There is an international consensus that some of the actions of
the states involved in the Arab–Israeli conflict violate international
law, but some of the involved states dispute this.
In the Six-Day War in 1967, Israel pre-empted what many Israeli leaders believed to be an imminent Arab attack and invaded and occupied territory that had itself been invaded and occupied by neighboring Egypt, Syria and Jordan in the 1948 Arab–Israeli War. Following the peace treaties between Israel and Egypt and Israel and Jordan,
in which the states relinquished their claims to the Israeli-occupied
territory, the conflict today mostly revolves around the Palestinians.
The main points of dispute (also known as the "core issues" or "final status issues") are the following:
Unlike a treaty agreement, customary international law
is usually not written. Customs of a longstanding nature can be
codified by formal treaties. The Laws and Customs of War on Land (Hague Convention IV) of 18 October 1907 and the Geneva Conventions of 12 August 1949 are examples of conventional laws that are declarations of customary law.
To prove that a certain rule is customary one has to show that it is
reflected in state practice and that there exists a conviction in the
international community that such practice is required as a matter of
law. In this context, "practice" relates to official state practice and
therefore includes formal statements by states. A contrary practice by
some states is possible because if this contrary practice is condemned
by the other states, or subsequently denied by the government itself,
the original rule is actually confirmed.
In accordance with article 13 of the UN Charter,
the General Assembly is obligated to initiate studies and to make
recommendations that encourage the progressive development of
international law and its codification.
Acting in that agreed-upon treaty capacity, the General Assembly
affirmed the principles of international law that were recognized by the
Charter of the Nuremberg Tribunal and directed that they should be codified. Many of those same principles were subsequently adopted for inclusion in draft treaties that were under development by the International Law Commission of the United Nations. They were also incorporated through the agreement of the High Contracting Parties into the Geneva Conventions of 1949. In 1993 the UN Security Council
"acting under Chapter VII of the Charter on the United Nations"
established an international tribunal and approved a Statute that had
been recommended in a report submitted by the UN Secretary-General. It concluded beyond doubt that the law applicable in armed conflict as embodied in the Geneva Conventions of 12 August 1949 and the Hague Convention (IV) of 18 October 1907 had become part of international customary law, and should be part of the subject matter jurisdiction of the International Criminal Tribunal for the former Yugoslavia. In 1998, the United Nations Diplomatic Conference of Plenipotentiaries approved the Rome Statute of the International Criminal Court.
The offenses against unwritten customary international law were
amenable to prosecution by international tribunals, like the Nuremberg
Tribunal, long before they were codified and incorporated into the
subsequent treaties.
Conventions, resolutions and declarations
Many provisions of international law are based upon principles and
norms that were developed in the Americas during the 19th century. They
include the principle of uti possidetis of 1810 and the related Monroe Doctrine of 1823, regarding non-colonization and non-intervention. In 1890, the First International Conference of American States adopted a proscription against territorial conquest and agreed upon the non-recognition of all acquisitions made by force.
Those principles and regional understandings were recognized in Article 21 of the Covenant of the League of Nations.
The system of mandates contained in article 22 of the Covenant was
based in part upon those normative declarations and state practices. The
Kellogg-Briand Pact of 1928, and the League of Nations approval of the Stimson Doctrine in 1931 were efforts designed to end the practice of coercive territorial revisionism through international law.
After World War II, the principles of international law that upheld the territorial integrity of states were incorporated in the Charter of the United Nations, and subsequently reaffirmed in the Declaration on the Granting of Independence to Colonial Countries and Peoples, the Organization of African Unity
charter respecting the integrity of inherited boundaries, and the 1975
CSCE Helsinki Final Act which contained a proscription that boundaries
could only be altered by consent. The Chapter on Fundamental Rights and Duties of States in the Charter of the Organization of American States provides that:
The
territory of a State is inviolable; it may not be the object, even
temporarily, of military occupation or of other measures of force taken
by another State, directly or indirectly, on any grounds whatever. No
territorial acquisitions or special advantages obtained either by force
or by other means of coercion shall be recognized.
Legal issues related to sovereignty
In their relations with other peoples and countries during the colonial era the Concert of Europe adopted a fundamental legal principle that the supreme legal authority, or sovereignty,
lay outside the indigenous nations. That legal principle resulted in
the creation of a large number of dependent states with restricted
sovereignty or colonial autonomy. Various terms were used to describe
different types of dependent states, such as condominium, mandate,
protectorate, colony, and vassal state. After World War II there was
strong international pressure to eliminate dependencies associated with
colonialism.
The vast majority of the world's sovereign states
resulted from the grant of independence to colonial peoples and
dependent territories. Prior to World War II many states were formed as a
result of wars that were resolved through peace treaties.
Some of these peace treaties were imposed on the losing side in a war;
others came about as a result of negotiations that followed wars, or
were entered into under the threat of war. In these cases, the
applicable law was bound in peace treaties among the states. The
practice of territorial aggrandizement was prohibited by the UN Charter,
a multilateral treaty, and the authoritative explanation of its legal
principles contained in UN General Assembly resolution 2625 (XXV) of 24
October 1970, Declaration of Principles of International Law Concerning
Friendly Relations and Co-operation Among States in Accordance with the
Charter of the United Nations.
The purpose of the United Nations is the prevention and removal of
threats to peace and the suppression of acts of aggression. The Charter
requires that members shall refrain from the threat of, or use of force.
According to communis opinio the obligations imposed by those
provisions of the Charter have become part of customary international
law and are binding on all States, whether they are members of the
United Nations or not.
Treaties and resolutions
The communities and Holy Places of Palestine have been under the
express protection of international law since the early 19th century.
For example, the International Court of Justice advisory opinion noted
that access to the Christian, Jewish and Islamic Holy Places had been
protected by various laws dating back to the early Ottoman Empire, with
the latest provisions having been incorporated into the UN Partition
Plan, article 13 of the League of Nations Mandate, and Article 62 of the
Treaty of Berlin of 13 July 1878.
The Treaty of Paris in 1814 called for a congress of the Great
Powers of Europe to settle the future boundaries of the continent.
Nearly every state in Europe was represented, and among other things a
prohibition on unilateral annexation was adopted. This bolstered the
concept of territorial integrity, which was enshrined in the Congress of
Vienna in 1815.
The 1856 Treaty of Paris declared that the Sublime Porte, the
government of the Ottoman Empire, had been admitted to participate in
the Public Law and System (Concert) of Europe.
The European system of public law governed territorial accessions and
the creation of new states. After the Russo-Turkish Wars in 1878, Russia
and the Ottoman Empire concluded the Treaty of San Stefano. Because it
modified the terms of the Treaty of Paris of 1856, the other signatories
called for a Congress to obtain its revision. The Treaty of Berlin of
1878 was the result. Montenegro, Serbia, and Romania were recognized as
new independent states and granted specific territory on condition that
religious, political, and property rights of minorities were guaranteed
on a nondiscriminatory basis. The delegates of the First Zionist Congress acknowledged these customary diplomatic precedents in the Basle Program. It stated that the aim of Zionism was the creation of a home for the Jewish people in Palestine, secured by public law.
During the course of the British mandate in Palestine, the British government
sought to reconcile the two claims in different ways. A number of
proposals and declarations were put forward, all of which were rejected
by one party or the other, and usually both. Again, two different
interpretations apply:
The Israeli perspective is that the United Kingdom only had the mandate to propose solutions in keeping with the resolutions adopted at the San Remo Conference,
not to amend them. In other words, that the relevant resolutions
adopted at the San Remo Conference are the public law that awarded the
Jewish people de jure sovereignty over Palestine.
The Arab perspective views British proposals as promises (subsequently broken) to the people of Palestine, see also the Hussein-McMahon Correspondence.
After World War II, the British government decided to abandon its mandate in Palestine. A United Nations Commission (UNSCOP) was assigned to recommend a solution to the conflict to the General Assembly. The recommendation was a partition plan that would result in an Arab and a Jewish state in the remaining mandate, and Jerusalem under UN rule, was approved by the General Assembly.
However, the resolution served partially as a basis for the Declaration of the Establishment of the State of Israel to take effect when Great Britain's mandate expired. Many states granted the State of Israel either de facto or de jure recognition. Israel was accepted as a sovereign member state in the United Nations and has diplomatic relations with many, but not all, sovereign states.
The legal consequence of subsequent events
Several events have affected the legal issues related to the conflict:
After the war in 1948, the mandate ended up being split between Israel, Egypt and Jordan. Israel and Jordan annexed all areas under their administration; Egypt maintained a military occupation of Gaza. The United Nations attempted to assert its authority over Jerusalem but the designated mediator, Count Bernadotte, was killed by the militant Zionist group Lehi
while pursuing his official duties, and the city ended up being split
between Israel and Jordan. Lehi had feared that Israel would agree to
Bernadotte's peace proposals, which they considered disastrous, unaware
that the provisional Israeli government had already rejected a proposal
by Bernadotte the day before.
Although there were numerous informal and backchannel communications
between Israel and Arab states through the years, all Arab states
refused to accept Israel's sovereignty until 1979, and most (excluding Jordan, Mauritania, and Egypt) persisted in rejecting Israel's desire to exist (see Khartoum Resolution) until the 2002 Arab Peace Initiative
that offers Israel peace and normal relations with all Arab countries
if Israel withdraws from all areas occupied in the 1967 war and "attain a
just solution" to the Palestinian refugee problem "to be agreed upon in accordance with the UN General Assembly Resolution 194".
Both as a result of the wars in 1948 and 1967, Arab residents of the
former Mandate were displaced and classified by the United Nations as "refugees".
In approximately the same time frame, most Jews in Arab states fled or were forced to leave, with most of them absorbed by Israel.
United Nations Security Council issued resolution 242 that set the framework for a resolution through "land for peace".
In 1979, Egypt and Israel signed a peace treaty,
Israel returning Sinai in return for peace, agreeing on international
borders between the two states, but leaving the disposition of Gaza for
peace negotiations between Israel and the Palestinians.
In 1988, the PLO declared "the establishment of the State of Palestine in the land of Palestine with its capital at Jerusalem." Jordan relinquished its claims to the West Bank.
In 1993, the PLO and Israel signed a declaration of principles that included mutual recognition and the ultimate goal of establishing self rule for the Palestinian people.
No other Arab state has granted legal recognition of Israel's
sovereignty. A formal state of war still exists between Israel and
several Arab states, though armistice agreements govern interaction between the states.
Several attempts at finalizing the terms for a peace agreement
between Israel and the PLO have failed. In 2006 the Palestinians elected
Hamas into power, a party that does not recognize Israel as legitimate.
Legal issues related to the wars
Sovereign states
have the right to defend themselves against overt external aggression,
in the form of an invasion or other attack. A number of states assert
that this principle extends to the right to launch military actions to
reduce a threat, protect vital interests, or pre-empt a possible attack
or emerging threat.
Wars between Israel and Arab states
Security Council resolution 242, emphasized "the inadmissibility of
the acquisition of territory by war," setting the stage for controversy
on the legal status of areas captured in 1967, and in 1948.
There are two interpretations of this matter:
The Israeli position is that:
The wars in 1956 and 1967 were waged by Israel to ensure the state's survival. As most hostilities were initiated by the Arab side,
Israel had to fight and win these wars in order to ensure the state's
sovereignty and safety. Territories captured in the course of those wars
are therefore legitimately under Israeli administration for both
security reasons and to deter hostile states from belligerence.
In the absence of peace treaties between all the parties at war,
Israel has under all circumstances the right to maintain control of the
captured territories. Their ultimate disposition should be a result of peace treaties, and not a condition for them. Even so, Israel asserts that:
The 1956 war was caused by a pattern of Egyptian belligerence against Israel, culminating with the nationalization of the Suez Canal and the blockage of the canal for Israeli traffic in violation of the Convention of Constantinople and other relevant treaties, in their view a clear casus belli (i.e., an act justifying war)
The 1967 war was similarly caused by the closing of the Straits of Tiran,
the rejection of UN forces in the Sinai desert, and the redeployment of
Egyptian forces. Jordan and Syria entered the war in spite of Israeli
efforts to keep these frontiers peaceful.
