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Occupation and Settlement: The Myth and Reality (Conitnued) By: David Meir-Levi
FrontPageMagazine.com | Friday, June 24, 2005


Part I: SETTLEMENT TYPES

There are five types of settlements:

A.     Agrarian settlements for military purposes manned mostly by soldiers.

 

B.     Settlements of Jews returning to sites occupied by Jews prior to 1948 (Hebron, Gush Etzion, Jewish Quarter).

 

C.     Expanding suburbs of Israeli cities on or near the “Green Line”.

 

D.     Missionary Settlements unrelated to the previous three types.

 

E.      Patently illegal rogue settlements.

Settlements for Military Purposes

Agrarian settlements manned by IDF soldiers were established soon after the war along what the IDF felt were crucial corridors of defense, especially along the Jordan river, near the “Green Line”, in the Golan Heights, and near Gaza.  Because Egypt, Syria and Jordan remained belligerent states for decades after the war, and because the PLO was actively trying to develop bases for terrorism in the newly conquered territories, and because Israel had previously been invaded across these territories, these settlements were intended primarily to serve a strategic military defensive purpose.

 

The Alon plan, developed by General Yigal Alon shortly after the war, envisioned a series of these military-agrarian settlements (referred to as “nahal” in Hebrew) protecting strategic areas along the Jordan river (it is important to recall that the Hashemite kingdom of Jordan was in a de iure state of war with Israel until 1994) and across parts of the West Bank where surveillance and the potential for rapid military deployment were deemed essential for security purposes.

 

In several cases, where Palestinian farmers utilized the Israeli court system to lodge complaints that the army was unnecessarily taking land without proper military purpose, the Israeli High Court of Justice decided in favor of the plaintiffs.  The army site at Beth El (near Ramallah) is the best-known case, and probably one of the few cases in all of world history where the legal system of the victorious country decided in favor of the defeated, contrary to the security-related demands of the army. The IDF was forced to move its base about ten kilometers further west, to accommodate the land claims of the local Palestinians.

Settlements of Jews Returning To Their Pre-1948 Homes

Settlement of civilian Israelis in the West Bank began shortly after the 6-day war, with a small group of Orthodox Jews setting up a few households in the former Jewish section of Hebron, followed by larger re-settling of Jews in the rapidly reconstructed Jewish Quarter of East Jerusalem.  Jews had lived in Hebron almost continuously since the days of Joshua (3100 years), and were expelled only during the horrific Arab pogroms of 1929 in which hundreds were slaughtered. Jewish habitation in Jerusalem had a similar millennia-long history, with the 1948 war and the massacre of about half of the population of the Jewish Quarter terminating Jewish presence there. 

 

Later, Jews resettled the villages of the Kfar Etzion area (aka Gush Etzion) southwest of Bethlehem.  Since this area had been extensively settled and developed in the early part of the 20th century by Zionist pioneers, and most of the Jews of these villages were massacred by Arab irregulars during the 1948 war, the return of Israelis to these sites created additional Type B settlements.

Expanding Suburbs

Unoccupied areas around Jerusalem and to the east of Kfar Saba and Netania (near Tel Aviv) and to the northeast of Petah Tiqvah were used as sites for major building projects that created low cost housing for the expanding populations of the Jerusalem and Tel-Aviv areas.  In most cases, the land utilized for these projects was Jordanian ‘Crown Land,’ land to which no individual could lay claim of private ownership.  In the absence of Jordan’s willingness to enter into peace negotiations after the war, Israel’s expropriation of these unoccupied areas was legal in as much as Israel’s sovereignty, having been created via defensive actions against an aggressor nation (Jordan), was legal.

 

In cases where West Bank Arabs legally owned land that Israel wanted for these expansion projects, Israel bought the land at fair market prices.  Land sale to Israel was fairly active throughout the decades after the Six-day war. So much so that when the Palestinian Authority was established in 1994, Chairman Arafat declared that sale of land to Jews was punishable by death; as a result, Palestinian families who had benefited from these sales were suddenly in mortal danger and some were forced to flee the West Bank.

