Israeli Settlements Are Not Illegal (HIGHLY RECOMMENDED)

A response to Nathaniel Berman

By Eugene Kontorovich, TABLET, 10.8.23

An Israeli settler operates an excavator outside a portable building under construction at the former settler outpost of Homesh in the West Bank on May 29, 2023

Appeals to scientific or expert consensus have in recent years played a significant part of the debate on contentious issues. For laymen, even the nature of the alleged consensus may be difficult to evaluate. Is it a consensus arrived at by experts of varied prior beliefs critically and independently approaching an issue without regard for the public policy implications of their conclusions, or is it one that reflects the self-replicating and conformity-inducing tendencies of academia?

Appeals to authority and academic consensus feature prominently in professor Nathaniel Berman’s piece in these pages, “Israeli Settlements and International Law,” itself a response to Malkah Fleisher’s more personal reflections (“I Have a Right to Live in Judea and Samaria”) on the legitimacy of Jews living in the West Bank, or Judea and Samaria, to use two competing names for those areas of Mandatory Palestine ethnically cleansed of Jews by the Hashemite Kingdom of Jordan in 1948.

Everyone knows that “Israeli settlements” are controversial, and here is where international law comes in. Many take the position that even though Jewish resettlement of these lands was made possible by Israel’s taking control of them in 1967, the Jewish state must nonetheless enforce a ban—a cordon sanitaire, a Pale of Non-Settlement—on Jewish residence perfectly congruent with the zone of Jordanian ethnic cleansing, and lasting until such places might come again under the control of an Arab government committed to “not a single Israeli.” Put in such terms, the anti-settlement argument may not have a broad moral appeal, which is why authors like Berman seek to cast it as an incidental application of neutral rules, applicable around the world. Yet he fails to mention where else these rules are applied, because the answer is nowhere.

Berman appeals primarily to authority and consensus, claiming a wide variety of impressive-sounding international bodies, from the International Court of Justice to the International Criminal Court, that consider Jewish communities in the West Bank illegal. Don’t bother arguing the law, Berman suggests—the matter has been decided, with only a few kooks holding out. “The few international legal writers who depart from this consensus are primarily current or former officials of the Israeli government and a small number of right-wing Jewish writers in the diaspora. Their arguments have been soundly rejected by the rest of the international legal community,” Berman writes.

Consistent with a broader pattern of neglecting contrary evidence and attacking straw-man arguments, Berman fails to mention that the United States has formally adopted the legal view that Israeli settlements are not illegal—perhaps because this squarely contradicts his claim of a global consensus. The State Department announced its position in 2019, under President Donald Trump, but the Biden administration has not retracted it. This should not be surprising, because no U.S. government has taken the position that settlements are illegal.

Nor is the U.S. alone in this. In 2014, Australia’s attorney general announced it would no longer use the term “occupied” in reference to the West Bank, a necessary precondition for the illegality argument. Canberra was immediately threatened with dire consequences by Muslim countries. This week, a new Australian government announced it would resume using the term “Occupied Palestinian Territory,” but it is fair to learn from this episode that forces more powerful than legal analysis shape countries’ positions on these issues.

International law is not some kind of geopolitical version of reality shows like ‘Survivor.’ If it were a popularity contest, Israel, and the U.S. for the matter, would have been voted off the island a long time ago.

Moreover, Berman confuses opinion for authority in international law. International law is not some kind of geopolitical version of reality shows like Survivor. If it were a popularity contest, Israel, and the U.S. for the matter, would have been voted off the island a long time ago. Recall that in 1975, the U.N. voted for a resolution saying the entire idea of a Jewish state is illegal. Fortunately, international law can only be authoritatively interpreted by duly authorized entities, and nothing in the U.N. Charter makes it a decider of international law.

Similarly, Berman also cites the International Court of Justice, referring presumably to its Advisory Opinion in the Wall case of 2004. But that decision was explicitly not legally binding. It has no more authority than a ruling on the meaning of Romanian law by a U.S. court. It is only entitled to deference based on the quality of its analysis, of which it had none, but rather relied on citing U.N. resolutions that had said the same thing, all solely in the context of Israel. Indeed, the other supposed authorities Berman cites, such as the ICC and ECJ, all merely reiterate the political positions of U.N. resolutions, notorious for their obsessive focus on Israel. They do not even address the primary arguments for the legality of settlements, but rather engage in an endless cycle of circular citation. It is turtles all the way down.

