Compact But Comprehensive Review of Issue of Settlements' Legality

Are the Settlements Illegal?

Nicholas Rostow/American Interest/March-April 2010

Israeli settlements in the territories that came under Israeli control as a result of the June 1967 war have long been a subject of often highly emotional debate within the United States, Israel and the international community. The Obama Administration’s decision to focus on settlements right out of the gate heightened attention on this already salient issue, but it is by no means clear that heightened attention will by itself facilitate resolution of the Palestine/Israel problem. Settlements are handy for obscuring the fundamental issue, which is why, more than sixty years after the admission of Israel to the United Nations, some of its immediate neighbors and several more distant states (most, if not all, members of the Arab and Islamic worlds) still do not even recognize the State of Israel, much less show a willingness to make peace with it.

Whatever the hierarchy of obstacles to peace, it is undeniable that the settlements issue is not about to go away, so it is well worth seeking an understanding of it above the din of polemics. The settlement question involves history, law, diplomatic practicality and the quality of everyday life for Israeli and non-Israelis. Settlements in those territories still occupied by Israel exist because peace between Israel and the Palestinians has proved so illusive.1 Settlements did not prevent peace treaties between Israel and Egypt or Israel and Jordan. Nor do settlements on the Golan Heights constitute a barrier to peace between Syria and Israel. Israel has demonstrated its readiness to give up settlements, whether in exchange for peace or, as in the case of the Gaza Strip, in the hope that giving them up would be a catalyst for peace.

These facts may reveal an Israeli motive in settlement construction far removed from territorial claims: Imagine the debate over Israel’s borders after 1967 if Israel had not constructed settlements in the territories occupied as a result of the Six-Day War. Most likely, the debate would have concerned moving Israel’s borders closer to the Mediterranean Sea. That said, Israel’s settlements in the West Bank are to some degree an obstacle to an Israeli-Palestinian peace arrangement, even if only because they distract attention from the main issues. No agreement exists as to what that degree is; indeed, there isn’t even agreement on the list of other barriers to progress or their relative importance.

There is, however, one element of debate we could do without: namely, the debate over the legality of the settlements under international law. The reason is simple: If the settlements are illegal, then one more incentive to make peace with Israel based on UN Security Council Resolution 242 (1967) is weakened. Equally, if the settlements are declared legal, Israeli incentives to compromise on the extent of West Bank territory it needs for defense also are diminished.

The issue of legality is a staple of discussion—or rather, of assertion—at the United Nations and elsewhere. The International Court of Justice (a principal UN organ) categorically opined that Israel’s settlements are illegal in 2004. Few UN member states view Israeli settlement activity as legal, but equally few interpret UN Security Council Resolution 242 of November 22, 1967 as it was intended. The legal issue has troubled U.S.-Israeli relations in the past. Whatever its initial tactical errors on the peace process, the Obama Administration has been wise enough to avoid it.

Presidents since Lyndon Johnson have wrestled with the question of legality, some more sensibly and effectively than others. So, while the Obama Administration was wise not to raise the matter publicly, it needs to have an internal view, and for that it needs to know the history both of the settlements themselves and of the U.S. government’s deliberations as to their legality. It is with this purpose in mind that I offer the following analysis, based to some degree on my own experience.

The Basics

To begin, we need to recall some legally relevant history. From 1511 to 1917, “Palestine” was part of the Ottoman Empire, although the term did not denote a defined people or area. What is today understood as Palestine geographically was not administered in Ottoman times as a single unit. World War I resulted not only in the end of the Ottoman Empire and Turkish claims to far-flung Ottoman territories but also in the creation of the British Mandate for Palestine, covering what is now Israel, Jordan, the West Bank and the Gaza Strip. On July 24, 1922, the League of Nations Council confirmed the Mandate.

The Mandate explicitly stated that the Mandatory Power was responsible for putting into effect the Balfour Declaration in favor of a Jewish national home in Palestine. The Declaration and the Mandate formed part of the same international law that gave birth to the notion that self-determination is a right. Thus, opponents of the existence of Israel always have attacked the Balfour Declaration and the Mandate because these documents recognize that Jews have a right of self-determination in Palestine and accept “the historical connection of the Jewish people with Palestine and . . . the grounds for reconstituting their national home in that country.” The Mandate contemplated that Jewish immigration was to be facilitated and Jewish settlement was to be encouraged, “it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine.”

