One day before the scheduled expiration of a 10-month Israeli “settlement freeze” that, as The New York Times reported, was never actually implemented, a senior Israeli government official has suggested that Prime Minister Benjamin Netanyahu may be willing to reach some sort of unspecified compromise over the issue.
Netanyahu is feeling the pressure from all sides. On Thursday, President Obama used his U.N. General Assembly speech to plead publicly with Israel to extend the moratorium, even as Palestinian President Mahmoud Abbas repeated his threat Friday to walk away from the peace talks if settlement construction is resumed.
On this issue, international law is as clear as it can be. There is no such thing as legal settlement activity in the Palestinian Occupied Territories.
Meanwhile, Netanyahu’s own party, the Likud, unanimously approved a motion last June to “advance the development of settlements in Judea and Samaria”—the biblical terms for the West Bank—while his right-wing coalition warned that it would not abide by any extension of the “settlement freeze.” Foreign Minister Avigdor Lieberman said, “We will not agree to any extension. I promise that if there’s a proposal that we don’t accept it will not pass.”
Whatever “compromise” Netanyahu reaches, the senior government official has made it perfectly clear that “there cannot be zero construction” in West Bank settlements. Nor does it seem that the Obama administration, which only a year ago announced it would abide by nothing short of a complete and unconditional halt to all settlement construction—“not some settlements, not outposts, not ‘natural growth’ exceptions,” as Hillary Clinton said, but all settlement construction—will push for anything of the sort.
There is no question that the settlements are the most difficult obstacle to overcome in any peace deal between the Israelis and Palestinians. That was always the point: Israel’s settlement policy was designed to create facts on the ground that would make it next to impossible to return land seized from the Palestinians in any negotiated deal. And that’s precisely what has happened.
Yet while there are a wide range of opinions over what to do about the settlements, how many of them should be dismantled, and how many more should be built, there is one undeniable fact about which there is no debate. According to international law, all of Israel’s settlements in the Palestinian Occupied Territories — all of them—are illegal.
Under Article 49 of the Fourth Geneva Convention, which governs the treatment of civilians living under military occupation, Israel has absolutely no right either to build settlements in captured Palestinian lands or to transfer Israeli citizens to occupied territories. Although Israel is a signatory to that treaty, it rejects the notion that the Fourth Geneva Convention applies to the Palestinian land it currently occupies—an interpretation of the treaty that no other country in the world, not even the U.S., shares. Indeed, in 1999 the United Nations voted unanimously in a closed-door session of the General Assembly that Israeli settlements, including those in East Jerusalem, violate the Fourth Geneva Convention.
In case there were any doubts about the U.N. decision, the International Court of Justice (ICJ), in another unanimous declaration, also found that all Israeli settlements in the Occupied Territories were illegal. In a 2004 ruling specifically targeting Israel’s Separation Barrier, which the ICJ declared to be in violation of “the Fourth Geneva Convention and the relevant Security Council resolutions,” the court found that Israel’s settlements in the West Bank “have been established in breach of international law.”
Even the Israeli High Court has acknowledged the fact that “Israel is not the sovereign in the [West Bank] territory and that its administration there is temporary.” As the Israeli human rights group B’Tselem notes, this is a tacit admission that Israel is in occupation of Palestinian land, meaning that all relevant international treaties governing the administration of occupied territories, including the Fourth Geneva Convention, apply.
Of course, none of these rulings have had any effect either on Israeli policy or on the policy of Israel’s chief patron, the United States. The U.S. ignored both the U.N. and the ICJ declarations, not because it disagreed with them—it did not—but because they “disrupted” the peace process between Israelis and Palestinians. As former White House spokesman Scott McClellan said after the ICJ ruling, “We do not believe that [the ICJ is] the appropriate forum to resolve what is a political issue.” McClellan went on to say that the issue of Israeli settlements on Palestinian land should be handled through peace negotiations between the two parties.
Now, anyone who has paid even the slightest attention to the Israeli-Palestinian conflict knows that the peace process, far from being the proper venue to deal with the settlements issue, has provided cover for Israel’s continuing settlement expansion. As Hussein Ibish writes in Foreign Policy, during the long and ultimately fruitless peace negotiations between Israelis and Palestinians in the 1990s, the Israeli settler population doubled.
The truth is that every single Israeli government without exception has accelerated both the construction of Israeli settlements in the Palestinian Occupied Territories and the transfer of Israeli citizens onto Palestinian land. According to a report in The Wall Street Journal, the Jewish population in the West Bank has grown at a staggering rate. In 1977 there were 7,000 Israeli Jews in the West Bank. By 1988, the number had grown to 63,000. By 1993 it was 100,000. By 2006 it had more than doubled to 230,000. From 2004 to 2009, the settler population in just the West Bank alone ballooned from 230,000 to more than 300,000, a 28 percent increase.
According to B’Tselem, about half a million Israelis are now living “over the Green Line,” in what is designated as the future Palestinian state, while Israeli settlers directly control 42 percent of the West Bank. More than a third of those settlements are built on privately owned Palestinian land and, as such, violate Israel’s own laws forbidding the construction of settlements on private property that has been seized for military purposes. The rate of settlement expansion in the Palestinian Occupied Territories is now so rapid that Americans for Peace Now have developed an iPhone app that allows people to track it in real time.
All of this makes one wonder: Why has the global community continued to allow the Israeli government to get away with a 40-year-old policy of illegally annexing and settling land that the entire world, including the U.S., views as belonging to the Palestinians? Why are we still debating this issue when even the Israeli High Court has grudgingly acknowledged the illegality of Israel’s settlement activity in the Occupied Territories?
There is an important debate to be had over what to do about the half-million Israelis who now live on occupied lands meant to be the future Palestinian state. But can we all stop pretending that there is any debate whatsoever about whether Israel has the right to continue transferring its citizens into these lands? On this issue, international law is as clear as it can be. There is no such thing as legal settlement activity in the Palestinian Occupied Territories.
Reza Aslan is author of the international bestseller No god but God and Beyond Fundamentalism. His new book Tablet and Pen: Literary Landscapes from the Modern Middle East comes out in Nov. Follow him on Twitter and Facebook.