Turning to actual sources of law, Berman cites Art. 49(6) of the Fourth Geneva Convention, a treaty that applies to situations of wartime occupation. But he completely skips most of the argument for the legality of Israeli settlements, which is that the territory was not in fact occupied in the legal sense by Israel, making Art. 49(6) irrelevant. The arguments for lack of occupation focus on the lack of Jordanian sovereignty over the territory. The Cession of Vessels and Tugs for Navigation on the Danube case held that territory that was not under the sovereignty of any state could not become occupied. That means that the West Bank, which was not under Jordanian sovereignty, could not be deemed occupiedDanube Navigation was decided before 1967, and would thus reflect the law as it was when Israel took control of the territories, unlike the ICJ and other cases cited by Berman, which were decided decades later.

Moreover one cannot occupy one’s own territory: If Ukraine retakes Crimea from Russia, it will not be an occupation just because it had long been administered by Moscow. As professor Avi Bell and I have demonstrated at great length, under general rules of international law applicable around the world, Israel would have a sovereign claim to the West Bank from 1948 (not so for the Golan Heights). That is because newly created states inherit the borders of the prior administrative units in the territory, in this case, Mandatory Palestine. Berman mocks reliance on mandatory borders, but the very existence of Jordan, as well as most of the borders of the Middle East, are based fully on mandatory borders. There is nothing lawlike about a unique rule of borders just for the Jewish state.

Finally and alternatively, even if an occupation arose in 1967, the 1994 peace treaty would end any state of occupation, as emphasized in a memorandum written in 1977 by the State Department legal adviser under Jimmy Carter.

All this makes the obscure Art. 49(6) irrelevant, but let us briefly consider it for the sake of argument. Discussions of illegal settlements, and Art. 49(6) of the Fourth Geneva Convention, invariably arise only in the context of Israel alone. Indeed, the term “illegal settlements” has become a way of discussing Jewish communities in places the international community thinks they should not be. Prior to 1967, the rule now directed against Israel had never been applied anywhere. Despite the ongoing U.S. occupation of West Berlin, no one ever suggested Americans must be barred from moving there, or that the occupation required doing something impossible—halting natural patterns of migration and preserving demography in amber for decades.

Demonstrating that Israeli settlements are illegal cannot be done simply by citing what is said about Israeli settlements. To prove the point, one needs to show that comparable conduct by other countries has been regarded as illegal. In other words, if you’re arguing in front of the Supreme Court, you can’t cite the decision of the judge under review as proof for the rule—you need to show it applied in other cases.

When we look for the alleged rule applied elsewhere, we find—nothing. The United Nations has referred to Art. 49(6) hundreds of times in relation to Israel, but no U.N. body has ever accused any other country of violating it. This is not because of a shortage of cases in which one might think it would apply. From Morocco in Western Sahara to Indonesia in East Timor, from Turkish-occupied northern Iraq to formerly Vietnamese-occupied Cambodia, prolonged occupations of territory have almost always seen migration from the territory of the occupying power. The demographic impact typically dwarfs that of Jewish settlers in the West Bank, as in Western Sahara or Northern Cyprus, where settlers constitute a majority of the population. As many Russians have moved to Crimea in the past decade as Jews to Judea in the past half-century. Unlike the case of Judea and Samaria, all these cases (except Western Sahara) involve the unambiguous occupation of the territory of a preexisting state. Yet even in those situations where the ICC has jurisdiction, it has specifically declined to find that such movement constitutes a war crime.

None of this is to say the conduct of other countries justifies illegalities by Israel: Rather, it is to demonstrate that this conduct, when analyzed without knowledge of people involved, has never been regarded as illegal. Indeed, the alleged prohibition is so Israel-specific that the word “settlements” is simply the translation of the Hebrew word yishuv, which is a neutral word referring to fledgling communities on either side of the Green Line. Moreover, the international community has never objected to Israeli Arabs moving across the Green Line, a common occurrence that should, under Berman’s view of Art. 49(6), be equally illegal.

Berman’s claim to consensus depends on dismissing alternate views as belonging to “settler publicists,” an example of the “No True Scotsman” fallacy. All that is rhetoric. What is clear is that in the late 1960s, the moment that mattered, nothing in international law demonstrated that Israel must engage in the unprecedented action not allowing its Jewish population to live in the areas from which they were expelled. Berman cites the policy of Art. 49(6) as preventing an occupying power from making major, permanent demographic changes. Apparently expulsion of all Jews from eastern Jerusalem and Judea and Samaria by Jordan happens to be the one exception.

Eugene Kontorovich is a professor at the George Mason University Scalia Law School and the director of its Center on the Middle East and International Law. He is also the head of the international law department at the Kohelet Policy Forum, a think tank in Jerusalem.

August 11, 2023 | 16 Comments »

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16 Comments / 16 Comments

  1. I know Bear, you are sometimes a kidder. I don’t mind at all, as I am the very same. My poor old library has been in storage for 25 years ,I mourn over it all the time.

