The US Administration, The EU, the UN, almost everyone who counts keep claiming that Israeli settlements in Judea and Samaria (aka "West Bank") are illegal. Unfortunately they confuse illegality with unhelpfulness. Considering international law, these settlements are not illegal. Some of them may be problematic, but nonetheless, they are not—by any means—illegal.
Let me explain.
It was the twilight of the 19th century.
European Jews started in on their journey back to Judea, their ancient homeland, renamed Palestine by the Roman Empire some 2000 years earlier following the Bar Kokhba revolt in 135 CE. The territory was mostly a vacant wasteland with several villages and towns inhabited by Arabs plus a few Jewish enclaves. It was ruled by the Ottoman Empire, which occupied it following the fall of the Byzantine Empire, which had inherited the land from the Roman Empire.
The Jews who embarked on their journey back home settled the land. They were a small minority among the Arab majority, which amounted to several hundred thousand residents. There was nothing illegal about these settlements. Jews purchased land from its former owners; they built their kibbutzim, their Jewish towns, and also settled in towns that exhibited Arab majorities.
Following WWI Palestine became occupied by the British. European Jews continued arriving in spite of British restrictions. They continued settling the land in spite of Arab violent disapproval. There was nothing illegal about these settlements. As before, Jews purchased land from its former owners; they built their kibbutzim, their Jewish towns, and also settled among the Arabs in towns with Arab majorities and in towns where Arabs were no longer a significant bulk.
The violence and counter violence between Arabs and Jews intensified. It grew to a point that required international intervention. The UN came upon a partition plan, a two-state solution that parted Palestine into a Jewish state and a Palestinian Arab state. The Arabs rejected it.
The British left Palestine in 1948. Seven Arab countries launched a war on the Jewish enclave in Palestine. Their stated goal: “We will drive these subhuman Jews into the sea”. The Jews fought for their lives and for their state. It was their war of independence—a defensive war. And they won.
The victorious Jews were able to expand their territory beyond their existing kibbutzim and Jewish towns, and beyond what the UN partition plan had called for. In the process, many Arabs fled the area; they became refugees. Some were driven out by the menacing, destructive hellhole of war, as the terrain was ethnically cleansed, then resettled by Jews.
The 1949 armistice agreement established the new borders of the state of Israel. It included territory that happened to be occupied in the aftermath of the 1947-8 war. Most countries in the world, with the exception of the Arab and some Muslim nations recognized the state of Israel. They accepted the 1949 armistice (green) line as the firm boundaries of the state. They did not deem Jewish settlements, within the Green line, in the state of Israel as illegal even though the land had been occupied by the Jews in consequence of a defensive war.
And then came 1967.
Once again, four Arab countries declared war on the Jewish State. Abd el Nasser, Egypt’s president and leader of the Arab world, was quick to remove any doubt or misunderstanding about the Arabs’ true intentions. “The liquidation of Israel will be liquidation through violence. We shall enter a Palestine not covered with sand, but soaked in blood,” He announced.
The Jews fought for their lives and for their state. It was a war for survival. And, once again, they won.
The victorious Jews were able to expand their territory beyond their existing state. In the process, Arabs in the Golan Heights fled the area as the terrain was ethnically cleansed, then resettled by Jews. The Sinai desert was—still is—a desert. It was sparsely populated to begin with. Fortunately, the war was exceptionally short. Residents of the Gaza strip and the "West Bank" had no time to flee. They stayed in place, and were left under Israeli governance.
Still, there was plenty of uninhabited, public land; land that had been retained, then abandoned by the previous occupier of the area—the Hashemite Kingdom of Jordan.
Israel conquered the "West Bank" in a defensive war. International law, spelled out by the charter of the League of Nations, states that the status of territories occupied in consequence of a defensive war shall remain in dispute as long as there is no peace agreement between the warring parties. Accordingly, the conquered territory is disputed rather than occupied. And although Israel’s control over the area makes peace with the Palestinians more challenging, it is, nonetheless, legal.
