Article 49 of the Fourth Geneva Convention:
The only provision of international law which may make settlements illegal is the last sentence of Article 49:
“The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
(Note that it is not the building of settlements that is made illegal, only the transfer of people into the occupied territory.)
(Note that the transfer of businesses into the occupied territory is not made illegal – indeed, such transfer is desirable, to assist the economy of the occupied territory, since no other investment will normally be offered – nor is the transfer of workers unless they also come to live in the occupied territory.)
League of Nations, San Remo Convention, 1920:
Article 6 mandated the UK to “encourage close settlement by Jews on the land, including State lands and waste lands not required for public purposes.”
This Convention (and this Article) still applied after the League of Nations was replaced by the General Assembly of the United Nations in 1945.
“The land” means the whole of Palestine west of the Jordan.
“Waste lands” is a translation of the Turkish legal term (also called “dead lands”) for land formerly in private ownership but abandoned by non-registration and non-payment of taxes.
The Israelis claim that Article 6 still applies to the West Bank, since nothing has reversed it.
The clear purpose of the whole of Article 49 is to prevent ethnic cleansing.
It would be wrong to use it to prevent the reversing of ethnic cleansing.
The Jewish West Bank settlements reverse the 1948 ethnic cleansing of the West Bank.
Only transfer by the Occupying Power (the Israeli Government) is a breach of Article 49. Israelis who ‘transfer themselves’ are not a breach.
The Israelis claim that the settlers enter the West Bank of their own accord.
Against that, the Israelis have facilitated or enabled the settlers by providing infrastructure for the new settlements, and more importantly by providing favourable finance to the settlers, without which they would have been unable to come.
On balance, it seems that the Israeli government has indeed transferred settlers into the authorised new settlements..
However, settlers moving into existing Jewish-owned property (mostly in Hebron and East Jerusalem) have transferred themselves, and are not a breach.
Likewise settlers in unauthorised settlements clearly have not been transferred by the Israeli government, and are not a breach.
If the transfer of settlers is illegal, does it matter?
Settlements don’t harm anyone, and they’re not a crime.
Settlements don’t kill anyone, they don’t injure anyone, they don’t make anyone homeless, they don’t require anyone to move home, and they don’t deprive anyone of property that they own (if they do, the Israeli Supreme Court requires their destruction).
So what harm do they do (other than forcing Palestinians to have Jewish neighbours, usually over a mile away)?
Most breaches of a Convention are not crimes,
The Fourth Geneva Convention has a list of crimes (Articles 146-7).
Transfer of the Occupying Power’s own civilians is not on the list.
So the transfer of settlers, even if illegal, is not a crime.
Are settlements an obstacle to peace?
Settlements help the peace process: the Palestinians hate the settlements so much that increasing the settlements puts more and more pressure on them to come to the negotiating table.
Unfortunately, the Palestinians have other reasons and excuses for delaying negotiations (for example, demanding the release of several dozen convicted racist murderers from Israeli jails).
The Palestinians want to pursue the General Assembly Resolution 194 path, with its ‘right of return’ for (only) Palestinian refugees – Abbas has made this clear in three General Assembly speeches in recent years – but any peace process conducted at present will have to be on the Security Council Resolution 212 path (with no ‘right of return’). The Palestinians are delaying in the hopeless expectation that this will change.
In 2009, the Israelis announced, and kept to, a 10-month settlement freeze, and President Obama begged the Palestinians not to miss this ‘window of opportunity’ (a phrase much misused by international politicians since), but the Palestinians still refused to negotiate.
Settlements are simply a Palestinian excuse for delaying.
Do the Palestinians create obstacles to peace?
Most people who call the settlements an obstacle to peace do not seem bothered about Palestinian obstacles to peace.
Many things the Palestinians do are crimes, and do great harm to people – for example, stabbings shootings stonings and car-rammings of innocent civilians, and government and media incitement of such things.
The government salaries, and pensions, paid by the Palestinian Authority to convicted terrorists, and the families of deceased terrorists, are also (though not crimes) an obstacle to peace.
Targeting innocent civilians and killing them, on a weekly basis, and praising and paying the murderers, is obviously a terrible way of demonstrating peaceful intent.
Building homes and living in them is not.
So why do settlements matter?
International opinion is one-sided.
Whatever the Israelis do, however harmless, matters.
Whatever the Palestinians do, however bad, does not matter.
Settlements (essentially, building homes on unowned land and living in them) do no harm, are not a crime, reverse ethnic cleansing, and even if illegal are trivial compared with Palestinian crimes, and with breaches of international law by many other countries.
Do settlements matter?
Article 49 of the Fourth Geneva Convention: