The Debate About Israeli Settlements - They are legal

The Debate About Israeli Settlements

Settlements established by Israel in territories captured in the 1967 war have become a matter of great controversy among pro- and anti-settlement advocates who debate the legality of such communities. Opponents of the settlement policy claim that it's a Jewish land grab — a form of expanding Israel’s territory by colonizing Arab land. Proponents argue that both legally and morally, Jews have every right to purchase property and live on land that was historically inhabited by Jews, on which they were granted the right to settle under the British Mandate, and which has never been legally Palestinian. Opponents believe that peace can only be achieved between Israel and her Arab neighbors by creating a neighboring Palestinian state on all the land Israel won in the 1967 war, without the presence of any Jewish communities. They believe that the presence of Jews on the land the Palestinian want for a state constitutes an obstacle to peace. Proponents of the settlements believe the real obstacle to peace is the continued rejection by Palestinian leaders of Israel’s right to exist. They—as well as many others–believe that Israel’s pre-1967 borders were indefensible. The settlements are believed to create a secure buffer zone between the Israeli state and those who want to destroy it. Although built-up Jewish settlements account for less than 2% of the land in the West Bank, settlement opponents argue that the land controlled by Israeli authorities amounts to far more than that, and as a result, Arab residents are greatly inconvenienced. Proponents maintain that inconveniencing measures— including military controls, checkpoints on roads leading to the settlements and the clearing of olive groves used for ambushes—exist solely for security reasons to protect settlers and visitors from Arab terrorist attacks (which have claimed the lives of hundreds of Israelis since the 1993 Declarations of Principles that was to serve as the blueprint for peace). Israeli settlements were constructed after 1967 for security and/or ideological reasons and were supported by both the Israeli Labor and Likud parties. In many places, historic Jewish communities were re-established after having been destroyed by Arab fighters and prohibited to Jews during the Jordanian occupation of 1948-67. For example, Kfar Etzion, one of several Jewish communities in the area destroyed in 1948, was the first Jewish settlement re-established in the territories won by Israel in the 1967 war. Since 1967, Israeli leaders have repeatedly expressed willingness to relinquish territories won during the 1967 war and dismantle settlements built there in exchange for peace. Indeed, in April of 1982, Israel dismantled or transferred settlements in the Sinai to Egypt and in the summer of 2005, Israel withdrew its entire military and civilian presence from the Gaza Strip, dismantling all the settlements constructed there, transferring thriving greenhouses to the Palestinians, and expelling Israeli residents from their homes in the hopes of establishing peace with the Palestinians. Instead, Palestinian militants—with the support of their Hamas-led government—have used the evacuated territory to launch rockets into Israel’s pre-1967 borders, shelling residents of Sderot and other neighboring communities and causing death, injuries and damage within Israel. Since Israel’s withdrawal from the Gaza Strip, the territory has also become the site of deadly internecine violence among Palestinian factions, kidnapping of journalists, vandalism, looting and general mayhem. Far from bringing peace to the Gaza Strip, the withdrawal has resulted in  less secure borders for Israel. History As a result of the 1967 war, Israel gained control of the West Bank (from Jordan), the Gaza Strip (from Egypt) and the Golan Heights (from Syria). I. West BankJudea and Samaria, home to Jewish communities over thousands of years, was renamed the "West Bank" and annexed by Jordan in 1950. (This annexation was recognized by only two countries—Great Britain and Pakistan.) Iraqis, Syrians and Jordanians, and others built settlements on the land. Israeli Jews, however, were barred from living or buying property in the territories under Jordan’s regime. In July 1967, Israeli cabinet minister Yigal Allon of the left-wing Mapai (Labor) party, a member of the inner war cabinet, drew up a peace plan with a proposal to reallocate the West Bank territories between Jordan and Israel. According to the Allon Plan, Israel would relinquish heavily Arab-populated areas in the West Bank to Jordanian political control, while fortifying its vulnerable border with Jordan by retaining military control over a Strip along the Jordan River, through the Jordan Valley to the eastern hills of the West Bank. The territory retained (comprising less than half of the West Bank) was to include a corridor from the Dead Sea to Jerusalem and west of Ramallah to protect a Greater Jerusalem. The Labor government also approved and supported construction of settlements in the Gush Etzion (Etzion Bloc) located south of Jerusalem, the site of Jewish communities destroyed by Arab armies in 1948. Adhering to the Allon proposal, the Israeli Labor government sponsored the construction of settlements in strategic locations along the Jordan Valley, and in Gush Etzion, an area purchased by Jews long before the State of Israel was established. At the same time, the government resisted construction between the towns of Nablus and Hebron. In March 1974, following the Yom Kippur War, Gush Emunim (Bloc of the Faithful), an ideological, religious-nationalist group originally associated with the National Religious Party (NRP), was formed to initiate settlement in the biblical