ISRAEL'S SETTLEMENTS - THEIR CONFORMITY WITH INTERNATIONAL LAW
1. THE HISTORICAL CONTEXT
Jewish settlements in the West Bank have existed for many hundreds of
years. The Jewish community in Hebron existed throughout the centuries of
Ottoman rule, while such settlements as Neve Ya'acov and the Gush Etsion
block were established under the British Mandatory Administration, which
allowed Jewish settlement in these areas.
The approach of the Mandatory Administration to Jewish settlement was
fully in accord with the Mandate of the League of Nations, Article 6 of
"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 land not required
for public use."
Even though British Mandate Authorities, particularly in the latter period
of the Mandate, were not sympathetic to the Zionist cause, they
nevertheless permitted the establishment of Jewish settlements in the
territories since they were implementing the League of Nations Mandate
which called for Jewish settlement in the whole area west of the river
The right of Jews to establish their homes in these areas is as valid
today as always. As Former Under-Secretary of State for Political Affairs
and Distinguished Fellow at the United States Institute of Peace, Eugene
V. Rostow, has written:
"The right of the Jewish people to settle in Palestine has never been
terminated for the West Bank..." (American Journal of International Law,
vol. 84, July 1990, p. 718).
2. THE LAW OF OCCUPATION
- even if it applies, does not prohibit Israeli settlements
Israel has consistently taken the position that the areas of the West Bank
and Gaza cannot be considered as occupied territories under international
law. Nonetheless, Israel has undertaken to comply with the humanitarian
provisions of the Law of Occupation in its administration of the
In this regard, it has been charged that the establishment of settlements
by Israel in the administered areas violates article 49 of the Fourth
Geneva Convention, and, in particular, paragraph 6, which provides that:
"The Occupying Power shall not deport or transfer parts of its own
civilian population into the territory it occupies."
However, it is clear from both the full text of article 49 and from its
title, "Deportations, Transfers, Evacuations", that the full provision is
directed against the forcible transfer of civilians with a view to
protecting the local population from displacement. Oppenheim-Lauterpact
confirms that the prohibition is intended to cover "cases of the occupant
bringing its nationals for the purpose of displacing the population of the
occupied territory" (Vol. II, 7th. ed., p. 452).
This understanding of the provision is underscored by its historical
context. Drafted only four years after the end of the Second World War,
the provision was intended to deal with forced transfers of population
like those which took place in Czechoslovakia, Poland and Hungary before
and during the war. The authoritative ICRC commentary states clearly that
paragraph 6 was intended to "prevent a practice adopted during the Second
World War by certain powers, which transferred portions of their own
population to occupied territory for political and racial reasons or in
order, as they claimed, to colonise these territories" (Commentary: IV
Geneva Convention ed. Pictet (1958), p. 283).
Accordingly, it is evident that Article 49 has no bearing as regards the
settlements in the territories. The existence of Jewish settlements in
these areas is a continuation of a long-standing Jewish presence.
Moreover, the movement of individuals to these areas is entirely
voluntary, while the settlements themselves are not intended to displace
Arab inhabitants, nor do they do so in practice.
3. THE ISRAELI-PALESTINIAN PEACE AGREEMENTS
- contain no prohibition on the building or expansion of settlements
It has been charged that the building or expansion of Israeli settlements
is a breach of the provisions of the Israeli-Palestinian peace agreements.
In fact, neither of the agreements in force between Israel and the PLO -
the Declaration of Principles and the Interim Agreement - contain any
provision prohibiting or restricting the establishment or expansion of
Israeli settlements. Similarly, none of the other agreements between the
two sides, now superseded by the Interim Agreement, contained such a
provision. At various stages during the negotiations over these
agreements, requests were made by the Palestinian side to include such a
provision. Israel, however, opposed the inclusion of such a provision,
pointing out that Israeli policy in this regard had already been
established in a number of decisions by the Israeli Government, and
explaining that it was not prepared to undertake any commitment beyond
these unilateral Government decisions.
