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The Settlements vs. the Peace Process

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Settlement of Har Homa (East Jerusalem)

On Wednesday, in the wake of Israel’s announcement of hundreds of more units in West Bank settlements, the Israeli Ministry of Foreign Affairs posted a page on its website articulating its view that building in the occupied West Bank is legal under international law and is not, as many critics claim, an impediment to peace. The fact that the MFA felt the need to make such a case indicates that rising international criticism, particularly from the U.S., is having an impact, and that case bears an examination of its key claims.

Israel claims that the settlements are not illegal because the laws of belligerent occupation do not apply to the West Bank and that the prohibition against transferring citizens of an occupying power to occupied territory “…applied to forcible transfers and not to the case of Israeli settlements.”

The vast majority of legal opinions, including those of the High Court of Justice in Israel and the US State Department (which consistently refers to the West Bank as “occupied territory”), directly contradict this claim. As recently as 2004, the High Court in Israel ruled “…that Israel holds the (West Bank) in belligerent occupation,” and that its authority over the Palestinians “… flows from the provisions of public international law regarding belligerent occupation.” No ruling since has superseded this view.

Indeed, in an analysis requested by the Israeli Prime Minister’s office in 1967 regarding the potential legality of settlements in the then-newly occupied territories, Israeli Foreign Ministry legal adviser Theodor Meron wrote, “My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.”[i] This is the overwhelming consensus view of international legal opinion, and contradicts Israel’s claim that Article 49 of the Fourth Geneva Convention applies only to forcible transfers, rather than voluntary ones like those of Israeli settlers.

Israel says “the current Israeli government, like several preceding governments, has limited Jewish construction primarily to those areas that are fully expected to remain under Israeli control in any final agreement with the Palestinians.”

Israel has been given no guarantee, by the Palestinians, the United States or any other party, that any specific part of the West Bank would be ceded or traded to Israel in any final agreement. The building of settlements anywhere clearly contradicts the spirit of Oslo’s Declaration of Principles, which states: “The two sides view the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved during the interim period.”

Further, it is not clear what is meant when “settlement blocs” which Israel is likely to keep are discussed. The “blocs” have never been defined. Former Israeli diplomat and leading member of Israel’s Council for Peace and Security, Shaul Arieli quotes Prime Minister Netanyahu as saying that “my blocs are not the blocs of the left,” and points out that Netanyahu’s list includes as many as nine settlement blocs which clearly block any possibility of a contiguous Palestinian state.

Moreover, Israel has begun a process of legalizing many of the 100 so-called “illegal outposts” in the West Bank, most of which are well outside any built up settlement areas.

Finally, the settlement blocs themselves govern territory far larger than their built-up areas, and this territory has been steadily expanding. Many of the blocs have grown to the point where they already threaten the contiguity, and thus the economic viability, of any potential Palestinian state in the West Bank. There are now well over 400,000 Israeli settlers in the West Bank in 123 settlements and 100 outposts. As that population grows and spreads, the possibility of creating a Palestinian state with land swaps to accommodate them becomes ever more remote.

Israel says it has “…rights, needs and genuine threats to its safety, in particular in view of the rise of radical elements in the region such as ISIS, al-Qaeda and Hizbullah.”

There is an undeniable Jewish connection to the land of the West Bank. But this does not grant Israel the right to territory beyond its internationally recognized borders. Any resolution to this conflict must acknowledge and make some accommodation for the connection that both Israelis and Palestinians feel to the whole of the land, but this is a matter for negotiation, not a pre-determined right.

The United Nations charter deems the acquisition of land by force as inadmissible. Nonetheless, the international community has long since recognized that some territorial changes are inevitable, as long as they are agreeable to both Israelis and Palestinians.

Israel clearly has legitimate security concerns, but those concerns do not supersede Palestinians’ basic rights to a viable, contiguous, sovereign and independent state. Israel must address their security concerns in partnership with their allies and particularly with the Palestinians. As the undisputed military superpower in the region, and with the United States at its side, Israel should be well positioned to find a way to satisfy its security concerns without compromising a Palestinian state.

Finally, Israel lists among the outstanding issues for negotiation the “status of refugees on both sides.”

The issue of Palestinian refugees is perhaps the most troublesome of all the questions that need to be resolved. This is a core issue for Palestinians, but it is one that Israelis see as threatening their country’s very existence as a Jewish state. Doubtless, this issue will be difficult to resolve and will require major compromise and good will on both sides.

While the issue of Jewish refugees from Arab lands is a serious and legitimate one for Israel, it has nothing to do with the Palestinians. Jewish refugees from Arab lands have legitimate claims against those countries from which they were expelled or fled. Attempting to pair this with Palestinian refugees who were driven out or fled from Israelis in 1948 and 1967 needlessly complicates an already complicated problem and sends a message that Israel is not serious about resolving this vexing issue.

Conclusion

It is true that the settlements are only one of a number of issues to be addressed in resolving the Israeli-Palestinian conflict. But they are the one issue through which Israel tangibly and unilaterally raises the costs of achieving that resolution, brick by brick, day by day. Supporters of peace do neither side any favors by denying the settlements’ provocative nature or downplaying the threat they pose to a final agreement.

[i] Gorenberg, Gershon, The Accidental Empire, p. 99