The Legal Case for Israel’s “Settlements”

By Miriam Elman

(Re-published from Legal Insurrection, March 10, 2016) Most people around the world firmly hold to the view that Israel’s residential housing communities built in Judea and Samaria/the West Bank are “illegal”. For years, this fictitious claim has fed a wild campaign of incitement and ‘lawfare’ against Israel, based on the myth that Jews have no legal right to live or make their homes on Palestinian-claimed lands in the West Bank. But the truth is that Israel isn’t an unlawful occupying power—certainly not according to any binding international laws.

Now, Northwestern University Professor of Law Eugene Kontorovich, a leading expert in the fields of constitutional law, international law, and the intersection of law and economics, is on a speaking tour of universities and colleges to explain why. Below I summarize the legal case for Israel’s West Bank settlements according to Kontorovich.

Kontorovich is a full professor at one of the nation’s most prestigious universities and schools of law. He regularly writes an opinion column for the Washington Post’s The Volokh Conspiracywhere he addresses how the BDS-related measures arrayed against Israel can run afoul of the law (see for example here) and has recently criticized the Obama administration’s stance on anti-BDS congressional legislation (see here and here). As we highlighted in a post this past summer, he testified before the House against the argument that economic boycotts of Israel are justified or required by international law, and on the role that Congress can play in opposing BDS in ways consistent with U.S. law and policy.

In a post back in 2013 we also featured one of Kontorovich’s lectures on the topic of Israel’s occupation. In it, he claims that presenting Jewish settlement in the West Bank territory (ancient Judea and Samaria) as illegal or ‘colonial’ ignores both the historical complexities of the issue and the legal circumstances. His current presentation updates the arguments he presented then, bolstering them with new comparative research on “other countries’ settlements” and how the international community has reacted to these occupations …

… Here’s the gist of Kontorovich’s talk, which also generated good feedback at the Maxwell School during the Q&A:

International law derives from treaties and custom, not United Nations General Assembly resolutions which are non-binding and thus don’t oblige any action.

Kontorovich began his lecture by noting that in July 1922 it was the League of Nations that established the Mandate for Palestine, deemed as “reconstituting” a “national home” for the “Jewish people”. The word ‘settlement’ first appears in Article 6 of the Mandate: “close settlement by Jews on the land” was to be allowed and even encouraged. And it’s the League of Nations’ Mandatory borders that are binding.

When new countries are established, the most recent administrative border is what counts.

Kontorovich argues that while the League of Nations’ mandates have been contested by states that have sometimes refused to be bound by them (for example, by Iraq in its claim against Kuwait), these objections have no basis in international law. In 1948 the borders of Israel were supposed to be those of Mandatory Britain. The Green Line, or 1949 armistice lines, which are neither a political nor a territorial boundary and have no legal force under international law, didn’t correspond to any prior administrative border. So Kontorovich says that once Great Britain left, the mandate over Palestine—which was explicitly for the purpose of re-establishing a Jewish national home—just expired. The area became essentially a territory without a sovereign.

The fact that Jewish civilians live today in the West Bank isn’t an international crime.

Kontorovich explains that the Fourth Geneva Convention’s Article 49(6) has been grossly misinterpreted over the years to be a prohibition against the occupying power’s citizens. In fact, it’s only a set of injunctions on the occupier, and was explicitly meant to prevent the kinds of deplorable forcible deportations and mass transfers of peoples perpetrated by Nazi Germany during World War II. Article 49(6) doesn’t say that civilians can’t voluntarily move to live in occupied territory. Nor does it require occupying powers to make it difficult or burdensome for civilians to reside in these territories.

With regard to the West Bank, a sizeable portion of Jewish Israelis who live there today didn’t move into the area, much less were they transferred there by Israel—they were born there! And these settler babies and kids aren’t there illegally. So Article 49(6) doesn’t create a “no-go zone” for the nationals of the occupying power who wish to migrate into the occupied territory. Israel has indicated a willingness to trade away some of this territory as part of a negotiated agreement—having rights and title to territory doesn’t mean a state can’t waive them. But until that day comes, nothing in the Geneva Conventions makes it unlawful for Israeli citizens to voluntarily settle in a territory with no other legal sovereign.

Many other nation-states are regarded as occupiers under international law and have populated these territories with settlers, but these actions have garnered virtually no international opprobrium in comparison to the negative reactions toward Israel’s settlement of the West Bank.

At the conclusion of his talk, Kontorovich noted the double standards that have politicized international law, and undermined its integrity. Only Israel’s actions in the West Bank are deemed unlawful and worthy of boycott, even as plenty of other countries—including America—have occupied territories and enabled their citizens to live in them. Kontorovich points to over a dozen other cases (e.g., Morocco’s occupation of Western SaharaTurkey’s occupation of Northern Cyprus) along with a few that are less well known, like the U.S. occupation of West Berlin which ended in 1990.

Americans were never prevented from living in West Berlin or from opening up businesses there. Nor were any third parties ever told that they had a legal obligation to boycott American-owned companies there. In fact, Kontorovich notes that no one made any fuss when Burger King opened a branch in West Berlin. And during the 1970s and 1980s the place became a popular destination for many American artists and musicians …

To read the full article, click here.