The Declaration of Principles does provide, in Article V, that the issues
of settlements and Israelis are among a number of issues to be negotiated
in the permanent status negotiations. Article IV provides that the
jurisdiction of the Palestinian Council covers "West Bank and Gaza Strip
territory, except for those issues that will be negotiated in the
permanent status negotiations." Accordingly, not only is there no
restriction on settlement activity during the interim period, but the
Council has no jurisdiction over settlements or Israelis. Settlements and
Israelis remain under exclusive Israeli authority throughout the interim
Finally, the suggestion has been made that settlement activity is
prohibited by the Interim Agreement, which provides in Article XXXI.7:
"Neither side shall initiate or take any step that will change the status
of the West Bank and the Gaza Strip pending the outcome of the permanent
The suggestion that this provision prohibits settlement activity is
disingenuous. The building of homes has no effect on the status of the
area. The prohibition on changing the status of the areas is intended to
ensure that neither side takes any unilateral measures to change the legal
status of these areas (such as by annexation or a declaration of
statehood) pending the final status talks. Moreover, since the provision
applies to both sides ("Neither side..."), were it to prohibit building,
it would prohibit the construction of homes for Israelis and Arabs alike.
This is not only impractical but also clearly not what was envisaged by
the Interim Agreement, which contains provisions dealing with planning and
zoning, on the assumption that building is to continue throughout the
4. ACQUISITION OF LAND FOR SETTLEMENT CONSTRUCTION
- is effected in strict conformity with international law
Israel's actions relating to the use and allocation of land under its
administration are all taken with strict regard to the rules and norms of
international law. All such actions are under the supervision of the
Supreme Court of Israel sitting as the High Court of Justice which is
accessible to any aggrieved resident of the areas.
Although the Hague Regulations, in Article 52, permit the administering
authority to requisition private property for reasons of military
necessity, Israel does not requisition private land for the establishment
of settlements, even where there is military justification.
Where land is not subject to private ownership, Article 55 of the Hague
Regulations provides that the administering authority is permitted to
utilize such public land and to enjoy the "usufruct". Indeed, there is a
positive duty which obliges the authority to take possession of public
property in order to safeguard it pending the final determination as to
the status of the territory concerned. Felichenfeld in "The International
Economic Law of Belligerent Occupation" (1942) (at page 55) observes that
the right to enjoy the usufruct includes the right to lease or utilize
public lands or buildings, sell the crops, cut and sell timber, and work
Contrary to allegations frequently made in this regard, Israel does not
expropriate any private land for the purpose of establishing settlements.
Settlements are only established on public land after an exhaustive
investigation has confirmed that no private rights exist in the land in
question. The process of investigation includes an appeals process,
through which any individual claiming rights in the land can object.
Decisions of the Appeals Board and any declaration that land is
state-owned can also be appealed to the High Court of Justice.
Jewish settlements have existed in the areas for hundreds of years. During
the time of the League of Nations Mandate, settlements were set up with
the Mandate's permission and encouragement.
Although the status of the territories is not strictly "occupied
territory", Israel complies with the provisions of international law
regarding occupied territory. It does not confiscate or seize private
land, nor does it displace the local population. Professor Eugene Rostow
"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.
Israel has agreed to negotiate the future of the settlements in the
permanent status negotiations with the Palestinians. Until then, the two
sides have agreed that settlements in the areas are to remain unaffected
and under exclusive Israeli authority. The Israel-PLO agreements do not
place any restrictions on the continued building or expansion of
In political fora, there have been repeated allegations that Israel's
settlements in the areas are a violation of international law. Such
allegations have no legal or factual basis and reflect political
motivations. The allegations are particularly troubling since they
demonstrate an approach to international law that is less than objective
or rigorous. It is only on the basis of an honest respect for the
provisions of international law that there can be serious hope for a
durable and lasting peace.