Are the “Settlements” in the West Bank “illegal?”
First, one needs to know the history of the area now known as the West Bank, and before 1948 was known as Judea and Samaria. Here is a good illustration and explanation of the legal and historical facts:
The best summary of sources that answer the question of the legality of the settlements in the disputed territories has been produced by Maurice Ostroff, “International Law and the Settlements“, published in 2011. Ostroff notes:
Authoritative experts who have declared Israel’s presence in the West Bank, East Jerusalem, and the Golan to be legal, include inter alia
Judge Schwebel, a former President of the ICJ, who pronounced “As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem.” (See Appendix A andhttp://www.2nd-thoughts.org/id248.html )
Professor Julius Stone, one of the twentieth century’s leading authorities on the Law of Nations. Seehttp://www.2nd-thoughts.org/id160.html
Eugene W. Rostow, US Undersecretary of State for Political Affairs between 1966 and 1969 who played a leading role in producing the famous Resolution 242.
Jacques Gauthier, a non-Jewish Canadian lawyer who spent 20 years researching the legal status of Jerusalem leading to the conclusion on purely legal grounds, ignoring religious claims that Jerusalem belongs to the Jews, by international law. Seehttp://www.youtube.com/watch?v=28qwcVPNy3E
William M. Brinton, who appealed against a US district court’s withholding of State Department documents concerning US policy on issues involving Israel and the West Bank, the Golan Heights, and the Gaza Strip. He showed that none of these areas fall within the definition of “occupied territories” and that any claim that the West Bank, the Gaza Strip, or both, is a Palestinian homeland to which the Palestinians have a ‘legitimate right’ lacks substance and does not survive legal analysis. According to Mr. Brinton no state, other than Israel, can show a better title to the West Bank.
Sir Elihu Lauterpacht CBE QC., the British specialist in international law, who concludes inter alia that sovereignty over Jerusalem already vested in Israel when the 1947 partition proposals were rejected and aborted by Arab armed aggression.
Simon H. Rifkind, Judge of the United States District Court, New York who wrote an in depth analysis “The basic equities of the Palestine problem” (Ayer Publishing, 1977) that was signed by Jerome N. Frank, Judge of the United States Circuit Court of Appeals Second Circuit; Stanley H. Fuld, Judge of the Court of Appeals of the State of New York; Abrahan Tulin, member of the New York Bar; Milton Handler, Professor of law, Columbia University; Murray L. Gurfein, member of the New York Bar; Abe Fortas, former Undersecretary of Interior of the United States and Lawrence R. Eno, member of the New York Bar. They jointly stated that justice and equity are on the side of the Jews in this document that they described as set out in the form of a lawyer’s brief.
A very well-stated and accurate account of the actual legality of the settlements both historically and from a policy perspective can be found in a 2009 Commentary article by David M. Phillips entitled “The Illegal Settlements Myth.”
Interestingly, the recent Paris Peace Conference held on January 15, 2017, did not accord with the French courts. Here is an editorial from the Wall Street Journal:
In 2013 the French Court of Appeals in Versailles ruled that, contrary to Palestinian arguments, Jewish settlements don’t violate the Geneva Conventions’ prohibition against an occupying power transferring “its civilian population into the territory it occupies.” The law, the court held, bars government efforts to transfer populations. But it doesn’t bar private individuals settling in the disputed territories.
The case arose after Palestinian groups sued the French industrial conglomerate Alstom over its role in the construction of a light-rail line in Jerusalem. The Palestinians lost in the court of first instance, and the Versailles court upheld the lower court’s judgment. The case didn’t go further.
That matters because the Paris conference adopted the premise that settlements are illegal as a matter of settled law and the primary obstacle to peace. The French court makes a nonsense of that judgment simply by looking at what the Geneva Conventions say, rather than basing its judgment on a legally meaningless “international consensus.”
As with so many of the Obama Administration’s Middle East peace efforts, the Paris conference makes untenable territorial demands on Israel and gives Palestinians the hope that they can achieve their aims without making compromises. Israeli Prime Minister Benjamin Netanyahu dismissed the conference as “useless,” while the U.K. refused to accept its closing declaration calling for a final-status agreement that would “fully end the occupation that began in 1967.”
The reality is that Israel will never return to those borders, and no Palestinian state is going to come into existence so long as it is run by kleptocrats in the West Bank and jihadists in Gaza. The next time a similar conference is organized, it would do better to address Palestinian capacity for responsible self-government rather than offer legally dubious claims against Israeli settlements.