One glaring problem with this topic is that it is primarily a legal issue, and a very disputed and complex one at that. Therefore someone like myself who lacks a thorough background in international law should have nothing authoritative to say about it. On the other hand, for every legal scholar or court that declares the settlements illegal, there are legal experts who argue the opposite, though most media outlets tend to present only one side of the debate. It is for this reason that politicians around the world adopt a variety of stances, while most of them can rightfully claim to be based on expert legal advice. The real question, of course, is whether that legal advice is sound.
As I see it, the lack of an authoritative and definitive legal ruling on this matter opens the door for me to make my own arguments. If the experts can't reach a consensus, we might as well form our own conclusions. It seems the inability to rule decisively on this issue stems not only from political bias on both sides, but primarily from the territory's complex history, filled with details that muddy the waters. Nothing here is straightforward, and the language in legal sources and charters is often too vague to resolve disputes when confronted with such intricate and murky details. Some argue that this situation is 'sui generis', a unique case that doesn’t fit any standard clauses of international law, which is why many arguments fail to be compelling.
At this point, some of you may be protesting that the UN has ruled definitively on this topic numerous times, and given that the UN is an international and authoritative body with a court and an army of experts on international law, this should be the final word on the subject. But the UN has been proven to be biased for decades now with its inordinate attention to Israel and highly selective use of facts, and its courts do not have jurisdiction over Israel on these matters in most cases (with some exceptions which we won't get into), therefore its rulings on this topic offer neither authority nor objectivity. In fact, the UN is merely a political body with its own tailored stable of 'legal experts', just like everyone else. Many member states including the US, Russia, UK, France, Canada have repeatedly ignored, overridden or vetoed UN resolutions and refused to accept UN jurisdiction. The biased UN cannot declare itself the legal authority for nations that refuse to accept its jurisdiction, even according to its own charter.
Additionally, even within the UN and ICJ, dissenting judges present powerful counter-arguments. In a recent ruling, Judge Julia Sebutinde presented 30 pages of facts and arguments that the other 14 judges conveniently overlooked, demonstrating how they relied on selective facts and manipulated reports. She recommended that, given the complexity of the case, it should be resolved through negotiations between the parties for a lasting solution. However, the media tends to ignore such thoughtful opinions. The contrast between her questioning attitude and the absolute certainty of the other judges is telling; such certainty in a case like this clearly indicates bias.
Despite this, the anti-Israel crowd loves to quote the UN (and human-rights NGOs) and their endless factory of resolutions and reports against Israel. The UN also quotes itself and uses its own resolutions to issue new resolutions, each organ of the UN feeding off other organs. All it takes is one antisemitic precedent, and this provides an endless worldwide circular spree of hostility, bolstered by 'authoritative footnotes'.
Others may claim that it is not a complex legal issue, but a simple moral outrage, seeing as 'the Israeli government is forcefully expelling peaceful Palestinians, stealing Palestinian land, and establishing Jewish settlements in order to make this illegal occupation permanent'. Except that this populist narrative is yet another fantasy that ignores both history and law, and almost every word in that narrative is wrong.
To begin with, the land does not belong to Palestinians neither in a national/sovereign sense nor, predominantly, in a private ownership sense. There has never been a Palestinian sovereign state because the Palestinians never bothered to establish one when they had the opportunity in 1948. Instead, they attacked Israel. This is land merely designated for a future Palestinian state, in partition plans that the Palestinians rejected. Furthermore, there has never been a Palestinian state in history. 'Palestine' was never a political or national term until the 20th century, only a territorial one. Before the British, the Ottomans conquered and occupied the land illegally for 400 years, and it had been occupied by foreign empires for centuries prior, all the way back to the last actual sovereign: The Jewish Kingdom of Israel. The name of Palestine was imposed on Israel by invading occupying forces. Thus, the only people with a historical sovereign claim to all of 'Palestine' are Jews. Even ignoring historical claims, in the absence of an agreed-upon plan, the land does not yet belong to Palestinians. The UN and others proposed a Palestinian state numerous times, but all the plans were rejected by the Arabs. Arab Palestinians only have a claim due to their status as tenants up until 1948; however, Jews were also tenants for 3300 years until 1948, long before the rise of Zionism. The only reason Jews did not have a majority in 1948 was due to occupation. On top of all this, Israel didn't take these disputed territories from Palestinians in 1967, but from Jordan and Egypt, who had illegally occupied the land after trying to invade Israel.
As to the state of Palestine today: Palestine made an attempt to establish itself as a state in 1988, but it was not internationally recognized and thus did not acquire legitimacy. In 2012, it attained 'non-member observer state' status at the UN, and thus has been technically considered a state since then. However, this status does not confer sovereignty, as Palestine lacks effective control over its territory, has no defined borders, only a 1967 basis for negotiations over borders, and the PLO leadership has blocked elections since 2005, with only around 25% public support in recent polls.
Regarding privately owned land: All Israeli settlements before 1948 were established on land legally purchased from its owners. The only expulsions of Palestinian land owners occurred between 1948-1950, and these were in the context of a war in response to repeated attacks from Arab villages used as military bases. The controversial 'Absentee Property Law' of 1950 was modeled after post-WWII expropriation of German property abandoned by Germans, who were regarded as enemy nationals. Even in 1948, however, most of the land was not privately owned by Arabs*. Until 1967, the only 'occupied' land in the region was the territory occupied by Jordan and Egypt. After the 1967 war, Israel took the West Bank and Gaza from Jordan and Egypt in a war of self-defense. Initially and controversially, military decisions were given priority concerning use of the land taken in the war. The 1979 Elon Moreh case was a landmark decision where the Israeli Supreme Court prohibited settlements on privately owned land, overriding military decisions. Since then, settlements have only been permitted on state-owned land, with enforcement becoming stricter since Oslo.
There have been no forceful expulsions of land owners before 1948 or after 1950, only evictions of illegal tenants and demolitions due to legal disputes and lack of land permits. Proving land ownership is often complicated due to the Ottoman classification system (most land was leased or state-owned, not privately owned) and the lack of documentation and proof. Despite all this, Palestinians and far-left organizations continue to claim that Palestinian land is being stolen, often without proof. Palestinians often refuse to seek approval from Israeli authorities for new construction projects, leading to frequent clashes with the government. Many of these structures built by Palestinians are attempts to implement an expansionist strategy similar to that of non-government-approved Israeli settlers, albeit on a larger scale. To prove this, one would need to carefully examine the evidence of each individual legal case on its own merits, though, unsurprisingly, no one takes the time to do so.
*(Regarding private ownership of land in 1948: One popular data table misinterpreted by Palestinians was taken from the 1945 'Survey of Palestine' books written by the British Mandate, where Palestinians found a table listing only 6% Jewish ownership and 94% (which includes deserts) as 'non-Jewish ownership' of land. However they conveniently ignore that this table is included in the chapter on taxation, where ownership means something else entirely to do with assignment of land, not private ownership. In contrast, in part I of the same Survey, pages 225+, and 255-257, in the chapter that actually deals with land ownership, the Survey very clearly discusses the classification of land in detail and establishes that, at minimum, 65% of the land was public or state-owned. Another popular source for false data is the Land Ownership map submitted to the UN in 1947 by the second Subcommittee on the Palestinian Question, a subcommittee which consisted of Arabs opposed to the UN partition plan. This proposal doctored the numbers to include state-owned and leased land by region to make it look as if Arabs privately owned 68% of the land on average, which contradicts the above Survey data. The proposal was rejected by a vote in the UN but their data continues to be quoted as if it were a validated UN research project. As many historical documents clearly explain, much of the arable land used by Arabs was leased, not owned, and a large chunk of the privately owned Arab land belonged to foreigners, not locals. Actual historical estimates for privately owned land in 1948 range between 6-9% for Jews, and 17-21% for Arabs. See the British 1945 map of Jewish ownership here, and a carefully merged/compiled map based on 1945 sources in 2020 here, and a thoroughly researched meta-report of statistics here.)
It can't be denied that some Israeli settlements are situated on land that was once privately owned by Arabs. However, since only about 20% of Palestine was privately owned, and the majority of the West Bank remains populated by Arabs until today, and the majority of settlements were established on vacant land, the extent of such cases is obviously highly exaggerated. At worst we can point to some legally questionable practices between 1948-1979 that were covered under the umbrella of military necessity, though not all were truly militarily justified. These practices were stopped after 1979. The bottom line, however, is that none of this would have occurred had the Arabs not started multiple wars.
Furthermore, it is not the government establishing these settlements but the settlers themselves (why this is important will be explained shortly). For some time, particularly since Oslo, if an Israeli settlement is established on private Palestinian land or disputed territory, it is often declared illegal and demolished by Israel itself. This proves that not only is there a discriminate legal approach on a per-case basis, but that it is not the government that is establishing the settlements. Here are several examples of Israeli settlements/outposts demolished by Israel: 1, 2, 3, 4, 5. If the outpost does not violate any ownership laws, the government eventually decides whether to legalize it post-facto.
While it is true
that some settlers and Zionists use settlements as a strategy to control
more of the land, nevertheless, the use of the word 'permanent' is blatantly
incorrect, and
even the word 'occupied' is contested, as shall be explained. Finally,
in case you are thinking that
the Oslo peace agreements explicitly forbade settlements, think again.
Simple research should verify all of these facts.
Given these patent, verifiable historical facts, the challenge in determining whether Israel is doing anything wrong regarding the settlements becomes evident. If there is indeed a problem, can you pinpoint precisely where it lies? This is where legal expertise proves invaluable. All of which brings us back to our opening words: The issues surrounding Jewish settlements in these territories are far more nuanced and complex than commonly perceived, with much of the debate centering on complex, disputed, technical legal matters.
We will begin by exploring the legal arguments on both sides, highlighting why many (not all) are questionable or even categorically mistaken, often from a logical standpoint. These arguments were collected from various sources, books and legal experts, though I have added my own original commentary and critique (which lawyers on both sides may scoff at). We will then attempt to bring this issue down to a simpler, human level so that we can evaluate it with common sense. Considerable effort has been made to make this discussion as comprehensive, concise, accurate and fair as possible even for a layperson such as myself.