The 1973 war was a surprise attack against Israel by Syria and Egypt.
The Arab position is that:
The 1956 war came after an Israeli attack on the Gaza strip
killing 25 Egyptian soldiers, and was a result of a conspiracy between
France, the United Kingdom and Israel in violation of Egypt's
sovereignty. Egypt claimed several legal justifications for refusing
Israel use of the Suez Canal, including the right of self-defence.
The war in 1967 was an unprovoked act of aggression aimed at
expanding the boundaries of Israel, and the territories captured during
this war are illegally occupied and this occupation must end.
The dispute has now shifted to the conflict between the Palestinians and Israel.
The Geneva Conventions and other international tractates recognize
that land: a) conquered in the course of a war; and b) the disposition
of which is unresolved through subsequent peace treaties is "occupied"
and subject to international laws of war and international humanitarian law.
This includes special protection of individuals in those territories,
limitations on the use of land in those territories, and access by
international relief agencies.
Jerusalem
Recognizing the controversial nature of sovereignty over Jerusalem,
UNSCOP recommended the city be placed under United Nations
administration in the partition plan. This amendment was approved by the
General Assembly in November 1947; consistent with the respective
stance of both sides regarding the partition plan-it was accepted by the
Israel and rejected by the Arab states. During, the subsequent 1948
war, Israel captured and held a western portion
of Jerusalem's city limits along much of the lands relegated to the
proposed Arab state laid out in the partition plan. Most of Jerusalem,
including all of the old city,
came under the control of the Hashemite Kingdom of Jordan, with the
proposed Arab state for Palestinians never coming into existence. Israel
declared Jerusalem its capital in 1950, establishing governmental
offices in area it controlled. Soon afterward in 1950, Jordan annexed the eastern part along with the remainder of the West Bank.
After the 1967 war, Israel put the parts of Jerusalem that had
been captured during the war under its jurisdiction and civilian
administration, establishing new municipal borders.
Arguing that this did not amount to annexation at the time, subsequent
legal actions have been interpreted as consistent with an annexation.
On July 30, 1980, the Knesset
passed a basic law making "Jerusalem, complete and united…the capital
of Israel." Since then Israel has extended the municipal boundaries
several times.
International bodies such as the United Nations have condemned Israel's Basic Law concerning Jerusalem as a violation of the Fourth Geneva Convention
and therefore hold that the establishment of the city as Israel's
capital is against international law. Consequently, countries have
established embassies to Israel's government outside of Jerusalem, or only with the western section of the city recognized as legal Israeli territory. Similarly, missions to the Palestinian National Authority
are at the insistence of Israel's government located outside of
Jerusalem. Despite both Israel and Palestine's long standing claim of
Jerusalem as their capital, central government administration is largely
conducted out of Tel Aviv and Ramallah for the Israe and Palestine respectively.
Israel has filed strenuous protests against this policy, asserting that:
There is no basis in international law for denying Israel's
establishing its capital in Jerusalem, because there is no binding
treaty that makes the city a Corpus separatum.
The 1980 Basic Law is not a legal innovation and only affirms Israel's long-standing position on Jerusalem.
Israel has the sovereign right to establish its capital at the most meaningful place for its people, and its claim is unique.
Objections to Jerusalem as Israel's capital are political in nature, and not legal.
In its 2004 advisory opinion on the legality of the Israeli West Bank barrier, the International Court of Justice concluded that the lands captured by Israel in the 1967 war, including East Jerusalem, are occupied territory.
Article 49 of the Fourth Geneva Convention states in paragraph 1
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.
and states in paragraph 6,
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
Arguments supporting the position that establishing, funding, or
allowing settlements in the territories is a violation of international
law are,
The International Committee of the Red Cross' commentaries to the Geneva Conventions state that Article 49, paragraph 6, "is intended to prevent a practice
adopted during the Second World War by certain Powers, which transferred
portions of their own population to occupied territory for political
and racial reasons or in order, as they claimed, to colonize those
territories." It further notes "that in this paragraph the meaning of
the words 'transfer' and 'deport' is rather different from that in which
they are used in the other paragraphs of Article 49 since they do not
refer to the movement of protected persons but to that of nationals of
the occupying Power". The Committee has on several occasions described
the establishment of Israeli settlements in the occupied territories as a
violation of the Fourth Geneva Convention.
the International Court of Justice, in paragraph 120 of its advisory opinion
on the "Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory", asserts that: "That provision [article
49(6)] prohibits not only deportations or forced transfers of population
such as those carried out during the Second World War, but also any
measures taken by an occupying Power in order to organize or encourage
transfers of parts of its own population into the occupied territory"
and "concludes that the Israeli settlements in the Occupied Palestinian
Territory (including East Jerusalem) have been established in breach of
international law". The dissenting judge Thomas Buergenthal
agreed that "this provision applies to the Israeli settlements in the
West Bank and that their existence violates Article 49, paragraph 6".
Article 8(2)(b)(viii) of the International Criminal CourtRome Statute
defines "[t]he transfer, directly or indirectly, by the Occupying Power
of parts of its own civilian population into the territory it occupies"
as a war crime. Israel did initially sign the statute, but later declared its intention not to ratify it.
The Security Council has in Resolution 446
determined: "that the policy and practices of Israel in establishing
settlements in the Palestinian and other Arab territories occupied since
1967 have no legal validity".
Arguments supporting the position that settlement in the territories does not violate international law are,
Israel ministry of foreign affairs argues "As the West Bank and
Gaza Strip were not under the legitimate and recognized sovereignty of
any state prior to the Six Day War, they should not be considered
occupied territories."
Article 49 of the Fourth Geneva Convention is limited to transfers
or deportations into or out of Occupied Territories which are
'forcible'.
Article 49 "cannot be viewed as prohibiting the voluntary return of
individuals to the towns and villages from which they, or their
ancestors, had been ousted" from living, e.g., in Gush Etzion, Jerusalem, or Hebron before 1948.
The Palestinians, as part of the Oslo Accords ,
agreed that the issue of settlements in the territories shall fall
under the jurisdiction of final status negotiations (Article V, Section
3).
Jews have a legal right to settle the areas according to the Mandate
for Palestine (specifically Article 6 of the mandate concerning Jewish
settlements) and to such documents as the Faisal Weizmann Agreement. The British Mandate (granted by the League of Nations) specifically encouraged "close settlement by Jews on the land."
Legal issues related to the Israeli West Bank barrier
Israel has completed long stretches of barriers within the West Bank,
separating Israel proper, Israeli settlements and large parts of the
Palestinian territories from Palestinian cities and population centers.
Those who question the legality of the barrier make the following arguments:
At various locations, the selected route of the barrier required the
demolition of homes and the expulsion of the residents of those homes,
in violation of Article 49 of the Fourth Geneva Convention.
The barrier and Israel's series of checkpoints have made life nearly impossible for residents of the West Bank, constituting collective punishment. Article 33 of the Fourth Geneva Convention categorize collective punishment in occupied territories as a war crime.
At various locations, the selected route of the barrier required the
demolition of Palestinian property, in violation of article 53 of the
Fourth Geneva Conventions.
The barrier is an attempt to establish de facto borders
between Israel and a future Palestinian state, in effect annexing large
parts of West Bank and all of East Jerusalem, in violation of numerous
United Nations Security Council Resolutions.
The barrier attempts to separate Palestinians from their means of
livelihood and from interaction with others and it, therefore, qualifies
as apartheid. Apartheid is illegal as per the 2002 Rome Statute of the International Criminal Court and is considered a crime against humanity (see also: Israel and apartheid).
The barrier is constructed inside of the West Bank, making it completely in violation of international law.
The barrier differs from all other protective barriers built by any
other state (such as the Berlin Wall, or the US-Mexico border) in that
it is not constructed on the border between states but rather crosses
the occupied territories in numerous locations, and with
existing/expanding settlements, divides the occupied territories into 4
or 5 cantons.
Israel defends the security barrier by arguing that:
The barrier and its route are solely security measures that will have no bearing on future peace negotiations.
The land is not subject to the Geneva Conventions.
The Geneva Conventions explicitly allows structures to be built for purposes of self-defense.
The Israeli Supreme Court is reviewing the route on a continuous basis and has forced it to change.
StandWithUs, a pro-Israel advocacy organization, defends the security fence by pointing out:
Israel did not begin building the fence until 2003 when terrorism reached unprecedented levels.
Since construction of the fence began in 2003, the number of completed terrorist attacks has dropped by more than 90%.
97% of the barrier is a chain-link fence similar to those along the
United States's border; only 3% (10 miles) is a concrete wall, built to
prevent sniper shooting prevalent in certain areas.
Only 5%–8% of the West Bank and less than 1% of Palestinians will end up on the Israeli side of the fence.
Palestinians can bring their specific grievances about the barrier to Israel's Supreme Court, which in several cases has ruled that the fence must be re-routed.
In 2004, the United Nations passed a number of resolutions and the International Court of Justice
issued a ruling where judges ruled 14–1 that the portions of the
Israeli West Bank barrier that are located within occupied Palestinian
territories are illegal under international law.
Prior to the ruling, Israel had made the claim that the ICJ lacked
standing to rule on the legality of the barrier, which the court
unanimously rejected. On July 20, 2004, the United Nations General Assembly passed a resolution demanding that Israel obey the ICJ ruling. 150 nations voted in favor of the resolution, 7 voted against, and 10 abstained.
The construction by Israel, the occupying power, of a wall in the
Occupied Territories departing from the armistice line of 1949 is
illegal under relevant provisions of international law and must be
ceased and reversed.
The United Kingdom, Germany, Bulgaria, and Cameroon
abstained from the vote. The justification given by the U.S. for the
veto was that the resolution did not condemn terrorist attacks made by
Palestinian groups (see Negroponte doctrine). The United States, however, has been condemned by some countries for its support of the barrier.
One week later, on October 21, a similar (though non-binding)
resolution (ES-10/13) was passed by the UN General Assembly 144–4 with
12 abstentions. The resolution said the barrier was "in contradiction to
international law", and demanded that Israel "stop and reverse" its
construction. Israel called the resolution a "farce".
In December 2003, the United Nations General Assembly passed a
resolution requesting the International Court of Justice (ICJ) to make a
non-binding advisory opinion on the "legal consequences arising" from the construction of the barrier.
The hearings began in February 2004. The Palestinian Authority
is not a member of the court but was allowed to make a submission by
virtue of being a UN observer and a co-sponsor of the General Assembly
resolution. In January 2004, the court also authorized the League of Arab States and the Organisation of the Islamic Conference to make submissions.
Israel initially announced that it would cooperate with the
court, while noting that advisory rulings of the ICJ are not binding.
Israel later made a written submission to the court rejecting the
authority of the court to rule on the case, but announced (on February
12, 2004) that it would not appear at the court to make oral
submissions.
On January 30, 2004, Israel announced officially it did not
recognize ICJ authority to rule over the barrier issue. Israel also
dispatched a 120-page document, elaborating on the security needs to
build the "terror prevention fence" and purporting to demonstrate the
atrocities committed by Palestinian terrorists.
The document also included a judicial part with legal accounts
supporting Israel's claim that the issue of the barrier is political and
not in the ICJ authority.
On 23, 24, and 25 February 2004 the hearings before the International Court of Justice took place in the Peace Palace at the Hague.
Ruling of the ICJ
Graffiti on the barrier, reading "Illegal."
On July 9, 2004, the International Court of Justice issued its
opinion against the barrier, calling for it to be removed and the Arab
residents to be compensated for any damage done. The Court advised that
the United Nations General Assembly, which had asked for the ruling, and
the Security Council should act on the issue.
Israel is obligated to stop construction of the wall, including around East Jerusalem and to dismantle the structure, and to repeal all legislative and regulatory acts relating to the wall.
Israel is obligated to "make reparation for all damages caused" by the wall, including around East Jerusalem”.
All states are under an obligation not to recognize the illegal wall
and "not to render aid or assistance in maintaining the situation", and
to "ensure compliance by Israel with international humanitarian law" in accordance with the Fourth Geneva Convention relating to the Protection of Civilian Persons in Time of War 1949, while "respecting the United Nations Charter and international law, as embodied in that convention”".
