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Titolo: The Illegal-Settlements Myth

http://www.commentarymagazine.com/viewarticle.cfm/the-illegal-settlements-myth-15295
The Illegal-Settlements Myth
David M. Phillips From issue: December 2009
The conviction that Jewish settlements in the West Bank are illegal is
now so commonly accepted, it hardly seems as though the matter is even
open for discussion. But it is. Decades of argument about the issue have
obscured the complex nature of the specific legal question about which a
supposedly overwhelming verdict of guilty has been rendered against
settlement policy. There can be no doubt that this avalanche of negative
opinion has been deeply influenced by the settlements’ unpopularity
around the world and even within Israel itself. Yet, while one may
debate the wisdom of Israeli settlements, the idea that they are
imprudent is quite different from branding them as illegal. Indeed, the
analysis underlying the conclusion that the settlements violate
international law depends entirely on an acceptance of the Palestinian
narrative that the West Bank is “Arab” land. Followed to its logical
conclusion—as some have done—this narrative precludes the legitimacy of
Israel itself.
These arguments date back to the aftermath of the Six-Day War. When
Israel went into battle in June 1967, its objective was clear: to remove
the Arab military threat to its existence. Following its victory, the
Jewish state faced a new challenge: what to do with the territorial
fruits of that triumph. While many Israelis assumed that the
overwhelming nature of their victory would shock the Arab world into
coming to terms with their legitimacy and making peace, they would soon
be disabused of this belief. At the end of August 1967, the heads of
eight countries, including Egypt, Syria, and Jordan (all of which lost
land as the result of their failed policy of confrontation with Israel),
met at a summit in Khartoum, Sudan, and agreed to the three principles
that were to guide the Arab world’s postwar stands: no peace with
Israel, no recognition of Israel, and no negotiations with Israel.
Though many Israelis hoped to trade most if not all the conquered lands
for peace, they would have no takers. This set the stage for decades of
their nation’s control of these territories.
The attachment of Israelis to the newly unified city of Jerusalem led to
its quick annexation, and Jewish neighborhoods were planted on its
flanks in the hope that this would render unification irrevocable. A
similar motivation for returning Jewish life to the West Bank, the place
where Jewish history began—albeit one that did not reflect the same
strong consensus as that which underpinned the drive to hold on to
Jerusalem—led to the fitful process that, over the course of the next
several decades, produced numerous Jewish settlements throughout this
area for a variety of reasons, including strategic, historical and/or
religious considerations. In contrast, settlements created by Israel in
the Egyptian Sinai or the Syrian Golan were primarily based initially on
the strategic value of the terrain.
Over the course of the years to come, there was little dispute about
Egypt’s sovereign right to the Sinai, and it was eventually returned
after Nasser’s successor Anwar Sadat broke the Arab consensus and made
peace with Israel. Though the rulers of Syria have, to date, preferred
the continuance of belligerency to a similar decision to end the
conflict, the question of their right to the return of the Golan in the
event of peace seems to hinge more on the nature of the regime in
Damascus than any dispute about the provenance of Syria’s title to the land.
The question of the legal status of the West Bank, as well as Jerusalem,
is not so easily resolved. To understand why this is the case, we must
first revisit the history of the region in the 20th century.
Though routinely referred to nowadays as “Palestinian” land, at no point
in history has Jerusalem or the West Bank been under Palestinian Arab
sovereignty in any sense of the term. For several hundred years leading
up to World War I, all of Israel, the Kingdom of Jordan, and the
putative state of Palestine were merely provinces of the Ottoman Empire.
After British-led Allied troops routed the Turks from the country in
1917-18, the League of Nations blessed Britain’s occupation with a
document that gave the British conditional control granted under a
mandate. It empowered Britain to facilitate the creation of a “Jewish
National Home” while respecting the rights of the native Arab
population. British Colonial Secretary Winston Churchill later
partitioned the mandate in 1922 and gave the East Bank of the Jordan to
his country’s Hashemite Arab allies, who created the Kingdom of Jordan
there under British tutelage.