Each section is self-contained with its own claim or argument, allowing you to skip directly to the ones that interest you if you find them too lengthy. The final two sections present an allegory, and a summary combined with concluding remarks.
Occupation
As mentioned, there are legal arguments challenging the assumption that these are occupied territories in a legal sense, upending the narrative at its core. These will be dealt with in subsequent sections.
However, even if the land is legally defined as occupied, we must remember what Israel is occupying: This is territory that used to belong entirely to Jews in the past, now earmarked for a future Palestinian state (a state that has never existed in history), in a plan that was rejected by Palestinians. Additionally, this territory was taken from Jordan and Egypt in a war of self-defense.
More importantly, even if it is an occupation, occupations due to self-defense are perfectly legal and morally justified, and must not be conflated with the issue of settlements. Think of the 45-year occupation of Germany by the Allies between 1945-1990. Even the UN has never called Israel's 1967 occupation illegal; it has declared the ongoing occupation illegal over time due to the way it perceives Israel's behavior in these territories. This alleged bad behavior includes settlements, Israel's treatment of civilians and their rights, wall-building, and attempts, or lack thereof, of progress towards peace.
In other words, the original occupation was justified even by UN standards, but it wants Israel to behave differently while it is occupying these lands, or else to end the occupation. Without some of these perceived infringements over time, the UN could not question the legality of the occupation itself. This is an important distinction that many people overlook.
Regardless of these alleged infringements, the UN typically refuses to address Israel's fundamental right to self-defense and explain how demanding an end to the occupation would not violate this right.
Note the famous UN Resolution 242, upon which many subsequent resolutions and peace agreements were based, which makes very clear that Israel must only withdraw from these occupied lands when a 'state of belligerency' is terminated. Any forced re-interpretation of this clause to make peace dependent on withdrawal is ludicrous. The resolution very clearly states that its goal is a 'just and lasting peace', not an end to occupation, and it places both criteria of 'withdrawal' and 'end to belligerence' on equal footing as prerequisites for this goal. Given that the stated goal is peace, obviously one cannot achieve a lasting peace if one side holds onto claims that the other has no right to exist while continuing to support terrorism. Hamas, the elected leadership in Gaza, still calls for the destruction of Israel in its charter, the PLO continues to reward terrorism until today, several Palestinian leaders have explicitly defined Oslo as the first step in its phased plan to conquer all of Israel, and they continue to teach antisemitism in schools.
As far as Israel's behavior towards Palestinians in these territories is concerned, these criticisms simply don't hold water except in specific cases of immoral behavior by rogue extremists. Naturally, in a legal occupation, occupied people will be subjected to different laws and oppressive but legal restrictions. Again, think of Germans in occupied Germany, except, imagine the Germans had fought back against the occupation, forcing the occupation to become much more restrictive. Did the fact that the British held Germans under different, restrictive occupation laws for 45 years make the British racist and the UK into an apartheid state? As long as Israel upholds the Geneva Convention regarding treatment of occupied persons during a war, all is legal. While the land is occupied, Israel must not only administer and manage the land and its people, it must also continue to implement security restrictions and launch self-defense raids against terrorists who have never ceased to operate within these territories. This is why, for example, the UN condemning Israel's building of the wall is absurd, seeing as the UN maliciously disregarded the issue of self-defense and the proven life-saving results of the wall.
Concerning the natural resources of occupied territories, international law permits an occupying power to use these resources under numerous circumstances: First, it may use even private property for exigent military purposes. In addition, the occupier is allowed to utilize all public property and even profit from it, provided that the capital or inherent value of the resource is not diminished. For instance, it can even cut down trees and sell the timber or continue mining resources. Some argue that the occupier may even establish new mines, particularly if the local population benefits from the products or jobs created. The compelling argument for this is that life doesn't stand still, it continues to grow and require new public resources even while under occupation. Does the UN think that the Allies did not
develop and benefit from Germany's natural resources during its long occupation? This is why critics of Israel often go to great lengths to concoct reports demonstrating that Palestinians are allegedly suffering or not benefiting as a result of Israel's use of these natural resources. Simply showing that Israel is exploiting the land is not enough.
The issue of settlements will be discussed separately below. As for settlers making use of natural resources, this is directly linked to the legality of the settlements themselves. One cannot establish a settlement without using local resources, so the two issues are inherently connected.
It could be strongly argued that the Israeli occupation has improved the lives of Palestinians in the territories by providing infrastructure and well-paying jobs. UN reports falsely claim that Israel is exploiting water and resources to the detriment of Palestinians. In reality, the infrastructure Israel develops is shared with both Arabs and Jews, and Palestinians benefit from it. Perhaps most importantly, during Israeli control, the West Bank territories have not experienced the same level of terrorist takeover and ensuing misery as in Gaza. Some Gazans have been filmed complaining that life was better while under occupation. Obviously, this doesn't imply that they wish to be occupied, nor that everyone's experience will be positive, but it does counter accusations of systematic abuse or neglect.
Regarding the duration of the occupation: The UN also cites this as proof that the occupation is permanent or of a nature leading to annexation. However this argument, too, fails under basic common sense. If an occupation is justified for self-defense purposes, then it remains justified as long as belligerence and terrorism persist. If Palestinians continue to attack Israeli territory for 100 years, then the occupation will necessarily last 100 years. If such attacks continue indefinitely, then the occupation must also continue indefinitely. This is elementary. The basic right of self-defense has no expiration date. If it did, then nations could commit acts of aggression or even genocide legally, as long as they are persistent and wait for the occupation's expiry date.
Some complain that Israel's occupation is the longest in modern history. However, it is actually the longest violent resistance against an occupation in modern history. Without the ongoing terrorism, the occupation would have already ended. Furthermore, this is an extremely ahistorical argument. Examples from modern history: After military conquest, the Ottomans occupied Palestine for 400 years until 1917, Spain controlled the Philippines for over 300 years until 1898, France controlled Algeria for 130 years until 1962, the Dutch controlled the East Indies (Indonesia) for 350 years until 1949, and so on... all examples that start with military conquests and which are therefore very long occupations, not peaceful colonial projects. The basic difference here, of course, is that Israel took the land in a war of self-defense.
In case there is doubt that Israel's occupation is required for self-defense, one merely has to look at the decades of terrorist and missile attacks before the occupations and re-occupations. Not only were numerous attacks launched against Israel before the occupation, but every time Israel withdrew from land, including Gaza in 2005, parts of the West Bank during the Oslo accords in 1993-2000, and Lebanon twice in 1978 and 2000, terrorism skyrocketed. Therefore arguments that claim that continuing occupation is not proportional are refuted by factual history.
An occupation is supposed to be temporary until an agreement is reached
or the problem is resolved. But it takes two to resolve a problem. If the ongoing problem of Palestinian
terrorism and Israel's numerous earnest attempts at peace were not
invariably dismissed, these complaints against the occupation would fall apart. What these international lawyers are doing is ignoring the basis of the problem that led to the occupation in the first place, and then redefining the occupation because 'it looks like' an annexation. You don't have to be a lawyer to see the dishonesty in this. Stop ignoring historical and verifiable facts, and reality won't appear as you imagine it to be.
In summary, even if it is an occupation, it is not an illegal one.
Self-Determination
One issue often brought up in the context of the occupation is the right of Palestinians to self-determine. This is used both to demand the establishment of a Palestinian state, as well as to condemn the ongoing occupation, declaring that this basic right is being effectively quashed.
As with previous arguments, champions of this right are blatantly ignoring the larger reality and context of ongoing violence and the need for self-defense. However, they are also ignoring the fact that this
right is not absolute. Self-determination not only has to be balanced with other
rights such as self-defense, it is also part of a larger framework and secondary to broader goals of peace.
A quote from the UN charter Article 1 should make this clear: 'The Purposes of the United Nations are... 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace... . 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.'
The primary goal of the UN, stated repeatedly, is peace, not self-determination. Self-determination is only deemed an applicable right if peace is the goal. Terrorists and ethnic groups that launch wars against their neighbors do not qualify.
Of
course, one could argue that Palestinian terrorism is only there
because of the lack of self-determinism and not vice versa, except that history thoroughly refutes this argument. The most glaring example is 1948: Palestinians prioritized launching a war over establishing a state despite their clear capability to establish one at the same time as Israel. Evidently, Palestinians have priorities that outweigh self-determination too.
In
addition, and perhaps most importantly, the right to self-determine does not necessarily mean the
right to establish an independent state or the right to secession. If
this were the case, ethnic groups such as the Basques, Catalans, and Kurds
would have a strong case in the ICJ. Independence is only sought when it would increase peace and reduce tensions in the region relative to the current situation. Otherwise, self-determination is
achieved merely through representation in government and freedom to pursue
cultural development within a democratic state, with perhaps
some degree of autonomy if suitable. It's only when there is a peaceful
agreement with the parent state, or if the group is under significant
threat and danger from the parent state, that secession and independence becomes an
option. In our case, it's the exact opposite: It's the existing state that is in persistent danger from the secessionists and this danger and belligerence would greatly increase if they became independent.
Finally, when the right to self-defense is also involved, the right to self-determine has to be balanced with that right and, inevitably, will be restricted. Criminals and terrorists in jail are obviously very restricted in terms of their right to self-determination although it could be said they still have some minimal rights. A legal military occupation lies somewhere in between these two scenarios.
To put it succinctly, if your idea of self-determination is the freedom to kill your neighbors, then that right should no longer be available to you.
Annexation Via War
Another principle of modern international law implies that a state cannot annex land through means of war, even if that war is a war of self-defense and even if the land has no sovereign. I say 'implies' because this is a very loose interpretation of the wording in the UN Charter Article 2(4): 'All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.'