The opinion was passed 14-1 by the court judges, except for the 4th decision which was passed 13–2.
Thomas Buergenthal,
the American judge, was the sole dissenting member of the 15 judges on
this ICJ panel. In his declaration, he stated that there was much in the
court's opinion with which he agreed but that the court should have
declined to hear the case since it did not have before it "relevant
facts bearing directly on issues of Israel's legitimate right of
self-defense". He stated that his dissenting opinion "should not be seen
as reflecting my view that the construction of the wall by Israel on
the Occupied Palestinian Territory does not raise serious questions as a
matter of international law." On the point of portions of the wall that
were being built beyond the green line, which Israel stated were to
defend settlements, Buergenthal stated:
Paragraph 6 of Article 49 of the Fourth Geneva
Convention also does not admit exceptions on grounds of military or
security exigencies. It provides that "the Occupying Power shall not
deport or transfer parts of its own civilian population into the
territory it occupies". I agree that this provision applies to the
Israeli settlements in the West Bank and that their existence violates
Article 49, paragraph 6. It follows that the segments of the wall being
built by Israel to protect the settlements are ipso facto
in violation of international humanitarian law. Moreover, given the
demonstrable great hardship to which the affected Palestinian population
is being subjected in and around the enclaves created by those segments
of the wall, seriously doubt that the wall would here satisfy the
proportionality requirement to qualify as a legitimate measure of
self-defence.
Judge Higgins, in her separate opinion to International Court of Justice, Advisory Opinion of 9 July 2004,
stated: «I also find unpersuasive the Court's contention that, as the
uses of force emanate from occupied territory, it is not an armed attack
"by one State against another". I fail to understand the Court's view
that an occupying Power loses the right to defend its own civilian
citizens at home if the attacks emanate from the occupied territory - a
territory which it has found not to have been annexed» (§ 34).
Reaction to the ICJ
The opinion was accepted by the United Nations General Assembly, on July 20, 2004, it passed a resolution demanding that Israel obey the ICJ ruling. Israel, the US, Australia, the Federated States of Micronesia, the Marshall Islands, and Palau voted against the resolution, 10 nations abstained, and 150 nations voted in favor.
Palestinian leader Yasser Arafat said: "This is an excellent decision. This is a victory for the Palestinian people and for all the free peoples of the world."
Israel rejected the ICJ ruling and emphasized the barrier's self-defense aspect,
and stressed that Israel will continue to build the barrier. The United
States also rejected the ruling, declaring that the issue was of
political rather than legal nature. Colin Powell
stated that barrier was effective against terror, and noted that the
ICJ ruling was not binding, but insisted that Israel not use the barrier
to predetermine permanent borders.
Numerous human rights organizations welcomed the ICJ ruling. Amnesty International said that Israel should immediately cease constructing the barrier. The governments of Israel's neighbors Lebanon, Syria, Jordan, and Egypt also welcomed the ruling.
On July 13, 2004, the US House of Representatives passed
Resolution HR 713 deploring "the misuse of the International Court of
Justice (ICJ)... for the narrow political purpose of advancing the
Palestinian position on matters Palestinian authorities have said should
be the subject of negotiations between the parties." Archived 2016-01-10 at the Wayback Machine The Resolution further stated that twenty-three countries, including every member of the G8 and several other European states, had "submitted objections on various grounds against the ICJ hearing the case."
As of 2023, the ICJ has accepted a request from the UN for an
advisory opinion on the legal consequences arising from the policies and
practices of Israel in the occupied Palestinian territory including East Jerusalem.
The court has set 25 July 2023 for presentation of written statements
and 25 October 2023 for subsequent written comments on the statements.
... a person who is outside his/her country of nationality or
habitual residence; has a well-founded fear of persecution because of
his/her race, religion, nationality, membership in a particular social
group or political opinion; and is unable or unwilling to avail
himself/herself of the protection of that country, or to return there,
for fear of persecution. The convention is administered by the United Nations High Commissioner for Refugees (UNHCR).
Under UNRWA's operational definition, Palestine refugees are
persons whose normal place of residence was Palestine between June 1946
and May 1948, who lost both their homes and means of livelihood as a
result of the 1948 Arab–Israeli conflict. UNRWA's services are available
to all those living in its area of operations who meet this definition,
who are registered with the Agency and who need assistance. UNRWA's
definition of a refugee also covers the descendants of persons who
became refugees in 1948.
Since the definition used by UNRWA was originally made on an
operational basis rather than dictated by specific international law,
obligations and rights related to Palestinian refugees under
international law are a matter of some debate. The debate centers on
questions such as: whether the status of refugees can properly be passed
through inheritance to individuals who have never lived in the vacated
areas, and whether individuals who have repatriated in other countries
can legally claim refugee status.
Palestinian refugees were excluded from the 1951 Convention due
to the clause that "This Convention shall not apply to persons who are
at present receiving from organs or agencies of the United Nations other
than the United Nations High Commissioner for Refugees protection or
assistance." As interpreted
by UNHCR, this caused some anomalies, since UNRWA admits some persons
as refugees that are not automatically admitted by the Convention, and,
conversely, some of the legal protections given to refugees by the
Convention were not available to most Palestinians. In 2002, UNHCR
adopted a revised interpretation that fills some of these gaps. The
BADIL Resource Center for Palestinian Residency and Refugee Rights
published a critical analysis of UNHCR revised interpretation of the
1951 Refugee Convention.
Gaza Strip settlements in blue (1993), now dismantled
Israeli settlements, also called Israeli colonies, are the civilian communities built by Israel throughout the Israeli-occupied territories. They are populated by Israeli citizens, almost exclusively of Jewish identity or ethnicity, and were built on lands occupied by Israel since the Six-Day War in 1967. The international community considers Israeli settlements to be illegal under international law, but Israel disputes this.
The expansion of settlements often involves the confiscation of
Palestinian land and resources, leading to displacement of Palestinian
communities and creating a source of tension and conflict. Settlements
are often protected by the Israeli military and are frequently
flashpoints for violence against Palestinians. Further, the presence of
settlements and Jewish-only bypass roads creates a fragmented
Palestinian territory, seriously hindering economic development and
freedom of movement for Palestinians.
As of January 2023, there are 144 Israeli settlements in the West Bank, including 12 in East Jerusalem; Israel administers the West Bank as the Judea and Samaria Area, which does not include East Jerusalem. In addition to the settlements, the West Bank is also hosting over 100 Israeli outposts,
which are settlements that have not been authorized by the Israeli
government. In total, over 450,000 Israeli settlers reside in the West
Bank, excluding East Jerusalem, with an additional 220,000 Israeli
settlers residing in East Jerusalem. Additionally, over 25,000 Israeli settlers live in Syria's Golan Heights. Between 1967 and 1982, there were 18 settlements established in the Israeli-occupied Sinai Peninsula of Egypt, though these were dismantled by Israel after the Egypt–Israel peace treaty of 1979. Additionally, as part of the Israeli disengagement from the Gaza Strip in 2005, Israel dismantled all 21 settlements in the Gaza Strip and four settlements in the West Bank.
Per the Fourth Geneva Convention, the transfer by an occupying power of its civilian population into the territory it is occupying constitutes a war crime, although Israel disputes that this statute applies to the West Bank. On 20 December 2019, the International Criminal Court announced the opening of an investigation of war crimes in the Palestinian territories.
The presence and ongoing expansion of existing settlements by Israel
and the construction of outposts is frequently criticized as an obstacle
to peace by the PLO, and by a number of third parties, such as the Organization of Islamic Cooperation, the United Nations (UN), Russia, the United Kingdom, France, and the European Union.
The UN has repeatedly upheld the view that Israel's construction of
settlements in the occupied territories constitutes a violation of the
Fourth Geneva Convention. For decades, the United States also designated Israeli settlements as illegal, but the Trump administration reversed this long-standing policy in November 2019, declaring that "the establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law"; this new policy, in turn, was reversed to the original by the Biden administration
in February 2024, once again classifying Israeli settlement expansion
as "inconsistent with international law" and matching the official
positions of the other three members of the Middle East Quartet.
Name and characterization
Certain observers and Palestinians occasionally use the term "Israeli colonies" as a substitute for the term "settlements".
Settlements range in character from farming communities and frontier
villages to urban suburbs and neighborhoods. The four largest
settlements, Modi'in Illit, Ma'ale Adumim, Beitar Illit and Ariel, have achieved city status. Ariel has 18,000 residents, while the rest have around 37,000 to 55,500 each.
Housing costs and state subventions
Settlement has an economic dimension, much of it driven by the
significantly lower costs of housing for Israeli citizens living in
Israeli settlements compared to the cost of housing and living in Israel
proper. Government spending per citizen in the settlements is double that spent per Israeli citizen in Tel Aviv and Jerusalem,
while government spending for settlers in isolated Israeli settlements
is three times the Israeli national average. Most of the spending goes
to the security of the Israeli citizens living there.
As of January 2023, there are 144 Israeli settlements in the West Bank, including 12 in East Jerusalem. In addition, there are over 100 Israeli illegal outposts
(not sanctioned by the Israeli government) in the West Bank. In total,
over 500,000 Israeli settlers live in the West Bank excluding East
Jerusalem, with an additional 220,000 Jewish settlers residing in East Jerusalem.
Additionally, over 20,000 Israeli citizens live in settlements in the Golan Heights.
As early as September 1967, Israeli settlement policy was progressively encouraged by the Labor government of Levi Eshkol. The basis for Israeli settlement in the West Bank became the Allon Plan, named after its inventor Yigal Allon. It implied Israeli annexation of major parts of the Israeli-occupied territories, especially East Jerusalem, Gush Etzion and the Jordan Valley. The settlement policy of the government of Yitzhak Rabin was also derived from the Allon Plan.
The first settlement was Kfar Etzion, in the southern West Bank, although that location was outside the Allon Plan. Many settlements began as Nahal settlements.
They were established as military outposts and later expanded and
populated with civilian inhabitants. According to a secret document
dating to 1970, obtained by Haaretz, the settlement of Kiryat Arba
was established by confiscating land by military order and falsely
representing the project as being strictly for military use while in
reality, Kiryat Arba was planned for settler use. The method of
confiscating land by military order for establishing civilian
settlements was an open secret in Israel throughout the 1970s, but
publication of the information was suppressed by the military censor.
In the 1970s, Israel's methods for seizing Palestinian land to
establish settlements included requisitioning for ostensibly military
purposes and spraying of land with poison.
The Likud government of Menahem Begin, from 1977, was more
supportive to settlement in other parts of the West Bank, by
organizations like Gush Emunim and the Jewish Agency/World Zionist Organization, and intensified the settlement activities.
In a government statement, Likud declared that the entire historic Land
of Israel is the inalienable heritage of the Jewish people and that no
part of the West Bank should be handed over to foreign rule. Ariel Sharon declared in the same year (1977) that there was a plan to settle 2 million Jews in the West Bank by 2000.
The government abrogated the prohibition from purchasing occupied land
by Israelis; the "Drobles Plan", a plan for large-scale settlement in
the West Bank meant to prevent a Palestinian state under the pretext of
security became the framework for its policy. The "Drobles Plan" from the World Zionist Organization,
dated October 1978 and named "Master Plan for the Development of
Settlements in Judea and Samaria, 1979–1983", was written by the Jewish
Agency director and former Knesset member Matityahu Drobles.
In January 1981, the government adopted a follow-up plan from Drobles,
dated September 1980 and named "The current state of the settlements in
Judea and Samaria", with more details about settlement strategy and
policy.
Israeli soldiers searching a Palestinian in Tel Rumeida, 2012
Since 1967, government-funded settlement projects in the West Bank are implemented by the "Settlement Division" of the World Zionist Organization. Though formally a non-governmental organization,
it is funded by the Israeli government and leases lands from the Civil
Administration to settle in the West Bank. It is authorized to create
settlements in the West Bank on lands licensed to it by the Civil
Administration.
