Theodor Meron's editorial
comment revisits the question of the legality of settlements.
I will try to offer an additional
perspective which looks at the underlying values of the laws of occupation and how these
impact the legal analysis of settlement activity in the Israeli context.
A Tale of Two Facets
As is well known, occupation law does not prejudge or impact the sovereign status of
occupied territory. Occupation is a legal-factual concept determined solely on the
basis of the facts on the ground. There is much merit to Meron's view, shared
by many, that an occupied territory does not have to “belong” to
another state, since occupation is not dependent on the sovereign status of the
So what are the laws of occupation intended to achieve? The classic model of
belligerent occupation, reflected in the texts of both the Hague and Geneva
Conventions, envisaged a state effectively controlling, through physical presence, a
territory belonging to another state, without the latter's consent, as part
of an armed conflict. In this classic scenario, the main role of the laws of
occupation are humanitarian: namely to fill a legal gap by regulating the everyday
lives of the inhabitants of the occupied territory, while taking into consideration
the security interests of the occupying power.
The laws of occupation are, however, also aimed at protecting the sovereign rights of
the “rightful sovereign” of the occupied territory. The occupier is
envisioned as a “trustee” of the territory charged with preserving the
prior occupant's sovereign interests in the territory given the fact that the
occupier must return the occupied lands to the “rightful sovereign”
upon the end of the occupation. It is thus accepted that occupation by itself does
not give the occupier any new claim to sovereignty over occupied territory. At the
same time, it does not eliminate any pre-existing claims or rights of the occupier,
or create, in and of itself, new claims or rights over the territory to other
This duality of purpose helps us to understand various questions and challenges. It
is of particular relevance to the issue of Israeli settlements, which can be seen
through more than one prism: the humanitarian dimension that captures most of the
international attention but also issues surrounding sovereign rights and claims
which I will simply address as the “sovereignty dimension.” The latter
has to do with Israeli and Palestinian claims to territorial sovereignty and
mechanisms through which such claims should be resolved.
The “Sovereignty Dimension”
Like Meron, I will not address sovereignty arguments based on religious or biblical
grounds. However, academic discourse tends to overlook the fact that both Israel and
the Palestinians maintain legal
claims to the territory as a matter of general international law.
I will not address the particulars or the relative
strength of each party's claims, but a few facts are worth noting.
As is well known, immediately after the end of the British Mandate in 1948, Arab
nations invaded the territory and waged a war against the newly-declared Jewish
state. By the end of that war, Jordanian forces controlled a significant part of the
territory of Mandatory Palestine, which came to be known as “the West
Bank,” while another part—the Gaza Strip—was controlled by
Egypt. An early indication of the fact that sovereignty issues were left unresolved
is found in the 1949 Armistice
Agreements between Israel and its Arab neighbors. Notably, the
Israel-Jordan armistice agreement made clear that the demarcation lines agreed upon
by the parties were “without prejudice to future territorial settlements or
boundary lines or to claims of either Party relating thereto,” and that the
provisions of that agreement “shall not be interpreted as prejudicing, in any
sense, an ultimate political settlement between the Parties.”
In 1950 Jordan annexed the West Bank. However, this annexation was rejected by the
1967 war Israel captured this area, which together with the Gaza Strip, left it in
control of the remaining territory of Mandatory Palestine. Following this war, the
Security Council adopted Resolution
and determined that a
just and lasting peace in the Middle East should include the application of two
• Withdrawal of Israel armed forces from territories occupied in the recent
• Termination of all claims or states of belligerency and respect for and
acknowledgment of the sovereignty, territorial integrity and political
independence of every State in the area and their right to live in peace
within secure and recognized boundaries free from threats or acts of
It is evident that while the Security Council did not purport to decide on
the sovereign status of the territories or the exact location of the borders, it
signaled that such claims should be decided by a peace agreement between the
parties. Although Resolution 242 originally addressed Israel and its neighboring
states, the interpretation of this resolution has since evolved to encompass the
Palestinians as a party to the
conflict, based on their right to self-determination.
Accordingly, the Oslo
Accords between Israel and the Palestinians endorse Resolution 242 as the
basis for a permanent status resolution of the conflict.