I have not seen the following argument elsewhere, but as a layman I question this interpretation given the very clear use of the terms 'state', 'territorial integrity' and 'political independence'. When Israel took Judea and Samaria AKA the West Bank, it did not use force against any 'state', at least not against one (Jordan) that actually had internationally recognized sovereignty over the land. Neither did it cause harm to any 'political independence' seeing as Palestine was not independent. In addition, there is no sense where 'territorial integrity' can even begin to apply in this case; What and whose integrity was broken? No established borders were broken. There were several borders suggested, none of which were accepted by Arabs. Finally, even if we take the ultimate UN goal of peace into account, peace was already broken by Arabs and this was a war of self-defense with the goal of restoring peace. The use of force in this case conforms with the larger goals of the UN, in the same way that a UN peacekeeping force would enforce peace through war. Given all this, how can lawyers apply this clause to the case of the West Bank without bending over backwards and warping the English language? Given this, I would argue that there is no law against Israel annexing this land.
In any case, this law is largely irrelevant to our topic, since it only applies to annexation, not occupation.
Where this law does apply is in the case of the Golan Heights. Whether Israel de facto annexed the Golan Heights is a contested definition, but at least the law is much more relevant in this case. The only argument I have in defense of Israel is that the Golan Heights presents a fierce practical problem, seeing as: 1. The land was used repeatedly to launch surprise attacks by Syria. 2. The land presents a natural military advantage and element of surprise given its height. 3. Syria refuses to make any security concessions to Israel in negotiations. Rabin was willing to give the land back in the 1990s, negating the perception that Golan Heights was permanently annexed to Israel, but talks with Syria at the time did not reach a peaceful agreement. In my eyes, this land presents an unsolvable practical problem due to Syrian intransigence more so than a legal problem, but the legal issue does exist.
Another observation is that this law rapidly becomes absurd once one realizes that practically every current country owns some land that had been acquired through war in the past. Obviously the law does not apply retroactively, but it does add a distasteful layer of hypocrisy to criticisms.
An even greater absurdity occurs when one realizes that international law allows states to kill belligerent nations in self-defense, but not to take their land in self-defense. Think about that one.
Finally, in a later section, we will present a compelling legal argument that bypasses this entire issue. If Israel already has sovereignty over the land, then there would be no need for Israel to annex the territories in the first place.
Permanence
Thus far, we have addressed the broader issue of occupation and its impact on Palestinians and settlements. We have demonstrated that the occupation, assuming it is one, is legal. Any occupation inevitably involves restrictions, particularly when the occupied population continues to engage in terrorism. Israeli settlements, however, raise distinct legal issues separate from the occupation, which we will now examine.
While it is obviously true that settlers establishing these settlements have permanence in mind, this doesn't make the settlements permanent. Even the fact that the Israeli government approves some of the settlements and provides security and support doesn't change this. Obvious proof for this argument is provided by Gaza and the 21 ex-Israeli settlements therein. During the 2005 Israeli disengagement, when the occupation of Gaza ended, Israel uprooted and forcibly transferred Jews out of Gaza, and then handed Gaza in full to the Palestinians (the blockade by both Egypt and Israel only re-started after Hamas took over and attacked). Israel uprooted these settlements despite fierce protests, lawsuits, financial costs, the complete loss of investments, and the valuable contributions by settlements to the economy.
Israel also uprooted four settlements in the West Bank at the same time, a neglected and important historical fact. Yet another neglected fact is that Begin, another right-wing Israeli president, uprooted 12 settlements in Sinai when Egypt signed a peace agreement with Israel in 1979.
A similar argument can be made regarding the claim that some Zionists and public figures use settlements as a strategy to gradually isolate Palestinians and take control of more land. I do not deny that some think this way, especially between 1967 and 1993 until the Oslo agreements, but one of the most prominent figures behind such strategies was Ariel Sharon, a man who championed new settlements during this period, until he himself implemented the Gaza withdrawal and uprooting of Israeli settlements in Gaza. You can't get stronger proof of the impermanence of settlements and the flexible will of Israeli leaders than this. Stubborn settlers do exist, but they do not have the last word.
Furthermore, until 1967, and even before 1948, during which there was no occupation, Palestinians consistently refused to make peace with Israel, thus proving that illegal settlements were never the primary problem. Similarly, Israel froze settlements multiple times in 1978 and 2010 and Palestinians still refused peace.
Therefore, the argument that settlements are obstacles to peace or that they represent permanent annexations simply do not stand up to proven facts on the ground. Israel has proven that it is both capable and willing to uproot settlements for peace. The only truly permanent issue, so far, is Palestinian hostility towards Israel. Settlements are only an excuse. If, one shiny day, Palestinians were to extend their hand in peace and prove their intentions were sincere, settlements would not be a problem.
Population Transfer
One Geneva Convention clause that has been used repeatedly against Israel regarding settlements, is Article 49(6) concerning transfer of the occupier's own civilians into occupied territories. The full (short) text reads as follows:
'The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.'
At first glance, this clause seems compelling and relevant when we note that it does not denote the use of forced transfer in its wording, thus including even the transfer of a willing population.
Many UN arguments are founded on this single clause. For example, if Israel is not permitted to 'transfer' its population to these territories, it cannot justify supporting them with infrastructure, security and the extension of Israeli law. However, this works both ways. If the clause is deemed inapplicable, then Israel can support its population residing in these territories, provided that this support does not infringe upon Palestinian rights.
As many legal experts have repeatedly argued, this wording is not applicable to the case of Israeli settlements because it is not the Israeli government that is establishing the settlements and there is no systematic government plan for settlements. The government does indeed approve, support, and defend the settlements which it decides are legal, but it does not initiate or establish them, and it does not need to convince its population to move. Building infrastructure in support of settlements does not qualify as incentive; it is merely support. The settlement project is therefore primarily civilian. Critically, this means that 'parts of the population' are not being 'deported or transferred'. Settlers do not 'transfer' themselves when they establish a settlement, neither does a government 'transfer' them when it gives its stamp of approval. If the government were initiating or inducing transfers of a willing population, then it could be applicable, but this is not the case. The settlers initiate. The 'transfer' word simply cannot be used in any sentence that speaks of Israeli settlers picking themselves up and moving into the territory on their own accord, sometimes even against the Israeli government's wishes.
(In the UN Rome Statute, the wording was changed to: 'The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies'. However, in my opinion, this changes nothing since it is still obviously referring to the 'Occupying Power' performing a 'transfer' in one way or another.)
The goal behind this Geneva Convention clause is based on German actions in WWII where Germany systematically transferred parts of its population into occupied territories as a matter of policy, often with force against its own citizens. This was all part of a grand plan called Generalplan Ost. In other words, this clause was intended to stop states and armies from conquering land via the use of population transfer. While some Israeli settlers and Zionists may think this way, it is not Israeli government policy, at least not since 1950 (which was before the occupation), neither is government approval of settlements proof of such a plan. See the previous sections for arguments supporting this.
To appreciate this counter-argument on a deeper level, think of all the new businesses, construction projects, and even new villages for families constructed in occupied Germany by civilians from the US, UK and France during the occupation. Some of these projects originated with civilians, some even by the authorities for reconstruction goals, and were approved and supported by the Allied occupying powers in Germany. One could easily imagine that some of these projects would not have been approved by German authorities had they not been occupied at the time. Despite this, there is no perceived moral or legal issue. As long as there were no obvious intentions by the occupying powers to annex Germany, these projects were all perfectly acceptable and legal. These entrepreneurs that brought their families with them to Germany did this knowing full well that, at any time, the occupying government could leave and their ventures could be cancelled. The case of Israeli settlers is similar. There is no comparison to Lebensraum.
Legal scholars have also noted that this clause has never been applied to any country anywhere, despite there being many examples of occupation today around the world with migrating settlers moving into occupied territories. The question is not whether these countries are breaking the law, but why this law has never been applied to them. Obviously, this is because the law is not applicable to citizens moving into occupied territories on their own accord.
As the final word on the subject, note how the Geneva Convention clause does not demand that the 'Occupying Power prohibit or block any attempts by its own civilians to move into occupied territory'.
Oslo Agreement
We will now switch to legal arguments from the pro-Israel side.
The crux of the Oslo argument in favor of settlements is as follows: The Oslo Agreement, signed between Israel and the Palestinians, was intended to provide a final framework for addressing all grievances, even if some issues were left for future negotiations. Since the Oslo Agreement did not explicitly forbid settlements during its initial stages, and Area C was designated to be under Israeli control until a future unspecified date, therefore settlements in Area C are legal, at least until further stages and agreements are reached.
Some may argue that an agreement does not override Geneva Convention protections for civilians (as well as other human rights). First, this assumes these protections are being violated, whereas settlements on vacant land do not even approach a violation of these rights. In addition, Article 7 explicitly states that these protections only apply 'except where express provisions to the contrary are contained in the aforesaid or in subsequent agreements, or where more favourable measures have been taken with regard to them by one or other of the Parties to the conflict.' Therefore the Geneva Convention does allow for agreements to override protections.
Incidentally, the Oslo accords state that 'neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip prior to the conclusion of the permanent status agreement'. Contrary to Palestinian arguments, it is clear that settlements do not alter the status of the territory any more than laying water pipes would. Structures are not permanent and do not affect the legal status of the land they occupy. In contrast, seeking UN recognition does change the status and they are therefore in breach of the agreement.
If settlements are illegal, then one could view the Oslo agreement as a piece of paper that says 'we will deal with compensation for the crime Israel has committed later'. Except that the legality of settlements is exactly the issue in question and if Palestinians implicitly agreed to them, they are no longer illegal.
One potential large issue with this argument is that it may not account for settlements established before the Oslo Accords. A lawyer might argue that the agreement does cover these earlier settlements, as it was intended to address all past grievances. But I find this to be very difficult to accept as there were was no explicit approval of settlements.
As far as Israel sovereignty over Area C is concerned, this does not necessarily prove that Israel has the right to build new settlements, since the Oslo accords explicitly referred to the future transfer of sovereignty.
