Legality of Israeli settlements


Israeli settlements in the Israeli-occupied Palestinian territories of the West Bank and the Gaza Strip, as well as in the Syrian Golan Heights, are illegal under international law. These settlements are in violation of Article 49 of the Fourth Geneva Convention, and in breach of international declarations. In a 2024 advisory opinion by the International Court of Justice relating to the Palestinian territories, the court reaffirmed the illegality of the settlements and called on Israel to end its occupation, cease its settlement activity, and evacuate all its settlers.
The United Nations Security Council, the United Nations General Assembly, the International Committee of the Red Cross, the International Court of Justice and the High Contracting Parties to the Convention have all affirmed that the Fourth Geneva Convention applies to the Israeli-occupied territories. Numerous UN resolutions and prevailing international opinion hold that Israeli settlements are a violation of international law, including UN Security Council resolutions 446 in 1979, 478 in 1980, and 2334 in 2016. In 2014, 126 Representatives at the reconvened Conference of the High Contracting Parties to the Geneva Conventions declared the settlements illegal, as well as the International Committee of the Red Cross.
Israel disputes the illegality of its settlements, claiming that Israeli citizens were neither deported nor transferred to the territories, that the territory is not occupied since there had been no internationally recognized legal sovereign prior, and that the Fourth Geneva Convention does not de jure apply. However, all of Israel's arguments have been refuted by the ICJ's 2024 advisory opinion. Furthermore, the Supreme Court of Israel has repeatedly ruled that international law applies to Israel's presence in the West Bank.
The establishment of settlements has been described by some legal experts as a war crime according to the Rome Statute, and is currently under investigation as part of the International Criminal Court investigation in Palestine.

Background

Shortly after independence, the Israeli Supreme Court ruled that the fundamental principles of international law, accepted as binding by all civilized nations, were to be incorporated in the domestic legal system of Israel. In the aftermath of the 1967 Six-Day War, Israel occupied the Sinai Peninsula, the Gaza Strip, West Bank, East Jerusalem and Golan Heights. Theodor Meron, at the time the Israeli government's authority on the topic of international law and legal counsel to the Israeli Foreign Ministry, was asked to provide a memorandum regarding the status in international law of proposed settlement of the territories, which he subsequently addressed to the Foreign Minister Abba Eban on 14 September 1967. He concluded that short-term military settlements would be permissible, but that "civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention," adding that the prohibition on any such population transfer was categorical, and that "civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention." It follows from the presence on files of these notes, Gershom Gorenberg argues, that the Prime Minister at the time, Levi Eshkol, knew that Israeli settlements in the territories Israel had just occupied would violate international laws and that by that time Eshkol had been actively engaged in exploring the possibility of settling the newly conquered region. Meron's unequivocal legal opinion was marked top secret and not made public. Fifty years later, Meron reiterated his view.
The Israeli government proceeded to authorise the construction of military settlements for security purposes. They were built on the fringes of the territories, along the Jordanian and Syrian frontiers and along the edges of the Sinai Peninsula. Israel announced that it accepted Security Council Resolution 242 and was ready to negotiate with each Arab state on each element in that resolution. Abba Eban told George Ball Israel was willing to return "most of the West Bank" to Jordan. Egypt and Jordan demanded simultaneous negotiations and withdrawal, with Jordan's King Hussein suggesting that if negotiations did not achieve peace within six months or a year, the withdrawn Israel troops could reoccupy the West Bank and make a separate peace treaty with the Palestinians. Levi Eshkol informed Washington it would return Syrian and Egyptian territory in exchange for peace, but there was no mention of returning the West Bank, though secret talks with Jordan did take place over possible forms of accommodation between the two countries regarding it. In the meantime, with government permission granted, Kfar Etzion was re-established in September 1967, becoming the first civilian settlement to be built in the West Bank. During the 1970s, Israel's Supreme Court regularly ruled that the establishment of civilian settlements by military commanders was legal on the basis that they formed part of the territorial defense network and were considered temporary measures needed for military and security purposes. After Likud came to power in 1977, using land on the basis of the 1907 Hague Regulations, which implied a temporary nature of Israeli presence, was not employed anymore as the new government declared land in the West Bank "state land".
In 1978 and 1979 the Israeli Supreme court, prompted by the new government policies, ruled on two important cases that set out the requirements for Israeli settlement legality under international law. In Ayauub et al. vs. Minister of Defence, the Court determined that the Hague Conventions but not the Geneva Conventions could be applied by Israeli courts on land and settlement issues in the occupied territories. The following year the Court ruled on Dwikat et al. vs. the Government of Israel, outlining the Hague Conventions' limitations on Israeli land acquisition and settlements. Settlements, whether on private or public land, could not be considered permanent, nor could the land be permanently confiscated, only temporarily requisitioned. Settlements on private land were legal only if determined to be a military necessity; the original owner retained title to the land and must be paid rental fees for its use. Public lands' possession cannot be alienated, nor its basic character transformed.