What’s more, international law states that a territory conquered in a defensive war may be used to maintain security in the absence of a peace treaty. The conquering party may resettle it if it had been driven out of the area (like East Jerusalem, Hevron, Gush Etzion) in an earlier war (1947-8) and the rest of Judea and Samaria during the Roman revolt in 135 CE. Besides, UN Resolution 242 states clearly that in the absence of peace between Israel and the Arabs, Israel may develop and settle any public unoccupied land.
This public unoccupied land was never owned by a Muslim Palestinian state, since no Muslim Palestinian state ever existed. Four hundred years prior to the end of World War I in 1917 this land was occupied and owned by the Ottoman empire; then between 1917-1948 it was controlled by the British, and following the 1948 war between Israel and the Arab states, the kingdom of Jordan occupied — and, I must say, illegally absorbed — the same territory.
An Arab Palestinian authority has never owned public land in Judea and Samaria, (a.k.a. the West Bank) or the Gaza strip. The Jews were the only legitimate local resident owners before the Roman Empire’s conquest of the land. After the Romans drove the Jews out of Israel and renamed the territory, the only owners were foreign imperialists who took control of Palestine after defeating a former imperialist occupier.
Public unoccupied land in Judea and Samaria had never been in possession of a Palestinian Arab authority or government. Israel captured the land from its illegal possessor, the Jordanian Hashemite kingdom, in a defensive war.
In the absence of peace between Israel and any Palestinian authority, it has been Israel’s legally justified right to maintain its sovereignty over these territories, develop and settle them, as long as the Israeli government has not deported or displaced the original residents. Accordingly, Palestinian Arabs were able to challenge the Israeli government concerning land use and ownership and that several of these challenges were successful. Consequently, the Israeli Supreme Court ordered the Israeli government to reverse position and hand the land over to its rightful owners whenever it found such land grab illegal or unjust.
It is important to note that Palestinians and many other Arabs consider all of Israel to be an occupied territory. A UN resolution that partitioned the land in 1947 into a two-state solution was rejected by the Arabs, and the resulting war ended similarly to the 1967 Six-Day-War. Israel captured more territory in consequence of a defensive war. That war of independence did not end up in a peace treaty. It was concluded in a ceasefire and a demarcated ceasefire (green) line, serving as a temporary border between Israel and its Arab neighbors. Israel went ahead and annexed the conquered territory, which became an integral part of the Jewish State. Israel’s captured territory was recognized by the rest of the world, with the exception of the Arab states, as an integral part of Israel.
If Jewish settlements established over territory captured by Israel during the 1967 Six-Day-War are considered illegal, then one could extrapolate the same reasoning to proclaim illegality for the entire State of Israel. History tells us that Israel was established in 1948 in the aftermath of a defensive war over territories that were conquered, occupied and settled by the triumphant Jews. (Emphasis added)
And similarly, territories captured in the aftermath of wars like—
Northern Ireland—captured, occupied and annexed by the British
Territories belonging to Poland and Romania—captured, occupied and annexed by the Russians
Kurdistan—Occupied and annexed by Turkey and Iraq
Catalonia—Occupied and annexed by Spain
German territories before WWII—occupied and annexed by France and Poland
Hungarian territories (Transylvania)—occupied and annexed by Romania
Tibet—occupied and annexed by China
Texas—Captured from Mexico
The entire US—captured by force from the native Americans and settled by the White Americans—ought to be classified as illegal, if consistency, rather than anti-Semitism, governs the civilized world.
At the same time, if Jewish settlements established west of the Green line (1949 Armistice lines) are considered legal, then one could extrapolate the same reasoning to proclaim legality of Jewish settlements east of the Green Line (i.e., in the "West Bank"). Both territories were conquered, occupied and settled by Jews in consequence of a defensive war.
There is another problem. Most Israeli citizens want to live in a Jewish State with a significant Jewish majority where Hatikva is the national hymn and the prime minister, the defense minister, the military and the security agencies’ chiefs are Zionist Jews. Annexing the "West Bank" with all of its Arab residents might cause a problem with that, but that is a different issue.