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Israeli Settlements Are Not Illegal

(Tablet) Eugene Kontorovich - Judea and Samaria are those areas of Mandatory Palestine that were ethnically cleansed of Jews by the Hashemite Kingdom of Jordan in 1948. Many take the position that the Jewish state must enforce a ban on Jewish residence perfectly congruent with the zone of Jordanian ethnic cleansing, until such places might come again under the control of an Arab government committed to "not a single Israeli." Such rules are applied nowhere else in the world. The U.S. formally adopted the legal view that Israeli settlements are not illegal in 2019 and the Biden administration has not retracted it. This should not be surprising, because no U.S. government has taken the position that settlements are illegal. The arguments for lack of occupation focus on the lack of Jordanian sovereignty over the territory before 1967. The Danube Navigation case held that territory that was not under the sovereignty of any state could not become occupied. That means that the West Bank, which was not under Jordanian sovereignty, could not be deemed occupied. Danube Navigation was decided before 1967, and would thus reflect the law as it was when Israel took control of the territories. Moreover, one cannot occupy one's own territory: If Ukraine retakes Crimea from Russia, it will not be an occupation just because it had long been administered by Moscow. Discussions of Art. 49(6) of the Fourth Geneva Convention invariably arise only in the context of Israel alone. Prior to 1967, the rule now directed against Israel had never been applied anywhere. To demonstrate that Israeli settlements are illegal, one needs to show that comparable conduct by other countries has been regarded as illegal. But when we look for the alleged rule applied elsewhere, we find nothing. No UN body has ever accused any other country of violating Art. 49(6). From Morocco in Western Sahara to Indonesia in East Timor, from Turkish-occupied northern Iraq to formerly Vietnamese-occupied Cambodia, prolonged occupations of territory have almost always seen migration from the territory of the occupying power. Their demographic impact typically dwarfs that of Jewish settlers in the West Bank. Yet the ICC has specifically declined to find that such movement constitutes a war crime. The conduct of other countries has never been regarded as illegal. Indeed, the alleged prohibition is Israel-specific. What is clear is that in the late 1960s, the moment that mattered, nothing in international law demonstrated that Israel must engage in the unprecedented action of not allowing its Jewish population to live in the areas from which they were expelled. The writer is a professor at the George Mason University Law School and director of its Center on the Middle East and International Law.
2023-08-17 00:00:00
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