Myths and Facts
Israeli Settlements

Israeli settlements are illegal.
Settlements are an obstacle to peace.
Settlements violate the Geneva Convention.
Israel must dismantle all the settlements for peace.
Israel plans to annex all the settlements.
Settlements preclude the creation of a contiguous Palestinian state.
The E1 project threatens the establishment of a contiguous Palestinian state.
There are no Palestinian settlements.

MYTH

Israeli settlements are illegal.

FACT

On November 18, 2019, Secretary of State Michael Pompeo expressed the Trump administration’s position that “the establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.”¹ The media inaccurately described this as a reversal of longstanding American policy. In truth, the record is more complicated.

Jews have lived in Judea and Samaria—the West Bank—since ancient times. They were prohibited from living in the territories only during Jordan’s occupation from 1948 to 1967. Jews began to settle in the area again after it was captured by Israeli forces in the defensive war fought in 1967.

The idea that these Jewish communities are illegal derives primarily from UN resolutions and the International Court of Justice (ICJ), an arm of the UN. The UN does not make legal determinations, only political ones tainted by the overwhelming anti-Israel majority. The ICJ “does not have jurisdiction over all disputes between UN member-states,” according to the Congressional Research Service. In fact, “with the exception of ‘advisory opinions,’ which are non-binding, the ICJ may only resolve legal disputes between nations that voluntarily agreed to its jurisdiction.”²

Opinions of the ICJ are routinely ignored by the countries they are directed at, and the Europeans would never accept the idea that they trump the decisions of their judiciaries. Likewise, the United States, Russia, and China never signed the treaty establishing the court and do not accept its jurisdiction.³

Israel does not recognize the court’s jurisdiction on the settlement issue. Like other democracies, Israel has an independent judiciary. As Pompeo noted, its Supreme Court has “confirmed the legality of certain settlement activities and has concluded that others cannot be legally sustained.”

Legal scholars dispute the ICJ opinion that the settlements violate international law. Stephen Schwebel, formerly president of the ICJ, notes that a country acting in self-defense may seize and occupy territory when necessary to protect itself. Schwebel also observes that a state may require security measures to ensure its citizens are not menaced again from that territory as a condition for its withdrawal.⁴

Furthermore, UN Security Council Resolution 242 gives Israel the legal right to be in the West Bank. According to Eugene Rostow, a former undersecretary of state for political affairs in the Johnson administration, “Israel is entitled to administer the territories” it acquired in 1967 until “a just and lasting peace in the Middle East” is achieved.⁵

The United States has not regarded Israeli settlements as illegal. The oft-cited exception is the opinion of State Department legal adviser Herbert Hansell in the Carter administration. He argued that establishing settlements in the “occupied territories,” which included the West Bank, the Gaza Strip, the Sinai Peninsula, and the Golan Heights, is “inconsistent with international law.” This conformed to the views of President Carter at the time, who was critical of the Israeli settlement policy. Legal scholar Eugene Kontorovich noted, however, that Hansell said the state of occupation would end if Israel entered into a peace treaty with Jordan, which it did in 1994. Nevertheless, the State Department never updated the memo.⁶

Ronald Reagan rejected Hansell’s opinion of settlements. On February 3, 1981, he said, “I disagreed when the previous Administration referred to them as illegal; they’re not illegal.”⁷

Secretary of State James Baker was asked if the Bush administration regarded the settlements as illegal, and his answer was, “this is not our policy.”⁸

The Obama policy has also been mischaracterized. Secretary of State John Kerry and President Barack Obama were very critical of Israel’s settlement policy, but Kerry did not call them “illegal”; he said they were “illegitimate.”⁹ His only statement regarding their “illegality” was when he mentioned “settler outposts that are illegal under Israel’s own laws.” Obama abstained rather than veto the UN Security Council resolution labeling settlements illegal, which was generally interpreted as an endorsement of that view; however, it did not affect U.S. policy since he left office shortly thereafter.

In response to criticism that the Trump administration’s decision on the legality of settlements would harm the peace process, which at the time was moribund, Pompeo said the Carter formulation “hasn’t advanced the cause of peace.”¹⁰

By making explicit that the settlements are not illegal, the United States sent a message to the Palestinians and their supporters that their misinterpretation of international law cannot be used to coerce Israel to capitulate to their demands. A change in Israel’s settlement policy will only come if that is the will of the Israeli people and advances the peace process.

