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The legal status of Israeli settlements under IHL

The following policy brief discusses the legal implications under international humanitarian law (IHL) of Israeli settlements in the Gaza Strip, the West Bank and East Jerusalem. Following the practice of the United Nations (UN), this policy brief will refer to the Gaza Strip, the West Bank and East Jerusalemi as the "Occupied Palestinian Territory" (OPT).ii
By settlements, one understands areas within the OPT inhabited by civilians of Israeli nationality. It includes those that have been authorized by the Government of Israel (the majority), and those not so authorized (the minority, all small).iii The purpose of this policy brief is not to present a definite determination of the legal status of these settlements, but rather to review the legal arguments put forward by the various parties to the conflict and other actors in this debate.

On the Law of Occupation

The law of occupation provides rules regulating the relationship between the Occupying Power and the population of the occupied territory (including refugees and stateless persons). It also regulates the relationship between the Occupying Power and the state whose territory has been occupied. The law of occupation comprises a vast array of norms, in particular Articles 42 to 56 of the Hague Regulations annexed to the 1907 Fourth Hague Convention Respecting the Laws and Customs of War on Land and Articles 27 to 34 and 47 to 135 of the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, as well as specific provisions contained in legal instruments such as Additional Protocol I to the Geneva Conventions (1977) and the Rome Statute of the International Criminal Court. It also includes customary norms, derived from the general practice of a majority of states over time. (For more information, see Applicable IHL Instruments.)

From the outset, one should note that all parties agree that the situation in the OPT falls, at least to some extent, under the legal regime governing occupation. There are, however, substantive disagreements about which international legal instruments are applicable to the OPT. In particular, Israel does not recognize the overall de jure applicability of the Fourth Geneva Convention to the OPT, even though the Israeli High Court of Justice does admit the applicability of certain of its provisions as representing customary international law. This position has been strongly criticized by the rest of the international community. (For a discussion of Israeli objections to the applicability of the Geneva Conventions, the reader should consult the policy brief on the Application of International Humanitarian Law (IHL) to the OPT.)

Despite its objections to the overall application of the Fourth Geneva Convention to the OPT, Israel does, however, recognize the application to the OPT of the rules on occupation contained in the Hague Regulations, on the grounds that the Hague Regulations are now part of international customary law. Finally, since Israel ratified neither Additional Protocol I to the Geneva Conventions nor the Rome Statute of the ICC, these instruments are not formally applicable to the OPT (albeit only to the extent that various provisions therein do not form a part of international customary law).

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