What Is Israel’s Settlement Policy in the West Bank?
Clause 7 of Israel’s 2018 Nation-State Basic Law, the 1979 Beit El and Elon Moreh judgments, and the Oslo II definition of the settlements.
Clause 7 of Basic Law: Israel as the Nation-State of the Jewish People, which the Knesset adopted in 2018, states that the State “views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and consolidation.” That clause names no territory. What ties settlement to a place in Israel’s own record is the Interim Agreement of 28 September 1995, which defines “the Settlements” as, in the West Bank, the settlements in Area C, and two Supreme Court judgments of 1979 that set the terms on which private land may be requisitioned for one.
| Figure | What it counts | Who published it | Period |
|---|---|---|---|
| Clause 7 | The single clause of the Nation-State Basic Law on Jewish settlement, naming no territory | Knesset | Adopted 2018, translation updated through 1 May 2022 |
| 5 justices | The expanded panel that dismissed the Beit El petitions, HCJ 606/78 | Ministry of Justice of Israel | Judgment of 15 March 1979 |
| Area C | The area to which the defined term “the Settlements” is tied in the West Bank | Israel and the PLO | Agreement signed 28 September 1995 |
| 13,481 | Illegal construction cases identified in the Palestinian sector, on the Supervision Unit’s own identifications | State Comptroller of Israel | 1997 to 2013 |
| 6,605 | Illegal construction cases identified in the Israeli sector, on the same unit’s identifications | State Comptroller of Israel | 1997 to 2013 |
| 57 employees | Staffing of the Civil Administration’s Central Supervision Unit, on a budget of about NIS 17.5 million | State Comptroller of Israel | 2014 |
| 0 bodies | Bodies charged with criminally investigating planning and building offences in the area | State Comptroller of Israel | At the audit’s close, completion checks to December 2015 |
Clause 7 declares settlement a national value and names no territory
The Knesset published the enacted clause in its own English translation, which the Knesset labels unofficial: “The State views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and consolidation.” The clause names Jewish settlement without naming the West Bank, Judea and Samaria, Area C or any other territory, while other clauses of the same Basic Law do name places. The Israeli Supreme Court, sitting as High Court of Justice, upheld the Basic Law in HCJ 5555/18 Hasson v. Knesset on 8 July 2021, holding at the same time that the Knesset as constituent authority may not deny the core character of the state as Jewish and democratic. What clause 7 requires of the State is set out separately in what Israeli law says about the State’s role in settlements.
- Clause 3: “The complete and united Jerusalem is the capital of Israel.”
- Clause 5: the State “shall be open to Jewish immigration, and the ingathering of the exiles.”
- Clause 7: Jewish settlement as a national value, with no territory named.
HCJ 606/78 Beit El dismissed the petitions in 1979
The Ministry of Justice of Israel records, in its own published account of the two 1979 judgments, that HCJ 606/78 was decided on 15 March 1979 by an expanded panel of five justices including Deputy President Moshe Landau, and that the petitions were dismissed. The Court held that the international-law provisions relied on were conventional law between states rather than customary law, so that the legality of Israeli settlement was a political question and not justiciable, which is a refusal to decide rather than a finding of legality. It further held that taking the petitioners’ land was not prohibited expropriation, given the temporary security consideration underlying the settlement.
| Element | What the Court decided |
|---|---|
| Panel | Expanded, five justices, including the Deputy President |
| Outcome | Petitions dismissed |
| International law | Conventional between states, not customary, so not justiciable |
| Requisition | Not prohibited expropriation, on the stated temporary security consideration |
Source: Ministry of Justice of Israel, 2019, reporting HCJ 606/78, PD 33(2) 113.
Elon Moreh voided a requisition nine months after Beit El
The same Ministry of Justice account records that HCJ 390/79 reaffirmed that there is no legal bar to establishing a settlement on the basis of military needs, but that the Court was not persuaded such a need existed in that case and ordered the site evacuated. The two judgments are one pair applying one test, nine months apart, and the difference lay in the facts rather than in a change of law. The residents moved to Har Kabir on the other side of Nablus, where the locality was established on State land; the judgment itself is set out in what Israel’s Supreme Court decided in the Elon Moreh case.
The reasons the Ministry of Justice records:
- The nucleus went up to the site without government consent, and approval followed only afterwards.
- The Deputy Prime Minister opposed it before a ministerial committee, which rejected his objection.
- The Defence Minister’s position was that there was no security necessity at the requested point.
- The settlers, once joined to the proceedings, stated that the security need was subordinate to the commandment of settling the land.
