International law and Israeli settlements

The consensus view of the international community is that the building of Israeli settlements in the West Bank, including East Jerusalem, is illegal under international law, although Israel disputes this. This view is largely based on UN Security council resolutions, including resolutions 446, 452, 465, 471 and 476 which find the settlements to be illegal.http://www.un.org/documents/sc/res/1980/scres80.htm The legal arm of the UN, the International Court of Justice, has found the settlements to be illegal under international law.http://www.icj-cij.org/docket/files/131/1671.pdf paragraphs 95-101 and 120
==Land ownership==
In November 2006 Peace Now acquired a report (which it claims was leaked from the Israeli Government's Civil Administration) that indicates that as much as 40 percent of the settlement land that Israel plans to retain in the West Bank is privately owned by Palestinians.Israeli Map Says West Bank Posts Sit on Arab Land - New York Times Peace Now further claims that this is a violation of Israeli law.BBC NEWS | Middle East | Settlements 'violate Israeli law' The Washington Post reported that "The 38-page report offers what appears to be a comprehensive argument against the Israeli government's contention that it avoids building on private land, drawing on the state's own data to make the case".West Bank Settlements Often Use Private Palestinian Land, Study Says - washingtonpost.com Peace Now published statistics and aerial maps for each individual settlement.http://www.peacenow.org.il/data/SIP_STORAGE/files/9/2569.pdfPeace Now : Settlements > Reports According to the spokesman of Israel's Civil Administration, this report was based on a leaked map that indicated Palestinian claims rather than rights, and that Peace Now never contacted the Civil Administration to confirm the report.Camera: update: Peace Now Map Based on only Palestinian Claims A recent report by Peace Now, allegedly based on official data provided by the Civil Administration following a court struggle cites a lower figure of 32%, a figure rejected by the Civil Administration.דו"ח: 32% מההתנחלויות - על שטח פלשתיני פרטי - חדשות -הארץ
In February 2008, The Civil Administration admitted that more than a third of West Bank settlements were built on private Palestinian land, originally seized by the IDF for 'security purposes'.Meron Rapoport, 'A third of settlements on land taken for 'security purposes' Ha'aretz,7/02/2008 The unauthorized seizure of private Palestinian land has been defined by the Civil Administration itself in a recent case as 'theft'.Meron Rapoport Court case reveals how settlers illegally grab West Bank lands Haaretz 17/03/2008
The Spiegel report, commissioned by the Israeli Defense Ministry, also details a large amount of land theft by Israeli settlements in the West Bank. The report reveals that some settlements deemed legal by Israel are in part, and sometimes in large part, effectively illegal outposts, and that large portions of veteran Israeli settlements, including Ofra, Elon Moreh and Beit El were built on private Palestinian land.February 1, 2009, Haaretz, "Stop the Deceit and Whitewashing", http://www.haaretz.com/hasen/spages/1060150.html
Illegal seizure of land owned by Palestinians continues. For example, in 2007 for several months young settlers have been occupying a house belonging to an elderly Palestinian widow. The widow has turned to the Israeli government for redress; the Israeli police are present in the area for a half day every week and have evicted the settlers on several occasions, but they keep coming straight back and intend to stay.New York Times, 7 December 2007, http://www.nytimes.com/2007/12/08/world/middleeast/08westbank.html?hp
According to the Israeli government, the majority of the land currently occupied by the new settlements was vacant or belonged to the state (from which it was leased) or bought fairly from the Palestinians. Former United States State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice, wrote in 1970 regarding Israel's case:
Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.From "Occupied Territories" to "Disputed Territories," by Dore Gold
The recent use of the Absentee Property Law to "transfer, sell or lease any real estate property" in East Jerusalem owned by Palestinians who live elsewhere (usually in the West Bank) without compensation has been criticized both inside and outside of Israel.BBC NEWS | Middle East | Jerusalem land seizures 'illegal'
Opponents of the settlements claim that "vacant" land had either belonged to Arabs who had fled or belonged collectively to an entire village, a practise that had developed under Ottoman rule. B'Tselem claims that the Israeli government used the absence of modern legal documents for the communal land as a legal basis for expropriating it.
==Legal status of the territories==
Although all areas in question were captured by Israel in the 1967 Six-Day War, Israel has treated them in three different ways:
* "East Jerusalem" - Jerusalem and its surroundings were envisioned as an international area under United Nations administration in the 1947 partition plan, which was accepted by Israel but rejected by all Arab nations. In 1948, Jordan captured and annexed the eastern half of Jerusalem, while Israel captured and annexed the west. Jordan's annexation of East Jerusalem was not recognized by the international community, with only the United Kingdom accepting it.Announcement in the UK House of Commons of the recognition of the State of Israel and also of the annexation of the West Bank by the State of Jordan. Commons Debates (Hansard) 5th series, Vol 474, pp1137-1141. April 27, 1950. scan (PDF) Following the Six-Day War in 1967, Israel annexed the eastern part, together with several villages around it.
* The Israeli Golan Heights Law of 1981 applied Israel's "laws, jurisdiction and administration" in the Golan Heights, which were captured from Syria in 1967. While the public viewed the move as an annexation, the law itself refrained from using the term officially.
* The Gaza Strip and West Bank form part of the areas offered by the UN to a prospective Arab state of Palestine in the Partition Plan, which was rejected by the Arabs. From 1948 until 1967, The Gaza Strip was occupied by Egypt while the West Bank was annexed by Jordan. Together with the annexation of East Jerusalem mentioned above, Jordan's annexation of the West Bank was not recognized internationally. Since 1967, the West Bank has been under military occupation. Gaza was also occupied in 1967, but after Israel's unilateral disengagement in 2005 the status has become disputed, with conflicting opinions on whether or not the occupation has ended.
The Jerusalem Law and the Golan Heights Law have both been deemed illegal by the UN Security Council (resolutions 478 and 497 respectively), and were not recognized by the international community. The United States abstained from the vote on Resolution 478 and the US Congress (which does not define US foreign policy) passed the Jerusalem Embassy Act,U.S. position on Jerusalem - statement before the House Foreign Affairs Committee - transcript US Department of State Bulletin, August, 1984 recognizing Jerusalem as the capital of Israel. The US views that parts of Jerusalem are not in Israel CRS Report for Congress Israeli-Arab Negotiations: Background, Conflicts, and U.S. Policy Updated February 23, 2008 (page 38, 1st paragraph, end) and the official US position is that the status of Jerusalem must be resolved in negotiations.U.S.: Only Israel, Palestinians should decide Jerusalem's future (Haaretz, Dec. 9, 2009) The EU views that Jerusalem is a corpus separatum,"Europe Affirms Support for a Corpus Separatum for Greater Jerusalem""Reaction by Foreign Minister Sharon on the EU stand on Jerusalem, 11 March 1999. and the United Nations considers Israel's proclamation of Jerusalem as its capital to be "null and void".GA resolution 63/30
Israel has signed peace treaties with Egypt (removing all Israeli settlements and returning the Sinai Peninsula to Egyptian sovereignty), and Jordan (returning small sections to Jordanian sovereignty); there are currently no peace treaties governing Israel's borders related to the West Bank, the Gaza Strip, and the Golan Heights. Israel therefore asserts that the armistice lines (known as the Green Line) of 1949 have no other legal status.
Palestinians object to this view as the Israel-Jordan peace treaty was not to alter the status of any territories coming under Israeli control during the hostilities of 1967 (article 3(2) of the Israel-Jordan peace treaty).
==Legal status of the settlements==
See also International law and the Arab-Israeli conflict
===The international consensus on the illegality of Israeli settlements===
According to the BBC, the "overwhelming view" of the international community is that the settlements are illegal based upon Article 49 of the Geneva Convention.
The consensus view is largely based on UN Security council resolutions, including resolutions 446, 452, 465, 471 and 476 which find the settlements to be illegal.http://www.un.org/documents/sc/res/1980/scres80.htm In Resolution 465 the settlements are even described as a "flagrant violation". Separately also the legal arm of the UN, the International Court of Justice, has found the settlements to be illegal under international law.http://www.icj-cij.org/docket/files/131/1671.pdf paragraphs 95-101 and 120
International human rights groups Amnesty International, Human Rights Watch and the Israeli human rights group B'Tselem have denounced the settlements as illegal.Israel/Occupied Territories: Removing unlawful Israeli settlements in the Occupied Territories: Time to act Amnesty International, 2005.Israel: Expanding Settlements in the Occupied Palestinian Territories Human Rights Watchhttp://www.btselem.org/english/Settlements/International_Law.asp "The establishment of settlements in the West Bank violates international humanitarian law which establishes principles that apply during war and occupation. Moreover, the settlements lead to the infringement of international human rights law. "
The European Union considers the settlements to be illegal.EU Committee Report. The reconvened Conference of the High Contracting Parties to the Geneva Conventions declared in 2001 that the settlements are illegal.http://www.icrc.org/web/eng/siteeng0.nsf/html/5FLDPJ Point 12
The United States believes that settlements are not legitimate.US 'opposed' to Israeli settlements (Al Jazeera, Nov. 4, 2009) (beginning of comments by Hillary Clinton)
The United Nations General Assembly has passed several resolutions denouncing all settlements in the occupied territories as illegal. Below is a summary of voting records concerning such resolutions from 2006-2008:http://www.un.org/documents/resga.htm
2006 	2007 	2008
Resolution 61/118 	Resolution 62/108 	Resolution 63/97
For 162, against 8, 10 abstentions	For 165, against 7, 5 abstentions	For 171, against 6, 2 abstentions
Against: Australia, Israel, Marshall Islands,
Micronesia, Nauru, Palau, Tuvalu, USA.	Against: Australia, Israel, Marshall Islands,
Micronesia, Nauru, Palau, USA.	Against: Israel, Marshall Islands, Micronesia, Nauru,
Palau, USA.
