The legality of the Jewish settlements in the West Bank
It is a common misperception that the building of settlements in Judea and Samaria (“West Bank”) is an impediment to peace between Israel and the Palestinians.
In truth, the primary obstacle to peace is the Palestinian refusal to recognize Israel's right to exist as a Jewish state and the unwillingness to allow a Jewish minority in a Palestinian state.
Conversely, under international law, Israel is not obliged to accept or support the establishment of a sovereign Palestinian state on the west side of the Jordan River.
The legality of the settlements
Following the Turkish and Arab defeat in the First World War, Britain was given the job of administering parts of the defunct Ottoman Empire. In 1920, the San Remo Conference of the Allied Powers assigned to Britain a mandate to establish a Jewish national home on territory covering what would become Israel, Jordan and part of the Golan Heights.
In early 1921, Britain made a distinction between Palestine as a national home for the Jewish people, and Transjordan as a home for the Arabs.
The Mandate of Palestine was confirmed by the League of Nations in 1922. It formalised the creation of two British protectorates, i.e. (1) Palestine for the Jews under British rule and (2) Transjordan, to be governed semi-autonomously from Britain under the rule of the Hashemite family. (In June 1922, a joint resolution of both Houses of Congress of the United States unanimously endorsed the "Mandate for Palestine".)
The Mandate for Palestine incorporated the 1917 Balfour Declaration, which endorsed the “establishment in Palestine of a national home for the Jewish people.” The Mandate legalized the immigration of Jews to Palestine and encouraged close settlement of the land.
At outbreak of the Second World War, the Mandate was still in force. Two years after the war, the British handed the Mandate to the UN, which recommended (rather than enforced) the partition of Palestine between Jews and Arabs. The Jews accepted the partition but the Arab states rejected it and declared war on the Jewish homeland. In May 1948, in the middle of the war, Israel declared independence.
Although Israel defeated its Arab attackers, Egypt and Jordan still managed to take over some of the unclaimed Mandate land, i.e. Gaza and the newly-named West Bank respectively. Israel also increased its share of the land. (Had Israel captured the West Bank and Gaza in 1948-9, then accusations of occupation would probably be non-existent.) At the insistence of the Arabs, the 1949 armistice line was “not to be construed in any sense as a political or territorial boundary.”
In 1967, Israel won control of the West Bank after a war of self-defence. To speak of Israeli occupation implies that Israel fought an aggressive war in order capture the West Bank, which certainly was not the case.
Following the war, Israel annexed east Jerusalem, which was home to the iconic Western Wall. However, it did not annex either the West Bank or Gaza. UN Security Council Resolution 242 recommended Israeli withdrawal from territories in return for the right “to live in peace within secure and recognized boundaries free from threats or acts of force.” Resolution 242 did not mention the Palestinians, although it did refer to “a just settlement of the refugee problem” in acknowledgment that both sides had their share of refugees. Unfortunately, the Arab states once again rejected the UN’s proposal. At a conference in Khartoum the Arabs refused to negotiate or make peace with Israel. In fact, they refused to recognise Israel at all.
It is also worth pointing out that the second article of the Fourth Geneva Convention is not applicable to the West Bank (and Gaza) because it pertains only to cases of occupation of a sovereign entity. The West Bank has never been the legal territory of any sovereign entity. Or to put it in plain English, territories are only "occupied" if they are captured in war from an established and recognized sovereign. Jordan was never an established or recognized sovereign of the West Bank.
Following the Arab invasion of Israel in 1973, UN Security Council Resolution 338 reiterated Resolution 242 and declared that “immediately and concurrently with the ceasefire, negotiations start between the parties...aimed at establishing a just and durable peace in the Middle East.”
Egypt and Israel made peace in 1979. Egypt regained the Sinai Peninsula and an international border was fixed between the two countries. Israel and Jordan made peace in 1994.
The Oslo Accords of 1993 incorporate Resolutions 242 and 338 and thereby provide the basis for Palestinian negotiations with Israel. However, neither resolution mandates the establishment of a separate Arab state. Nonetheless, it was mutually agreed in 1995 to divide the West Bank into regions – A, B and C. The overwhelming majority of Palestinians live in Palestinian-governed areas, A and B. All the Jewish settlements are in Area C.
Israel’s faith in the accords was undermined by the fact that terrorist attacks against Israel intensified. Moreover, several Palestinian organisations, including Hamas and Palestinian Islamic Jihad, objected to the accords because their charters did not recognise Israel.
