44. Israeli Settlements: Illegal?
Ben and Jerry's decision to withhold their ice cream from Jewish settlements in the occupied territories has ignited an old issue. Are Jewish settlements established since 1967 in the West Bank and the Golan Heights generally regarded as illegal under recognized international law?
Yes. Only the Israeli government (most of the time) and briefly the U.S. government (under Trump) have argued otherwise.
The operative provision is in the 1949 Geneva Convention, ratified by nearly all countries including Israel and now held to be part of customary international law obligatory on all nations:
"The occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies."
This seems clear enough. There are two main arguments made in defense of the settlements. The first is that, by the literal wording of Geneva Four, it is fine for settlers to move into occupied territory on their own initiative, so long as their government did not actively "deport or transfer" them there.
This is not a serious argument. In the aftermath of World War II, the intent of this provision was to prevent attempts to change the demography of occupied lands, as attempted during the war. For occupying powers to allow such change to take place is clearly a policy choice, whether implemented by them directly or through a permissive stance toward the influx of settlers.
If "voluntary" settlement is allowed, then by this interpretation Geneva Four would mean very little. It would not even have covered the movement of German settlers into Polish territory during World War II, since these settlers moved there of their own volition. Clearly this would have dismayed the drafters of the convention. If a state allows its own citizens to move into territory it occupies, it is clearly adopting a policy of demographic change where legally it has no sovereign powers.
The second argument is that sovereignty in the West Bank was in suspense after the British Mandate ended and almost no one recognized the Jordanian annexation of the area (obviously this argument can't be used in the case of the Golan Heights, formerly under Syrian rule).
If the West Bank was not legally Jordanian then there no one to whom the territory would revert and therefore it is not occupied territory. This is known as the theory of the "missing reversioner."
But the absence of a recognized previous sovereign does not in itself change the nature of occupation. Common sense -- and nearly all governments and authorities -- regard territory conquered in war beyond a nation's recognized borders to be "occupied."
Furthermore, Israel has repeatedly cited the broad powers granted to occupying powers by the Geneva Conventions in defense of its own policies in the territories. in doing so it defines its presence as occupation, whatever other, contradictory, claims might be made.
All of this was clarified clearly already in late 1967 in an opinion written by the Legal Advisor to the Israeli Ministry of Foreign Affairs, Theodor Meron. Meron, a Holocaust survivor and eminent jurist in his own right, made it clear that Israeli civilian settlements in the occupied territories were a clear violation of international law. His opinion, long since in the public record, is appended below. Forgive the lousy formatting; someday I’ll figure out how to post attachments properly.
Ministry of Foreign Affairs
Jerusalem,13 Elul 5727
18 September 1967
TOP SECRET
To : Mr Adi Yafeh, Political Secretary to the Prime Minister
From : Legal Adviser, Ministry of Foreign Affairs
Subject: Settlement in the Administered Territories
At your and Mr Raviv’s request, I am enclosing herewith a copy of my
memorandum of 14.9.67 on the above subject, which I submitted to the Minister of
Foreign Affairs. My conclusion is that civilian settlement in the administered territories
contravenes explicit provisions of the Fourth Geneva Convention.
Regards,
[signed]
T. Meron
Copy: Mr A. Shimoni, Director of the Minister’s Office
Jerusalem, 16 Elul 5727
21 September 1967
TOP SECRET
Minister of Justice
Dear Minister,
Subject: Settlement in the Administered Territories
Please find enclosed a copy of a memorandum on the above subject, which was
written by the Legal Adviser to the Ministry of Foreign Affairs after a conversation with
me.
The Prime Minister has asked that your attention be drawn to the enclosed with a
view to the establishment of outposts, army bases and settlement points and the
settlement of refugees in the administered territories.
The Prime Minister will be grateful for your opinion.
Regards,
Aviad Yafeh
Head of the Prime Minister’s Office
Copy: Dr Y. Herzog
TOP SECRET
14.9.67 TOP SECRET
Minister of Foreign Affairs
Legal Adviser
Most Urgent
Subject: Settlement in the Administered Territories
Mr Raviv wrote to me to say you had asked for my opinion “on restrictions and
dispensations under international law for occupying states where it concerns the cultivation of
lands”.
The above question is very general and difficult to answer but I understand it in the
context of what I have heard from Mr Adi Yafeh, that is to say, in relation to the possibility of
Jewish settlement in the [West] Bank and the [Golan] Heights as well as the settlement of Arab
refugees from Gaza in El-Arish or the [West] Bank. In this opinion, I will deal only with the first
question, which, from a political and legal point of view, seems to me to be the most delicate. I
am afraid there is in the world very great sensitivity to the whole question of Jewish settlement in
the administered territories and any legal arguments that we shall try to find will not counteract
the heavy international pressure that will be exerted upon us even by friendly countries which
will base themselves on the Fourth Geneva Convention. These countries may claim that, while
they expect for Israel to settle Arab refugees, Israel is busy settling the administered territories
with its citizens.