Traditionally, the Settlement Division has been under the
responsibility of the Agriculture Ministry. Since the Oslo Accords, it
was always housed within the Prime Minister's Office (PMO). In 2007, it
was moved back to the Agriculture Ministry. In 2009, the Netanyahu
Government decided to subject all settlement activities to additional
approval of the Prime Minister and the Defense Minister. In 2011,
Netanyahu sought to move the Settlement Division again under the direct
control of (his own) PMO, and to curtail Defense Minister Ehud Barak's
authority.
At the presentation of the Oslo II Accord on 5 October 1995 in the Knesset, PM Yitzhak Rabin expounded the Israeli settlement policy in connection with the permanent solution to the conflict. Israel wanted "a
Palestinian entity, less than a state, which will be a home to most of
the Palestinian residents living in the Gaza Strip and the West Bank". It wanted to keep settlements beyond the Green Line
including Ma'ale Adumim and Givat Ze'ev in East Jerusalem. Blocs of
settlements should be established in the West Bank. Rabin promised not
to return to the 4 June 1967 lines.
In June 1997, the Likud government of Benjamin Netanyahu
presented its "Allon Plus Plan". This plan holds the retention of some
60% of the West Bank, including the "Greater Jerusalem" area with the
settlements Gush Etzion and Ma'aleh Adumim, other large concentrations
of settlements in the West Bank, the entire Jordan Valley, a "security
area", and a network of Israeli-only bypass roads.
In the Road map for peace
of 2002, which was never implemented, the establishment of a
Palestinian state was acknowledged. Outposts would be dismantled.
However, many new outposts appeared instead, few were removed. Israel's
settlement policy remained unchanged. Settlements in East Jerusalem and
remaining West Bank were expanded.
While according to official Israeli policy no new settlements were built, at least some hundred unauthorized outposts were established since 2002 with state funding in the 60% of the West Bank that was not under Palestinian administrative control and the population growth of settlers did not diminish.
In 2005, all 21 settlements in the Gaza Strip and four in the northern West Bank were forcibly evacuated as part of Israeli disengagement from the Gaza Strip, known to some in Israel as "the Expulsion". Nevertheless, the total settler population continued to rise.
After the failure of the Roadmap, several new plans emerged to settle in major parts of the West Bank. In 2011, Haaretz revealed the Civil Administration's"Blue Line"-plan, written in January 2011, which aims to increase Israeli "state-ownership" of West Bank land ("state lands") and settlement in strategic areas like the Jordan Valley and the northern Dead Sea area.
In March 2012, it was revealed that the Civil Administration over the
years covertly allotted 10% of the West Bank for further settlement.
Provisional names for future new settlements or settlement expansions
were already assigned. The plan includes many Palestinian built-up sites
in the Areas A and B.
Land in the Gaza Strip available to its Palestinian inhabitants has
historically been limited as a result of Israeli land confiscation and
the establishment of settlements. Settlement growth in the Gaza Strip
before 1977 was limited, as the Israeli labor party's policy of
containment preferred the establishment of a collection of settlements
along the border of the Strip. At this point, 6 settlements in the Strip
existed, Kfar Darom, Netzarim, Morag, Eretz, Katif, and Netzer Hazani.
With the Likud party's revisionist Zionist policies entering with
Begin's government, the scale of settlement expansion increased,
although the basic policies relating to the settlements did not change.
By 1978, 13 settlements had been built as part of a buffer zone along
Gaza's southern border in Rafah.
The discussions at Camp David
that year surrounding the idea of potential future Palestinian autonomy
would trigger an increase in settlement expansion in the Gaza Strip,
following the Israeli policy of establishing "facts on the ground".
Political economist Sara Roy described this as a policy intended to
make the establishment of an independent Palestinian state more
difficult. The locations and size of these new settlements would
contribute to geographically isolating Palestinian communities from each
other.
In the seven years between 1978 and 1985, 11,500 acres of land
were confiscated by the Israeli government for the establishment of
settlements. By 1991, the settler population in Gaza would reach 3,500
and 4,000 by 1993, or less than 1% of Gaza's population. The land
available for use by the Jewish settler community exceeded 25% of the
total land in Gaza. The ratio of dunams to people was 23 for Jewish
settlers, and 0.27 for Palestinians. Comparing the available built-up
area available to each of the two groups in 1993, the ratio is 115
people per square mile for Jewish settlers and over 9,000 people per
square mile for Palestinians. Sara Roy estimates the increase in
Palestinian population density in Gaza due to Israeli policies alone to
be an increase of almost 2,000 people per square mile in 1993.
All the settlements were surrounded by electric fences or barbed wire.
While the settlements maintained an isolated economic system,
they effected the Gazan economy via land confiscation, the
disproportionate consumption of local resources such as water, by
overwhelmingly denying work opportunities and through the large
disparities in funding (both private and governmental) for economic
development.
Under the Oslo Accords, the West Bank was divided into three separate parts designated as Area A, Area B and Area C. Leaving aside the position of East Jerusalem, all of the settlements are in Area C which comprises about 60% of the West Bank.
Frontier villages, such as those along the Jordan River.
Outposts, small settlements, some authorized and some unauthorized, often on hilltops. The Sasson Report, commissioned by Ariel Sharon's
administration, found that several government ministries had cooperated
to establish illegal outposts, spending millions of dollars on
infrastructure.
Resettlement of former Jewish communities
Some settlements were established on sites where Jewish communities had existed during the British Mandate of Palestine or even since the First Aliyah or ancient times.
Golan Heights – Bnei Yehuda, founded in 1890, abandoned because of Arab attacks in 1920, rebuilt near the original site in 1972.
Jerusalem
– Jewish presence alongside other peoples since biblical times, various
surrounding communities and neighborhoods, including Kfar Shiloah, also
known as Silwan—settled by Yemenite Jews in 1884, Jewish residents evacuated in 1938, a few Jewish families move into reclaimed homes in 2004. Other communities: Shimon HaTzadik, Neve Yaakov and Atarot which in post-1967 was rebuilt as an industrial zone.
Gush Etzion – four communities, established between 1927 and 1947, destroyed 1948, reestablished beginning 1967.
Hebron – Jewish presence since biblical times, forced out in the wake of the 1929 Hebron massacre, some families returned in 1931 but were evacuated by the British, a few buildings resettled since 1967.
Dead Sea, northern area – Kalia and Beit HaArava – the former was built in 1934 as a kibbutz for potash mining. The latter was built in 1943 as an agricultural community. Both were abandoned in 1948, and subsequently destroyed by Jordanian forces, and resettled after the Six-Day War.
Gaza City had a Jewish community for many centuries that was evacuated following riots in 1929. After the Six-Day War, Jewish communities weren't built in Gaza City, but in Gush Katif in the southwestern part of the Gaza Strip, f.e. Kfar Darom – established in 1946, evacuated in 1948 after an Egyptian attack, resettled in 1970, evacuated in 2005 as part of the withdrawal from the Gaza Strip.
At the end of 2010, 534,224 Jewish Israeli lived in the West Bank,
including East Jerusalem. 314,132 of them lived in the 121 authorised
settlements and 102 unauthorised settlement outposts on the West Bank,
198,629 were living in East Jerusalem, and almost 20,000 lived in
settlements in the Golan Heights.
By 2011, the number of Jewish settlers in the West Bank excluding East Jerusalem had increased to 328,423 people.
In June 2014, the number of Israeli settlers in the West Bank
excluding East Jerusalem had increased to 382,031 people, with over
20,000 Israeli settlers in the Golan Heights.
In January 2015, the Israeli Interior Ministry gave figures of
389,250 Israeli citizens living in the West Bank outside East Jerusalem.
By the end of 2016, the West Bank Jewish population had risen to
420,899, excluding East Jerusalem, where there were more than 200,000
Jews.
In 2019, the number of Israeli settlers in the West Bank excluding East Jerusalem had risen to 441,600 individuals, and the number of Israeli settlers in the Golan Heights had risen to 25,261.
In 2020, the number of Israeli settlers in the West Bank
excluding East Jerusalem had reportedly risen to 451,700 individuals,
with an additional 220,000 Jews living in East Jerusalem.
In addition to internal migration, in large though declining numbers,
the settlements absorb annually about 1000 new immigrants from outside
Israel. The American Kulanu organization works with such right-wing
Israeli settler groups as Amishav and Shavei Israel to settle "lost" Jews of color in such areas where local Palestinians are being displaced. In the 1990s, the annual settler population growth was more than three times the annual population growth in Israel. Population growth has continued in the 2000s. According to the BBC, the settlements in the West Bank have been growing at a rate of 5–6% since 2001. In 2016, there were sixty thousand American Israelis living in settlements in the West Bank.
The establishment of settlements in the Palestinian territories
is linked to the displacement of the Palestinian populations as
evidenced by a 1979 Security Council Commission which established a link
between Israeli settlements and the displacement of the local
population. The commission also found that those who remained were under
consistent pressure to leave to make room for further settlers who were
being encouraged into the area. In conclusion the commission stated
that settlement in the Palestinian territories was causing "profound and
irreversible changes of a geographic and demographic nature".
The Israeli settlements in the West Bank fall under the administrative district of Judea and Samaria Area.
Since December 2007, approval by both the Israeli Prime Minister and
Israeli Defense Minister of all settlement activities (including
planning) in the West Bank is required. Authority for planning and construction is held by the Israel Defense ForcesCivil Administration.
The Yesha Council (Hebrew: מועצת יש"ע, Moatzat Yesha, a Hebrew acronym for Judea, Samaria and Gaza) is the umbrella organization of municipal councils in the West Bank.
The actual buildings of the Israeli settlements cover only 1
percent of the West Bank, but their jurisdiction and their regional
councils extend to about 42 percent of the West Bank, according to the
Israeli NGO B'Tselem. Yesha Council chairman Dani Dayan disputes the figures and claims that the settlements only control 9.2 percent of the West Bank.
Between 2001 and 2007 more than 10,000 Israeli settlement units
were built, while 91 permits were issued for Palestinian construction,
and 1,663 Palestinian structures were demolished in Area C.
West Bank Palestinians have their cases tried in Israel's
military courts while Jewish Israeli settlers living in the same
occupied territory are tried in civil courts. The arrangement has been described as "de facto segregation" by the UN Committee on the Elimination of Racial Discrimination.
A bill to formally extend Israeli law to the Israeli settlements in the West Bank was rejected in 2012.
The basic military laws governing the West Bank are influenced by what
is called the "pipelining" of Israeli legislation. As a result of "enclave law", large portions of Israeli civil law are applied to Israeli settlements and Israeli residents in the occupied territories.
On 31 August 2014, Israel announced it was appropriating 400
hectares of land in the West Bank to eventually house 1,000 Israel
families. The appropriation was described as the largest in more than 30
years. According to reports on Israel Radio, the development is a response to the 2014 kidnapping and murder of Israeli teenagers.
In March 2024 and during the Israel-Hamas war, it was announced that Israel was planning on building more than 3,300 new homes in the Kedar and Ma'ale Adumim settlement in the West Bank. The settlement expansion was announced by Israeli Finance Minister Bezalel Smotrich
after three Palestinians opened fire near the Ma'ale Adumim settlement,
killing one and wounding five, and drew criticism from the US due to
increasing tensions.
East Jerusalem
East Jerusalem is defined in the Jerusalem Law of 1980 as part of Israel and its capital, Jerusalem. As such it is administered as part of the city and its district, the Jerusalem District.
Pre-1967 residents of East Jerusalem and their descendants have
residency status in the city but many have refused Israeli citizenship.
Thus, the Israeli government maintains an administrative distinction
between Israeli citizens and non-citizens in East Jerusalem, but the Jerusalem municipality does not.
Golan Heights
The Golan Heights is administered under Israeli civil law as the Golan sub-district, a part of the Northern District. Israel makes no legal or administrative distinction between pre-1967 communities in the Golan Heights (mainly Druze) and the post-1967 settlements.
After the capture of the Sinai Peninsula from Egypt in the 1967 Six-Day War, settlements were established along the Gulf of Aqaba and in northeast Sinai, just below the Gaza Strip. Israel had plans to expand the settlement of Yamit into a city with a population of 200,000, though the actual population of Yamit did not exceed 3,000. The Sinai Peninsula was returned to Egypt in stages beginning in 1979 as part of the Egypt–Israel peace treaty.