With the consent of the League, too, the Mandatory Power was permitted to “postpone or withhold application” of the provisions of the Mandate in the area east of the Jordan River (now Jordan), and, pursuant to this provision, Britain postponed Jewish immigration and settlement in that area. Indeed, the area then known as Transjordan and later as Jordan was separated from the area of the Mandate. The Mandate also made Britain responsible to the League for the maintenance of, and free access to, the Holy Places. Article 80 of the UN Charter, known in 1945 as the “Palestine” Article, carried this body of international law forward to the UN Charter era.

In 1946, Jordan became an independent state. In 1947, the British government asked the United Nations to consider the question of a future government in Palestine in light of Britain’s determination to withdraw as Mandatory Power in 1948. On November 29, 1947, the UN General Assembly passed Resolution 181 (II), which recommended to the Mandatory Power and to the Security Council the adoption of a partition plan for the remaining area of the Mandate (west of the Jordan River). The plan contemplated the creation of one Jewish and one Arab state (to include the West Bank, the Gaza Strip and parts of what Israel held between 1949 and 1967) and a separate City of Jerusalem, administered by the United Nations, all joined in economic union. The Security Council never acted on this recommendation, which the Arab states opposed and Zionist organizations accepted. Common perceptions notwithstanding, General Assembly Resolution 181 (II) was not and is not legally binding, both because of its language—it is recommendatory only—and because of the limited powers of the General Assembly under the UN Charter.

When the British withdrew their forces in 1948, the Arab states commenced a war against the new State of Israel. In 1949, Israel concluded armistice agreements with Lebanon, Syria, Egypt and Jordan. Except with respect to Lebanon, where the boundary tracked the pre-existing, recognized international boundary, these agreements included as a common provision that the Armistice Demarcation Lines were agreed “without prejudice to future territorial settlements or boundary lines or claims related thereto.”2

Since 1949, despite several wars, innumerable UN resolutions, and endless argument about the relative merits of claims to the lands of the Mandate, the status of the West Bank, Gaza and Jerusalem has never been resolved finally as a legal matter. In 1950, Jordan purported to annex the West Bank, including East Jerusalem. Only Britain and Pakistan recognized the annexation, and the British specifically refused to recognize the annexation of Jerusalem. The Arab states refused to recognize the Jordanian annexation of either the West Bank or Jerusalem.

Since 1967, the U.S. government has consistently stated that Jerusalem “enjoys a unique international standing and that no action should be taken there without full regard to Jerusalem’s special history and special place in the World Community.”3 Accordingly, the U.S. government has said that Israeli actions with respect to East Jerusalem were provisional and could not be understood to prejudice the resolution of the city’s ultimate status.

Similarly, the United States has consistently regarded the precise legal status of the West Bank and Gaza as unresolved—including the question of whether East Jerusalem is considered part of the West Bank. It has always recognized the 1949 armistice lines as provisional, not legally final, borders because, for one thing, it has accepted that Israel needs more space for defensive purposes—a need that could be accommodated in a variety of ways, as Resolution 242 noted (demilitarized zones, buffer zones, the presence of international peacekeepers and so forth).

Some scholars argue that the West Bank and Gaza are the unallocated remainder of the League of Nations Mandate; others write that they are a trust for the “Palestinian people” (whose definition also is the subject of controversy). Still others have different theories. The only area of real consensus is that Israel occupies at least part of the territories. But the specifics remain undefined: When the International Court of Justice opined in 2004 that Israeli settlements were illegal it did not simultaneously opine that the Armistice Demarcation Lines constituted Israel’s final, international borders.

The Geneva Convention and UN Resolutions 242 and 338

The argument over the legality of the settlements is based principally on interpretations of the Fourth Geneva Convention of 1949 (Relative to the Protection of Civilian Persons in Time of War). Article 49, paragraph 6 provides that “[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Article 2 provides that it shall apply “to all cases of partial or total occupation of the territory of a High Contracting Party.” Article 1 provides that “[t]he High Contracting Parties undertake to respect and to ensure respect for the convention in all circumstances.” Article 4 provides that “[p]ersons protected by the Convention are those who, at a given moment and in any manner whatsoever . . . find themselves . . . in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” Israel, Egypt, Jordan and Syria, like all states and some non-states, are parties to the convention.4 Israeli courts have affirmed that Israel’s position in the occupied territories is that of belligerent occupant as a matter of international law. It is hard to quarrel with this conclusion.

UN Security Council Resolutions 242 (November 22, 1967) and 338 (October 22, 1973) together constitute an authoritative UN decision on the principles to frame an Arab-Israeli peace settlement and remain the most important agreed framework for Arab-Israeli peace. It is worth refreshing our collective recollections of that precisely drawn language. In Resolution 242, the Security Council:

(1) Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

(1) Withdrawal of Israeli armed forces from territories occupied in the recent conflict;

(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.

