Europeans like to say that “Israeli settlements outside of the Green Line are illegal under international law.” The US State Department prefers “illegitimate.” But they are wrong.
Usually the explanation has something to do with Article 49 of the Fourth Geneva Convention, which says that
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
The original intent of this is generally understood to prohibit transfer against the will of the transferees, such as the expulsion of Jews from Germany into occupied Poland that took place during WWII. But since the text does not say this explicitly and it does mention “forcible transfer” in another context, it is often argued that it applies to Israeli Jews who have moved by their own volition across the Green Line, especially if they have received government support to do so.
The argument has also been applied to the transfer of Turkish settlers to the part of Cyprus occupied by Turkey.
This would be a stretch, even if Israel were to be an “Occupying Power.” But unlike Turkey in Cyprus, it isn’t. Here is a generally accepted definition of ‘military occupation’:
Military occupation is effective provisional control of a certain power over a territory which is not under the formal sovereignty of that entity, without the volition of the actual sovereign. [notes at link]
So who is the “actual sovereign” in the case of Judea and Samaria? Let’s look at history.
The territory called ‘Palestine’ was controlled by the Ottoman Empire until the Empire was dissolved after World War I. In 1922, the League of Nations issued a Mandate to Britain to hold the land of Palestine, from the river to the sea, in trust for a national home for the Jewish people.
The Mandate explicitly guaranteed the rights of Jews to live anywhere in its territory and called for “close settlement of Jews on the land.” This guarantee is independent of whatever meaning is attached to the expression “national home.”
In 1948, the Mandate was terminated and the British withdrew from its territory. The League of Nations had been replaced by the UN. However, Article 80 of the new UN Charter carried forward to the UN obligations created by trusteeships like the Mandate, such as the obligations to the Jewish people.
On the same day, the State of Israel was declared in eretz yisrael, the Land of Israel. Although the Declaration of Independence stated that the new state would cooperate with the UN in the future implementation of UNGA resolution 181, the partition resolution, no borders were explicitly delimited.
The State of Israel was immediately recognized by a majority of the member states of the UN. It was also immediately invaded by the armies of several Arab nations, whose intent was destroy the Jewish state and take its territory for themselves (not to create a ‘Palestinian’ Arab state).
Note that the state was not ‘created by the UN’. Its legitimacy as a sovereign state rests on its effective control of its territory and population, its ability to enter into relations with other states, and its recognition by them. Resolution 181 was a non-binding recommendation in the first place, was rejected by the Arabs and never in fact implemented.
When an armistice agreement with Jordan was finally obtained in 1949, the so-called Green Line which marked the final positions of the armies was delimited. Both sides agreed that the lines were not ‘borders’ and had no political significance:
Art. II, 1: The principle that no military or political advantage should be gained under the truce ordered by the Security Council is recognised;
Art. II, 2: It is also recognised that no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations.
Art. VI, 9: The Armistice Demarcation Lines defined in articles V and VI of this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.
However, in 1950, Jordan violated both this agreement and arguably the UN Charter (which forbids acquisition of territory by force) and annexed Judea, Samaria and eastern Jerusalem. Judea and Samaria were henceforth called “The West Bank” as opposed to the rest of Jordan, which was east of the river. The only country that formally recognized the annexation was Britain.
In 1967, after Jordan participated in yet another war intended to destroy the Jewish state, the land was retaken by Israel, leaving it in possession of the area of the original Palestine Mandate, more or less.
Jordan’s 19-year occupation was neither legal nor recognized. The only legitimacy it had was that of a temporary military occupier. Therefore, when in 1988 King Hussein finally ended all Jordanian ties to “the West Bank” in favor of the PLO, he had nothing to give them.
Jews living in the Land of Israel, including Judea and Samaria, were granted the right to do so by the Mandate. This right has never been revoked, although it was denied during the illegal Jordanian occupation. In fact, the UN is obliged to support it today!
And to answer the question I posed above, the only legitimate sovereign power in the Land of Israel since the end of the Mandate is Israel. And therefore, Israel cannot be an occupying power.
As Naftali Bennett said, “you can’t occupy your own land.”