Historical, Legal, and Political Aspects of Israeli Settlement Policy
Aaron Jacob, Associate Director, AJC Office of Government and International Affairs
June 18, 2009
Historical Background
Following the 1967 Six-Day War, Israel found itself—quite unexpectedly—in control of land pre-viously held by Egypt (Gaza and the Sinai), Syria (the Golan Heights), and Jordan (the West Bank and East Jerusalem).
In July-August 1967, Yigal Allon, then head of the Ahdut Ha’Avoda party and minister of labor, presented a plan to give up to the Hashemite Kingdom of Jordan, in exchange for peace, the hilly spine of the West Bank, including Hebron, Bethlehem, Ramallah, Nablus, and Jenin, while retaining East Jerusalem and the mostly unpopulated stretch of the southern Jordan Valley west of the river, along with the western shoreline of the Dead Sea. Control of the riverside was deemed crucial to prevent invasion by hostile armies from the east.
The Allon Plan was never implemented both because the Israeli cabinet did not approve it and because no Arab authority ever accepted it—King Hussein of Jordan wanted back all of the West Bank including East Jerusalem, and the Palestinian Liberation Organization (PLO) similarly insisted on all of Palestine. Nevertheless, for the next ten years of Labor-led governments in Israel, the Allon lines defined the contours of the settlement enterprise.
After Israel quickly annexed East Jerusalem and declared the city unified, it allowed, hesitantly, settlement in the Etzion Bloc area between Bethlehem and Hebron where four kibbutzim had been razed by the Arabs in 1948; in the Jordan Valley; in the Judean Desert along the Dead Sea; in downtown Hebron; and in Gaza and on the Golan. The West Bank was not annexed, and no settlements were established in its heavily populated areas.
After the Likud party came to power in 1977, the settlement movement was vastly invigorated as the government established new settlements in the hilly heartland of the West Bank well beyond the boundaries of the Allon Plan. The settler population increased dramatically. When Likud won the election in May 1977, there were about 4,000 settlers in the territories (not counting East Jerusalem). By 1993, when the Oslo process began, that number had grown to 116,000. Since then, and despite pledges made by successive Israeli governments to freeze settlement activity except for “natural growth,” the number has more than doubled. During the second intifada, Israeli governments also acquiesced in the creation of unauthorized “outposts” on sites from which attacks against Jewish settlers were perpetrated. Today, nearly 300,000 Israelis live in 120 settlements on the West Bank.
Legal Issues
From the very outset of settlement activity in 1967, the project has been criticized on the grounds that the settlements are illegal. UN Security Council Resolution 465, adopted in March 1980, gave this claim an official, international seal of approval. It states, inter alia, that
…all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East….
Although the U.S. voted in favor of the resolution, the Carter administration later explained that it had intended to abstain and that its “yes” vote was due to a “breakdown in communication” between the White House and the U.S. mission to the UN.
Israel’s position on the legal aspects of its settlement enterprise, stated in 1967, has evolved somewhat to address changing realities, most notably the peace treaties with Egypt (1979) and Jordan (1994) and the Oslo accords with the Palestinians
However, on the whole, the basic principles of the Israeli legal position have remained the same.
Applicability of the Fourth Geneva Convention: According to Article 2 of the Convention, it applies to “all cases of partial or total occupation of the territory of a High Contracting Party [by another High Contracting Party].” In other words, it deals with occupation of territory of one country that is signatory to the Convention by another signatory. Both Israel and Jordan were signatories to the Convention when the 1967 war erupted. However, the conquest of the West Bank by Israel cannot be considered “occupation of the territory of a High Contracting Party” since Jordan’s occupation of the West Bank in 1948 through “aggressive conquest” was unlaw-ful; and two years later it unilaterally annexed the area, an act that only two members of the in-ternational community, Britain and Pakistan, recognized. Conversely, Israel’s conquest of the West Bank in 1967 was defensive (Jordan attacked Israel) and therefore lawful.
