Jake Miller
The legality of Israeli settlements in the West Bank is a highly contested issue. The international community, as reflected in numerous UN resolutions, regards the building and existence of these settlements as a violation of international law, with the Fourth Geneva Convention stating that the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. However, Israel disputes the illegality of its settlements, claiming that Israeli citizens were neither deported nor transferred to the territories and that the territory is not occupied. The Israeli government proceeds to authorize the construction of settlements, which are overwhelmingly inhabited by Jews, for security purposes.
| Characteristics | Values |
|---|---|
| Israeli government's position | Successive Israeli governments claim that all authorized settlements are entirely legal and consistent with international law. |
| International community's position | The international community regards the building and existence of Israeli settlements in the West Bank as a violation of international law. |
| Israeli Supreme Court's position | The Supreme Court of Israel has repeatedly ruled that Israel's presence in the West Bank is subject to international law. |
| Israeli High Court of Justice's position | The High Court of Justice has failed to rule on the legality of settlements, considering it a political issue outside its competence. |
| Israeli settlements in the West Bank | There are 33 settlements with registered Arab residents. |
| Legal criteria for settlements | Settlements must be built on state land, have building permits from the government, and be established by a government resolution. |
| Number of illegal outposts | There were approximately 100 illegal outposts in 2009. |
| Israeli settlements in other territories | Settlements previously existed in Sinai and the Gaza Strip before Israel's withdrawal in 1982 and 2005, respectively. |
| Impact on Israeli-Palestinian peace process | Israeli settlements in the West Bank are considered a major obstacle to the Israeli-Palestinian peace process. |
| Human rights implications | Israeli settlements have been associated with violations of Palestinians' rights to housing, livelihood, freedom of movement, and self-determination. |
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What You'll Learn
The Israeli government's stance
The Israeli Supreme Court rulings in the 1970s supported the legality of civilian settlements, considering them temporary measures essential for military and security needs. However, the criteria for legal settlements under Israeli law include being built on state land, having government-issued building permits, and being established by a government resolution. Settlements that do not meet these criteria are considered illegal outposts.
The Israeli government has also applied Israeli civil law to the settlements, effectively annexing them to the State of Israel. This has resulted in a regime of legalized separation and discrimination, with two separate legal systems in the same territory, where rights are determined by nationality.
While the Israeli government has not explicitly stated that the Fourth Geneva Convention applies, it has indicated that it will abide by its humanitarian provisions without specifying which ones. The establishment of settlements is seen as a way to solidify Israel's control over the West Bank and ensure the territory's political future aligns with its security needs.
The Israeli government has also allowed the expropriation of land, including private Palestinian land, for settlement construction, citing "security purposes." This has been criticised by the Civil Administration, which defined the unauthorised seizure of Palestinian land as 'theft'. Despite these controversies, the Israeli government continues to authorise and support the expansion of settlements in the West Bank.
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International law and the Geneva Convention
The Israeli government claims that its settlements are legal and consistent with international law. It argues that Israeli citizens were neither deported nor transferred to the territories, that the territory is not occupied as there was no internationally recognized legal sovereign prior, and that the Fourth Geneva Convention does not apply.
However, this position is disputed by many legal experts and international bodies. The Fourth Geneva Convention, which is considered to be part of "intransgressible principles of international customary law", states that "the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies". This has been interpreted by some to mean that Israeli settlements in the West Bank violate international law.
The International Court of Justice (ICJ) affirmed in 2004 that Israel's settlements and the West Bank barrier violate international law. The ICJ's 2024 ruling further refuted all of Israel's arguments justifying the legality of its settlements. The International Criminal Court (ICC) is currently investigating alleged war crimes committed during the Israeli-Palestinian conflict, including the establishment of settlements, which has been described as a war crime according to the Rome Statute.
