There are few phrases in international affairs repeated with greater confidence or subjected to less scrutiny than ‘illegal Israeli settlements’. It appears in UN resolutions, government statements, NGO reports and news bulletins as though it were an established fact. Add the words ‘under international law’ and apparently further discussion becomes unnecessary.
The trouble is not just that this is political rhetoric masquerading as law, but that it is in fact contrary to real international law, properly applied. The claim rests upon a series of propositions about Israel’s borders, the legal nature of occupation and the meaning of provisions of the Fourth Geneva Convention, propositions which have hardened into orthodoxy through repetition. They have been endorsed by the International Committee of the Red Cross, the UN Security Council and majorities of the International Court of Justice (ICJ). But institutional repetition does not transform defective legal reasoning into law.
To understand the problem, one must go back. After the Ottoman Empire collapsed in 1922, the international community established the Mandate for Palestine. The Mandate expressly required the facilitation of Jewish immigration and encouraged ‘close settlement by Jews on the land’. Whatever one thinks politically about the Mandate today, this was the international legal framework established for the territory.
The settlements argument rests upon the prior assumption that Israel is the occupying power in foreign territory
When Israel became an independent state in 1948, another universal rule became crucial: uti possidetis juris, an unglamorous Latin expression with significant consequences. It means that when a new state emerges from a pre-existing administrative territory, it by default inherits that territory’s boundaries as its international borders.
The doctrine originated in Latin America and was later applied across the decolonisation of Africa and Asia and to the break-up of states including the Soviet Union and Yugoslavia. Its purpose is obvious. Independence cannot lead to a territorial vacuum in which every boundary is up for grabs. As the ICJ has recognised, the rule provides stability, certainty and prevents fratricidal struggles over land.
Yet where Israel is concerned, the received wisdom is to disapply this elementary rule for no discernible reason. Israel was the only state to emerge in 1948 from the remaining territory of the Mandate, west of the river Jordan. This was after the severance of Transjordan from the Mandate, in order to create the Arab state of Jordan. The UN’s 1947 partition plan, which proposed a further Arab state in the territory, was never implemented, having been rejected by the Arab side, which chose war in its stead.
The consequence is uncomfortable for those who begin the legal story of Israel in 1967, after the Six-Day War. Applying the ordinary rule of uti possidetis, Israel took on the Mandate’s boundaries, the only lines on the map. Judea and Samaria – subsequently renamed the West Bank after their seizure by Jordan – did not become sovereign Jordanian territory merely because Jordan occupied them between 1948 and 1967. Nor did the 1949 armistice lines become international borders, as the armistice agreements made explicit. They were military ceasefire lines, and Egypt and Jordan were adamant they would never constitute more.
This matters because the entire settlements argument rests upon the prior assumption that Israel is the occupying power in foreign sovereign territory. A state cannot occupy its own sovereign territory. Crimea illustrates the point: Russia’s occupation does not extinguish Ukrainian title. If Ukrainian forces recover Crimea tomorrow, Ukraine will not suddenly become the occupying power just because Russia controlled the peninsula for a decade. The sovereign title comes first.
In 2024 when the ICJ asserted, in a non-binding advisory opinion filled with inaccuracies, that ‘Israel’s continued presence in the Occupied Palestinian Territory is unlawful’, it failed to address uti possidetis, the borders inherited from the Mandate and the competing sovereignty claims. It simply assumed the answer to the territorial question and then built its legal conclusions upon that assumption.
But suppose, for argument’s sake, that one puts all this aside and treats Judea and Samaria as occupied territory. Even then, the slogan ‘illegal settlements’ subverts the law. The provision invariably invoked is Article49(6) of the Fourth Geneva Convention: ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’
Notice what it does not say. It does not say that civilians of a particular nationality or ethnicity may not live in occupied territory. It regulates the conduct of the occupying power: deportation or transfer of population.