 

The rapid growth in Jerusalem’s Jewish population after the war presented the Israeli government with both a problem and a solution of considerable political valence.  Areas of dense Jewish settlement were developed in order to accommodate this growth, and these settlements were used to surround Jerusalem, such that the 1948-67 phenomenon of a “Jerusalem Corridor” (where Jerusalem was surrounded on 3.5 sides by hostile Arab towns and villages with access to other Israeli areas restricted to only one narrow road) would not be re-created in the context of a future peace agreement with the Arabs.  The outlying areas (French Hill, Ammunition Hill, Gilo, Ma’aleh Adumim, Har Homah, inter alia) were turned into hi-rise suburbs that expanded the city’s perimeter and accommodated the burgeoning population.  Of these, only Gilo was built on privately owned land.  A Christian family in Beit Jalla sold the hill-top site to the municipality of Jerusalem in 1974.

Missionary Settlements

Over time, religious and right wing political pressure supported the creation of settlements elsewhere in the West Bank and Gaza Strip. Under Prime Ministers Begin and Rabin, these settlements proliferated.  Often they were founded near ancient Jewish holy sites, such as Joseph’s Tomb near Nablus (Biblical Shehem). 

 

Arab spokespersons claim that these settlements, some of which were built well inside the West Bank or Gaza Strip areas, stole land from Arab farmers.  Israel claims that most land used for these developments was unoccupied and un-owned, thus qualifying as ‘Crown Land’, upon which Israel had full legal right to build and develop. Where privately owned land was needed for settlement expansion, Israel claims to have purchased that land from its legal owners at fair market values. 

 

There was considerable debate in the Israeli government and society at large as to whether allowing these settlements to be developed was good in the context of Israel’s long-term goal of achieving peace with the Arab world in general and the Palestinians in particular. Ultimately, the government felt that creating “uvdot bashetah” (facts in the field - settlements that were there, literally in concrete, with buildings, populations, agrarian and industrial activities, connected by efficient infra-structure to the pre-1967 Israeli areas) would be of assistance in future negotiations, as these settlements would be bargaining chips in a future negotiations.

Rogue Settlements

These  settlements were set up by break-away settlement occupants, often contrary to IDF and/or government instructions, sometimes on privately owned Palestinian land. Palestinian complaints about such illegal land grabs have been adjudicated in the Israeli court system with decisions not infrequently in favor of the Palestinians.  These settlements, whether on illegally taken land or not, are considered illegal by many in Israel. Some have been forcibly dismantled.  This is a very emotional issue in Israel, with orthodox Jews demanding that all Jews be allowed to settle anywhere in the Promised Land (especially anywhere in the region where Abraham lived: i.e., the West Bank from Shechem/Nablus to Hebron).  Anti-settlement sentiment among Israelis (especially the non-religious) is spurred in large part by these sites; and it is almost exclusively this type of settlement on the West Bank that Prime Minister Sharon has agreed to dismantle even before peace negotiations with the Palestinian Authority.

PART II: LEGAL OR ILLEGAL?

Anti-settlement spokespersons (Arab, Israeli and other) have repeatedly branded the settlements as illegal in accordance with the 4th Geneva Convention and international law. However, even a superficial review of the relevant elements of international law demonstrates that this interpretation of the Geneva Convention is a typical example of Arab Orwellian “doublespeak.”  It is precisely international law, the Geneva Convention, and relevant UN resolutions that define these settlements as legal.

 

A.  According to the Fourth Geneva Convention, the prohibition of exiling conquered populations and settling populations from the conqueror’s territory into conquered territories pertains to territory conquered in an offensive war. These sections of the Convention were written to deter future actions like those of the Nazis in Eastern Europe during WWII. Since Israel acquired sovereignty over the WBGS in a defensive war, it is highly questionable whether these prohibitions apply. The fact that the belligerent opponent (Jordan) remained at war (until 1994) meant that the conquered population was de facto and de jure a potentially hostile population.  Moreover, Israel never exiled any Arabs from anywhere in the WBGS (except in 1992 when it deported c. 400 terrorists to south Lebanon in an attempt to stop terror activities).  Rather, because of Israel’s policies of ‘open bridges’ across the Jordan (despite the fact that Jordan was still in a state of declared war with Israel), Arabs migrated into Israel in vast numbers, and the Arab population of the West Bank tripled, from about 650,000 in 1967 to more than 2,000,000 in 1994, with a commensurate increase in Arab settlements (some estimates suggest that as many as 260 new Arab villages or expansions of existing sites occurred during this time). 