The biggest issue with this argument, however, is that even if settlements were not explicitly forbidden, it could be argued that they were implicitly forbidden. Settlements could easily be perceived as Israel acting in bad faith. It's like a business agreement with an investor who promises to provide his offices for use in a future date, but, in the meantime, converts his offices into warehouses. Such actions don't need to be explicitly prohibited. The fact that Palestinians objected orally to settlements proves this point further.
A counter-counter argument, however, is that, as opposed to the above metaphor, settlements were already being established even before Oslo, and Oslo did not state that this must stop at this early stage, which implicitly means Israel has been permitted for now to continue what it was doing at that time. In addition, as I have previously argued, settlements do not present an obstacle to peace. Land swaps could be offered that would compensate the Palestinians, or alternatively, settlements could be uprooted by Israel if push comes to shove, as they were in the past. Therefore it is not the case that settlements signify Israel is acting in bad faith. Oslo did not state that all land must be returned in the future, merely that negotiations for land borders would occur.
Despite this final argument, I feel that this argument is a very weak one because of the aforementioned problems, and it is a difficult argument to make, though a lawyer may find fault in my arguments. My view is that these specific arguments don't work for either side as both sides have points in their favor. In my view, Oslo neither allows nor disallows settlements and answers need to be sought elsewhere. In the context of Oslo, one could argue strongly that, as a gesture of good faith, Israel should simply refrain from establishing new settlements to avoid provocation regardless of their legality.
However, debating the finer points of settlements under Oslo is secondary at this stage, as the Palestinians have clearly violated the Oslo accords by supporting terrorism, which is explicitly prohibited by the agreement and international law.
Oslo Agreement 2
A second, much more solid and straightforward argument based on the Oslo agreements does not attempt to justify settlements, but the occupation. During the initial stages of the peace process, the Palestinians explicitly agreed to grant Israel full control over Area C. This fact is indisputable. Therefore, any attempts by the UN to declare the occupation illegal directly contradicts and interferes with the agreement. Moreover, if the UN undermines a peace agreement, this also conflicts with UN Resolution 242 which calls for resolving disputes through peace agreements.
This argument is irrefutable, and is compelling in its simplicity and strength. The Oslo Accords clearly granted Israel sovereignty over Area C, a provision the Palestinians agreed to by signing the accords. By declaring Israel’s control over Area C illegal, the UN directly contradicts this agreement and thus undermines the peace process.
Jordan Agreement
Similar to the above argument, some people argue that the armistice and peace agreement with Jordan regarding the West Bank not only makes settlements legal, but may even allow for annexation.
To understand why this makes sense, consider the lesser known historical fact that Palestinians officially gave Jordan sovereignty over the West Bank twice:
The first time happened in the Jericho Conference of 1948, where Palestinians signed a document that contains the following clause: 'Palestine Arabs desire unity between Transjordan and Arab Palestine and therefore make known their wish that Arab Palestine be annexed immediately to Transjordan. They also recognize Abdullah as their King and request him proclaim himself King of new territory.' This fact may come as a shock to those that think Palestinians were always fierce about their national identity.
The second time was by the PLO in 1964 in their first official charter where they made the following little declaration: 'This Organization does not exercise any regional sovereignty over the West Bank in the Hashemite Kingdom of Jordan, on the Gaza Strip or the Himmah Area.'
Given that the Palestinians very clearly handed sovereignty over the West Bank to Jordan, and that Israel signed a treaty with Jordan accepting its current borders, therefore full sovereignty over the West Bank is now clearly in the hands of Israel.
Despite this seemingly solid presentation however, this argument has one fatal flaw: Jordan explicitly handed sovereignty back to the PLO in 1988 before Israel signed its deal with Jordan in 1994, therefore any deal with Jordan and any implicit or explicit agreement over the West Bank could not possibly include sovereignty.
All this assumes that Palestinians had sovereignty which they could hand over to Jordan in the first place. However, Palestinians never established a state, the international community never recognized one, and Palestinians rejected all partition plans, therefore Palestinians did not have sovereignty over the land and had none to give to Jordan. Jordan could not take it by force as that is illegal, and it did take the land by force by launching a war against Israel.
Oslo Jurisdiction
The above argument from Oslo attempted to argue for the legality of settlements, but there is a different, more specific technical argument that makes use of another clause in the Oslo agreement:
In the Oslo II Interim Agreement, Article XVII covers jurisdiction. This Article explicitly states that jurisdiction over Area C, Israeli settlements, and all Israeli citizens falls under the authority of Israel (until jurisdiction is gradually transferred to Palestinians in the future). What this means is that the UN cannot judge cases of alleged crimes performed by Israelis on Palestinians in the West Bank, since Palestine agreed it has no jurisdiction over Israelis. Despite the fact that Palestine currently has non-member observer state status in the UN and is a party to the Rome Statute, and despite the fact that the ICC can judge crimes performed by foreign nationals on member states, the argument is that the Oslo agreement overrides this. I cannot comment on the legal merits of this argument, but I understand that there is no consensus on this and it depends on the interpretation of legal priorities of the Statute.
(Note that this argument is in addition to the argument of complementarity, which says that the ICC does not have jurisdiction over crimes where local courts are prosecuting the case. In other words, the ICC cannot interfere if Israel is handling the case in its own courts, regardless of the issue of jurisdiction in the Oslo agreements.)
Settlements are Military
In the 1970s, some Israeli leaders temporarily used the argument that settlements were military necessities, implying that they served as a first line of defense in the event of an attack, presumably because settlers were armed. Alternatively, they served strategic goals for control over key areas in the territories. In which case the settlements could be classified as military installations, which are permissible under the laws of occupation.
Since then, this rationale has persisted, not as a legal argument but within segments of Israeli settler society as a social justification for the settlements.
Frankly, this argument is a horrible one on several levels. First, defending the land by putting women and children on the front line is a terrifying idea. The fact that they moved there voluntarily without the government's pressure does not make this any more palatable. Second, legally, if the argument held, it would mean that the settlements are legitimate military targets. It would also mean that settlements, as military installations, should all be dismantled once the occupation ends.
Thankfully, this argument was largely discontinued as a legal justification and holds no legal validity. Civilians in family homes with firearms are not equivalent to military installations, just as off-duty soldiers are not considered active combatants under international law.
Jewish-Owned Settlements
One neglected historical fact is that several Jewish settlements in 'Palestinian' territories were privately owned by Jews before 1948. These settlements were taken by Arabs by force during early riots or the 1947-8 wars. Consequently, these properties still belong to Jews today, regardless of the current political boundaries. Many of these settlements were re-established after 1967, yet the international community absurdly labels them as new illegal settlements.
While privately owned land does not equate to sovereignty, even if Palestinians had sovereignty, they would still face the reality that this land is privately owned by Jews. They would need to either allow Jews to live peacefully on this land or provide compensation for it.
Some examples within Judea and Samaria AKA the West Bank: Gush Etzion, a group of villages founded in 1943, Kfar Etzion in 1927, Neve Yaakov in 1924, Atarot bought in 1912, Kalya in 1929, and others.
This argument obviously doesn't apply to all settlements in the region, but the outrageous efforts to define even these specific settlements as 'stolen' and illegal are contemptible.
Perennial British Mandate Rights
The British Mandate (in Article 6) explicitly granted Jews the right to establish settlements anywhere in Palestine. Based on this, an argument could be made that since all subsequent partition plans failed and hold no legal standing, and since the League of Nations and the UN (in Article 80) explicitly agreed to uphold rights granted by existing international instruments, this right to establish settlements remains valid until today. Additionally, as noted earlier, the Oslo Accords did not explicitly cancel these prior agreements.However, several issues cast doubt on the validity of this argument:
Survivability: While the UN committed to uphold rights granted by the Mandate, the Mandate itself was terminated in 1948. Why would rights granted under the framework of a temporary Mandate outlive the Mandate? This would depend on the nature of the rights and the conditions under which they were granted. It is plausible that the UN’s obligation to uphold some of these rights may have been limited to the duration of the Mandate. Furthermore, it could be argued that some rights were fulfilled and subsequently ended even during the Mandate’s existence. For example, the 1949 White Paper made this argument with regard to Jewish immigration rights.
To support this notion, consider the following difficulty: The Mandate granted the right to establish settlements with some limitations ('under suitable conditions') subject to regulatory oversight by the Mandate. For example, settlements were restricted if they prejudiced the rights of the non-Jewish population or if the land was required for public purposes. How would these conditions that are dependent on Mandate regulation be enforced once the Mandate no longer exists?
UN Resolution 242 explicitly called for a land-for-peace arrangement. Until such an agreement is reached, the argument could hold, as the resolution did not cancel previous rights nor declare the occupation illegal. However, the resolution clearly indicates that the right is no longer absolute since some land would have to be traded for peace.
The strongest argument against this claim is that the right to settle the land would depend on sovereignty or an internationally recognized mandate to administer and settle the land. If Israel has no sovereignty over these territories, how could it settle it?
Perennial British Mandate Rights 2
A second variation of the previous argument was pioneered by Howard Grief in his book 'Legal Foundation and Borders of Israel' and championed by the Levy Commission report and is popular amongst settlers. This variation concerns Israel's right to sovereignty over all of Palestine rather than the right to settle it. The Balfour Declaration, San Remo Resolution and British Mandate all promised and enacted 'the establishment in Palestine of a National Home for the Jewish people'. It made no such promise to Arabs. In fact, it deliberately excluded them from this right. According to this interpretation, these words are understood to grant Jews the exclusive right to statehood and sovereignty over all of Palestine. And, as with the previous argument, the UN perpetuated this right in their charter, seeing as all partition plans were rejected and have no legal standing.