Following World War II, the League of Nations’ successor, the United
Nations, voted in November 1947 to partition the remaining portion of
the land into Arab and Jewish states. While the Jews accepted partition,
the Arabs did not, and after the British decamped in May 1948, Jordan
joined with four other Arab countries to invade the fledgling Jewish
state on the first day of its existence. Though Israel survived the
onslaught, the fighting left the Jordanians in control of what would
come to be known as the West Bank as well as approximately half of
Jerusalem, including the Old City. Those Jewish communities in the West
Bank that had existed prior to the Arab invasion were demolished, as was
the Jewish quarter of the Old City of Jerusalem.
After the cease-fire that ended Israel’s War of Independence in 1948,
Jordan annexed both the West Bank and East Jerusalem. But, as was the
case when Israel annexed those same parts of the ancient city that it
would win back 19 years later, the world largely ignored this attempt to
legitimize Jordan’s presence. Only Jordan’s allies Britain and Pakistan
recognized its claims of sovereignty. After King Hussein’s disastrous
decision to ally himself with Egypt’s Nasser during the prelude to June
1967, Jordan was evicted from the lands it had won in 1948.
This left open the question of the sovereign authority over the West
Bank. The legal vacuum in which Israel operated in the West Bank after
1967 was exacerbated by Jordan’s subsequent stubborn refusal to engage
in talks about the future of these territories. King Hussein was
initially deterred from dealing with the issue by the three “no’s” of
Khartoum. Soon enough, he was taught a real-world lesson by the
Palestine Liberation Organization, which fomented a bloody civil war
against him and his regime in 1970. With the open support of Israel,
Hussein survived that threat to his throne, but his desire to reduce
rather than enlarge the Palestinian population in his kingdom ultimately
led him to disavow any further claim to the lands he had lost in 1967.
Eventually, this stance was formalized on July 31, 1988.
Thus, if the charge that Israel’s hold on the territories is illegal is
based on the charge of theft from its previous owners, Jordan’s own
illegitimacy on matters of legal title and its subsequent withdrawal
from the fray makes that legal case a losing one. Well before Jordan’s
renunciation, Eugene Rostow, former dean of Yale Law School and
undersecretary of state for political affairs in 1967 during the Six-Day
War, argued that the West Bank should be considered “unallocated
territory,” once part of the Ottoman Empire. From this perspective,
Israel, rather than simply “a belligerent occupant,” had the status of a
“claimant to the territory.”
To Rostow, “Jews have a right to settle in it under the Mandate,” a
right he declared to be “unchallengeable as a matter of law.” In accord
with these views, Israel has historically characterized the West Bank as
“disputed territory” (although some senior government officials have
more recently begun to use the term “occupied territory”).
Because neither Great Britain, as the former trustee under the League of
Nations mandate, nor the since deceased Ottoman Empire—the former
sovereigns prior to the Jordanians—is desirous or capable of standing up
as the injured party to put Israel in the dock, we must therefore ask:
On what points of law does the case against Israel stand?
_____________
International-law arguments against the settlements have rested
primarily upon two sources. First are the 1907 Hague Regulations, whose
provisions are primarily designed to protect the interests of a
temporarily ousted sovereign in the context of a short-term occupation.
Second is the 1949 Fourth Geneva Convention, the first international
agreement designed specifically to protect civilians during wartime.
While Israel was not and is not a party to the Hague Regulations, the
Israeli Supreme Court has generally regarded its provisions as part of
customary international law (that is, law generally observed by nations
even if they have not signed an international agreement to that effect)
and hence applicable to Israel. The regulations are transparently geared
toward short-term occupations during which a peace treaty is negotiated
between the victorious and defeated nations. The “no’s” of Khartoum
signaled that there would be no quick negotiations.