Resolution 242 used the phrase “territories occupied”, not “the territories occupied.” Thus, a strong argument exists that the Resolution does not require a restoration of the pre-1967 Arab-Israeli armistice boundaries. Adjustments were contemplated, as implied in the requirement for “secure and recognized boundaries.” On November 15, 1967, the U.S. Ambassador to the United Nations, Arthur Goldberg, stated in the UN that the 1949 Armistice Lines did not meet this standard. In the immediate aftermath of the 1967 war, such adjustments were conceived of as involving minor rectifications.

In Resolution 338, which called for an end to the 1973 War, the Security Council obligated the parties to negotiate peace in accordance with Resolution 242. Specifically, the Resolution:

· Calls upon all parties to the present fighting to cease all firing and terminate all military activity immediately . . . ;

· Calls upon the parties concerned to start immediately after the cease-fire the implementation of Security Council Resolution 242 (1967) in all of its parts;

· Decides that, immediately and concurrently with the cease-fire, negotiations start between the parties concerned under appropriate auspices aimed at establishing a just and durable peace in the Middle East.5

These resolutions reflect two facts, which were much in the mind of governments of the day. The first was that the Six-Day War of June 1967 was, for Israel, a lawful exercise of the inherent right of self-defense recognized in Article 51 of the UN Charter. As a result, Israel’s occupation of territory beyond the Armistice Lines was a result of aggression by its neighbors. Second, the United States and other governments were determined not to repeat what they believed to have been a mistake in 1956–57, when, under international pressure, Israel withdrew from the Sinai Peninsula without a peace agreement with Egypt. As President Johnson put it in his inimitable way in 1967, “Nasser slit our throat from ear to ear” by reneging on the 1957 terms for Israel’s withdrawal from Sinai.6

Prior Administration Positions

Although Israel decided to establish military and non-military settlements in the West Bank in 1967, even before the adoption of Resolution 242, U.S. government statements before 1977 addressed mainly the Jerusalem question, particularly Israel’s administrative measures, which have been characterized as annexation (although Israel has said they have no international legal effect on the status of Jerusalem). The probable reason for this emphasis is that settlements elsewhere did not become a major issue until after Menachem Begin became Prime Minister in May 1977. This fact permits the possible interpretation that Labor Party-initiated settlements outside Jerusalem before 1977, built according to the Allon Plan, were located according to security criteria—a consideration explicitly cited in Resolution 242 and implicitly understood by the United States, in principle, as a factor in any territorial compromise. Thus, the Johnson Administration criticized early Israeli settlement activity as possibly inconsistent with Israel’s publicly stated position that all subjects in dispute were negotiable. But it did not assert that such activity was illegal.

Nixon Administration statements invoked the Geneva Convention as applying to the territories, although its criticism also focused mainly on Jerusalem. On September 25, 1971, then-UN Ambassador George H.W. Bush, citing speeches by Secretary of State William Rogers and Ambassador Charles Yost in 1969, addressed the Jerusalem question as follows after the Security Council adopted a resolution deploring Israeli measures “purporting to affect the status of Jerusalem”:

1. Jerusalem should be a unified city;

2. There should be open access to the unified city for persons of all faiths and nationalities;

3. Administrative arrangements for the unified city should take into account the interest of all its inhabitants and of the Christian, Jewish and Moslem communities; and

4. There should be roles for both Israel and Jordan in the civic, economic, and religious life of the city. . . .

...The United States considers that part of Jerusalem which came under Israeli control, like other areas occupied by Israel in the June 1967 war, as occupied territory and thereby subject to the provisions of international law governing the rights and obligations of an occupying power. We regret Israel’s failure to acknowledge its obligations under the Fourth Geneva Convention as well as its actions which are contrary to the letter and spirit of this convention. We are distressed that the actions of Israel in the occupied portion of Jerusalem give rise to understandable concern that the eventual disposition of the occupied section of Jerusalem may be prejudiced. I want to state clearly that we believe Israel’s respect for the holy places has indeed been exemplary. But an Israeli occupation policy made up of unilateral practices cannot help promote a just and lasting peace any more than that cause was served by the status quo in Jerusalem prior to June 1967, which, I want to make clear, we did not like and we do not advocate reestablishing...