Legally, the West Bank is unclaimed Mandate land and should be referred to as “disputed” – not “occupied” – territory. Claims that Israel is an occupying power is not only nonsensical in a legal sense, but fails to recognise that Israel gained the West Bank as a result of a defensive war in 1967.
So if the West Bank is “disputed” territory, does this mean the Jewish settlements are legal or illegal?
Contrary to popular belief, the settlements are entirely legal as long as they are in the parameters of the 1922 Mandate, which has never been superseded in law, not even by the 1947 partition plan.
Had Jews started building settlements in Lebanon following the First Lebanon War, then their actions would be illegal under international law.
Israel’s capture of the West Bank in 1967 merely restores the territory to its legal status under the Mandate of 1922. This is the same mandate which encouraged Jewish settlement in all of Palestine.
Even if it could be proved that Israel is an occupant, many of the Jewish settlements are still permitted under international law. Article 49 of the Fourth Geneva Protocol does not prohibit Israeli civilians from acting on their own initiative by purchasing land in the West Bank and settling there among the Palestinian Arabs. In fact, many of the Jewish settlers are in the West Bank in spite of the Israeli government. (Settlements that are judged to be harmful to Palestinian interests are regularly dismantled by the Israeli authorities.) Moreover, the settlements that have been approved by the government are there for security reasons. For example, building up the areas around east Jerusalem reduces the risk of the capital falling to an Arab army invading from the east. Again, this is permissible under the Article 49 of the Fourth Geneva Protocol.
The fact that the Palestinians and the Arab states collaborated with Hitler before and during Second World War, and then proceeded to invade Israel on three occasions between 1948 and 1973, seriously undermines any moral claim to establish a state on the West Bank. Even today, most Arabs still refuse to recognize Israel’s right to exist. Professor Julius Stone, a leading authority on the Law of Nations, has stated that because of the attacks against Israel in 1948, 1967 and 1973, as well as other belligerent acts, Arab states have “flouted their basic obligations as United Nations members.”
There are also historical and moral reasons why the Jewish settlements are legitimate. The West Bank, traditionally known as Judea and Samaria, is historically and religiously Jewish. It is home to several sacred sites and two of Judaism’s holiest cities (east Jerusalem and Hebron). Jerusalem was under Islamic control for centuries, but on no occasion did any Muslim entity declare it as their capital. During the Jordan occupation, not a single foreign Arab leader came to pray in the al-Aqsa Mosque on the Temple Mount. In contrast, only the Jews have ever thought of Jerusalem as a capital. Prior to the State of Israel, the only time Jerusalem was the capital of a nation was when it was the first city of Judea.
Moreover, non-Jewish powers cannot be trusted to protect Jews or Jewish sites. Until 1948, Jews had lived in Judea and Samaria for hundreds of years. During the Jordanian occupation, the Jewish cemetery on the Mount of Olives was desecrated and synagogues destroyed. In addition, Jews were forbidden from praying at their holiest place – the Western Wall.
And let’s not forget that Hebron was ethnically cleansed of Jews by the Palestinian Arabs in 1929. Following the 1967 war, many Jews were eager to commemorate the massacre by returning to Judaism’s second-holiest city, which is also home to the Tomb of the Patriarchs.
Even though the settlements are legal, are they still an impediment to peace?
The dismantling of Jewish homes and the withdrawal of Israelis from Gaza in 2005 should have led to a cold peace. Instead, the Palestinians elected Hamas, which resulted in an upswing in terrorism. Between 1948 and 1967, there was not a single settlement in Gaza or the West Bank. But the Arab states refused to make peace with Israel. Nor did the Arab states attempt to establish a Palestinian state on the West Bank and in Gaza between 1948 and 1967. In fact, the Palestinian Arabs themselves barely considered establishing a state for themselves. In short, a peaceful resolution to the Israeli-Palestinian conflict has never been about the settlements. The obsession with the settlements is the main weapon in the armoury of the anti-Israel brigade. Turning the spotlight on Jewish houses in the West Bank is an effective way of portraying Israel as an occupier. Furthermore, it adds to the consensus that Israel is solely to blame for the stalemate and exonerates the Palestinians of any responsibility.
Of course, it is a reasonable assumption that the settlements will play a part in final negotiations. And if a two-state solution is reached, it must be possible to allow a Jewish minority to remain in a Palestinian state, in the same way that one in five Israelis are Arabs. After all, many of the Jews in the West Bank were born there. The Palestinian call to remove all Jews from the West Bank is racist and illegal.