By Jeffrey Helmreich, the author of numerous articles on Israel for American
newspapers and journals.
January 19, 2003.
The outbreak of the Al Aqsa Intifada in the fall of 2000 began to erode the
orthodoxy that settlements were driving Palestinian anger and blocking peace.
New York Times foreign affairs analyst Thomas L. Friedman wrote in October
2000: “This war is sick but it has exposed some basic truths.”
In particular, Friedman wrote, “To think that the Palestinians are only
enraged about settlements is also fatuous nonsense. Talk to the 15-year-olds.
Their grievance is not just with Israeli settlements, but with Israel. Most
Palestinians simply do not accept that the Jews have any authentic right to be
here. For this reason, any Palestinian state that comes into being should never
be permitted to have any heavy weapons, because if the Palestinian had them
today, their extremists would be using them on Tel Aviv.”
In recent months, however, the settlements have re-emerged as an explanation
for the failure of nearly every ceasefire and diplomatic effort to quell the
conflict. The Mitchell Report in 2001 and recent remarks by visiting U.S.
senators have raised the question of settlements (though not directly blaming
them for the conflict), and the UN General Assembly concluded its 2002
session with over 15 agenda items condemning ‘illegal’ Israeli settlements.
Settlements have also become a focal point in the Quartet’s December 2002
‘road map.’
In fact, since their establishment nearly three decades ago, settlements have
been the cause celebre of critics seeking to attribute the persistence of the
conflict to Israeli policy.
The criticism falls into two categories: moral/political arguments that
settlements are “obstacles to peace,” and legal claims that settlements are
illegitimate or a violation of international norms.
The pervasiveness of these claims masks the fact that, upon closer
scrutiny, they are false, and they hide the true source of grievances and
ideological fervor that fuel this conflict.
An Obstacle to Peace?
1. Settlements make up less than 2 percent of the West Bank. According to
Peace Now, which opposes Israeli settlement in the territories, the built-up
areas of the settlements take up only 1.36 percent of the West Bank (Foreign
Affairs, March/April 2000).
B’Tselem, an Israeli human rights watchdog group, places the figure
slightly higher, at 1.7 percent. The much larger numbers often used to describe
the land comprising Israeli settlements are reached only by including roads and
adjacent areas, as well as land between settlements or between settlements
and roads, nearly all of which is unpopulated.
In truth, settlements simply do not comprise enough land to be serious
obstacles to any political or geographic eventuality in the area, be it a
Palestinian state or a continuation of the Oslo process.
2. Settlements do not block the eventual establishment of a contiguous
Palestinian entity. Some critics charge that settlements prevent peace by
blocking the potential for a contiguous Palestinian state in the West Bank,
which is proposed in most peace plans. This claim ignores certain basic
realities.
a. The settlers would not block a peace agreement. Most Jews living in the
West Bank express a deep love of the land and an attachment borne over two
millennia when Jews yearned, prayed, and at times sought to return to their
ancestral homeland. This natural bond has led to the view, popular in some
Western circles, that these Jews prefer land to life, and would sacrifice the
blood of Palestinians and fellow Jews on the alter of their biblical vision.
This image – while dramatic and a neat counterpart to the image of
Islamic fundamentalism – is simply untrue of the settlers today.
A majority of the settlers have already indicated a willingness to relocate if a
final agreement should require it, according to a poll taken by Peace Now
(Agence France Presse, July 31, 2002). Even if such polls are disputed by
opponents of Peace Now, such data indicates a far more pragmatic approach
on the part of large numbers of settlers than has been allowed them by their
critics.
Recall that the residents of Yamit in the Sinai were relocated as a result
of the peace agreement with Egypt. Thousands of Israelis were involved in this
operation. The Yamit community was removed by none other than Israel’s
Prime Minister Ariel Sharon when he served as minister of defense in the
second Begin government.
b. The overwhelming majority of settlers, close to 80 percent, live in
communities such as Elkana, Maale Adumim, Betar, and Gush Etzion, located
close to, if not contiguous with, pre-1967 Israel, and which can be connected
geographically to the ‘Green Line’ without involving Palestinian population
centers.
For separate reasons, the settlements in the strategic Jordan Valley do
not impede the contiguity of the main Palestinian population centers, or prevent
their expansion – the Jordan Valley is, after all, sparsely populated by
Palestinians, with the exception of Jericho, which is today under full Palestinian
control.
c. Most settlements are concentrated in a few areas that, for security reasons,
Israel cannot afford to cede. For example, the settlement of Ofra is located next
to Baal Hatzor, the highest point in the West Bank and the location of the main
early warning station for the Israeli air force. It was from high points along the
West Bank hill ridge that neighboring Arab armies twice invaded Israel’s
low-lying heartland, in 1948 and in 1967, which was then nine miles wide and
completely exposed.
The late Prime Minister Yitzhak Rabin, architect of the Oslo Peace
agreements, coined the term ‘security settlements’ to describe those
communities, in order to emphasize those settlements located on strategic
terrain essential to Israel’s security interests. And yet, as noted above, these
areas make up barely two percent of West Bank territory and nearly all of them
do not encroach upon Palestinian population centers or block their contiguity.
