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Why those who claim the illegality of West Bank settlements is “settled law” are wrong

Aug 23, 2023 | Ahron Shapiro

The settlement of Neve Daniel
The settlement of Neve Daniel

News stories on the ABC and other outlets, as well as from the Australian Government following Foreign Minister Penny Wong’s recent announcement on the subject, have been claiming it is settled law that Israeli settlements in the West Bank are “illegal under international law.” This is not the case.

Defences of the legality of Israeli West Bank settlements have been made many times over the years by numerous highly reputable legal scholars and international statesmen and women, and are well-documented. Here are just a few examples.

The January 2010 issue of the Australia/Israel Review featured an essay by David M. Phillips, a professor at Northeastern University School of Law, who argued against the case that Israel’s settlements are illegal, drawing heavily from the insights of Australia’s highly celebrated international law scholar Julius Stone AO OBE (Challis Professor of Jurisprudence and International Law at the University of Sydney from 1942 to 1972, among other achievements) who strongly disagreed with assertions Israel’s settlements constituted any violation of the Fourth Geneva Convention.

Stone’s detailed reasoning, as collected in the booklet Israel and Palestine – Assault on the Law of Nations, edited by Ian Lacey, B.A., LL.B,  is also available on AIJAC’s website.

Four years later, Australia’s then-foreign minister Julie Bishop challenged claims that Israel’s settlements are illegal under international law in an interview with the Times of Israel’s Raphael Ahern. The article read:

“I don’t want to prejudge the fundamental issues in the peace negotiations,” Bishop said. “The issue of settlements is absolutely and utterly fundamental to the negotiations that are under way and I think it’s appropriate that we give those negotiations every chance of succeeding.”

Asked whether she agrees or disagrees with the near-universal view that Israeli settlements anywhere beyond the 1967 lines are illegal under international law, she replied: “I would like to see which international law has declared them illegal.”

Soon afterwards, Gregory Rose, a professor of Law at the University of Wollongong, published an essay on the academic website The Conversation titled “Why Julie Bishop is wise not to judge Israeli settlements illegal”, in support of Bishop’s comments.

In a June 2014 comment in Parliament germane to the question of the legality of Israeli West Bank settlements, then-Australian Attorney-General George Brandis said that using the term “occupied” in reference to east Jerusalem was wrong:

The description of East Jerusalem as ‘occupied’ East Jerusalem is a term freighted with pejorative implications which is neither appropriate nor useful… It should not and will not be the practice of the Australian government to describe areas of negotiation in such judgmental language.

Brandis was backed up by then-Prime Minister Tony Abbott, who further commented:

It is important, as far as you can, not to use loaded terms, not to use pejorative terms, not to use terms which suggest that matters have been prejudged and that is a freighted term. The truth is they’re disputed territories.

In November 2019, then-US Secretary of State Mike Pompeo issued a lengthy statement on the issue of the legality of the settlements, including the key passage:

After carefully studying all sides of the legal debate, this administration agrees with President Reagan. The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.

Less than two months later, Pompeo made an additional statement on the matter, announcing the US was explicitly  “disavowing” the 1978 Hansell Memorandum, a US State Department memo that claimed Israeli settlements violate international law. Incidentally, the Biden Administration has, to date, also rejected the Hansell Memorandum, and, while highly critical of settlement expansion, does not refer to West Bank settlements as illegal.

On the same day as Pompeo’s November 2019 announcement, the Wall Street Journal published an op-ed by George Mason University Scalia Law School professor and director of its Center on the Middle East and International Law Eugene Kontorovich “Pompeo Busts the ‘Occupation’ Myth”, which attacked the claim that settlements are illegal though a debunking of the Hansell Memorandum.

Kontorovich further added:

Even if there were an occupation [which Kontorovich argues is not a legally accurate way to describe Israel’s presence in the West Bank], the notion that it creates an impermeable demographic bubble around the territory—no Jew can move in—has no basis in the history or application of the Fourth Geneva Convention.

