Israeli settlement

Israeli settlement

Israeli settlements are communities inhabited by Israelis in territory that was captured as a result of Jordanian attacks during the 1967 Six-Day War. Such settlements currently exist in the West Bank, which is partially under Israeli military administration [
*"Israel, the homeland of the Jews, was established in Palestine in 1948. The Palestine Liberation Organization, under Yasir Arafat, is committed to establishing a Palestinian state, which would include territory on the West Bank and Gaza Strip now partially occupied by Israel." Palestine, "The New Dictionary of Cultural Literacy", Third Edition. 2002.
*"Though Israeli forces withdrew from Nablus and parts of Ramallah on Sunday, traversing war-torn West Bank territory still under partial occupation makes for a difficult trip to school." Taylor, Catherine. [ "Palestinian schools hit hard by conflict"] , "Christian Science Monitor", April 23, 2002.
*"Though under partial occupation, Palestinian society is one of the more democratic Arab societies today." Mohammed, Mima. [ "Palestinian Awareness Month aims to educate Stanford students"] , "Stanford Daily", April 20, 2006.
*"The IDF would continue with its partial occupation of the West Bank and incursions in the Gaza Strip." [!OpenDocument "Chronological Review of Events Relating to the Question of Palestine"] , Monthly Media Monitoring Review, UNISPAL, Division for Palestinian Rights, March 2003.
] and partially under the control of the Palestinian National Authority, and in the Golan Heights, which are under Israeli civilian administration.

The term sometimes includes communities in territory that was captured in 1967, but has since been under Israeli civil law, administration and jurisdiction in
* East Jerusalem, which is incorporated within the municipal borders of Jerusalem, though this "de jure" annexation under the Jerusalem Law is not recognized by the international community; [ [ BBC NEWS | In Depth | Israel and the Palestinians | issues | Jerusalem: Crucible of the conflict ] ] [ [ B'Tselem - East Jerusalem ] ] and
* The Golan Heights, where military rule was revoked in 1981 and has since been under Israeli civil law, administration and jurisdiction under the Golan Heights Law.

An additional eighteen settlements formerly existed in the Sinai Peninsula, twenty-one in the Gaza Strip and four in the northern Samaria region of the West Bank. They were abandoned as part of Israeli withdrawals from these areas in 1982 (Sinai) and 2005.

A number of international bodies, including the United Nations Security Council, the International Court of Justice, the European Union, Amnesty International and Human Rights Watch and many legal scholars have characterized the settlements as a violation of international law, but other legal scholars, Israel, and the Anti-Defamation League disagree with this assessment. (See Legal background)

Israeli policies toward these settlements have ranged from active promotion to removal by force, and their continued existence and status since the 1970s is one of the most contentious issues in the Israeli-Palestinian conflict.


* In Hebrew, the common term for the Israeli settlements outside the Green Line is "hitnakhluyot" (Hebrew: התנחלויות; singular התנחלות/"hitnakhlut, hitnakhalut"). This term, 'evoking Biblical injunctions and promises to "inherit" the land through settlement', was introduced when the Likud party came to power, replaced the earlier emotionally neutral word "hityashvut". Concomitantly, the terms Occupied Territory and West Bank, where settlement was to take place, were forbidden in news reports [Ian Lustick, 'The Riddle of Nationalism:The Dialectic of Religion and Nationalism in the Middle East', "Logos" Vol.1, No-3, Summer 2002 pp.18-44 pp.38-9.] "Hitnakhluyot" is widely used in the media and in public, although some think it has acquired a derogatory connotation in recent years. Settlers are called "mitnakhalim" (Hebrew: מתנחלים; singular - מתנחל/"mitnakhel"). The settlers and their sympathizers, as well as most official Israeli references use the term "yishuvim" (יישובים; singular - יישוב/"yishuv") for settlements and "mityashvim" (מתיישבים; singular - מתיישב/"mityashev") for settlers. These terms also refer to settlements inside Israel proper. Furthermore, the term "settler" is often associated with the primarilyReligious Zionist movement, and other settler populations (such as the Haredi residents of Betar Illit and Modi'in Illit) do not associate themselves with it. [cite news |url= |title=We are not settlers. We are Jews |author=Tovah Lazaroff |publisher=The Jerusalem Post |date=June 18, 2007]

* In Arabic, settlements are called "mustawtanaat" (Arabic: المستوطنات), and settlers are "mustawtineen" (مستوطنين). "Mustamaraat" (مستعمرات) is another term used among Palestinians [cite web|title=Planned obsolescence - The Slow Death Of The Two-State Solution - Palestinian-Israeli conflict|publisher="Christian Century"|url=|date=2003-05-03|accessdate=2008-02-15] translates literally as "colonies"; from the Palestinian point of view, most settlers are foreigners to Palestine.

Historical timeline

The cease-fire agreement following the 1967 Six-Day War left Israel in control of a number of areas captured during hostilities.
* From Jordan, Israel gained control of the entire western bank of the Jordan River, including parts of Jerusalem previously controlled by Jordan - East Jerusalem, and the West Bank.
* From Egypt, Israel gained control of the entire Sinai peninsula up to the Suez Canal, and the Gaza strip.
* From Syria, Israel gained control of most of the Golan Heights, since 1981, administered under the Golan Heights Law.

Original Israeli policy at that time was to deny any Jewish settlement of these areas or even Jewish resettlement of specific locations where Jews had resided up until the 1948 Arab-Israeli War (see: List of villages depopulated during the 1948 Arab-Israeli war). Many attempts were made by Gush Emunim to establish outposts or resettle former Jewish areas, and initially the Israeli government forcibly disbanded these settlements. However, in the absence of peace talks to determine the future of these and other occupied territories, Israel ceased the enforcement of the original ban on settlement.
* In 1967, the municipal borders of Jerusalem were extended to include all of the Old City as well as other areas. Residents within the new municipal borders were offered the choice between citizenship (subject to a few restrictions) and permanent residency (if they wished to retain their Jordanian passports). This annexation has not been recognized by any foreign country.
* The Sinai, Gaza Strip, and West Bank were put under Israeli military occupation. Residents were not offered citizenship or residency, though they typically had de facto work permits within Israel and freedom of travel there.
* In 1978, Israel forcibly evacuated its citizens from the Sinai and demolished their homes when the area was returned to Egypt pursuant to the Camp David Accords. The last Israeli community in the area, Yamit, was evacuated in early 1982.
* In 1980, the Knesset asserted Jerusalem's status as the nation's "eternal and indivisible capital" by passing the Jerusalem Law.
* In 1981, Israel extended its law to the Golan Heights, passing the Golan Heights Law, which granted permanent residency, ID cards, and Israeli citizenship to the residents, but did not formally annex the territory.
* In August 2005, all settlements in the Gaza Strip and four in the West Bank were forcibly evacuated as part of Israel's unilateral disengagement plan.
* In 2007 Israel decided to build 300 more Israeli homes in the Har Homa settlement in Shepherd's Field near Bethlehem, a move that has been condemned by both the United States and the European Union. [cite news |title=EU criticises Israel settler plan |url= |date=2007-12-10 |publisher=BBC]
* In early 2008, Israel promised to engage in settlement expansion in the West Bank. US Secretary of State, Condoleezza Rice, stated that such expansion should stop and was inconsistent with 'road map' obligations. [cite news |title=Rice calls for Israel to halt settlement expansion |url= |date=2008-3-31 |publisher=Reuters]

ettlement types and locations


: 1 including Sinai: 2 2005 data

In addition to internal migration, in large though declining numbers, the settlements absorb annually about 1000 new immigrants from outside Israel. In the 90's, the annual settler population growth was more than three times the annual population growth in Israel. [ [ Sources of Population Growth: Total Israeli Population and Settler Population, 1991 - 2003] , Foundation for Middle East Peace.] In the 00's, the large settler population growth continues. [ [ Settler Population Growth East and West of the Barrier] , Foundation for Middle East Peace.]

