ambiguous.
In this first post about the settlements, I wish to discuss the legal questions and aspects. In subsequent post(s) I will try to look at the moral, religious and political aspects as well.
Part 1: Historical Background and Legal Dispute
The United Kingdom conquered historical Palestine, from the declining Ottoman Empire, in 1917, during the first World War. It shortly divided off the east bank of the river Jordan and established the Emirate of Transjordan, which later became the Kingdom of Jordan. The UK was given a legal mandate by the League of Nations in 1922 which aimed at eventually giving rise to self-governance when the local population was deemed ready for it. The mandate incorporated the 1917 Balfour Declaration, which called for the establishment of a Jewish National Home in Palestine, while adding that “..nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine“.
At the end of the second World War the UK could no longer hold on to the territory, against the will of both Jewish and Arab locals, and deferred the decision to the United Nations. As we know, the UN General Assembly voted with a large majority to partition the land into one Jewish and one Arab state. As the General Assembly has no authority to create states, this was a recommendation to the Security Council to take it from there, granting moral legitimacy to the creation of two new states. Due to ensuing events the Partition Plan was never implemented and, as many outside interventions do, this resulted in war. A war that began with the establishment of Israel, after the Arab nations, including the Palestinian Arab representatives, had rejected the UN Partition Plan, and which led to Jordanian occupation of Judea and Samaria. The Jordanian presence lasted until the Six Day War of 1967 when control of the territories was ceded to Israel.
When we are discussing the legality of Israeli settlements, what we usually refer to is the question of the legality of Jewish population centers across the 1949 armistice lines between Israel and Jordan (I’m leaving out the Gaza Strip as there are no more Israeli settlements in it). They are deemed illegal by the international community based on its reading of article 49 of the Fourth Geneva Convention which states that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.“. Israel rejects the application of this article to the situation with regards to Judea and Samaria, both from the perspective of the legal status of the territory itself (it views it as a “disputed” and not “occupied” territory) and because Israel neither deports nor transfers its own population to live in the West Bank, as the Jewish residents who live there have either moved there voluntarily or been born there.
There’s more to the legal argument of course. A few examples: in 2004 the International Court of Justice gave an advisory opinion stating that Article 2 of the 4th Geneva Convention (which deals with its application) does apply on the territories held by Israel after 1967, suggesting that the legal status of the territories prior to the armed conflict is irrelevant to its application. On the other hand, the American lawyer Morris Berthold Abram was involved in drafting the Geneva Convention and has said that it “was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people.“.
What seems clear to me is that the entire international community supports a legal position against settlements, and that this reading of international law to justify it smacks of politics (right or wrong). Whatever the case, it’s not entirely clear to me it matters that much. There have been many UN Security Council resolutions on Israel and the territories it holds, affirming the application of article 49 of the 4th Geneva Convention, but none which were passed under Chapter 7, which would make them binding. Even the International Court of Justice’s ruling was advisory and non-binding (it doesn’t really have a true compulsory jurisdiction). I certainly don’t make the claim that they therefore are worthless, but while the majority opinion clearly goes against Israel in this, it’s still a matter of an unsettled legal dispute. And of course, in international as opposed to national law, there is no sovereign to uphold and enforce the law, or in this case a legal opinion.
In any case, there’s finally the argument based on the hypocrisy of the international community. Take the Security Council – since when have its members acted solely in accordance with international law? Iraq in the case of the US and the UK (and many other countries)? Libya, in the case of EU and the US? Syria, Ukraine and Georgia in the case of Russia? Just to mention a few recent examples. Of course, invoking Chapter 7 against one of the major powers with veto rights in the Security Council could lead to world war if taken seriously enough. The truth is that states act in ways motivated by ideological, moral or simply national interests however defined. While international law may be a useful tool, we’re far from a situation where it applies everywhere in a fair an unbiased manner.
What we have in the case of Israeli settlements seems to be the application of international law in order to bolster a pre-existing moral opinion. The world has made it clear that it views the settlements as immoral and wrong, partly because of the claim that they undermine the prospects for a two-state solution. However, the simple cry that Israel is breaking international law as a claim against the settlements falls short.
Disclaimer: If you find fault with any information pertaining to the UN Security Council and/or International Law, I’d be happy to learn about it in the comments below – provided you back up your claims with sources.