What About the ‘Illegal Settlements’?

Amnesty International has once again published a report accusing Israel of various violations of international law. The human rights organisation believes the international community is complicit because it fails to intervene or even continues to support the country.

According to Amnesty, Israel is actively pursuing the ethnic cleansing of Palestinians in the West Bank. Nearly 6,000 Palestinians living in the West Bank had been driven from their homes by the end of April, according to United Nations data. At that time, there were a total of 363 settlements, 212 of which were established after 2023.

The prevailing view at the United Nations, the International Court of Justice, and among most international legal authorities is indeed that “Israeli settlements are illegal.” In 2024, the International Court of Justice published an advisory opinion in which the Court held that Israel’s occupation of the “occupied Palestinian territory” had become illegal and that Israel must end its presence in this territory “as soon as possible.” The Court repeated the UN position that Israeli’s settlements policy is a violation of international law.

But what about the status of Israelis living in Judea and Samaria? Does the fact that an Israeli lives in this area constitute a violation of international law?

However, there is a strong case to be made that “Israeli settlements” in the West Bank, and Israel’s policies concerning them, are not illegal under international law—or at least not necessarily.

First, the West Bank is “disputed” territory. Both Israel and the Palestinians have sovereignty claims to the land, which claims have never been settled by either an agreement or a binding decision of a court. Conventional law regarding military occupation is intended for territory conquered from a recognised sovereign state. Because Jordan’s claim to the West Bank was not generally recognised internationally between 1948 and 1967, the area does not meet the classic legal definition of occupied territory. Therefore, some rules of the law of occupation may not apply in the way critics claim.

Second, Article 49, paragraph 6, of the Fourth Geneva Convention is misinterpreted. The standard argument against settlements is based on Article 49, paragraph 6, which prohibits an occupying power from transferring parts of its own population into occupied territory. This provision was primarily drafted to prevent the kind of forced population transfers that occurred during World War II. Israeli citizens who move voluntarily, rather than being deported or forcibly transferred by the state, are therefore not subject to the prohibition in Article 49, paragraph 6.

Third, Israel’s claim of sovereign rights over Judea and Samaria cannot simply be swept aside. They are based on historical and legal arrangements from the Mandate era. However, the Mandate for Palestine (1922) stipulated that Jews had the right to establish settlements “in Palestine.” When the State of Israel was proclaimed in 1948, the borders were not defined in the Declaration of Independence. There are very good reasons for asserting that under international law, the State of Israel inherited the borders of the Mandate territory in May 1948. From this perspective, this is not a matter of an occupier establishing itself on another’s sovereign territory, but rather of competing claims to territory whose final status remains unresolved.

Fourth, not all “settlements” are the same. The legality of settlements must be assessed on a case-by-case basis. General assertions that all settlements are illegal must be distinguished from the legal status of specific communities. The legality of a specific settlement may depend on factors such as land ownership, local circumstances, and applicable agreements, rather than a general rule that every settlement is unlawful.

Finally, the Oslo Accords, concluded between Israel and the PLO in the 1990s, stipulated that “security,” “settlements,” and “borders” are issues to be addressed in future negotiations. The fact is that the Palestinians themselves have agreed that, until a final agreement is reached, Israel has the right to allow Israelis to live in these areas. Declaring all settlements illegal preempts issues that the parties had agreed would be resolved through negotiations.

The claim that “the settlements are illegal” is a dishonest assertion that ignores historical facts and sound legal analysis.