Written by Amb. Alan Baker
1. Upon Israel's taking control of the area in 1967, the 1907 Hague Rules on Land Warfare and the Fourth Geneva Convention (1949) were not considered applicable to the West Bank (Judea and Samaria) territory, as the Kingdom of Jordan, prior to 1967, was never the prior legal sovereign, and in any event has since renounced any claim to sovereign rights via a vis the territory.
2. Israel, as administering power pending a negotiated final determination as to the fate of the territory, nevertheless chose to implement the humanitarian provisions of the Geneva convention and other norms of international humanitarian law in order to ensure the basic day-to-day rights of the local population as well as Israel's own rights to protect its forces and to utilize those parts of land that were not under local private ownership.
3. Article 49 of the Fourth Geneva Convention, prohibiting the mass transfer of population into occupied territory as practiced by Germany during the second world war, was neither relevant nor was ever intended to apply to Israelis choosing to reside in Judea and Samaria.
4. Accordingly, claims by the UN, European capitals, organizations and individuals that Israeli settlement activity is in violation of international law therefore have no legal basis whatsoever.
5. Similarly, the oft-used term "occupied Palestinian territories" is totally inaccurate and false. The territories are neither occupied nor Palestinian. No legal instrument has ever determined that the Palestinians have sovereignty or that the territories belong to them
6. The territories of Judea and Samaria remain in dispute between Israel and the Palestinians, subject only to the outcome of permanent status negotiations between them.
7. The legality of the presence of Israel's communities in the area stems from the historic, indigenous and legal rights of the Jewish people to settle in the area, granted pursuant to valid and binding international legal instruments recognized and accepted by the international community. These rights cannot be denied or placed in question.
8. The Palestinian leadership, in the still valid 1995 Interim Agreement (Oslo 2), agreed to, and accepted Israel's continued presence in Judea and Samaria pending the outcome of the permanent status negotiations, without any restriction on either side regarding planning, zoning or construction of homes and communities. Hence, claims that Israel's presence in the area is illegal have no basis.
9. The Palestinian leadership undertook in the Oslo Accords, to settle all outstanding issues, including borders, settlements, security, Jerusalem and refugees, by negotiation only and not through unilateral measures. The Palestinian call for a freeze on settlement activity as a precondition for returning to negotiation is a violation of the agreements.
10. Any attempt, through the UN or otherwise, to unilaterally change the status of the territory would violate Palestinian commitments set out in the Oslo Accords and prejudice the integrity and continued validity of the various agreements with Israel, thereby opening up the situation to possible reciprocal unilateral action by Israel.
Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, is former Legal Adviser to Israel's Foreign Ministry and former Ambassador of Israel to Canada.