The Israeli governments have implemented a consistent and systematic policy intended to encourage Jewish citizens to migrate to the West Bank. One of the tools used to this end is to grant financial benefits and incentives to citizens. [ [ Encouragement of migration to the settlements] , B'Tselem.]

Debate on the settlements

Palestinians argue that the policy of settlements constitutes an effort to pre-empt or even sabotage a peace treaty that includes Palestinian sovereignty, and claim that the settlements are built on land that belongs to Palestinians. [ [ BBC NEWS | Middle East | Israel confirms settlement growth ] ] [ [ BBC NEWS | Middle East | Gaza diary: Hakeem Abu Samra ] ]

Israelis supportive of settlement respond that they are religiously justified in owning the land. Furthermore, the Israel Foreign Ministry asserts that some settlements are legitimate, as they took shape when there was no operative diplomatic arrangement, and thus they did not violate any agreement. [ [ Israeli Settlements and International Law] , Israel Foreign Ministry website, 5/4/01, accessed 7/11/07.] [ "Occupied Territories" to "Disputed Territories"] by Dore Gold, "Jerusalem Center for Public Affairs", January 16, 2002. Retrieved September 29, 2005.] [ [ Diplomatic and Legal Aspects of the Settlement Issue] , by Jeffrey Helmreich, Institute for Contemporary Affairs,, accessed 7/11/07.] Based on this, they assert the following specific reasons for accepting settlements as legitimate.
* Prior to the signing of the Israeli-Egyptian peace treaty, the eruption of the First Intifada in the late eighties, down to the signing of the Israeli-Jordanian peace treaty in 1994, Israeli governments on the left and right argued that the settlements were of strategic and tactical importance. The location of the settlements was primarily chosen based on the threat of an attack by the bordering hostile countries of Jordan, Syria, and Egypt and possible routes of advance into Israeli population areas Fact|date=February 2008.These settlements were originally thought of as contributing to the peace and security of the state of Israel at a time when peace treaties had not been signed. Some supporters of the settlements still cite these reasons. [ [ Bush at Risk of Losing Closest Mideast Ally - ] ] [ [ BBC NEWS | Middle East | Israel 'to keep some settlements' ] ] [ [] ] [ [ Israel/Middle East (News & Politics): settlements ] ] [ [] ] [ [ "What Happened to Secure Borders for Israel? The U.S., Israel, and the Strategic Jordan Valley" by Dore Gold ] ]
* Many religious Jews assert the biblical Jewish connection to the areas in dispute, arguing that their claim to build is equal to the biblical Jewish connection to the other areas in Israel.

Legal background

Land ownership

In November 2006 Peace Now acquired a report (which it claims was leaked from the Israeli Government's Civil Administration) that indicates that as much as 40 percent of the settlement land that Israel plans to retain is privately owned by Palestinians. [ [ Israeli Map Says West Bank Posts Sit on Arab Land - New York Times ] ] Peace Now further claims that this is a violation of Israeli law. [ [ BBC NEWS | Middle East | Settlements 'violate Israeli law' ] ] The Washington Post reported that "The 38-page report offers what appears to be a comprehensive argument against the Israeli government's contention that it avoids building on private land, drawing on the state's own data to make the case". [ [ West Bank Settlements Often Use Private Palestinian Land, Study Says - ] ] Peace Now published statistics and aerial maps for each individual settlement. [] [ [ Peace Now : Settlements > Reports ] ] According to the spokesman of Israel’s Civil Administration, this report was based on a leaked map that indicated Palestinian claims rather than rights, and that Peace Now never contacted the Civil Administration to confirm the report. [ [ CAMERA: UPDATE: Peace Now Map Based Only on Palestinian Claims ] ] A recent report by Peace Now, allegedly based on official data provided by the Civil Administration following a court struggle cites a lower figure of 32%, a figure rejected by the Civil Administration. [ [ דו"ח: 32% מההתנחלויות - על שטח פלשתיני פרטי - חדשות -הארץ ] ] In February 2008, The Civil Administration admitted that more than a third of West Bank settlements were built on private Palestinian land, originally seized by the IDF for 'security purposes'. [ [ Meron Rapoport, 'A third of settlements on land taken for 'security purposes' Ha'aretz,7/02/2008] ] The unauthorized seizure of private Palestinian land has been defined by the Civil Administration itself in a recent case as 'theft'. [ [ Meron Rapoport Court case reveals how settlers illegally grab West Bank lands Haaretz 17/03/2008] ]

Illegal seizure of land owned by Palestinians continues. For example, in 2007 for several months young settlers have been occupying a house belonging to an elderly Palestinian widow. The widow has turned to the Israeli government for redress; the Israeli police are present in the area for a half day every week and have evicted the settlers on several occasions, but they keep coming straight back and intend to stay. [New York Times, 2007 December 7, ]

According to the Israeli government, the majority of the land currently occupied by the new settlements was vacant or belonged to the state (from which it was leased) or bought fairly from the Palestinians. Former United States State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice, wrote in 1970 regarding Israel's case:

Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. [ [ From "Occupied Territories" to "Disputed Territories," by Dore Gold ] ]

The recent use of the Absentee Property Law to "transfer, sell or lease any real estate property" in East Jerusalem owned by Palestinians who live elsewhere (usually in the West Bank) without compensation has been criticized both inside and outside of Israel. [ [ BBC NEWS | Middle East | Jerusalem land seizures 'illegal' ] ]

Opponents of the settlements claim that "vacant" land had either belonged to Arabs who had fled or belonged collectively to an entire village, a practise that had developed under Ottoman rule. B'Tselem claims that the Israeli government used the absence of modern legal documents for the communal land as a legal basis for expropriating it.

Legal status of the territories

Although all areas in question were captured by Israel in the 1967 Six-Day War, Israel has treated them in three different ways:
* "East Jerusalem" - Jerusalem and its surroundings were envisioned as an international area under United Nations administration in the 1947 partition plan. In 1948, Jordan captured and annexed the eastern half of Jerusalem, while Israel captured and annexed the west. Following the Six-Day War in 1967 Israel annexed the eastern part, together with several villages around it.
* The Israeli Golan Heights Law of 1981 applied Israel's "laws, jurisdiction and administration" in the Golan Heights, which were captured from Syria in 1967 . Israel has not stated that it has "annexed" the area.
* The Gaza Strip and West Bank, a section of the areas awarded by the UN to a prospective Arab state of Palestine, remained in Arab hands while the rest of that area was captured by Israel in the 1948 Arab-Israeli War. The former was administered by Egypt while the latter was annexed by Jordan.

The annexation of East Jerusalem and the Golan Heights Law have both been deemed illegal by the UN Security Council (resolutions 267 and 497 respectively), and have not been recognized by other states.

Israel has signed peace treaties with Egypt (removing all Israeli settlements and returning the Sinai Peninsula to Egyptian sovereignty), and Jordan (returning small sections to Jordanian sovereignty); there are currently no peace treaties governing Israel's borders related to the West Bank, the Gaza Strip, and the Golan Heights. Israel therefore asserts that the armistice lines (known as the Green Line) of 1949 have no other legal status.

