Every few months or so, I come across an op-ed on an Israeli or Jewish website
that attempts to argue that the world’s uproar against settlements is
illegitimate, and that settlements are perfectly legal under international
The latest such op-ed I read, about a month ago in this publication,
was from Yair Shamir, the current Israeli minister of agriculture and son of the
late Yitzchak Shamir.
While I do not dispute that there has always been
an intense bias toward Israel when it comes to applying the standards of
international law, this does not, however, change the fact that Israel’s
settlement enterprise is, and has always been, grossly illegal under
Shamir’s arguments to the contrary are not only
misinterpretations of the articles of international law, but also run counter to
the very spirit of that law.
As a first principle to this question, it
must be understand that the West Bank is under a legal regime of belligerent
occupation. Belligerent occupation is a specific category under the
international laws of war that comes into effect when a state captures territory
from another state during the course of war.
On the first day that Israel
came into possession of the West Bank and Gaza Strip from Jordan and Egypt,
respectively, the IDF declared its authority over the territories, and that the
international law of belligerent occupation would be the law of the land in
those territories. Much to Israel’s credit, it has been the only state since the
end of World War II to have formally applied the international law of occupation
in a territory it has conquered through war. Occupation law in the territories
is still enforced to this day, 46 years after it was established.
in regard to the West Bank’s legal status that we get to the first of Shamir’s
major misinterpretations of international law. Shamir argues that because Jordan
illegally occupied and annexed the West Bank during the Israeli War of
Independence, it did not have legal sovereignty over the land. Thus, there is no
lawful sovereign that Israel can return the land to, and therefore Israel’s
occupation must be considered sui generis, and not a normal military occupation
to which the main pillars of international occupation law, the Hague Regulations
of 1907, and the 4th Geneva Convention, are applicable.
It is indeed true
that the Hague Regulations as a legal document is primarily concerned with
protecting the sovereign titles of territory under occupation. But this is not
the case with the 4th Geneva Convention, of which Israel is a signatory.
Established in 1949, in response to the horrific atrocities committed against
civilians during World War II, the primary focus of that convention is to
protect the human rights of civilians who find themselves under occupation, not
with the legal titles of sovereigns.
As Yoram Dinstein, former rector of
Law at Tel Aviv University and world authority on the international laws of war,
notes, any confusion about whether the 4th Geneva Convention is applicable in
the West Bank is cleared up by Article 4 of the Convention (Dinstein 2009),
which states: Persons protected by the Convention are those who, at a given
moment and in any manner whatsoever, find themselves, in case of a conflict or
occupation, in the hands of a Party to the conflict or Occupying Power of which
they are not nationals. (Geneva Convention IV).
By the fact that Israel
conquered a territory that was inhabited by civilians who are not Israeli
citizens (i.e. Palestinian Arabs in the West Bank), this makes the Fourth Geneva
Convention applicable, and de jure, makes Israel’s control of the West Bank a
Israeli jurist Theodor Meron also concludes that
“the application of the [4th Geneva] Convention should not be interpreted as the
recognition of the status of Jordan in the West Bank. It must be remembered
that, as a humanitarian convention par excellence, the Fourth Geneva Convention
is concerned primarily with people, rather than territory; with human rights,
rather than with legal questions pertaining to territorial status” (Meron 1979:
Furthermore, in how many cases of war and occupation are the
sovereign rights to a particular land not disputed? Is Israel’s situation really
that unique? It would appear to be a very narrow and ineffective interpretation
of international law if the rights afforded to civilians under the 4th Geneva
Convention are disregarded in every case when it cannot be determined which
sovereign has legal ownership to the land under occupation.
If the Fourth
Geneva Convention is applicable in the West Bank, than the question becomes
whether Israeli settlements conform to Article 49(6) of the convention: “The
Occupying Power shall not deport or transfer parts of its own civilian
population into the territory it occupies.”
Shamir argues that this law
only prevents the occupying power from forcing its own citizens into the
territories it has conquered, i.e. in reaction to when Germany deported its
Jewish citizens to the death camps in Poland and elsewhere, and not in cases of
citizens voluntarily moving to the occupied territory. Both Shamir’s
interpretation of the wording of the law and the background of its formulation
are completely false.
First, such an interpretation implies that Article
49(6) is intended to protect the citizens of the occupying power, in this case
Israeli citizens. However, the sole purpose of the 4th Geneva Convention is to
protect the civilians living under occupation, not the citizens of the occupying
power, who are not afforded any protection by the Convention.
term “transfer” does not imply forced, as evidenced by another article in the
Convention, Article 49(1), which forbids the deportation of civilians from the
occupied territories, and uses the phrase “forcible transfer,” not simply the
term “transfer,” as Article 49(6) does.
Further, to quote Dinstein, the
settler’s “voluntary cooperation in the transfer does not diminish from its
illicit character, pursuant to the sixth paragraph of Article 49, as long as the
Occupying Power stands behind the project.”
Article 49(6) is always
applicable as long as the occupying power is facilitating the transfer of its
own citizens, whether forced or not. What Article 49 (6) aimed to prevent was
not situations such as those in which Nazi Germany was deporting its Jewish
citizens to the death camps, but instead Nazi Germany’s intention to transfer
its ethnic German citizens into the Eastern European territories it conquered as
part of its Lebensraum policy to alter the demographics of those
This is not to compare in any way Nazi Germany with Israel’s
settlement policy, but instead to illustrate how the voluntary transfer of
citizens of the occupying power could be used to violate the human rights of the
occupied, and thus was prohibited under Article 49(6).
one concedes that Israel’s rule over the territories is an occupation, then the
settlement project is violating the most fundamental principle of international
occupation law: that the occupying power may not unilaterally annex any
territory it conquers.
It is abundantly clear to most observers that the
settlements built in the territories were always intended to eventually be
permanent parts of the State of Israel.
Under international law, the
occupying power may temporarily requisition the private property of a civilian
living under occupation only if it is done strictly for the purposes of
security. Thus, whenever a West Bank Palestinian, whose land was confiscated by
the IDF to build a settlement, challenged the legality of that confiscation in
Israel’s High Court, the military always argued that the settlement in question
was temporary and was built strictly for the purposes of security.
of course, anyone who saw through the IDF’s smokescreen could see that all
settlements are intended to be permanent in nature, and a large number,
especially those built for religious Zionist settlers, were built for
ideological reasons, not security. Thus, the settlement enterprise can be seen
to be a grave violation of international occupation law as it violates the very
fundamental core of that law: there is no legitimacy to annexation through
For people like Shamir who remain pro-settlement, there are
really only two arguments they can make with respect to settlements and
One could argue that international legal community is
simply biased against Israel anyway, and therefore Israel does not need to
follow laws that other nations have ignored with impunity. Or, two, they could
say that Jewish law supersedes international law, and that it is the law of the
Torah that truly governs Israel’s rule in the West Bank. But what they cannot
say is that international law is on the side of the settlement project. Nothing
could be further from the truth.
The writer received an MA from
Georgetown University’s Department of Government in 2012. He currently lives and
works in Jerusalem.