Nonetheless, Israel established and maintains a military administration
overseeing the West Bank in accordance with the Hague Regulations,
probably the only military power since World War II other than the
United States (in Iraq) that has done so. For example, consistent with
Article 43 of the Regulations, which calls on the occupant to
“respect, . . . unless absolutely prevented, the laws in force in the
country,” Israel has for the most part continued to follow Jordanian law
in the West Bank, despite its position that Jordan itself had illegally
occupied it. Israel’s stance has been criticized as contradictory, but
general continuance of Jordanian law can be justified on grounds of
legal stability and long-term reliance reflected in most legal systems,
including international law.
Article 46 of the Hague Regulations bars an occupying power from
confiscating private property. And it is on this point that the loudest
cries against the settlements have been based. Israel did requisition
land from private Arab owners to establish some early settlements, but
requisitioning differs from confiscation (compensation is paid for use
of the land), and the establishment of these settlements was based on
military necessity. In a 1979 case, Ayyub v. Minister of Defense, the
Israeli Supreme Court considered whether military authorities could
requisition private property for a civilian settlement, Beth El, on
proof of military necessity. The theoretical and, in that specific case,
actual answers were affirmative. But in another seminal decision the
same year, Dwaikat v. Israel, known as the Elon Moreh case, the court
more deeply explored the definition of military necessity and rejected
the tendered evidence in that case because the military had only later
acquiesced in the establishment of the Elon Moreh settlement by its
inhabitants. The court’s decision effectively precluded further
requisitioning of Palestinian privately held land for civilian settlements.
After the Elon Moreh case, all Israeli settlements legally authorized by
the Israeli Military Administration (a category that, by definition,
excludes “illegal outposts” constructed without prior authorization or
subsequent acceptance) have been constructed either on lands that Israel
characterizes as state-owned or “public” or, in a small minority of
cases, on land purchased by Jews from Arabs after 1967. The term “public
land” includes uncultivated rural land not registered in anyone’s name
and land owned by absentee owners, both categories of public land under
Jordanian and Ottoman law. Inversely, the term excludes land registered
in the name of someone other than an absentee owner (regardless of
whether the land is presently cultivated), land to which a title deed
exists (even if the deed is unregistered), and land held by prescriptive
use. The last stipulation requires continuous use of the land for a
period of 10 years.
Israel’s characterization of certain lands as “state” or “public” has
provoked considerable controversy. In one of the most detailed and cited
critiques, B’Tselem, the Israeli human-rights group, concedes that 90
percent of the settlements have been established on what is nominally
“state” land but argues that approximately 40 percent of the West Bank
now falls within that category. That would represent a vast expansion of
the 16 percent of the West Bank that had been considered public under
Jordanian control.
As B’Tselem acknowledges, however, the vast majority of this land is in
the Jordan Valley, which, with the primary exception of the city of
Jericho, was barely populated by Palestinian Arabs prior to 1967 (which
explains why such land was both unregistered and uncultivated). The
percentage may also be on the high side because of the inclusion of
certain Jerusalem neighborhoods in B’Tselem’s calculations. Regardless
of the gross percentage, according to B’Tselem’s own statistics, only
approximately 5 percent of the West Bank is within settlement “municipal
boundaries,” and a much, much smaller percentage of land, 1.7 percent,
is developed.
One of B’Tselem’s most frequently cited publications argues that Ma’aleh
Adumim, the largest Israeli settlement on the West Bank, several
kilometers to the east of Jerusalem, sits on territory taken from five
Palestinian Arab villages and therefore amounts to an expropriation. But
because the villagers lack registered title or even unregistered deeds,
B’Tselem argues that the nomadic Jahalin Bedouin, who intermittently
camp and graze their livestock on land to the east of Jerusalem going
down to the Dead Sea, have effectively earned the right of title to the
land because of their prescriptive use.
Perhaps. But it is far from clear how a Bedouin right to the land has
anything to do with the legal claim of Palestinian villagers 60 years
earlier. B’Tselem offers this rather astonishing argument: “They grazed
on village land in accordance with lease agreements (at times symbolic)
with the landowners—including landowners from the villages of Abu Dis
and al’Izariyyeh.” At times symbolic!