The Ford Administration did not alter this view. The Carter Administration, however, focusing for the first time on the occupied territories as a whole, more explicitly than its predecessors took the position that all settlements were illegal under international law. In 1978, the State Department Legal Adviser wrote Congress to that effect, and the United States voted in favor of General Assembly and Security Council resolutions that described the settlements as illegal. However, in testimony to Congress in 1980, Secretary of State Cyrus Vance was forced to repudiate a U.S. vote for a Security Council resolution that called for the dismantling of settlements.

On February 2, 1981, President Reagan stated that the settlements were “not illegal”, although he criticized them as “ill-advised” and “unnecessarily provocative.” Throughout the Reagan Administration the U.S. government did not question the legality of the settlements; rather, it criticized the settlements on policy grounds as an obstacle to the peace process. In the United Nations, the United States voted against resolutions describing Israeli settlements as illegal.

The George H.W. Bush Administration similarly avoided pronouncements on the law while strongly criticizing the settlements on policy grounds. That is also a fair description of the Clinton Administration’s approach. It also describes the approach of the George W. Bush Administration, except that its criticisms of Israeli activity on prudential grounds were measurably less voluble.

One possible interpretation of this history is that the Reagan position was inconsistent with prior administrations’ statements. Another interpretation is that the Carter and Reagan positions were at odds, but that the other administrations were something short of explicit in their condemnations of all settlements as “illegal” and focused more on Israel’s administrative measures in Jerusalem, rather than its settlements in the West Bank and Gaza. The practical implication of this history is that the present and future administrations are free to decide the matter on the merits, for there is no hard and consistent precedent established by previous administrations.

Legal Analysis

Several arguments have been advanced on behalf of the proposition that Israeli settlements are lawful. Some proponents of legality strongly criticize some of the arguments advanced by other proponents, although they agree with the conclusion reached.

First, advocates of legality reject the applicability of the Geneva Convention on the ground that, under Article 2, the Convention applies only to occupation of the “territory of a High Contracting Party.” They argue that no country has a recognized legal claim to the “occupied territories.” Consequently, they are not territories “of” any contracting party, and therefore the Convention does not apply to Jewish settlement. In making this argument, advocates of legality stress that the international community did not recognize Jordan’s annexation of the West Bank and that now Jordan has withdrawn its claim. (It is harder to apply this argument to the Golan Heights, but it remains the case that despite the international legal character of the border between Mandatory Palestine and Mandatory Syria, the 1949 Armistice between Israel and Syria left open the final disposition of the border to the parties.) As I have argued elsewhere, the Israel-Palestine Authority agreements have reduced the area of occupied territory and de facto recognized that the Palestine Authority has most of the attributes of statehood required by international law.7 And it is also black letter international law that belligerent occupation does not depend on or affect title, sovereignty, the validity of claims or other ownership issues.

Second, some argue that, even if the Geneva Convention does apply, it was not directed at the kind of activity undertaken by Israel. The argument, made notably by the late Morris Abram, who was on the U.S. staff at Nuremberg, is that Article 49 of the Geneva Convention responded to the Nazi experience and is directed at transfers of large populations into occupied territories intended to colonize territories so as to endanger the economic situation or separate existence of the existing populations. Proponents of this view argue that the nature and extent of Israeli settlements in the West Bank do not threaten the native population and therefore would not violate the Geneva Convention even if it applied.

A third argument is that even if the Geneva Convention applies and prohibits settlements established by the Israeli government, it does not prohibit Jewish settlements in the occupied territories. The argument is that the Palestine Mandate granted extensive rights to Jews in Palestine and that, until the final status of a particular area is resolved, there is no legal basis for barring Jews from settling there. Rather, the occupied territories are to be thought of as the unallocated remainder of the Mandate Territory, and settlement rights under the Mandate persist until a final allocation is made. Proponents of this argument point to Article 6 of the Mandate, which provides that ‘‘[t]he 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 . . . close settlement by Jews on the lands, including State lands and waste lands not required for public purposes.”

A fourth argument addresses the competing claims of Israel and the other Arab states. It cites the principle of law that, where a prior holder of territory had seized that territory unlawfully (in this case, Jordan), the state subsequently taking the territory in lawful exercise of self-defense has, against the unlawful prior holder, better title. This argument turns in part on the facts that led to the 1967 War and the conclusion that Israel acted in lawful self-defense against Egypt’s blockade, Syrian attacks and provocations, and other menacing actions.

A fifth argument is based on the historical claim of Jews to live in Palestine. Proponents of this argument, which arguably is not a legal one, trace the history of the region back to biblical times and assert that the Jews have had a continuous presence in the area and have a superior historical right to it.