Oslo II defines the settlements as those in Area C
The Interim Agreement signed by Israel and the PLO at Washington DC on 28 September 1995, in the text published by the Israeli Ministry of Foreign Affairs as a party to it, states at Article XII(5): “‘the Settlements’ means, in the West Bank the settlements in Area C.” Article XVII(1) lists what is carved out of the Council’s jurisdiction entirely, including “Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis.”
| Provision | What the text says |
|---|---|
| Article XII(5) | “the Settlements” means, in the West Bank, the settlements in Area C |
| Article XVII(1) | Settlements, Jerusalem, borders and Israelis are outside the Council’s jurisdiction |
| Article XVII(2) | Territorial jurisdiction covers West Bank territory “except for Area C” |
| Article XVII(4)(a) | Israel, through its military government, has authority over areas outside that territorial jurisdiction |
Source: Israel and the PLO, 1995, Interim Agreement, Articles XII and XVII.
No Israeli body investigates planning offences criminally in the area
The State Comptroller of Israel reported, in a 2016 audit of the Civil Administration conducted through 2014 with completion checks to December 2015, that the Defence Minister decided in December 2013 to establish a unit to conduct criminal investigations of planning and building offences in the area, that at the audit’s close it had not been established, and that no body is charged with investigating those offences criminally. The same audit puts the Central Supervision Unit at 57 employees on a 2014 budget of about NIS 17.5 million. Its construction figures are the unit’s own identifications of cases it located, relayed by the Comptroller, and each demolition share is of that sector’s own identifications.
Which figures here may not be added together?
The two sector counts are separate identification totals with different denominators and are not summed on this page. The 28% and the 27% are each a share of that sector’s own identifications across 1997 to 2013, and a case identified late in that window had less time to be demolished than one identified early, so neither share is a per-case completion rate. The Supervision Unit’s figures are its own count of its own detection activity, so they are a floor on construction rather than a measure of it. The Knesset states that its English translation of the Basic Law is unofficial, and the Hebrew governs. The Interim Agreement text quoted here is the copy published by the Israeli Ministry of Foreign Affairs, one of the two signatories.
Questions readers ask
Does Israeli law mention West Bank settlement by name?
Clause 7 of the Basic Law adopted by the Knesset in 2018 declares Jewish settlement a national value and names no territory.
Did Israel’s Supreme Court rule settlements legal?
The Ministry of Justice of Israel records that in HCJ 606/78 the Court held the question not justiciable, which is a refusal to decide rather than a ruling of legality.
What did the Elon Moreh judgment decide?
The Ministry of Justice of Israel records that the Court reaffirmed that military need can justify a settlement, was not persuaded of one in that case, and ordered the site evacuated.
Where did the Elon Moreh residents go?
The Ministry of Justice of Israel records that they moved to Har Kabir on the other side of Nablus, where the locality was established on State land.
What is Area C?
The Interim Agreement of 28 September 1995 defines Area C residually as the areas of the West Bank outside Areas A and B, and Article XII(5) ties the defined term “the Settlements” to it.
Are settlements inside the Palestinian Council’s jurisdiction?
Article XVII(1) of the Interim Agreement lists settlements, along with Jerusalem, borders and Israelis, as carved out of the Council’s jurisdiction entirely.
Who enforces planning law in Area C?
The State Comptroller of Israel reported that the Civil Administration’s Central Supervision Unit had 57 employees in 2014, on a budget of about NIS 17.5 million.
Does anyone investigate building offences there as crimes?
The State Comptroller of Israel found that a unit decided on in December 2013 had not been established, and that no body is charged with investigating those offences criminally.
How many construction cases did the unit locate?
The State Comptroller of Israel published 13,481 cases in the Palestinian sector and 6,605 in the Israeli sector for 1997 to 2013, on the unit’s own identifications.
How many of those were demolished?
The State Comptroller of Israel recorded 3,813 demolitions in the Palestinian sector, 28% of that sector’s identifications, and 1,807 in the Israeli sector, 27% of its own.
Did Israel’s Supreme Court set any limit on the Nation-State Basic Law?
The Israeli Supreme Court held in HCJ 5555/18 on 8 July 2021 that the Knesset may not deny the core character of the state as Jewish and democratic, while dismissing the petitions.
Which language of the Basic Law governs?
The Knesset publishes the English text and labels it unofficial, directing readers to the Hebrew in the National Legislation Database.
Sources
- Israel and the PLO, 1995. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip. Articles XI, XII and XVII. Published by the Israeli Ministry of Foreign Affairs. Primary record.
- Israeli Supreme Court, 2021. HCJ 5555/18 Akram Hasson v. Knesset. Judgment of 8 July 2021. Official record.
- Knesset, 2018. Basic Law: Israel as the Nation-State of the Jewish People. Official English translation, amendments through 1 May 2022. Primary record.
- Ministry of Justice of Israel, 2019. There Are Judges in Jerusalem: on the Beit El and Elon Moreh judgments. Roots in Law project. Official record.
- State Comptroller of Israel, 2016. Judea and Samaria Area: Activity of the Supervision and Enforcement Unit and Aspects of Land Registration. Annual Report 66b. Official record.
