The Legal Status of Jeruasalem and Israeli Settlements
This article is an edited trancript of a speech given by Natasha Hausdorff, an expert on international law.
The assertion that Israel violates international law is frequently heard, often without a solid basis or justification. The challenge lies in the limited understanding many people have of international law — a somewhat mysterious concept that can be easily misrepresented, particularly in relation to Israel. This intersection of politics and law has given rise to a distinct language of condemnation concerning Israel, with terms like “illegal settlements” intricately tied to “illegal occupation.” These phrases, unique in their application to Israel, stand contrary to the actual tenets of international law.
In this article, I aim to delve into the status of Jerusalem and settlements in international law. I will explore what international law reveals about the legal status of the territory, focusing specifically on Jerusalem and the settlement issue. Additionally, I will examine the recent controversy surrounding Israel’s proposal to apply Israeli civilian law to parts of Area C in the West Bank, an action inaccurately labeled as annexation.
To provide context for readers less versed in legal matters — of whom there are undoubtedly many — international law differs significantly from domestic law, with no international parliament dictating rules for all to follow. Instead, it comprises rules established from various key sources. One primary source is treaties, akin to contract law, where states engage in written agreements — bilateral or multilateral treaties, or conventions — to which they voluntarily bind themselves.
Another critical source of international law is custom. Customary international law and its principles evolve over time as states, believing themselves legally obliged, behave in certain ways. This gradual development forms the basis for customary international law, a crucial aspect I’ll discuss further in relation to Israel’s territorial status.
Few UN resolutions are legally binding
Dispelling a common misconception, particularly in the Israeli international law debate, is the notion that UN resolutions possess legal force. The majority of these resolutions serve as political tools rather than legal instruments. Resolutions from the General Assembly and the Security Council are purely political, as opposed to legal ones. Resolutions of the General Assembly, are also predominantly political and have no legal force whatsoever. Resolutions of the Security Council are, for the most part, also entirely political. The legal status of a UN Security Council resolution is determined by the chapter of the UN Charter under which it’s made, and the vast majority are not made to be legally binding. Simply because, diplomatically and politically speaking, it’s much easier to pass a resolution that doesn’t have legal teeth. For a UN Security Council resolution to be legally binding, it must be enacted under Chapter 7 of the UN Charter — an exceedingly rare occurrence. Such resolutions immediately bind all member states and often necessitate military intervention. Notably, resolutions made under Chapter 6 of the UN Charter lack legal force unless meeting specific criteria classifying them as decisions. This distinction is crucial when discussing international law in relation to Israel.
For a UN Security Council resolution to be legally binding, it must be enacted under Chapter 7 of the UN Charter — an exceedingly rare occurrence.
Security Council Resolution 1373, in response to the 9/11 attacks, was famously made under that Chapter 7 rubric so as to be binding on all member states. But if a resolution isn’t made under Chapter 7, it’s automatically made under Chapter 6 of the UN Charter. Those resolutions, unless they meet very specific criteria classifying them as decisions, simply don’t have legal force. It’s something to bear in mind, I think, when you’re discussing international law in relation to Israel.
Status of territory in International Law
Turning to the core focus of this article — the status of the territory in international law — a fundamental principle of customary international law establishes the borders of newly emerging states at the moment of independence. This universally applied principle, developed in Israel’s case in 1948, will be explored in the subsequent sections.
The mandates for Iraq, Syria, Jordan and Lebanon, as well as Israel, and really, in all cases involving mandates, follow a default rule known as “Uti Possidetis Juris” for emerging states emerging in terms of what their borders would look like.
As indicated, there is a fundamental principle of customary international law that establishes the borders of newly emerging states at the moment of independence, in Israel’s case, in 1948. It’s a universally applied principle that developed throughout the 19th century; it was applied in South America, later in Asia and Africa, and still later at the disintegration of the former communist federations. It has been applied to all the states that emerged in these cases, and crucially, to two states emerging from former mandates. For example, the mandate for Mesopotamia when it became the Kingdom of Iraq, mandates for Syria and Lebanon, and really, in all cases involving mandates, this was the default rule for those states emerging in terms of what their borders would look like.
