“The Law” and the Settlements
Even the beginning student of conflict management knows that some people simply will not change their mind or be convinced by arguments, no matter how unassailable, about historical incidents and accuracy. But the law is one of the best ways to understand an issue. Everyone wonders about the legal standing of settlements eventually. The video lecture below is a well done explanation of some issues and I highly recommend it.
Click The Legal case for Israel to hear the lecture.
But let me make a few other points. When some states don’t even recognize the legal legitimacy of the state of Israel, you know that” the law” is as easily manipulated and fungible as any other domain of knowledge. My goal here is not to explicate in detail elaborate legal arguments but to try and find some clear simplicity. In addition to the video above, a good reading pertaining to the legality of the settlements appeared a couple of years ago in the American Interest. It can be found here. Read the article in the American Interest at your leisure but we must begin with some basics.
What is now the West Bank was part of the outskirts of the Ottoman Empire that was largely ignored and lightly governed. After the Turks were defeated in World War I the current area of Palestine was assigned to the British who were given a “mandate” to administer the territory. Jews flowed into the territory of Palestine until 1947 when the British government wanted out of the mandate and the UN recommended the adoption of the partition plan creating one Jewish state and one Arab state. The Arabs rejected the partition and war ensued. It’s important to first point out that the UN resolution partitioning Palestine has no legal standing. The General Assembly has no authority of international law and the resolution was a recommendation only. As a result of the Six-Day War in 1967 Israel made further incursions into the West Bank as a security and buffer zone. This incursion resulted in increased “occupation.”
Some legal scholars argue that the West Bank and Gaza remain unassigned by the mandate. Others claim it is Palestinian territory. But one of the strongest arguments against the legality of the settlements results from the Geneva Convention in 1949. It stated that no occupying power (that would be Israel) can transfer its own citizens into occupied or newly acquired territory. Moreover, UN resolution 242 calls for the withdrawal of Israeli troops from occupied territory. But it is also clearly recognized that Israel in the Six-Day War fought a lawful war based on its inherent right of self-defense recognized by the UN charter. Israel’s incursion into the West Bank was the result of aggression and Israel had every right to defend itself including maintaining a security presence.
Two Arguments That Support the Legal Status of Israel and the West Bank
1. Since the defeat of the Ottoman Empire in World War I no country has any firm legal standing or recognized legal rights to the occupied territories. Hence, what is termed the territories has never been part of a legally recognized sovereign and consolidated state and thus the prohibitions about population incursions from the Geneva Convention do not apply. If Spain overwhelmed Portugal and began to establish Spanish communities and populations in land acquired through violence then this would be a clear violation of the Geneva Accords. But what is termed “the territories” does not meet the definitional standards of a sovereign state.
In addition, it has been cogently argued that the Geneva Accord was designed to respond to the Nazis who transferred populations for the purpose of colonization and to obliterate the existing population. This, the argument goes, has nothing to do with Israel whose settlements are not designed for colonization.
2. A second argument is that the occupied territories were assigned to the Jews by both the mandate and the United Nations partition thus giving Jews the right to use and settle the land. This is based on the assumption that the legal status of the territories has not been established and Jews have no fewer rights or less justified legal standing than anyone else.
I will state the arguments for the illegal nature of the settlements perhaps in the next post. But it is important to underscore that legal arguments are not always the best way to solve a problem. They often enough lack clarity and specificity and do not satisfy sufficiently both sides. Making a legal claim, especially in an unclear legal environment, can fail to satisfy either party. The Israelis and Palestinians should solve their problems themselves.