When the State Department announced yesterday that it no longer regards Israeli settlements outside of the 1949 armistice lines as illegal, it went not only against the opinion of the Carter administration but against a view widely held by journalists, policy analysts, and governments the world over. Yet, like other widely held beliefs, this one is incorrect. Alan Baker explains why it has no basis in international law:
With regard to the West Bank areas [seized by Israel from Jordan during the Six-Day War], the legal situation was not a classical case of the belligerent occupation of the land of a sovereign state. This irregularity stemmed from the fact that Jordan was not considered by the international community as having attained legitimate sovereign rights over the areas of Judea and Samaria. . . . As such, from the legal point of view, since there existed no legitimate sovereign power, a sui-generis situation existed in which the classic laws of occupation were not legally applicable.
Pursuant to Article 55 of the 1907 Hague Regulations dealing with the issue of property, Israel, as “administrator and usufructuary,” maintained the right to use public, non-privately-owned land and property, pending the final outcome of the dispute. This premise served as the basis for Israel’s settlement policy, enabling use of public lands and properties while strictly respecting private rights of ownership of local residents of the territories.
Israel has consistently rejected the oft-heard accusation in international political bodies that its settlement policy violates the Fourth Geneva Convention’s prohibition on the mass transfer of its residents into the territory. This [clause was drafted] in light of Nazis’ mass transfers of populations in Europe in an attempt to alter the demographic structure of the countries involved. This was made clear in the official Red Cross commentary . . . on the sixth paragraph of the Geneva Convention article 49.
Moreover, Baker explains, the 1995 Oslo 2 agreement—a treaty undoubtedly legitimate as a matter of international law—created a special and unique legal status for the West Bank. The treaty assigns to Jerusalem control over Area C of the territory, and over the Israeli citizens and Palestinians who live there. As all of the settlements are located in Area C, there should be little doubt that Israel can regulate the construction of housing there as it sees fit.
Read more on Tablet: https://www.tabletmag.com/jewish-news-and-politics/294359/israels-rights-in-the-west-bank-under-international-law