What Made a Legally Established Settlement Illegal?


When the mothers of the Israeli boys kidnapped by Palestinian terrorists in the area of Gush Etzion, in “Israeli occupied” Judea, spoke before international bodies, many of the diplomats referred to them in their comments and questions as “settlers.” One is given to understand that, in their eyes, inclusion in that category means that they have no human rights and the world’s indifference to their fate is justified. In fact, the boys are not “settlers” but attend schools in Jewish towns in Judea, two of them in kibbutz Kfar Etzion and one in Kiriyat Arba.  But let’s leave that aside and cut straight to the core of the issue of the legality of Jewish settlements outside the 1949 Armistice Lines.

There is only one International law concerning Israeli settlement that is binding and has never been superseded. The League of Nations, on July 24th, 1922, established the Mandate for Palestine, by unanimous vote, which included two Islamic states, Persia and Albania. The resolution stated, in part, “Whereas recognition has been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country….”

Note “reconstituting” their national home. The Jewish people was explicitly recognized as the long-exiled indigenous people of that land.

Moreover, Article 6 of the Mandate directs the Administration of Palestine to facilitate … “close settlement by Jews on the land….”

And Jews settled. And it was not contested that those settlements were legal under international law.

Kfar Etzion was founded in the early 1940’s. In the 1948-49 war it was destroyed and its defenders massacred by the Jordanian Legion, who took the women and children captive. They were repatriated after the armistice in 1949. Kfar Etzion was part of the area invaded and annexed illegally by Jordan and renamed the “West Bank.”  Kfar Etzion was reestablished after Israel retook those lands in a defensive war in 1967 and it was resettled by children of the original founders.


So when did Kfar Etzion become illegal? When Jordan illegally invaded and occupied it?

Anyone who sees Israel as an occupier of foreign land has to argue either that the League of Nations Mandate was illegal or that Jewish settlement became illegal when Jordan invaded and occupied it. No one ever argued for the former, the illegality of the Mandate, and the latter is legally absurd and morally repugnant.

Consider a parallel hypothetical case: in1974, Turkey invaded Cyprus and occupied the northern third of the island, drove out a great many Greek Cypriots and brought its own citizens, ethnic Turks from mainland Turkey, to settle Cyprus. Suppose Turkey were to invade Cyprus again, with the declared goal of exterminating the Greek Cypriots and annexing the island to Turkey.  And suppose the Greek Cypriots were to win and drive the Turkish military from Cyprus. Would Cyprus be obligated by the Geneva Conventions to treat northern Cyprus as occupied foreign territory and prevent its citizens from resettling there?

The crucial fact is that the world has recognized the Jewish people as the indigenous people of the land, entitled to resettle it. The part of the land east of the 1949 Armistice Line was taken from them by naked aggression with the intent of annihilating the Jewish residents, as declared by Azzam Pasha, Secretary General of the Arab League:

This will be a war of extermination and a momentous massacre which will be spoken of like the Mongolian massacres and the Crusades”.

In 1967, in the course of its self-defense against another attempt at genocide, the land came into the possession of Israel, which is the very same state of the Jews which was specifically contemplated by the Mandate.

The Geneva Conventions of 1949 do not apply to Israeli presence in Judea and Samaria (or Gaza either, as a matter of fact). All discussion about the Jewish settlements being illegal, whether under the Geneva Conventions or otherwise, is just irrelevant sophistry.

The writer, formerly a law professor, has practiced law in New York and California and in Israel since 1986.

June 29, 2014 | 5 Comments »

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  1. @ XLucid:

    “There is only one International law concerning Israeli settlement that is binding and has never been superseded.”

    “It is untrue and inaccurate.”

    Not ‘untrue’ and not ‘inaccurate.’

    “There are actually two international laws that are binding and which have and will never be superseded…”

    One binding law; two binding documents (two treaties, etc).

    San Remo effectively ORDAINED creation of the Mandate (& its Charter). Thus, same law.

    “The main question which arises is the following: Why did not Israel apply the Israeli legislation to Judea and Samaria…”

    The heartland provinces came into Israeli possession consequent to a war fought by a Labor govt — which had taken the view of ignoring the Mandate (and San Remo) as immaterial after 1948. Of course, the Mandate was not in fact immaterial, but that was Labor’s position.

    Therefore, from Labor’s perspective and that of its AG (& later Supreme Ct Pres.), Meir Shamgar, possession of J/S could be maintained only under the law of “belligerent occupation.”