This second argument faces very strong challenges of its own:
Historical evidence strongly supports the notion that the Balfour Declaration was deliberately worded ambiguously, allowing for multiple interpretations. This ambiguity allowed the British to fulfill their promises to both Jews and Arabs while also addressing opposing views of political leaders during the negotiation of the Mandate's terms. A 'national home' could refer to something other than a sovereign state and was intended to allow for this alternate interpretation as needed. In other words, it was the lowest common denominator upon which they all agreed, but it allowed individuals to read into it what they will. For example, in a letter from Vansittart to Lord Cruzon, he wrote: '[The French government] had agreed to a Jewish National Home, not to a Jewish State', proving that the British clearly did not consider 'home' to be synonymous with 'state'. Despite this, there are dozens of quotes from letters, minutes, and official statements to support both viewpoints, proving that leaders' intentions varied. We could provide extensive documentation to support either viewpoint. Given the evidence for multiple interpretations and intentions, none holds greater validity, and I don't see how even a court with relevant jurisdiction could render a definitive decision.
The bottom line, however, is that the wording was carefully chosen as a compromise to address views that opposed committing the Mandate to a Jewish state. While some leaders undoubtedly and explicitly supported a Jewish state, the final legal phrasing did not reflect this and this is what became the official text. Since the phrasing was explicitly designed to conform with those opposed to a state, it could be strongly argued that the Mandate was not legally obliged to establish one. In other words, only the compromise has legal standing.
This bottom line did not preclude the possibility of establishing a Jewish state in the future. If the question of Arab self-determinism were addressed with the creation of a state, it would be impossible to disregard Jewish self-determinism towards the same goal. Nonetheless, such matters were left for future negotiations, and the Mandate itself was not legally committed to such a goal (beyond being committed to the right of self-determinism due to universal law).
Case in point, in the 1939 White Paper, the British explicitly stated that the promise of a national home had already been fulfilled despite the absence of an Israeli state, officially forcing an interpretation unfavorable to Israel. Although this interpretation was widely criticized as a violation of the Mandate, even by British and US officials, the White Paper became official policy.
Even if the intention behind the Declaration was to establish a Jewish state, there was no explicit promise that it would encompass all of West Palestine. The wording of 'in Palestine' instead of 'of Palestine' was also deliberately ambiguous. Thus, even if evidence shows that establishing a Jewish state was the original intent, this distinct issue would still need to be addressed. This is the primary issue with this argument.
In 1922, the Churchill White Paper clearly articulated British intentions, reinforcing the objections outlined above. While it affirmed full support for a 'Jewish national home,' it emphasized that this did not mean 'the imposition of a Jewish nationality upon the inhabitants of Palestine as a whole.' Instead, it defined the national home as the 'development of the existing Jewish community' so that it could 'become a centre' for Jews, facilitated through administrative support and immigration. Although the document mentioned plans for future 'self-government,' this was not intended to be a Jewish government imposed on the entire region, but rather some other arrangement, possibly shared governance or partition.
The Balfour Declaration stated that 'nothing will be done that might prejudice the civil and religious rights of existing non-Jewish communities.' Given that self-determination is a recognized right, and no state had yet been established in Western Palestine, it could be argued that this implied a partition plan. Indeed, several partition proposals were made during the Mandate, proving their intent. Nevertheless, the wording was deliberately limited to 'civil rights', as evidenced by debates at the San Remo conference over whether to include 'political rights'. The final word on this issue comes from Balfour himself who wrote to Lloyd George in 1919: '...in the case of Palestine we deliberately and rightly decline to accept the principle of self-determination. If the present inhabitants were consulted they would unquestionably give an anti-Jewish verdict.'. In other words, self-determination for Arabs was deliberately excluded for the same reason argued in a previous section: That it would be used to override the same Jewish right. In which case, this specific phrase does not present a challenge to the claim in this section.
Howard Grief also argued that since the creation of 'Palestine' was based exclusively on the Balfour Declaration which promised only a 'national home for Jews', both entities were therefore synonymous and therefore occupy the same territory. However, as demonstrated, this argument hinges on intentions held by some leaders that, after compromises in negotiations, were not reflected in the final text. In fact, the 'national home' was established gradually, following the formation of 'Palestine', clearly distinguishing the two entities. Many of his arguments overlook the possibility that a 'national home' could simply mean a Jewish-friendly home throughout all of Palestine under the Mandate, with the potential for a future state in part of the territory. The home was guaranteed, the state was not. Given the need to facilitate the return of many Jews to their homeland and protect them as they built a stronger community, emphasis and priority were placed on establishing their 'national home' from the outset. However, this priority and special attention do not necessarily imply exclusive sovereignty. Additionally, some of his other arguments overlook the fact that intentions are irrelevant if they are not reflected in the final text after negotiations. Compromises, last-minute changes, and final settlements hold legal validity. Some leaders definitely had more ambitious goals in mind, but they did not necessarily achieve them after negotiations. Therefore, it is the text that counts.
In summary, considering the numerous historical changes and events since the Balfour Declaration, this approach raises several issues, rendering these two arguments highly questionable and vulnerable to legal challenges. The ambiguous wording of the Declaration adds additional challenges, and numerous official British statements weigh heavily against these arguments. While the arguments are not without merit based on a loose reading and on the declared intentions of some leaders, the contextual difficulties and strict reading of the text allow for unfavorable judicial rulings.
Miscellaneous
This section includes miscellaneous incomplete arguments as well as important questions worth considering. This will be followed by a group of sections that address these questions:
In the previous section, two arguments were presented regarding the possibility of British Mandate rights surviving all subsequent changes and remaining the sole valid legal framework. However. if these arguments are not valid, the obvious question is, which framework applies de jure in the West Bank, given that no Palestinian state has been established and all proposed plans and frameworks were rejected? A safe guess is that the Oslo Accords have the strongest claim, since the Palestinians actually signed that one, and any legal argument relying on the British Mandate or Resolution 242 would be superseded. But what legal framework governs until the Oslo process is completed, especially regarding settlements? It is questions such as these that lend weight to the Israeli position that the legal status of the land is 'disputed'.
Given that the British left without establishing any states, and the UN partition plan of 1947 (a non-binding resolution) was rejected by Palestinians, a question may arise as to how the State of Israel has international legal standing. Obviously, it was primarily the majority vote in the UN that recognized the State of Israel, which in turn was based on the historical sovereign claim to the land as well as tenancy in the region for the past 3500 years, combined with a de facto Jewish sovereignty arising from the ashes of the decolonization project in Palestine and the fact that Israel was established without conquering land through war. It is only the land earmarked for Palestinian use and acquired through a war of self-defense that is the problem (see 'Annexation Via War').
Although the above argument from war seems to nullify claims that this disputed territory should be automatically included in Israel, this isn't necessarily true. What about the short time before the war started? In fact, what makes this a war between states given that only one state was established? What if, legally and conceptually, it was an insurrection? If the Palestinians rejected the partition and established no state, who actually has sovereign control over the disputed sections of the territory? Can a territory that has no sovereign be occupied? Several possible responses to these questions will be presented below.
Competing Claims
This argument is my own combination of several historical facts, each of which is well-supported. It may have far-reaching but subtle implications:
First, there is no such thing as 'Palestinian land' in a historical sense because there has never been a Palestinian sovereign state, only land designated for a future Palestinian state. Therefore, the term 'Occupied Palestinian Territories' is misleading. See the introduction for more details on this.
Israel has a historical sovereign claim to all of Palestine while Arabs have a tenancy claim to parts of it. These are two valid competing claims for some of the same territories. Until negotiations and agreements resolve these competing claims and establish borders, the land is 'disputed', not 'Palestinian'.
Various failed attempts have been made to establish a Palestinian state, each time proposing different borders. The exact borders and extent of any potential Palestinian state remain fluid and undefined. This means that the same piece of land may have been earmarked for either Palestine or Israel in different partition plans. Consequently, one cannot definitively identify specific land as 'Palestinian' until an agreement is reached.
While negotiations generally agreed to start with the 1967 armistice borders as a reference point, this does not mean the 1967 borders are established, internationally-recognized, agreed-upon borders of a future Palestinian state. It merely means they are a starting point for negotiations. In armistice agreements between Israel and Arab States, both sides explicitly agreed that armistice lines would not be considered officially recognized borders.
Resolution 242, which is widely accepted, calls for the withdrawal of Israeli forces from some territories occupied in 1967 in exchange for peace, not a blanket return of all land. This further bolsters the above argument that the borders of Palestine were not conclusively defined even by the UN and must be settled via peace negotiations.
Therefore, given all of these facts, the territories remain disputed until a final peace agreement is reached. The Oslo agreement, so far, remains an interim agreement regarding borders, and doesn't count. This conclusion does not grant new rights to either side over the disputed territories, nor does it allow Israel to annex territory, but it does call into question the label of 'occupied territories', and it definitely refutes the contention that Israel is occupying Palestinian territory. At worst, it means Israel is occupying disputed territory and occupied law applies until an agreement is reached. At best, it means Israel has temporarily taken land with no sovereign, land which could eventually be officially recognized as part of Israel through future negotiations and deliberations.
At a minimum, the UN is violating international law by labeling the area 'Occupied Palestinian Territories,' as this clearly prejudges the outcome of the dispute. The UN often condemns Israel for actions it claims undermine future negotiations and bias the outcome, yet, hypocritically, it is the UN itself that is preemptively deciding the issue and prejudicing the case.
Occupation Requires a State
One legal argument by Eugene Kontorovich, claims that there can be no occupation if there is no sovereign state to occupy.
We could counter claim that people do not need a state and sovereignty to be protected by Geneva Convention laws. However, note that this argument is not declaring that they deserve no protection or rights, only that there can be no legal status of occupation. As to the legal consequences of such a definition, I shall leave that to the lawyers. But this seems to imply, at the very least, that Geneva Convention occupation laws (such as the one about population transfer) do not apply. The status of the territory itself seems to remain unknown, in legal limbo, or in an interim status.