Land of Israel, "Eretz Yisrael." Some of the members had already been active in 1968, attempting to resettle Hebron (see below) and in 1973, attempting to establish a settlement at the biblical site of Elon Moreh. The group organized protests against the government for thwarting their attempts to settle the territories, and conducted tours and hikes of the territories to educate the Israeli public about the heartland of biblical Eretz Yisrael and to convince them of the need to resettle the territories. Seven failed attempts were made by Gush Emunim to settle the Nablus (Shechem) area in Samaria. (Each time, the army evacuated them.) On the eighth try, however, the government’s resistance was broken and settlers established a temporary community at the Kadum military base, which later became known as Kedumim. Over the next few years, several military posts and settlements were built in the area.  Between 1967-77, successive Labor governments supported the construction of over 25 communities in Judea and Samaria. After Likud came into power in 1977, dozens more settlements were built.in the West Bank and in the Gaza Strip. Many settlements were built on the sites of previous Jewish communities or in places with biblical significance. Many began as military or Nahal (military combat service combined with civilian service) camps which eventually became civilian settlements. Peace Now, an Israeli organization vehemently opposed to the settlements, claimed in an October 2006 report that Israeli settlements are situated mostly on "private Palestinian land" based on Arab claims disputed by the Israeli government and by others who question the credibility of the organization’s information. For example, the organization stated that almost 90% of the settlement town of Ma’ale Adumim was built on private Palestinian land–a claim it was subsequently forced to admit was wrong. There are currently ~245,000 people living in 121 settlements in the West Bank II. HebronHebron, site of the Cave (Tomb) of the Patriarchs, is one of Judaism’s four holy cities (the others are Jerusalem, Safed, and Tiberias). With few interruptions, Hebron was inhabited by Jews since biblical times. In 1929, Arab rioters massacred their Jewish neighbors as British soldiers stood by, and put an end to the Jewish community. In 1931, 35 families resettled in Hebron until further Arab riots in 1936 led to their evacuation. After Jordan occupied Hebron in 1948, Jews were barred from living there and from praying at the Cave of the Patriarchs. In April 1968, the eve of Passover, Rabbi Moshe Levinger and a group of his followers checked into the Park Hotel in Hebron in an attempt to re-establish the Jewish community there. They were opposed by both the local Arabs and the Israeli military. The settlers persisted and were eventually moved to Israeli military headquarters overlooking Hebron. In 1970, the government agreed to establish the adjacent town of Kiryat Arba, and the first housing units were erected in 1972. In 1979, settlers established the Committee of the Jewish Community of Hebron and moved into the former Jewish areas of Beit Hadassah and the Avraham Avinu synagogue. Israeli settlers, soldiers and visitors who came to the Cave of the Patriarchs were frequently subject to Arab violence. In 1976, Arabs destroyed the synagogue at the Cave of the Patriarchs and burned Torah scrolls. In May 1980, six Yeshiva students were killed and 20 wounded by Palestinian terrorists as they returned from prayers at the Tomb of the Patriarchs and in 1983, another yeshiva student was gunned down in the center of Hebron. Each murder and act of violence prompted the settlers to expand their presence in Hebron. By 1984, the Hebron Jewish community consisted of several enclaves. Hebron was the scene of even more violence during the first intifada and after the Oslo Agreements. Jewish settlers were the victims of stabbings, firebombings and shootings. In 1994, a Jewish settler killed 29 Muslim worshippers at the Cave of the Patriarchs and wounded 150 before being beaten to death. The violence continued during the second intifada with Palestinian suicide bombings, shootings and stabbings. Twelve security personnel—including civilian guards, border policemen and soldiers—were ambushed and killed as they accompanied worshippers returning from prayers at the Cave of the Patriarch, and a Jewish infant was targeted and shot dead by a Palestinian gunman. Settlers have been accused of stone throwing, verbal harrassment, and vandalism against Palestinians in the area. A Temporary International Presence in Hebron (TIPH) was established  in 1997. In 2002, two TIPH members were shot and killed just outside Hebron by Palestinian gunmen. And in 2006, TIPH temporarily withdrew from Hebron after its headquarters were attacked and destroyed by Muslims angered about cartoons of Mohammed published in a Danish magazine. Because a Jewish presence in Hebron has long sparked a violent Arab response, there is debate both inside and outside Israel, about whether Jews should be permitted to live there. Opponents believe a Jewish presence irritates the local Arabs and requires military support that  intrudes on Arab residents' lives, while proponents believe Jews should not relinquish their right to live and pray in their holy city by giving in to violence. The Jewish community in Hebron currently numbers ~600 and Kiryat Arba’s population is ~7,000. III. Golan HeightsFrom 1967-77, successive Labor governments sponsored the building of settlements in the Golan Heights for security reasons. The Golan Heights, at an elevation of ~2000 feet and fortified by Syria with a dense network of fortifications, trenches, concrete behind mine fields, had served as a strategic fortress from which to shell Israel’s agricultural heartland. The capture of this area now provided Israel a defensible border with Syria. The first two kibbutzim to be established in the Golan were Merom Golan and Mevo Chama at either end. Between 1967 and 1977, 20 additional kibbutzim and moshavim were constructed in the Golan Heights. Additional settlements were built between 1978 and 1987 with the support of Likud governments. There are now 33 settlements in the Golan, including kibbutzim, moshavim and the town of Katzrin, with a population numbering ~18,000. In 1981, Israel ended its military rule of the Golan Heights, with the passage by Knesset of "The Golan Heights Law," applying "the law, jurisdiction, and administration of the state....to the Golan Heights." The Golan's Druze residents were offered full Israeli citizenship, but most have not accepted. IV. Sinai and the Gaza StripUnder the 1949 armistice agreements, Egypt gained control of the Gaza Strip (part of the British Mandate and partially occupied by Israel during the 1948 war). Arab refugees from Jaffa and southern Israel moved to this small strip of land, but were kept by Egypt in squalid refugee camps. During the 1950's, the Egyptians used the Gaza Strip as a staging site for terror attacks by Fedayeen inside southern Israel. In the 1956 war, prompted by Egypt’s blockade of the Straits of Tiran, the Israeli army captured Sinai and the Gaza Strip but withdrew after an agreement placed UN peacekeepers in the Sinai. As a result of the 1967 war triggered by Egypt which expelled the peacekeepers and used their position in Sinai to again close the Straits of Tiran, Israel was once again in control of the Sinai and Gaza Strip. This time, however, Israel’s leaders—including Yigal Allon—believed that settlements should be established in order to create a security buffer against Egyptian aggression. Military installations, early warning stations, and 15 settlements, including the town of Yamit, were established by the Labor government in the Sinai. In 1979, Israel’s Prime Minister Menachem Begin, signed a peace treaty with Egypt, agreeing to withdraw from the Sinai and dismantle the settlements in exchange for peace. Israel also relinquished the Alma Oil Field, valued at $100 billion, which it had discovered and developed, thereby giving up the opportunity to become self-sufficient in providing for the country’s energy needs. In April 1982, over 170 military installations and early warning stations were dismantled and the settlements were forcibly evacuated by the Israeli army, overseen by General Ariel Sharon. By that time, Sinai was home to 7,000 Israeli residents. Most of the settlements were demolished. Neot Sinai, with its cultivated gardens, was given intact to Egypt. In 1988, the resort town of Taba, developed by the Israelis, was handed over to Egypt as well. Jews had long lived in Gaza before World War I. Kfar Darom was a Jewish-owned citrus grove in the 1930's. The Jewish National Fund bought the land from its Jewish owner and established a kibbutz there in the 1940's. During the 1948 war, Kfar Darom came under Egyptian attack and siege but managed to serve as a stronghold against the Egyptian onslaught before being evacuated. In 1970, Kfar Darom was re-established on the same site, supported by Israel’s Labor government. Twenty more settlements were established in the Gaza Strip in the late 70's, 80's and 90's. Some of the families evacuated from the Sinai settlements were resettled in Gaza settlements, such as Elei Sinai. The settlers transformed the Gaza dunes into lush oases of green. The presence of such settlements near squalid Palestinian refugee camps sparked envy and resentment among the local Arab populace. In 2005, the Israeli government forcibly evacuated and dismantled the Gaza Strip settlements, together with 4 additional settlements in Northern Samaria, and withdrew its military presence from Gaza. The thriving greenhouses that the settlers had built and maintained were transferred to the Palestinians. Debate over Legality of Settlements There is debate in the international community over whether or not the Israeli settlements are legal under international law. Many of the arguments are based on various false or questionable assumptions and claims. Those who maintain that the settlements are illegal rely on Article 49 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, which states: Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the occupying power or to that of any other country…are prohibited… and in the sixth paragraph: The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. They interpret this as applicable to Israel’s settlement of the West Bank and Gaza, understanding Israel to have become a "belligerent occupant" of this territory through entry by its armed forces. They also argue that settlement policy leads to the violation of Palestinian rights under international humanitarian law–specifically, their right to self-determination, equality, property, freedom of movement, an adequate standard of living, and freedom of movement. Those who maintain that settlements are legal interpret Article 49 (6) of the 1949 Fourth Geneva Convention as inapplicable to Israel’s settlements. For example, the late Professor Julius Stone—considered one of the premier legal theorists —maintained that the effort to designate Israeli settlements as illegal was a "subversion. . . of basic international law principles." Among the 27 books he authored was Israel and Palestine: An Assault on the Law of Nations which dealt with the legal aspects of the Arab-Israeli conflict. In it, Stone set forth the central principles of international law upon which Israel’s right to settle the West Bank is based and discussed the inapplicability of Article 49(6) of the Fourth Geneva Convention to the case of