Though it is not widely known, the legal status of the West Bank was decided by 1963.
True, Israeli forces did not gain control over the West Bank, also known as Judea and Samaria, until the June 1967 war.
However, four years earlier, IDF military advocate-general (MAG) Meir Shamgar had already authored a treatise about what to do regarding legal issues if Israel took control of the West Bank.
Shamgar’s ideas, embodied by a series of IDF military orders issued soon after the IDF took over the West Bank, have dominated the Israeli debate for the 50 years since then, certainly up until the Settlements Regulation Law passed in February.
How could this be when few – if any – in 1967 imagined that the West Bank would still be in Israeli hands 50 years later with around 400,000 Israeli Jews living in the massive enterprise known as the “settlements” of the West Bank? How have major Israeli legal thinkers conceived of the status of the settlements and how has that impacted the legal status of the West Bank over the last 50 years?
ACCORDING TO former Hebrew University Law School dean and Israel Democracy Institute Fellow Yuval Shany, the starting point for the discussion was Shamgar and Israel’s acceptance of the 1907 Hague Regulations applying to the West Bank.
This means Israeli control over the West Bank falls into the category of “belligerent occupation.”
In less fancy language, it means that Israel has not annexed the land and is holding it temporarily. Further, it means that Israel has certain obligations not to change the face of the land or harm the rights of the local people already there – the Palestinians.
Shany said that agreeing to apply the Hague principles “was the only possible decision since there was no political decision to annex the West Bank.”
He noted that Israel could have decided to extend Israeli law to the West Bank, as was done in east Jerusalem, “but the government did not want to make that political decision. All governments since also did not make this decision,” so accepting the international law obligations and limits of the Hague Regulations was “the only option.”
In contrast to the Hague Regulations, Shany said there has always been a debate about the application of the Geneva Conventions to the West Bank.
Why has Israel accepted application of the Hague Regulations, but argued the Geneva Conventions do not apply and that Israel only voluntarily applies the humanitarian provisions of the Geneva Conventions? According to Shany, “Geneva has been understood to talk about a prior sovereign state. The Hague does not, it just talks about entering enemy/disputed territory.”
Why does this matter? Israel took control of the West Bank from Jordan, but Jordan had, according to most countries in the world and the UN, illegally annexed the West Bank in a land grab during the 1948 war.
There was no way that Israel would recognize Jordan as having been rightfully and legally in control of the West Bank, so the Israeli position was that when it took over the West Bank, it had taken over disputed territory as part of a war.
Accepting The Hague without accepting Geneva was designed to convey to Israel that it would protect Palestinian individual human rights, without recognizing Jordanian sovereign land rights. Israel could now stake its claims to the West Bank in negotiations under UN Security Council Resolution 242, which dictates the terms of peace negotiations between Israel and its Arab neighbors.
Shany said Shamgar set out this balance in a public speech in 1971 when he had moved on from being the MAG to becoming the attorney-general.
Further, the High Court of Justice declared in a 2000 decision that Israeli law demanded application of The Hague and Geneva, saying they had become binding international commitments. Shany added that the government stills take the position that Geneva’s provisions do not apply to the settlements.
Human rights lawyer and Israeli government critic Michael Sfard said that Israel’s position of accepting The Hague, but not Geneva, was designed by Shamgar to satisfy the political class’s desire for flexibility on future issues of dividing territory. He said that Israeli lawyers like Shamgar “knew Geneva applied to conquered areas [like the West Bank], but wanted creative ways not to admit it.”
In fact, Sfard said that the first IDF proclamation for the West Bank included Geneva as applying, but that this was “very quickly erased” and replaced with “other creative phrases such as ‘administered areas,’ which had not previously existed.”
Former Foreign Ministry top legal adviser and Levy Report author – referred to also as the Report on the Legal Status of Building in Judea and Samaria – Alan Baker, disputed that account, saying that the first orders only said the requisite norms and rules of international law would apply.
Sfard said this “ambivalence” by many of the lawyers on key issues from the beginning was responsible for opening things up for the settlement enterprise, instead of “stopping it all from the start.”
MUCH OF what has happened with the settlements since then, Shany said, had more to do with politics than law.
First, the settlements ballooned from zero to a tiny smidgen of villages in the late 1960s.
Then they jumped somewhat to 6,000 people in 20 settlements up until 1977 when Menachem Begin ousted Labor from power for the first time.
After 15 years of mostly Likud rule, the settlements jumped to 100,000 people in 110 settlements by 1992, when Yitzhak Rabin fully ousted Likud from power.
