All the settlements created by Israel before the Oslo accords are legitimate, including the new Israeli housing estates created in the extended boundaries of Jerusalem. As long as the “interim period” envisaged in those accords remains in force, Israel is allowed to build within the originally defined pre-Oslo boundaries of the settlements, but is not allowed to change their pre-Oslo status. The Palestinians are not excluded from demanding a total Israeli withdrawal to the ceasefire lines of 1949, but Israel is likewise not excluded from demanding the retention not merely of the settlements but also of any other part of the Mandatory Palestine of 1947.
The Fourth Geneva Convention contains a Part I that applies to wars both within a Power and between Powers. Otherwise, the Convention applies primarily to wars between Powers alone. The conflict between Israelis and Palestinians began as a civil war under the British Mandate for Palestine and continued as such until at least the late 1980s. Until then, consequently, Part I of the Convention applied to the conflict, including Israeli settlements beyond the Green Line, but Part III – which purportedly forbids the existence of such settlements – did not yet apply. Part III became relevant, if at all, only for events that postdated the Oslo accords of the 1990s.
If there is anything that perplexes good friends of Israel, it is the issue of settlements beyond the “Green Line” (a misleading term, as we shall see). In a familiar phenomenon, a foreign politician arrives in Jerusalem to make a speech that manifests genuine admiration of the State of Israel and its achievements, but proceeds to an equally genuine cry of distress over its settlement policies. Why? Because they are supposedly “illegal under international law.”
These friends, as we shall see, are making a widespread basic mistake. Because of the endless talk of a “two-state solution,” the conflict between Israelis and Palestinians is viewed as if it had always been a war between two states. In fact, it began as a civil war under the British Mandate for Palestine and continued as such until at least the late 1980s. By that time, almost all the present settlements were already in existence. Consequently, the provisions of international law that should apply to them are those that pertain to civil wars, not to inter-state wars.
Preliminaries
To start with, let us set aside some questions whose answer is relatively simple. First, the present Israeli occupation of lands acquired during the Six Day War of 1967 is not illegal per se, because it resulted from aggression by the neighboring states concerned. Hostilities with Egypt started when Egypt blockaded the Israeli port of Eilat, an act of aggression that was followed by Egypt’s demand for the removal of United Nations peacekeepers from the border between the two states (obviously in preparation for further acts of aggression). Hostilities with Jordan began with a Jordanian bombardment of the Israeli part of Jerusalem. As for Syria, it had for years been engaged in constant aggression by way of encroachments into Israeli territory and bombardment of Israeli villages from the Golan Heights. Moreover, a recent expert report (2012) of the International Committee of the Red Cross emphasized that International Humanitarian Law “did not set any limits to the time span of an occupation” (see p. 72); rather, the longer the occupation lasted, the more the “occupying power” was required to upgrade the infrastructure, etc., for the benefit of the inhabitants.