In other words, only Palestinian Arab villages may be constructed and
expanded on the land because Bedouin have occasionally grazed their
flocks thereon pursuant to the implied consent of Palestinian villagers.
But those villagers only have a right to the land because of its use by
the Bedouin!
The sophistry here masks a deeper issue. Aside from its circularity,
B’Tselem’s argument equates whatever rights Bedouin may have with the
rights of sedentary Arab villages on the outskirts of Jerusalem. The
only reason for such an equation is that both are Arabs and not Jews.
B’Tselem’s assertion that the land belongs to these villages collapses
into the contention that only Arabs, not Jews, have the right to own and
use these lands.
_____________
Settlement opponents more frequently cite the Fourth Geneva Convention
these days for their legal arguments. They specifically charge that the
settlements violate Article 49(6), which states: “The occupying power
shall not deport or transfer parts of its own civilian population into
territories it occupies.”
Frequently, this sentence is cited as if its meaning is transparent and
its application to the establishment of Israeli settlements beyond
dispute. Neither is the case.
To settlement opponents, the word “transfer” in Article 49(6) connotes
that any transfer of the occupying power’s civilian population,
voluntary or involuntary, is prohibited. However, the first paragraph of
Article 49 complicates that case. It reads: “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, occupied or not, are prohibited, regardless of their
motive.” Unquestionably, any forcible transfer of populations is
illegal. But what about voluntary movements with the antecedent
permission or subsequent acquiescence by the occupant?
Even settlement opponents concede that many settlements closest to
Palestinian population areas, on the central mountain range of the West
Bank, were built without government permission and often contrary to
governmental policy; their continued existence forced the government to
recognize the settlement as an existing fact. Given this history, it is
questionable to claim that Israel “transferred” those settlers.
The response of settlement critics is that certain tax subsidies and
other benefits conferred by the Israeli government or the World Zionist
Organization that may have encouraged Jews to settle in the West Bank
constructively amounts to a “transfer.” This interpretation would have
greater traction under a l977 protocol to the Geneva Convention or under
the Treaty of Rome, which established the International Criminal Court,
but Israel is a signatory to neither (both covenants were heavily
influenced by anti-Israel nongovernmental organizations and the PLO).
To the extent that a violation of Article 49(6) depends upon the
distinction between the voluntary and involuntary movement of people,
the inclusion of “forcible” in Article 49(1) but not in 49(6) makes a
different interpretation not only plausible but more credible. It’s a
matter of simple grammar that when similar language is used in several
different paragraphs of the same provision, modifying language is
omitted in later paragraphs because the modifier is understood. To
Julius Stone, an international-law scholar, “the word ‘transfer’ [in
49(6)] in itself implies that the movement is not voluntary on the part
of the persons concerned, but a magisterial act of the state concerned.”
To understand the phraseology used in Article 49(1), “individual or mass
forcible transfers,” as well as one plausible origin of Article 49(6),
some background is necessary.
According to Stone, discussions at the 1949 Geneva Diplomatic Conference
“were dominated . . . by a common horror of the evils caused by the
recent World War and a determination to lessen the sufferings of war
victims.” The various nations’ delegates considered a draft of the
convention produced at a conference of the Red Cross Societies held in
Stockholm during August 1948. Final Article 49 was the renumbered and
revised successor to Article 45 of the Stockholm Draft.
At a legal subcommittee meeting at Stockholm seemingly attended by fewer
than 10 active participants, a Danish Jew named Georg Cohn proposed the
sentence, albeit with a wider scope, that became Article 49(6). Cohn’s
initial sentence, in French, would have prohibited an occupying power
from deporting or transferring a “part of its own inhabitants or the
inhabitants of another territory which it occupies” into the occupied
territory.
According to Cohn’s own report to the Danish foreign ministry, his
language was directed at an event the aspects of which were little known
outside Scandinavia. In the waning days of World War II, as the Russian
military advanced westward through the Baltic states and the Germans
retreated, the Germans rightly feared that the Russians would take
retribution on all German citizens and ethnic Germans who had
collaborated with the Nazis. The Germans evacuated more than 2 million
people into boats, hoping to land them in northern Germany.
