In July 1967, one month after Israel's occupation of the West Bank, Gaza Strip, Sinai Peninsula, and Golan Heights, Israel's Military Advocate General (MAG), Colonel Meir Shamgar, appeared before a Knesset committee to discuss the Israel Defense Forces (IDF)’s duties in the areas under its control. Col. Shamgar had led the MAG Corps in the preparations in the event that a future war would find the army occupying beyond Israel's borders. Col. Shamgar began his presentation by stating:

Theodor Meron's editorial comment revisits the question of the legality of settlements. I will try to offer an additional perspective which looks at the underlying values of the laws of occupation and how these impact the legal analysis of settlement activity in the Israeli context.

One of the unique features of Israel's legal, military, and political control over the Occupied Palestinian Territories (OPT) has been the review by the Supreme Court of Israel of the actions and decisions of the authorities in those territories. Sitting as a High Court of Justice that has the competence to review the actions of all persons exercising public functions under law, the Court has entertained thousands of petitions relating to the legality of such varied actions as house demolitions, deportations, land requisition, entry permits, and establishment of settlements. There can be little doubt that the very existence of judicial review has had a restraining effect on the authorities. While the Court has not ruled against the government that often, and has provided legitimization for acts of dubious legality, such as punitive house demolitions and deportations, it has handed down some important rulings on questions of principle. Furthermore, in the shadow of the Court, many petitions have been settled without a court ruling, allowing for a full or partial remedy for the Palestinian petitioner.

The fiftieth anniversary of Israel's occupation of certain Arab-inhabited territories following its victory in the June 1967 war is a good time to reflect on the question of how international law addresses resistance to military occupation. This issue—and its counterpart, the rights of an occupying power vis-à-vis resistance—has arisen repeatedly in connection with this occupation. It has been at the center of polemical debates involving Israel, neighboring states, and the Palestine Liberation Organization, in a wide range of international fora including the United Nations. It has also arisen in numerous other conflicts in the past half-century, including in Namibia before it achieved independence in 1990, and in Iraq following the 2003 U.S.-led intervention. The legal focus of this contribution is on the jus in bello. Certain jus ad bellum and human rights issues raised by occupation and resistance that inevitably intrude at certain points will be mentioned in passing.

A raft of legislative proposals introduced in the Knesset over the last several years has raised the specter of Israeli annexation of additional West Bank territory. One bill would provide for nearly automatic application of new Knesset legislation to Israelis residing in the West Bank. A second would authorize the expropriation under certain circumstances of privately-owned Palestinian land for incorporation into Israeli settlements, extending the Knesset's reach to the regulation of West Bank land use by non-Israelis. A third, entitled the “Maale Adumim Annexation Law,” provides for the full application of Israeli law in Israel's largest West Bank settlement, as well as in an adjacent twelve square kilometer area called the “E1 Zone,” one of the few remaining land reserves available for the development of Palestinian East Jerusalem.

Interest in the criminal aspects of the Israeli settlement project in the West Bank is hardly new; it informed the drafting of Additional Protocol I (AP I) and of the Statute of the International Criminal Court (ICC), and motivated Israel's rejection of both instruments. The 2009 Palestinian attempt to establish ICCjurisdictionpromptedextensivescholarlydebate on the preconditions for jurisdiction and on its territorial and temporal aspects, as well as on specific admissibility questions, primarily gravity. (Complementarity is not an issue with regard to the establishment of West Bank settlements, since Israeli law and jurisprudence do not prohibit it, although they regulate some aspects related thereto).