Settlement Derangement Syndrome-

Are Jewish Communities in Judea and Samaria illegal under International Law and Why does it matter?

Israel’s critics have a favorite whipping-boy – the so-called Jewish “settlements” in Judea and Samara (also known as the West Bank) which are actually just towns and neighborhoods developed by Jewish Israelis as places to live. Regardless of the broader context, the settlements are a convenient scapegoat for Palestinian violence against Jews and the Palestinian refusal to accept Israel's existence. In reality, and like so many nonsensical pronouncements made by the international community (and even Jews and left wing Israelis) about Israeli policies, focusing on these communities and the behavior of a small percentage of their residents distracts attention from the real (and sole) reason there has not been peace between Israel and the Palestinians - Palestinian rejectionism.

The legality of Israel’s settlements in Judea and Samaria has for years dominated the attention of the international community as is evident in countless reports of different UN bodies, rapporteurs, and resolutions, as well as in political declarations and statements by governments and leaders[1]. In order to use these communities as a basis for blaming Israel for the failure of the two-state solution, the United Nations, ICC, ICJ, various Muslim and European governments, Amnesty International, Human Rights Watch and other NGOs have relied on their go-to Israel-is-violating-International-Law pretext for which they routinely denounce Israel.

Israel’s Claim Over Judea and Samaria

The British Mandate.

Sifting through the rhetoric, an analysis of the history of Judea and Samaria reveals that Israel likely has the best claim to sovereignty than any other potential claimant,

Historically, Jewish roots in the Land of Israel go back for millennia. Even after the Roman conquest and resulting exile, Jews have lived in the Land continuously.

Modern Zionism began in the late 19^th century, but for purposes of this essay, I am starting at 1917 when the League of Nations entrusted the territory of Palestine to Britain for the stated purpose of creating a homeland for the Jewish people.

“Recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”[2]

The Mandate included all of the territory constituting Israel, Jordan, Judea and Samaria and Gaza.

Article 6 of the Palestine Mandate states:

“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, …. settlement by Jews on the land, including State lands and waste lands not required for public purposes.”

Importantly, although the Mandate contains safeguards for the religious and civil rights of the non-Jewish inhabitants of the Palestine Mandate, it does not address their rights to sovereignty of any kind. In fact, until 1917 “Palestine” was simply a district of the Ottoman Empire that was included in Southern Syria and ruled from Damascus. Arab nationalism at that time focused on Arab identity or more specifically Syrian identity; but not a distinct Palestinian identity.

Arab pressure and riots resulted in Churchill issuing the “White Paper” of 1922 which, while reiterating the right of the Jewish people to a national home in Palestine, permanently detached the area of the Jewish homeland east of the Jordan River (constituting 76 percent of the original Mandate territory), with respect to which he made a separate agreement with Emir Abdullah of Transjordan, ultimately establishing the independent Kingdom of Jordan. This action was not consistent with the Mandate but the Jews accepted it because (a) they had no choice, and (b) the Jewish connection to the territory East of the Jordan River was more limited and was dwarfed by the Jewish connection to the territory West of the Jordan River.

Partition.

Following World War II and the destruction of European Jewry, the United Nations passed the Partition Resolution of November 29, 1947 (General Assembly Resolution 181(II)), recommending the partition of Palestine into a Jewish state and an Arab state, with a special international status for Jerusalem. The Resolution could only be implemented with the acceptance of it by the parties. But the Resolution was rejected by the Arabs. Since the Arabs never accepted the Partition Plan, it does not define the boundaries of the State of Israel. Arguably, the entirety of the territory West of the Jordan is legally part of Israel because that was the Mandate immediately before the failed Partition Plan. Following the War of Independence, Israel extended its sovereignty over all of the territory that it controlled which was more than what it had been allocated in the Partition Plan. .

In order to bring an end to the war, Israel entered into Armistice Agreements with its neighboring countries, expressly stipulating that “the Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question” (Art. V(2) of the agreement with Egypt), and that “no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations” (Article II(2) of the agreement with Jordan, and an identical provision in the agreement with Lebanon).

Six Day War.

In May 1967 Egyptian President Gamal Abdel-Nasser mobilized and sent troops to the Sinai Peninsula and closed off the Straits of Tiran to the passage of ships flying the Israeli flag and ships flying other flags carrying strategic cargoes, in violation of international law. This was in addition to the previous gross breach of closing the Suez Canal for many years, a canal which was meant to be open to the free passage of ships of all nationalities. Only a few days after the Egyptian troops had been deployed in Sinai, then UN Secretary General U Thant, acting upon the request of President Nasser, withdrew UN Forces from the Sinai Peninsula.

