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Malkah Fleisher’s impassioned cri de coeur, “I Have a Right to Live in Judea and Samaria,” deserves a serious response. Fleisher, of the Jewish community of Hebron, presents a multi-pronged defense of the settlements in territories conquered by Israel in 1967—territories she prefers to call “Judea and Samaria,” but which are known to most of the world as the “West Bank” and to the International Court of Justice and other international legal bodies as “the Occupied Palestinian Territories.” Fleisher is a graduate of Cardozo Law School and her essay is interlaced with legal language. As one who has taught international law for several decades, I will focus on these legal aspects.
Fleisher protests at length against the “dehumanization” and “demonization” to which she has been subject on social media. She proclaims that settlers are not “evil” and conveys the human reality of their lives. I fully endorse Fleisher’s view that the kind of verbal abuse she reports has no place in public debate. Those of us who have been critical of the settlements have our own tales of being verbally abused, including receiving death threats. And it goes without saying that I utterly and unequivocally condemn all terrorist attacks on civilians.
But none of that is relevant to the legal questions raised by the settlements. The nearly universal consensus in international law is that the settlements violate a variety of crucial treaties, above all, the 1949 Fourth Geneva Convention, to which Israel is a party. Those who share this consensus include the International Court of Justice, the European Court of Justice, the International Criminal Court, the International Committee of the Red Cross, the United Nations Security Council, and the overwhelming majority of all international legal experts who have lived since the 1967 war. Indeed, the first legal expert to write on this issue, to my knowledge, was the Israeli Ministry of Foreign Affairs’ Legal Advisor in 1967, Theodor Meron. In September, 1967, Meron submitted a legal opinion to the government explaining that civilian settlements in occupied territory violate the Fourth Geneva Convention’s Article 49(6). Meron submitted this memo before the first settlement was established in the West Bank. The entire settlement enterprise, therefore, has been conducted by Israel in full knowledge of its illegality. Meron, who went on to a career as an Israeli diplomat before becoming a distinguished international judge and legal scholar, unequivocally reaffirmed his view a half-century later, in a 2017 article in the American Journal of International Law.
The few international legal writers who depart from this consensus are primarily current or former officials of the Israeli government and a small number of right-wing Jewish writers in the diaspora. Their arguments have been soundly rejected by the rest of the international legal community. The International Court of Justice explicitly rejected the core of their arguments in a 2004 Advisory Opinion.
Some pro-settler publicists contend that the Fourth Geneva Convention’s prohibition on the “transfer” by the occupying state of “parts of its own civilian population” into the occupied territory does not apply to the Israeli settlements. They contend that that provision intended to prevent deportations to labor and death camps. They seem, however, to be confusing this provision, Article 49(6), with a different one, Article 49(1), which does indeed address “forcible transfers.” Article 49(6), by contrast, intended to prevent the kind of settlements designed to change the demography of the occupied territory in preparation for eventual annexation. In the words of the authoritative commentary by Jean Pictet of the ICRC, published in 1958, long before the Israeli occupation: “[Article 49(6)] 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.” While the Israeli government would not use the word “colonize,” of course, the settlement of these territories to establish a Jewish presence and eventually to annex at least part of the land has been quite clear since 1967.
Aside from the vast weight of legal authority, it is important to understand the reasons for the prohibition on settlements. Contrary to pro-settler claims, it has nothing to do with “prohibiting Jews” from living in the West Bank. Rather, it prohibits any state that has occupied land in an armed conflict from establishing civilian settlements there, regardless of ethnicity. The policies underlying this prohibition concern the nature of occupation, which is essentially a temporary legal status. The occupying state, therefore, is prohibited from doing anything that would change the territory’s social, political, or legal condition. As long ago as 1907, the Hague Convention prohibited an occupying state from changing the laws of an occupied territory, except when forced to do so by military necessity. In contemporary terms, these prohibitions aim at preventing the unilateral annexation of territory acquired in war, even defensive war—a cardinal prohibition of contemporary international law, reiterated in countless resolutions of the UN Security Council and by the International Court of Justice.
