Diplomatic and Legal Aspects of the Settlement Issue

Jeffrey Helmreich, JCPA 2003 (6-26-12)

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.

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.
1. 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.
2. 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.
3. 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” (Israel Foreign Ministry, http://www.israel-mfa.gov.il/mfa/go.asp?MFAH00te0). 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.

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Jeffrey S. Helmreich is the author of numerous articles on Israel for American newspapers and journals.