The Oslo Accords established interim arrangements between the parties and explicitly
identified several issues that would only be resolved in the permanent peace treaty
between the parties. These included:
“Jerusalem, settlements, specified military locations, Palestinian refugees,
borders, foreign relations and Israelis.”
The Accords also stated that neither party had waived
its existing rights, claims, and positions, by entering into the agreements.
Resolution of these issues remains
to be resolved through a permanent status agreement.
Application in practice
The two facets of occupation can explain the official position of the Israeli
Government since 1967 that while it does not accept the de jure applicability of the
laws of occupation it is however committed to applying its humanitarian provisions.
This reflects an understanding that while residents of an area under the control of
a foreign state require the protection of a legal framework, this does not infringe
upon claims of sovereignty or on territorial disputes that must be decided by other
The sovereignty dimension is especially pertinent with respect to settlements. The
competing territorial claims of Israel and the Palestinians with regard to the West
Bank go to the heart of the dispute over settlements and explain why the parties
have expressly agreed to resolve such issues within the framework of a permanent
Moreover, the argument that there is a sweeping prohibition on settlements anywhere
in the West Bank ignores the fact that “borders” are also one of the
issues to be determined through negotiations, meaning that at least some settlements
are likely to remain on the Israeli side following an agreement.
In this respect, the reference by Meron to settlement activity in the West Bank as
equivalent to a “colonization of territories” fails to recognize
Israel's special links and legal claims over the territory. Discounting this
aspect is prevalent in the discourse on settlements in the international arena.
While this is to be expected from political bodies, such as the General Assembly, it
is unfortunately also evident in legal institutions, such as the
International Court of Justice in its Advisory Opinion with respect to the Security
A related criticism of settlements, also expressed by Meron, is that they are an
obstacle to achieving a peaceful resolution of the conflict since they erode the
viability of a two-state solution. In fact, however, most of the settlements, and
the vast majority of settlers (around 80 percent), are situated in blocks adjacent
to Israel's borders and do not pose a challenge to an eventual two-state
resolution. The U.S. government has previously acknowledged the differentiation
between different kinds of settlements. Even the recent Quartet
report hints to such an understanding in making a specific reference to settlements
“deep in the West Bank.”
In addition, it is important to remember that Israel has
in the past expressed its readiness to evacuate settlements in the framework of an
agreement, and has in fact dismantled several settlements unilaterally.
This is not to say that criticisms regarding the settlements cannot be made from a
humanitarian point of view without involving sovereignty issues, in particular when
there is harm to individual Palestinian rights. Ever since the very first cases
dealing with the territories came before Israel's High Court of Justice
(HCJ), that Court has emphasized time and again the need to protect individual
Palestinian rights in accordance with the laws of occupation. The Court, even in the 1970s,
ruled against the expropriation of Palestinian-owned lands for the purpose of
the HCJ ordered the evacuation and demolition of the entire settlement of Amona on
the basis that it was built on private Palestinian lands.
Israeli authorities implemented that decision
despite political pressure and violent resistance. Nor is this decision
groundbreaking; on the contrary it reflects longstanding Israeli jurisprudence.
Recently, the Knesset adopted the so-called “Regularization
Law,” notwithstanding the clear and irreconcilable objection by
Israel's Attorney General based, inter alia, on international law.
This law—which seeks to
legalize illegal construction on private lands—suffers from many legal
difficulties, as I have pointed out elsewhere.
contradicts longstanding Israeli policy, supported by firm jurisprudence of the HCJ.
Several petitions were submitted to the HCJ challenging the law on both
constitutional and international law grounds. The Attorney General has taken an
extraordinary step by announcing that he will not represent the Government before
the Court. It is generally assumed that the Court will strike down the law.
Meron and others, criticize the HCJ's reluctance to decide certain legal
questions concerning the settlements. However, the two dimensions of occupation law
help to place the Court's reticence in a more proper context. In rejecting
generalized claims regarding all settlements and by requiring that petitions
demonstrate a cause for concern on humanitarian grounds, the HCJ is in fact
attempting to balance occupation law's twin concerns. It is reasonable for
the Court to exercise restraint when dealing with issues touching upon the
sovereignty dimension of occupation law.
