Israel’s Arguments for the Legality of Settlements under International Law

NOVEMBER 21, 2019

Jonathan Kuttab

original article Arab Center Washington DC

The illegality of Israel’s civilian settlements in territories it occupied in 1967 is one of the few clearly settled issues in international law. The Geneva Conventions provisions on this issue are clear and explicit: civilian settlement activities are considered grievous breaches and war crimes. Furthermore, the issue was litigated and decided by the International Court of Justice in a rare, almost unanimous ruling of 15 judges in the case of Israel’s Separation Wall in 2004. The lone dissenting judge in that case wrote that even he agrees with the majority on the issue of the applicability of the Geneva Conventions.

So how does Israel justify such a clearly blatant violation? The answer lies in a number of arguments offered over the years, both in courts (primarily the Israeli High Court) and in legal publications and the press, as well as statements of Israeli officials. Following is a list of such arguments with a brief response, in bold italics, to each:

1. 1. Israel voluntarily applies the “humanitarian” but not the “political” provisions of the Geneva Conventions. Settlements are political issues and therefore are not to be governed by the Geneva Conventions.

No distinction like this has ever been known in international law, and Israel has not even tried to specify which provisions of the Geneva Conventions it considers to be “humanitarian.”

2. 2. While Israel signed the Geneva Conventions, its Knesset did not ratify them; therefore, they never became part of Israeli domestic law. The Israeli courts are therefore not free to apply them as Treaty law but must only apply the Hague Conventions, being part of traditional (conventional) international law, which is automatically part of Israel’s law—but not Treaty law, which needs to be specifically ratified and incorporated into Israeli law by the Knesset.

This argument explains how the Israeli High Court, as a domestic court, avoided the obligation to apply the Geneva Conventions, but it does not address Israel’s international obligation to follow the Geneva Conventions, which it signed.

3. 3. The movement of civilians into occupied territories, which is prohibited by the Geneva Conventions, only applies to forced marches and the imposed movement of civilians. It has no application where the movement of civilian Israeli settlers is a voluntary action by the settlers themselves.

The authoritative Pictet Commentary on the Geneva Convention, issued by the International Committee of the Red Cross, addresses this very argument and specifies that any movement of civilians into or out of the occupied territories is illegal. It does not accept this interpretation.

4. 4. The settlements are needed for security and are therefore legitimate, even though they are civilian complexes. As a “belligerent occupier,” the Israeli army has every right to set up security structures; Israeli settlements were initially started inside army compounds as part of the occupation and only later were turned over to civilian rule. Given Israel’s democratic and egalitarian nature, civilian settlements—and not just a professional full-time army—have always played a central role in the defense of the country. This argument was used by the Israeli High Court in its Elon Moreh decision, which did, in fact, hold that the status of the occupied territories is “belligerent occupation.” However, the court said it needs to examine in each case whether the security or ideological consideration were predominant in taking private Arab land for settlements. Where security considerations were predominant, or where the land in question was public and not private, the High Court will not intervene.

Whatever the merits of that argument under Israeli domestic law, it has no weight whatsoever in international law, which categorically prohibits the movement of civilians into the occupied territories. It is disconcerting that US Secretary of State Mike Pompeo says that only Israeli courts can judge this issue of the illegality of settlements.

5. 5. The Geneva Conventions only apply to territories captured in a war of aggression, but not to territories that come under the control of a country in a defensive war where others are the aggressors.

The Geneva Conventions and international law do not make such a distinction. Apart from the difficulty of establishing which wars are “aggressive” and which are “defensive,” particularly when the army that starts hostilities claims it is acting in a “preemptively defensive” fashion, the Geneva Conventions were concerned with protecting civilians who fall under the rule of another army. They also addressed the disruptive effect on the international order of any acquisition of territories after a war, where moving civilian populations into or out of occupied territories would be a complicating factor.

6. 6. The Geneva Conventions only apply to territories taken from a recognized sovereign. Egypt was not, nor claimed to be, a sovereign in Gaza, and Jordan’s claim to sovereignty is weak and was only recognized by England and Pakistan. Therefore, there was no sovereign whose property and population comes under the purview of the Geneva Conventions.

This argument is very problematic. It does not address the question of the Golan Heights, which was clearly Syrian sovereign territory. In addition, Jordan’s claim over the West Bank was generally accepted internationally (as much as Israel’s claim to West Jerusalem). More importantly, the thrust of the Geneva Conventions was not to settle historic or national claims between countries but to provide protection for civilians and to prevent demographic changes from occurring as a result of armed conflict. The entire structure of the international order would be in great jeopardy if the 190+ countries of the world were to resort to war to acquire land, which they claim on a historic or ethnic basis, and then move their civilian populations into the lands they occupy by force.

7. 7. In the absence of a legitimate sovereign, the Jewish people are the “missing reversioners” and the true sovereign in the area in light of their genuine sovereignty over 2,000 years ago. That claim is greater than the claim of any other country, and in the absence of other legitimate claims, Israel itself is the sovereign and cannot be an “occupier” of what is its historic right.

This argument was first offered by Yehuda Blum, Israel’s representative at the United Nations, and has been quoted repeatedly by Israeli writers. It has never been used or accepted by any international authorities and is often referred to as “novel.”  Historically, the whole of Palestine lying at the intersection of three continents has seen many invaders and empires set up rule over it, and modern countries that claim descent from these historic invaders would include Syria, Iraq, Iran, Saudi Arabia, Egypt, Turkey, Greece, and Italy.

8. 8. If the settlements stay long enough, gradually the world will accept them and they will become part of the reality which must be dealt with. Even Palestinians have accepted, and will accept, the settlements, or at least the settlement blocs, and they will negotiate about the rest.

This seems to be the most powerful argument, and it is one that Israeli Prime Minister Benjamin Netanyahu has been using frequently. He perhaps thinks that if international law prohibits this, then he can change international law. At its heart, this argument of establishing facts on the ground or “might makes right” is a thorough repudiation of international law and an invitation to international chaos and lawlessness. That is the danger in President Donald Trump’s positions, whether on the Golan, Jerusalem, or the issue of settlements.

Jonathan Kuttab is a Human Rights Lawyer and a Non-resident Fellow at Arab Center Washington DC