This argument isn't an invention, but is based on a precedent case: 'Cession of Vessels and Tugs for Navigation on the Danube'. Here is the relevant section:
'Articles 46 and 53 are contained in Section III of the Regulations, which Section is entitled 'Military Authority over the Hostile State' and the various articles in that Section make it clear that the Section is intended to apply to military authority over hostile territory that is actually placed under the authority of the belligerent army. Therefore, the letter of the provisions quoted does not apply in the case of the seizures by Roumania, which took place in Roumania and it is doubtful whether it applies to the seizures of vessels now in the possession of Serb-Croat-Slovene Kingdom, because it is doubtful whether the territory in which the vessels were seized can be regarded as hostile territory, in view of the facts that the dismemberment of the Austro-Hungarian Monarchy had already begun, and that the territory in question, as the result of events then in progress, was already falling away from that sovereignty, with a view to union with Serbia, and shortly afterwards was united with Serbia. It is also doubtful whether the Allied Army in the peculiar circumstances existing can be regarded as an army of occupation at the time of the seizures.'
Note that the segments in italics refer to land that had no sovereign at the time of seizure, having fallen away from the dismembered Monarchy at the time. The ruling explicitly questions whether this can be called an occupation. Thus, comparisons can be made to territory which became detached from the Ottoman empire and the British Mandate, and which was not yet attached to any sovereign state. I do have questions as to whether a case from 1921 can be applied after changes to international law post-WWII, but I shall leave such technical questions to the lawyers.
Some may argue that Jordan had sovereignty over the West Bank in 1967 seeing as the Palestinians handed it to them (see 'Jordan Agreement') which would define these as occupied territories according to this rule. On the other hand, Palestinians had not established a state and sovereignty over the land so how can they transfer these to Jordan? In any case, since the peace deal with Jordan in 1994, any potential state of occupation based on Jordan's sovereignty has obviously ended. In addition and as mentioned before, Jordan handed 'sovereignty' back to the Palestinians in 1988, which would mean we are dealing with a non-sovereign entity again.
The fact that Palestine achieved non-member observer state status in the UN in 2012 may change this. While the laws couldn't possibly be applied retroactively to actions performed by
Israel before 2012 given the status of the territories at the time,
they could be applied to ongoing actions (or lack of actions) existing since 2012. Nonetheless, this non-member status of 2012 did not give them 'sovereignty' therefore even this is questionable.
As this is purely a technical and legal argument, I cannot evaluate it using common sense, so I shall leave it at that with these many question marks. At the very least, what this proves yet again, is that this issue is far from simple.
High Contracting Parties
A variation on the previous category of argument was championed by Meir Shamgar in 1977-82 (see 'Military Government in the Territories Administered by Israel 1967–1980'), and relies on the relatively more modern Fourth Geneva Convention to make its case.
In international law, 'High Contracting Parties' (HCPs) refers to entities, typically states that have a government and exercise some control over their territory, and, most importantly, are recognized internationally as actors capable of entering into treaties, such as the Geneva Conventions. For example, Palestine did not qualify as an HCP during and after the Oslo Accords because it lacked broad international recognition (as well as full sovereignty). However, in 2012, it became eligible as an HCP when it was granted non-member observer status at the United Nations despite still lacking full sovereignty, and subsequently acceded to the Geneva Conventions. Jordan, by contrast, has been both a sovereign state and internationally recognized since 1950.
In 'Article 2 - Application of the Convention' the scope of the Geneva Convention treaty is defined as follows: Obviously, only HCPs that have ratified or accepted the provisions of the Geneva Convention are relevant, but the article also limits the scope to either armed conflict between Parties, or to occupation of 'territories of a High Contracting Party'. Since the territories in question were not under Jordanian and Egyptian sovereignty (see 'Jordan Agreement'), and since Palestine was not a HCP until 2012, the territories in question are obviously not covered by the treaty. Therefore, Israel cannot be legally criticized under the Geneva Convention for violations, especially those related to occupation.
This does not absolve Israel from the moral obligation to act humanely and respect rights; it simply means the Convention's provisions, especially the ones pertaining to occupation, do not apply.
Critics of this argument point out that:
As opposed to the quoted second paragraph, the first paragraph in Article 2 does not limit the scope to 'territories of a High Contracting Party'. In other words, it may involve any territory, including territory over which there is no sovereignty. Although it only explicitly mentions armed conflict, the wording 'war or any other armed conflict' could include occupation. Shamgar argued at length against this interpretation by analyzing every word in the paragraph. It would be prudent to conclude that the wording is ambiguous and inconclusive. (However, the first paragraph also limits the scope to two High Contracting Parties. See below why this matters.)
Other provisions in the Convention such as Article 3 and Article 4 extend protection to persons that 'are not nationals of the Occupying Power', or they mandate humane treatment 'in all circumstances', implying that the protection is universal.
The Geneva Convention's overarching goals are humanitarian rather than territorial, aiming to protect all individuals regardless of their status.
(Note that this interpretation of the Geneva Convention could also apply against the previous section and argument by Kontorovich which made use of a precedent from 1921. This is because the 1945 Convention would presumably override a case from 1921.)
Before we proceed with refutations and counter-arguments, a critical question must be answered: Who is the second Power in the case of the West Bank and Gaza: Egypt/Jordan, or Palestine? Reading Shamgar, one gets the impression that he only considered Egypt and Jordan. It’s not surprising he did this, as even the Palestinians at the time considered themselves under Jordanian sovereignty. This explains why he placed so much emphasis on the expression 'territories of a High Contracting Party'. Although Jordan is a HCP, the territories were not under its sovereignty, and that is why he relied on the wording in this phrase.
Conversely, I believe the correct interpretation is that while the Six-Day-War was fought between Israel and Jordan, Egypt, and other states, the subsequent occupation of the territories became a matter between Israel and the Palestinians. This distinction fundamentally alters how we should approach the Geneva Convention, as Palestine was not a HCP at the time. Take careful note of this, as it changes everything and forces us to focus on additional wording in the Convention beyond Shamgar's argument.
Based on this, we can proceed with refutations and a different reading of the Geneva Convention, as follows:
First and foremost, Article 4 'Definition of protected persons' explicitly states that: 'Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State... shall not be regarded as protected persons' etc. This very clearly contradicts the notion that the Geneva Convention is a universal 'humanitarian' treaty that protects all persons regardless of their status. The Convention itself explicitly excludes some persons from its protection.
Part II titled 'General Protection of Populations Against Certain Consequences of War' (which does not cover occupation law), defines protected persons more broadly within this section: 'The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality' etc. Note that Article 4 states that only Part II has this broader scope of protection. This proves that only specific sections of the Geneva Conventions apply universally.
Regarding the alleged 'universal' wording in other Articles: As Shamgar argued, Article 2 explicitly binds the Convention as a whole to its definitions. Therefore occupations and the persons within them would only be protected by law if the territories belonged to an HCP. Additionally, 'Non-nationals of Occupied Powers' does not necessarily imply that they are not Parties to the treaty.
Similarly, the protection to be applied 'in all circumstances' could simply refer to their circumstances, not their status. The simple fact remains that Article 4 explicitly limited the scope of protected persons, therefore this cannot be interpreted as a universal application
If the Geneva Convention is not a universal humanitarian treaty that applies to all persons regardless of their status, this lends much greater credibility to Shamgar's exclusion due to the status of territory.
However, an even stronger argument is available: We established that the second Power in the context of the occupation is Palestine. Palestine obviously was not a High Contracting Party at the time, therefore even the first paragraph in Article 2 could not apply to it, nor could it apply to the presence of Israel in the territories after Jordan/Egypt were driven out. Therefore occupation law cannot be applied to the territories according to the Geneva Convention.
The fact that Palestine became an HCP in 2012 only means that Israel can be criticized for actions after 2012. All settlements built until 2012 can not be criticized using occupation law.
Additionally, and controversially, I would argue that most of the Geneva Convention does not apply to two-sided conflicts where one side is not a party to the Convention. This is strongly supported in the language of Article 2:
Paragraph one limits the scope to armed conflicts between 'two or more High Contracting Parties'.
Paragraph two limits occupation law to 'territory of a High Contracting Party'.
Paragraph three explicitly refers to cases where one party is 'not be a party to the present Convention', and states that the remaining 'Powers who are parties' (plural) 'thereto shall remain bound by it in their mutual relations'. In other words, if there are three or more powers, and one of them is not a party, then the remaining two must abide by the Convention. But if there are fewer then two remaining, there are no 'mutual relations' and the provisions of the treaty do not apply.
Nowhere does the treaty mention a single party having to abide by the Convention on its own.
The 1958 Commentary to the Convention (which is not legally binding), agrees with this interpretation and states: 'There could be no question of obliging a State to observe the Convention in its dealings with an adverse Party which deliberately refused to accept its provisions'. It then proposes that a paragraph should be added that would obligate a state under these circumstances, but only for a limited period of time.
I could speculate that the intention was to avoid a situation where one power must abide by restrictions while the other has no limitations and is bombing civilians by the millions, thus tying the former's hands and possibly causing their defeat.
A technical note: This whole section adheres to the original Geneva Convention which Israel has signed and ratified. Any counter arguments based on the amendments of Protocol I are not applicable, as Israel, along with several other countries, did not agree to this amendment..
Summary: This argument asserts that the Geneva Convention's occupation laws do not apply to the territories in question, rendering criticisms based on these laws invalid. Not only does Shamgar's reading of the Convention hold water based on the wording of the Convention, I propose that the Convention has been clearly misinterpreted and misapplied in even more extreme ways than Shamgar suggested. As someone without legal expertise, I recognize that I could be mistaken, but any rebuttal must contend with the seemingly unequivocal wording of the Convention itself.
Note that three separate arguments on a similar theme have been suggested in these last two sections. Compared to the previous section, this argument depends on the Palestinian status as a 'High Contracting Party', a status which changed in 2012. But the argument holds for settlements built before 2012. Alternatively, if Jordan is viewed as the second Party, the argument depends on the fact that Jordan had no sovereignty over the territories. In contrast, the previous section depends on the Palestinians lacking sovereignty, a status that persists even after 2012. (A potential fourth variation was presented by Yehuda Blum in 1968 'The Missing Reversioner', which depended on there being no occupied sovereign and therefore no possibility of reversal of the occupation. But the argument felt too obscure and unfounded to include here.)