As required by the treaty, in 1982 Israel evacuated the Israeli
civilian population from the 18 Sinai settlements in Sinai. In some
instances evacuations were done forcefully, such as the evacuation of
Yamit. All the settlements were then dismantled.
Before Israel's unilateral disengagement plan in which the Israeli settlements were evacuated, there were 21 settlements in the Gaza Strip under the administration of the Hof Aza Regional Council.
The land was allocated in such a way that each Israeli settler disposed
of 400 times the land available to the Palestinian refugees, and 20
times the volume of water allowed to the peasant farmers of the Strip.
The position of successive Israeli governments is that all
authorized settlements are entirely legal and consistent with
international law. In practice, Israel does not accept that the Fourth Geneva Convention applies de jure, but has stated that on humanitarian issues it will govern itself de facto by its provisions, without specifying which these are. The scholar and jurist Eugene Rostow has disputed the illegality of authorized settlements.
Under Israeli law, West Bank settlements must meet specific criteria to be legal. In 2009, there were approximately 100 small communities that did not meet these criteria and are referred to as illegal outposts.
In 2014 twelve EU countries warned businesses against involving
themselves in the settlements. According to the warnings, economic
activities relating to the settlements involve legal and economic risks
stemming from the fact that the settlements are built on occupied land
not recognized as Israel's.
Illegality arguments
The consensus of the international community – the vast majority of
states, the overwhelming majority of legal experts, the International
Court of Justice and the UN – is that settlements are in violation of
international law.
After the Six-Day War, in 1967, Theodor Meron, legal counsel to the Israeli Foreign Ministry stated in a legal opinion to the Prime Minister,
"My conclusion is that civilian settlement in the
administered territories contravenes the explicit provisions of the
Fourth Geneva Convention."
This legal opinion was sent to Prime Minister Levi Eshkol.
However, it was not made public at the time. The Labor cabinet allowed
settlements despite the warning. This paved the way for future
settlement growth. In 2007, Meron stated that "I believe that I would
have given the same opinion today."
The International Court of Justice, in its advisory opinion, has
since ruled that Israel is in breach of international law by
establishing settlements in Occupied Palestinian Territory, including
East Jerusalem. The Court maintains that Israel cannot rely on its right
of self-defense or necessity to impose a regime that violates
international law. The Court also ruled that Israel violates basic human
rights by impeding liberty of movement and the inhabitants' right to
work, health, education and an adequate standard of living.
International intergovernmental organizations such as the Conference of the High Contracting Parties to the Fourth Geneva Convention, major organs of the United Nations, the European Union, and Canada, also regard the settlements as a violation of international law. The Committee on the Elimination of Racial Discrimination
wrote that "The status of the settlements was clearly inconsistent with
Article 3 of the Convention, which, as noted in the Committee's General
Recommendation XIX, prohibited all forms of racial segregation in all
countries. There is a consensus among publicists that the prohibition of
racial discrimination, irrespective of territories, is an imperative
norm of international law." Amnesty International, and Human Rights Watch have also characterized the settlements as a violation of international law.
In late January 2013 a report drafted by three justices, presided over by Christine Chanet, and issued by the United Nations Human Rights Council declared that Jewish settlements constituted a creeping annexation based on multiple violations of the Geneva Conventions and international law, and stated that if Palestine ratified the Rome Accord, Israel could be tried for "gross violations of human rights law and serious violations of international humanitarian law." A spokesman for Israel's Foreign Ministry declared the report 'unfortunate' and accused the UN's Human Rights Council of a "systematically one-sided and biased approach towards Israel."
The Supreme Court of Israel,
with a variety of different justices sitting, has repeatedly stated
that Israel's presence in the West Bank is in violation of international
law.
Legality arguments
Four prominent jurists cited the concept of the "sovereignty vacuum"
in the immediate aftermath of the Six-Day War to describe the legal
status of the West Bank and Gaza: Yehuda Zvi Blum in 1968, Elihu Lauterpacht in 1968, Julius Stone in 1969 and 1981, and Stephen M. Schwebel in 1970. Eugene V. Rostow also argued in 1979 that the occupied territories' legal status was undetermined.
Stephen M. Schwebel
made three distinctions specific to the Israeli situation to claim that
the territories were seized in self-defense and that Israel has more
title to them than the previous holders.
Julius Stone
also wrote that "Israel's presence in all these areas pending
negotiation of new borders is entirely lawful, since Israel entered them
lawfully in self-defense."
He argued that it would be an "irony bordering on the absurd" to read
Article 49(6) as meaning that the State of Israel was obliged to ensure
(by force if necessary) that areas with a millennial association with
Jewish life shall be forever "judenrein".
Professor Ben Saul took exception to this view, arguing that Article
49(6) can be read to include voluntary or assisted transfers, as indeed
it was in the advisory opinion of the International Court of Justice which had expressed this interpretation in the Israeli Wall Advisory Opinion (2003).
Israel maintains that a temporary use of land and buildings for various
purposes is permissible under a plea of military necessity and that the
settlements fulfilled security needs. Israel argues that its settlement policy is consistent with international law, including the Fourth Geneva Convention, while recognising that some settlements have been constructed illegally on private land.
The Israeli Supreme Court has ruled that the power of the Civil
Administration and the Military Commander in the occupied territories is
limited by the entrenched customary rules of public international law
as codified in the Hague Regulations. In 1998 the Israeli Minister of Foreign Affairs produced "The International Criminal Court Background Paper". It concludes
International
law has long recognised that there are crimes of such severity they
should be considered "international crimes." Such crimes have been
established in treaties such as the Genocide Convention and the Geneva
Conventions.... The following are Israel's primary issues of concern
[i.e. with the rules of the ICC]: The inclusion of settlement activity
as a "war crime" is a cynical attempt to abuse the Court for political
ends. The implication that the transfer of civilian population to
occupied territories can be classified as a crime equal in gravity to
attacks on civilian population centres or mass murder is preposterous
and has no basis in international law.
A UN conference was held in Rome in 1998, where Israel was one of
seven countries to vote against the Rome Statute to establish the International Criminal Court.
Israel was opposed to a provision that included as a war crime the
transfer of civilian populations into territory the government occupies. Israel has signed the statute, but not ratified the treaty.
A 1996 amendment to an Israeli military order states that land
privately owned can not be part of a settlement unless the land in
question has been confiscated for military purposes. In 2006 Peace Now
acquired a report, which it claims was leaked from the Israeli
Government's Civil Administration, indicating that up to 40 percent of
the land Israel plans to retain in the West Bank is privately owned by
Palestinians. Peace Now called this a violation of Israeli law. Peace Now published a comprehensive report about settlements on private lands. In the wake of a legal battle, Peace Now lowered the figure to 32 percent, which the Civil Administration also denied. The Washington Post
reported that "The 38-page report offers what appears to be a
comprehensive argument against the Israeli government's contention that
it avoids building on private land, drawing on the state's own data to
make the case."
In February 2008, the Civil Administration stated that the land
on which more than a third of West Bank settlements was built had been
expropriated by the IDF for "security purposes." The unauthorized seizure of private Palestinian land was defined by the Civil Administration itself as 'theft.' According to B'Tselem,
more than 42 percent of the West Bank are under control of the Israeli
settlements, 21 percent of which was seized from private Palestinian
owners, much of it in violation of the 1979 Israeli Supreme Court
decision.
In 1979, the government decided to extend settlements or build new ones only on "state lands".
A secret database, drafted by a retired senior officer, Baruch Spiegel, on orders from former defense ministerShaul Mofaz, found that some settlements deemed legal by Israel were illegal outposts, and that large portions of Ofra, Elon Moreh and Beit El
were built on private Palestinian land. The "Spiegel report" was
revealed by Haaretz in 2009. Many settlements are largely built on
private lands, without approval of the Israeli Government. According to Israel, the bulk of the land was vacant, was leased from the state, or bought fairly from Palestinian landowners.
Invoking the Absentees' Property Laws
to transfer, sell or lease property in East Jerusalem owned by
Palestinians who live elsewhere without compensation has been criticized
both inside and outside of Israel.
Opponents of the settlements claim that "vacant" land belonged to Arabs
who fled or collectively to an entire village, a practice that
developed under Ottoman rule. B'Tselem
charged that Israel is using the absence of modern legal documents for
the communal land as a legal basis for expropriating it. These
"abandoned lands" are sometimes laundered through a series of fraudulent
sales.
According to Amira Hass, one of the techniques used by Israel to
expropriate Palestinian land is to place desired areas under a 'military
firing zone' classification, and then issue orders for the evacuation
of Palestinians from the villages in that range, while allowing
contiguous Jewish settlements to remain unaffected.
Effects on Palestinian human rights
Parts
of the West Bank allocated to the settlements, as of January 2012 (in
pink and purple color). Access is prohibited or restricted to
Palestinians.
Amnesty International argues that Israel's settlement policy is discriminatory and a violation of Palestinian human rights. B'Tselem claims that Israeli travel restrictions impact on Palestinian freedom of movement and Palestinian human rights have been violated in Hebron due to the presence of the settlers within the city.
According to B'Tselem, over fifty percent of West Bank land
expropriated from Palestinians has been used to establish settlements
and create reserves of land for their future expansion. The seized lands
mainly benefit the settlements and Palestinians cannot use them. The roads built by Israel in the West Bank to serve the settlements are closed to Palestinian vehicles' and act as a barrier often between villages and the lands on which they subsist.
Human Rights Watch and other human rights observer volunteer
regularly file reports on "settler violence," referring to stoning and
shooting incidents involving Israeli settlers. Israel's withdrawal from Gaza and Hebron have led to violent settler protests and disputes over land and resources. Meron Benvenisti described the settlement enterprise as a "commercial real estate project that conscripts Zionist rhetoric for profit."
In July 2012, the UN Human Rights Council decided to set up a probe into Jewish settlements. The report of the independent international fact-finding mission
which investigated the "implications of the Israeli settlements on the
civil, political, economic, social and cultural rights of the
Palestinian people throughout the Occupied Palestinian Territory" was
published in February 2013.
Goods produced in Israeli settlements are able to stay competitive on
the global market, in part because of massive state subsidies they
receive from the Israeli government. Farmers and producers are given
state assistance, while companies that set up in the territories receive
tax breaks and direct government subsidies. An Israeli government fund
has also been established to help companies pay customs penalties. Palestinian officials estimate that settlers sell goods worth some $500 million to the Palestinian market.
Israel has built 16 industrial zones, containing roughly 1000
industrial plants, in the West Bank and East Jerusalem on acreage that
consumes large parts of the territory planned for a future Palestinian
state. According to Jodi Rudoren these installations both entrench the
occupation and provide work for Palestinians, even those opposed to it.
The 16 parks are located at Shaked, Beka'ot, Baran, Karnei Shomron, Emmanuel, Barkan, Ariel, Shilo, Halamish, Ma'ale Efraim, Sha'ar Binyamin, Atarot, Mishor Adumim, Gush Etzion, Kiryat Arba and Metarim (2001).
In spite of this, the West Bank settlements have failed to develop a
self-sustaining local economy. About 60% of the settler workforce
commutes to Israel for work. The settlements rely primarily on the labor
of their residents in Israel proper rather than local manufacturing,
agriculture, or research and development. Of the industrial parks in the
settlements, there are only two significant ones, at Ma'ale Adumim and
Barkan, with most of the workers there being Palestinian. Only a few
hundred settler households cultivate agricultural land, and rely
primarily on Palestinian labor in doing so.
Settlement has an economic dimension, much of it driven by the
significantly lower costs of housing for Israeli citizens living in
Israeli settlements compared to the cost of housing and living in Israel
proper. Government spending per citizen in the settlements is double that spent per Israeli citizen in Tel Aviv and Jerusalem,
while government spending for settlers in isolated Israeli settlements
is three times the Israeli national average. Most of the spending goes
to the security of the Israeli citizens living there.
Export to EU
According to Israeli government estimates, $230 million worth of
settler goods including fruit, vegetables, cosmetics, textiles and toys
are exported to the EU each year, accounting for approximately 2% of all
Israeli exports to Europe. A 2013 report of Profundo revealed that at least 38 Dutch companies imported settlement products.