Palestinians object to this view as the Israel-Jordan peace treaty was not to alter the status of any territories coming under Israeli control during the hostilities of 1967 (article 3(2) of the Israel-Jordan peace treaty). [cite web |url= |title= |accessdate= |format= |work= ]

Legal status of the settlements

"See also International law and the Arab-Israeli conflict"

The establishment and expansion of Israeli settlements in the West Bank and Gaza Strip have been described as "having no legal validity" by the UN Security Council in resolutions 446, 452, 465 and 471. These resolutions were made under Chapter VI of the United Nations Charter which relates to the "Pacific Settlement of Disputes" between parties, and as such have no enforcement mechanisms and are generally considered to have no binding force under international law. [No binding force under international law
*"Some analysts have pointed out that Security Council resolutions condemning or criticizing Israel have been passed under Chapter VI of the U.N. Charter, which are different from the Chapter VII resolutions against Iraq." Ayoob, Mohammad. "The war against Iraq: normative and strategic implications", in Robinson, Mary & Weiss, Thomas G. & Crahan, Margaret E. & Goering, John (eds). "Wars on Terrorism and Iraq: human rights, unilateralism, and U.S. foreign policy", Routledge (UK), May 1, 2004, p. 164.
*"Additionally it may be noted that the Security Council cannot adopt binding decisions under Chapter VI of the Charter." De Hoogh, Andre. "Obligations Erga Omnes and International Crimes", Martinus Nijhoff Publishers, Jan 1, 1996, p. 371.
*"Council recommendations under Chapter VI are generally accepted as not being legally binding." Magliveras, Konstantinos D. "Exclusion from Participation in International Organisations", Martinus Nijhoff Publishers, Jan 1, 1999, p. 113.
*"Within the framework of Chapter VI the SC has at its disposal an 'escalation ladder' composed of several 'rungs' of wielding influence on the conflicting parties in order to move them toward a pacific solution... however, the pressure exerted by the Council in the context of this Chapter is restricted to non-binding recommendations." Neuhold, Hanspeter. "The United Nations System for the Peaceful Settlement of International Disputes", in Cede, Franz & Sucharipa-Behrmann, Lilly. "The United Nations", Martinus Nijhoff Publishers, Jan 1, 2001, p. 66.
*"The responsibility of the Council with regard to international peace and security is specified in Chapters VI and VII. Chapter VI, entitled 'Pacific Settlements of Disputes', provides for action by the Council in case of international disputes or situations which do not (yet) post a threat to international peace and security. Herein its powers generally confined to making recommendations, the Council can generally not issue binding decisions under Chapter VI." Schweigman, David. "The Authority of the Security Council Under Chapter VII of the UN Charter", Martinus Nijhoff Publishers, Jan 1, 2001, p. 33.
*"Under Chapter VI, the Security Council may only make recommendations but not binding decisions on United Nations members". Wallace-Bruce, Nii Lante. "The Settlement of International Disputes", Martinus Nijhoff Publishers, Jan 1, 1998, pp. 47-48.
*"First, it may issue non-binding resolutions under Chapter VI of the Charter expressing its opinion on the abuses and their resolution." Mertus, Julie. "The United Nations And Human Rights: A Guide For A New Era", Routledge, 2005, ISBN 0415343380, p. 120.
*"Under Chapter VI the Security Council can only make non-binding recommendations. However, if the Security Council determines that the continuance of the dispute constitutes a threat to the peace, or that the situation involves a breach of the peace or act of aggression it can take action under Chapter VII of the Charter. Chapter VII gives the Security Council the power to make decisions which are binding on member states, once it has determined the existence of a threat to the peace, breach of the peace, or act of aggression." Hillier, Timothy, Taylor & Francis Group. "Sourcebook on Public International Law", Cavendish Publishing, ISBN 1843143801, 1998, p. 568.
*"Nor is the disenchanting performance due to the fact that under Chapter VI the SC may only address non-binding resolutions to the conflicting parties." Cede, Franz, and Sucharipa-Behrmann, Lilly. "The United Nations: Law and Practice", Martinus Nijhoff Publishers, 2001, ISBN 9041115633, p. 70.
*"This clause does "not" apply to decisions under Chapter VII (including the use of armed force), which are binding on all member states (unlike those adopted under Chapter VI which are of a non-binding nature)." Köchler, Hans. "The Concept of Humanitarian Intervention in the Context of Modern Power", International Progress Organization, 2001, ISBN 3900704201, p. 21.
*"The impact of these flaws inherent to Resolution 731 (1992) was softened by the fact that it was a non-binding resolution in terms of Chapter VI of the Charter. Consequently Libya was not bound to give effect to it. However, the situation was different with respect to Resolution 748 of 31 March 1992, as it was adopted under Chapter VII of the Charter." De Wet, Erika, "The Security Council as a Law Maker: The Adopion of (Quasi)-Judicial Decisions", in Wolfrum, Rüdiger and Röben, Volker. "Developments of International Law in Treaty Making", Springer, 2005, ISBN 3540252991, p. 203.
*"There are two limitations on the Security Council when it is acting under Chapter VI. Firstly, recommendations of the Council under Chapter VI are not binding on states." Werksman, Jacob. "Greening International Institutions", Earthscan, 1996, ISBN 1853832448, p. 14.
*"Chapter VI exhorts members to settle such claims peacefully and submit them for mediation and arbitration to the United Nations. Chapter VI, however, is not binding - in other owrds, there is no power to compel states to submit their disputes for arbitration or mediation by the United Nations." Matthews, Ken. "The Gulf Conflict and International Relations", Routledge, 1993, ISBN 041507519X, p. 130.
*"One final point must be noted in connection with Chapter VI, and that is that the powers of the Security Council are to make "recommendations." These are not binding on the states to whom they are addressed, for Article 25 relates only to "decisions." Philippe Sands, Pierre Klein, D. W. Bowett. "Bowett's Law of International Institutions", Sweet & Maxwell, 2001, ISBN 042153690X, p. 46.
*"Article 2, para. 6, must be linked, first of all, to the use of these kinds of pressure that have no mandatory effect. Both the General Assembly and the Council have the power to make recommendations to the States, that is, resolutions that do not bind the States (see section 89)). Worthy of mention from this point of view are the provisions of Article 11, para. 2 ("The General Assembly may discuss any questions relating to the maintenance of international peace and security... and... may make recommendations with regard to any such question to the State or States concerned") and the various provisions of Chapter VI, particularly Article 33, para. 2, Article 36, and Article 37, para. 2, which give the Security Council the power to recommend settlement of disputes likely to endanger the peace." Conforti, Benedetto. "The Law and Practice of the United Nations", Martinus Nijhoff Publishers, 2005, ISBN 9004143084, p. 127.
*"...the primary authority of the Security Council is defined in terms of international peace and security. The Council's jurisdiction under Chapter VI—which give it recommendatory but not binding authority—is stated in very broad terms." Matheson, Michael J. "Council UNbound: The Growth of UN Decision Making on Conflict and Postconflict Issues after the Cold War", US Institute of Peace Press, 2006, ISBN 1929223781, p. 42.
*"After much lobbying, the Council agreed on a resolution intended to "assist the parties to achieve a just, lasting and mutually acceptable political solution" that would provide for the self-determination of the people of Western Sahara. But the preamble went on to specify that the Council was "acting under Chapter VI of the Charter of the United Nations." In short, this remained an exercise of good offices, not binding arbitration subject to enforcement." Jensen, Erik. "Western Sahara: Anatomy of a Stalemate", Lynne Rienner Publishers, 2005, ISBN 1588263053, p. 112.
*"Thus decisions under Chapter VI, for example, to recommend terms of settlement are not binding, and even decisions under Article 40 of Chapter VII may not be." "Political science quarterly", v. 90 (1975-76), Academy of Political Science, Columbia University, p. 147.
*"The UN distinguishes between two sorts of Security Council resolution. Those passed under Chapter Six deal with the peaceful resolution of disputes and entitle the council to make non-binding recommendations. Those under Chapter Seven give the council broad powers to take action, including warlike action, to deal with “threats to the peace, breaches of the peace, or acts of aggression”. Such resolutions, binding on all UN members, were rare during the cold war. But they were used against Iraq after its invasion of Kuwait. None of the resolutions relating to the Israeli-Arab conflict comes under Chapter Seven." [ Iraq, Israel and the United Nations: Double standards?] , "The Economist", October 10, 2002.
*"There are two sorts of security council resolution: those under 'chapter 6' are non-binding recommendations dealing with the peaceful resolution of disputes; those under 'chapter 7' give the council broad powers, including war, to deal with 'threats to the peace ... or acts of aggression'." Emmott, Bill. [,3604,846814,00.html If Saddam steps out of line we must go straight to war] , "The Guardian", November 25, 2002.
*"...there is a difference between the Security Council resolutions that Israel breaches (nonbinding recommendations under Chapter 6) and those Iraq broke (enforcement actions under Chapter 7)." Kristof, Nicholas D. [ Calling the Kettle Black] , "The New York Times", February 25, 2004.
*"There is a hierarchy of resolutions... Chapter 6, under which all resolutions relating to the middle east have been issued, relates to the pacific resolution of disputes. Above that, there are the mandatory chapter 7 resolutions, which impose the clearest possible obligations, usually on a single state rather than on two or three states, which is what chapter 6 is there for. Chapter 7 imposes mandatory obligations on states that are completely out of line with international law and policy, and the United Nations has decided in its charter that the failure to meet those obligations may be met by the use of force." Straw, Jack. [ House of Commons debates] , Hansard, Column 32, September 24, 2002.
*"There is another characteristic of these resolutions which deserves a mention, and that is that they are under chapter 7 of the United Nations charter. Chapter 7 has as its heading 'Action with respect to threats to the peace, breaches of the peace, and acts of aggression'. This is the very serious chapter of United Nations rules, regulations, laws and principles, which the United Nations activates when they intend to do something about it. If the United Nations announces under chapter 7 that it intends to do something about a matter and it is not done, that will undermine the authority of the United Nations; that will render it ineffective. There are many other resolutions under other chapters. Resolution 242 gets a bit of a guernsey here every now and then. Resolution 242 is under chapter 6, not chapter 7. It does not carry the same mandate and authority that chapter 7 carries. Chapter 6 is the United Nations trying to put up resolutions which might help the process of peace and it states matters of principle that are important for the world to take into consideration. Resolution 242 says that Israel should withdraw from territories that it has occupied. It also says that Israel should withdraw to secure and recognised boundaries and that the one is dependent upon the other. Resolution 242 says that, but it is not a chapter 7 resolution." Beazley, Kim, [ Waiting for blow-back (speech delivered in Parliament on February 4, 2003] , "The Sydney Morning Herald", February 5, 2003.
*"There are several types of resolutions: Chapter 6 resolutions are decisions pursing the Pacific Settlement of Disputes, and put forward Council proposals on negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies, and other peaceful means. Chapter 7 resolutions are decisions for Action with Respect to Threats to the Peace, involving use of force and sanctions, complete or partial interruption of economic relations, rail, sea, air, postal, telegraphic radio and other means of communication and the severance of diplomatic relations. Resolutions passed under Chapter 7 of the Charter are binding on all UN members, who are required to give every assistance to any action taken by the Council, and refrain from giving any assistance to the country against which it is taking enforcement action." [ Iran dossier crosses the Atlantic: Where to from here?] (Microsoft Word document), Greenpeace position paper on Iran.
] In 1971, however, a majority of the then International Court of Justice (ICJ) members asserted in the non-binding "Namibia" advisory opinion that all UN Security Council resolutions are legally binding. [ [ "Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)"] , Advisory Opinion of 21 June 1971 at paragraphs 87-116, especially 113: "It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in regard to enforcement action but applies to "the decisions of the Security Council" adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council. If Article 25 had reference solely to decisions of the Security Council concerning enforcement action under Articles 41 and 42 of the Charter, that is to say, if it were only such decisions which had binding effect, then Article 25 would be superfluous, since this effect is secured by Articles 48 and 49 of the Charter."] This assertion by the ICJ has been countered by Erika De Wet and others."The International Court of Justice took the position in the Namibia Advisory Opinion that Art. 25 of the Charter, according to which decisions of the Security Council have to be carried out, does not only apply in relation to chapter VII. Rather, the court is of the opinion that the language of a resolution should be carefully analyzed before a conclusion can be drawn as to its binding effect. The Court even seems to assume that Art. 25 may have given special powers to the Security Council. The Court speaks of "the powers under Art. 25". It is very doubtful, however, whether this position can be upheld. As Sir Gerald Fitzmaurice has pointed out in his dissenting opinion: "If, under the relevant chapter or article of the Charter, the decision is "not" binding, Article [69/70] 25 cannot make it so. If the effect of that Article were automatically to make "al" decisions of the Security Council binding, then the words 'in accordance with the present Charter' would be quite superfluous". In practice the Security Council does not act on the understanding that its decisions outside chapter VII are binding on the States concerned. Indeed, as the wording of chapter VI clearly shows, non-binding recommendations are the general rule here." Frowein, Jochen Abr. "Völkerrecht - Menschenrechte - Verfassungsfragen Deutschlands und Europas", Springer, 2004, ISBN 3540230238, p. 58.] De Wet argues that Chapter VI resolutions "cannot" be binding. Her reasoning, in part states:

Allowing the Security Council to adopt binding measures under Chapter VI would undermine the structural division of competencies foreseen by Chapters VI and VII, respectively. The whole aim of separating these chapters is to distinguish between voluntary and binding measures. Whereas the pacific settlement of disputes provided by the former is underpinned by the consent of the parties, binding measures in terms of Chapter VII are characterised by the absence of such consent. A further indication of the non-binding nature of measures taken in terms of Chapter VI is the obligation on members of the Security Council who are parties to a dispute, to refrain from voting when resolutions under Chapter VI are adopted. No similar obligation exists with respect to binding resolutions adopted under Chapter VII... If one applies this reasoning to the "Namibia" opinion, the decisive point is that none of the Articles under Chapter VI facilitate the adoption of the type of binding measures that were adopted by the Security Council in Resolution 276(1970)... Resolution 260(1970) was indeed adopted in terms of Chapter VII, even though the ICJ went to some length to give the opposite impression. [De Wet, Erika. "The Chapter VII Powers of the United Nations Security Council", Hart Publishing, 2004, ISBN 1841134228, pp. 39-40.]
Pieter H.F. Bekker has argued that this non-binding character of ICJ advisory opinions does not mean that are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. In his view, an advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations. [ [ "The UN General Assembly Requests a World Court Advisory Opinion On Israel's Separation Barrier"] , Pieter H.F. Bekker, [ ASIL] (American Society of International Law) Insights, December 2003.] In practice the Security Council does not consider its decisions outside Chapter VII to be binding.

The European Union considers the settlements to be illegal, [ [ EU Committee Report] . ] and an April 21, 1978 opinion of the Legal Adviser of the Department of State to the United States Congress on the legal status of Israeli settlements concluded that " [w] hile Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for the reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with international law." [, accessed 2007-05-13] "Letter of the State Department Legal Advisor, Mr. Herbert J. Hansell, Concerning the Legality of Israeli Settlements in the Occupied Territories", cited in " [!OpenDocument Progress report - The human rights dimensions of population transfer including the implantation of settler] " prepared by Mr. Awn Shawhat Al-Khasawneh.]

In 1967, Theodor Meron, legal council to the Israeli Foreign Ministry stated in a legal opinion to Adi Yafeh, the Political Secretary of the Prime Minister, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention." [Gorenberg, Gershom. "The Accidental Empire". New York: Times Books, Henry Holt and Company, 2006. p. 99.] Nevertheless, Israel considers its settlement policy to be consistent with international law, including the Fourth Geneva Convention, while recognizing that some of the smaller settlements have been constructed "illegally" in the sense of being in violation of Israeli law. [
*Helmreich, Jeffrey. [ Diplomatic and Legal Aspects of the Settlement Issue] , Jerusalem Issue Brief, Jerusalem Center for Public Affairs, Vol. 2, No. 16, 19 January 2003.
* [ DISPUTED TERRITORIES- Forgotten Facts About the West Bank and Gaza Strip] , Israeli Ministry of Foreign Affairs, 1 Feb 2003. Retrieved 29 Jan, 2008.
] In 1998 the Israeli Minister of Foreign Affairs produced "The International Criminal Court Background Paper". [30th July 1998, Israeli Minister of Foreign Affairs produced "The International Criminal Court Background Paper", accessed 2007-05-13] It concludes

International law has long recognised that there are crimes of such severity they should be considered "international crimes". Such crimes have been established in treaties such as the Genocide Convention and the Geneva Conventions. .... The following are Israel's primary issues of concern [ie with the rules of the ICC] : - The inclusion of settlement activity as a "war crime" is a cynical attempt to abuse the Court for political ends. The implication that the transfer of civilian population to occupied territories can be classified as a crime equal in gravity to attacks on civilian population centres or mass murder is preposterous and has no basis in international law.