Many of the ports had been bombed, however, and the Germans began
unloading the people wherever they could, including several hundred
thousand people into Copenhagen. In the spring of 1945, German children
comprised a majority of the pupils in Copenhagen’s schools. The Danes
despised them and placed them in concentration camps after the war,
waiting to deport them to Germany as fast as possible. That goal had
still not been accomplished in August 1948, at the time of the Stockholm
conference.
_____________
Cohn may also have been motivated to propose the language that later
became Article 49(6) in light of his own strong Jewish identity. The
original language on deportations presented to the Stockholm conference
would not have prevented Germany from deporting its own Jews to slave
and extermination camps in Poland and other occupied countries, nor
would it have prevented the Germans from sending Danish Jews found in
Germany to concentration camps in occupied territories, sending either
Hungarian or Italian Jews to Auschwitz, and/or from transplanting
Germans to portions of Poland and other occupied countries. Cohn’s
original language would have criminalized all these practices.
Other participants in Stockholm, led by Albert J. Clattenburg Jr. of the
United States, thought Cohn’s provision too broad. The phrase “or the
inhabitants of another territory which it occupies” was deleted, and
“civil” was inserted before “inhabitants.”
At the Geneva Conference itself, both the Final Report of the Committee
charged with drafting the text of the 4th Convention for consideration
by the delegates as well as comments by delegates generally
differentiated between transfers that were voluntary and therefore
permitted and those that were involuntary and therefore prohibited. As
the Final Report to the delegates stated while explaining the
differences between various articles dealing with the right of an
occupying power to evacuate an area, primarily in the interest of the
security of the civilian population’s security: “Although there was
general unanimity in condemning such deportations as took place during
the recent war, the phrase at the beginning of Article 45 caused some
trouble. . . . In the end the Committee had decided on a wording that
prohibits individual or mass forcible removals as well as deportations
of protected persons from occupied territory to any other country, but
which permits voluntary transfers.”
That is a key reason why Julius Stone termed the anti-settlement
interpretation “an irony bordering on the absurd” and commented:
“Ignoring the overall purpose of Article 49, which would inter alia
protect the population of the State of Israel from being removed against
their will into the occupied territory, it is now sought to be
interpreted so as to impose on the Israel government a duty to prevent
any Jewish individual from voluntarily taking up residence in that area.”
There is simply no comparison between the establishment and population
of Israeli settlements and the Nazi atrocities that led to the Geneva
Convention. The settlements are also a far cry from policies implemented
by the Soviet Union in the late 1940s and early 1950s to alter the
ethnic makeup of the Baltic states by initially deporting hundreds of
thousands of people and encouraging Russian immigration.
Nor can they be compared to the efforts by China to alter the ethnic
makeup of Tibet by forcibly scattering its native population and moving
Chinese into Tibetan territory. Israel’s settlement policies are also
not comparable to the campaign by Morocco to alter the ethnic makeup of
the Western Sahara by transferring Moroccan Arabs to displace the native
Saharans, who now huddle in refugee camps in Algeria, or to the variety
of population displacements that occurred in the various parts of the
former Yugoslavia.
All these would seem to fit the offense described in Article 49(6)
precisely. Yet finding references to the application of Article 49(6) to
nations other than Israel is like looking for a needle in a haystack.
What distinguishes a system of “law” from arbitrary systems of control
is that similar situations are handled alike. A system where legal
principles are applied only when it suits the political tastes of
anti-Israel elites is one that has lost all credibility. The loose use
of international law, disproportionately applied to Israel, undermines
the notion that this is “law” entitled to authoritative weight in the
first place.