European Union
law requires a distinction to be made between goods originating in
Israel and those from the occupied territories. The former benefit from
preferential custom treatment according to the EU-Israel Association Agreement (2000); the latter don't, having been explicitly excluded from the agreement.
In practice, however, settler goods often avoid mandatory customs
through being labelled as originating in Israel, while European customs
authorities commonly fail to complete obligatory postal code checks of
products to ensure they have not originated in the occupied territories.
In 2009, the United Kingdom's
Department for the Environment, Food and Rural Affairs issued new
guidelines concerning labelling of goods imported from the West Bank.
The new guidelines require labelling to clarify whether West Bank
products originate from settlements or from the Palestinian economy.
Israel's foreign ministry said that the UK was "catering to the demands
of those whose ultimate goal is the boycott of Israeli products"; but
this was denied by the UK government, who said that the aim of the new
regulations was to allow consumers to choose for themselves what produce
they buy. Denmark has similar legislation requiring food products from settlements in the occupied territories to be accurately labelled.
In June 2022, Norway also stated that it would begin complying with EU
regulation to label produce originating from Israeli settlements in the
West Bank and Golan Heights as such.
On 12 November 2019 the Court of Justice of the European Union in a ruling
covering all territory Israel captured in the 1967 war decided that
labels on foodstuffs must not imply that goods produced in occupied
territory came from Israel itself and must "prevent consumers from being
misled as to the fact that the State of Israel is present in the
territories concerned as an occupying power and not as a sovereign
entity". In its ruling, the court said that failing to inform EU
consumers they were potentially buying goods produced in settlements
denies them access to "ethical considerations and considerations
relating to the observance of international law".
In January 2019 the Dail (Ireland's lower house) voted in favour, by 78 to 45, of the Control of Economic Activity (Occupied Territories) bill. This piece of legislation prohibits the purchasing of any good and/or service from the Golan Heights, East Jerusalem or West Bank
settlements. As of February 2019 the bill has some stages to be
completed,once codified, either a five-year jail sentence or fines of up
to €250,000 ($284,000) will affect anyone who breaks this law.
A petition under the European Citizens' Initiative,
submitted in September 2021, was accepted on 20 February 2022. The
petition seeks the adoption of legislation to ban trade with unlawful
settlements. The petition requires a million signatures from across the
EU and has received support from civil society groups including Human Rights Watch.
Palestinian economy and resources
A Palestinian report argued in 2011 that settlements have a
detrimental effect on the Palestinian economy, equivalent to about 85%
of the nominal gross domestic product of Palestine, and that the
"occupation enterprise" allows the state of Israel and commercial firms
to profit from Palestinian natural resources and tourist potential. A 2013 report published by the World Bank
analysed the impact that the limited access to Area C lands and
resources had on the Palestinian economy. While settlements represent a
single axis of control, it is the largest with 68% of the Area C lands
reserved for the settlements. The report goes on to calculate that
access to the lands and resources of Area C, including the territory in
and around settlements, would increase the Palestinian GDP by some $3.5
billion (or 35%) per year.
The Israeli Supreme Court has ruled that Israeli companies are
entitled to exploit the West Bank's natural resources for economic gain,
and that international law must be "adapted" to the "reality on the
ground" of long-term occupation.alestinian labour
Due to the availability of jobs offering twice the prevailing salary of the West Bank (as of August 2013), as well as high unemployment, tens of thousands of Palestinians work in Israeli settlements. According to the Manufacturers Association of Israel, some 22,000 Palestinians were employed in construction, agriculture, manufacturing and service industries. An Al-Quds University
study in 2011 found that 82% of Palestinian workers said they would
prefer to not work in Israeli settlements if they had alternative
employment in the West Bank.
Palestinians have been highly involved in the construction of
settlements in the West Bank. In 2013, the Palestinian Central Bureau of
Statistics released their survey showing that the number of Palestinian
workers who are employed by the Jewish settlements increased from
16,000 to 20,000 in the first quarter.
The survey also found that Palestinians who work in Israel and the
settlements are paid more than twice their salary compared to what they
receive from Palestinian employers.
In 2008, Kav LaOved
charged that Palestinians who work in Israeli settlements are not
granted basic protections of Israeli labor law. Instead, they are
employed under Jordanian labor law, which does not require minimum wage, payment for overtime and other social rights. In 2007, the Supreme Court of Israel
ruled that Israeli labor law does apply to Palestinians working in West
Bank settlements and applying different rules in the same work place
constituted discrimination. The ruling allowed Palestinian workers to
file lawsuits in Israeli courts. In 2008, the average sum claimed by
such lawsuits stood at 100,000 shekels.
According to the Palestinian Center for Policy and Survey
Research, 63% of Palestinians opposed PA plans to prosecute Palestinians
who work in the settlements. However, 72% of Palestinians support a
boycott of the products they sell.
Although the Palestinian Authority has criminalized working in the
settlements, the director-general at the Palestinian Ministry of Labor,
Samer Salameh, described the situation in February 2014 as being "caught
between two fires". He said "We strongly discourage work in the
settlements, since the entire enterprise is illegal and
illegitimate...but given the high unemployment rate and the lack of
alternatives, we do not enforce the law that criminalizes work in the
settlements."
"Gas the Arabs"; graffiti on the door of a home in Hebron, 2008Olive trees in the village of Burin allegedly vandalized by settlers from the settlement Yitzhar in November 2009
Gush Emunim Underground was a militant organization that operated in 1979–1984. The organization planned attacks on Palestinian officials and the Dome of the Rock. In 1994, Baruch Goldstein of Hebron, a member of Kach carried out the Cave of the Patriarchs massacre,
killing 29 Muslim worshipers and injuring 125. The attack was widely
condemned by the Israeli government and Jewish community. The
Palestinian leadership has accused Israel of "encouraging and enabling"
settler violence in a bid to provoke Palestinian riots and violence in
retaliation.
Violence perpetrated by Israeli settlers against Palestinians
constitutes terrorism according to the U.S. Department of State, and
former IDF Head of Central Command Avi Mizrahi stated that such violence
constitutes "terror."
In mid-2008, a UN report recorded 222 acts of Israeli settler violence against Palestinians and IDF troops compared with 291 in 2007. This trend reportedly increased in 2009.
Maj-Gen Shamni said that the number had risen from a few dozen
individuals to hundreds, and called it "a very grave phenomenon." In 2008–2009, the defense establishment adopted a harder line against the extremists. This group responded with a tactic dubbed "price tagging", vandalizing Palestinian property whenever police or soldiers were sent in to dismantle outposts. From January through to September 2013, 276 attacks by settlers against Palestinians were recorded.
Leading religious figures in the West Bank have harshly criticized these tactics. Rabbi Menachem Froman of Tekoa
said that "Targeting Palestinians and their property is a shocking
thing, ... It's an act of hurting humanity. ... This builds a wall of
fire between Jews and Arabs." The Yesha Council and Hanan Porat also condemned such actions. Other rabbis have been accused of inciting violence against non-Jews.
In response to settler violence, the Israeli government said that it
would increase law enforcement and cut off aid to illegal outposts. Some settlers are thought to lash out at Palestinians because they are "easy victims." The United Nations accused Israel of failing to intervene and arrest settlers suspected of violence.
In 2008, Haaretz wrote that "Israeli society has become accustomed to
seeing lawbreaking settlers receive special treatment and no other group
could similarly attack Israeli law enforcement agencies without being
severely punished."
In September 2011, settlers vandalized a mosque and an army base.
They slashed tires and cut cables of 12 army vehicles and sprayed
graffiti.
In November 2011, the United Nations Office for Coordination of Human
Affairs (OCHA) in the Palestinian territories published a report on
settler violence that showed a significant rise compared to 2009 and
2010. The report covered physical violence and property damage such as
uprooted olive trees, damaged tractors and slaughtered sheep. The report
states that 90% of complaints filed by Palestinians have been closed
without charge.
According to EU reports, Israel has created an "atmosphere of
impunity" for Jewish attackers, which is seen as tantamount to tacit
approval by the state. In the West Bank, Jews and Palestinians live
under two different legal regimes and it is difficult for Palestinians
to lodge complaints, which must be filed in Hebrew in Israeli
settlements.
The 27 ministers of foreign affairs of the European Union
published a report in May 2012 strongly denouncing policies of the State
of Israel in the West Bank and denouncing "continuous settler violence
and deliberate provocations against Palestinian civilians."
The report by all EU ministers called "on the government of Israel to
bring the perpetrators to justice and to comply with its obligations
under international law."
In July 2014, a day after the burial of three murdered Israeli teens, Khdeir, a 16-year-old Palestinian, was forced into a car by 3 Israeli settlers on an East Jerusalem street. His family immediately reported the fact to Israeli Police who located his charred body a few hours later at Givat Shaul in the Jerusalem Forest. Preliminary results from the autopsy suggested that he was beaten and burnt while still alive. The murder suspects explained the attack as a response to the June abduction and murder of three Israeli teens. The murders contributed to a breakout of hostilities in the 2014 Israel–Gaza conflict.
In July 2015, a similar incident occurred where Israeli settlers made an arson attack on two Palestinian
houses, one of which was empty; however, the other was occupied,
resulting in the burning to death of a Palestinian infant; the four
other members of his family were evacuated to the hospital suffering
serious injuries. These two incidents received condemnation from the United States, European Union and the IDF. The European Union criticized Israel for "failing to protect the Palestinian population".
Olive trees
While the economy of the Palestinian territories has shown signs of growth, the International Committee of the Red Cross
reported that Palestinian olive farming has suffered. According to the
ICRC, 10,000 olive trees were cut down or burned by settlers in
2007–2010. Foreign ministry spokesman Yigal Palmor
said the report ignored official PA data showing that the economic
situation of Palestinians had improved substantially, citing Mahmoud
Abbas's comment to The Washington Post in May 2009, where he said "in the West Bank, we have a good reality, the people are living a normal life."
Haaretz blamed the violence during the olive harvest on a handful of extremists.
In 2010, trees belonging to both Jews and Arabs were cut down, poisoned
or torched. In the first two weeks of the harvest, 500 trees owned by
Palestinians and 100 trees owned by Jews had been vandalized. In October 2013, 100 trees were cut down.
Violent attacks on olive trees seem to be facilitated by the
apparently systematic refusal of the Israeli authorities to allow
Palestinians to visit their own groves, sometimes for years, especially
in cases where the groves are deemed to be too close to settlements.
Palestinian violence against settlers
Israeli civilians
living in settlements have been targeted by violence from armed
Palestinian groups. These groups, according to Human Rights Watch,
assert that settlers are "legitimate targets" that have "forfeited their
civilian status by residing in settlements that are illegal under
international humanitarian law."
Both Human Rights Watch and B'tselem rejected this argument on the
basis that the legal status of the settlements has no effect on the
civilian status of their residents. Human Rights Watch said the "prohibition against intentional attacks against civilians is absolute."
B'tselem said "The settlers constitute a distinctly civilian
population, which is entitled to all the protections granted civilians
by international law. The Israeli security forces' use of land in the
settlements or the membership of some settlers in the Israeli security
forces does not affect the status of the other residents living among
them, and certainly does not make them proper targets of attack."
Fatal attacks on settlers have included firing of rockets and mortars and drive-by shootings, also targeting infants and children. Violent incidents include the murder of Shalhevet Pass, a ten-month-old baby shot by a Palestinian sniper in Hebron, and the murder of two teenagers by unknown perpetrators on 8 May 2001, whose bodies were hidden in a cave near Tekoa, a crime that Israeli authorities suggest may have been committed by Palestinian terrorists. In the Bat Ayin axe attack, children in Bat Ayin were attacked by a Palestinian wielding an axe and a knife. A 13-year-old boy was killed and another was seriously wounded. Rabbi Meir Hai, a father of seven, was killed in a drive-by shooting.
In August 2011, five members of one family were killed in their beds.
The victims were the father Ehud (Udi) Fogel, the mother Ruth Fogel, and
three of their six children—Yoav, 11, Elad, 4, and Hadas, the youngest,
a three-month-old infant. According to David Ha'ivri, and as reported by multiple sources, the infant was decapitated.