Since Jordan was not a legitimate sovereign in the West Bank, the Israeli presence there is not “occupation” within the meaning of this term in the Geneva Convention. Despite this, Israel has voluntarily applied the humanitarian provisions of the Convention in the conquered areas, for example allowing visits by the International Committee of the Red Cross (ICRC) in facilities where persons charged with security offenses, including terrorism, are held.
Disputed Area: Politically, therefore, the West Bank is best regarded as territory over which there are competing claims. Israel has valid claims to title in this territory based not only on its historic and religious connection to the land and its recognized security needs, but also on the fact that the territory was not under the sovereignty of any state and came under Israeli control in a war of self-defense that was imposed upon Israel. At the same time, Israel recognizes that the Palestinians also entertain legitimate claims to the area. Indeed, the very fact that the parties have agreed to conduct negotiations on settlements indicates that they envisage a compromise on this issue.
Article 49: International humanitarian law prohibits the forcible transfer of segments of the population of a state to the territory of another state which it has occupied as a result of armed conflict. This principle is reflected in Article 49 of the Fourth Geneva Convention, which was drafted immediately following the Second World War. As the ICRC’s authoritative commentary to the Convention confirms, the idea was to protect local populations from displacement, including endangering their separate existence as a race, as occurred with the forced population transfers in Czechoslovakia, Poland and Hungary before and during the war. This is clearly not the case on the West Bank.
Legitimate Sovereignty: The provisions of the Geneva Convention regarding forced population transfers do not cover the voluntary return of individuals to the towns and villages from which they or their ancestors had been ousted. Nor does it prohibit the movement of individuals to land which was not under the legitimate sovereignty of any state and which is not under private ownership. Israeli settlements have been established only after an exhaustive investigation process, under the supervision of the Supreme Court of Israel, designed to ensure that no communities are established on private Arab land.
Opinion of International Lawyers: A number of distinguished legal scholars have agreed with the Israeli position that the Israeli settlements do not violate international law. As Professor Eugene Rostow, former U.S. under-secretary of state for political affairs, has written: “the Jew-ish right of settlement in the area is equivalent in every way to the right of the local population to live there” (American Jewish of International Law, 1990, vol. 84, p. 72).
Israeli-Palestinian Agreements: The agreements reached between Israel and the Palestinians (see below, “Political Aspects”) contain no prohibitions whatsoever on the building or expansion of settlements. On the contrary, the agreements specifically provide that the issue of settlements is reserved for permanent-status negotiations, which are to take place in the concluding stage of the peace talks. Indeed, the parties expressly agreed that the Palestinian Authority has no jurisdiction or control over settlements or Israelis, pending the conclusion of a permanent-status agreement.
Political Aspects
Quite apart from the legal questions, the settlements have often drawn criticism for making a peace settlement more difficult. Israel has flatly rejected the allegation that settlements are an obstacle to peace, noting that before 1967 there were no Israeli settlements in the West Bank and Gaza, yet the Arab parties refused to make peace with Israel. Furthermore, Israel points out that in 1979 it evacuated thousands of settlers from northern Sinai as part of the peace treaty with Egypt; that at the Camp David summit of 2000 and the negotiations that followed it agreed to evacuate dozens of settlements from the West Bank and Gaza as part of a permanent-status agreement with the Palestinians; and that in 2005 it unilaterally withdrew from the Gaza Strip, removing 8,000 settlers. Israeli actions have proven time and again that when a serious partner for peace emerges on the Arab side, Israel is willing to make tough decisions even at the price of dismantling settlements.
In the final analysis, the political aspect of the settlement enterprise matters more than the legal arguments. In the Oslo accords, the parties expressly agreed that the issue of settlements, to-gether with other core issues, such as boundaries, Jerusalem and refugees, will be reserved for permanent-status negotiations. These agreements also stipulate that parties should refrain, in the meantime, from taking unilateral steps that might alter the status of the West Bank. In Israel’s view, the building of homes (within the existing settlements) has no effect on the final status of the area. The prohibition on unilateral measures, Israel says, was agreed upon to ensure that neither side take steps to change the legal status of this territory (such as by annexation or unilateral declaration of statehood), pending the outcome of permanent status negotiations. The settlements, Israel says, do not fall under this category.