Some of the proponents of eventual Israeli annexation of at least parts of the West Bank point to the fact that many, or even most, states today include territories successfully conquered in wars. That may indeed be true. Fortunately, however, international law has undergone a vast transformation over the past century. In the 19th century, international law viewed war (when formally declared) as a valid instrument of state policy. After World War II, however, the initiation of war fell under the absolute ban of the UN Charter’s Article 2(4), which prohibits all uses or threats of force. The sole exception to this prohibition in the Charter is self-defense, as provided for in Article 51. Self-defense, however, is limited to those actions strictly necessary to fend off aggression. The principle of “no territorial acquisition resulting from the threat or use of force,” even in defensive war, is today a cardinal principle of contemporary international law. It should go without saying that European colonial conquest, though once legally sanctioned by international law, became thoroughly delegitimized in the years after World War II. The turning-point in international law’s relationship to colonialism came in 1960, with the famous “Colonial Declaration of Independence,” General Assembly Resolution 1514.
The wisdom of the prohibition on settlements has become crystal-clear during the long occupation of the West Bank—for settlements inevitably entail a blatantly unjust, legally formalized, subordination of the occupied population. Under the “Emergency Decrees Law,” Israeli citizens, as well as non-citizen Jews, receive the benefits of Israeli law in a very broad range of areas. These “Emergency Decrees” were first promulgated in July, 1967, by Moshe Dayan and have been considerably widened ever since. These decrees create a dual legal system, separate and radically unequal, based on ethnicity.
One example should highlight the injustice of this system. Let’s say a Jewish settler and a Palestinian are arrested for identical crimes. The Jew will be tried in Israeli civilian courts, with all the procedural protections afforded to defendants in Western-style democracies. The Palestinian, by contrast, will be tried in an Israeli military court, where the prosecutors and judges are Israeli military officers and where the conviction rates approach 100%.
In her essay, Fleisher reports that she engages in “normal, friendly personal interactions and relationships with Arabs.” That may well be. But the fact is that the settlers and their Arab neighbors live under separate and unequal legal systems. This kind of ethnic discrimination blatantly violates the Fourth Geneva Convention’s Article 27. Such a legally enshrined subordination of an occupied population resembles regimes long viewed as illegal under international law, including colonial rule, as in French North Africa, and apartheid in South Africa. Indeed, the Israeli human rights organization, Yesh Din, published a report in 2020 rigorously arguing for the applicability of the “apartheid” rubric in relation to the West Bank. The report’s chief author was Michael Sfard, Israel’s leading human rights lawyer. (The report did not call Israel as such an “apartheid state”; it argued that the regime on the West Bank fits the definition of apartheid.)
The difference in political regimes is equally important. Fleisher and her fellow settlers have a democratic vote in electing the government that rules them. Her Palestinian neighbors are subject to the legal, political, and military regime imposed on them by Israel without any say at all. Jewish settlers live in a democracy; their Palestinian neighbors live in a military dictatorship.
Though we cannot enter into all the legal details here, we must add one layer of complexity due to the tripartite division of the West Bank by the Olso II agreement. “Area C,” where most of the settlements are located, comprises 61% of the West Bank. In that area, Israel has full control and Palestinians are simply subordinated subjects of military rule. “Areas A and B” are a set of disconnected enclaves under varying degrees of rule by the Palestinian Authority, each enclave surrounded by “Area C” land. Israel’s official legal position is that the Palestinian Authority only exercises authority in those enclaves because Israel delegated that authority to them and the PA may act only within the limits of that delegation. Even in “Area A,” which is supposed to be under the full authority of the PA, the Israeli army operates freely. In August, 2022, for example, the IDF entered Ramallah, the seat of the Palestinian Authority, and ransacked the offices of Al Haq, the Palestinian human rights organization.
Settler publicists reject the foregoing analysis. Fleisher claims that Israel is entitled to the entirety of Mandatory Palestine, citing three documents: the British Balfour Declaration (1917), the Four-Power San Remo Resolution (1920), and the League of Nations Mandate for Palestine (1922). The first two of these documents were of symbolic political significance in their time, though were not legally binding. The Mandate for Palestine, by contrast, was a legally binding treaty between Britain and the League. It called for the establishment “in Palestine of a national home for the Jewish people,” copying the language of the Balfour Declaration. It did not promise a “Jewish State.” The phrase “national home” was chosen precisely to avoid doing so. It also did not require that all of Palestine be turned into a “Jewish national home.”