International human rights groups Amnesty International and Human Rights Watch have denounced the settlements as illegal, [ Israel/Occupied Territories: Removing unlawful Israeli settlements in the Occupied Territories: Time to act] Amnesty International, 2005.] [ Israel: Expanding Settlements in the Occupied Palestinian Territories] Human Rights Watch, December 27, 2005] , though the Anti-Defamation League has argued that they are legal. [ [
] , Anti-Defamation League website. URL accessed April 10, 2006.

Some legal scholars [ [ FAQ on Israeli settlements] , CBC News Online, February 26, 2004. URL accessed April 10, 2006.] (including prominent international law expert Julius Stone, [Pomerance, Michla. [ The Legality of the Iraq War: Beyond legal pacifism] , "The Review", April 2003. URL accessed April 11, 2006.] [ [ International Law: Blaming Big Brother: Holding States Accountable for the Devastation of Terrorism] , 56 "Oklahoma Law Review" 735, __ __.] and Eugene Rostow, Dean of Yale Law School) and others, have also argued that the settlements are legal under international law, on a number of different grounds.

Arguments based on the Fourth Geneva Convention

There are two disputes regarding the Fourth Geneva Convention: whether the convention applies to the territories in question and whether the Convention forbids the establishment of Israeli settlements. Article 2 concerns the applicability of the Convention whereas article 49 concerns the legality of population transfers. In practice, Israel does not accept that the Fourth Geneva Convention applies "de jure", but has stated that on humanitarian issues it will govern itself "de facto" by its provisions, without specifying which these are. [Gerson, Allan. "Israel, the West Bank, and International law", Routledge, Sept 28, 1978, ISBN 0-7146-3091-8, p. 82.] [Roberts, Adam, "Decline of Illusions: The Status of the Israeli-Occupied Territories over 21 Years" in "International Affairs" (Royal Institute of International Affairs 1944-), Vol. 64, No. 3. (Summer, 1988), pp. 345-359., p. 350]

Article 2

Article 2 extends the Convention to "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties" and "all cases of partial or total occupation of the territory of a High Contracting Party". [ Convention (IV) relative to the Protection of Civilian Persons in Time of War.] Geneva, 12 August 1949.] Supporters of the legality of the settlements argue that the Convention itself does not apply, as the West Bank and Gaza Strip have never been part of a sovereign state since the defeat of the Ottoman Empire, therefore do not meet the definition of "the territory of a High Contracting Party".Lacey, Ian, ed. [ International Law and the Arab-Israeli Conflict] (pdf) - Extracts from "Israel and Palestine - Assault on the Law of Nations" by Julius Stone, Second Edition with additional material and commentary updated to 2003, AIJAC website. URL accessed April 10, 2006.] Hollander, Ricki. [ BACKGROUNDER: Jewish Settlements and the Media] , Committee for Accuracy in Middle East Reporting in America, October 5, 2001. URL accessed April 12, 2006.] Dann, Moshe. [ Legality of the settlements] , "The Jerusalem Post", May 22, 2001.] Einhorn, Talia. [ The Status of Palestine/Land of Israel and Its Settlement Under Public International Law] , "Nativ", Volume 1, 2003. URL accessed May 19, 2006.] This argument was articulated in 1971Slonim, S. (1998). "Jerusalem in America's Foreign Policy, 1947-1997". Martinus Nijhoff Publishers, ISBN 90-411-1255-3, p. 211.] by Israeli Attorney-General Meir Shamgar [Kretzmer, David (2002). "The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories". SUNY Press. ISBN 0-7914-5337-5, p. 33.] (who also created the legal framework of the Israeli military government in the administered territories [ [ Israeli Ministry of Foreign Affairs] , accessed 20 April, 2006.] ) and presented by Moshe Dayan in a speech before the 32nd session of the United Nations General Assembly in 1977. [Kretzmer, 2002, p. 34.]

The International Court of Justice, in an advisory (i.e. non-binding) opinion to the UN General Assembly, argued that according to Article 2 of the Convention applies if “there exists an armed conflict” between “two contracting parties”, regardless of the territories status in international law prior to the armed attack. It also argued that "no territorial acquisition resulting from the threat or use of force shall be recognized as legal" according to customary international law (and defined by "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations" (General Assembly Resolution 2625). [ [ "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory"] , International Court of Justice Advisory Opinion, July 9 2004, paragraphs 95 and 87.]

On 15 July 1999 a conference of the High Contracting Parties to the Fourth Geneva Convention met at the United Nations headquarters in Geneva. It ruled that the Convention did apply in the Occupied Palestinian Territory, including East Jerusalem. [United Nations (2002). "Yearbook of the United Nations, 2000". United Nations Publications. ISBN 92-1-100857-3, p. 421; p. 437.] [ [$FILE/mg_990715_4cgstatemt_e.pdf Statement of the Conference of the High Contracting Parties to the Fourth Geneva Convention] , Geneva, 15 July, 1999. (PDF)] The Conference of High Contracting Parties to the Fourth Geneva Convention held in Geneva on December 5, 2001 called upon "the Occupying Power to fully and effectively respect the Fourth Geneva Convention in the Occupied Palestinian Territory, including East Jerusalem, and to refrain from perpetrating any violation of the Convention." The High Contracting Parties reaffirmed "the illegality of the settlements in the said territories and of the extension thereof." [ [ Implementation of the Fourth Geneva Convention in the occupied Palestinian territories: history of a multilateral process (1997-2001)] , "International Review of the Red Cross", 2002 - No. 847.]

U.N. Security Council Resolution 446 refers directly to the Fourth Geneva Convention as the applicable international legal instrument, and specifically insists that Israel desist from transferring its own population into the territories or changing their demographic makeup.

However, others have objected to the ruling of the conference, which they argue has amended history and been construed only for this specific situation ("see excerpt below"). Under Article 2, the Convention pertains only to “cases of…occupation of the territory of a High Contracting Party” by another such party. The West Bank and Gaza Strip were never the territory of a High Contracting Party; the occupation after 1948 by Jordan and Egypt was illegal and neither country ever had lawful or recognized sovereignty. The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate, which stipulated the right of the Jewish people to settle in the whole of the Mandated territory. According to Article 6 of the Mandate, “close settlement by Jews on the land, including State lands not required for public use” was to be encouraged. Article 25 allowed the League Council to temporarily postpone the Jewish right to settle in what is now Jordan, if conditions were not amenable. Article 80 of the U.N. Charter preserved this Jewish right to settlement by specifying that:

nothing in the [United Nations] Charter shall be construed ... to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments. [ [ BACKGROUNDER: Jewish Settlements and the Media] ]

According to barrister and human rights activist Stephen Bowen, Israel’s argument was rejected by the international community "because the Convention also states that it applies 'in all circumstances' (Article 1), and 'to all cases of declared war or of any other armed conflict' (Article 2)." [Bowen, Stephen (1997). "Human Rights, Self-Determination and Political Change in the Occupied Palestinian Territories". Martinus Nijhoff Publishers. ISBN 90-411-0502-6, p. 29.] Shamgar argues specifically against this point, stating:

There is no rule of international law according to which the Fourth Convention applies in each and every armed conflict whatever the status of the parties.... The whole idea of the restriction of military government powers is based on the assumption that there has been a sovereign who was ousted and that he was a legitimate sovereign. Any other conception would lead to the conclusion, for example, that France should have acted in Alsace-Lorraine according to rule 42-56 of the Hague Rules of 1907, until the signing of a peace treaty.

Article 49

Article 49 (1) insists that "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive" and Article 49(6) insists that "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies". According the commentary of Jean Pictet of the International Red Cross, this is intended to prevent the World War II practice of an occupying power transferring "portions of its own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories" which in turn "worsened the economic situation of the native population and endangered their separate existence as a race". [Pictet, Jean (ed.) [ Commentary on the Fourth Geneva Convention] .]

Supporters of the legality of the settlements argue that even if the Convention did apply, it should be read only in the context of World War II forcible migrations at the time. It is only intended to cover "forcible" transfers and to protect the local population from displacement. They point out Article 49(1) specifically covers " [i] ndividual or mass "forcible" transfers" whereas the Israelis who live in the settlements have moved there voluntarily, and argue that settlements are not intended to, nor have ever resulted in, the displacement of Palestinians from the area.Rostow, Eugene. [ Bricks and stones: settling for leverage; Palestinian autonomy] , "The New Republic", April 23, 1990.] [ Israeli Settlements and International Law] , Israel Ministry of Foreign Affairs website, 20 May 2001. URL accessed April 11, 2006.] In addition, they state that the Geneva Convention only applies in the absence of an operative peace agreement and between two powers accepting the Convention. Since the Oslo Accords leave the issue of settlements to be negotiated later, proponents of this view argue that the Palestinians accepted the temporary presence of Israeli settlements pending further negotiation, and that there is no basis for declaring them illegal.Helmreich, Jeffrey. [ Diplomatic and Legal Aspects of the Settlement Issue] , Jerusalem Center for Public Affairs, "Jerusalem Issue Brief", Volume 2, Number 16, January 19, 2003.] [ [ What is the background of Jewish settlements in Palestinian Arab areas?] , Palestine Facts website, 2006. URL accessed April 12, 2006.]

Those who reject that view have a different reading of the article. They note that Pictet's commentary on Article 49(6) states " [t] he paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words "transfer" and "deport" is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power." David Kretzmer, Professor of International Law at Hebrew University of Jerusalem, has argued:

As paragraph 1 of Article 49 refers expressly to forcible transfers, it seems fair to conclude that the term "transfer" in paragraph 6 means both forcible and nonforcible transfers. This conclusion would seem to flow from the object of the Fourth Geneva Convention, which is to protect civilians in the occupied territory, and not the population of the occupied power. From the point of view of the protected persons, whether the transfer of outsiders into their territory is forcible or not would seem to be irrelevant." [Kretzmer, David. "The Advisory Opinion: The Light Treatment of International Humanitarian Law" in "American Journal of International Law" Vol.99 No. 1 (Jan., 2005), pp.88-102, p.91.]
US State Department Legal Advisor, Herbert J. Hansell, in a letter dated 1 April, 1978, has reached the same conclusion, noting that " [p] aragraph 1 of article 49 prohibits "forcible" transfers of protected persons out of the occupied territory; paragraph 6 is not so limited."He further argued that:
The view has been advanced that a transfer is prohibited under paragraph 6 only to the extent that it involves the displacement of the local population. Although one respected authority, Lauterpacht, evidently took this view, it is otherwise unsupported in the literature, in the rules of international law or in the language and negotiating history of the Convention, and it seems clearly not correct. Displacement of protected persons is dealt with separately in the Convention and paragraph 6 would seem redundant if limited to cases of displacement. Another view of paragraph 6 is that it is directed against mass population transfers such as occurred in World War II for political, racial or colonization ends; but there is no apparent support or reason for limiting its application to such cases.
The latter interpretation was adopted by the International Court of Justice in its 2004 advisory opinion [ [ "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory"] , International Court of Justice Advisory Opinion, July 9 2004, paragraph 120.] , and 150 countries supported a (non-binding) General Assembly resolution demanding Israel to "comply with its legal obligations as mentioned in the advisory opinion". [cite web |url= |title= |accessdate= |format= |work= ]

Arguments based on UNSC Resolution 242 and the British Mandate

Rostow and others further argue that UN Security Council Resolution 242 (which Rostow helped draft) mandates Israeli control of the territories, and that the original British Mandate of Palestine still applies, allowing Jewish settlement there.Rostow, Eugene. [ Resolved: are the settlements legal? Israeli West Bank policies] , "The New Republic", October 21, 1991. ] In Rostow's view

The British Mandate recognized the right of the Jewish people to "close settlement" in the whole of the Mandated territory. It was provided that local conditions might require Great Britain to "postpone" or "withhold" Jewish settlement in what is now Jordan. This was done in 1922. But the Jewish right of settlement in Palestine west of the Jordan river, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors. And perhaps not even then, in view of Article 80 of the U.N. Charter, "the Palestine article," which provides that "nothing in the Charter shall be construed ... to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments...."
According to Rostow "the Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there". ["American Journal of International Law", 1990, volume 84, page 72]

This right is based on Article 6 of the Mandate which states: "The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish Agency referred to in Article 4, close settlement by Jews on the land, including State lands not required for public use". In addition, many Israeli settlements have been established on sites which were home to Jewish communities before 1948 such as Neve Yaakov, Gush Etzion, Hebron, Kalia, and Kfar Darom.

Contrary to this view other legal scholars have argued that under Articles 31 and 32 of the Vienna Convention on the Law of Treaties the only common sense interpretation of UNSC 242 is that Israel must withdraw from all of the territory captured in 1967, as any interpretation permitting the extension of sovereignty by conquest would violate the relevant governing principle of international law as emphasized in the preambular statement, i.e., "the inadmissibility of the acquisition of territory by war" as established through the abolition of the right of conquest by the League of Nations following World War I.

Furthermore, it is argued that UNSC 242 has binding force under Article 25 of the UN Charter owing to its incorporation into UN Security Council Resolution 338 and that it is also binding on Israel and the PLO by agreement owing to its incorporation into the Oslo Accords.McHugo, John (2002). Resolution 242: A Legal Interpretation of the Right-Wing Israeli Interpretation of the Withdrawal Phrase With Reference to the Conflict Between Israel and the Palestinians. "International and Comparative Law Quarterly", 51, 851-882.]

Others argue that the Oslo Accords supersede UNSC 242 rather than making it binding. [] The Declaration of Principles in the accords only state that future negotiations will "lead to the implementation of Security Council Resolutions 242 and 338." [ [ Oslo Accord ] ]

Additionally, as the international community considered the status of Jerusalem to be unresolved, even after 1967, and did not deem any part of the city to be Israeli territory, including that part held since 1948, UNSC 242 did not settle territorial issues between Israel and Palestine left unresolved by the 1949 Armistice Agreements. [Quigley, John (2002). Palestine: The Issue of Statehood (pp. 37-54). In Silverburg, Sanford R. (Ed.). "Palestine and International Law: Essays on Politics and Economics". McFarland & Company. ISBN 0-7864-1191-0, pp. 50-51.] Indeed, Sir Elihu Lauterpacht and others have argued that, because of the disorder in Palestine at the time, the territorial framework of the 1947 Partition Plan did not come into effect in such a way as to ipso jure grant Israel sovereignty over the territory allocated to the Jewish state under that plan. Stone agrees with Lauterpacht's analysis, and his view that sovereignty was acquired through other means:

Lauterpacht has offered a cogent legal analysis leading to the conclusion that sovereignty over Jerusalem has already vested in Israel. His view is that when the partition proposals were immediately rejected and aborted by Arab armed aggression, those proposals could not, both because of their inherent nature and because of the terms in which they were framed, operate as an effective legal re-disposition of the sovereign title. They might (he thinks) have been transformed by agreement of the parties concerned into a consensual root of title, but this never happened. And he points out that the idea that some kind of title remained in the United Nations is quite at odds, both with the absence of any evidence of vesting, and with complete United Nations silence on this aspect of the matter from 1950 to 1967?…In these circumstances, that writer is led to the view that there was, following the British withdrawal and the abortion of the partition proposals, a lapse or vacancy or vacuum of sovereignty. In this situation of sovereignty vacuum, he thinks, sovereignty could be forthwith acquired by any state that was in a position to assert effective and stable control without resort to unlawful means.

