The Status of the West Bank Settlements Under International Law

A government committee headed by former Justice Edmond Levy recently determined that Israeli settlement in the West Bank is not illegal since the land in question is not under occupation. In an op-ed originally published in Maariv, Prof. Frances Raday and Adv. Ido Rosenzweig analyze the committee's conclusions and raise questions about its findings based on International Law and U.N. resolutions.

The report of a governmental committee on the status of Israeli building in the West Bank was recently published, which stated that the areas in question are not under Israeli occupation and therefore building settlements on state land is legal. The report was written by three senior jurists: Committee head former Justice Edmond Levy and Committee members former Judge Tchia Shapira and Adv. Ambassador Alan Baker, former legal advisor of the Israeli Foreign Ministry. There is no doubt about the adequacy of the Committee members' knowledge of international and Israeli law, which makes the Committee's conclusions all the more puzzling.

The Committee stated that according to the Fourth Geneva Convention for Protection of Civilian Populations in Times of War (1949), the West Bank is "disputed territory" rather than "occupied territory." The main justification for this conclusion was that the West Bank did not belong to another country, as is required by the Convention's definition of "occupation," as it was not under Jordanian jurisdiction. This is a legitimate, albeit controversial, legal interpretation.

The issue, however, does not end here. The Levy Committee completely ignored the original definition of occupation under Article 42 of the Hague Convention of 1907, which does not require occupied territory to have belonged to another state prior to occupation, but merely requires that it was foreign territory. Since the definition of occupation under the Fourth Geneva Convention was intended to expand the definition of Article 42 of the Hague Convention rather than to replace it, it is clear that the territories are occupied in the eyes of International Law.

The Committee's report states that even if the territory were occupied, there is no prohibition against establishing settlements on public lands. According to the Committee, occupation law only requires that individual property rights are not infringed, but it allows the use of public property and even the enjoyment of the fruits of public property, provided no change is made in the property's permanent nature. This assertion is made without specific reference to any International Law authority and seems to be based on the collective creativity of the authors. Occupation law indeed prohibits damage to private property; however, in contrast to the Committee's claim, Article 53 of the Hague Convention of 1907 clearly states that the use of public property in an occupied territory should be only for security purposes. Clearly, it is impossible to allow the transfer of civilian populations of the occupying state to  public property in occupied territory, and there is no authority that would allow the State of Israel to "enjoy the fruits" of this land.

The Committee's reliance on UN General Assembly Resolution 181 of 1947, which dealt with the partition plan, is also puzzling. The partition plan envisaged the division of all the territory from the Jordan River to the Mediterranean between the Jews and the Arabs. After the War of Independence, Israel received about 55% of that territory within its 1948 borders. Furthermore, there are other General Assembly resolutions at the same non-binding level of Resolution 181 that state that the West Bank is occupied territory and that Israel should withdraw from it immediately and stop building settlements there. Thus, for example, UN Security Council Resolution 242 of 1967 calls upon Israel to withdraw from territories occupied in The Six Day War.

The Committee goes on to determine that Israel is not violating the prohibition against transfer of the occupying state's population to occupied territory that is set out in Article 49 of the Fourth Geneva Convention. According to traditional international interpretation, the purpose of this prohibition is to prevent de-facto annexation of the territory, harm to the protected population, change in the demographic balance, and change in the temporary status of the occupied territory. In this spirit, the U.N. Security Council stated in Resolution 465 of 1980 that the actions and policy of the State of Israel in the establishment of settlements are a severe breach of the Fourth Geneva Convention.

In contrast, the Levy Committee's report claims that the settlements are not the result of transfer of population by the state; rather, they are manifestations of private settlement on a voluntary and ideological basis. Even if we were to accept the stance that voluntary, private settlement of this nature is not prohibited, the conduct of Israel's governments belies this claim. Since the 1970s, Israel's governments have encouraged the maintenance of the settlements. They have provided tax benefits, paved roads, built infrastructure, and recently even announced the establishment of a publicly funded University in one of the settlements. This active encouragement of the movement of members of the Israeli population to the West Bank is not consistent with the claim that the settlements are individual and independent of the state.

The Levy Committee searched for a justification under International Law for building settlements on public land in the West Bank. The positive conclusion that it reached at the end of its process of inquiry, however, is not at all convincing. 

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Prof. Frances Raday is the Chairman of the Concord Research Center for Integration of International Law in Israel. Adv. Ido Rosenzweig is a researcher at the Israel Democracy Institute and at the Concord center, and is the chairman of ALMA - The Association for the Promotion of International Humanitarian Law in Israel.

A Hebrew version of this article was published in the Maariv daily newspaper on July 29, 2012.