The Mandate, particularly its call for a Jewish national home, has become a dead letter through the venerable international legal doctrine of rebus sic stantibus, which renders treaties obsolete when the relevant facts or law have substantially changed. Above all, the momentous establishment of the State of Israel in 1948 more than fulfilled the promise contained in the Mandate. The establishment of the State of Israel goes far beyond the Mandate’s mere “national home.” In any case, settler publicists would hardly wish the restoration of the Mandate, as it would require an international body such as the UN, or a state appointed by the UN, to administer the territory.
Of equal importance are the changes in international law since 1922. The intervening decades have enshrined the principle of the self-determination of peoples as an international legal right. The West Bank, an area over which there has been no legally recognized sovereign since World War I, is a paradigmatic example of a territory entitled to self-determination—as emerges from a series of opinions by the International Court of Justice, concerning territories as far-flung as Namibia (1971), Western Sahara (1975), East Timor (1995), and the Chagos Archipelago (2019), as well as its unequivocal 2004 ruling about the West Bank. The Palestinian right to self-determination renders most of the pro-settler legal arguments as obsolete as the century-old documents upon which they purport, erroneously, to rely. Pro-settler legal arguments often sound as if history ended sometime in the 1920s, for they ignore all developments since then, including the decisive changes wrought by the legal delegitimization of colonialism, as well as by the establishment of the State of Israel.
Some proponents of Israeli claims to the West Bank point to the historical and religious Jewish ties to the land. There are indeed such ties. The history of the formation of states since the 19th century has been filled with competing historical and religious ties to the same territory by different ethnic groups. In the case of Mandatory Palestine, there have been two major proposals for resolving those conflicts. One is partition, initially proposed by the 1937 British Peel Commission and then, more famously, by the 1947 UN Partition Plan. This proposal has become known more recently as the “two-state solution.” The other proposal is a single democratic state with equal rights for all. This proposal has become known as the “one-state solution,” or the “state of all its citizens.” Yet a third plan would be the permanent subjugation of one ethnic group by the other. It is impossible to articulate this third plan without seeing its fundamental injustice.
In any case, what is urgently at stake in 2023 is not which “solution” is more just or more practicable. Rather, we must squarely face the fact that the West Bank is currently under military occupation and that Israel, as the occupying state, is duty-bound to respect the international rules governing occupation—mostly codified in the Fourth Geneva Convention. And, of course, the Palestinian population is strictly prohibited from engaging in any terrorist acts against civilians.
Finally, while Fleisher effectively conveys the personal human decency of most settlers, it must be added that the settlement enterprise has been accompanied for decades by crimes not inherent in the enterprise itself. I refer to acts of violence by a minority of settlers against Palestinians. These crimes have increased in recent years and burst into public consciousness lately with the attacks against Palestinian towns such as Huwara. The head of the IDF Central Command, Maj. Gen. Yehuda Fuchs, referred to the attack on Huwara as a “pogrom” and accused those responsible of “spreading terror.”
Settler violence against Palestinians dates back decades. Forty years ago, the Karp Commission Report detailed scores of such attacks and the failure of the government to take action against them. Nor have there been any substantial efforts within the settler community to take action against this violence. The brave calls by a few figures like Rav Aharon Lichtenstein, z”l, for settlers to reflect on the roots of this violence within their community have largely gone unheeded. Rav Lichtenstein first issued such a call back in 1984. It should go without saying that none of this justifies in any way whatsoever any acts of terrorism against settlers.
In this short response to Fleisher, I have only been able to scratch the surface of the legal arguments. My main point, however, is that, contrary to Fleisher’s claims, there is no link whatsoever between any “demonization” of settlers as individual human beings and the question of whether they have a legal right to live in the occupied territories. Most settlers are undoubtedly very fine people. That neither adds nor detracts from the overwhelming weight of international legal authority that the settlements are illegal and that those responsible for establishing them are liable to prosecution for a war crime in the International Criminal Court. Neither does it add or detract from the fact that the settlement enterprise inevitably brings with it other violations of international law, such as the maintenance of two separate and unequal legal systems based on ethnicity. No “demonization” is involved in a determination of the law and of its application to the settlement enterprise.
Nathaniel Berman is the Rahel Varnhagen Professor of International Affairs, Law, and Modern Culture and Religious Studies at Brown University and the author of Passion and Ambivalence: Colonialism, Nationalism, and International Law (Brill 2011).