Jack Cohen

Legality of Israeli settlements

Because of the controversial and complex nature of the Israeli settlement venture in the West Bank (Judea and Samaria), the Netanyahu Government established a small committee of three eminent lawyers to rule once and for all on the legality of all settlements. The members of the Committee were Edmund Levy, former Supreme Court Justice, Alan Baker, former legal advisor to the Foreign Ministry, and Tchia Shapira, former Dep. Pres. of the Tel Aviv District Court. This Report is intended to provide input into the deliberations of the new Ministerial Committee on Settlement Affairs taht wasd recently established by the PM.

There are at least three views of the settlements:

1. All Jewish settlements on the West Bank are illegal, according to the UN and many other countries. This is basically the Arab view and takes the position that the West Bank is “Palestinian Land.” However, that is wishful thinking, since there has never been Palestinian sovereignty over this territory.

2. Some settlements are legal and some are not. This is the current view of the Government of Israel, namely that some settlements were established by Government decision and are legal according to international and Israeli law, but some, often called outposts, have been established without Government permission and consequently are considered illegal according to Israeli law.

3. All Jewish settlements in Judea and Samaria are legal, according to international law and the Israeli settler movement. They basically argue that the land is Jewish from the time of the Bible and has been temporarily occupied by the Arabs.

In 2005, a Committee headed by Talia Sasson was formed to look into the question of the “outposts.” It issued a Report sharply critical of the Israeli Government for allowing “illegal” outposts to be built without Government permission. The Israeli Government then promised the Obama Administration to remove all “illegal” outposts. But, this policy has led to conflict and disputation within Israel. This policy, of removing “illegal” outposts was implemented as a filip to Pres. Obama in order to facilitate the “two-state solution” without any real regard for Jewish rights in the territories. Recently the Israeli Supreme Court ruled that Israel cannot build settlements on privately owned Palestinian land, and the Israeli Government has honored that ruling, for example by moving the inhabitants of Ulpana to the nearby larger settlement of Beth El.

The 89 page Report of the current Committee argues that Israeli settlements on the West Bank are legal according to international law, since the Geneva Conventions, that are often quoted, do not apply. The land in question, Judea and Samaria, termed the West Bank of the River Jordan, were never recognized legally as distinct from the rest of Palestine, that is now the Sovereign State of Israel. These lands were integral parts of Mandatory Palestine, controlled by the British temporarily from 1922-1948 with the intention of establishing a homeland for the Jewish people. No part of the Mandatory territory was intended to become an Arab State, even though Britain unilaterally and illegally separated Transjordan from the Mandate. The occupation of the West Bank by Transjordan, later Jordan, from 1948-1967 was in fact illegal, and was not recognised by the UN or the US (although it was temporarily recognized by the UK and Pakistan). Therefore the legal status of the West Bank never changed and is the same as that of the territories that constitute the State of Israel and therefore there is no actual “occupation” by Israel of these territories. At the very most the West Bank can be considered a disputed territory between Israel and some non-State Palestinian actors (the PA int eh West Bnak and Hamas in Gaza).

The Report argues that Israel should regularize the issue of settlements by removing the artificial distinction between “outposts” and other settlements. Israel should act in a consistent manner with regard to its rights to be present in and build settlements and villages in the territories of Judea and Samaria, on at least an equal basis to the Arabs. The issue of who should be recognized as sovereign in the territories must await a final negotiated agreement between the two sides.

About the Author
Jack Cohen was born in London and has a PhD in Chemistry from Cambridge University. He moved to the US and worked at the National Cancer Inst. and then Georgetown Medical School. In 1996, he Moved to Israel and became Chief Scientist of the Sheba Medical Center. He retired in 2001 and worked as a Visiting Professor at Hebrew University Medical School for 5 years.