The United Nations Security Council and other UN bodies have also passed numerous resolutions condemning Israeli settlements as illegal and in violation of international law. UN Security Council Resolution 446, for example, refers to the Fourth Geneva Convention as the applicable international legal instrument and calls upon Israel to desist from transferring its population into the territories. UN Security Council Resolution 2334, passed in December 2016, reiterated the Security Council's call on Israel to cease all settlement activities in occupied Palestinian territory.
In addition to violating the Fourth Geneva Convention, Israel's settlement policy has been criticized for contravening peremptory norms of international law (jus cogens), from which no derogation is permitted. The settlements have also been associated with serious human rights violations, including restrictions on freedom of movement, violations of the rights of the child, and violations of the right to health. These restrictions and violations are a direct result of the presence of Israeli settlements and the associated security measures, such as checkpoints, settler-only roads, and physical barriers.
While the Israeli Supreme Court has ruled that Israel's presence in the West Bank is subject to international law, it has also stated that the Fourth Geneva Convention does not de jure apply. The Court has ruled on the legality of Israeli settlements under international law, determining that the Hague Conventions, but not the Geneva Conventions, could be applied to land and settlement issues in the occupied territories. However, the specific criteria for legal settlements under Israeli law, such as being built on state land and having government approval, do not change the fact that the settlements are built on occupied land not recognized as Israel's.
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The Israeli Supreme Court's rulings
The Israeli Supreme Court has had a significant role in shaping the legal landscape surrounding Israeli settlements in the West Bank. Here is a detailed overview of some of the notable rulings:
The Shimshon and Stampfer Cases:
Shortly after Israel's independence, the Israeli Supreme Court ruled in the Shimshon and Stampfer cases that the fundamental rules of international law accepted by all "civilized" nations were incorporated into Israel's domestic legal system. This set a precedent for evaluating Israeli actions on the world stage.
The Beit-El Toubas Case (1978):
In this case, the Court determined that the Hague Conventions, but not the Geneva Conventions, could be applied by Israeli courts when adjudicating land and settlement issues in occupied territories. This ruling provided a legal framework for evaluating Israeli settlements in the West Bank.
The Elon Moreh Case (1979):
The following year, the Court ruled on Dwikat et al. vs. the Government of Israel, known as the Elon Moreh case. The Court outlined the limitations imposed by the Hague Conventions on Israeli land acquisition and settlements. It asserted that only a military commander could requisition land according to Article 52 of the Hague Regulations. This ruling invalidated certain requisition orders and underscored the temporary nature of Israeli settlements.
The Settlements Regularization Law Ruling (2020):
On June 9, 2020, the Israeli Supreme Court issued a significant ruling on the "Settlements Regularization Law for Judea and Samaria" (the West Bank). In an 8-1 judgment, the Court found that the law disproportionately violated the rights of Palestinians to property, equality, and dignity. This ruling sent a strong message against the expropriation of privately-owned Palestinian land for Israeli settlements.
Other Notable Rulings:
During the 1970s, the Israeli Supreme Court regularly ruled that the establishment of civilian settlements by military commanders was legal, considering them temporary measures essential for military and security purposes. However, in practice, many of these settlements became permanent fixtures in the West Bank.
While the Israeli Supreme Court has not directly ruled on the legality of all Israeli settlements in the West Bank, its rulings have shaped the legal framework surrounding the issue. The Court has repeatedly asserted that Israel's presence in the West Bank is subject to international law and has, on occasion, invalidated specific aspects of settlement construction and legalization.
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Human rights violations
The issue of Israeli settlements in the West Bank has been a highly contested topic, with various human rights violations alleged. The human rights groups Amnesty International, Human Rights Watch, and B'Tselem have consistently reiterated their view that Israeli settlements violate international law, including international humanitarian law and human rights law.
One of the key human rights violations associated with Israeli settlements in the West Bank is the restriction on the freedom of movement for Palestinian residents. These restrictions include checkpoints, settler-only roads, and physical barriers created by walls and gates. The construction of unauthorized roads by settlers and the Israeli army around settlements has further impeded Palestinian movement and enabled the seizure of their land.