Israel was ultimately forced to take defensive measures, as it was entitled to do under the United Nations Charter, with a preemptive strike against the Egyptian Air Force on June 6, 1967. Jordan and Syria joined Egypt in attacking Israel on that same day. Troops supporting the Arab attack arrived from Iraq, Algeria and Kuwait. The Six-Day War ended with Israel’s stunning victory. The Sinai Peninsula, the Golan Heights, the Gaza Strip, Judea and Samaria and the Old City of Jerusalem all came under Israeli control.

At the conclusion of the Six Day War, UN Resolution 242 was passed with the aim of establishing the guidelines for a “peaceful and accepted settlement” to be agreed by “the States concerned.” Accordingly, the Resolution provided:

the fulfillment of [United Nations] Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of . . . withdrawal of Israeli armed forces [not necessarily “all armed forces”] from territories [not necessarily “the territories” or “all the territories”] occupied in the recent conflict. . . [the] 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.

This Resolution is often relied upon as a basis for claiming that Israel must withdraw from Judea and Samaria, glossing over the fact that a peace agreement is a prerequisite for withdrawal that Israel need not withdraw entirely and the Palestinians living in Judea and Samaria do not qualify as a State notwithstanding pseudo “recognition” by various countries.

The First Post- 1967 Settlements

Some Jewish settlements in Judea and Samaria, 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 southern Judea, and the communities north of the Dead Sea, were established under British Mandatory administration prior to the establishment of the State of Israel, and in accordance with the League of Nations Mandate. Judea and Samaria are the cradle of millennia of Jewish history and many of Judaism’s holiest sites, such as the Tomb of the Patriarchs in Hebron.

Many contemporary Israeli settlements have actually been re-established on sites which were home to Jewish communities in previous generations, A significant number are located in places where previous Jewish communities were forcibly ousted by Arab armies or militia, or slaughtered, as was the case with the ancient Jewish community of Hebron in 1929.

Shortly after the Six Day War, Jews began moving back to Judea and Samaria, initially in the Gush Etzion bloc and Hebron. The first settlement to be constructed after the 1967 war was Kfar Etzion, which was actually the reestablishment of a pre existing Jewish settlement destroyed by the Jordanians in 1948. Several of the new residents of Kfar Etzion were descendants of the people who fought and died in 1948. In other words, the Jews were not usurping anyone’s land; they were reclaiming land that had been part of Mandatory Palestine and was originally intended as a Jewish homeland.

For more than a thousand years, the only administration which has prohibited Jewish settlement in these areas 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 private legal titles to the land which had been acquired, could not be legally invalidated by Jordanian occupation and such rights and titles remain valid to this day.

In short, the attempt to portray Jewish communities in Judea and Samaria as a new form of "colonial" settlement in the land of a foreign sovereign is as disingenuous as it is politically motivated. At no point in history were Jerusalem and Judea and Samaria subject to Palestinian Arab sovereignty. At issue is the right of Jews to reside in their ancient homeland, alongside Palestinian Arab communities, in an expression of the connection of both peoples to this land

To be sure, not all settlements are legal even under Israeli law. There are illegal outposts that are settled without permits and are not sanctioned by the Israeli government.

Palestinian leadership and much of the international community have taken the position that Israel is occupying Judea and Samaria and East Jerusalem, in that they were captured from the Kingdom of Jordan in 1967. Consequently, according to this approach, the provisions of international law regarding the matter of occupation apply to Israel as a military occupier.[3]

What country is Israel occupying? The previous claimant to sovereignty was Jordan whose claims were not recognized by the international community. Before that, Judea and Samaria were part of the British Mandate for Palestine which was designated as a home for the Jewish people. So who has the best claim over the land? Why would Palestinians who repeatedly rejected offers of statehood starting in 1947 have a better claim than Israel? Israel gained control of the territory in a defensive war and is the de facto sovereign until a peace agreement can be achieved.

The Geneva Convention.

Immediately after the Second World War, the need arose to draft an international convention to protect civilians in times of armed conflict in light of the massive numbers of civilians forced to leave their homes during the war, and the glaring lack of effective protection for civilians under any of the then valid conventions or treaties. Accordingly, Article 49 of the Fourth Geneva Convention was adopted which prohibits the transfer of the occupier’s own civilian population into the territory it occupies. Opponents of Israeli settlements in Judea and Samaria argue that they violate this Article of the Geneva Convention.

