Israeli Settlements and International Law Legal Position Paper May 2001

Information Division, Israel Foreign Ministry - Jerusalem

The Historical Context

- Jewish settlement in West Bank and Gaza Strip territory has
existed from time immemorial and was expressly recognised as
legitimate in the Mandate for Palestine adopted by the League of
Nations, which provided for the establishment of a Jewish state in
the Jewish people's ancient homeland. Indeed, Article 6 of the
Mandate provided as follows:

"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".

- Some Jewish settlements, such as in Hebron, existed throughout
the centuries of Ottoman rule, while settlements such as Neve
Ya'acov, north of Jerusalem, the Gush Etzion bloc in Judea and
Samaria, the communities north of the Dead Sea and Kfar Darom in
the Gaza region, were established under British Mandatory
administration prior to the establishment of the State of Israel.
To be sure, many Israeli settlements have been established on sites
which were home to Jewish communities in previous generations, in
an expression of the Jewish people's deep historic and religious
connection with the land.

- For more than a thousand years, the only administration which has
prohibited Jewish settlement was the Jordanian occupation
administration, which during the nineteen years of its rule
(1948-1967) declared the sale of land to Jews a capital offense.
The right of Jews to establish homes in these areas, and the legal
titles to the land which had been acquired, could not be legally
invalidated by the Jordanian or Egyptian occupation which resulted
from their armed invasion of Israel in 1948, and such rights and
titles remain valid to this day.

International Humanitarian Law in the West Bank and Gaza Strip
- International humanitarian law prohibits the forcible transfer of
segments of the population of a state to the territory of another
state which it has occupied as a result of the resort to armed
force. This principle, which is reflected in Article 49 of the
Fourth Geneva Convention, was drafted immediately following the
Second World War. As International Red Cross' authoritative
commentary to the Convention confirms, the principle was intended
to protect the local population from displacement, including
endangering its separate existence as a race, as occurred with
respect to the forced population transfers in Czechoslovakia,
Poland and Hungary before and during the war. This is clearly not
the case with regard to the West Bank and Gaza.

- The attempt to present Israeli settlements as a violation of this
principle is clearly untenable. As Professor Eugene Rostow, former
Under-Secretary of State for Political Affairs has written: "the
Jewish right of settlement in the area is equivalent in every way
to the right of the local population to live there" (AJIL, 1990,
vol. 84, p.72).

- The provisions of the Geneva Convention regarding forced
population transfer to occupied sovereign territory cannot be
viewed as prohibiting the voluntary return of individuals to the
towns and villages from which they, or their ancestors, had been
ousted. Nor does it prohibit the movement of individuals to land
which was not under the legitimate sovereignty of any state and
which is not subject to private ownership. In this regard, Israeli
settlements have been established only after an exhaustive
investigation process, under the supervision of the Supreme Court
of Israel, designed to ensure that no communities are established
on private Arab land.

- It should be emphasised that the movement of individuals to the
territory is entirely voluntary, while the settlements themselves
are not intended to displace Arab inhabitants, nor do they do so in
practice.

- Repeated charges regarding the illegality of Israeli settlements
must therefore be regarded as politically motivated, without
foundation in international law. Similarly, as Israeli settlements
cannot be considered illegal, they cannot constitute a "grave
violation" of the Geneva Convention, and hence any claim that they
constitute a "war crime" is without any legal basis. Such political
charges cannot justify in any way Palestinian acts of terrorism and
violence against innocent Israelis.

- Politically, the West Bank and Gaza Strip is best regarded as
territory over which there are competing claims which should be
resolved in peace process negotiations. Israel has valid claims to
title in this territory based not only on its historic and
religious connection to the land, and its recognized security
needs, but also on the fact that the territory was not under the
sovereignty of any state and came under Israeli control in a war of
self-defense, imposed upon Israel. At the same time, Israel
recognizes that the Palestinians also entertain legitimate claims
to the area. Indeed, the very fact that the parties have agreed to
conduct negotiations on settlements indicated that they envisage a
compromise on this issue.

Israeli-Palestinian Agreements

- The agreements reached between Israel and the Palestinians
contain no prohibition whatsoever on the building or expansion of
settlements. On the contrary, it is specifically provided that the
issue of settlements is reserved for permanent status negotiations,
which are to take place in the concluding stage of the peace talks.
Indeed, the parties expressly agreed that the Palestinian Authority
has no jurisdiction or control over settlements or Israelis,
pending the conclusion of a permanent status agreement.

- It has been charged that the prohibition on unilateral steps
which alter the "status" of the West Bank and Gaza Strip, which is
contained in the Interim Agreement and in subsequent agreements
between the parties, implies a ban on settlement activity. This
position is disingenuous. The building of homes has no effect on
the status of the area. The prohibition on unilateral measures was
agreed upon in order to ensure that neither side take steps to
change the legal status of this territory (such as by annexation or
unilateral declaration of statehood), pending the outcome of
permanent status negotiations. Were this prohibition to be applied
to building, it would lead to the ridiculous interpretation that
neither side is permitted to build homes to accommodate for the
needs of their respective communities.

- It is important to note, that in the spirit of compromise and in
an attempt to take constructive confidence building measures in the
peace process, successive Israeli governments have expressly
recognized the need for territorial compromise in West Bank and
Gaza Strip territory and have voluntary adopted a freeze on the
building of new settlements. In this regard, the present National
Unity Government, under Prime Minister Ariel Sharon, has officially
declared that it will not build any new settlements, while
remaining committed to the basic needs of the existing settlement
communities (Government of Israel, Policy Guidelines, March 2001).