Julius Stone referred to the absurdity of considering the establishment
of Israeli settlements as violating Article 49(6):
     We would have to say that the effect of Article 49(6) is to impose
an obligation on the State of Israel to ensure (by force if necessary)
that these areas, despite their millennial association with Jewish life,
shall be forever judenrein. Irony would thus be pushed to the absurdity
of claiming that Article 49(6), designed to prevent repetition of
Nazi-type genocidal policies of rendering Nazi metropolitan territories
judenrein, has now come to mean that . . . the West Bank . . . must be
made judenrein and must be so maintained, if necessary by the use of
force by the government of Israel against its own inhabitants. Common
sense as well as correct historical and functional context exclude so
tyrannical a reading of Article 49(6).
Stone’s pointed critique of what has since become “accepted” wisdom
invites a hypothetical: Suppose a group of Palestinian Arabs who are
citizens of Israel requested permission to establish a community on the
West Bank. Further, assume that Israel facilitated the community’s
establishment, without the loss of their citizenship, on land purchased
from other Palestinian Arabs (not citizens of Israel) or on state land.
Would establishment of this settlement violate Article 49(6)? If not,
how can one distinguish the hypothetical Arab settlements from Jewish
settlements?
Concluding that Israeli settlements violate Article 49(6) also overlooks
the Jewish communities that existed before the creation of the state in
areas occupied by today’s Israeli settlements, for example, in Hebron
and the Etzion bloc outside Jerusalem. These Jewish communities were
destroyed by Arab armies, militias, and rioters, and, as in the case of
Hebron, the community’s population was slaughtered. Is it sensible to
interpret Article 49 to bar the reconstitution of Jewish communities
that were destroyed through aggression and slaughter? If so, the
international law of occupation runs the risk of freezing one occupier’s
conduct in place, no matter how unlawful.
The idea that the creation of new settlements or that the expansion of
ones already in place is an act of bad faith on the part of various
Israeli governments may seem without question to those who believe those
settlements constitute an obstacle to the ever elusive solution to the
Arab-Israeli conflict. Whether this argument is well-founded or not, the
willingness of Israel’s critics to assert that these communities are not
merely wrong-headed but a violation of international law escalates the
debate over their existence from a dispute about policy into one in
which the Jewish state itself can be labeled as an international outlaw.
The ultimate end of the illicit effort to use international law to
delegitimize the settlements is clear—it is the same argument used by
Israel’s enemies to delegitimize the Jewish state entirely. Those who
consider themselves friends of Israel but opponents of the settlement
policy should carefully consider whether, in advancing these
illegitimate and specious arguments, they will eventually be unable to
resist the logic of the argument that says—falsely and without a shred
of supporting evidence from international law itself—that Israel is
illegitimate.

 The Illegal-Settlements Myth
nahum, è inutile che continui a parlare a vanvera come il lupo di
Fedro: avrai sempre torto marcio, qualsiasi cazzata che credi dimostri
il contrario posti. Sii onesto, dì "siamo lupi, e i lupi mangiano gli
agnelli". Fine della storia.

 The Illegal-Settlements Myth
Interessante. Conoscevo la diatriba sul "trasferimento" di civili, ed � 
abbastanza evidente che occorre veramente trascinare l'articolo rilevante 
per la giacchetta per fargli dire quello che vogliono i Palestinesi. Non 
conoscevo per� tutte le acrobazie legali che occorre mettere in campo 
rispetto alla questione della propriet� delle terre.
Comunque dal contenuto dell'articolo stesso resta il fatto che anche se
a) dal punto di vista del rapporto tra stati, non � chiaro in quale 
giurisdizione ricadano i territori e
b) alcuni degli insediamenti devono essere considerati non illegali, fatta 
salva la soluzione del punto a) di cui sopra,
Si deve in ogni caso concludere che almeno _alcuni altri_ insediamenti siano 
illegali, se non dal punto di vista del diritto internazionale (vedi a) 
almeno dal punto di vista della questione della propriet� delle terre. 
Alcuni di questi sono addirittura in aperta violazione delle leggi 
israeliane e delle disposizioni delle autorit� competenti israeliane, quindi 
� difficiletto non considerarli illegali.