Moreover, Israel cannot, in any event, afford to withdraw from these small but
strategic points even if they were entirely unpopulated. Thus, the presence of
settlements in such locations is not the reason Israel remains in these areas.
Settlements are Not Illegal
1. The settlements are not located in ‘occupied territory.’ The last binding
international legal instrument which divided the territory in the region of Israel,
the West Bank, and Gaza was the League of Nations Mandate, which explicitly
recognized the right of Jewish settlement in all territory allocated to the Jewish
national home in the context of the British Mandate. These rights under the
British Mandate were preserved by the successor organization to the League of
Nations, the United Nations, under Article 49 of the UN Charter.
2. The West Bank and Gaza are disputed, not occupied, with both Israel and
the Palestinians exercising legitimate historical claims. There was no Palestinian
sovereignty in the West Bank and Gaza Strip prior to 1967. Jews have a deep
historic and emotional attachment to the land and, as their legal claims are at
least equal to those of Palestinians, it is natural for Jews to build homes in
communities in these areas, just as Palestinians build in theirs.
3. The territory of the West Bank and Gaza Strip was captured by Israel in a
defensive war, which is a legal means to acquire territory under international
law. In fact, Israel’s seizing the land in 1967 was the only legal acquisition of
the territory this century: the Jordanian occupation of the West Bank from
1947 to 1967, by contrast, had been the result of an offensive war in 1948
and was never recognized by the international community, including the Arab
states, with the exception of Great Britain and Pakistan.
The Settlements are Consistent with Resolution 242
Many observers incorrectly assume that UN Security Council Resolution 242
requires a full Israeli withdrawal from the land Israel captured in the 1967
Arab-Israeli War. Some may have a hidden agenda aimed at depriving Israel of
any legal rights whatsoever in the disputed areas. In either case, they use this
misinterpretation to conclude that settlement activity is unlawful because it
perpetuates an ‘illegal’ Israeli occupation.
The assumption and the conclusion are deeply flawed. Resolution 242 calls for
only an undefined withdrawal from a portion of the land – and only to the extent
required by “secure and recognized boundaries.”
Israel has already withdrawn from the majority of the land it had
captured, and nearly all of the areas in which it retains communities are
essential to “secure and recognized boundaries.” The specific location of Israeli
settlements was determined by Israel’s Ministry of Defense over the last 30
years, not by the settlers themselves, and they were set up in order to
strengthen Israel’s presence in those few areas from which it cannot, militarily,
afford to withdraw.
Settlements are Consistent with the Geneva Conventions
In three recent emergency special sessions of the UN General Assembly, Israeli
settlement was cited as a violation of the 1949 Fourth Geneva Convention.
These international humanitarian instruments, forged in the ashes of the
Holocaust to prevent future genocidal brutality and oppression, were never
invoked in 50 years until the case of condominium construction in Jerusalem
during 1998. Was such construction – any settlement construction – a violation
of the Geneva Convention?
No. The relevant clause, Article 49, prohibits the ‘occupying power’ from
transferring population into the ‘occupied territory.’ Aside from the fact that the
territory is not occupied, but disputed, Morris Abrams, the U.S. Ambassador to
the UN in Geneva, had pointed out that the clause refers to the forcible transfer
of large populations. By contrast, the settlements involve the voluntary
movement of civilians.
The U.S. Department of State, accordingly, does not view Article 49 of
the Fourth Geneva Convention as applicable to settlement activity in the West
Bank and Gaza Strip. For that reason, the official U.S. position has been over
the years that settlements are legal, even though successive administrations
have criticized them on political grounds. (Only the Carter administration for a
short time held that settlements were illegal; this position was overturned by
the Reagan administration.)
Settlement Growth Never Violated Oslo
Although certain Palestinian negotiators demanded a settlement freeze, the
peace agreement ultimately reached by Israel and the Palestinians at Oslo, along
with the Interim Agreement of 1995, allow settlement growth as well as the
growth – and creation – of Palestinian communities in the disputed territories.
The Palestinians acquired planning and zoning rights in Area A, while Israel
retained the same rights in Area C where the settlements were located.
Indeed, their legal status was to be addressed and decided only in the
final status negotiations which, unfortunately, never took place. Until this point
is reached, settlement growth remains within the legal scope of the Oslo Agreements.
At the October 5, 1995, session of the Knesset at which the Interim Agreement
was ratified, the late Prime Minister Yitzhak Rabin proclaimed that we
“committed ourselves before the Knesset, not to uproot a single settlement in
the framework of the interim agreement, and not to hinder building for natural
growth”
On the basis of this understanding of Oslo II, the Knesset voted to
approve the Agreement.
Conclusion
One may legitimately support or challenge Israeli settlements in the disputed
territories, but they are not illegal, and they have neither the size, the
population, nor the placement to seriously impact upon the future status of the
disputed territories and their Palestinian population centers.