Also on that date in November 2019, Tablet Magazine published a 2,000-word essay from former Israeli Ambassador to Canada Alan Baker, Director of the International Law Program at the Jerusalem Center for Public Affairs and a former legal counsel of the Israeli Foreign Ministry. That essay, titled “Israel’s Rights in the West Bank Under International Law”, provides a concise yet detailed overview of Israel’s position on legal grounds.

Among the points in the piece, Baker wrote that Oslo Accords themselves changed the legal status of the West Bank, making other legal reference points for the disputed territory obsolete:

The Oslo Accords created a sui generis legal regime, a lex specialis that overrides any other, previously applicable legal framework that may have been applicable, including the Geneva Convention.

Earlier this month, also in Tablet, Kontorovich wrote “Israeli Settlements Are Not Illegal”, which stated, among other things, the arguments claiming Israeli settlements are illegal are built on sand because this standard is not applied to any other example of occupied territory in the world. Kontorovich wrote:

Demonstrating that Israeli settlements are illegal cannot be done simply by citing what is said about Israeli settlements. To prove the point, one needs to show that comparable conduct by other countries has been regarded as illegal. In other words, if you’re arguing in front of the Supreme Court, you can’t cite the decision of the judge under review as proof for the rule—you need to show it applied in other cases.

Kontorovich also debunked the idea that United Nations resolutions decide what constitutes a violation of international law:

International law is not some kind of geopolitical version of reality shows like Survivor. If it were a popularity contest, Israel, and the U.S. for the matter, would have been voted off the island a long time ago. Recall that in 1975, the U.N. voted for a resolution saying the entire idea of a Jewish state is illegal. Fortunately, international law can only be authoritatively interpreted by duly authorized entities, and nothing in the U.N. Charter makes it a decider of international law.

On August 16, 2023, Rose revisited the topic of the legality of settlements in an analysis published on the website of the Australian Institute of International Affairs following the Australian Government announcement four days earlier that it would now refer to Israeli West Bank settlements as “illegal under international law” and the areas Israel captured from Jordan in the 1967 war as “Occupied Palestinian Territories”.

Rose wrote:

What are the “Occupied Palestinian Territories” (OPT), and why are Israeli settlements there illegal? Legal answers to these questions are surprisingly elusive; comparative analysis of Israeli and Palestinian claims in the West Bank reveals competing bases for legal title.

He concluded:

Australia’s political change of legal rhetoric on Israel is a case study of the interplay between international politics and international laws. It exemplifies the declining relevance of fundamental rules of international law, as they become more frequently diminished by and subordinated to the supreme power of political alliances that can dominate majority voting in UN institutions.

In the world of academia, the legality of Israel’s West Bank settlements has also been addressed in an April 2022 academic paper, “Why Jewish Settlements in the So-Called ‘West Bank’ are Lawful Under International Law”. The 62-page paper by Dr. Jay Alan Sekulow, Chief Counsel at the American Center for Law & Justice (ACLJ), Washington, DC, and at the European Centre for Law & Justice (ECLJ), Strasbourg, France together with his Senior Counsel Robert Weston Ash, defends the legality of the settlements based on three legal theories:

The theory based on uti possidetis juris [a principle of international law which provides that newly-formed sovereign states should retain the internal borders that their preceding dependent area had before their independence]; the theory based on the continuing validity of the Mandate for Palestine over the West Bank until the terms of the sacred trust set forth in the Mandate and assumed by the international community following World War I are fulfilled; and the theory based on the fact that the territory in question is at best disputed between Israelis and its Arab residents—which dispute which must be resolved via good faith negotiations as already agreed upon by both sides.

If the arguments presented in the essays and papers above are challenging to process for the layperson, that is to be expected. International Law deals with legal principles and precedents that demand a specialisation within the legal academic community.

This is why neither journalists, activists, nor politicians are qualified to declare what international law is on this vexed issue.

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