MYTH*

Settlements are an obstacle to peace.

FACT

Settlements have never been an obstacle to peace.

• From 1949 to 1967, when Jews were forbidden to live on the West Bank, Arab leaders refused to make peace with Israel.
• From 1967 to 1977, the Labor Party established only a few strategic settlements, yet Arab leaders were unwilling to agree to peace with Israel.
• The fact that a Likud government committed to greater settlement activity took power in 1977 did not stop Egypt from signing a peace treaty with Israel or Prime Minister Menachem Begin from removing the Jewish settlements in the Sinai.
• Israel froze settlement building for three months in 1978, hoping the gesture would entice other Arabs to join the Camp David peace process, but none did.
• In 1994, Jordan signed a peace agreement with Israel, and settlements were not an issue.
• Between June 1992 and June 1996, under Labor Party–led governments, the Jewish population in the territories grew by approximately 50%. This rapid growth did not prevent the Palestinians from signing the Oslo accords in September 1993 or the Oslo II agreement in September 1995. Those agreements left the question of settlements for final status negotiations and did not put any restrictions on them in the interim.
• In 2000, Prime Minister Ehud Barak offered to dismantle dozens of settlements, but the Palestinians still would not agree to end the conflict.
• In 2005, Israel evacuated all Jewish settlements in the Gaza Strip and four in Northern Samaria, but terror attacks continued.
• In 2008, Prime Minister Ehud Olmert offered to withdraw from approximately 94% of the West Bank, but the deal was rejected.
• In 2010, Prime Minister Benjamin Netanyahu froze settlement construction for ten months, and the Palestinians refused to negotiate until the period was nearly over. After agreeing to talk, they walked out when Netanyahu ended the freeze and had still not returned to negotiations by August 2022.

The settlements do not displace Arabs living in the territories. The media sometimes gives the impression that several hundred Palestinians are forced to leave for every Jew who moves to the West Bank. The truth is that most settlements have been built in uninhabited areas, and even the handful established in or near Arab towns did not force any Palestinians to leave.

Contrary to Palestinian-inspired hysteria about settlement expansion, only five settlements were built in the 1990s.¹¹ In 2017, work began on the first new settlement in 20 years.¹²

Settlement activity may stimulate peace because it forces the Palestinians to reconsider the view that time is on their side. “The Palestinians now realize,” said Bethlehem Mayor Elias Freij, “that time is now on the side of Israel, which can build settlements and create facts, and that the only way out of this dilemma is face-to-face negotiations.”¹³

Many Israelis question the wisdom of expanding settlements. Some consider them provocative; others worry that the settlers are particularly vulnerable and note they have been targets of repeated terrorist attacks. To defend them, many soldiers are deployed who would otherwise be training and preparing for a potential future war. Some Israelis also object to the money that goes to these communities and special subsidies provided to make housing more affordable. Still, others feel the settlers are providing the first line of defense and developing land that rightfully belongs to Israel.

The disposition of settlements is a matter for negotiations. The question of where the final border will be between Israel and a Palestinian entity will likely be influenced by the distribution of these Jewish towns in Judea and Samaria (the border with Gaza was unofficially defined following Israel’s withdrawal). Israel wants to incorporate as many Jews as possible within its borders, while the Palestinians want to expel all Jews from any territory they control.

If Israel withdraws unilaterally or as part of a political settlement, many settlers will face expulsion from their homes or voluntary resettlement in Israel with financial compensation.

The impediment to peace is not the existence of Jewish communities in the disputed territories but the Palestinians’ unwillingness to coexist with Israel instead of replacing it.

In the meantime, despite their complaints, thousands of Palestinians work in settlements.

Settlement Growth Over Time

MYTH

Settlements violate the Geneva Convention.

FACT

The Fourth Geneva Convention prohibits the forcible transfer of people of one state to the territory of another state that it has occupied due to war. The Convention was never meant to apply to a case like the settlements. Morris Abram, one of its drafters, said they were concerned with the types of crimes committed by the Nazis, such as the forcible eviction of Jews for purposes of mass extermination.¹⁴

This is in no way relevant to the settlement issue. Jews are not being forced to go to the West Bank; on the contrary, they are voluntarily moving back to places where they, or their ancestors, once lived before being expelled by others.