Status of the territories

All areas in question were captured by Israel in the 1967 Six-Day War. Prior to 1967, no Israeli government claimed ownership over the West Bank, not even East Jerusalem. While most of the international community regard the West Bank as occupied, Israel calls them "disputed". The argument that Israel had a claim to the territories was first articulated after 1967 by Yehuda Zvi Blum and then adopted by Israel's Attorney General Meir Shamgar.
Israel has treated them in three different ways:
  • "East Jerusalem"—Jerusalem and its surroundings were envisioned as an international area under United Nations administration in the 1947 partition plan, which was accepted by the Jewish Agency but rejected by all Arab nations. In 1948, Jordan captured and annexed the eastern half of Jerusalem, while Israel captured and annexed the west. Following the Six-Day War in 1967, Israel annexed the eastern part, together with several villages around it. In 1980 the Israeli Knesset passed the Jerusalem Law claiming that "Jerusalem, complete and united, is the capital of Israel".
  • The Israeli Golan Heights Law of 1981 applied Israel's "laws, jurisdiction and administration" in the Golan Heights, captured from Syria in 1967. Although the law did not use the term, it was considered by the international community and some members of the Israeli opposition as an annexation
  • The Gaza Strip and West Bank form part of the areas offered by the UN to a prospective Arab state of Palestine in the Partition Plan, which was rejected by the Arabs. From 1948 until 1967, The Gaza Strip was occupied by Egypt and the West Bank was annexed by Jordan. Together with the annexation of East Jerusalem mentioned above, Jordan's annexation of the West Bank was not recognized internationally. Since 1967, the West Bank has been under military occupation. Gaza was also occupied in 1967, but after Israel's unilateral disengagement in 2005 the status has become disputed, with conflicting opinions on whether or not the occupation has ended.
The Jerusalem Law and the Golan Heights Law have both been deemed illegal by the UN Security Council, and are not recognized by the international community. The United States abstained from the vote on Resolution 478 and the U.S. Congress passed the Jerusalem Embassy Act, altering key passages to avoid a presidential veto, recognizing Jerusalem as the capital of Israel. The provisions of the law to implement a move of the embassy can be deferred or blocked by the exercise of an Executive waiver. The U.S. views that parts of Jerusalem are not in Israel and the official U.S. position is that the status of Jerusalem must be resolved in negotiations. The EU views that Jerusalem is a corpus separatum, and the United Nations considers Israel's proclamation of Jerusalem as its capital to be "null and void".
Israel has signed peace treaties with Egypt, and Jordan ; there are currently no peace treaties governing Israel's borders related to the West Bank, the Gaza Strip, and the Golan Heights.
Defining The International Criminal Court's Rome Statute provisions about transfer of civilians was complicated by Israel's position, since Israel felt it was being targeted. As formulated it states that one type of offence occurs when the perpetrator transfers "directly or indirectly" a portion of its own population into an occupied territory, stipulating that "transfer" must be understood "in accordance with the relevant provisions of international law." Israel initially voted against the Statute because of this passage, but later, in December 2000, signed it, only to declare in June 2002, that it had no intention of ratifying it.