In a letter dated April 14, 2004, then-President George W. Bush wrote to then-Prime Minster Sharon that he remained committed to his “vision of two states living side by side in peace and security as the key to peace, and to the roadmap as the route to get there.” The President further stated:
As part of a final peace settlement, Israel must have secure and recognized borders, which should emerge from negotiations between the parties in accordance with UNSC Resolutions 242 and 338. In light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949, and all previous efforts to negotiate a two-state solution have reached the same conclusion. It is realistic to expect that any final status agreement will only be achieved on the basis of mutually agreed changes that reflect these realities.
While the letter does not commit to any specific boundaries, it clearly alludes to the parameters of the Barak-Clinton proposals of 2000, which stipulated that Israel will retain the main blocs of Jewish settlements (the Etzion Bloc, Ariel, and so on), while settlers inhabiting the core areas of the West Bank would be pulled back and resettled in these blocs. Israel, according to these proposals, would compensate the Palestinians for the loss of a small percentage of West Bank land with a patch of Israeli territory.
The first phase of the roadmap stipulates that the two sides commit themselves to specific con-fidence-building measures: the Palestinians would act on security, counterterrorism, and incite-ment, and the Israelis would act on settlement activity. However the two sides, while formally embracing that plan, did not agree about implementation. The Israelis say that the implementation should be sequential: first the Palestinians should stop violence and terror, and then Israel will do its part. The Palestinians, on the other hand, claim that the plan should be implemented in a “parallel fashion,” meaning that both sides should fulfill their obligations at the same time. (In his May visit to Washington, Palestinian Authority President Mahmoud Abbas maintained in interviews and private meetings that the Palestinians have already fulfilled their obligations; President Obama, answering a reporter’s question in Dresden a week later, made it clear they have not.)
In a landmark speech at Bar-Ilan University on June 14, Israeli Prime Minister Netanyahu laid out his vision of a two-state solution. He said: “If we receive this [international] guarantee regarding demilitarization and Israel’s security needs, and if the Palestinians recognize Israel as the State of the Jewish people, then we will be ready in a future peace agreement to reach a solution where a demilitarized Palestinian state exists alongside the Jewish state.” Referring to the issue of the settlements, he added: “… we have no intention of building new settlements or of expropriating additional land for existing settlements.”
The White House welcomed the Prime Minister’s speech, calling it an “important step forward.” However, Palestinian and Arab leaders rejected his terms for a two-state solution as unreason-able. President Mubarak of Egypt said that “The call to recognize Israel as a Jewish state com-plicates things further and scuttles the possibilities for peace.”
During its first two months in office—before the June 14 speech—the new Israeli government refused to affirm explicitly a commitment to a two-state solution, and this exposed Israel to heightened international, including American, pressure regarding settlements. It is doubtful if Netanyahu’s subsequent conditional acceptance of such a solution will alleviate that pressure. While Israel claims that settlements should not prejudice the outcome of permanent-status ne-gotiations, Israel’s adversaries—and, unfortunately, many of its friends, too—continue to argue that settlements do prejudge the outcome of such negotiations, thus complicating the achieve-ment of a two-state solution.
Concluding Thoughts
Beyond their actual or supposed impact on the outcome of Israeli-Palestinian negotiations, set-tlements have become an emotionally charged issue because they symbolize the parties’ con-flicting national narratives. For the Palestinians and their allies, they represent the injustice in-flicted upon the Palestinian people by the Zionist enterprise, which they portray as yet another manifestation of European colonialism. For many Israelis, in contrast, they symbolize the essence of Zionism, the return of the Jewish people to their ancient homeland.
Complex and longstanding conflicts are seldom resolved by reaching agreement on historical narratives or national symbols. In most cases they are resolved by non-ideological, sometimes ad-hoc, arrangements that provide for a certain degree of coexistence. The challenge before the two parties and those who try to help them resolve the conflict is to de-symbolize the issue so as to make it amenable to a pragmatic solution.
|