Pre-Existing Borders
This final legal argument is by far the most interesting and compelling, and it potentially flips the whole narrative at the source, therefore we shall summarize it in slightly greater detail. The argument has been championed by several legal experts including Abraham Bell, Eugene Kontorovich, and Natasha Hausdorff, as well as by the current Vice-President of the International Court of Justice Julia Sebutinde, though I have added a few of my own comments and observations.
'Uti possidetis juris' is a principle of international law commonly invoked to establish the borders of newly independent states based on pre-existing administrative borders. It was first applied to over a dozen South American countries following the decolonization of these Spanish and Portuguese territories in the 19th century. This 'customary practice' eventually evolved into codified international law and was later used extensively in the 1960s and 70s for numerous African nations following decolonization, as well as during the breakups of Yugoslavia and the Soviet Union in the 1990s. The principle was even employed in a 1986 border dispute in Burkina Faso, long after the initial colonial breakup. In some cases, it has been applied well after a breakup to establish borders for secondary secessions, such as between Serbia and Montenegro in 2006, and between Eritrea and Ethiopia in 1993. Recognizing the long history and broad application of this law is crucial to understanding that it is not an obscure law; rather, it has been a cornerstone in nearly every modern case of decolonization, state breakup, secession, and the emergence of new states for at least 200 years. Israel should be no exception.
The argument goes as follows: After the breakup of the Ottoman empire during WWI, and the withdrawal of the British Mandate in 1948, only two internationally recognized states were established in the region of Palestine: Jordan and Israel. These two states fulfilled the respective claims and promises made to both Jews and Arabs living in the region. The Arab 'Palestinians' in West Palestine, however, did not establish a third state and rejected all proposed plans for one. Given that these were the only states that emerged, and given the existence of pre-established, stable, officially recognized borders between East and West Palestine under the internationally sanctioned British Mandate from 1920 to 1948, based on this law, Israel inherits these borders with Jordan and holds sovereignty over all of 'West Palestine' from 1948 onward. Furthermore, as the ICJ affirmed in 1992, this principle of international law rejects the idea of leaving parts of a territory without a sovereign; it applies to the entirety of the territory in question.
This means that Israel did not occupy Judea and Samaria, East Jerusalem and Gaza in 1967, it recovered these territories. It has no need to annex these territories since it has sovereign rights over these lands since 1948 when it gained independence and recognition. Therefore there is no occupation, and no annexation. In which case, occupation law does not apply, neither does the law against annexing land through war. Furthermore, all settlements are legal.
To bolster this argument note that subsequent agreements with neighboring states, Jordan and Egypt, reinforced these borders by officially confirming the boundaries established by the British Mandate.
One very important observation from history is that this law has often been applied even in cases where the right to self-determination was overridden, or when a new state held territory considered to be a part of another state. For instance, the majority of Russians in Crimea found themselves to be Ukrainian citizens due to the pre-existing borders of the Ukrainian Soviet Socialist Republic, despite the presence of a Russian majority and military bases in Crimea. What this means is that Arabs in Palestine cannot use the right of self-determination, or the fact that they constituted the majority in some territories, to invalidate Israel's borders. As previously discussed, the right to self-determination can be implemented in various ways and does not necessarily require the creation of an independent state. Furthermore, peace with neighboring states is a prerequisite for self-determination.
The British Mandate of Palestine after WWI was not the only mandate of its kind, and many others faced comparable problems. Numerous mandates were established in the Middle East and Africa, often with internal disputes among various ethnic groups. Despite these issues, the borders set by these mandates were upheld as the official boundaries for newly independent states, overriding the self-determination of ethnic sub-groups and any prior failed negotiations. One notable example of many involves the Kurds in Iraq, whose self-determination was overridden by the mandate borders at the time of Iraq's independence.
One might argue against this claim by pointing out that there were several attempts to partition the territory of West Palestine and establish two additional states in the region, and therefore the dispute is over internal borders of West Palestine and not over the external borders with Jordan. Since there were no established borders between Israel and a potential Palestinian state, one cannot simply ignore the internal border dispute and have the external border with Jordan override the internal dispute. However, since Israel was the only state that emerged in 1948, it is the sole entity with a legal claim under this law, making the border with Jordan the only relevant boundary.
This law would not apply if there were an agreement stating otherwise. But all partition plans and proposed agreements, including the Peel Commission in 1936 and the UN plan of 1947 were rejected by Palestinians. Consequently, these plans remain as rejected recommendations and do not hold legal validity or standing.
In other words, if Palestine had either accepted the partition plan, or established a state in 1948 and been recognized by the UN, this law would be considered null and void, as the legal dispute would then be between two states over internal borders which did not exist prior. Thus, ironically, it was the Palestinian obsession with destroying Israel that was their own undoing. They were so preoccupied with killing that they failed to achieve the one thing that could have secured their sovereignty and invalidated Israel's claim to the entirety of the land.
Not only did the Arabs in Palestine not establish their own state, they did not even desire to establish a state, and declared so officially in 1964 in an agreement that handed sovereignty to Jordan. This declaration faced several issues: 1. The Arabs had not established a government, state, or sovereignty that was internationally recognized, unlike Israel. Therefore, they could not legally transfer sovereignty. 2. Jordan could not legally annex land in East Palestine as this would conflict with the principal of uti possidetis juris seeing as this would override established borders. 3. Furthermore, Jordan annexed land by use of force against Israel.
It is critical to understand that this claim based on borders does not preclude the possibility and desirability of establishing a Palestinian state in the region. This argument does not deny the Palestinians' right to self-determination or imply that Israel should not engage in negotiations to make this right a reality where possible. The fact that Palestine did not establish a state in 1948 does not mean they have forfeited their right to self-determination. In fact, for the sake of peace, Israel should and must engage in negotiations with Palestinians, provided that they are willing to pursue peace.
What this claim is saying is that, until Palestine is established as a result of negotiations, Israel has sovereignty over all of the land, therefore all settlements are legal. In the interest of peace, Israel could choose to forego its sovereignty over some of the land, depending on negotiations and practical prospects of peace.
Any future attempts at establishing a state of Palestine without an agreement would be legally problematic on many fronts: Such actions would be deemed illegal, as the international community would be transferring sovereign territory from Israel to a seceding state without a formal agreement. In addition, this would be encouraging more war, which is against the stated goals of the UN. Furthermore, there are no established administrative borders between Palestine and Israel with which they could apply uti possidetis juris. Internal administrative borders changed numerous times under Ottoman and British rule. Perhaps they could use Oslo areas A and B, or the Israeli wall and checkpoints as a border, but then Palestinians would get less territory than was offered to them after Oslo. The borders would have to be negotiated. Compare this to Crimea, where Crimea seceded from Ukraine based on a referendum and established oblast (Russian province) borders within Ukraine to support its legal claim, yet even that secession is highly contested and declared illegal by many states.
One potential counter-argument is that Israel is de facto treating these territories as occupied rather than sovereign land. This might potentially indicate that the territories were never officially recognized as Israeli sovereignty or that their status has changed.
Ironically, well-documented early Zionist ambitions to include all of Palestine (through diplomacy and land purchases) counter this argument. In addition, Israel has never officially defined its borders in government documents or armistice agreements for this exact reason, but also because the borders are often in flux and contested. Note that this effectively dismantles arguments based on either intentions or official declarations. While different Israeli leaders have had varying views, there is no official indication that Israel has forfeited its sovereignty over these territories.
That is, until the Oslo accords and the Gaza withdrawal of 2005, both of which involve Israel giving away land. In the case of Oslo, however, the agreement explicitly granted Israel sovereignty over area C until future negotiations. Area C contains almost all of the contested Israeli settlements and this argument would define them as legal until Israel agrees to transfer sovereignty. As far as Gaza is concerned, this does seem to be an abandonment by Israel for all intents and purposes, despite the fact that it was unilateral and no explicit official declaration was made.
The one remaining problem with this argument in Judea and Samaria, as far as I can see, is that Israel has applied occupation law to these territories, applying temporary laws to Israeli citizens living there, while not granting Israeli citizenship to local Palestinians. If Israel does indeed have sovereignty over Judea and Samaria, an argument could be made that apartheid is in effect in these territories.
Several counter-arguments can be made against this criticism: First, it can be argued that Israel is implementing the 'land for peace' principle outlined in Resolution 242 by maintaining a temporary status for certain territories to facilitate peace agreements, similar to its approach with Sinai before it was eventually returned under a peace agreement with Egypt. Since 1967, immediately after the territory was recovered, Israel has made multiple efforts to use Judea and Samaria in negotiations for peace agreements with Jordan and the Palestinians. Until a peace agreement is reached, Israel administers the territory in a manner similar to how the British and French administered their mandates, though under a different legal framework. In pursuit of future peace agreements, Israel applies Geneva Convention rules to the interim territory as implied by the UN resolution.
I cannot definitively address the legality of the above approach, but, since Oslo, everything becomes much clearer, legally speaking. The Oslo accords, to which the Palestinians agreed, explicitly formalized this arrangement, creating separate legal jurisdictions for Israeli and Palestinian residents in the region. Oslo also granted Palestinians the right to vote for their own governing body early in the process. Finally, one must also keep in mind that Palestinians do not seek incorporation into an Israeli state, unless the aim is to transform it into an Arab state. Therefore comparisons to apartheid are misplaced and have no legal or moral standing, especially since Oslo. If there are any legal issues of this kind, the combination of 'Uti possidetis juris' and the Oslo agreements resolves them.
The Malignant Neighbor
For our final bout, we will put aside all of the legal and historical complexities, including the last compelling argument regarding borders, and try to approach this from a simpler, human angle. Consider the following allegory:
Imagine you live in a house with a neighbor from hell. The neighbor's kids frequently play close to your house, kicking balls that smash your windows and furniture, even harming your children with flying glass and toys. You take away their ball and admonish them. You then give it back to their parents with a warning. They promptly give it back to their kids who immediately smash more of your windows. You overhear them talking and learn that not only are the parents not restraining and educating their kids, they are even encouraging them, teaching them that their neighbor is wicked and deserves any damage they can inflict.