Enter International Criminal Law
Attempts to transpose the issue of settlements into the field of international
criminal law by portraying them as a war crime add more complications. The point of
departure is Article 49(6) of the Fourth Geneva Convention, which prohibits an
Occupying Power from “deport[ing] or transfer[ing] parts of its own civilian
population into the territory it occupies.” This provision was not included
in the list of grave breaches of the Geneva Conventions to which Israel is a party,
but was later defined as a grave breach in the 1977 First Additional Protocol, and
included in the list of “war crimes” in the 1998 Rome Statute of the
International Criminal Court (albeit with controversial changes). Israel is not a
party to either of these two treaties.
Apart from the well-known political controversies leading up to the inclusion of this
war crime in the said instruments, and the questionable
status of this norm
—the “settlements crime” stands out in a
number of ways and raises some important questions. Given limits of space, I will
only address issues pertaining to the humanitarian and sovereignty aspects of
With the possible exception of the crime of aggression (addressed below),
today's international criminal law is generally concerned with the protection
of individuals from wide scale atrocities. International crimes aim to prevent harm,
or the risk of harm, to life, bodily integrity, property, and other fundamental
rights and values, in particular in the context of mass violence.
What sort of injury is covered by the “settlements crime”? It is often
argued that the prohibition on settlements seeks to protect the local inhabitants of
the occupied territory from a humanitarian prism. However, the plain reading of
Article 8(2)(b)(viii) of the Rome Statute criminalizes the transfer by an Occupying
Power of its own population to the occupied territory, without reference to any
repercussion to the local population. The elements of the
crime also do not include any formal requirement that the prohibited act
has an adverse impact on the local inhabitants.
If indeed the aim of this crime is to provide
humanitarian protection to local residents, the assumption that settlement activity
as such leads to such adverse consequences needs to be further established.
Since the crime of transfer of an Occupying Power's own nationals has never
been prosecuted as such there are no authoritative pronouncements on this matter. As
a result, there are many unanswered questions and potential complications.
One plausible approach would be to prosecute only in cases where the local population
suffers direct, tangible, and individual harm that is closely linked to the act of
transfer. For example, prosecutions might be appropriate in extreme situations where
the Occupying Power advances a campaign of ethnic cleansing of the local population
in order to make room for settlers. This approach would be in line with the general
focus of international criminal law on the protection of individuals’
fundamental rights, and the general context of Article 49 of the Fourth Geneva
Convention, which deals with situations of deportation and forced transfer of the
A different approach would be to treat the provision as aimed at preventing the
Occupying Power from changing the demographic composition of the occupied territory
in order to change the sovereign status of the territory. One could justify such an
approach on the basis of humanitarian
insofar as the presence of settlers can be presumed to cause social and economic
harm to the local population.
However, even if one agrees with these contentions, it seems clear that any
humanitarian damage that is caused by the mere presence of settlers in the territory
is—by definition—more remote and abstract than would usually be the
case with respect to other international crimes.
Moreover, to the extent this second approach focuses on preserving the sovereign
status of the territory, it is questionable whether international criminal law is an
appropriate tool for dealing with sovereignty issues that need to be resolved at the
interstate level. This is especially so in the sui generis circumstances of the
Israel-Palestinian context, in which such sovereign concerns remain undecided,
disputed, and subject to political resolution, as explained above.
Notably, the only international crime that purports to cover interstate
issues—the crime of aggression—has not been applied beyond the events
of World War II. While that crime does appear in the Rome Statute, it is subject to
particular jurisdictional arrangements severely curtailing the prospects that it
would ever be applied and specifically limiting its automatic application to cases
where both states involved have consented to the Court's jurisdiction.
In sum, the ongoing conflict between Israel and the Palestinians,
including with regard to settlements, raises humanitarian concerns that should be
rightfully addressed. Israel is not immune from criticism, and it ought to be
possible to have discussions on humanitarian and human rights concerns. However,
ignoring the sovereignty aspects of the dispute, that are central to the debate on
settlements, creates a distorted and over-simplified image. Such an approach will
not solve the conflict but rather is more likely to hamper potential compromises
critical for its peaceful resolution.