    I suppose you mean Victoria on Vancouver Island B.C. , exactly where I live.

    NO I did not see this and I absolutely applaud whoever printed it.

    THIS is exactly what the posts I wrote mean. Articles like these should be published abroad wherever they are accepted.

    Kol Hakovod for the brave publisher. I don’t bother with local news; I’m interested only in Israeli matters.

    Checked all Victoria outlets couldn’t find it. But I am a rotten researcher rarely hitting the right keys. And an even worse computer operator.

  2. I know Bear, you are sometimes a kidder. I don’t mind at all, as I am the very same. My poor old library has been in storage for 25 years ,I mourn over it all the time.

    I suppose you mean Victoria on Vancouver Island B.C. , exactly where I live.

    NO I did not see this and I absolutely applaud whoever printed it.

    THIS is exactly what the posts I wrote mean. Articles like these should be published abroad wherever they are accepted.

    Kol Hakovod for the brave publisher. I don’t bother with local news are I’m interested only in Israeli matters.

    I’ll have to look up TABLET. Thank you indeed…..!!

  3. @ Edgar, did not get to see an eye doc on Victoria Island lately?

    The Header for this article is:

    Israeli Settlements Are Not Illegal (HIGHLY RECOMMENDED)

    A response to Nathaniel Berman

    By Eugene Kontorovich, TABLET, 10.8.23

    You appear to have missed it. Such a big library but can not find the books. Just teasing you.

  4. SEB-

    We can go round and round in circles over this matter. W ehave been doing just that.for many years now and nothing has changed; amongst hundreds similar in style if not in content, But Heads of Mossad change. IDF CoS change and the situation always remains fluid.

    The REAL advantage is, that whilst the “International Community” can condemn and rave and forth…………

    WE ARE IN POSSESSION….. and backed by our inalienable rights to the Land.”, which, fortunately are in the record books.

    I recall that Geneva Decision in France. This was a very highly respected court. Yet, it is almost instantly forgotten, a good example of my comments above, and WE STILL are in possession and control.

    The malaise lies within the Israeli legal system, and the system as a whole including all bureaucratic decisions. the laborious and cringeworthy long drawn out system based on Laws other than Israeli.
    The “left hand” doesn’t know what the “right hand” is doing.
    I have experienced this many times whilst living there, and I see little or no change.

    It shows the intellectual sloth of the Israeli system. \Will it ever change…I don’t know, But I DO know that we will never advance to our goal unless we DO change, with NO haggling and back-room agreements but a straightforward, honest drive to our goal.

  5. Why, while insightfully pointing out the double standard, does he contend that there is no prior law or precedent governing the issue, especially since that very law and precedent explicitly mandated Jewish settlement!

    The Administration of Palestine…shall encourage…close settlement by Jews on the land, including State lands and waste lands not required for public purposes.

    Article 6, Palestine Mandate, 1922.

    And why does he fail to mention that exactly ten years ago, the lack of applicability of the Geneva Accords was recognized by the French Appeals Court?

    Or that Israel is not a signatory to the Rome Accords

  6. Residents shocked: Forces destroy Jewish houses in A’ira Shahar
    Residents allege that the eviction of the A’ira Shahar outpost is revenge for the case against Burqa incident victims falling apart

    Aug 15

    A large force of Border Police and IDF Civil Administration personnel on Monday raided the A’ira Shahar hill and began destroying the outpost. Many residents of the surrounding communities arrived at the scene and are protesting the demolition of the buildings.

    This is the first eviction at A’ira Shahar since the formation of the right-wing government eight months ago, and it is one of the more significant evacuations of late.

    According to the coalition agreement, the evacuation of Jewish buildings in Judea and Samaria would be done under the authorization and permission of Finance Minister Bezalel Smotrich, barring exceptional cases such as an urgent security need or new construction, in which case the evacuation would be ordered by Defense Minister Yoav Gallant.

    A’ira Shahar residents called out the destruction: “The right-wing government is continuing Gantz and Lapid’s heritage of harming Jewish settlement and destroying buildings. Matters are much worse since they come a week after a blood libel against brave settlers who defended themselves. After the lies of the IDF Spokesperson, who adopted the deceitful Arab narrative regarding the Burqa incident, were exposed, they are now coming for revenge.

    Now that the murder accusation that their trying to stick on the settlers is falling apart, they decided to turn to revenge by destroying the settlements. During the eviction now, houses belonging to families with children are being destroyed, houses that have been on the hill for over half a year, that are under Minister Bezalel Smotrich’s responsibility, and he has to authorize their destruction. It’s shocking that Smotrich decided to fight the settlements.”