By 2015, according to government statistics, there were around 389,000 Jewish settlers in the West Bank and another 375,000 Jews in disputed east Jerusalem neighborhoods.
What is the legal status of Jewish settlers and how did their presence change the legal framework of the West Bank’s status? Even if the 1967 Levi Eshkol government’s original intention was mostly just to hold on to the West Bank as a bargaining chip to achieve peace, around three months after the war, on September 1, 1967, the Arab League declared it would not negotiate land for peace at the Khartoum Conference.
Sfard rejected any narrative where there were not Israeli plans for partial annexation from the start, pointing out that Israel applied Israeli law to east Jerusalem (effectively annexation) even before the Khartoum conference.
In addition, from the start, Shany said that the Labor Party was split, and there were always elements who wanted to hold onto parts of the West Bank, such as some of the Jordan Valley, for security purposes.
This, combined with a strong push on the Right for settling the West Bank, created fertile ground for Israel taking the theoretical position that all of the West Bank land was negotiable with its Arab neighbors as part of UN Security Council Resolution 242, while eventually directly or indirectly facilitating or allowing a ballooning settlement movement.
This is how de facto, informally and on the ground, Israel has effectively annexed portions of the West Bank without a formal legal announcement.Changes and turning points
According to Baker, the main change on the Israeli side has been placing greater emphasis on the basic historical and legal rights of the Jews to the land according to the Balfour Declaration, the 1920 San Remo Declaration and other prestate documents.
Former IDF deputy MAG, West Bank Courts chief justice and “Hebron shooter” defense lawyer Ilan Katz said that neither the Oslo Accords, which divided the West Bank into areas A, B and C, nor various other major points changed the basic dynamic in which international law does not recognize the legality of the settlements.
Though Katz and Sfard agreed on little, they did concur that the Oslo Accords changed little regarding the settlements and the West Bank. In Sfard’s view, the accords succeeded in “changing the occupation from a regular occupation to a deluxe occupation.
“The occupier was free of obligations to the Palestinians,” but the Palestinians could not operate as an independent state. In the meantime, Sfard said, Israel “could present to the world – look there is autonomy” for the Palestinians.
Katz said that Geneva permits building only temporary security outposts in areas under belligerent occupation and prohibits moving civilians into such areas.
But there is one major exception to the idea that even major recent events like Oslo have not significantly changed the legal framework.
Discussing the 1979 Elon Moreh ruling, Katz said that this was a turning point in which the High Court intervened – not to endorse or reject the legality of the settlement enterprise, but to place limits on where civilian settlements could be built.
The High Court ruled that private Palestinian land could not be taken from Nablus for the benefit of the Jewish settlement of Elon Moreh. At the same time, according to Katz, the High Court effectively endorsed Jewish settlements in the West Bank that were built on state land by not blocking such settlements.
Interestingly, Katz said that this was the point where the state could have limited the High Court from intervening further in the settlement enterprise. In other words, if the Knesset had decided back then to limit the High Court from deciding certain issues related to the settlements, it would have been easier politically to “get away with it” than now when there are decades of court decisions regarding settlement issues. Decades later, with Elon Moreh such a hardened precedent, he does not think recent proposals to compensate Palestinians for instances in the past where their private land was built on will be upheld legally.
This is especially interesting coming from Katz, who is highly critical of the international community and its interpretations of international law when it comes to accusing Israeli soldiers of war crimes in battle. Katz explains that he consistently follows the classical interpretation of international law regarding laws of war as well as settlements-related issues.
According to him, regarding settlements, classical international law has consistently classified them as illegal, whereas regarding the laws of war, he believes much of the international community has departed from traditional interpretations to try to hold Israel to a higher and incorrect standard. He found the world’s “double standard” especially problematic in light of the constant bombings, rammings and rocket threats.
Another key legal point that needed to be struggled with, according to Sfard, was Justice Ministry lawyer Plia Albeck’s legal approach after the High Court Elon Moreh decision. As head of the Civil Department of the State Attorney’s Office, her ruling opened up possible use of around 1 million dunams (100,000 hectares) of West Bank land as “state land,” tripling the size of the area where Jews could establish new settlements.
If the High Court forbade confiscating private Palestinian land, here was a way to redefine huge swaths of land as non-private, and therefore available, said Sfard.
Albeck’s approach, which she later admitted she was ideologically committed to for broadening the settlements, was that according to an 1858 Ottoman law, agricultural land that had not been tended for a certain number of years could be declared abandoned and state land. The High Court accepted her verdict as legal, the international community does not.