Antonio Cassese disagrees with this analysis, arguing that whilst Israel's original occupation of West Jerusalem might have been carried out in an act of self-defense under Article 51 of the UN Charter, this did not confer legal title to the territory owing to the general prohibition in international law on the acquisition of sovereignty through military conquest. He further considers that "mere silence" could not constitute agreement by the United Nations to the acquisition of sovereignty by Israel or Jordan as a result of their "de facto" control of Jerusalem. Cassese concludes that "at least "a tacit manifestation of consent through conclusive acts would have been necessary", whereas such relevant acts as did take place confirmed that no such consent to the transfer of sovereignty was given. [Cassese, Antonio (1986). Considerations on the International Status of Jerusalem (pp. 13-40). In Kassim, A. F. "The Palestine Yearbook of International Law 1986". Martinus Nijhoff Publishers. ISBN 90-411-0340-6.]

Arguments based on historical agreements

Some have argued that Israel has a right to settle in areas agreed upon with Emir Faisal, the recognized political leader of the Arab world at the time. Faisal signed an agreement with Chaim Weizmann, the recognized leader of the modern Zionisim movement.

The agreement, known as the Faisal-Weizmann Agreement, signed in January 1919, agreed conditional terms of borders between the Jewish state and the Arab states, which include the present day territories in dispute.

Arguments based on the cause of the war

It has been argued that Israel took control of the West Bank as a result of a "defensive war". Former Israeli diplomat Dore Gold writes that:

"The language of "occupation" has allowed Palestinian spokesmen to obfuscate this history. By repeatedly pointing to "occupation", they manage to reverse the causality of the conflict, especially in front of Western audiences. Thus, the current territorial dispute is allegedly the result of an Israeli decision "to occupy", rather than a result of "a war imposed on Israel" by a coalition of Arab states in 1967".
He quotes Former State Department Legal Advisor Stephen Schwebel, who later headed the International Court of Justice in the Hague, and wrote in 1970 regarding Israel's case:
Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.

However, international law scholar John Quigley has noted that "...a state that uses force in self-defense may not retain territory it takes while repelling an attack. If Israel had acted in self-defense, that would not justify its retention of the Gaza Strip and West Bank. Under the UN Charter there can lawfully be no territorial gains from war, even by a state acting in self-defense. The response of other states to Israel's occupation shows a virtually unanimous opinion that even if Israel's action was defensive, its retention of the West Bank and Gaza Strip was not." [Quigley, The Case for Palestine, 2005, p. 172]

ettlements, Palestinians, and human rights

Amnesty International argues that Israel's settlement policy is not only illegal, but is discriminatory and a violation of Palestinian human rights:

'As well as violating international humanitarian law per se, the implementation of Israel's settlement policy in the Occupied Territories violates fundamental human rights provisions, including the prohibition of discrimination. The seizure and appropriations of land for Israeli settlements, bypass roads and related infrastructure and discriminatory allocation of other vital resources, including water, have had a devastating impact on the fundamental rights of the local Palestinian population, including their rights to an adequate standard of living, housing, health, education, and work, and freedom of movement within the Occupied Territories."

The Israeli human rights centre B'Tselem and other sources have indicated that the road blocks scattered inside the West Bank between Palestinian cities and villages which are designed to "protect the settlers" from Arab snipers firing on Israeli drivers, as well as Arab ambushes of Israelis, have had a significant impact on freedom of movement. While the road blocks are also said to protect Israelis within Israel, according to B'Tselem, the (siege) "imprisons entire populations within their communities or in a small geographic area and limits their access to other parts of the West Bank." [cite web |url= |title=Siege ] [cite web |url= |title=Report] [cite web |url= |title=Israeli Army Checkpoints]

In Hebron, where 500-600 settlers live among 167,000 Palestinians, B'Tselem argues that there have been "grave violations" of Palestinian human rights because of the "presence of the settlers within the city." The organization cites regular incidents of "almost daily physical violence and property damage by settlers in the city", curfews and restrictions of movement that are "among the harshest in the Occupied Territories", and violence and by Israeli border policemen and the IDF against Palestinians who live in the city's H2|sector. [cite web |url= |title=Hebron, Area H-2: Settlements Cause Mass Departure of Palestinians ] [cite web |url= |title=Mounting Human Rights Crisis in Hebron] [cite web |url= |title=Israeli human rights group slams Hebron settlers]

Human Rights Watch reports on physical violence against Palestinians by settlers, including, "frequent [ly] stoning and shooting at Palestinian cars. In many cases, settlers abuse Palestinians in front of Israeli soldiers or police with little interference from the authorities." [cite web |url= |title=Israel: Palestinian Drivers Routinely Abused]

B'Tselem also documents settler actions against Palestinians that include "blocking roadways, so as to impede Palestinian life and commerce. The settlers also shoot solar panels on roofs of buildings, torch automobiles, shatter windowpanes and windshields, destroy crops, uproot trees, abuse merchants and owners of stalls in the market. Some of these actions are intended to force Palestinians to leave their homes and farmland, and thereby enable the settlers to gain control of them."cite web|url= |title=The Nature of Settler Violence |accessdate=2008-02-15]

According to B'Tselem, more than fifty percent of the land of the West Bank has been expropriated from Palestinian owners "mainly to establish settlements and create reserves of land for the future expansion of the settlements". While the seized lands mainly benefit the settlements, the Palestinian public is prohibited from using them in any way. [cite web |url= |title= Taking control of the land in the West Bank] According to Meron Benvenisti,

'the entire "settlement enterprise" has become a commercial real estate project, which conscripts Zionist rhetoric for profit'. [ [ Meron Benvenisti, ‘Who lost? The people of Israel,’ Haaretz 15/04/2008] ]

Settlers are particularly active during the Palestinian olive harvest season. Olive farmers and families are targeted by settlers while on their fields, and are assaulted or shot-at. Numerous organizations have documented serious abuses by settlers during this season, and many international and Israeli organizations organize campaigns to protect Palestinians on the fields during the harvest. [cite web |url= |title=Reaping a dangerous harvest in the West Bank's olive groves ] [cite web |url= |title=The Palestinian Olive Harvest] [cite web |url=,7340,L-3170264,00.html |title=Settlers disrupt Palestinian olive harvest ] [cite web |url= |title=Olive report ] [cite web |url= |title=Olive Harvest 2005]

A series of modern roads have been established by Israel throughout the West Bank which bypass Palestinian areas, some of which are closed to vehicles with Palestinian license-plates in varying degrees, can fluctuate based on arbitrary Israeli security concerns: some roads (mostly leading into Israel) are closed to all Palestinian traffic; many roads are closed to private traffic but allow public and commercial transportation; some roads are fully open to all Palestinian traffic and are shared completely with Israeli motorists. At the same time, Palestinian areas and roads are closed to vehicles with Israeli license-plates, though these roads are often of poorer quality, are less upkept and new roads are rarely built by Palestinians. Israel argues that such a system is needed for security reasons because of many incidents in which Israelis who entered Palestinians areas were endangered or killed, and that the restrictions generally reduce tension between the two populations. B'Tselem has described this system as nevertheless 'discriminatory': "Rather than use the main roads between the cities, most of the population is forced to use long and winding alternate routes. The regime has forced most Palestinians to leave their cars at home and travel by public transportation, in part because private cars are not allowed to cross some of the checkpoints." B'Tselem lists the effects of this separate roads regime, including: Wasted (additional) time to reach destinations, tardiness or inability to reach destinations, exhaustion, increased cost of travel, and increased wear and tear on vehicles resulting from travel on worn down or dirt roads. [cite web |url= |title=Forbidden Roads|publisher = B'Tselem]

The recent construction of the Israeli West Bank barrier routed inside the green line to encompass a variety of settlements has also been cited as an infirengement on Palestinian human and land rights. The United Nations Office for the Coordination of Humanitarian Affairs estimates that 10% of the West Bank will fall on the Israeli side of the barrier. [cite web |url= |title=Guide to the West Bank barrier] [cite web |url= |title=Q&A: What is the West Bank barrier?]