This happens repeatedly. The next time, you refuse to return the toys. Your collection of confiscated toys grows. Your own kids see the confiscated toys and want to play with them. Do you allow your kids to play with the confiscated toys? Some may argue that keeping the toys is the only practical thing to do, but using them as if they were your own is morally wrong.
But now let us add a bit more complexity to the story. Imagine you recognize the toys as having been owned by your grandfather. These toys were stolen a long time ago, sold on from thief to owner, until they were eventually bought, legally, by your neighbor. You talk to a lawyer, and the courts rule that while the toys were indeed stolen, the statute of limitations has passed and the legal owner is now your neighbor. Furthermore, while the courts agree that the neighbor's kids are indeed misbehaving and you have a right to confiscate the toys in self defense, the courts would like to see you sit with your recalcitrant neighbor and reach an understanding. Ultimately, the toys must be returned to the neighbor, the legal owner. Towards this goal, an arbitrator is assigned to the case to try to reach an understanding.
Nothing changes for many years; in fact, things get worse. Next up, the neighbor gets angry that you are stealing his children's toys and takes you to court repeatedly. This and other similar absurdities escalate for years.
What goes through your mind when you deliberate on whether to let your children play with the confiscated toys? Knowing that the toys were once owned by your grandfather, do you give in to the strong and understandable temptation to let your children do whatever they want with them?
On the one hand, you feel that the toys belong to you in some sense, at least morally. On the other hand, legally, the toys belong to the neighbor no matter what his kids have done with them. (Even according to Jewish religious law, the toys would belong to him not based on time passed, but on the principle that, at some stage, the previous owner had given up on retrieving them). Practically speaking, if everyone had to return objects that, at one time, belonged to someone else in ancient history, the world would collapse.
Ultimately, no peace with the neighbor will be possible without returning at least some of the toys. It is true that, for now, the neighbor does not want peace and is actively pursuing conflict. But, ideally, the attitude should be that you are holding onto the toys for the hopeful day when he has a change of heart.
It would take a parent of very strong moral principles to deny their kids the opportunity to play with the confiscated toys under these circumstances. Nevertheless, I hold that it is the right thing to do.
This is my criticism of Israeli settlements in the territories. The occupation/confiscation is legal. It is also true that the PLO/parents do not want peace and the Palestinians/kids are near impossible to live with. For now, they do not deserve to have the territories/toys. It is also true that Israel/you have a valid historical claim to the toys, but that doesn't mean the toys are legally yours to do with as you please. You may sometimes overlook the fact that your settlers/kids play with the toys given the circumstances, but, assuming that the goal is peace with your neighbor in the future, there must be a reasonable limit to how far this is taken. It is not a matter of what your neighbor deserves, but a matter of principle.
Closing Arguments
Concerning aggressive Zionists and settlers: Israeli attitudes toward settling the land vary, as discussed in a previous article where 'aggression' was defined as a spectrum. Most Israelis and Zionists would support a two-state solution, provided that Palestinians convincingly renounce terrorism and agree to security guarantees and concessions. The real issue is that very few Israelis believe the Palestinians would genuinely renounce terrorism, which is why many oppose a two-state solution in practice at this time. While the remaining minority of Israelis (roughly 8-20%) oppose such a solution under any circumstances, they do not advocate for expansion through violence. Despite anti-Israel claims, only a very tiny minority seek territorial expansion through violent means. The article demonstrated this with the support of cross-checked poll data.
As to settler violence against Arabs: In most instances, this occurs as retaliation for violence initiated by Arabs. Retaliating as vigilantes directly against the individuals responsible, though illegal, is understandable. The real problem is when small groups of extremists engage in 'price tag' collective punishment. This practice is morally despicable, and the vast majority of Jews, including settlers, oppose such actions. Israel should do more to fight these criminals.
The aforementioned article also discussed religious objections to settlements and Zionism, whereas this article focused on legal and universal moral arguments. Our discussion centered on legal and moral issues concerning the Israeli government, rather than Israeli citizens.
This article first addressed the alleged occupation of Judea and Samaria AKA the West Bank, and Gaza territories. We presented arguments to show that, even if considered an occupation, it remains legal regardless of its duration. Almost all arguments criticizing Israel's behavior as an occupying power ignore the violent realities on the ground.
Additionally, we summarized many legal arguments for and against the legality of settlements in these territories. Most arguments were shown to have either fatal or questionable logical flaws. Some arguments appeared valid, though they dealt with specific issues such as UN jurisdiction, the UN undermining peace agreements, privately owned settlements, or the technical status of the occupation.
Two pro-Israel arguments continue to hold validity even after attacking them from different angles. The first argues against the definition of 'occupied territories' and disqualifies the applicability of Geneva Convention provisions to these areas based on several criteria. The second ('Pre-Existing Borders') is particularly notable and extreme in its implications. It not only asserts the legality of settlements but also claims full Israeli sovereignty over all of Palestine, rendering terms like 'occupation' and 'annexation' irrelevant.
Much like successive lines of defense in a war, several of these arguments can be prepared in defense of Israel. For instance, one might start by asserting that the territory rightfully belongs to Israel based on pre-existing borders. If this claim is unsuccessful, the defense can fall back to Israel's competing claim to the land, which should be resolved through negotiations. If that too fails, the focus can shift to the broader issue of applying the Geneva Convention's occupation laws, given the absence of a High Contracting Party or sovereign state to occupy. Finally, challenging the application of specific articles of the Convention (such as the prohibition of Population Transfer) can neutralize specific weapons of the opposing argument.
Given the complexity of the situation and the absence of compelling legal arguments condemning the settlements in these territories, at the very least, this should render the status of the settlements 'disputed' rather than 'illegal'.
Despite all this, and even if Israel's legal defense is successful, a peace settlement with the Palestinians is still necessary. If not for the sake of peace, or for the right of self-determination (a flexible right), then for the sake of practicality. Even if Israel legally holds sovereignty over all of Palestine, any sane Israeli should not want to govern these territories. Not only are many Palestinians that live there incorrigibly belligerent, violent and hostile, this would also mean Israel would cease to exist as a Jewish state with a Jewish majority. Maintaining sovereignty while preventing an Arab majority would require enforcing an apartheid-like system. Even if Israel were to implement a model similar to Puerto Rico where residents have no national voting rights, it would still need to prevent belligerent Palestinians from entering Jewish territories, altering the legal status of this model. Therefore, legalities aside, no matter how one views this situation, a peace agreement is essential. How this may be achieved was tackled in an earlier article.
In light of these observations, my stance mirrors the position presented in the previous section 'The Malignant Neighbor'. Even if Israel has sovereignty, the approach should be: 'We wish to live in peace with you as neighbors. We will hold most of these lands in trust for you until you demonstrate a genuine desire for peace. However, we may not hold these lands for you indefinitely.'
In the meantime until there is peace, given the aforementioned arguments that provide legal justification for settlements, I would argue that Israel should implement a compromise: Existing settlements in the territories, as well as cities that border the territories, should be allowed to expand to accommodate natural growth. After all, the exact borders are flexible and will be up for negotiation in a future date with potential land swaps. However, brand new settlements deep within the territories should be prohibited. There is still ample space in other areas for new settlements.
Settlements are not an obstacle to peace, as they can be uprooted, or land swaps can provide compensation. However, they should be limited as a matter of principle. Terrorism, however, is a glaringly obvious obstacle to peace.
In an ideal world, the UN would address the Palestinians as follows: 'We fully support your right to self-determination and would even support your claim to a sovereign state of your own. However, you have systematically refused to accept Israel as your neighbor and have consistently supported and encouraged terrorism for 100 years. As an international body committed to peace, we cannot support your claim until this is corrected. When you change your attitude and agree to security concessions, we will be here to pressure Israel to give you your state, settlements or not.' I can only imagine the shock waves if the UN ever dared to make such a reasonable statement.
To counter the lawfare that the UN and Palestinians keep lobbing at Israel, it is necessary to utilize and pursue legal arguments such as those explored here. The argument from pre-existing borders alone can serve as an Iron Shield and disarm most lawfare attacks. However, towards the ultimate goal of peace, Israel should behave as the principled adult in the room, and impose reasonable limits on settlements and settlers without blocking the natural growth of cities and settlements completely. While Israel has generally followed this approach since the Oslo Accords with very significant reductions in new settlements, it is not enough. Additionally, it must take stronger measures to effectively restrain extremist settlers.
In the introduction, I defined this topic as a complex legal question. But this is true only insofar as lawyer-soldiers are concerned and it has escalated to this point because lawfare is involved. They entrench themselves in the corridors of the UN, stockpiling resolutions in council silos, amassing footnotes in their arsenals, enriching citations until they reach critical mass. All the while, the UN is being used as a tool of the Palestinian war propaganda campaign, while they increasingly stray from their own charter's goals of peace. Whether they are unwitting or witting tools is a frightening question. They fixate on the trees rather than the forest, ignoring the rampant terrorism and hostility of Palestinians to push Palestinian rights in blatant contradiction of the broader UN mandate. For as long as the world insists on fighting for the rights of terrorists, the problem will not be solved. Laws designed to bring about peace are being used as weapons of mass destruction.
Ultimately, though, this boils down to a simple human problem. On one side we have a malignant Arab nation with 89% support for terrorists amongst civilians, a nation that refuses to acknowledge its neighbor's right to exist for over a hundred years. 30 years after signing Oslo and pretending to recognize Israel, its leaders even refuse to change its charter which calls for violence and still denies Israel's right to exist. On the other side we have a nation that mistakenly allows its minority militant elements to use this reality to justify unethical responses. Although these latter issues are nowhere near as extreme as the other side portrays, they are a problem nonetheless. In fact, these issues do not even pose a significant obstacle to peace; they are merely being used by Palestinians to justify their hostility. The proof is that Palestinian hostility predates the problematic settlements by decades. Nevertheless, these issues still need to be addressed and corrected.
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