Israeli settlements: ‘Unfortunate’ or illegal?

Politics can trump the purely legal issue.

Palestinian workers seen at the construction site of Israeli settlement 'Har-Homa' in Jerusalem [Getty]

Answering a question on November 3 about Israel’s new construction plans in East Jerusalem, the US State Department spokeswoman said they were “unfortunate”. Why didn’t she say “illegal”?

There is pretty much a consensus among international lawyers, except in Israel, that the Israeli settlements in the occupied territories including East Jerusalem are illegal. The basis for this is article 49 of the fourth Geneva Convention adopted in 1949: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Israel, it appears, has no more right to build settlements than the UK or the US would have had to build British or American settlements in Iraq after the 2003 war.

The Geneva Conventions are global, though Israel argues that they do not apply in Palestine. In 1967, immediately after the war in which Israel occupied the West Bank and Gaza, the Security Council specifically addressed the Palestine question and unanimously adopted resolution 242. This resolution is notoriously ambiguous on the question of whether Israel is obliged to withdraw from all or only from some of the occupied territories, but it is unambiguous in restating the principle of the non-admissibility of the acquisition of territory by war.

So much for the law. The politics are different. For Israel, at least since the Likud governments of the 1970s and 80s, settlements have been the practical expression of the Zionist dream of putting Jews on the land. For the rest of the world the settlements are an obstacle to peace, because they might prevent the creation of a viable Palestinian state alongside Israel – the two-state solution. For some Israelis, and a good many settlers, that is precisely the point: Settlements are deliberately located and expanded to prevent any future Israeli government offering anything resembling a viable Palestinian state.


The US has sometimes joined the international consensus in declaring the settlements illegal. But most US spokesmen, sympathetic to Israel, have preferred softer expressions such as “prejudicial to the outcome of final status talks”. At the beginning of his first term, US President Barack Obama directly challenged Israel’s settlement policy, insisting that it should stop. But Israel stood firm, and Obama backed down. His administration has recently stuck to “the US does not accept the legitimacy” of settlements.

Israel plans 1,000 settler homes in Jerusalem

There was a serious wobble in 2004, when President George W Bush appeared to have agreed with the then Israeli Prime Minister Ariel Sharon that some settlements were there to stay, ie, not subject to eventual negotiation with the Palestinians as part of the concept of “agreed swaps” of territory.

Tony Blair appeared to be about to swallow that from Bush, which was what sparked the open letter to Blair from 52 retired British ambassadors of whom I was one.

We wrote that “the international community has now been confronted with the announcement by Ariel Sharon and President Bush of new policies which are one-sided and illegal and which will cost yet more Israeli and Palestinian blood. Our dismay at this backward step is heightened by the fact that you yourself seem to have endorsed it, abandoning the principles which for nearly four decades have guided international efforts to restore peace in the Holy Land and which have been the basis for such successes as those efforts have produced.”

Since then the UK has stood firm on the illegality of the settlements.

Creating solutions

To non-lawyers, and I am not a lawyer, politics can trump the purely legal issue. We do not live in a world where international law always has the last word, far from it. At best international law is helpful in clarifying and defining what is disagreed and creating solutions which have a chance of being agreed.

If there is ever to be an agreed solution of the Palestine problem based on the two-state solution, it is obvious that a compromise will be needed, that is to say neither Israel nor the Palestinians will get all they want. Up to now, the conventional view has been that the US will have the key role in negotiating such a solution. If I believed that US reluctance to state outright that the settlements are illegal was part of a well-prepared and balanced position in which both sides were being obliged to make concessions, I for one would not complain.

Sadly, the evidence does not support that view. Or rather, although US officials have put a vast amount of work into such preparation, most recently John Kerry’s diplomatic marathon which fizzled out in June, Washington has always proved unable in the end to deliver.

In the Suez crisis of 1956, then US President Dwight Eisenhower obliged Israel (and Britain and France) to change course; no US president has done it since.

So to return to the question: “Why didn’t the State Department spokeswoman says settlements are illegal?”, the answer is that Washington doesn’t want to irritate Israel – perhaps particularly on the day before the midterm elections.

Oliver Miles is a retired British ambassador who served mainly in the Arab world. He was head of the Near East and North Africa Department (1980-83). In 2004, he was one of 52 former British ambassadors who wrote to Tony Blair about British policy on Palestine and Iraq.