Is there a difference between settlements and outposts?
The distinction between “settlements” and “outposts” is one which is irrelevant for the purposes of international law. Israel may maintain that the outposts are illegal under Israeli law, unlike settlements which they authorise, and hence there is a difference. However under international humanitarian law both are illegal, and practise has shown the even ‘illegal’ outposts are often legalised retroactively through the Israeli legal system, and hence transformed into “legal” settlements. For such reasons, the independent international fact-finding mission to investigate the implications of the Israeli settlements on the human rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, decided “not [to] differentiate between ‘settlements’, ‘settlement blocks’, ‘outposts’ or any other structures that have been erected, established, expanded and/or appropriated or any land or natural resources appropriated."
Under IHL, all types of settlements are equally illegal. IHL does not make any distinction between a settlement founded with the support of the government and unauthorised outposts. The occupying power is equally responsible for both types of settlements since it is responsible for upholding law and order in the occupied territory.
Is there any movement into the West Bank by Israeli civilians that would be lawful?
There is often confusion in the context of the oPt of what exactly IHL prohibits. Sometimes it is easier to try and understand the prohibition under Article 49 by looking at another conflict.
For example if today an armed conflict broke out between Norway and Sweden, and Sweden established an occupation of Norway, Sweden would be prohibited from transferring its population into Norway.
However if a Swedish national, Malin, from a Swedish village wished to move to Norway and move into a family home, then international law plays no role in outlawing this. However Malin would have to respect local law in Norway and could not bring any part of the Swedish system with her.
For example she would not have the protection of Swedish police, Swedish land law, or any other administrative measure. She would have to adhere to Norwegian law and systems in place there.
Are Israeli settlers not just exercising a “right to return” to their homes?
In the context of the oPt, it is often argued that many Israelis are moving into the West Bank to reclaim ancestral land. The merits of the argument are undermined by the fact that there are over 520,000 Israeli settlers (200,000 in East Jerusalem and 320,000 in the rest of the West Bank), most live in new structures built on Palestinian land and furthermore they are protected by Israeli law. Any argument of a “right to return” must be done under existing legal systems in the occupied territory, and can only be strongly countered when addressing the Palestinian right to return to land from where they were genuinely displaced.
Are settler’s civilians?
As Israeli nationals, Israeli settlers are not entitled to the protections awarded to the occupied protected population as meant in the Fourth Geneva Convention. However they are entitled to some protections as civilians.