This universal rule for determining borders applies at the moment of independence, critically, on the date of independence. When the International Court of Justice talked about this principle, it referred to it as a photograph of the territory at the critical date of independence. This determines the international boundaries according to the pre-existing administrative boundaries of the entity that this state is born from. The rule is called uti possidetis juris, and it’s a default rule, so it applies where there’s no agreement by the country. Uti possidetis juris has been applied and developed to afford certainty in situations where matters can be uncertain when new states come into existence. It was applied as a default rule to avoid frontiers being challenged by neighboring states, to avoid wars breaking out, and to promote peace and security. These are the reasons the International Court of Justice recognized as being behind the development of this principle
Equal application is a fundamental principle
Another fundamental principle of international law is equal application. You cannot have a general rule and an exception for a country that you just don’t like very much or have some political or ideological opposition to. That is not how any respectable legal system can operate. So, the question must be: why does this principle universally apply, or in fact, what does this principle universally apply tell us about the legal status of the territory in Israel’s case? And if it’s not being applied, why not?
Firstly, what does international law tell us about the borders of Israel? In 1948, the administrative lines of the eastern side of the British mandate ran along the Jordan River.
As can be seen in a map of the British Mandate for Palestine after the severance of Trans Jordan, the eastern border was the Jordan River, running all the way down to the Red Sea in the south. It was this land mass, the British Mandate of Palestine, for which the State of Israel emerged. The question the principle tells us to ask is how many states emerged from this territory at the critical date of independence? If the answer is that in 1948 it was only the State of Israel that declared independence, then the principle tells us that Israel inherits the pre-existing lines of the British mandate as its internationally recognized borders.
Now, Israel, as I indicated, as the only state to emerge from that territory in 1948, automatically assumes, under this principle, as its internationally recognized borders, the administrative lines of the mandate. And as you saw on the map, that includes East Jerusalem and the West Bank, which was occupied by Jordan between 1948 and 1967. These same areas were recovered by Israel in 1967. The legal status of the territory, therefore, applying this principle, is that Israel has been sovereign there since 1948. There has been no agreement of any kind on the transfer of sovereignty. Just remember that this principle applies as the default where there has been no agreement.
The legal status is important because it tells us that Israel’s presence in the territory is entirely lawful, and crucially, it is not a situation of occupation. That is another misrepresentation.
If in 1948 Israel was the only state to declare independence, then the legal principle of uti possidetis juris tells us that Israel inherits the pre-existing lines of the British mandate as its internationally recognized borders.
The laws of occupation in international law
The framework of the law of occupation developed in customary international law was not to protect the rights of ordinary people. In fact, it developed to protect the rights of a former sovereign during a period in which it had been ousted from its territory. Even if one were to quibble with the application of this universal principle uti possidetis juris and reject its application to Israel — as indicated uti possidetis juris is universally applied and so it should apply, but if we were to say it doesn’t apply, there is no other sovereign who has been ousted from their territory, which could trigger the proper application of a situation of occupation.
The application of the occupation framework, in which we apply the Geneva Convention, does not work where there is no other sovereign from which Israel acquired the land. While Jordan controlled the territory before 1967, it was an occupier of that territory. Under international law, Jordan was not a legitimate sovereign, and of course, it did not comply even with the international law under occupation, when it ethnically cleansed Jerusalem and the West Bank of its Jews after the War of Independence.
Moreover, the occupation framework doesn’t apply after a peace agreement is made. It’s a point that not many people raise, but it did feature in the famous US Hansel memo on settlements that was recently revisited by Secretary of State Pompeo. Therefore, the peace agreement between Israel and Jordan in 1994 would, in any other context in international law, put an end to any continuing existing situation of occupation resolving the status of the territory.
Israel’s legal rights to Jerusalem
Israel’s declaration of independence from 1948 did not contain any reference to Jerusalem and does not mention borders or territory specifically at all. In December 1949, the Knesset decided that Jerusalem would be the capital of Israel. On the 26th of December 1949, the Knesset held its first session in West Jerusalem, which had not been occupied by Jordan. Then in January 1950, the Israeli parliament again decided that Jerusalem would be the capital of the State of Israel.
When Israeli forces ousted Jordanian forces from East Jerusalem and the West Bank in the Six-Day War, ending on the 10th of June 1967, Israel immediately took steps to extend its law, administration, and jurisdiction over the whole of Jerusalem. They used the terminology “areas formerly part of Mandatory Palestine,” which is particularly interesting when considering the uti possidetis juris principle and the grounding of Israel’s borders in the administrative lines of the former Mandatory Palestine.