Pro-Palestinian activist violence
Itamar,
West Bank. Itamar's residents have been the target of deadly attacks by
Palestinian militants. Itamar settlers have also committed violent acts
against local Palestinians.Funeral of Fogel family, killed in Itamar attack
Pro-Palestinian activists who hold regular protests near the
settlements have been accused of stone-throwing, physical assault and
provocation. In 2008, Avshalom Peled, head of the Israel Police's
Hebron district, called "left-wing" activity in the city dangerous and
provocative, and accused activists of antagonizing the settlers in the
hope of getting a reaction.
Environmental issues
Municipal Environmental Associations of Judea and Samaria, an
environmental awareness group, was established by the settlers to
address sewage treatment problems and cooperate with the Palestinian
Authority on environmental issues. According to a 2004 report by Friends of the Earth Middle East, settlers account for 10% of the population in the West Bank but produce 25% of the sewage output. Beit Duqqu and Qalqilyah
have accused settlers of polluting their farmland and villagers claim
children have become ill after swimming in a local stream. Legal action
was taken against 14 settlements by the Israeli Ministry of the Environment. The Palestinian Authority has also been criticized by environmentalists for not doing more to prevent water pollution.
Settlers and Palestinians share the mountain aquifer as a water source,
and both generate sewage and industrial effluents that endanger the
aquifer. Friends of the Earth Middle East claimed that sewage treatment
was inadequate in both sectors. Sewage from Palestinian sources was
estimated at 46 million cubic meters a year, and sources from settler
sources at 15 million cubic meters a year. A 2004 study found that
sewage was not sufficiently treated in many settlements, while sewage
from Palestinian villages and cities flowed into unlined cesspits,
streams and the open environment with no treatment at all.
In a 2007 study, the Israel Nature and Parks Authority
and Israeli Ministry of Environmental Protection, found that
Palestinian towns and cities produced 56 million cubic meters of sewage
per year, 94 percent discharged without adequate treatment, while
Israeli sources produced 17.5 million cubic meters per year, 31.5
percent without adequate treatment.
According to Palestinian environmentalists, the settlers operate
industrial and manufacturing plants that can create pollution as many do
not conform to Israeli standards. In 2005, an old quarry between Kedumim and Nablus
was slated for conversion into an industrial waste dump. Pollution
experts warned that the dump would threaten Palestinian water sources.
The Consortium for Applied Research on International Migration
(CARIM) has reported in their 2011 migration profile for Palestine that
the reasons for individuals to leave the country are similar to those of
other countries in the region and they attribute less importance to the
specific political situation of the occupied Palestinian territory.
Human Rights Watch in 2010 reported that Israeli settlement policies
have had the effect of "forcing residents to leave their communities".
In 2008, Condoleezza Rice
suggested sending Palestinian refugees to South America, which might
reduce pressure on Israel to withdraw from the settlements. Sushil P. Seth
speculates that Israelis might feel that increasing settlements will
force many Palestinians to flee to other countries and that the
remainder will be forced to live under Israeli terms.
Speaking anonymously with regard to Israeli policies in the South
Hebron Hills, a UN expert said that the Israeli crackdown on alternative
energy infrastructures like solar panels is part of a deliberate
strategy in Area C.
"From December 2010 to April 2011, we saw a systematic targeting of the water infrastructure in Hebron, Bethlehem and the Jordan valley.
Now, in the last couple of months, they are targeting electricity. Two
villages in the area have had their electrical poles demolished. There
is this systematic effort by the civil administration targeting all
Palestinian infrastructure in Hebron. They are hoping that by making it miserable enough, they [the Palestinians] will pick up and leave."
Approximately 1,500 people in 16 communities are dependent on energy
produced by these installations duct business are threatened with work
stoppage orders from the Israeli administration on their installation of
alternative power infrastructure, and demolition orders expected to
follow will darken the homes of 500 people.
Ariel University,
formerly the College of Judea and Samaria, is the major Israeli
institution of higher education in the West Bank. With close to 13,000
students, it is Israel's largest public college. The college was
accredited in 1994 and awards bachelor's degrees in arts, sciences,
technology, architecture and physical therapy. On 17 July 2012, the Council for Higher Education in Judea and Samaria voted to grant the institution full university status.
Teacher training colleges include Herzog College in Alon Shvut and Orot Israel College in Elkana. Ohalo College is located in Katzrin, in the Golan Heights. Curricula at these institutions are overseen by the Council for Higher Education in Judea and Samaria (CHE-JS).
In March 2012, The Shomron Regional Council was awarded the Israeli Ministry of Education's first prize National Education Award in recognizing its excellence in investing substantial resources in the educational system. The Shomron Regional Council achieved the highest marks in all parameters (9.28 / 10). Gershon Mesika,
the head of the regional council, declared that the award was a
certificate of honour of its educators and the settlement youth who
proved their quality and excellence.
Strategic significance
IDF soldiers and Israeli settlers, 2009
In 1983 an Israeli government plan entitled "Master Plan and
Development Plan for Settlement in Samaria and Judea" envisaged placing a
"maximally large Jewish population" in priority areas to accomplish
incorporation of the West Bank in the Israeli "national system". According to Ariel Sharon, strategic settlement locations would work to preclude the formation of a Palestinian state.
Palestinians argue that the policy of settlements constitutes an effort to preempt or sabotage a peace treaty that includes Palestinian sovereignty, and claim that the presence of settlements harm the ability to have a viable and contiguous state. This was also the view of the Israeli Vice Prime Minister Haim Ramon
in 2008, saying "the pressure to enlarge Ofra and other settlements
does not stem from a housing shortage, but rather is an attempt to
undermine any chance of reaching an agreement with the Palestinians ..."
The Israel Foreign Ministry
asserts that some settlements are legitimate, as they took shape when
there was no operative diplomatic arrangement, and thus they did not
violate any agreement. Based on this, they assert that:
Prior to the signing of the Egypt–Israel peace treaty, the eruption of the First Intifada, down to the signing of the Israel–Jordan peace treaty
in 1994, Israeli governments on the left and right argued that the
settlements were of strategic and tactical importance. The location of
the settlements was primarily chosen based on the threat of an attack by
the bordering hostile countries of Jordan, Syria, and Egypt
and possible routes of advance into Israeli population areas. These
settlements were seen as contributing to the security of Israel at a
time when peace treaties had not been signed.
An early evacuation took place in 1982 as part of the Egypt–Israel
peace treaty, when Israel was required to evacuate its settlers from the
18 Sinai settlements. Arab parties to the conflict had demanded the
dismantlement of the settlements as a condition for peace with Israel.
The evacuation was carried out with force in some instances, for example
in Yamit. The settlements were demolished, as it was feared that settlers might try to return to their homes after the evacuation.
Israel's unilateral disengagement
from the Gaza Strip took place in 2005. It involved the evacuation of
settlements in the Gaza Strip and part of the West Bank, including all
21 settlements in Gaza and four in the West Bank, while retaining
control over Gaza's borders, coastline, and airspace. Most of these
settlements had existed since the early 1980s, some were over 30 years
old; the total population involved was more than 8,000.
There was significant opposition to the plan among parts of the Israeli
public, and especially those living in the territories. George W. Bush said that a permanent peace deal would have to reflect "demographic realities" in the West Bank regarding Israel's settlements.
The Israeli human rights group GISHA
maintains that despite the disengagement, Israel continues to occupy
Gaza because it maintains its control over the area. For example, Israel
maintains control over Gaza's airspace and waters, its borders
(specifically, passage of goods and people to and from Gaza), the
population registry, its telecommunications networks, and the collection
of customs and tax on imports. GISHA also reports that Israel continues
to control Gaza's infrastructure through its control over the supply of
resources such as electricity. In addition, under the disengagement
plan, Israel can prevent the PA from reopening its airport or seaport.
Within the former settlements, almost all buildings were
demolished by Israel, with the exception of certain government and
religious structures, which were completely emptied. Under an
international arrangement, greenhouses were left to assist the
Palestinian economy although half had been demolished by the settlers
two months prior to the disengagement. The reduction in greenhouse space and increased restrictions on exports reduced the viability of the project.
After the redeployment of Israeli troops to the Gaza border, 30% of the
greenhouses suffered various degrees of damage due to Palestinian
looters stealing, for example, hoses and irrigation equipment. Following the withdrawal, many of the former synagogues were torched and destroyed by Palestinians.
Some believe that settlements need not necessarily be dismantled
and evacuated, even if Israel withdraws from the territory where they
stand, as they can remain under Palestinian rule. These ideas have been
expressed both by left-wing Israelis, and by Palestinians who advocate the two-state solution, and by extreme Israeli right-wingers and settlers
who object to any dismantling and claim links to the land that are
stronger than the political boundaries of the state of Israel.
The Israeli government has often threatened to dismantle outposts. Some have actually been dismantled, occasionally with use of force; this led to settler violence.
Palestinian statehood bid of 2011
American refusal to declare the settlements illegal was said to be
the determining factor in the 2011 attempt to declare Palestinian
statehood at the United Nations, the so-called Palestine 194 initiative.
Israel announced additional settlements in response to the
Palestinian diplomatic initiative and Germany responded by moving to
stop deliveries to Israel of submarines capable of carrying nuclear
weapons.
Finally in 2012, several European states switched to either
abstain or vote for statehood in response to continued settlement
construction. Israel approved further settlements in response to the vote, which brought further worldwide condemnation.
Ariel, one of the four biggest settlements in the West BankBetar Illit, one of the four biggest settlements in the West BankMa'ale Adumim, one of the four biggest settlements in the West Bank, industrial area, 2012Modi'in Illit, one of the four biggest settlements in the West BankTrump's peace plan for the creation of the State of Palestine.
The settlements have been a source of tension between Israel and the U.S. Jimmy Carter regarded the settlements as illegal and tactically unwise. Ronald Reagan stated that they were legal but an obstacle to negotiations.
In 1991, the U.S. delayed a subsidized loan to pressure Israel on the
subject of settlement-building in the Jerusalem-Bethlehem corridor. In
2005, U.S. declared support for "the retention by Israel of major
Israeli population centers as an outcome of negotiations," reflecting the statement by George W. Bush that a permanent peace treaty would have to reflect "demographic realities" in the West Bank. In June 2009, Barack Obama said that the United States "does not accept the legitimacy of continued Israeli settlements."
Palestinians claim that Israel has undermined the Oslo accords
and peace process by continuing to expand the settlements. Settlements
in the Sinai Peninsula were evacuated and razed in the wake of the peace
agreement with Egypt.
The 27 ministers of foreign affairs of the European Union published a
report in May 2012 strongly denouncing policies of the State of Israel
in the West Bank and finding that Israeli settlements in the West Bank
are illegal and "threaten to make a two-state solution impossible." In the framework of the Oslo I Accord of 1993 between the Israeli government and the Palestine Liberation Organization (PLO), a modus vivendi
was reached whereby both parties agreed to postpone a final solution on
the destination of the settlements to the permanent status negotiations
(Article V.3). Israel claims that settlements thereby were not
prohibited, since there is no explicit interim provision prohibiting
continued settlement construction, the agreement does register an
undertaking by both sides, namely that "Neither side shall initiate or
take any step that will change the status of the West Bank and the Gaza
Strip pending the outcome of the permanent status negotiations" (Article
XXX1 (7)), which has been interpreted as, not forbidding settlements,
but imposing severe restrictions on new settlement building after that
date.
Melanie Jacques argued in this context that even 'agreements between
Israel and the Palestinians which would allow settlements in the OPT, or
simply tolerate them pending a settlement of the conflict, violate the
Fourth Geneva Convention.'
Final status proposals have called for retaining long-established communities along the Green Line and transferring the same amount of land in Israel to the Palestinian state. The Clinton administration proposed
that Israel keep some settlements in the West Bank, especially those in
large blocs near the pre-1967 borders of Israel, with the Palestinians
receiving concessions of land in other parts of the country. Both Clinton and Tony Blair pointed out the need for territorial and diplomatic compromise based on the validity of some of the claims of both sides.