  7. CRAIG-

    One or two articles can say it all. It’s easy to follow from the San Remo Conference through Sevres. to the British Mandate incorporating the Balfour Letter, the unanimous acceptance by both Houses of the American Political system, the signaures into US Law by TWO US Presidents Harding and Coolidge,, the LoN handing the irrevocable undertaking to the Newly formed UN etc.

    These bodies are breaking their OWN laws all the way through, but nevertheless, the issue is irrevocable and still valid if we ever can get a Jew-friendly administration to trace the REAL provenence.

    The documentation was also scrutinised and accepted by Woodrow Wilson, although not as a signatory.

    This is ALL factual History. It can be verified from top to bottom.

    You noticed my point, that “preaching to the converted” is a sheer waste. It should be published abroad anywhere that will print it. Over and over ….Not in Israel.

  8. BEAR-

    Berman , overburdened by degrees in a variety of items and sadly lacking common sense. He is a known internationalist, and is now zooming in on Kaballah, a very easy subject to dissect and reject in scorn. A farrago of nonsense. I laugh at it myself, having several books on it, the earliest being one by Christian D. Ginsberg, a noted Mishumad, who put the cap on the lack of authenticity of Moshe Shapira’s scrolls, which are now thought to have been authentic, the oldest by centuries ever discovered.

    I saw no mention of Burman in your post so I was not aware. I thought you were responding to MY post. I didn’t see anything from Berman on Israpundit.
    Berman is a typical JINO, whose opinion on Israel can be discarded as the froth on top of a glass of Guinness.

  9. @Edgar G I agree that articles such as this one need to be disseminated outside the converted. Still, I contend there is value in also disseminating it among us. I maintain a library of such articles to pull out and use to counter the anti-Israel, BDS, and “progressive”/Squad crowd found on Twitter and other forums.

    @Eugene please correct typo “Turkish-occupied northern Iraq…” “Iraq” should, of course, be “Cyprus.”

  10. @Edgar this article was a response Nathaniel Berman who claimed that settlements are not legal. So it is always good in my view to counter such faulty claims about settlements. It is good to have many articles in this regard because the enemies of Israel are constantly disseminating erroneous information about Israel and the Jewish Towns in Judea/Samaria.

  11. BEAR-

    I agree, providing the articles are different. I mean that they cover the subject from a different angle. The writer here has published dozens of similar articles, possibly the very same ones rehashed.
    For instance, a deep article detailing the Jewish presence in the Land from Roman times, would be appreciated. We know well that even though at times the number of Jews in the Land was small, yet they held on, and Israel has never been without some Jewish population.
    I have actually read several items like this, but can’t recall where . Possibly chapters in some book, as I have a good collection of Judaica, and have read twice as many more..

    Any new members, are certain to already have read several similar articles else why would they come on this site. We are Jewish Nationalists who clamour for International recognition of total possession……… Over the many years there have been plans to disperse and dispossess the Arabs who are mainly late interlopers, who came after the Jews returned and began to industrialise. I have detailed, in the past, the figures direct from the records of the British High Commissioner as to legal and illegal Arab entries.

    One can count on the fingers of one hand , I believe, the number of those who do not agree that the rights of the Jewish People to the Land are totally valid. In fact as a longtime member, originally under a different user name , I have never seen any post denying those rights.

    If you have , I’d like to have you say so, so that I can broaden my knowledge and apologise.

    I do not include any Abbas supporters or etc.

    We get the occasional Anti-Semite, but not on this subject that I can recall.

  12. We can never have enough articles about rights of the Jews to Land of Israel, including Judea/Samaria.

    Though many of the commentators here have long ago digested these rights and agree with them. There maybe new readers who have yet absorbed these rights of the Jewish people and/or the State of Israel to the Land of Israel.

    So it was good to post this article.

  13. I see no point in another article about Israel’s right to build settlements and indeed rights to all Israel as laid down at San Remo, and by other later decisive events. Preaching to the converted can get tiresome for the listeners.

    There must be 500 other equally compelling articles covering the same pointa. in fact among the published books that Israpundit advertises on it’s list before coming to the daily articles there are at least a couple or three permanently placed.

  14. With all of the above already stated by others on this forum, what remains is the issue that Israel will not appear before the ICJ to try to get Judea and Samaria “legally” become part of Israel. The reason is that should such a step fail, Israel has previously agreed to accept the decision handed down by the ICJ, otherwise there would be no reason to be there in the first place. The other side of this coin is simply the fact that the ICJ would NEVER hand down a decision in Israel’s favor. There simply aren’t any judges with the backbone to do so in the face of various other parties.