The Flimsy Legal Case That Jews Don’t Belong in the West Bank

August 14, 2023 | Eugene Kontorovich
About the author: Eugene Kontorovich is a professor at George Mason University Antonin Scalia School of Law, director of its Center for International Law in the Middle East, and a scholar at the Kohelet Policy Forum in Jerusalem.

Conventional wisdom holds that Israeli settlements in the West Bank—that is, any case of a Jew residing in territory that was under Jordanian control at the end of the 1948 war—are in violation of international law. In its most cogent articulation, this wisdom rests on Article 49(6) of the fourth Geneva convention, which regulates military occupations of territory in wartime. But, argues Eugene Kontorovich, this law is not necessarily applicable to the West Bank:

[T]he territory was not in fact occupied in the legal sense by Israel, making Article 49(6) irrelevant. The arguments for lack of occupation focus on the lack of Jordanian sovereignty over the territory. The Cession of Vessels and Tugs for Navigation on the Danube case held that territory that was not under the sovereignty of any state could not become occupied. That means that the West Bank, which was not under Jordanian sovereignty, could not be deemed occupied. Danube Navigation was decided before 1967 and would thus reflect the law as it was when Israel took control of the territories.

When we look for the alleged rule applied elsewhere, we find—nothing. The United Nations has referred to Article 49(6) hundreds of times in relation to Israel, but no UN body has ever accused any other country of violating it. This is not because of a shortage of cases in which one might think it would apply. From Morocco in Western Sahara to Indonesia in East Timor, from Turkish-occupied northern Iraq to formerly Vietnamese-occupied Cambodia, prolonged occupations of territory have almost always seen migration from the territory of the occupying power.

None of this is to say the conduct of other countries justifies illegalities by Israel: rather, it is to demonstrate that this conduct, when analyzed without knowledge of people involved, has never been regarded as illegal.

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