 

It is obvious, therefore, that Israeli settlement activity not only did nothing to infringe upon the well-being of the indigenous population; rather, that activity actually created the beneficial economic environment into which hundreds of thousands of Arabs could integrate.

 

B.   Regarding territory conquered in a defensive action, the Charter of the League of Nations (the same one which gave Britain the right to establish a Mandatory Government over Palestine and which declared that British Mandatory Palestine was to be the homeland of the Jewish people) indicates that the disposition of such territory will be part of the peace treaty between the warring parties. In the absence of such a treaty, the disposition of these territories remains in dispute. Such territories should be referred to as “disputed territories”, not “occupied territories”. Their continued occupation by the defensive party is legal. Since the wars in 1948 and 1967 were defensive wars, Israel’s occupation of territories beyond the l947 partition boundaries and 1949 armistice boundaries is completely legal. The Charter of the United Nations accepts, and with no authority to change it, the Charter of the League of Nations. So the League of Nations Charter is still international law, and offers a congruent and rational balance to the 4th Geneva Convention (i.e., the Charter describes the rights of a nation occupying territory in a defensive action, and the Convention describes the limitations placed upon a nation occupying territory in an offensive action). Both are valid under international law.

 

C.  It is also legal for the defensive party maintaining occupation in the absence of a peace treaty to take necessary measures to maintain security. Thus the Nahal settlements for military purposes are legal according to international law.

 

D.  International law is also clear that populations that had been dispossessed from their ancestral homes by an offensive action have the right to re-settle their homes when a successful defensive action re-captures the land from which they were driven out. Thus the return of Jews to Hebron, Gush Etzion, and the Jewish Quarter is legal under international law.

 

E.   UN Resolution 242 (11.22.1967) makes it clear that the purpose of the resolution is to create a just and lasting peace, with guarantees for the territorial inviolability, mutually recognized borders, and political independence of EVERY state in the area. According to Eugene Rostow, one of the drafters of 242, the plain meaning of the resolution is that Israel’s administration of the West Bank and Gaza Strip is completely legal until a just and lasting peace is achieved. Such administration, in the absence of a peace treaty, and in the face of continued hostility from Arab nations and terrorist groups, can include the development of unoccupied segments for housing a growing population. Such activity is not the same as transporting population to the territory for resettlement. So the third type of settlement is also legal.

 

The status of the Missionary Settlements is more complex. Nothing in the Geneva Convention prohibits voluntary development of the disputed territories. What is prohibited is forced deportations and organized displacement of the original populace by a forced settlement of the conquering population. So, to the degree that the Missionary Settlements are a function of voluntary Israeli settling in areas of the West Bank and Gaza Strip without the sequestering of Palestinian land and the removal of Palestinian population, they are legal. Moreover, since the West Bank and Gaza were never legally part of any sovereign nation (they were part of British Mandatory Palestine until November 29, 1947) were intended by the UN to be part of a Palestinian State, and were over-run and illegally occupied by Jordan and Egypt in the 1948 war, in stark and defiant violation of the UN partition plan, UN resolutions 181 and 194, and international law), Israel’s occupation of these territories after the Six-Day War does not violate the legal claims of any nation.

 

However, since some privately owned Palestinian land was taken by government fiat, and it could be argued that either by complicity or by design the Israeli government sponsored these settlements (thus making it more of a government plan rather than a voluntary settlement), it seems fair to say that Missionary Settlements, although legal per the Fourth Geneva Convention and relevant UN resolutions, may be in a gray area morally.

 

The Rogue Settlements are palpably illegal.  Even Israeli government officials have referred to them as “rogue” settlements, IDF forces have dismantled some, and PM Sharon has targeted some for a similar fate.

 

To finish reading this article, click here.


David Meir-Levi lectures in English, Hebrew, and Spanish and is a contributor to Frontpagemag.com.


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