One of the basic principals in international law that resulted from the carnage of World War II is the impermissibility to acquire territory from armed conflict. With respect to the Arab-Israeli conflict, this principle was enshrined in Security Council Resolution 242, which emphasized “the inadmissibility of the acquisition of territory by war.” Nevertheless, after the Six Day War in 1967, the Government of Israel (GOI) separated 63.6 km² from the West Bank, linked it to 6.4 km² that was formerly East Jerusalem, and annexed the entire area to the state of Israel as part of a politically undivided Jerusalem. This boundary is not recognized by any state, other than Israel. Under international law, the area of Jerusalem that Israel is claiming as part of their country is no different than the rest of the West Bank. In the international legal community, the territory Israel controls as a result of the Six Day War is known as the Occupied Palestinian Territories (OPT) and is in the condition of a “belligerent occupation,” controlled by the GOI as a “belligerent occupant.” This status as a “belligerent occupation” is recognized by the GOI which argued before the Israeli Supreme Court in the spring of 2005, “The status of these settlement (in Gaza and the Northern West Bank) derives from the status of the territory, which is held in ‘belligerent occupation’…When the petitioners settled in the Gaza Strip and Samaria [northern West Bank], they did so in full knowledge that they were settling in territory held by Israel in belligerent occupation…”

International Humanitarian Law applies within the OPT. The 1949 Fourth Geneva Convention on the Protection of Civilian Persons states in Common Article 2: “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” The conditions of “armed conflict” between “two or more of the High Contracting Parties,” as set forth in the article, are fulfilled in that there was a war between two signatories, Israel and Jordan.

The applicability of the Fourth Geneva Convention to the OPT is universally recognized by the international community. United Nations Security Council in Resolution 271 (SCR; September 15, 1969) called upon “Israel scrupulously to observe the provision of the Geneva Conventions and international law governing military occupation.” This was followed a decade later with SCR 446, (March 22, 1979) and SCR 452 (July 20, 1979) which reaffirmed “once more that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem.” The Security Council with SCR 681, (December 20, 1990) again recognized the applicability of the Fourth Geneva Convention by urging “the Government of Israel to accept the de jure applicability of the Fourth Geneva Convention … to all the territories occupied by Israel since 1967 and to abide scrupulously by the provision of the Convention”. In addition, SCR 799, (December 18, 1992) and SCR 904, (March 18, 1994) reaffirmed again the U.N. Security Council’s position concerning the applicability of the Fourth Geneva Convention in the occupied territories.

The United Nations General Assembly with resolution 56/60, (December 10, 2001) and resolution 58/97 (December 9, 2003), reaffirmed “that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Occupied Palestinian Territory, including East Jerusalem, and other Arab territories occupied by Israel since 1967.”

It has not just been the United Nations that has affirmed the de jure applicability of the Fourth Geneva Convention to the OPT. On December 1, 2001, The International Committee of the Red Cross “affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the State of Israel, including East Jerusalem.”

In addition to the universal acceptance by the international community that the Fourth Geneva Convention is applicable to the West Bank, including Jerusalem, it is also universally recognized by the international legal community that the Israeli settlements are in violation of Article 49(6) of the Convention. Article 49(6) reads: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

The universality of the opinion that the settlements are in violation of Article 49(6) is measured in part by Security Council Resolution 446 (March 22, 1979), which stated the settlements had “no legal validity.” The United States also recognizes the violation, which was set forth by the Department of State Legal Advisor, Herbert J. Hansell, on April 21, 1978, when he concluded that:

“On the basis of the available information, the civilian settlements in the territories occupied by Israel do not appear to be consistent with these limits on Israel’s authority as belligerent occupant in that they do not seem intended to be of limited duration or established to provide orderly government of the territories and, though some may serve incidental security purposes, they do not appear to be required to meet military needs during the occupation.… The language and history of the provision [Article 49(6)] lead to the conclusion that transfers of a belligerent occupant’s civilian population into occupied territory are broadly proscribed as beyond the scope of interim military administration.”

The opinion went on to say,

“The Israeli civilian settlements thus appear to constitute a transfer of ‘parts of its own civilian population into the territory it occupies’…While Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for the reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with international law.”

Even the Israeli Government, when it initially looked at the legality of the settlements shortly after the end of the Six Day War and before the settlers became a powerful constituency in Israeli politics, concluded in a legal opinion on September 18, 1967 of Theodor Meron, Legal Counsel of the Foreign Ministry, “that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.”

Finally, all 15 justices of the International Court of Justice, including American Judge Thomas Buergenthal (a Holocaust survivor), who was the sole dissenter in the 2004 “Wall” Decision, declared the settlements are illegal under international law. In his declaration, Judge Buergenthal stated:

“Paragraph 6 of Article 49 of the Fourth Geneva Convention also does not admit for exceptions on grounds of military or security exigencies. It provides that ‘the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’. I agree that this provision applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6.”

When settlements are built on private land, they are in violation of other provisions of international law. Article 46 of the 1907 Hague Regulations clearly states, “Private property cannot be confiscated.” Under the Fourth Geneva Convention, Art. 53 states: “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.” Despite these basic international obligations which are adhered to by the civilized world, large areas of private Palestinian land have been confiscated by the GOI for settlements. One third of all settlement land is on confiscated private Palestinian property, including all the homes in the large settlement of Ofra.