The conviction that Jewish settlements in the West Bank are illegal is now so commonly accepted, it hardly seems as though the matter is even open for discussion. But it is. Decades of argument about the issue have obscured the complex nature of the specific legal question about which a supposedly overwhelming verdict of guilty has been rendered against settlement policy. There can be no doubt that this avalanche of negative opinion has been deeply influenced by the settlementsâ€™ unpopularity around the world and even within Israel itself. Yet, while one may debate the wisdom of Israeli settlements, the idea that they are imprudent is quite different from branding them as illegal. Indeed, the analysis underlying the conclusion that the settlements violate international law depends entirely on an acceptance of the Palestinian narrative that the West Bank is â€œArabâ€ land. Followed to its logical conclusionâ€”as some have doneâ€”this narrative precludes the legitimacy of Israel itself.
These arguments date back to the aftermath of the Six-Day War. When Israel went into battle in June 1967, its objective was clear: to remove the Arab military threat to its existence. Following its victory, the Jewish state faced a new challenge: what to do with the territorial fruits of that triumph. While many Israelis assumed that the overwhelming nature of their victory would shock the Arab world into coming to terms with their legitimacy and making peace, they would soon be disabused of this belief. At the end of August 1967, the heads of eight countries, including Egypt, Syria, and Jordan (all of which lost land as the result of their failed policy of confrontation with Israel), met at a summit in Khartoum, Sudan, and agreed to the three principles that were to guide the Arab worldâ€™s postwar stands: no peace with Israel, no recognition of Israel, and no negotiations with Israel. Though many Israelis hoped to trade most if not all the conquered lands for peace, they would have no takers. This set the stage for decades of their nationâ€™s control of these territories.
The attachment of Israelis to the newly unified city of Jerusalem led to its quick annexation, and Jewish neighborhoods were planted on its flanks in the hope that this would render unification irrevocable. A similar motivation for returning Jewish life to the West Bank, the place where Jewish history beganâ€”albeit one that did not reflect the same strong consensus as that which underpinned the drive to hold on to Jerusalemâ€”led to the fitful process that, over the course of the next several decades, produced numerous Jewish settlements throughout this area for a variety of reasons, including strategic, historical and/or religious considerations. In contrast, settlements created by Israel in the Egyptian Sinai or the Syrian Golan were primarily based initially on the strategic value of the terrain.
Over the course of the years to come, there was little dispute about Egyptâ€™s sovereign right to the Sinai, and it was eventually returned after Nasserâ€™s successor Anwar Sadat broke the Arab consensus and made peace with Israel. Though the rulers of Syria have, to date, preferred the continuance of belligerency to a similar decision to end the conflict, the question of their right to the return of the Golan in the event of peace seems to hinge more on the nature of the regime in Damascus than any dispute about the provenance of Syriaâ€™s title to the land.
The question of the legal status of the West Bank, as well as Jerusalem, is not so easily resolved. To understand why this is the case, we must first revisit the history of the region in the 20th century.
Though routinely referred to nowadays as â€œPalestinianâ€ land, at no point in history has Jerusalem or the West Bank been under Palestinian Arab sovereignty in any sense of the term. For several hundred years leading up to World War I, all of Israel, the Kingdom of Jordan, and the putative state of Palestine were merely provinces of the Ottoman Empire. After British-led Allied troops routed the Turks from the country in 1917-18, the League of Nations blessed Britainâ€™s occupation with a document that gave the British conditional control granted under a mandate. It empowered Britain to facilitate the creation of a â€œJewish National Homeâ€ while respecting the rights of the native Arab population. British Colonial Secretary Winston Churchill later partitioned the mandate in 1922 and gave the East Bank of the Jordan to his countryâ€™s Hashemite Arab allies, who created the Kingdom of Jordan there under British tutelage.
Following World War II, the League of Nationsâ€™ successor, the United Nations, voted in November 1947 to partition the remaining portion of the land into Arab and Jewish states. While the Jews accepted partition, the Arabs did not, and after the British decamped in May 1948, Jordan joined with four other Arab countries to invade the fledgling Jewish state on the first day of its existence. Though Israel survived the onslaught, the fighting left the Jordanians in control of what would come to be known as the West Bank as well as approximately half of Jerusalem, including the Old City. Those Jewish communities in the West Bank that had existed prior to the Arab invasion were demolished, as was the Jewish quarter of the Old City of Jerusalem.
After the cease-fire that ended Israelâ€™s War of Independence in 1948, Jordan annexed both the West Bank and East Jerusalem. But, as was the case when Israel annexed those same parts of the ancient city that it would win back 19 years later, the world largely ignored this attempt to legitimize Jordanâ€™s presence. Only Jordanâ€™s allies Britain and Pakistan recognized its claims of sovereignty. After King Husseinâ€™s disastrous decision to ally himself with Egyptâ€™s Nasser during the prelude to June 1967, Jordan was evicted from the lands it had won in 1948.
This left open the question of the sovereign authority over the West Bank. The legal vacuum in which Israel operated in the West Bank after 1967 was exacerbated by Jordanâ€™s subsequent stubborn refusal to engage in talks about the future of these territories. King Hussein was initially deterred from dealing with the issue by the three â€œnoâ€™sâ€ of Khartoum. Soon enough, he was taught a real-world lesson by the Palestine Liberation Organization, which fomented a bloody civil war against him and his regime in 1970. With the open support of Israel, Hussein survived that threat to his throne, but his desire to reduce rather than enlarge the Palestinian population in his kingdom ultimately led him to disavow any further claim to the lands he had lost in 1967. Eventually, this stance was formalized on July 31, 1988.
Thus, if the charge that Israelâ€™s hold on the territories is illegal is based on the charge of theft from its previous owners, Jordanâ€™s own illegitimacy on matters of legal title and its subsequent withdrawal from the fray makes that legal case a losing one. Well before Jordanâ€™s renunciation, Eugene Rostow, former dean of Yale Law School and undersecretary of state for political affairs in 1967 during the Six-Day War, argued that the West Bank should be considered â€œunallocated territory,â€ once part of the Ottoman Empire. From this perspective, Israel, rather than simply â€œa belligerent occupant,â€ had the status of a â€œclaimant to the territory.â€
To Rostow, â€œJews have a right to settle in it under the Mandate,â€ a right he declared to be â€œunchallengeable as a matter of law.â€ In accord with these views, Israel has historically characterized the West Bank as â€œdisputed territoryâ€ (although some senior government officials have more recently begun to use the term â€œoccupied territoryâ€).
Because neither Great Britain, as the former trustee under the League of Nations mandate, nor the since deceased Ottoman Empireâ€”the former sovereigns prior to the Jordaniansâ€”is desirous or capable of standing up as the injured party to put Israel in the dock, we must therefore ask: On what points of law does the case against Israel stand?