Israeli settlement. Stone drew upon the writings of Professor Stephen Schwebel, former judge on the Hague’s International Court of Justice (1981-2000), who distinguished between territory acquired in an "aggressive conquest" (such as Japanese conquests during the 1930s and Nazi conquests during World War II) and territory taken in a war of self-defense (for example, Israel’s capture of the West Bank and the Gaza Strip in 1967 war). He also distinguished between the taking of territory that is legally held by another nation (such as the Japanese occupation of Chinese territory and the Nazi Germany occupation of France, Holland, Belgium and other European lands) as opposed to the taking of territory illegally held. The latter applies to the West Bank and Gaza, which were not considered the legal territories of any High Contracting Party when Israel won control of them; their occupation after 1948 by Jordan and Egypt was illegal and neither country ever had lawful or recognized sovereignty. The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate which encouraged Jewish settlement of the land. Regarding Israel’s acquisition of territories in the 1967 war, Schwebel wrote: Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title. ("What Weight to Conquest," American Journal of International Law, 64 (1970)) Proponents of the view that settlements are legal further argue that Article 49 was intended to outlaw the Nazi practice of forcibly transporting populations into or out of occupied territories to death and work camps  and thus cannot be applied to Israel because Arab residents were neither forcibly transferred, nor were Israelis intended to (nor do they) displace Arab residents of the territories. Arabs continue to live in these territories and their population continues to grow. Those who believe settlements are legal also maintain that it is not the existence of settlements that have an impact on Palestinians’ standard of living, right to self-determination, equality, property, and freedom of movement. Rather, the impact upon their freedom of movement and standard of living is directly a result of the threat they pose to their Israeli neighbors and their governance by the Palestinian Authority. Most U.S. governments have held the view that the settlements are not illegal and that the extent of Israeli withdrawal from the territories is subject to negotiation. The Carter administration viewed the settlements as illegal, relying on the opinion (April 21, 1978) of the State Department's legal advisor Herbert J. Hansell.   It is noteworthy that  Hansell based his opinion, at least in part, on  an earlier, more general work by Professor Julius Stone – a 1959 analysis entitled Legal Controls of International Conflict," which he cited in his memo. But his interpretation of Stone's intent is clearly contradicted by the scholar's subsequent defense of the legality of settlements, as noted above. The Reagan administration, however, reversed Carter’s position, saying: "As to the West Bank, I believe the settlements there — I disagreed when the previous Administration referred to them as illegal, they're not illegal" (New York Times, Feb. 3, 1981). Subsequent U.S. administrations held similar views; while they may have disapproved on political grounds of building new settlements in the disputed territories before negotiations, they did not label settlements as "illegal." Former U.S. Undersecretary of State Eugene Rostow wrote several articles explaining why settlements are legal and arguing that United Nations Resolution 242 stipulates that Israel withdraw from some of the disputed territory, but not necessarily all. It should be remembered that Rostow was one of the drafters of Resolution 242, the very resolution relied upon by Palestinians and their supporters to demand Israel’s complete withdrawal from all of the West Bank and Gaza and the dismantlement of all of the Jewish settlements. Proponents of the view that settlements are illegal often cite numerous U.N. resolutions criticizing Israel’s presence in the West Bank and Gaza. Those who maintain settlements are legal indicate that  U.N. General Assembly Resolutions carry no legal weight, even if one ignores the U.N.’s history of bias against Israel, evidenced by the infamous "Zionism is Racism" resolution and the partisan, anti-Israel  indictments by special U.N. bodies set up exclusively to report on Israel's practices. The United States routinely abstains or votes against Security Council resolutions unfairly condemning Israel for building settlements. One exception–under former President Carter, the United States initially voted for U.N. Security Council Resolution 465 which was passed on March 1, 1980. This resolution stating that Israeli settlements in the territories have no "legal validity" is often quoted to bolster the "illegality of settlements" argument. However, the American vote for this resolution was subsequently retracted, with the United States claiming that it had intended to abstain and blaming a communications failure as responsible for the vote. Finally, those who maintain settlements are legal indicate that although Article 25 of the U.N. Charter says: "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter," this cannot invalidate Article 80 which says that: nothing in the [U.N. Charter's chapter on the administration of Mandate territory] shall be construed . . . to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments. (This updated version of the quote corrects an earlier typographical error.) This would include the British Mandate’s granting the right to the Jewish people to settle in the whole of the Mandated territory. Article 6 of the Mandate encouraged "close settlement by Jews on the land, including State lands not required for public use."