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

Theodor Meron's editorialcomment revisits the question of the legality of settlements. I willtry to offer an additional perspective which looks at the underlying values ofthe laws of occupation and how these impact the legal analysis of settlementactivity in the Israeli context.

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

The fiftieth anniversary of Israel's occupation of certain Arab-inhabitedterritories following its victory in the June 1967 war is a good time to reflecton the question of how international law addresses resistance to militaryoccupation. This issue—and its counterpart, the rights of an occupyingpower vis-à-vis resistance—has arisen repeatedly in connectionwith this occupation. It has been at the center of polemical debates involvingIsrael, neighboring states, and the Palestine Liberation Organization, in a widerange of international fora including the United Nations. It has also arisen innumerous other conflicts in the past half-century, including in Namibia beforeit achieved independence in 1990, and in Iraq following the 2003 U.S.-ledintervention. The legal focus of this contribution is on the jus inbello. Certain jus ad bellum and human rightsissues raised by occupation and resistance that inevitably intrude at certainpoints will be mentioned in passing.

A raft of legislative proposals introduced in the Knesset over the last severalyears has raised the specter of Israeli annexation of additional West Bankterritory. Onebill would provide for nearly automatic application of new Knessetlegislation to Israelis residing in the West Bank. Asecond would authorize the expropriation under certain circumstancesof privately-owned Palestinian land for incorporation into Israeli settlements,extending the Knesset's reach to the regulation of West Bank land use bynon-Israelis. A third, entitled the “Maale AdumimAnnexation Law,” provides for the full application of Israelilaw in Israel's largest West Bank settlement, as well as in an adjacenttwelve square kilometer area called the “E1 Zone,” one of the fewremaining land reserves available for the development of Palestinian EastJerusalem.

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