In July 1967, then Minister of Foreign Affairs Abba Eben informed the UN Secretary-General in writing that these acts — Israel applying its law, administration, and jurisdiction to Jerusalem — did not constitute annexation. This came under significant criticism, and in international law, we’ll come to the concept of annexation later. However, you simply can’t annex your own sovereign territory, which is what I suggest was underlying Eben’s comments over 50 years ago in 1967.
The Israeli Supreme Court has considered the legal status of Jerusalem famously in a 1993 case, the Temple Mount Faithful Association and the Attorney General. In that case, petitioners had requested the High Court of Justice to order the Attorney General and other Israeli authorities to prosecute the Muslim Waqf for undertaking certain works on the Temple Mount without the necessary permits. The High Court decided not to interfere with the discretion of the relevant Israeli authorities in this case. Still, it emphasized that the Temple Mount is part of the territory of the State of Israel and that the sovereignty of the state extends over a unified Jerusalem in general and the Temple Mount.
While we acknowledge the absence of an international consensus on a legal framework that properly addresses the territory, the principle — the application of uti possidetis — described above, there is no reason not to apply it to Israel. Yet it does seem from the rhetoric of the international community that an exception is being made to Israel, and the general principle of customary international law isn’t being applied here.
Settlements and the Geneva Convention
An argument is consistently put forward in opposition to Israeli settlements. When we talk about Israeli settlements, we’re talking about Israeli communities being built in the West Bank — some reestablished on existing communities where the inhabitants had been ethnically cleansed by the Jordanians in 1948, and some newly established on state land. Some, to the extent that they are established on private land and illegally established, are generally removed where they conflict with the law of the State of Israel.
The argument advanced under the Geneva Conventions is under Article 49 of the Fourth Geneva Convention, which provides that an occupying power shall not deport or transfer parts of its own civilian population in the territory it occupies. On this basis, settlement policy has been criticized as a breach of international law by the International Court of Justice, the Security Council, the International Committee of the Red Cross, and various countries and international commentators. None of the commentary or criticism, even from the International Court of Justice, has binding effect in international law, but there’s still a lot of it.
There are two substantial errors with this criticism. The first is the question of the applicability of the provisions of the Geneva Convention — they don’t apply outside of the context of occupation, and I’ve already addressed the status of the territory and why it is wrong to apply the framework of occupation to this case.
The second error relates to the mischief which Article 49(6) was designed to counter. Drafted in the aftermath of the Second World War in response to the forced transfer of populations by the Nazi regime, Article 49 prohibits individual or mass forcible transfers. The article was directed against this heinous practice, and it’s clear that the entire article is concerned with forced transfer of populations against their will.
The application of this law to Israeli settlements remains problematic, as the settlement movement concerns individuals and collectives moving voluntarily to the area after 1967 and not the forcible transfer of populations the Geneva convention aimed to prevent.
The last paragraph of Article 49, Paragraph 6, which relates to an occupier’s own civilian population, must logically relate to forced transfer. This position is reinforced when you look at the preparatory materials and the discussions behind the drafting of the convention. The application of this provision to Israeli settlements remains problematic, as the settlement movement concerns individuals and collectives moving voluntarily to the area after 1967. The provision can’t objectively be construed to cover voluntary movement of individuals not as a result of state transfer but of their own volition and an expression of their personal choice.
Furthermore, the restriction on forcible transfer of a population is a restriction on a government action. It’s not a requirement that the government to stop civilian movement into an area. Although, on occasion, the Israeli government has done exactly this, where it had a basis upon which to remove individuals settling on private land, as I previously indicated — those settlements that were truly illegal because they lacked the relevant permits or they did not have a right to settle in terms of landlord on the land itself. The spontaneous or voluntary movement of Israeli nationals simply doesn’t trigger the text of Article 49(6).
Laws of occupation in practice
A fundamental principle of international law is its equal application so it’s instructive to look at the wider treatment of settlement activity, in cases that are clearly defined and undisputedly considered illegal occupation under international law. While this is not the situation that Israel has in the West Bank, under a real occupation, as is contemplated by the Geneva Convention, where a government-orchestrated settlement activity forms part of the policy of the belligerent occupier how has the law been applied? The international community has consistently acquiesced to government-orchestrated settlement activity in East Timor, Western Sahara, and Northern Cyprus, in Lebanon during the during the Syrian occupation, in Cambodia with respect to Vietnam, in Azerbaijan during the Goro Karabakh conflict, and in Russia’s occupation in Georgia and in Crimea.