WHEREAS KATZ regards the High Court’s rulings as legally correct and sees the court as a badge of pride for its independence and readiness to rule against the government on sensitive issues, Sfard takes an entirely different turn, attacking the High Court as an enabling agent of the settlement enterprise.
“There are three main legs for the occupation: the rifle, the settlements – which have no logic from a diplomatic,security or economic perspective – and the High Court,” said Sfard.
Even if the High Court sometimes restrained government actions regarding the settlements, Sfard said it had a negative impact overall because it “strengthened the Israeli approach, gave huge power to Israeli institutions, approves almost all state national security decisions and the state’s use of violence. By virtue of the High Court, Israel’s conquest was very stable.”
He admitted that if the High Court had not been involved at all, the government would have been less restrained. But he said it also would have made its violations of international law clearer and less subject to the defense that the government only acts when the High Court approves its actions’ legality.
Despite High Court interventions, Sfard feels that, “even if there is no dictator, the occupation is brutal and dictatorial to the Palestinian community since there is a total absence of inclusion” of their needs, wishes and aspirations.
RECENTLY, THE UN Security Council passed Resolution 2334, condemning the settlements as illegal for the first time since 1981. Another interesting event happened in February, when the Settlements Regulations Law was passed, which permitted, for the first time, certain settlers’ residences to be retroactively legalized, even though they were built on private Palestinian land (provided the Palestinians get some compensation and that other criteria are fulfilled).
According to Shany, the two events apply opposite pressures on the unsustainable status quo. The resolution, he said, showed that the world still does not recognize the settlements’ legality, despite the length of Israeli possession of the West Bank and the growth of settlements on the ground. In contrast, the Knesset law tries to validate the de facto presence of settlements on the ground, but in doing so undoes Israel’s careful balance of arguing that it follows the international law of belligerent occupation and protects Palestinian rights, such as the right to private property.
Katz and Baker were dismissive of the UNSC resolution “because there was no operative decision saying ‘if you don’t move the settlements, you will be kicked out of the UN or face sanctions,’” said Katz.
Regarding the Knesset law, Baker and Katz both said they did not think it would have much impact. With the attorney-general rejecting its legality, they said it was highly likely that the High Court would strike the law as unconstitutional.
Discussing the Knesset law, former Supreme Court Justice Dalia Dorner said, “I separate my private opinion from what the law says. You can interpret within the rules of the game. That does not mean that I like a law personally if I or the High Court reject a petition to strike a law. It just means the law is legal. I am not a judge for politics, but for the judiciary.”
She added that “Judge Moshe Landau was a believer in Greater Israel, but he wrote the Elon Moreh decision [evacuating settlers] because it was built on private land. We cannot do otherwise because we are judges.”
Sfard, noting that he filed one of the major petitions to strike the Knesset law as unconstitutional said that “it is a dramatic change. International law is very complex. One weakness is it gives lots of power to declarations. But there is a gap between words and deeds.
“Israel has succeeded in exploiting that weakness so far, despite being in disagreement with the world for 50 years… saying it won’t violate fundamental international law of acquiring land… but has totally offended these principles in practice by building settlements.”
Sfard said that the Knesset law “closes the gap between the words and the deeds. Israel is not talking anymore about negotiations, but about annexation.”What does the future hold?
According to Shany, “The status quo is not sustainable… there will be a political settlement, including Israel giving up territory and the setting of borders.”
According to Baker, “There will be some political settlement dividing the territory between the sovereign entities present.”
Katz was the hardest to get to make a prediction. He said, “I can’t tell… It is like asking what number will win in the lottery. There are several reasons it is hard to predict. All the time there are new players in the picture,” noting that Hamas became a player only in the 1990s.
He also noted that the Palestinians are now influenced by “outside authorities, like Iran, Hezbollah, Islamic Jihad” and potentially even ISIS.
Mainly, he predicted that things would get much worse before they get better, and that in the coming years there would be another war with harsh results.
“Only after that might there be talk about an agreement,” said Katz.
Sfard predicted, “I believe that the occupation will end, but I don’t know what the price will be. Maybe a bleeding democracy, since we have harmed our democracy to perpetuate the occupation.
“We can’t continue like this… It is a great disaster for both Israel and the Palestinians. Whether with negotiations or a catastrophe, the occupation will end because such an oppressive regime is by its nature unstable. There is a limit how far it can continue to prevent millions of people from determining their own fate,” said Sfard.
After 50 years, one thing that is clear is that the legal status of the West Bank and the settlements are as unresolved as ever. In the final analysis, while the top experts surveyed here have very different predictions about the future, all of them believe the present is unsustainable and that 50 years from now the picture will look much different.
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