As Minister of Defense, Ehud Barak approved a plan requiring security commitments in exchange for withdrawal from the West Bank. Barak also expressed readiness to cede parts of East Jerusalem and put the holy sites in the city under a "special regime."
On 14 June 2009, Israeli Prime Minister Benjamin Netanyahu, as an
answer to U.S. President Barack Obama's speech in Cairo, delivered a
speech setting out his principles for a Palestinian-Israeli peace, among
others, he alleged "... we have no intention of building new
settlements or of expropriating additional land for existing
settlements." In March 2010, the Netanyahu government announced plans for building 1,600 housing units in Ramat Shlomo across the Green Line in East Jerusalem during U.S. Vice President Joe Biden's visit to Israel causing a diplomatic row.
On 6 September 2010, Jordanian King Abdullah II and Syrian President Bashar al-Assad said that Israel would need to withdraw from all of the lands occupied in 1967 in order to achieve peace with the Palestinians.
Bradley Burston has said that a negotiated or unilateral withdraw
from most of the settlements in the West Bank is gaining traction in
Israel.
In November 2010, the United States offered to "fight against efforts to delegitimize Israel"
and provide extra arms to Israel in exchange for a continuation of the
settlement freeze and a final peace agreement, but failed to come to an
agreement with the Israelis on the exact terms.
In December 2010, the United States criticised efforts by the
Palestinian Authority to impose borders for the two states through the
United Nations rather than through direct negotiations between the two
sides. In February 2011, it vetoed a draft resolution to condemn all Jewish settlements established in the occupied Palestinian territory since 1967 as illegal. The resolution, which was supported by all other Security Council members and co-sponsored by nearly 120 nations,
would have demanded that "Israel, as the occupying power, immediately
and completely ceases all settlement activities in the occupied
Palestinian territory, including East Jerusalem and that it fully
respect its legal obligations in this regard." The U.S. representative said that while it agreed that the settlements were illegal, the resolution would harm chances for negotiations.
Israel's deputy Foreign Minister, Daniel Ayalon, said that the "UN
serves as a rubber stamp for the Arab countries and, as such, the
General Assembly has an automatic majority," and that the vote "proved
that the United States is the only country capable of advancing the
peace process and the only righteous one speaking the truth: that direct
talks between Israel and the Palestinians are required." Palestinian negotiators, however, have refused to resume direct talks until Israel ceases all settlement activity.
In November 2009, Israeli Prime Minister Netanyahu issued a
10-month settlement freeze in the West Bank in an attempt to restart
negotiations with the Palestinians. The freeze did not apply to building
in Jerusalem in areas across the green line, housing already under
construction and existing construction described as "essential for
normal life in the settlements" such as synagogues, schools,
kindergartens and public buildings. The Palestinians refused to
negotiate without a complete halt to construction.In the face of pressure from the United States and most world powers
supporting the demand by the Palestinian Authority that Israel desist
from settlement project in 2010, Israel's ambassador to the UN Meron Reuben
said Israel would only stop settlement construction after a peace
agreement is concluded, and expressed concern were Arab countries to
press for UN recognition of a Palestinian state before such an accord.
He cited Israel's dismantlement of settlements in both the Sinai which
took place after a peace agreement, and its unilateral dismantlement of
settlements in the Gaza Strip. He presumed that settlements would stop
being built were Palestinians to establish a state in a given area.
The Clinton Parameters, a 2000 peace proposal by then U.S. President Bill Clinton, included a plan on which the Palestinian State was to include 94–96% of the West Bank,
and around 80% of the settlers were to be under Israeli sovereignty,
and in exchange for that, Israel will concede some territory (so called
'Territory Exchange' or 'Land Swap') within the Green Line (1967
borders). The swap would consist of 1–3% of Israeli territory, such that
the final borders of the West Bank part of the Palestinian state would
include 97% of the land of the original borders.
In 2010, Palestinian Authority President Mahmoud Abbas said that
the Palestinians and Israel have agreed on the principle of a land swap.
The issue of the ratio of land Israel would give to the Palestinians in
exchange for keeping settlement blocs is an issue of dispute, with the
Palestinians demanding that the ratio be 1:1, and Israel insisting that
other factors be considered as well.
Under any peace deal with the Palestinians, Israel intends to
keep the major settlement blocs close to its borders, which contain over
80% of the settlers. Prime Ministers Yitzhak Rabin, Ariel Sharon, and Benjamin Netanyahu have all stated Israel's intent to keep such blocs under any peace agreement. U.S. President George W. Bush acknowledged that such areas should be annexed to Israel in a 2004 letter to Prime Minister Sharon.
The European Union
position is that any annexation of settlements should be done as part
of mutually agreed land swaps, which would see the Palestinians
controlling territory equivalent to the territory captured in 1967. The EU says that it will not recognise any changes to the 1967 borders without an agreement between the parties.
Israeli Foreign Minister Avigdor Lieberman has proposed a plan which would see settlement blocs annexed to Israel in exchange for heavily Arab areas inside Israel as part of a population exchange.
According to Mitchell G. Bard:
"Ultimately, Israel may decide to unilaterally disengage from the West
Bank and determine which settlements it will incorporate within the
borders it delineates. Israel would prefer, however, to negotiate a
peace treaty with the Palestinians that would specify which Jewish
communities will remain intact within the mutually agreed border of
Israel, and which will need to be evacuated. Israel will undoubtedly
insist that some or all of the "consensus" blocs become part of Israel".
Proposal of dual citizenship
A number of proposals for the granting of Palestinian citizenship or
residential permits to Jewish settlers in return for the removal of
Israeli military installations from the West Bank have been fielded by
such individuals[357] as Arafat,[358]Ibrahim Sarsur[359] and Ahmed Qurei.[360] In contrast, Mahmoud Abbas
said in July 2013 that "In a final resolution, we would not see the
presence of a single Israeli—civilian or soldier—on our lands."[361]
Israeli Minister Moshe Ya'alon said in April 2010 that "just
as Arabs live in Israel, so, too, should Jews be able to live in
Palestine." ... "If we are talking about coexistence and peace, why the
[Palestinian] insistence that the territory they receive be ethnically
cleansed of Jews?".
The idea has been expressed by both advocates of the two-state solution and supporters of the settlers and conservative or fundamentalist currents in Israeli Judaism that, while objecting to any withdrawal, claim stronger links to the land than to the State of Israel.
Settlement expansion
Pre Resolution 2334
On 19 June 2011, Haaretz reported that the Israeli cabinet voted to revoke Defense Minister Ehud Barak's
authority to veto new settlement construction in the West Bank, by
transferring this authority from the Agriculture Ministry, headed by
Barak ally Orit Noked, to the Prime Minister's office.
In 2009, newly elected Prime Minister Benjamin Netanyahu
said: "I have no intention of building new settlements in the West
Bank... But like all the governments there have been until now, I will
have to meet the needs of natural growth in the population. I will not
be able to choke the settlements." On 15 October 2009, he said the settlement row with the United States had been resolved.
In April 2012, four illegal outposts were retroactively legalized by the Israeli government. In June 2012, the Netanyahu government announced a plan to build 851 homes in five settlements: 300 units in Beit El and 551 units in other settlements.
Amid peace negotiations that showed little signs of progress,
Israel issued on 3 November 2013, tenders for 1,700 new homes for Jewish
settlers. The plots were offered in nine settlements in areas Israel
says it intends to keep in any peace deal with the Palestinians.
On 12 November, Peace Now revealed that the Construction and Housing
Ministry had issued tenders for 24,000 more settler homes in the West
Bank, including 4,000 in East Jerusalem. 2,500 units were planned in Ma'aleh Adumim, some 9,000 in the Gush Etzion Region, and circa 12,000 in the Binyamin Region, including 1,200 homes in the E1 area in addition to 3,000 homes in previously frozen E1 projects. Circa 15,000 homes of the 24,000 plan would be east of the West Bank Barrier
and create the first new settlement blocs for two decades, and the
first blocs ever outside the Barrier, far inside the West Bank.
As stated before, the Israeli government (as of 2015) has a
program of residential subsidies in which Israeli settlers receive about
double that given to Israelis in Tel Aviv and Jerusalem. As well,
settlers in isolated areas receive three times the Israeli national
average. From the beginning of 2009 to the end of 2013, the Israeli
settlement population as a whole increased by a rate of over 4% per
year. A New York Times article in 2015 stated that said building had been "at the heart of mounting European criticism of Israel."
Resolution 2334 and quarterly reports
United Nations Security Council Resolution 2334
"Requests the Secretary-General to report to the Council every three
months on the implementation of the provisions of the present
resolution;"In the first of these reports, delivered verbally at a security council meeting on 24 March 2017, United Nations Special Coordinator for the Middle East Peace Process, Nickolay Mladenov,
noted that Resolution 2334 called on Israel to take steps to cease all
settlement activity in the Occupied Palestinian Territory, that "no such
steps have been taken during the reporting period" and that instead,
there had been a marked increase in statements, announcements and
decisions related to construction and expansion.
The 2017 Settlement Regularization in "Judea and Samaria" Law
permits backdated legalization of outposts constructed on private
Palestinian land. Following a petition challenging its legality, on June
9, 2020, Israel's Supreme Court struck down the law that had
retroactively legalized about 4,000 settler homes built on privately
owned Palestinian land.
The Israeli Attorney General has stated that existing laws already
allow legalization of Israeli constructions on private Palestinian land
in the West Bank. The Israeli Attorney General, Avichai Mandelblit,
has updated the High Court on his official approval of the use of a
legal tactic permitting the de facto legalization of roughly 2,000
illegally built Israeli homes throughout the West Bank.
The legal mechanism is known as "market regulation" and relies on the
notion that wildcat Israeli homes built on private Palestinian land were
done so in good faith.
In a report of 22 July 2019, PeaceNow notes that after a gap of 6
years when there were no new outposts, establishment of new outposts
recommenced in 2012, with 32 of the current 126 outposts set up to date.
2 outposts were subject to eviction, 15 were legalized and at least 35
are in process of legalization.
Updates and related matters
The Israeli government announced in 2019 that it has made monetary
grants available for the construction of hotels in Area C of the West
Bank.
According to Peace Now,
approvals for building in Israeli settlements in East Jerusalem
expanded by 60% between 2017, when Donald Trump became US president, and
2019.
On 9 July 2021, Michael Lynk, U.N. special rapporteur on human
rights in the occupied Palestinian territory, addressing a session of
the UN Human Rights Council in Geneva, said "I conclude that the Israeli
settlements do amount to a war crime," and "I submit to you that this
finding compels the international community...to make it clear to Israel
that its illegal occupation, and its defiance of international law and
international opinion, can and will no longer be cost-free." Israel,
which does not recognize Lynk's mandate, boycotted the session.
A new Israeli government, formed on 13 June 2021, declared a "status quo" in the settlements policy. According to Peace Now,
as of 28 October this has not been the case. On October 24, 2021,
tenders were published for 1,355 housing units plus another 83 in Givat HaMatos and on 27 October 2021, approval was given for 3,000 housing units including in settlements deep inside the West Bank. These developments were condemned by the U.S. as well as by the United Kingdom, Russia and 12 European countries.
while UN experts, Michael Lynk, Special Rapporteur on the situation of
human rights in the Palestinian Territory occupied since 1967 and Mr.
Balakrishnan Rajagopal (United States of America), UN Special Rapporteur
on adequate housing said that settlement expansion should be treated as
a "presumptive war crime".
In February 2023, the new Israeli government under Benjamin Netanyahu approved the legalization of nine illegal settler outposts in the West Bank. Finance Minister Bezalel Smotrich took charge of most of the Civil Administration, obtaining broad authority over civilian issues in the West Bank. In March 2023, Netanyahu's government repealed a 2005 law whereby four Israeli settlements, Homesh, Sa-Nur, Ganim and Kadim, were dismantled as part of the Israeli disengagement from Gaza.
In June 2023, Israel shortened the procedure of approving settlement
construction and gave Finance Minister Smotrich the authority to approve
one of the stages, changing the system operating for the last 27 years.
In its first six months, construction of 13,000 housing units in
settlements, almost triple the amount advanced in the whole of 2022.
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