The argument that the settlements are illegal rejects the narrow reading of the Geneva Convention. In essence, the argument for illegality states that the Convention is primarily intended to protect people, not territories, and that rejecting its application to the West Bank (and Gaza) because they are not strictly territories “of” any contracting party is contrary to the intent of the Convention. Alternatively, it is argued that the first paragraph of Article 2, which provides that the Convention applies “to all cases of declared war or of any other armed conflict . . . between two or more of the High Contracting Parties” makes the Convention applicable even if the narrow reading of “territory of a High Contracting Party” is the correct interpretation. It is also argued that, even if the Convention does not apply by virtue of Article 2, it applies by virtue of Article 4, which extends protections to protected persons who “in any manner whatsoever . . . find themselves in the hands of . . . an Occupying Power of which they are not nationals.”

A second argument for illegality is that, even if the Convention does not technically apply, in this area the Convention reflects customary international law because every state is party to it. It is argued that customary international law precludes resolving territorial disputes by use of force and that Israeli occupation of the West Bank and Gaza Strip was accomplished by force of arms. Consequently, it is argued that Israeli settlement of these areas is an attempt to buttress an Israeli claim to sovereignty over the territories that is based on illegal conduct. (This argument, of course, rests on a theory about the origins of the 1967 War contrary to the view noted earlier.)

A third argument for illegality is that Israeli settlements are an attempt to foreclose the process set forth in Resolutions 242 and 338. Under this argument, which arguably is not a legal one, the Israelis are altering the character of the disputed territories to their advantage.

Finally, the 2004 International Court of Justice Advisory Opinion on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” takes a different tack in reaching the same conclusion. It starts from the proposition that the Mandate for Palestine was designed to achieve self-determination for the Palestinians and makes no mention of the Balfour Declaration or Jewish rights at all. Accordingly, the occupied territories are Palestinian, as the title of the Opinion states, and therefore Israeli settlements are illegal.

Although not all the arguments advanced for and against legality are strong, legal arguments on both sides are durable on what are central points of contention. It therefore makes little practical sense to raise the profile of the issue of legality, for it would only add an insoluble element to what is already an extremely difficult problem. The best approach for the United States is to do what it can to advance the cause of peace between Israel and all its neighbors, and to assist the parties in the resolution of all the issues that divide them on the basis of rights for all, Israelis and Palestinians. The U.S. government has a pressing interest in the resolution of these issues but, to succeed, a solution must reflect the parties’ acceptance of the need for peace. We cannot wave a wand a make them see the light. That position fairly describes the view of most U.S. administrations since 1967 and can therefore be said to accord with precedent. It is the wisest course.

1. Contrary to the view of the UN Human Rights Council Goldstone Report on Israel’s military operation in Gaza, 2008–09, Israel is no longer a belligerent occupant of the Gaza Strip. See Nicholas Rostow, “Gaza, Iraq, Lebanon: Three Occupations under International Law”, Israel Yearbook on Human Rights, Volume 33 (2007); and Yuval Shany, “Faraway, So Close: The Legal Status of Gaza after Israel’s Disengagement,” Yearbook of International Humanitarian Law, Volume 8 (2006).

2. Armistice Agreement with Jordan, Article VI (9). Hence the silence of the International Court of Justice on Israel’s legal boundaries.

3. Ambassador Charles Yost at the UN, July 1, 1969, echoing Ambassador Arthur Goldberg, July 14, 1967.

4. In regard to Palestine, the International Committee of the Red Cross notes, “On 21 June 1989, the Swiss Federal Department of Foreign Affairs received a letter from the Permanent Observer of Palestine to the United Nations Office at Geneva informing the Swiss Federal Council ‘that the Executive Committee of the Palestine Liberation Organization, entrusted with the functions of the Government of the State of Palestine by decision of the Palestine National Council, decided, on 4 May 1989, to adhere to the Four Geneva Conventions of 12 August 1949 and the two Protocols additional thereto.’ “On 13 September 1989, the Swiss Federal Council informed the States that it was not in a position to decide whether the letter constituted an instrument of accession, ‘due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine.’” Available at www.icrc.org.

5. Article 25 of the UN Charter provides that the “Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” Security Council decisions thus represent legally binding commands; Resolution 338 is such a command to the parties to the Arab-Israeli dispute. Such mandatory actions are of the highest legal significance.

6. It is noteworthy that UN Security Council Resolution 1397 (2002) consciously used the language of Resolution 242 in “affirming a vision of a region where two States, Israel and Palestine, live side by side within secure and recognized borders.”

7. “Legal Implications of May 4, 1999”, Policy Focus Number 37, Washington Institute for Near East Policy (1999).