Another violation pertains to the rights of the child. According to reports, 500-700 Palestinian children from the occupied West Bank are prosecuted in Israeli juvenile military courts annually. These children are often arrested during night raids and subjected to ill-treatment, with some serving their sentences within Israel, which is a violation of the Fourth Geneva Convention. The UN has documented cases of children being killed or injured in settler attacks.
The right to the enjoyment of the highest attainable standard of physical and mental health is also compromised due to restrictions on movement, which limit Palestinians' access to healthcare services.
Furthermore, Israel's settlement policy has been criticized for violating the right to self-determination for Palestinians. The ongoing transfer of government powers over the Occupied Palestinian Territory from the Israeli military to the Israeli government facilitates the expansion of Israeli settlements and the integration of the West Bank into Israel. This has led to the displacement of the local Palestinian population, which contravenes international humanitarian law and has been described as a war crime by the High Commissioner.
Additionally, there are allegations of violations of the rights to equality and non-discrimination. Amnesty International has documented Israel's use of military orders to prohibit peaceful protests and criminalize freedom of expression in the West Bank. Israeli forces have employed tear gas, rubber bullets, and occasionally live rounds to suppress peaceful demonstrations.
The international community, as reflected in UN resolutions, regards the building and existence of Israeli settlements in the West Bank as a violation of international law, specifically the Fourth Geneva Convention, which prohibits the transfer of an occupying power's civilian population into occupied territory. However, it is important to note that there are dissenting opinions, with some arguing that the settlements do not violate international law due to the historical presence of Jewish settlements in the region and the absence of Palestinian Arab sovereignty over the West Bank.
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The two-state solution
The Israeli-Palestinian conflict has been a long-standing issue, with the former's settlements in the West Bank being a major obstacle to the two-state solution and the latter's dream of an independent state. The West Bank is claimed by the Palestine Liberation Organization (PLO) as sovereign territory, but Israel has built settlements there, arguing that they are legal and consistent with international law. However, the international community largely disagrees, viewing these settlements as a violation of international law and a hindrance to peace.
However, the expansion of Israeli settlements in the West Bank poses a direct challenge to the two-state solution. By building settlements and outposts on geographically recognized Palestinian land, Israel undermines Palestinian sovereignty and makes it difficult to create a contiguous and viable Palestinian state. The settlements disrupt Palestinian contiguity, limit their access to water resources, block agricultural development, and threaten civil peace and security. The heightened Israeli security presence in the West Bank, justified by the need to protect the settlements, further complicates the establishment of a stable Palestinian state. Additionally, the Israeli separation wall divides the West Bank into three major Palestinian population blocs, further hindering the possibility of a contiguous Palestinian territory.
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Frequently asked questions
The international community regards the building and existence of Israeli settlements in the West Bank as a violation of international law. However, Israel disputes the illegality of its settlements, and the Israeli government considers the settlements to be a political issue.
The Fourth Geneva Convention prohibits "the occupying power" from "transferring parts of its own civilian population into the territory it occupies". The establishment of settlements has also been described as a war crime according to the Rome Statute.
The Israeli government has argued that Israeli citizens were neither deported nor transferred to the territories, that the territory is not occupied since there was no internationally recognized legal sovereign prior, and that the Fourth Geneva Convention does not apply. Some legal experts, such as Eugene Kontorovich and Eugene Rostow, also argue that Israeli settlements in the West Bank do not violate international law.
Israeli settlements in the West Bank have been considered a major obstacle to the Israeli-Palestinian peace process. They secure Israel's control over the West Bank by establishing spatial dominance over the territory and disrupting Palestinian contiguity. Israeli settlements have also been accused of violating the human rights of Palestinians, including the right to housing, livelihood, freedom of movement, and freedom of expression.