The International Court of Justice’s opinion about the illegality of settlements was based on a fallacious interpretation of the Fourth Geneva Convention. The ICJ presupposes that Israel is now occupying the land of a sovereign country; however, as former Israeli Ambassador to the UN Dore Gold notes, “there was no recognized sovereign over the West Bank prior to Israel’s entry into the area.” Jordan had previously occupied the area.¹⁵

A country cannot occupy territory to which it has sovereign title; hence, the correct term for the area is “disputed territory,” which does not confer greater rights to Israel or the Palestinians. The Palestinians never had sovereignty in the West Bank, whereas the Jews did for hundreds of years.

“The Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there,” according to Professor Eugene Rostow, former undersecretary of state for political affairs.¹⁶

Legal scholar Eugene Kontorovich argues that “Israel has the strongest claim to the land” because “international law holds that a new country inherits the borders of the prior geopolitical unit in that territory. Israel was preceded by the League of Nations Mandate for Palestine, whose borders included the West Bank.”¹⁷

Adam Baker, a former legal adviser to Israel’s Ministry of Foreign Affairs, adds that the “Oslo Accords instituted an agreed legal regime that overrides any other legal framework, including the 1949 Fourth Geneva Convention.”¹⁸

The effort to apply the Convention to Israel reflects a clear double standard. Kontorovich notes that “the significant migration of settlers into an occupied territory under the auspices of the occupying power is a ubiquitous feature of prolonged territorial control.” He adds that no one has ever been prosecuted for violating the Convention and, except for a few sentences in an advisory opinion by the International Court of Justice, “its interpretation has been confined to academic and political statements – entirely within the particular context of Israel.”¹⁹

MYTH

Israel must dismantle all the settlements for peace.

FACT

When serious negotiations begin over the final status of the West Bank, battle lines will be drawn over which settlements should be incorporated into Israel and which must be evacuated. In August 2005, Prime Minister Ariel Sharon acknowledged that “not all the settlements of today in Judea and Samaria will remain,”²⁰ while leaked Palestinian negotiating documents indicate the Palestinians were prepared to accept that some settlements would be incorporated into Israel.²¹

In Gaza, Israel intended to withdraw completely; no settlements were viewed as vital to Israel for economic, security, or demographic reasons. The situation in the West Bank is completely different because Jews have strong historical and religious connections to the area stretching back centuries. Moreover, the West Bank is an area with strategic significance because of its proximity to Israel’s heartland, and roughly one-quarter of Israel’s water resources are located there.

The disengagement from Gaza involved only 21 settlements and approximately 8,500 Jews. Today, nearly 500,000 Jews live in 128 communities on the West Bank. More than 40% of these settlements have fewer than 1,000 citizens, 23% have fewer than 500, and only 13% have more than 5,000. Approximately 71% of the Jews in the West Bank live in five settlement “blocs,” four of which are near the 1949 Armistice Line – the “Green Line” (it is incorrect to refer to a 1967 border). Another 330,000 live across Green Line in East Jerusalem.¹¹

As the table shows, these are large communities with thousands of residents. Evacuating them would be the equivalent of dismantling major American cities such as Annapolis, Maryland; Olympia, Washington; or Carson City, Nevada.

Ma’ale Adumim is not a recently constructed outpost on a hilltop; it is a 46-year-old suburb of Israel’s capital, barely three miles (five km.) outside Jerusalem’s city limits, that is popular because it is clean, safe, and close to where many residents work. It is also the third-largest Jewish city in the territories, with a population of more than 40,000. Approximately 10,000 people live in surrounding settlements included in the Ma’ale bloc.

The Gush Etzion Bloc consists of 13 communities with a population of roughly 40,000, just ten minutes from Jerusalem. Jews lived in this area before 1948, but the Jordanian Legion destroyed the settlements and killed 240 women and children during the 1948 War. After Israel recaptured the area in 1967, descendants of those early settlers reestablished the community. The city of Betar Illit, with nearly 70,000 residents, is part of this bloc.

The Givat Ze’ev bloc includes five communities just northwest of Jerusalem. Givat Ze’ev, with a population of more than 20,000, is the largest.

