Why Jewish Settlements in the So-Called 'West Bank' are Lawful Under International Law

Abstract

The question whether Jewish settlements in the so-called “West Bank” are lawful under international law is one of the most highly charged questions of international concern today. Even the International Criminal Court (ICC) is pursuing the issue, based on claims that Israel is violating international law and committing war crimes by permitting Jews to establish settlements in the “West Bank”—territory historically known as Judea and Samaria and historically a component part of the Jewish homeland, but currently claimed by its Arab residents to be part of a “state” of Palestine. In this paper, we argue that there is no Arab state of Palestine (and there never has been one); that Jewish settlements in the “West Bank” are not unlawful in light of colorable Jewish claims to the land; and that resolution of the dispute regarding ownership of the land must occur via negotiations, the means to which both Israeli and Palestinian Arab officials have already agreed. We examine three different legal theories to support our conclusion that Jewish settlements are lawful: the theory based on uti possidetis juris; the theory based on the continuing validity of the Mandate for Palestine over the West Bank until the terms of the sacred trust set forth in the Mandate and assumed by the international community following World War I are fulfilled; and the theory based on the fact that the territory in question is at best disputed between Israelis and its Arab residents—which dispute which must be resolved via good faith negotiations as already agreed upon by both sides. Each of the three theories individually and independently supports the legality of Jewish settlements in the “West Bank,” thereby showing that allegations of Israeli war crimes are wholly without foundation.