===Legal arguments===
The establishment and expansion of Israeli settlements in the West Bank and Gaza Strip have been described as "having no legal validity" by the UN Security Council in resolutions 446, 452, 465 and 471.
The European Union considers the settlements to be illegal, and an April 21, 1978 opinion of the Legal Adviser of the Department of State to the United States Congress on the legal status of Israeli settlements concluded that "[w]hile Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for the reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with international law."http://www.fmep.org/documents/opinion_OLA_DOS4-21-78.html, accessed 2007-05-13"Letter of the State Department Legal Advisor, Mr. Herbert J. Hansell, Concerning the Legality of Israeli Settlements in the Occupied Territories", cited in Progress report - The human rights dimensions of population transfer including the implantation of settler prepared by Mr. Awn Shawhat Al-Khasawneh.
In 1967, Theodor Meron, legal council to the Israeli Foreign Ministry stated in a legal opinion to Adi Yafeh, the Political Secretary of the Prime Minister, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention."Gorenberg, Gershom. "The Accidental Empire". New York: Times Books, Henry Holt and Company, 2006. p. 99. The legal opinion, forwarded to Levi Eshkol, was not made public at the time, and the Labor cabinet progressively sanctioned settlements anyway; this action paved the way for future settlement growth. In 2007, Judge Meron stated that "I believe that I would have given the same opinion today."http://www.independent.co.uk/news/world/middle-east/secret-memo-shows-israel-knew-six-day-war-was-illegal-450410.html Secret memo shows Israel knew Six Day War was illegal Nevertheless, Israel considers its settlement policy to be consistent with international law, including the Fourth Geneva Convention, while recognizing that some of the smaller settlements have been constructed "illegally" in the sense of being in violation of Israeli law.
*Helmreich, Jeffrey. Diplomatic and Legal Aspects of the Settlement Issue, Jerusalem Issue Brief, Jerusalem Center for Public Affairs, Vol. 2, No. 16, 19 January 2003.
*Disputed territories - Forgotten facts about the West Bank and Gaza strip, Israeli Ministry of Foreign Affairs, 1 Feb 2003. Retrieved 29 Jan, 2008. In 1998 the Israeli Minister of Foreign Affairs produced "The International Criminal Court Background Paper".30th July 1998, Israeli Minister of Foreign Affairs produced "The International Criminal Court Background Paper" http://www.mfa.gov.il/mfa/mfaarchive/1990_1999/1998/7/the%20international%20criminal%20court%20-%20background%20pape, accessed 2007-05-13 It concludesInternational law has long recognised that there are crimes of such severity they should be considered "international crimes". Such crimes have been established in treaties such as the Genocide Convention and the Geneva Conventions. .... The following are Israel's primary issues of concern [ie with the rules of the ICC]: - The inclusion of settlement activity as a "war crime" is a cynical attempt to abuse the Court for political ends. The implication that the transfer of civilian population to occupied territories can be classified as a crime equal in gravity to attacks on civilian population centres or mass murder is preposterous and has no basis in international law.
Israel also argues that some of the settlers have returned to areas where Jewish settlements existed before 1948, such as Hartuv, and therefore the application of the Geneva Convention is an entirely different issue.http://www.economist.com/world/unitedstates/displayStory.cfm?story_id=1378577 The Economist. Iraq, Israel and the United NationsRostow, Eugene. Bricks and stones: settling for leverage; Palestinian autonomy, The New Republic, April 23, 1990.Israeli Settlements and International Law, Israel Ministry of Foreign Affairs website, 20 May 2001. URL accessed April 11, 2006.
Israel contends that the Geneva Convention only applies in the absence of an operative peace agreement and between two powers accepting the Convention. Since the Oslo Accords leave the issue of settlements to be negotiated later, proponents of this view argue that the Palestinians accepted the temporary presence of Israeli settlements pending further negotiation, and that there is no basis for declaring them illegal.http://www.economist.com/world/unitedstates/displayStory.cfm?story_id=1378577Helmreich, Jeffrey. Diplomatic and Legal Aspects of the Settlement Issue, Jerusalem Center for Public Affairs, Jerusalem Issue Brief, Volume 2, Number 16, January 19, 2003.What is the background of Jewish settlements in Palestinian Arab areas?, Palestine Facts website, 2006. URL accessed April 12, 2006.
International human rights groups Amnesty International and Human Rights Watch have denounced the settlements as illegal,Israel: Expanding Settlements in the Occupied Palestinian Territories Human Rights Watch, December 27, 2005 though the Anti-Defamation League has argued that they are legal.How to Respond to Common Misstatements About Israel: Israeli Settlements, Anti-Defamation League website. URL accessed April 10, 2006.
Two legal scholars (prominent international law expert Julius Stone, and Eugene Rostow, Dean of Yale Law School) have argued that the settlements are legal under international law, on a number of different grounds.
===Arguments based on the Fourth Geneva Convention===
There are two disputes regarding the Fourth Geneva Convention: whether the convention applies to the territories in question and whether the Convention forbids the establishment of Israeli settlements. Article 2 concerns the applicability of the Convention whereas article 49 concerns the legality of population transfers. In practice, Israel does not accept that the Fourth Geneva Convention applies de jure, but has stated that on humanitarian issues it will govern itself de facto by its provisions, without specifying which these are.Gerson, Allan. Israel, the West Bank, and International law, Routledge, Sept 28, 1978, ISBN 0-7146-3091-8, p. 82.Roberts, Adam, "Decline of Illusions: The Status of the Israeli-Occupied Territories over 21 Years" in International Affairs (Royal Institute of International Affairs 1944-), Vol. 64, No. 3. (Summer, 1988), pp. 345-359., p. 350
====Article 2====
Article 2 extends the Convention to "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties" and "all cases of partial or total occupation of the territory of a High Contracting Party".Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. Supporters of the legality of the settlements argue that the Convention itself does not apply, as the West Bank and Gaza Strip have never been part of a sovereign state since the defeat of the Ottoman Empire, therefore do not meet the definition of "the territory of a High Contracting Party".Lacey, Ian, ed. International Law and the Arab-Israeli Conflict (pdf) - Extracts from Israel and Palestine - Assault on the Law of Nations by Julius Stone, Second Edition with additional material and commentary updated to 2003, AIJAC website. URL accessed April 10, 2006.Hollander, Ricki. Backgrounder: Jewish Settlements and the Media, Committee for Accuracy in Middle East Reporting in America, October 5, 2001. URL accessed April 12, 2006.Dann, Moshe. Legality of the settlements, The Jerusalem Post, May 22, 2001.Einhorn, Talia. The Status of Palestine/Land of Israel and Its Settlement Under Public International Law, Nativ, Volume 1, 2003. URL accessed May 19, 2006. This argument was articulated in 1971Slonim, S. (1998). Jerusalem in America's Foreign Policy, 1947-1997. Martinus Nijhoff Publishers, ISBN 90-411-1255-3, p. 211. by Israeli Attorney-General Meir ShamgarKretzmer, David (2002). The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories. SUNY Press. ISBN 0-7914-5337-5, p. 33. (who also created the legal framework of the Israeli military government in the administered territoriesIsraeli Ministry of Foreign Affairs, accessed 20 April 2006.) and presented by Moshe Dayan in a speech before the 32nd session of the United Nations General Assembly in 1977.Kretzmer, 2002, p. 34.
The International Court of Justice, in an advisory (i.e. non-binding) opinion to the UN General Assembly, argued that according to Article 2 of the Convention applies if “there exists an armed conflict” between “two contracting parties”, regardless of the territories status in international law prior to the armed attack. It also argued that "no territorial acquisition resulting from the threat or use of force shall be recognized as legal" according to customary international law (and defined by "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations" (General Assembly Resolution 2625).Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice Advisory Opinion, July 9, 2004, paragraphs 95 and 87.
