Israeli settlements in the Israeli-occupied Palestinian territories of the West Bank and the Gaza Strip, as well as in the Syrian Golan Heights, are illegal under international law.
[9][10][11] In 2014, 126 Representatives at the reconvened Conference of the High Contracting Parties to the Geneva Conventions declared the settlements illegal,[12] as well as the International Committee of the Red Cross.
Shortly after independence, the Israeli Supreme Court ruled that the fundamental principles of international law, accepted as binding by all civilized nations, were to be incorporated in the domestic legal system of Israel.
[19][20] In the aftermath of the 1967 Six-Day War, Israel occupied the Sinai Peninsula, the Gaza Strip, West Bank, East Jerusalem and Golan Heights.
The following year the Court ruled on Dwikat et al. vs. the Government of Israel (the Elon Moreh case), outlining the Hague Conventions' limitations on Israeli land acquisition and settlements.
[46] United Nations Security Council Resolution 2334 of 2016 states that Israel's settlement activity constitutes a "flagrant violation" of international law and has "no legal validity".
[48] The court's finding was based on the provisions of the Fourth Geneva Convention and UN Security Council resolutions that condemned the establishment of settlements and attempts by Israel to alter the demographics of the territories under its control.
The United Nations General Assembly, which regards itself as having a chief role in the process of the codification of international law, has passed several resolutions with an overwhelming majority that denounce settlements as being illegal.
[citation needed] Whereas the UNSC resolutions 660 and 687 regarding Iraq's Invasion of Kuwait and the UNSC 1441 before the Gulf War demanded Iraq's immediate withdrawal from land it occupied belligerently, and regarded as a casus belli its putative recourse to a programme for building weapons of mass destruction, Israel, though occupying a foreign territory and reputedly having an atomic arsenal, was treated differently.
[56] In November 2019, in a statement made after the change in the United States four-decade-old position, the European Union said that it continued to believe that Israeli settlement activity in occupied Palestinian territory was illegal under international law and eroded prospects for lasting peace.
[57] An opinion in 1978 by Legal Adviser of the Department of State Herbert J. Hansell concluded that the settlements are "inconsistent with international law", and against Article 49 of the Fourth Geneva Convention.
[66] In December 2016, the U.S. abstained on a Security Council Resolution that declared that Israeli settlements are illegal and deemed their continuing construction a "flagrant violation" of international law.
[69][70][44] Secretary of State Mike Pompeo also said: "The hard truth is that there will never be a judicial resolution to the conflict, and arguments about who is right and who is wrong as a matter of international law will not bring peace.
The following are Israel's primary issues of concern [ie with the rules of the ICC]: – The inclusion of settlement activity as a "war crime" is a cynical attempt to abuse the Court for political ends.
[91] In 2003, The Non-Aligned Movement declared Israeli settlements as illegal, stating, "the main danger to the realization of the national rights of the Palestinian people and the achievement of a peaceful solution is the settler colonialism that has been carried out in the Occupied Palestinian Territory, including East Jerusalem, since 1967, through land confiscation, settlement building and the transfer of Israeli nationals to the Occupied Territory.
[103] Israel alone challenges this premise, arguing that the West Bank and Gaza are "disputed territories",[104] and that the Conventions do not apply because these lands did not form part of another state's sovereign territory, and that the transfer of Jews into areas like the West Bank is not a government act but a voluntary movement by Israeli Jewish people, not acting under compulsion, a position contested by Yoram Dinstein.
[107] In a 2004 advisory opinion to the UN General Assembly, the International Court of Justice stated that Article 2 of the Convention applied to the case of Israel's presence in the territories captured during the 1967 war.
Security Council resolution 271 (1969) called upon "Israel scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation".
Security Council resolution 446 (1979) affirmed "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".
[106]According to Jean Pictet of the International Committee of the Red Cross, this clause intended to prevent the World War II practice of an occupying power transferring "portions of its own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories", which in turn "worsened the economic situation of the native population and endangered their separate existence as a race".
[120][121] U.S. State Department Legal Advisor, Herbert J. Hansell, in a letter dated 1 April 1978, concluded that although Article 49 (1) prohibits forcible transfers of protected persons out of the occupied territory, "paragraph 6 is not so limited.
Although one respected authority, Lauterpacht, evidently took this view, it is otherwise unsupported in the literature, in the rules of international law or in the language and negotiating history of the Convention, and it seems clearly not correct.
Another view of paragraph 6 is that it is directed against mass population transfers such as occurred in World War II for political, racial or colonization ends; but there is no apparent support or reason for limiting its application to such cases.
[125] Those who reject the application of Article 49 to the situation in the Israeli-held territories argue that even if the Convention did apply, it should be read only in the context of the World War II forcible migrations.
[citation needed] This right is based on Article 6 of the Mandate, which states: "The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish Agency referred to in Article 4, close settlement by Jews on the land, including State lands not required for public use".
In addition, many Israeli settlements have been established on sites that were home to Jewish communities before 1948 such as Neve Yaakov, Gush Etzion, Hebron, Kalia, and Kfar Darom.
Contrary to this view other legal scholars have argued that under Articles 31 and 32 of the Vienna Convention on the Law of Treaties the only common-sense interpretation of UNSC 242 is that Israel must withdraw from all of the territory captured in 1967, as any interpretation permitting the extension of sovereignty by conquest would violate the relevant governing principle of international law as emphasized in the preambular statement, i.e., "the inadmissibility of the acquisition of territory by war" as established through the abolition of the right of conquest by the United Nations Charter following World War II.
Cassese argues that although Israel's original occupation of West Jerusalem might have been carried out in an act of self-defense under Article 51 of the UN Charter, this did not confer legal title to the territory owing to the general prohibition in international law on the acquisition of sovereignty through military conquest.
He further considers that "mere silence" could not constitute agreement by the United Nations to the acquisition of sovereignty by Israel or Jordan as a result of their de facto control of Jerusalem.
The Israeli Supreme Court has ruled that the fulfillment of the applicable Hague IV Convention criteria is a mandatory and integral part of satisfying those three preconditions of the local law.