Modiin Illit is a bloc with four communities. The city of Modiin Illit is the largest in all the disputed territories, with more than 83,000 people situated just over the Green Line, about 23 miles (37 km.) northwest of Jerusalem and the same distance east of Tel Aviv.

Ariel, with a population of more than 20,000, is now the heart of the second most populous bloc of settlements. The city is just 25 miles (40 km.) east of Tel Aviv and 31 miles (50 km.) north of Jerusalem. Ariel and the surrounding communities expanded Israel’s narrow waist, which was just 9 miles (15 km.) wide before 1967, and ensures that Israel has a land route to the Jordan Valley in case Israel needs to fight a land war to the east. It is more controversial than the other consensus settlements because it is the furthest from the Green Line, extending approximately 12 miles (19 km.) into the West Bank. Nevertheless, Ariel is expected to be annexed to Israel if a peace agreement is reached.

Most peace plans envision Israel annexing sufficient territory – 4 to 6% – to incorporate 75–80% of the Jews in the West Bank. In exchange, the Palestinian entity would get the same amount of land from Israeli territory (possibly in the Negev adjacent to the Gaza Strip). Based on the figures in the table above, only 71% of the settlers would be within Israel’s borders if these five blocs were annexed. Roughly one-third of the remaining Jews are expected to move into Israeli territory, bringing the total to 80%. Israel would still have to evacuate approximately 100,000 people.

This would involve another gut-wrenching decision that many settlers and their supporters will oppose with even greater ferocity than the Gaza disengagement. It is hard to imagine any Israeli government agreeing to such a mass transfer of its citizens.

MYTH

Israel plans to annex all the settlements.

FACT

Israel could have annexed the entire West Bank or the settlements at any time since 1967 but has not done so. It is still a possibility, but those are just two options that have been discussed for the disposition of the West Bank. Others include:

• Israel unilaterally delineates its border and determines which settlements it will annex.
• Israel establishes its border along the route of its security fence, incorporating the settlers on its side within Israel and forcing those on the other side to move inside the border.
• Israel annexes the settlement blocs.
• Israel annexes the settlements in the Jordan Valley.
•  Israel annexes the settlements in the Jordan Valley and the blocs.
•  Israel negotiates a peace treaty with the Palestinians that specifies which Jewish communities will remain intact within the mutually agreed border of Israel and which, if any, will be evacuated.

In 2020, the Netanyahu government considered applying Israeli sovereignty to some or all the settlements but decided not to as a condition for the United Arab Emirates and Bahrain to establish diplomatic relations with Israel.

MYTH

Settlements preclude the creation of a contiguous Palestinian state.

FACT

As map 31 indicates, it is possible to create a contiguous Palestinian state in the West Bank even if Israel incorporates the major settlement blocs. The total area of these communities is less than 2% of the West Bank. A kidney-shaped state linked to the Gaza Strip by a secure passage would be contiguous. Some argue that the E1 project linking Ma’ale Adumim to Jerusalem would cut off East Jerusalem, but that is not necessarily true, as Israel has proposed constructing a four-lane underpass to guarantee free passage between the West Bank and the Arab sections of Jerusalem.

The map also illustrates that Israel would have its contiguity interrupted by the passageway between Gaza and the West Bank.

MYTH

There are no Palestinian settlements.

FACT

Whenever Israel announces plans to build in the West Bank, an international furor erupts with false claims about their illegality. Meanwhile, the world was silent when the Palestinian Authority announced plans to violate the Oslo Accords unilaterally by canceling the West Bank’s division into Area A, B, and C and treating the entire area as sovereign Palestinian territory.²³ Even before that announcement, the Palestinians built settlements in Area C, where Israel must approve any construction.

Illegal settlements and infrastructure have spread across 250 Area C locations occupying more than 2,000 acres. The PA has offered incentives, such as tax exemptions, discounts for vehicle registration, and jobs for those who settle in Area C.²⁴ While Israel is pilloried anytime it suggests moving Bedouins from their encampments to another location or permanent housing, nothing is said about the PA’s efforts to do the same.