On 15 July 1999 a conference of the High Contracting Parties to the Fourth Geneva Convention met at the United Nations headquarters in Geneva. It ruled that the Convention did apply in the Occupied Palestinian Territory, including East Jerusalem.United Nations (2002). Yearbook of the United Nations, 2000. United Nations Publications. ISBN 92-1-100857-3, p. 421; p. 437.Statement of the Conference of the High Contracting Parties to the Fourth Geneva Convention, Geneva, 15 July 1999. (PDF) The Conference of High Contracting Parties to the Fourth Geneva Convention held in Geneva on December 5, 2001 called upon "the Occupying Power to fully and effectively respect the Fourth Geneva Convention in the Occupied Palestinian Territory, including East Jerusalem, and to refrain from perpetrating any violation of the Convention." The High Contracting Parties reaffirmed "the illegality of the settlements in the said territories and of the extension thereof."Implementation of the Fourth Geneva Convention in the occupied Palestinian territories: history of a multilateral process (1997-2001), International Review of the Red Cross, 2002 - No. 847.
U.N. Security Council Resolution 446 refers directly to the Fourth Geneva Convention as the applicable international legal instrument, and specifically insists that Israel desist from transferring its own population into the territories or changing their demographic makeup.
However, others have objected to the ruling of the conference, which they argue has amended history and been construed only for this specific situation (see excerpt below). Under Article 2, the Convention pertains to “cases of…occupation of the territory of a High Contracting Party” by another such party. The West Bank and Gaza Strip were never the territory of a High Contracting Party; the occupation after 1948 by Jordan and Egypt was illegal and neither country ever had lawful or recognized sovereignty. The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate, which stipulated the right of the Jewish people to settle in the whole of the Mandated territory. According to Article 6 of the Mandate, “close settlement by Jews on the land, including State lands not required for public use” was to be encouraged. Article 25 allowed the League Council to temporarily postpone the Jewish right to settle in what is now Jordan, if conditions were not amenable. Article 80 of the U.N. Charter preserved this Jewish right to settlement by specifying that:
nothing in the [United Nations] Charter shall be construed ... to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments.Backgrounder: Jewish Settlements and the Media
According to barrister and human rights activist Stephen Bowen, Israel's argument was rejected by the international community "because the Convention also states that it applies 'in all circumstances' (Article 1), and 'to all cases of declared war or of any other armed conflict' (Article 2)."Bowen, Stephen (1997). Human Rights, Self-Determination and Political Change in the Occupied Palestinian Territories. Martinus Nijhoff Publishers. ISBN 90-411-0502-6, p. 29. Shamgar argues specifically against this point, stating:There is no rule of international law according to which the Fourth Convention applies in each and every armed conflict whatever the status of the parties.... The whole idea of the restriction of military government powers is based on the assumption that there has been a sovereign who was ousted and that he was a legitimate sovereign. Any other conception would lead to the conclusion, for example, that France should have acted in Alsace-Lorraine according to rule 42-56 of the Hague Rules of 1907, until the signing of a peace treaty.
====Article 49====
Article 49 (1) insists that "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive" and Article 49(6) insists that "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies". According the commentary of Jean Pictet of the International Red Cross, this is intended to prevent the World War II practice of an occupying power transferring "portions of its own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories" which in turn "worsened the economic situation of the native population and endangered their separate existence as a race".Pictet, Jean (ed.) Commentary on the Fourth Geneva Convention.
Supporters of the legality of the settlements argue that even if the Convention did apply, it should be read only in the context of World War II forcible migrations at the time. It is only intended to cover forcible transfers and to protect the local population from displacement. They point out Article 49(1) specifically covers "[i]ndividual or mass forcible transfers" whereas the Israelis who live in the settlements have moved there voluntarily, and argue that settlements are not intended to, nor have ever resulted in, the displacement of Palestinians from the area. In addition, they state that the Geneva Convention only applies in the absence of an operative peace agreement and between two powers accepting the Convention. Since the Oslo Accords leave the issue of settlements to be negotiated later, proponents of this view argue that the Palestinians accepted the temporary presence of Israeli settlements pending further negotiation, and that there is no basis for declaring them illegal.
Those who reject that view have a different reading of the article. They claim that this argument relies on misquoting the first clause of Article 49 by omitting the phrases which qualify that the prohibited forced transfer is that of the population of the occupied territory (the Palestinians, in this case) and not the population of the Occupying Power (the Israelis). They also note that Pictet's commentary on Article 49(6) states "[t]he paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words "transfer" and "deport" is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power." David Kretzmer, Professor of International Law at Hebrew University of Jerusalem, has argued:
As paragraph 1 of Article 49 refers expressly to forcible transfers, it seems fair to conclude that the term "transfer" in paragraph 6 means both forcible and nonforcible transfers. This conclusion would seem to flow from the object of the Fourth Geneva Convention, which is to protect civilians in the occupied territory, and not the population of the occupied power. From the point of view of the protected persons, whether the transfer of outsiders into their territory is forcible or not would seem to be irrelevant."Kretzmer, David. "The Advisory Opinion: The Light Treatment of International Humanitarian Law" in American Journal of International Law Vol.99 No. 1 (Jan., 2005), pp.88-102, p.91.
