Daily Archives: April 22, 2013

Settlements are Clearly Illegal – Say Some

Those who argue that Israeli settlements are illegal cling to their position with considerable passion. They maintain that settlers are living in a fictional world with a tremendous commitment to Israel but not to human rights or anyone else. The arguments are typically made on the basis of international law – which is a questionable and still unclear legal domain with respect to matters of legitimacy and efficacy. But in any case, the challenge to the Geneva Accords is directly confronted. The Geneva Accords, the argument goes, is concerned with people, not land, and claiming that the Accords do not apply to the West Bank because it is not strictly the territory of a sovereign state is inconsistent with the spirit of the convention. The Accords are further interpreted as protecting any group of people who find themselves in the clutches of an occupying power. This argument than devolves into discussion of the minutia of the Geneva Accords including interpretations and intentions that are probably impossible to know with any reliability. Those who deny the legality of the settlements claim that the near universal consensus on the matter is sufficient to establish the argument.

The international standing of the United Nations does not rise to the level of commonly accepted international law, but it is a significant body that functions in a legal capacity. That said, United Nations Security Council resolutions consistently call for Israel’s withdrawal from the territories and reaffirms the conviction that Israel is occupying the land illegally. The UN regularly treats the Israeli occupation as illegal and often defines it as a simple fact which is not subject to dispute. If it is possible to establish the territories as “occupied” then settlement activity is illegal. The West Bank is consistently considered occupied by the UN and this by definition makes settlement activity illegal. Very simply, it is somebody else’s land.

Moreover, if a territory is occupied then the occupying powers cannot transfer its citizens to the conquered territory, making what Israel does illegal. As I stated in last week’s post if the legal status of the land is unclear and no one has a clear political claim then settlement in that territory is permissible and the settlements would be legal. The defenders of legality claim that the prohibition against population transfer applies in cases unrelated to Israel; that is, if the land is available for use than those who moved there to use it are not violating any laws. But, of course, if the West Bank is considered to be official Palestinian territory then Israeli settler encroachment into that territory would be illegal.

Israel insists that its presence in the West Bank is militarily justified because of the attack on Israel in 1967 and Israel’s right to establish defensible borders as a result of success in the 1967 war. But the counter to this point is that Israel’s presence is not necessary for its security and that the occupation is thus illegal because it is a ruse for rank land acquisition. There is what is called “customary” international law which argues for the legal power of such “customary international law” when it represents the accumulated weight of international opinion. Even if there is no legitimately recognized international court, when it is a matter of overwhelming international opinion that settlement activity is illegal and inappropriate then such sentiment has the weight of legality behind it.

Finally, the International Court of Justice concluded that the mandate for Palestine was about self-determination for Palestinians and never mentioned anything about Jewish rights. Accordingly, any Jewish presence in the Palestinian territories is illegal.

The arguments on both sides of the issue can carry weight and have elements of them that are defensible. For that reason, the matter will not be solved on the basis of legal issues alone. Rather, the pressing interest of peace and solutions that respond to the needs of all parties are more important than legal debates. Having said that, I do not mean to diminish the importance of legal precedents and standing except to remind people that the law is simply a form of conflict resolution and some problems are solved by methods that do not involve formal legal arguments. The Israeli-Palestinian conflict will be one of them.

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