From the point of view of international law, the key provision is the one that appears in
the last paragraph of Article 49 of the Fourth Geneva Convention. Israel, of course, is a party to
this Convention. The paragraph stipulates as follows:
“The occupying power shall not deport or transfer parts of its own civilian population
into the territory it occupies”.
The Commentary on the Fourth Geneva Convention prepared by the International
Committee of the Red Cross in 1958 states:
This clause was adopted after some hesitation, by the XVIIth International Red
Cross Conference. It is 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 colonize those
territories. Such transfers worsened the economic situation of the native population and
endangered their separate existence as a race.
The paragraph provides protected persons with a valuable safeguard. It should
be noted, however, that in this paragraph the meaning of the words “transfer” and
“deport” is rather different from that in which they are used in the other paragraphs of
Article 49, since they do not refer to the movement of protected persons but to that of
nationals of the occupying Power.
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The prohibition therefore is categorical and not conditional upon the motives for the
transfer or its objectives. Its purpose is to prevent settlement in occupied territory of citizens of
the occupying state. If it is decided to go ahead with Jewish settlement in the administered
territories, it seems to me vital, therefore, that settlement is carried out by military and not civilian
entities. It is also important, in my view, that such settlement is in the framework of camps and
is, on the face of it, of a temporary rather than permanent nature.
Even if we settle an army and not civilians, we must, from the point of view of
international law, have regard to the question of ownership of the land that we are settling.
Article 46 of the Hague Regulations concerning the Laws and Customs of War on Land (Annexes
to the Hague Convention (IV) of 1907), regulations that are regarded as a true expression of
customary international law that is binding on all countries, states in relation to occupied territory
that:
“private property ... must be respected. Private property cannot be confiscated”.
As regards state lands, Article 55 of the Hague Regulations stipulates that an occupying
state is permitted to administer the property and enjoy the fruits of the property of the occupied
state. Even here there are certain limitations on the occupying state’s freedom of action, which
derive from the occupying state not being the owner of the property but having merely enjoyment
of it.
In relation to the property of charitable, religious or educational institutions or
municipalities, they are treated under Article 56 of the Hague Regulations as private property.
It will be noted that an order concerning abandoned property (private property) (Order
No. 58), issued by Brigadier Narkiss as IDF Commander in the West Bank region (and Order No.
59) concerning state property are in fact in keeping with the provisions of the Hague Regulations
on the observance of property rights.
I will now go on to discuss a number of concrete issues pointed out by Mr Yafeh.
A. Regarding the possibility of engaging in any kind of agricultural activity and settlement
on the Golan Heights, it has to be pointed out that the Golan Heights, which lie outside the area of
the mandated Land of Israel, are unequivocally “occupied territory” and are subject to the
prohibition on settlement. If it is decided to establish any settlements, it is essential that this be
done by the army in the form of camps and that it does not point to the establishment of
permanent settlements.
B. In terms of settlement on the [West] Bank, we are trying not to admit that here too it is a
matter of “occupied territory”. We argue that this area of the Mandate on the Land of Israel was
divided in 1949 only according to Armistice Lines, which, under the Armistice agreements
themselves, had merely military, not political, significance and were not determinative until the
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final settlement. We go on to say that the agreements themselves were achieved as a temporary
measure according to Security Council action based on Article 40 of the United Nations Charter.
We also argue that Jordan itself unilaterally annexed the West Bank to the Kingdom of Jordan in
1950 and that the Armistice Lines no longer exist because the agreements expired due to the war
and Arab aggression. We must nevertheless be aware that the international community has not
accepted our argument that the [West] Bank is not “normal” occupied territory and that certain
countries (such as Britain in its speeches at the UN) have expressly stated that our status in the
[West] Bank is that of an occupying state. In truth, even certain actions by Israel are inconsistent
with the claim that the [West] Bank is not occupied territory. For example, Proclamation No. 3 of
the IDF Forces Commander in the West Bank of 7.6.67, which brings into force the order
concerning security regulations (in Section 35), states that:
“A military court and the administration of a military court will observe the provisions of
the Geneva Convention for the Protection of Civilians in Time of War in everything
relating to legal proceedings and where there is conflict between this order and the
aforementioned Convention, the provisions of the Convention will prevail”.
With regard to Gush Etzion, settlement there could to a certain extent be helped by
claiming that this is a return to the settlers’ homes. I assume that there are no difficulties here
with the question of property although the matter requires close examination. With regard to
Gush Etzion too, we have to expect, in my view, negative international reaction on the basis of
Article 49 of the Geneva Convention. Furthermore, in our settlement in Gush Etzion, evidence of
intent to annex the [West] Bank to Israel can be seen.
On the possibility of settlement in the Jordan Valley, the legal situation is even more
complicated because we cannot claim to be dealing with people returning to their homes and we
have to consider that problems of property will arise in the context of the Hague Regulations. I
cannot go further into this question without having a lot more detail.
On the issue of the settlement of Arab refugees, which is, in my opinion, a less complex
issue from both a political and a legal point of view, I will write separately.
Regards,
[signed]
T. Meron
Copy: Director-General
Mr S. Hillel