US State Department Legal Advisor, Herbert J. Hansell, in a letter dated 1 April 1978, has reached the same conclusion, noting that "[p]aragraph 1 of article 49 prohibits "forcible" transfers of protected persons out of the occupied territory; paragraph 6 is not so limited."
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He further argued that:
The view has been advanced that a transfer is prohibited under paragraph 6 only to the extent that it involves the displacement of the local population. Although one respected authority, Lauterpacht, evidently took this view, it is otherwise unsupported in the literature, in the rules of international law or in the language and negotiating history of the Convention, and it seems clearly not correct. Displacement of protected persons is dealt with separately in the Convention and paragraph 6 would seem redundant if limited to cases of displacement. Another view of paragraph 6 is that it is directed against mass population transfers such as occurred in World War II for political, racial or colonization ends; but there is no apparent support or reason for limiting its application to such cases.
The latter interpretation was adopted by the International Court of Justice in its 2004 advisory opinion,Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice Advisory Opinion, July 9, 2004, paragraph 120. and 150 countries supported a (non-binding) General Assembly resolution demanding Israel to "comply with its legal obligations as mentioned in the advisory opinion".
===Arguments based on UNSC Resolution 242 and the British Mandate===
Rostow and others further argue that UN Security Council Resolution 242 (which Rostow helped draft) mandates Israeli control of the territories, and that the original British Mandate of Palestine still applies, allowing Jewish settlement there.Rostow, Eugene. Resolved: are the settlements legal? Israeli West Bank policies, The New Republic, October 21, 1991. In Rostow's view 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 1922. But the Jewish right of settlement in Palestine west of the Jordan river, that is, in Israel, the West Bank, 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...." According to Rostow "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there".American Journal of International Law, 1990, volume 84, page 72
This right is based on Article 6 of the Mandate which states: "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". In addition, many Israeli settlements have been established on sites which were home to Jewish communities before 1948 such as Neve Yaakov, Gush Etzion, Hebron, Kalia, and Kfar Darom.
Contrary to this view other legal scholars have argued that under Articles 31 and 32 of the Vienna Convention on the Law of Treaties the only common sense interpretation of UNSC 242 is that Israel must withdraw from all of the territory captured in 1967, as any interpretation permitting the extension of sovereignty by conquest would violate the relevant governing principle of international law as emphasized in the preambular statement, i.e., "the inadmissibility of the acquisition of territory by war" as established through the abolition of the right of conquest by the League of Nations following World War I.
Furthermore, it is argued that UNSC 242 has binding force under Article 25 of the UN Charter owing to its incorporation into UN Security Council Resolution 338 and that it is also binding on Israel and the PLO by agreement owing to its incorporation into the Oslo Accords.McHugo, John (2002). Resolution 242: A Legal Interpretation of the Right-Wing Israeli Interpretation of the Withdrawal Phrase With Reference to the Conflict Between Israel and the Palestinians. International and Comparative Law Quarterly, 51, 851-882.
Others argue that the Oslo Accords supersede UNSC 242 rather than making it binding.http://www.middle-east-info.org/gateway/unitednations/Israel%20and%20Iraq%20-%20UN%20Double%20Standards.pdf The Declaration of Principles in the accords only state that future negotiations will "lead to the implementation of Security Council Resolutions 242 and 338."Oslo Accord
Additionally, as the international community considered the status of Jerusalem to be unresolved, even after 1967, and did not deem any part of the city to be Israeli territory, including that part held since 1948, UNSC 242 did not settle territorial issues between Israel and Palestine left unresolved by the 1949 Armistice Agreements.Quigley, John (2002). Palestine: The Issue of Statehood (pp. 37-54). In Silverburg, Sanford R. (Ed.). Palestine and International Law: Essays on Politics and Economics. McFarland & Company. ISBN 0-7864-1191-0, pp. 50-51. Indeed, Sir Elihu Lauterpacht and others have argued that, because of the disorder in Palestine at the time, the territorial framework of the 1947 Partition Plan did not come into effect in such a way as to ipso jure grant Israel sovereignty over the territory allocated to the Jewish state under that plan. Stone agrees with Lauterpacht's analysis, and his view that sovereignty was acquired through other means:
Lauterpacht has offered a cogent legal analysis leading to the conclusion that sovereignty over Jerusalem has already vested in Israel. His view is that when the partition proposals were immediately rejected and aborted by Arab armed aggression, those proposals could not, both because of their inherent nature and because of the terms in which they were framed, operate as an effective legal re-disposition of the sovereign title. They might (he thinks) have been transformed by agreement of the parties concerned into a consensual root of title, but this never happened. And he points out that the idea that some kind of title remained in the United Nations is quite at odds, both with the absence of any evidence of vesting, and with complete United Nations silence on this aspect of the matter from 1950 to 1967?…
In these circumstances, that writer is led to the view that there was, following the British withdrawal and the abortion of the partition proposals, a lapse or vacancy or vacuum of sovereignty. In this situation of sovereignty vacuum, he thinks, sovereignty could be forthwith acquired by any state that was in a position to assert effective and stable control without resort to unlawful means.