Another incident that sparked coverage in the New York Times was a violent settler protest at the Palestinian village of Funduk in November 2007, in which hundreds of settlers converged at the entrance of the village and rampaged. The protest occurred five days after a settler was killed in response to settlers' illegal seizure of Palestinian land without Israeli government response to Palestinian complaints of the land seizure. The settlers smashed the windows of houses and cars. According to Funduk villagers, Israeli soldiers and police accompanied the protesters but mostly stood aside while the settlers rampaged. [" [ Young Israelis Resist Challenges to Settlements] ", "New York Times", 2007-12-07]

Since the beginning of Second Intifada, 41 Palestinians were killed by Israeli civilians in the Palestinian territories, while 233 Israeli civilians were killed by Palestinians in the territories in the same period. (Note: according to B'Tselem, many of the Israeli civilians who were killed in the territories were not residents of the territories at the time, and as such would not be considered 'settlers'). The total number of Palestinians killed in the territories is over 3300 (though this number does not differentiate between Palestinian combatants and Palestinian civilians), while the total number of Israelis is 458. The number of Israelis killed inside of Israel is 540, and the number of Palestinians killed in Israel is 58. [cite web |url= |title=Fatalities |publisher=B'Tselem]

Diplomatic reactions, proposals, and criticisms

The settlements have on several occasions been a source of tension between Israel and the U.S. President Jimmy Carter insisted that the settlements were illegal and unwise tactically, but President Ronald Reagan stated that they were legal, though he considered them an obstacle to negotiations. In 1991 there was a clash between the Bush administration and Israel, where the U.S. delayed a subsidized loan in order to pressure Israel not to proceed with the establishment of settlements for instance in the Jerusalem-Bethlehem corridor. In 2005 the United States ambassador to Israel, Dan Kurtzer, expressed U.S. support "for the retention by Israel of major Israeli population centres [in the West Bank] as an outcome of negotiations", [ [ 'US will accept Israel settlements'] , BBC News Online, 25 March, 2005.] reflecting President Bush's statement a year earlier that a permanent peace treaty would have to reflect "demographic realities" in the West Bank. [ [ 'UN Condemns Israeli settlements'] , BBC News Online, 14 April, 2005.]

Although the Oslo accords did not include any obligation on Israel's part to stop building in the "settlements", Palestinians argue that Israel has undermined the Oslo accords, and the peace process more generally, by continuing to expand the settlements after the signing of the Accords. Israel previously also had settlements in the Sinai Peninsula, but these were forcibly evacuated and destroyed as a result of the peace agreement with Egypt.

Most Israeli and U.S. proposals for final agreement have also involved Israel being allowed to retain long established communities in the territories near Israel and in "East Jerusalem" (the majority of the settler population is near the "Green Line"), with Israel annexing the land on which the communities are located. This would result in a transfer of roughly 5% of the West Bank to Israel, with the Palestinians being compensated by the transfer of a similar share of Israeli territory (i.e. territory behind the "Green Line") to the Palestinian state. Palestinians complain that this would legitimize what they see as an illegitimate land grab, and that the land offered in exchange is situated in the southern desert, whereas the areas that Israel seeks to retain are among the West Bank's most fertile areas, including major aquifers. Israel, however, sees the current "Green Line" as unacceptable from a security standpoint - Israel would have at some points no more than 17 kilometers from the border to the sea. For more details, see Proposals for a Palestinian state.

President George Bush has stated that he does not expect Israel to return entirely to pre-1967 borders, due to "new realities on the ground." [ [ Israel 'to keep some settlements'] , BBC, 4/12/05. ] One of the main compromise plans put forth by the Clinton Administration would have allowed Israel to keep some settlements in the West Bank, especially those which were in large blocs near the pre-1967 borders of Israel. in return, Palestinians would have received some concessions of land in other parts of the country. [ [ Review of Dennis Ross book] , BY RAY HANANIA,, 8/16/04, accessed 7/11/07. ]

Both U.S. President Bill Clinton and U.K. Prime Minister Tony Blair, who played notable roles in attempts at mediation, noted the need for some territorial and diplomatic compromise on this issue, based on the validity of some of the claims of both sides. [ [ Remarks by Pres. Clinton] , 1/7/01. (Full transcript available at: [ cnn transcript] ) ] [ [ Tony Blair press conference] , 4/17/04, incl. comments on compromising on settlements, UK Foreign office, accessed 7/12/07. (scroll down to question which begins with the phrase, "But Mr Sharon sees a final settlement...") ]

Dismantlement of settlements

Given the dispute over the territories where the settlements were built, the issue of dismantling them has been considered. Arab parties to the conflict have demanded the dismantlement of the settlements as a condition for peace with Israel. As part of the Israel-Egypt Peace Treaty, Israel was required to evacuate its settlers from the 18 Sinai settlements. The evacuation, which took place in 1982, was done forcefully in some instances, such as the evacuation of Yamit. The settlements were demolished, as it was feared that settlers might try to return to their homes after the evacuation.

During the peace process with the Palestinians, the issue of dismantling the West Bank and Gaza Strip settlements has been raised.

As part of the Disengagement Plan, Israel has evacuated the Gaza Strip and part of the West Bank, including all 21 settlements in Gaza and four in the West Bank, while retaining control over Gaza's borders, coastline, and airspace. Most of these settlements have existed since the early 80's, some are over 30 years old, and with a total population of more than 10,000, many of whom have yet to find permanent housing. There was significant opposition to the plan among parts of the Israeli public, and especially those living in the territories. American President George W. Bush has said that a permanent peace deal would have to reflect "demographic realities" in the West Bank regarding Israel's settlements. [cite web |url= |title= |accessdate= |format= |work= ]

Within the former settlements, almost all buildings were demolished by Israel, with the exception of certain government and religious structures, which were completely emptied. Under an international arrangement, productive greenhouses were left to assist the Palestinian economy but these were destroyed within hours by Palestinians. [ [ Looters strip Gaza greenhouses] , MSNBC.COM, "Associated Press", Sept. 13, 2005.] Following the withdrawal, many of the former synagogues were vandalized by Hamas supporters, as a symbol of victory against Israel.

Some Israelis believe the settlements need not necessarily be dismantled and evacuated, even if Israel withdraws from the territory where they stand, as they can remain under Palestinian rule. These ideas have been expressed both by people from the left [cite web |url= |title= |accessdate= |format= |work= ] , who see this as a possible situation in a two-state solution, and by extreme right-wingers and settlers [cite web |url= |title= |accessdate= |format= |work= ] that, while objecting to any withdrawal, claim stronger links to the land than to the state of Israel.

See also

*Sasson Report
*List of Jewish Settlements in the Jewish Autonomous Oblast
*Chinese settlements in Tibet
*Sri Lankan settlement
*Beit HaShalom


Further reading

* [ The Humanitarian Impact on Palestinians of Israeli Settlements and Other Infrastructure in the West Bank] , UN OCHA oPt.
*Bregman, Ahron "Elusive Peace: How the Holy Land Defeated America".
* [ Diplomatic and Legal Aspects of the Settlement Issue]
* [ BACKGROUNDER: The Debate About Settlements] History, legal aspects
* [ BACKGROUNDER: Jewish Settlements and the Media] Coverage, false assertions, facts
* Jewish Virtual Library:
** [ Myths about the settlements]
** [ A compilation of facts on the settlements]
* [ Analysis by former U.S. president Jimmy Carter]
* [ Discusses the legal status of Israeli settlements under International Humanitarian Law]
* [ The Israeli Information Center for Human Rights in the Occupied Territories]
* [ Occupation and Settlement: The Myth and Reality]
* [ Jewish Communities in Yesha]
* [ Jewish Settlements in "the Territories" Aren't the Problem] by Chaim Herzog.
* [ "At Israeli Outpost, Showdown Looms for Settlers, Government" article by Gershom Gorenberg, January 27, 2006, Forward Online]
* [ Ottoman Land Registration Law as a Contributing Factor in the Israeli-Arab Conflict] by Rabbi Jon-Jay Tilsen
* [ BBC News : Settlements 'violate Israeli law']
* [ B'tselem - Land Expropriation and Settlements]
* [ Israeli Confiscation and Settlement on Palestinian Land]
* [ Peace Now - Settlements in Focus]
* [ Text of the Fourth 1949 Geneva Convention]

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