By Aaron Eitan Meyer

Anyone with a peripheral interest in the Middle East knows Israeli settlements are “controversial.” Israeli communities located outside the 1949 armistice lines have been used as an excuse by the Palestinian Authority (PA) to avoid direct negotiations for over a decade. Even when Israeli PM Ehud Barak offered 95% of the West Bank and Gaza at Camp David, Yasser Arafat initiated a violent intifada rather than negotiate. Over a decade later, rhetoric surrounding the settlements continues to incorporate legal terminology irrespective of the meaning or applicability of the terms.

On September 23, PA leader Mahmoud Abbas submitted a petition for UN membership accompanied by a statement to the General Assembly. Calling Israeli settlements “the primary cause for the burial of the peace process,” Abbas asserted, “Settlement activities embody the core of the policy of colonial military occupation of the land of the Palestinian people and all of the brutality of aggression and racial discrimination against our people that this policy entails.”

While it’s easy to criticize the tone of Abbas’s speech, his legal claims are especially troubling.  In particular, the assertions that settlements embody (1) the core of “military occupation” and (2) the crime of “aggression” are inaccurate.  In fact, Abbas’s misstatements constitute part of an ongoing campaign to rewrite international legal norms in order to increase pressure on Israel. 

The claim that settlements constitute “military occupation” is absurd.   Occupation is a legal term, defined in Article 42 of the 1907 Hague Conventions on the Laws and Customs to War on Land: “Territory is considered occupied when it is actually placed under the authority of the hostile army” and “occupation applies only to the territory where such authority is established…” Article 6 of the Fourth Geneva Convention describes an Occupying Power as one that “exercises the functions of government in such territory.”

A key element of occupation is the existence of a territory under the authority of a hostile army. Since the creation of the PA, approximately 98 percent of Palestinians in the West Bank have been living under PA control (i.e., the authority of Abbas himself.) It’s difficult to imagine how building houses constitutes “military occupation,” much less forms “the core of the policy.”

Abbas’s claim that settlements constitute “aggression” is similarly inapplicable. Per the General Assembly Resolution entitled “Definition of Aggression,” “aggression” is “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State…” Acts of armed force by one state against another is an essential feature common to all definitions of “aggression.”  Even the most encompassing proposed definitions of “aggression,” such as that of the Rome Statute of the International Criminal Court, don’t embrace building houses and include examples such as invasion or attack by armed forces of one state against another, and the use of weapons against the territory of another state. One would be hard-pressed to form a compelling legal (much less logical) argument that civilian housing units are in any way similar to this concept.