This argument fails for two reasons

(i) Israel is not an “Occupying Power” under international law because the territories of Judea and Samaria were never a legitimate part of any Arab state, including the kingdom of Jordan[4]. Moreover, Jordan has since renounced its claims to Judea and Samaria. Accordingly, conventions dealing with occupied territory are not applicable to Israel’s presence in Judea and Samaria.[5]

(ii) Even assuming arguendo that Israel was an occupying power, Article 49 prohibits the forcible deportation of an occupier’s own population, as was carried out by Nazi Germany, which forcibly transferred people from Germany to Poland, Hungary and Czechoslovakia. However, Israelis living in Judea and Samaria move there voluntarily.

International lawyer Eugene V. Rostow, a former dean of Yale Law School and Undersecretary of State, stated in 1990:

[T]he Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War – the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example….The Jewish settlers in the West Bank are most emphatically volunteers.[6]

Similarly, international lawyer Prof. Julius Stone, in referring to the absurdity of considering Israeli settlements as a violation of Article 49(6), stated:

Irony would…be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that…the West Bank…must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49(6.)[7]

Oslo

The Geneva Convention principle was rendered moot by the signing of the Oslo Accords. The Oslo Accords are a series of agreements between Israel and the Palestinians entered into between 1993 and 1999 which created a framework for governing the relationship between Israel and the Palestinians which remain valid. The issue of settlements is one of the core issues to be negotiated in the permanent status negotiations.[8] The original intent was for this arrangement to be temporary, allowing the PA to build institutions, learn how to govern, and build trust with Israel, eventually leading to a final deal. However, the Interim Agreement did not apply at all to issues reserved for the negotiations on the permanent status agreement, including Jerusalem and the settlements (Art. XXXI(5) of the Interim Agreement).). The interim period elapsed long ago, but a permanent status agreement has not yet been concluded. In this framework the two parties agreed on a division of jurisdiction in the West Bank into areas A and B (Palestinian jurisdiction) and area C (Israeli jurisdiction).

Area ‘A’ is completely ruled by the PA and includes all the major Arab population centers in Judea and Samaria, such as Ramallah, Bethlehem, Hebron Jenin, Tulkarem, Qalqilya, as well as the Jericho Area. In Area A, the PA has full responsibility for internal security (that is, the fight against terrorism), public order (that is, all police activity not related to internal security), and all civil affairs. Entrance to area ‘A’ is illegal for Israeli citizens.

Area ‘B’ constitutes 22% of the West Bank In Area B, the PA controls all Palestinian public order and civil affairs issues. Israel controls internal security issues in Area B, in coordination with the PA. . These areas are administratively split between PA ‘civilian control’ over taxes, streets, garbage trucks, and the like, and Israeli ‘security control,’ which means that law and order as well as anti-terror operations are conducted freely by the IDF in these areas.

Area ‘C’ is under complete Israeli control. This includes all the Jewish settlements and the roads which access them (which roads are also used freely by the Arabs who live in areas ‘A’ and ‘B.), IDF installations, areas of security importance, and other non-inhabited areas. In Area C, Israel controls all internal security and public order issues, as well as civil affairs issues, except that the PA controls all civil affairs issues for the Palestinians that reside in Area C, other than those related to the management of the land. Israel’s powers and responsibilities in Area C include all aspects regarding its settlements pending the outcome of the Permanent Status negotiations. Under the Oslo Accords, Israel is legally allowed to build there. Nevertheless, Israel is often accused of settlement expansion against the wishes of both the Palestinians and many in the wider international community.

Legal or Illegal: Are Jewish Settlements in Judea and Samaria and Obstacle to peace?

The two sides to this debate could engage in many hours of brain damage each attempting to prove that it is the “right” side of international law. But does it matter?

No, it does not.

The Palestinians as a people, are openly committed to being in a permanent state of war with Israel.[9]

When Yasser Arafat rejected Israeli offers for a Palestinian State in 2000 and 2008, which included 95-96% of the West Bank, Gaza, and a capital in East Jerusalem (with the second offer also including a portion of the Negev as compensation for the excluded areas), he did not cite the existence of Jewish settlements as a reason for his rejection. In fact, settlements were never mentioned, as they are not relevant to the Palestinian claim. The primary reason for rejecting these offers was Israel's refusal to recognize the so-called "right of return" that the Palestinians insisted upon. This demand was part of a cynical strategy to undermine Israel from within, as the Arabs sought to repatriate four generations of descendants of those displaced during the war they initiated and lost in 1948. This tactic artificially inflated the number of claimants from 750,000 to millions. Arafat understood that Israel would never agree to its own destruction. To divert attention from their rejection of the offers, the Palestinians unleashed waves of violence, resulting in the deaths of thousands of Israelis through suicide bombings, stabbings, car-rammings, shootings, and other acts of terror for which they have become known. The Palestinians are the only nation that ever said “no” to an offer of independence with international support[10].