The historical context for the Article matters. The provision emerged after the horrors of the second world war, when populations were forcibly displaced and occupying powers implanted populations into conquered territory. Its purpose was to prevent state population-transfer programmes, not to create territories from which civilians of a particular nationality or heritage are prohibited by virtue of their identity. Israeli Jews have never been deported to Judea. They move voluntarily. Some communities are more recent. Others represent the re-establishment of Jewish communities, such as Gush Etzion, which had previously been expelled during Jordan’s occupation.
There is a further problem: international practice. In Professor Eugene Kontorovich’s global study of settlement activity in occupied territories, he found that there have been many substantial movements of civilian populations in prolonged occupations – real situations of state transfer under Article 49(6), in other words – that received no international commendation and no remark as to illegality. Two-tier comes to mind. Northern Cyprus, Western Sahara and other disputed or occupied territories have involved the sort of demographic movement that supposedly triggers this Article.
This does not mean that the real abuses elsewhere should be ignored. It means international law cannot be one thing for Israel and another for everybody else. A legal rule selectively (and incorrectly) cited whenever Jews build houses across an armistice line, which is not and never was a border, is not the application of law but political posturing. Additionally, the Oslo Accords, which gave Palestinians self-government in Areas A and B of the West Bank, left Area C under Israeli administration, and deliberately reserved settlements, borders and Jerusalem for final-status negotiations.
There is an attempt to whitewash the real illegal building in these disputed territories by the Palestinian Authority, often done with international funding, in Area C. Ed Miliband, in a statement on Tuesday replete with falsehoods, told, or most likely simply repeated, a lie about the Bedouin communities in the village of Khan Al Ahmar. He claimed that these Bedouin had lived on that land for generations. There are aerial photos dating back to the Luftwaffe that disprove this claim. In fact, the Bedouin of Khan al Ahmar and the other illegal outposts in the area, planted there as political pawns, have never themselves made that claim. This is the real, politically motivated illegal building at scale. It violates international law, the Oslo Accords and any faith Israel might have that future agreements it enters into will be honoured by the international community.
The consequences extend far beyond legal disputes. The phrase ‘illegal settlements’ is increasingly being used to mean something much more disturbing: that Jews should not live in certain places because they are Jews. Consider what is being demanded. A future Palestinian state is routinely imagined as requiring the removal of hundreds of thousands of Jews from their homes. The Jewish residence in Hebron, the cradle of Jewish civilisation, is inexplicably presented as an international crime. As is the Jewish Quarter of Jerusalem or the Jewish communities re-established after their inhabitants were expelled.
International law cannot be one thing for Israel and another for everybody else
No comparable demand would be tolerated elsewhere. We would immediately recognise the ugliness of saying that peace between two peoples requires territory to be cleansed of one ethnicity. Yet once the proposition is dressed in the language of ‘settlements’ and ‘international law’, politicians repeat it.
The consequences affect Britain. Once Jewish homes are described as inherently illegal, businesses serving Jews become ‘complicit’, charities supporting Jewish communities become suspect, Jews buying property supposedly become participants in an international crime, then vocabulary moves effortlessly from international diplomacy into campaigns of exclusion at home. That is how the weaponisation of international law contributes to Jew-hate. It provides ancient prejudices with a veneer of respectability couched in modern legal terminology. The Jew is no longer accused of simply being somewhere he does not belong. He is an ‘illegal settler’. His home is not merely unwanted; it is a ‘war crime’. Exclusion becomes a virtue.
This weaponisation of the law is also disastrous for peace. Peace will not be achieved by teaching Palestinians that every Jewish home beyond an arbitrary ceasefire line is a crime, any more than it will be achieved by pretending that Jews have no history, rights or legitimate claims in the territory. Negotiations require recognition of claims which must be reconciled.
International law was designed to provide rules by which disputes could be resolved. It was not created to furnish political campaigns with intimidating vocabulary. The starting point should therefore be the law itself, applied consistently: the Mandate, uti possidetis juris, the actual status of the 1949 armistice lines, the wording of the Geneva Convention, subsequent agreements, including the Oslo Accords, and state practice elsewhere.
Do that, and the supposedly simple proposition that ‘Israeli settlements are illegal under international law’ becomes incoherent. Perhaps that is why it is repeated so insistently. It is much easier to make this empty declaration than to confront what the law actually says.
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