While many of these cases, have resulted in criticism related to other human right violations, there has never been criticism of the settlement projects in these cases in terms of Article 49(6). The failure to raise legal objections is generally consistent across all of these examples and extends to international organizations and groups like the UN Human Rights Council, the International Committee of the Red Cross, and humanitarian NGOs like Human Rights Watch whose work it is to systematically point out violations of these norms. The lack of an international response to occupation has the effect of legitimizing a policy of government-orchestrated settlement projects. This is paramount because the development of public international law through custom, is rooted in the practice of states. It’s their practice over time that results in that binding custom of international law.
When we consider that the only example in international law where the issue of settlements has been criticized as illegal is with regard to Israel, we must consider whether the motivation behind that criticism is, in fact, political rather than legal.
Labeling application of civil law as annexation
The use of “annexation” to characterize the application of civilian law is wholly inappropriate misuse of the legal term “annexation.” I am referring to a debate not long ago, when a proposal was made by Israeli lawmakers to apply areas of civilian law in portions of the West Bank, specifically known as Area C. The plan would subsequently extend Israeli citizenship to approximately 50,000 local Palestinian residents. The law didn’t pass.
Opponents of the plan argued that such a move would effectively result in a “de facto annexation” of Area C, influencing the final status of the region. However, the use of the term “annexation” is not only misapplied due to Israel’s underlying sovereignty when considering the territory’s status but also constitutes a misrepresentation of the actual proposal.
Annexation, according to the Oxford Encyclopedia of Public International Law, means the forcible acquisition of territory by one state at the expense of another state. Annexation is about taking a territory belonging to another state. It’s what Russia did in Crimea in 2014. It’s what Germany did in Austria in 1938. It’s what Jordan tried to do in the West Bank between 1948 and 1967.
Opponents of Israel who use the term annexation make a series of false assumptions. They assume that Israel lacks a claim of sovereignty to the area; that another state actually holds sovereign title to the territory; and that when Israel applies its laws, it will be taking another state’s territory. It’s unfortunate that the terminology of annexation is being wrongly deployed here. It really is an example of where the rhetoric of international law conflicts with the reality of international law. These un-evenly applied rules are made up through a distortion of international law against Israel, which is why you don’t see these rules being applied anywhere else.
The administrative regime that Israel established in 1967 in the West Bank was intended to be temporary because Israel recovered that territory from Jordan. However, it was anticipated and hoped by Israel that a negotiated peace agreement at the time with Jordan would swiftly be achieved. With that, there would be an anticipated element of change to sovereignty and borders as part of a negotiated settlement. That is why Israel applied a temporary framework 53 years ago.
Fifty-three years later, it is entirely unreasonable to expect Israel to maintain a situation of limbo, a situation where Knesset legislation does not apply to these areas properly. There is, therefore, a devastatingly confusing patchwork of legal administration with leftover Ottoman law, Jordanian law, British mandate law, and often utter confusion on how these regulate 21st-century issues. There is a total absence of environmental legislation and the provisions that benefit the rest of the country where civilian law is applied in full.
The proposal of applying Israeli civilian law to these areas would have brought benefits to the local population in terms of the consistency of the application of law, including Arab inhabitants. It’s important to note that ordinary Palestinian Arabs who might have been impacted by these proposals did not necessarily oppose them. They stood to gain substantially in terms of access to healthcare, the welfare system, social security benefits, the right to vote in municipal elections, and other rights that attach to residency.
The practical implications of the proposals were also terribly misrepresented. There was an idea that it would prejudice what a final settlement would look like. However, any proposals around a two-state solution have envisaged sovereign Israeli territory being transferred, with recent examples like the Trump plan envisioning significant parts of the Negev being transferred in that fashion. In that sense, it did not affect the situation at all; Israel was still able to negotiate over territory to which its law applies.
Effect of international laws on a peace agreement
There is a significant caveat with respect to the status of the territory. The way international law is applied in these situations, does not to prejudge what a peace settlement would look like between Israel and its neighbors. It’s not to say that the West Bank in its entirety must remain Israeli sovereign territory.
There is also a strong argument to say that arrangements and agreements that Israel has entered into, notably with the Palestinian Authority. through the Oslo Peace Process, which divided the territory, can change the status of the territory.
When looking at the allegations made regarding Israel’s alleged illegal conduct, the crucial thing is to go to the starting point of the law and work out what the original status of the territory is. On that basis, I believe we can successfully begin to dispel those myths.
This overview of some rather complex areas of international law and the political history of the State of Israel. I hope it begins to shed light on how international law is often misrepresented in the context of Israel.