Given the security concerns, establishing settlements in Judea and Samaria makes sense from a security point of view which Israel has every right to do.

Does Jewish settlement in Judea and Samaria advance the cause of peace between Israel and the Palestinians? No.

Does Jewish settlement in Judea and Samaria hurt the cause of peace between Israel and the Palestinians? No.

The presence of Jewish communities in Judea and Samaria does not impact the pursuit of peace between Israel and the Palestinians. Rather than serving as a hindrance to peace, they hold no significance whatsoever. This is due to the Palestinians explicitly stating that they will not recognize a Jewish state, regardless of its size, adjacent to their territory. They have consistently reiterated this stance, yet the global community continues to disregard their words, attributing noble intentions to them that simply do not exist.

A case in point is that in 2010, following pressure from the Obama administration, Israel agreed to a 10 month settlement freeze. Per the White House, the purpose of the freeze was to encourage the Palestinians to “come to the table” and restart peace negotiations. Israel agreed. Of course, the Palestinians did not agree to join negotiations. Why should they? They already had obtained a settlement freeze for nothing. Anyone who believes concessions will encourage the Palestinians to agree to peace is ignorant of facts and history.

Jewish claims to Judea and Samaria do not abrogate Palestinian claims to the land. However, the Palestinians cannot hold Judea and Samaria hostage indefinitely. Since October 7, 2023, the Palestinians in Judea and Samaria have made their stance clear. The majority of the population supports Hamas' genocidal actions on that day and has expressed a desire for similar events to occur again. They are not advocating for peace; rather, they are committed to ongoing conflict until the State of Israel is destroyed. Their actions have demonstrated that they cannot be trusted to establish an independent state that would not pose an existential threat to Israel. By consistently rejecting offers of peace in exchange for statehood and resorting to terror, they have forfeited any right they may have had to establish an independent state in Judea and Samaria.

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[1] https://jcpa.org/article/the-settlements-issue-distorting-the-geneva-convention-and-the-oslo-accords/ citing General Assembly Resolution A/RES/3005/(XXVII) of December 15, 1972, through Security Council Resolutions 446(1979), 452 (1979), 465(1980), to the most recent General Assembly resolution of December 10, 2010, A/RES/65/105.

[2] http://web.archive.org/web/20150508072813/http://regavim.org.il/en/wp-content/uploads/2014/11/The-Levy-Commission-Report-on-the-Legal-Status-of-Building-in-Judea-and-Samaria2.pdf

[3] The Levy Commission Report on the Legal Status of Building in Judea and Samaria, June 21, 2012

http://web.archive.org/web/20150508072813/http://regavim.org.il/en/wp-content/uploads/2014/11/The-Levy-Commission-Report-on-the-Legal-Status-of-Building-in-Judea-and-Samaria2.pdf

[4] Although the Israeli position is that Judea and Samaria are “disputed” under International Law rather than occupied, Israel voluntarily abides by the Geneva Convention in these territories.

[5] https://jcpa.org/article/status-of-settlements-in-international-law/ .

Y.Z. Blum, “The Missing Reversioner: Reflections on the Status of Judea and Samaria,” Israel Law Review 3 (1968), 279, 288.

[6] American Journal of International Law, Vol. 84, 1990, p. 719. (quoted in The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords Vol. 10, No. 20 January 5, 2011) https://jcpa.org/article/the-settlements-issue-distorting-the-geneva-convention-and-the-oslo-accords/

[7] https://jcpa.org/article/the-settlements-issue-distorting-the-geneva-convention-and-the-oslo-accords/

[8] http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Gaza-Jericho+Agreement+Annex+II.htm.

[9] https://jcpa.org/article/status-of-settlements-in-international-law/ http://www.palwatch.org.il/SITE/MODULES/videos/pal/videos.aspx?fld_id=140&doc_id=87

[10] Kontrovich, E. “Why Israeli Rule in the West Bank Is Legal under International Law” Jerusalem Center for Security and Public Affairs. April 8, 2018

https://jcpa.org/why-israeli-rule-in-the-west-bank-is-legal-under-international-law/