Antonio Cassese disagrees with this analysis, arguing that whilst Israel's original occupation of West Jerusalem might have been carried out in an act of self-defense under Article 51 of the UN Charter, this did not confer legal title to the territory owing to the general prohibition in international law on the acquisition of sovereignty through military conquest. He further considers that "mere silence" could not constitute agreement by the United Nations to the acquisition of sovereignty by Israel or Jordan as a result of their de facto control of Jerusalem. Cassese concludes that "at least a tacit manifestation of consent through conclusive acts would have been necessary", whereas such relevant acts as did take place confirmed that no such consent to the transfer of sovereignty was given.Cassese, Antonio (1986). Considerations on the International Status of Jerusalem (pp. 13-40). In Kassim, A. F. The Palestine Yearbook of International Law 1986. Martinus Nijhoff Publishers. ISBN 90-411-0340-6.
===Arguments based on historical agreements===
Some have argued that Israel has a right to settle in areas agreed upon with Emir Faisal, the recognized political leader of the Arab world at the time. Faisal signed an agreement with Chaim Weizmann, the recognized leader of the modern Zionisim movement.
The agreement, known as the Faisal-Weizmann Agreement, signed in January 1919, agreed conditional terms of borders between the Jewish state and the Arab states, which include the present day territories in dispute.
===Arguments based on the cause of the war===
It has been argued that Israel took control of the West Bank as a result of a defensive war. Former Israeli diplomat Dore Gold writes that: "The language of "occupation" has allowed Palestinian spokesmen to obfuscate this history. By repeatedly pointing to "occupation", they manage to reverse the causality of the conflict, especially in front of Western audiences. Thus, the current territorial dispute is allegedly the result of an Israeli decision "to occupy", rather than a result of a war imposed on Israel by a coalition of Arab states in 1967".
He quotes Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, and wrote in 1970 regarding Israel's case: Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.
However, international law scholar John Quigley has noted that "...a state that uses force in self-defense may not retain territory it takes while repelling an attack. If Israel had acted in self-defense, that would not justify its retention of the Gaza Strip and West Bank. Under the UN Charter there can lawfully be no territorial gains from war, even by a state acting in self-defense. The response of other states to Israel's occupation shows a virtually unanimous opinion that even if Israel's action was defensive, its retention of the West Bank and Gaza Strip was not."Quigley, The Case for Palestine, 2005, p. 172
===Arguments based on property rights and private ownership===
On January 30, 2009, the Associated Press reported that European-funded Israeli political group Yesh Din plans to use a classified Israeli Government database to prove that many West Bank Israeli settlements were built on land privately owned by Palestinian citizens without compensation."Group: Settlement info implicates Israeli gov't", by Matti Friedman, Associated Press, January 30, 2009
=="Unauthorized" or "Illegal" Outposts==
See also: Sasson report
In two cases decided shortly after independence (the Shimshon and Stampfer cases) the Israeli Supreme Court held that the fundamental rules of international law accepted as binding by all "civilized" nations were incorporated in the domestic legal system of Israel. The Nuremberg Military Tribunal had already determined that the articles annexed to the Hague IV Convention of 1907 were customary law, recognized by all civilized nations.see the "Place of customary international law" on pages 5-6 of International Law in Domestic Courts: Israel, by Dr. David Kretzmer and Chapter 2 "Application of International Law", in The Occupation of Justice, by David Kretzmer
The Court determined in the 1979 Elon Moreh case that only the military commander of an area may requisition land according to article 52 of the Hague regulations. Military necessity had been an after-thought in the planning portions of the Elon Moreh settlement. That situation did not fulfill the precise strictures laid down in the articles of the Hague Convention, so the Court ruled the requisition order had been invalid and illegal.see page 349 of Israel Yearbook on Human Rights Volume 9, 1979, By Yoram Dinstein
In subsequent cases, the Court has ruled that Article 43 of the Hague IV Convention is a mandatory planning consideration for approval of building projects on state lands in Judea and Samaria.see for example, the Ja'amait Ascan case on pages 68-69 of Kretzmer's The Occupation of Justice
Pressured by America, the Sharon administration commissioned the Sasson report which found that the Israeli government had funded the creation of Jewish settler outposts in the West Bank that were unauthorized and in violation of stated government policy. According to the report, the Housing and Construction Ministry, the World Zionist Organization, the Education Ministry and the Defense Ministry cooperated to "systematically establish illegal settlement points", paying millions of dollars to create the infrastructure for scores of settlements.