European countries, which routinely criticize Israeli settlements, provide funding for constructing the illegal Palestinian settlements. “European countries – individually, and through the European Union – have pumped hundreds of millions of euros annually into scores of illegal state-building and related projects – called Area C ‘interventions,’” according to investigative journalist Edwin Black.²⁵

People who ordinarily would be concerned about water and other environmental issues have ignored the Palestinian building projects, which Black notes “are not natural Arab urban growth or urban sprawl.” He says they are meant to “carve up Area C, sometimes surround Jewish villages, and sometimes push onto Israeli nature or military reserves.”

Palestinians have complained about the slow process of obtaining building permits from the Civil Administration and the high rejection rate. Black related that the number of applications has dropped because the Palestinians “deny Israel’s right to issue them” and “just start building.”

The courts hamstring Israel’s efforts to stop the illegal construction. Despite lacking citizenship, Palestinians can petition Israeli courts, including the Supreme Court, and do so with the help of well-funded NGOs. A military spokesman told Black, “It can take years to decide …. Meanwhile, they are still building. We can’t do anything about it.” If the court ultimately rules in Israel’s favor, the government is denounced by critics for demolishing the illegal structures.

Another troubling aspect of the Europeans’ funding is their reluctance to look carefully at the organizations they are funding to build up Area C, which includes supporters of the anti-Semitic BDS movement with connections to terror organizations. Black reports, for example, that European governments have funded the Union of Agricultural Work Committees, which is linked to the Popular Front for the Liberation of Palestine.²⁶

Consider the impact on the peace process of the European-backed activities by the PA. By building settlements, the Palestinians are trying to prevent Israel from creating a contiguous area for its future borders, precisely what Israel’s critics accuse it of doing. The Palestinians often complain that a future state would look like Swiss cheese because of the geographic distribution of Jewish communities, but they are creating the holes themselves by establishing isolated settlements separated from the main population centers and nearer Jewish towns. Moreover, by claiming sovereignty in Area C, the Palestinians have violated the Oslo Accords, further undermining Israeli confidence that they can be trusted to honor the terms of any future agreement.

New towns established by the Palestinians in the West Bank should be referred to as “settlements” and condemned with the same ferocity as critics of Israeli construction for creating “facts on the ground.” The West Bank is disputed territory; the Palestinians have no sovereign rights there today, nor have they had any in the past which would justify their incursion into Israeli-controlled territory. Those who constantly bemoan the disappearing two-state solution and unilateral actions should be outraged by the Palestinian campaign of creeping annexation and brazen efforts to predetermine the border of any possible state by their illegal construction in areas that Israelis have an equal right to claim as their own.

MYTH

The E1 project threatens the establishment of a contiguous Palestinian state.

FACT

Initially formulated by Prime Minister Yitzhak Rabin just months before his assassination, the EI plan is to populate the roughly 4.6 square mile (12 sq. km.) valley between Jerusalem and Ma’ale Adumim, which Palestinians agree will be part of Israel in any future agreement. This “settlement” of some 50,000 people is essentially a suburb just three miles (5 km.) outside the capital. The E1 project envisions the construction of three residential neighborhoods and a commercial-industrial zone.²⁷ Critics claim the E-1 project would cut off East Jerusalem from the rest of the West Bank and doom a two-state solution.²⁸

From Israel’s perspective, the project is critical for the long-term security of Jerusalem and necessary to prevent Ma’ale Adumim from becoming an isolated island surrounded by a Palestinian entity. To solve the issue of contiguity, Israel has proposed a bypass road to allow Palestinians to travel from north to south in the West Bank without security checkpoints.

The Israeli prime minister announces his intention to complete the plan every few years. Usually, within days, he backtracks under pressure from the United States.²⁹ The project remains on the drawing board, and much of the infrastructure is already in place, but the project remains in limbo.

Meanwhile, the Palestinians have been furiously building without opposition from abroad to prevent E-1 from being completed. The EU illegally finances hundreds of structures in the Adumim area, which is part of Area C, which the Oslo Accords put under the sole control of Israel.³⁰ In one case, Italy began to openly support the illegal Bedouin encampment of Khan al-Ahmar, including by moving the residents from tents to new structures and building a school for all the Bedouins in the vicinity. The site is located near E-1 to block Israel’s plans for the area. Israel’s Supreme Court approved the demolition of the illegal structures and the relocation of the Bedouins; however, international protests and the Israeli elections in 2019 delayed implementing the decision. Still undecided, the government asked for more time to formulate a position in March 2022 and still had not taken any action by August.³¹