The Legal Status of the Settlements

Professor Eugene Kontorovich of Northwestern Law School, Chicago, gave a talk on “The Legality of Settlements under International Law.”  He also has several published articles and videos on YouTube (see https://www.youtube.com/watch?v=V0ZTi-53t88 ).  Here is my summary of this presentation:

  1. Discussion of occupations around the world, such as Turkey in North Cyprus, Russia in Crimea, China in Tibet, are rarely prefaced by the term “illegal,” but Israeli settlements in the West Bank (Judea and Samaria) are invariably prefaced by the term “illegal” and then also usually “under international law.”
  2. Opponents of Israeli settlements on the West Bank usually quote Geneva Convention IV, article 49-6, as their basis for claiming the settlements are “illegal under international law.”  There is only one relevant sentence in this Treaty that states that “an occupying power shall not deport or transfer its own population into territories it occupies as a result of conflict.”  Note that this sentence does not mention “settlements,” and further it applies to an “occupier” and to “transfer.” Israel is neither an occupier of this land neither is it transferring its citizens to the areas in question. Allowing one’s citizens to move into an area is not “transfer” under the terms of this treaty
  3. This aspect of the Treaty has never been applied to any other State or conflict zone, and would require that Israel keep the territories it supposedly occupies free of its own citizens (Judenrein) from the time of occupation and forever.  This is certainly never been asked of any other occupying power.  Also, the Treaty only applies to contractual signatories, which does not include any local Arab or Palestinian entity. So this Geneva Convention simply does not apply!
  4. As to the fictional “occupation,” there is a general principle under international law called “Uti Posseditis Juris,” (see IsBlog July 19, 2016) that any sovereign country that succeeds to a given territory in fact has the right to all of that territory.  For example, where-ever a colonial power has transferred sovereignty to a new State, that State has the right to claim all the land that was occupied by the former colonial power, for example, Australia, Canada, New Zealand, Algeria, and so on.  So Israel has the right to claim the whole of the former “Palestine Mandate” as it was in 1948.
  5. Under the British Mandate (1922-48) granted to the UK by the League of Nations (and subsequently ratified by the UN) the West Bank was part of Mandatory Palestine.  The idea of a “Mandate” was a compromise in order to satisfy the intentions of the British and French to occupy the lands of the former Turkish Empire and the insistence of US Pres. Wilson that the two European colonial powers not expand their Empires at the expense of the conquered indigenous peoples.  Although the British tried to retain Palestine for themselves, they withdrew in 1948 and the Jewish State of Israel was declared.  The only part of the Palestine Mandate that was not included in Israel was the West Bank of the Jordan River (and Gaza), that was illegally occupied by Jordan, and even the Arabs did not recognize this occupation.  After the Six Day War of 1967, Israel recaptured this area and so it returned to its legitimate owner and so Israel cannot be termed an “occupier” of its own territory.

Following these legal arguments, one must conclude that Israel is not “occupying” the West Bank and it has a perfectly legal right to allow its citizens to settle and live in that area. All else is propaganda.

 

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2 thoughts on “The Legal Status of the Settlements

  1. Hi

    So why is Israel willing to concede parts of Judea & Samaria in a two state solution. Surely it’s within its right to “annexe” the disputed territory?

    Regards

    Sonny Kosky

    Like

    • I agree, I asked Prof Kontorovich why the Israel Government does not test its legal right before an international court. They may fear that they will get a biased judgement as they did with the “wall.” I suppose the answer is that it is a political judgement and not a legal one.

      Like

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