The summary of the Sasson ReportSummary of the Sasson Report, available from the Prime Minister of Israel's Communications Office explains that local law requires the fulfillment of a number of basic conditions before establishing a settlement in the Judea, and Samaria. It lists four pre-conditions that must be fulfilled in each case. The second pre-condition regarding title to the land cites the precedent established in the Elon Moreh case. The third pre-condition is that a settlement can only be established according to a lawfully designed building scheme, which has the power to produce a building permit. The fourth pre-condition is that the bounds of jurisdiction of the settlement must be determined in advance by order of the Commander of the area. The Israeli Supreme Court has ruled that the fulfillment of the applicable Hague IV Convention criteria is a mandatory and integral part of satisfying those three pre-conditions of the local law. Sasson summed-up the situation by expaining:An unauthorized outpost is a settlement which does not fulfill at least one of the above mentioned conditions. And I must emphasize: an unauthorized outpost is not a “semi legal” outpost. Unauthorized is illegal.
The report found “blatant violations of the law” by officials and state institutions. Many of the more than 100 outposts investigated added at state expense paved roads, permanent housing, power lines and other infrastructure. According to the report, some of the outposts were established on private lands owned by Palestinians with the help of Housing Ministry architects, the Housing Ministry funded many of the trailers used to start the outposts, and Defence Ministry officials allocated such private land to the quasi-official Jewish Agency.March 8, 2005, Financial Times of London, "Israeli Report Hits at Funding for Settlements, http://www.ft.com/cms/s/0/67ba9b06-8ff9-11d9-9a51-00000e2511c8,stream=FTSynd,s01=2.html?nclick_check=1
As part of the 2003 "Road map" for peace, Israel committed itself to remove about two dozen such settlements, an obligation it has yet to fulfill.
In response to settler violence directed towards Israeli security forces, Israel declared it would no longer fund unauthourized outposts from November, 2008. Settlers claim the violence was sparked by the beating of a settler child, while border police spokesman Moshe Pinchi said he had no knowledge of the alleged beating and accused the settlers of "cynically" sending minors to attack the police. However, there is evidence that support continues unabated for illegal outposts. At one unauthorized settlement, Eli there has been recent work on a new road that cuts through Palestinian territory.
According to a report of the Israeli Environmental Protection Ministry, waste water management is "virtually nonexistent" in unauthourized Jewish settler outposts and some other settlements, thus raw sewage is contaminating the ground water in parts of the West Bank. Accoridng to the report, the main cause of the contaminated water is that raw waste water flows from Hebron, Ramallah, Nablus, Jenin and other villages, without proper treatment. The report blames Israeli settlements for pumping contaminated water into the sewars, not Palestinian villages. 70% of the Jewish communities east of the Green Line are connected to treatment facilities, so "illegal outposts" are the main source of the untreated water, according to the Israeli report.October 1, 2008, Maan News Agency, "Israel: ’Illegal outposts’ Contaminating West Bank Water Supplies" http://www.maannews.net/en/index.php?opr=ShowDetails&ID=32268
In May 2009, Defense Minister Ehud Barak said that over two dozen illegal outposts in the West Bank had been "declared as such by the Talia Sasson Commission", and would be dismantled.PM: No new West Bank settlements
On August 17, 2009, four ministers on Netanyahu cabinet (Deputy Prime Minister and Minister of Internal Affairs Eli Yishai - Shas, Vice Prime Minister and Minister of Strategic Affairs Moshe Ya'alon - Likud, Minister of Information Yuli Edelstein - Likud and Minister of Science and Technology Daniel Hershkowitz - The Jewish Home) embarked on a tour of West Bank outposts. During the tour, Yishai stated that the outposts are not illegal: These are legal settlements built by the governments of Israel. The people of Israel should know this settlement is legal. If someone thinks otherwise and plans to evacuate them, it will have to be approved by the government. You cannot just evacuate people from their homes without due process.
==References==
Category:Israeli settlements