    1. This land was given by G-d to the Jewish people, forever.
    2. It is the land where the Jewish Nation was born and where Jews lived continuously for more than 3000years.
    3. The Land of Israel and specially Jerusalem is the core and heart of the Jewish Nation. (Heart of Arabs is in Arabia.) Jerusalem was never mentioned in the Koran and the story that Mohamed “traveled” there in his “sleep” is a fantasy, which was invented later by other people and never was claimed by Mohamed (no one word about Jerusalem).
    4. The Koran clearly says: This Land belongs to the Jewish People. Anybody who goes against it, is against Koran and Islam. The Children of Israel: “Dwell securely in the Promised Land” (The Koran, The Night Journey 17:104).
    5. Israel respects all religions, historical and cultural heritage (Arabs do not respect any religions and cultures and try to destroy them or claim it is theirs).
    6. Israel developed this land as a real owner (Arabs not only do not develop it but also on many occasions try to destroy it, like destructive excavations on Temple mountain, like arsons of forests, which was planted by Jews instead of desserts and swamps. Arabs do it because subconsciously they know – this Land is not theirs). Only People who want and able to develop the Land deserve the rights to own it.
    7. The Land of Israel is a very small and possession of it by Arabs will not change or improve a one-bit the living situation of Arabs but for Jews it is only the place. (Jews have only one small country and the Arabs have 22 countries with vast territory and resources).
    8. Arabs have same religion, culture and language in all of these 22 Arab countries.
    Arab countries can easily absorb Arab refugees that were the result of Arab aggression.
    9. Is this justice: to deny the Jews of their tiny homeland to live, and to give it to Arabs who already have tremendous territory? Supporters of this in Europe and other places – where is your decency, moral and common sense?
    10. Arabs expelled near 800,000 Jews from Arab countries, who lived there long before Arabs captured these lands from indigenous people, brutally destroyed their religions and cultures.
    11. “Palestinian refugees were created by Arab countries when they proclaimed genocidal war against the Jewish State and have asked the Arabs of Palestine to leave for convenience to accomplish the genocide. (All these are documented facts).
    12. Where is justice for “Palestinian” Arabs who have been kept in refugee camps more
    then 60 years, denying them citizenship by their Arabs brothers and keep them as second class citizens and incite them against Israel? Why the State of Israel did absorb all Jewish refugees from Arab countries and Arabs don’t? Arab countries should admit their deeds and grant the civil rights to their brothers.
    13. Palestinian Arabs have the right to live on Jewish land as loyal peaceful citizens but they choose to deny the rights of others and declare the goal to destroy the State of Israel and by choosing this, they lost the right to live on this Land. They choose genocidal war. (They proclaimed this multiple times and tried to accomplish this multiple times.) They are hoping for this now.(all these are documented and well known).
    14. Palestinians are invented people, and invented with only one goal to destroy the State of Israel and would never call themselves “Palestinians” otherwise. They try, by adapting this name, to prove they are indigenous people for this land. They are not. Most of “Palestinians” migrated here from multiple Arab countries in the end of 19th century, when Jews started to rebuild their Land. Therefore, their claim about native people is false. Everybody has rights to call themselves whatever they want but not to use this as a goal and means to terrorize and destroy others. They have the rights to live on this Land as a peaceful and loyal citizen. Everybody who denies Jewish rights on this Land automatically lost the rights to live here.
    15. Jews have all rights to keep the land which they possessed in defensive wars (these wars prevent genocide of Jews by Arabs).Arab countries should pay for consequence of their actions.
    16. Is this justice when a territory of Palestine which was according to The league of Nations declared and provided as a national home for Jewish people, was illegally made Jews free zone (in Jordan, which occupies ¾ of original Palestine). Remaining quarter of this territory they try to divide and make another Jews free zone.(As they tried in 1948 and now) Is this justice? Their goal is to make The Land of Israel completely free of Jewish People. This is racism and crime.
    17. Arabs’ obsession to steal the Jewish Land is a crime against humanity. The help to accomplish this is a crime too.
    !8. Arabs teach their children to hate Jews from the young age, distribute anti-Semitic, nazi propaganda against Jews. This is a crime.
    19. And stop to call Judea and Samaria, the Land where Jews lived for thousands of years, “west bank”. Stop lie, stop fraud, stop deception.
    20. Without justice, there is no peace. Justice for all. And justice for the Jewish people too.

  3. According to international law, Jews have the right to settle anywhere in the Land of Israel, or at least for the time being, in the 25% remaining portion thereof which includes Judea, Samaria, Gaza and, of course, the East sector of Jerusalem.

    However, they are prohibited to live there and their homes are destroyed and they are considered and treated as second class citizens.

    The same is applicable to the prohibitions in the Temple Mount. The examples abound. When a legal right is granted for the benefit of Jews, Israel turns a blind eye to it.

    Israel is confusing the rights conferred to the Jewish People according to international law on the one hand, and the personal interests of the leaders of the State of Israel on the other hand.

    The Jewish presence in Tel Aviv derives directly from the same right as the Jewish presence in Judea and Samaria.

    By making a distinction between the first one and the other one, Israel shoots itself in the foot by bringing water to the mill of its detractors while reinforcing their false propaganda and accusations.

  4. “There is only one International law concerning Israeli settlement that is binding and has never been superseded.”

    It is untrue and inaccurate. There are actually two international laws that are binding and which have and will never be superseded: the other one is called the San Remo Resolution adopted in 1920 by the High Contracting Parties which is still applicable pursuant to the Vienna Convention on the Law of Treaties of 1969:

    “The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people …”

    As a reminder, the San Remo Resolution is a treaty of international law which conferred the rights to Jewish People to settle everywhere within the boundaries of Palestine, from the Mediterranean Sea to the Euphrates River, and from the Litani River to the Nile River.

    In fact, all the Resolutions adopted by the UNSC against Israel with respect to the settlements are in blatant contravention of 70(1)(b) of the said Vienna Convention on the Law of Treaties.

    The main question which arises is the following: Why did not Israel apply the Israeli legislation to Judea and Samaria, which resulted in a situation where Jews are deprived of basic services such as a regular service of buses which lead Jews to turn to hitchhiking, thereby putting themselves in danger of terrorist attacks, including abductions as was the case for the three innocent kids.