The Illegal Settlements Myth (David M. Phillips)

Excerpts from Commentary:

The conviction that Jewish settlements in the West Bank are illegal is now so commonly accepted, it hardly seems as though the matter is even open for discussion. But it is. Decades of argument about the issue have obscured the complex nature of the specific legal question about which a supposedly overwhelming verdict of guilty has been rendered against settlement policy.

Though routinely referred to nowadays as “Palestinian” land, at no point in history has Jerusalem or the West Bank been under Palestinian Arab sovereignty in any sense of the term.

International-law arguments against the settlements have rested primarily upon two sources. First are the 1907 Hague Regulations, whose provisions are primarily designed to protect the interests of a temporarily ousted sovereign in the context of a short-term occupation. Second is the 1949 Fourth Geneva Convention, the first international agreement designed specifically to protect civilians during wartime.

Article 46 of the Hague Regulations bars an occupying power from confiscating private property. And it is on this point that the loudest cries against the settlements have been based. Israel did requisition land from private Arab owners to establish some early settlements, but requisitioning differs from confiscation (compensation is paid for use of the land), and the establishment of these settlements was based on military necessity. In a 1979 case, Ayyub v. Minister of Defense, the Israeli Supreme Court considered whether military authorities could requisition private property for a civilian settlement, Beth El, on proof of military necessity. The theoretical and, in that specific case, actual answers were affirmative. But in another seminal decision the same year, Dwaikat v. Israel, known as the Elon Moreh case, the court more deeply explored the definition of military necessity and rejected the tendered evidence in that case because the military had only later acquiesced in the establishment of the Elon Moreh settlement by its inhabitants. The court’s decision effectively precluded further requisitioning of Palestinian privately held land for civilian settlements.

After the Elon Moreh case, all Israeli settlements legally authorized by the Israeli Military Administration (a category that, by definition, excludes “illegal outposts” constructed without prior authorization or subsequent acceptance) have been constructed either on lands that Israel characterizes as state-owned or “public” or, in a small minority of cases, on land purchased by Jews from Arabs after 1967....

One of B’Tselem’s most frequently cited publications argues that Ma’aleh Adumim, the largest Israeli settlement on the West Bank, several kilometers to the east of Jerusalem, sits on territory taken from five Palestinian Arab villages and therefore amounts to an expropriation. But because the villagers lack registered title or even unregistered deeds, B’Tselem argues that the nomadic Jahalin Bedouin, who intermittently camp and graze their livestock on land to the east of Jerusalem going down to the Dead Sea, have effectively earned the right of title to the land because of their prescriptive use.

Perhaps. But it is far from clear how a Bedouin right to the land has anything to do with the legal claim of Palestinian villagers 60 years earlier. B’Tselem offers this rather astonishing argument: “They grazed on village land in accordance with lease agreements (at times symbolic) with the landowners—including landowners from the villages of Abu Dis and al’Izariyyeh.” At times symbolic!

In other words, only Palestinian Arab villages may be constructed and expanded on the land because Bedouin have occasionally grazed their flocks thereon pursuant to the implied consent of Palestinian villagers. But those villagers only have a right to the land because of its use by the Bedouin!

The sophistry here masks a deeper issue. Aside from its circularity, B’Tselem’s argument equates whatever rights Bedouin may have with the rights of sedentary Arab villages on the outskirts of Jerusalem. The only reason for such an equation is that both are Arabs and not Jews. B’Tselem’s assertion that the land belongs to these villages collapses into the contention that only Arabs, not Jews, have the right to own and use these lands.

Settlement opponents more frequently cite the Fourth Geneva Convention these days for their legal arguments. They specifically charge that the settlements violate Article 49(6), which states: “The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies.”

Frequently, this sentence is cited as if its meaning is transparent and its application to the establishment of Israeli settlements beyond dispute. Neither is the case.

To settlement opponents, the word “transfer” in Article 49(6) connotes that any transfer of the occupying power’s civilian population, voluntary or involuntary, is prohibited. However, the first paragraph of Article 49 complicates that case. It reads: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” Unquestionably, any forcible transfer of populations is illegal. But what about voluntary movements with the antecedent permission or subsequent acquiescence by the occupant?

To the extent that a violation of Article 49(6) depends upon the distinction between the voluntary and involuntary movement of people, the inclusion of “forcible” in Article 49(1) but not in 49(6) makes a different interpretation not only plausible but more credible. It’s a matter of simple grammar that when similar language is used in several different paragraphs of the same provision, modifying language is omitted in later paragraphs because the modifier is understood. To Julius Stone, an international-law scholar, “the word ‘transfer’ [in 49(6)] in itself implies that the movement is not voluntary on the part of the persons concerned, but a magisterial act of the state concerned.”

Julius Stone referred to the absurdity of considering the establishment of Israeli settlements as violating Article 49(6):

We would have to say that the effect of Article 49(6) is to impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein. Irony would thus be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that . . . the West Bank . . . must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context exclude so tyrannical a reading of Article 49(6).

The ultimate end of the illicit effort to use international law to delegitimize the settlements is clear—it is the same argument used by Israel’s enemies to delegitimize the Jewish state entirely. Those who consider themselves friends of Israel but opponents of the settlement policy should carefully consider whether, in advancing these illegitimate and specious arguments, they will eventually be unable to resist the logic of the argument that says—falsely and without a shred of supporting evidence from international law itself—that Israel is illegitimate.

Read the whole thing.