by Natasha Hausdorff, Spectator
There are few phrases in international affairs repeated with greater confidence or subjected to less scrutiny than ‘illegal Israeli settlements’. It appears in UN resolutions, government statements, NGO reports and news bulletins as though it were an established fact. Add the words ‘under international law’ and apparently further discussion becomes unnecessary.
The trouble is not just that this is political rhetoric masquerading as law, but that it is in fact contrary to real international law, properly applied. The claim rests upon a series of propositions about Israel’s borders, the legal nature of occupation and the meaning of provisions of the Fourth Geneva Convention, propositions which have hardened into orthodoxy through repetition. They have been endorsed by the International Committee of the Red Cross, the UN Security Council and majorities of the International Court of Justice (ICJ). But institutional repetition does not transform defective legal reasoning into law.
To understand the problem, one must go back. After the Ottoman Empire collapsed in 1922, the international community established the Mandate for Palestine. The Mandate expressly required the facilitation of Jewish immigration and encouraged ‘close settlement by Jews on the land’. Whatever one thinks politically about the Mandate today, this was the international legal framework established for the territory.
When Israel became an independent state in 1948, another universal rule became crucial: uti possidetis juris, an unglamorous Latin expression with significant consequences. It means that when a new state emerges from a pre-existing administrative territory, it by default inherits that territory’s boundaries as its international borders.
The doctrine originated in Latin America and was later applied across the decolonisation of Africa and Asia and to the break-up of states including the Soviet Union and Yugoslavia. Its purpose is obvious. Independence cannot lead to a territorial vacuum in which every boundary is up for grabs. As the ICJ has recognised, the rule provides stability, certainty and prevents fratricidal struggles over land.