Occupation and Settlement: The Myth and Reality By: David Meir-Levi

Occupation and Settlement: The Myth and RealityBy: David Meir-Levi FrontPageMagazine.com | Friday, June 24, 2005

One of the most prominent and contentious issues in the media coverage and Arab propaganda regarding the Israel-Arab conflict is that of Jewish “occupation” of Arab lands and the Israeli settlements in the West Bank and Gaza Strip (hereafter WBGS). Unfortunately, these issues have been clouded with misleading rhetoric and propagandistic mantras by both sides.  To properly understand the role of the Israeli presence and settlements in the WBGS, it is necessary to review their history within the broader historical context of the Arab-Israel war, which has been proceeding without interruption since 1948. 

Historical Introduction

Early Zionism

The conflict between Israel and the Arab world began well before the 1948 war.  Zionist pioneers from middle of the 19^th century onward began their work of rebuilding a Jewish homeland in what was then the Ottoman or Turkish Empire by their purchase of land from the Turkish Crown and from Arab landowners (Effendi).  There was no invasion, no conquest, no theft of Arab land and certainly not of Palestinians who were subjects of Turkish rule.  Unarmed and with no military, the Jews bought so much land that in 1892 a group of Effendi sent a letter to the Turkish Sultan, requesting that he make it illegal for his subjects to sell land to Jews. Their successors did the same thing, via a telegram, in 1915.

No one complained of theft because there was none. No Arabs were driven from their homes.  In fact, as a demographic study published by Columbia University demonstrates, the Arab population of the area grew tremendously during this period in part because of the economic development that the Jews helped to generate.  Thus, between 1514 AD and c. 1850, the Arab population of this region of the Turkish empirewas more or less static at about 340,000.  It suddenly began to increase c. 1855, and by 1947 it stood at c. 1,300,000  -- almost quadrupling in less than 100 years. The exact causes of this increase are beyond the scope of this essay, but the causal correlation between this independently documented phenomenon and the Zionist endeavor is beyond rational argument. 

Far from driving out any Arabs, stealing their land or ruining their economy, the work of the Jewish pioneers in the 19^th and early 20^th centuries actually enabled the population to quadruple, the economy to enter the modern era, and the society to slough off the shackles of serfdom that typified the Effendi-Fellah (land-owner/serf) relationship of the Ottoman era.  An Arab working in a Jewish factory or farming community could earn in a month what his father earned in a year eking out a living as a subsistence-level farmer using medieval technology.  Arab infant mortality plummeted and longevity increased as the Jews shared their modern medical technology with their Arab neighbors. 

Much of the land that the Zionists purchased was desert and swamp, uninhabited and deemed uninhabitable by the Arabs.  Modern agrarian techniques and the blood and sweat of thousands of idealistic Jews reclaimed that land and turned it into prime real estate with flourishing farms and rapidly growing communities sporting modern technology and a healthy market economy. As a result, Arab migrants poured into the region from surrounding states, with hundreds of thousands seeking a better life and greater economic opportunity.  Based on the above, it is fair to suggest that a significant plurality, if not a majority, of Arabs living in Israel today owe their very existence to the Zionist endeavor.

Validation of this history, a history quite at variance with the standard Arab revisionism, comes from a surprising source.  Sheikh Yousuf al-Qaradhawi, international Arab terrorist and lieutenant to Osama bin Laden, in a televised speech in May, 2005 (cf. MEMRI, http://www.memritv.org/search.asp?ACT=S9&P1=645), chided his followers with the following words:  "Unfortunately, we (Arabs) do not excel in either military or civil industries. We import everything from needles to missiles…How come the Zionist gang has managed to be superior to us, despite being so few? It has become superior through knowledge, through technology, and through strength. It has become superior to us through work. We had the desert before our eyes but we didn't do anything with it. When they took over, they turned it into a green oasis. How can a nation that does not work progress? How can it grow?”

It was precisely this success of the Zionist endeavor that raised the ire and fear of Arab leadership. Zionist progress, technology, economy, and the Jews’ willingness to share this technology with their Arab neighbors radically threatened the medieval strangle-hold of the Effendi over the fellahin (peasantry).  As part of the Turkish (Ottoman) Empire, the Arabs of what is today called Israel did not wish to risk civil disobedience.  Turkish methods of insuring tranquility under the Sultan were rather draconian.  Not so with the British.  So, after World War I when the British and the French dismantled the Ottoman empire (Sykes-Picot treaty, 1916), and Britain took over the governance of British Mandatory Palestine (today’s State of Israel and Kingdom of Jordan), Arab leadership found itself with a much freer hand.  Stoking religious hatred, and fanning the flames of fellah resentment with lies about the Jews’ intent to destroy Islam, representatives of the leading Effendi families led by the Hajj Amin el-Husseini began an Islamicjihad involving a series of pogroms against the Jews.

Peel Partition Plan

1919, 1921, 1922, 1929, and 1936 saw Arab violence against Jews expanding in scope and growing in brutality, with the British doing almost nothing to curtail it and sometimes abetting it.  Lord Earl Peel led a commission of inquiry in 1936, with the goal of finding a solution to the seemingly endless violence.  His suggestion was partition.  Let the Jews have their state on the c. 15% of lands that they have purchased and redeemed.  Let the Arabs have theirs on the remaining 85%. 

In 1922 Britain had given all of Palestine east of the Jordan river to the emir Abdullah, which became the Hashemite Kingdom of Jordan, a kingdom with a majority Palestinian population which, by law, permitted no Jew to enter. When offered their own state in 1937 on c. 85% of British Mandatory Palestine west of the Jordan river the Arab leadership chose war and terrorism. This was the “Great Arab Revolt” of 1937-1939. With World War II in the offing, Britain lost no time in brutally crushing the Arab revolt.

Meanwhile, the pioneering Zionist endeavor continued, with the purchase of more crown land from the British.  It is important to note that according to international law, what had been crown land under theOttoman Empire was now legally crown land under the British Mandate.  The disposition of that land through legal purchases was well within the rights of the British and conformed to the parameters of international law. When the West emerged from World War II, Zionist organizations owned about 28% of what is today Israel, and private Arab land ownership or British crown land accounted for the rest. 

With the end of the war, Arab leadership again promoted violence and terrorism against Jewish settlements and against the British.  The majority of Jewish leaders preached restraint and practiced the exploration of political solutions via the newly formed United Nations. A minority practiced terrorism against the British and violent reprisals against the Arabs.

UN Partition Plan

Sick of the violence and facing political crises growing out of economic problems following World War II, the British decided to place “the Palestine Question” into the hands of the United Nations.  Several UN exploratory missions (UNESCOP being the latest) in 1947 reached Lord Peel’s conclusion of a decade earlier.  On November 29, 1947 the UN decided to declare two states: the state of Palestine for the Arabs on c. 45% of the land, and the state of Israel for the Jews on c. 55%.  The UN Partition Plan (UN Resolution # 181) created unwieldy boundaries between the two nascent states, based upon the land ownership and population densities of the two groups, plus the assignment of the Negev (the southern desert, crown land largely unpopulated and believed to be worthless) to the Jews. This desert constituted 60% of the Jewish portion.

It is important to note, at this juncture, that the Arab states were members of the UN.  Their membership entailed their willingness to abide by majority decisions of the newly formed world governing body. But they did not.

In high-handed defiance of the UN partition plan, they launched a war of aggression which, by their own public rhetoric, was to be a war of annihilation.  Their intent was not the correction of some border dispute or the reclamation of some turf lost in an earlier battle.  Their vociferously ballyhooed intention was the destruction of the newly created State of Israel, and the genocide of its 605,000 Jews.

Much to their chagrin, they lost.  And in losing, they lost much of the territory which the UN had designated for the state of Palestine. However, the remainder of what was to have been Palestine (the West Bank and the Gaza Strip) never became the State of Palestine.  Rather, Egypt maintained illegal occupation of the Gaza Strip, and Jordan illegally annexed the West Bank, both in high-handed defiance of international law and UN resolutions 181 and 194. There was no Arab or Palestinian protest over this.

To add to the Arabs’ chagrin, they were faced in 1949 with an Israeli offer of peace.  In exchange for a formal peace treaty, Israel would return much of the land conquered in the war and allow the repatriation of some substantive portion of the Arab refugees created by the war (Rhodes Armistice talks, February – July, 1949).  Had the Arab nations been willing to accept the UN partition plan, or had they been willing to accept the Israeli peace offer, not only would there have been a State of Palestine since 1949, but there would never have been an Arab refugee problem. But the Arab response was NO PEACE.  The refugees will return to their homes only when they can fly the flag of Palestine over the corpses of the Jews.  Better our Palestinian brethren should rot in squalid refugee camps than that we should acknowledge a non-Arab state in our midst. As in 1937, Arab leadership rejected the possibility of a Palestinian state in favor of continued aggression against Israel.  It was not the creation of the State of Israel that caused the refugee and other subsequent problems; it was the war of annihilation waged by the Arab states that snuffed out the second opportunity for the creation of a Palestinian state.

Pre-67 Terrorism Against Israel

From 1949 to 1956, Egypt waged a terror war against Israel, launching c. 9,000 attacks from terrorist cells set up in the refugee camps of the Gaza Strip.  The 1956 “Sinai campaign” ended Egypt’s terror war, even though President Eisenhower forced Prime Minister Ben Gurion to return the Sinai to Egypt without a peace treaty. But the terror continued on other fronts. In 1964, Yasir Arafat began a 50-year campaign of terror the openly avowed goal of which was the destruction of Israel and the genocide of its Jews.  (Arafat did not even mention the annexation of the West Bank by Jordan or the illegal occupation of Gaza byEgypt.) Sponsored first by Kuwait, and later by Saudi Arabia, Egypt, Iraq, and Iran, Arafat declared unending war against Israel until all of “Palestine” would be liberated, redeemed in “fire and blood”. 

It is important to note that from 1949 to 1967 there were no Jewish settlements in the West Bank or the Gaza Strip.  The “Palestine” that Arafat sought to “redeem” was the State of Israel within its 1949 “green line” borders.  It is instructive to read the original 1964 version of the PLO Covenant: Article 24. “This Organization (the PLO) does not exercise any regional sovereignty over the West Bank in the HashemiteKingdom of Jordan, in the Gaza Strip or the Himmah area”. Since the PLO’s original Covenant explicitly recognized Judea, Samaria, the eastern portion of Jerusalem, and the Gaza Strip as belonging to other Arab states, the only "homeland" it sought to "liberate" in 1964 was the State of Israel. However, in response to the Six Day War, in which five Arab states attacked Israel and as a result of which Israel militarily occupied the West Bank, the PLO revised its Covenant on July 17, 1968 to remove the operative language of Article 24, thereby newly asserting a "Palestinian" claim of sovereignty to the West Bank and Gaza Strip.

It is also instructive to note that the Jordanian occupation of the West Bank and Egyptian control of the Gaza Strip were typified by brutal totalitarian repression.  In the words of Arafat himself, the Egyptians (in 1948) herded Palestinians into refugee camps, kept them behind barbed wire, sent in spies to murder the Palestinian leaders, and executed those who tried to flee.  Nor were there any Palestinian protests of any self-determination they had been denied. 

Belated Palestinian Nationalism

The reason why there was no agitation among Palestinians for their own national identity prior to 1967 is perfectly clear.  The concept of Palestine as a nation and Palestinians as a separate people did not exist among the Arabs of the Turkish provinces that became British Mandatory Palestine after World War I. Despite the contorted, forced, and contrived narratives of Rashid Khalidi, Baruch Kimmerling and others, their own analyses acknowledge that there was never any state called Palestine, no country inhabited by “Palestinians”, and no concept of a separate political or cultural or linguistic entity representing a defined group that could be identified by such an appellation. 

In fact, the opposite is the case.  Arab respondents to the UN’s UNESCOP 1947 inquiries argued that there never was, nor should there ever be, a Palestine.  The area under discussion was historically part of southern Syria; and for centuries had been known as “balad esh-sham” (the country of Damascus). In fact, at that time, the term “Palestinian” was applied to the Jews living in Mandatory Palestine.  The Arabs of the region were known as “Arabs”.

In a March 31, 1977 interview with the Amsterdam-based newspaper Dagblad de Verdieping Trouw,  PLO executive committee member Zahir Muhse’in said: “The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct 'Palestinian people' to oppose Zionism. For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifaand Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unitePalestine and Jordan.”

Even today, Syrian 5^th Grade social studies textbooks show “Greater Syria” as Syria, Lebanon, Jordan, andIsrael.  There is no nation called Palestine.  The concept of “Palestinians” as Arabs living for millennia in “historic Palestine” is a fiction created for the political and military purposes described by Mr. Muhse’in. This belated frenzy of Palestinian agitation for national self-determination is simply the faux mantle of respectability behind which genocidal Arab terrorism can be perpetrated against Israel with impunity. After the Holocaust, the West cannot look kindly upon genocidal terrorism; but it can embrace warmly and enthusiastically the deep and heartfelt yearnings of an oppressed people struggling to be free.  Hence, Arafat’s terrorist propagandists needed to invent the lies of Palestinian National Identity and Israeli oppression. 

The Six-Day War

Contrary to current Arab propaganda, but congruent with all news accounts contemporary to the events,Israel was the victim of Arab genocidal aggression in the 6-Day War.  On May 15, 1967 Egypt demanded that the UN peace-keeping forces, in place since the Sinai Campaign, evacuate at once.  UN Secretary General U-Thant, for reasons never fully clarified, complied at once. Then Egypt closed the Straits of Tiran and moved two tank battalions and 150,000 troops right up to Israel’s western border. A military pact with Syria and Jordan, and illegal invasion of Israel’s air space for surveillance over-flights of the Israeli atomic reactor in Dimona, rounded out the threats. These were five casus belli: actions defined in international law as so threatening to a sovereign state that each one creates a legitimate cause for defensive military response.  Had Israel retaliated with lethal force after any one of these five, its military action would have been completely legal per international law, as legitimate defensive response to existential threats from an aggressor. 

However, Israel did not retaliate.  It first tried political negotiations.  Its complaints to the UN went unanswered.  Its reminders to President Johnson that the United States had guaranteed in 1957 to intervene if the Straits of Tiran were ever closed, or if Egypt ever re-militarized the Sinai, fell on deaf ears.  Mr. Johnson was too heavily involved in the Vietnam war to consider American military action elsewhere, even though President Eisenhower, when he forced PM Ben Gurion to retreat from the Sinai after the phenomenally successful Sinai Campaign in 1956, had promised America’s eternal vigilance that Israel would not again face a military threat from Egypt.

After three weeks of watching the Egyptian-Syrian-Jordanian forces grow in size and strength on its borders, Israel tried one last diplomatic action.  Via the UN commander of the peace-keeping forces inJerusalem, Colonel Od Bul (a Norwegian), Israel’s government sent a written message to King Hussein ofJordan: if you do not invade Israel, Israel will not invade the West Bank.  King Hussein superciliously tossed the note back to Colonel Bul and walked away.

On Monday, June 5, 1967, after receiving military intelligence that Egypt was within hours of launching an invasion via the Gaza Strip, Israel launched its defensive pre-emptive strike, an air attack that destroyed the air forces of Egypt, Jordan, and Syria while they were still on the ground.  With the control of the skies firmly in Israel’s hand, its armor and infantry put Egyptian forces to flight, reaching the Suez Canal within two days. 

Despite Israel’s warning, King Hussein of Jordan began an artillery bombardment of Jerusalem and other Israeli cities along the Green Line.  After more than a day of bombardment, with scores of Israelis dead, hundreds wounded, and millions of dollars of damages, Israel sent a second message to the Hashemite king: if you stop the bombardment now, we will consider it your politically necessary ‘salvo of honor’; and we will not retaliate. This message was sent via the Romanian embassy, from its West Jerusalem (Israeli) ambassador to its East Jerusalem (Jordanian) ambassador.  Hussein ignored the warning and launched an infantry invasion of Jewish Jerusalem.  It was only then that Israel responded with its invasion of the West Bank.

After almost a week of Syria’s constant artillery bombardment of Israeli towns and villages in the Galilee,Israel conquered the Golan Heights, destroyed the Syrian artillery, and drove the Syrian army back to within 40 kilometers of Damascus. 

Israel did not invade Egypt, although its forces could have advanced almost unopposed to Cairo. It did not cross the Jordan river although the Jordan Legion was in disarray, with some troops having tossed their boots and rifles to more easily swim to the east bank.  Nor did it continue its advance from the Golan Heights to Damascus, which it could have easily done in the wake of a terrified and decimated Syrian army.  Israel stopped its advance on all three fronts after it had achieved its military objectives: the destruction of the armies that threatened its existence, and the establishment of defensible borders.

International Law and Israeli Sovereignty

Even one of the most critical of Israel’s historians, Professor Avi Schlaim acknowledges that Israel was the victim of Arab aggression in the six-day war.  This is an important point with regard to the issue of Israeli settlements in and sovereignty over the West Bank and Gaza Strip.  International law is very clear.  Had it been the aggressor, Israel’s occupation of the West Bank and Gaza Strip would have been illegal, as would all future expansion of Israeli population into these territories.

However, as the victim of aggression, Israel’s legal position is exactly the opposite.  (See infra, Part II, for details.) Suffice it for this introduction that the legal disposition of territories conquered in a defensive war can be determined only by a peace treaty between the belligerents.  Absent such a peace treaty, the continued sovereignty and economic activities of the victim of aggression over its newly won territories is completely legal as long as such activity does not unfavorably prejudice the indigenous inhabitants. For thebeneficial results of Israel’s sovereignty over the West Bank and Gaza Strip, see below, Parts II and III.

Moreover, immediately after the war, Israel offered to return conquered territory in exchange for peace. The Arab nations rejected this offer.  Israel could legally have annexed the newly won territories, but chose not to because it expected that eventually the aggressor nations would come to their senses and want their land back, and Israel would return some of these territories to their former occupiers in exchange for peace.  Israel did this with Egypt, returning all of Sinai at the Camp David I accords in 1979.  Anwar es-Sadat refused to accept the Gaza Strip back, preferring that its Palestinians remain under Israeli sovereignty. When Jordan agreed to a peace treaty in 1994, King Hussein specifically excluded the West Bank from consideration, because by then 96% of Palestinians in the area were under the rule of the Palestinian Authority, and Hussein conceded that he had no legal claim to the area or its Arab population.

In sum, Israel is the only known country in all of history and across the entire world to come into existence via legal and beneficial land development (as opposed to the almost universal method of conquest).  Israel’s victory in the 1948 war and in the 6-day war, in which it was the victim of genocidal aggression, and the refusal of Arab nations to join it in peace negotiations, give Israel the legal right to maintain its sovereignty over its newly won territories, and to develop those territories in any manner that is not prejudicial to the well-being of the indigenous civilians.  Had Arab leadership been amenable to peace with Israel, there could have been a Palestinian state in 1937, and again in 1947, and again in 1949; and there would never have been an Arab refugee problem.  Had Arab leadership in 1967 been amenable to peace with Israel, there would never have been a continued Israeli sovereignty over the disputed territories of the West Bankand Gaza Strip.

With this historical framework in place, one can understand the real issues behind the controversy over Israeli settlements in the West Bank and Gaza Strip and the legal status of the settlements.

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 Hebronalmost 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 20^th 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, Israelbought 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 themunicipality of Jerusalem in 1974.

Missionary Settlements

Over time, religious and right wing political pressure supported the creation of settlements elsewhere in theWest 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 4^th 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 southLebanon 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 4^th 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 Bankand 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 Bankand 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.

 Part III: THE IMPACT OF SETTLEMENTS ON THE ARAB POPULATION

The impact of Israeli settlements that are not Rogue Settlements has been almost exactly the opposite of what the Arab propaganda claims.

It is important to note that from 1967 to 1992 – that is until the West Bank was turned over to the Palestinian Authority --  the population and economy of the West Bank grew substantially. The standard of living of the Palestinians, as well as the average per capita income, increased almost exponentially. This was in part due to the Israeli “Marshall Plan”, which expanded the infra-structure, modernized roads and the supplies of water, electricity, and sewerage, and made 20^th century medical care available. Telephone and radio technology was up-graded to 20^th century levels. Economic progress was also due in part to the integration of the Palestinian workforce into the Israeli economy by the employment of hundreds of thousands of Palestinians in a wide variety of Israeli business and agricultural endeavors. The growth of tourism throughout the West Bank was a further boost to the area’s economy.  The population of the WBGS more than tripled from 1967 to 1994, with a total Arab WBGS of c. 950,000 in 1967 growing to more than 3,000,000 by 1994.  Seven universities, some sponsored in part by Jewish donors and the Israeli government, came into being where only three teacher training institutions had existed before. 

Rather than displacing Palestinians, the Israeli sovereignty over the West Bank stimulated substantial growth and improvement. It has been noted that when an Israeli settlement of any of the first four types was erected, areas around it that were hitherto uninhabited became foci for Palestinian shops selling agricultural goods and cottage industry wares to the Israelis. Later, Palestinian houses followed the shops.

Moreover, during the decades after 1967, there were no road-blocks or lock-downs or curfews (except on rare occasions when the Israeli military or central intelligence agencies learned of the presence of terrorists in a specific village or town).  WBGS Arabs shopped in Tel Aviv, and Jews shopped in east Jerusalem and Ramallah.

It is only since 1994, when 96% of Palestinians living in Israel came under the autonomous and independent control of the PNA (Palestinian National Authority, aka PA) that the economy of the WBGS has been crippled and the lives of the Palestinians wrecked by the PNA despotic and terrorist rule.  TheWest Bank’s GDP in 2003 was about one-tenth of what it was in 1992. Only because of Arafat’s terror war was Israel forced to implement now infamous and wildly exaggerated harsh measures to stop terror attacks and protect civilian lives.

It is also important to note that the so-called “apartheid roads” did not exist prior to Arafat’s 1994 ascent to power, nor are they apartheid.  During the decades from 1967 on, Israelis and Arabs used the same roads, many of which ran as main streets through the towns and villages of the West Bank, bringing in millions of tourist dollars to hitherto impoverished small-town Arab merchants.  Only after Arafat began his terror war, and Israelis driving through Arab towns found themselves in mortal danger, did Israel build the “Israelis only” (not “Jews only”) roads.  Rather than take punitive measures against Arab offenders who murdered or injured Israeli motorists (Jewish, Christian, and Moslem), the government decided instead to create this by-pass system so that Israelis could reach WBGS destinations without exposing themselves to terrorist attacks.

In sum, until Arafat began his terror war, the growth of Israeli population in the WBGS, and the expansion of Israeli villages and towns in those territories, was highly beneficial economically for the WBGS Arab populations, did not entail significant loss of Arab privately owned land, offered legal recourse to the rare cases of unfair expropriation, and was accompanied by a far, far greater growth of Arab population and settlements in the WBGS.

Part IV. THE ROLE OF SETTLEMENTS IN THE PEACE PROCESS

The role of the settlements in the context of the current conflict, and in the contentious issue of applying the “Road Map” to future peace negotiations, is perhaps the most complex and difficult issue to deal with, precisely because Arab propaganda has been so effective in establishing as axiomatic that the settlements are:

a.)     illegal

b.)    a symptom of Israel’s intent on conquest of Palestinian land and are thus inherently an obstacle to peace

c.)    a harbinger of Israel’s permanent occupation of the West Bank and Gaza Strip and hence make territorial compromise impossible

d.)    signal Israel’s inherently obvious unwillingness to negotiate a fair peace.

Therefore, it will be most useful to look at these Arab contentions, and see how they correspond to historical reality.

a.   Are the settlements illegal? We have just seen that except for the Rogue Settlements which the Israeli government does not condone, the settlements are legal under existing standards of international law.    

b.   Are the settlements an obstacle to peace? From 1949-1967 there were no settlements in theWest Bank or Gaza Strip. Nor was there peace. Arab belligerence was unrelated to West Bank and Gaza settlements. The settlements to which the Arabs objected at that time were Tel Aviv, Haifa, Hadera, Afula, etc.

In June, 1967, immediately after the Six Day War, and before there were any Israeli settlements in the West Bank and Gaza Strip, Israel proposed its dramatic peace initiative both at the UN and in sub rosa talks with Jordan.  This initiative was rejected by all Arab states and the PLO at the Khartoum Conference in August-September, 1967. The obstacle to peace was the very existence of Israel, not settlements in the West Bank.

i.          In 1979, as part of the accord with Egypt, Israeli settlements in Sinai were evacuated. In the context of a peace treaty, settlements are negotiable, can be, and were, dismantled.

 ii.      In 1979, as part of the accord with Egypt, Israel froze settlement expansion for three months, in order to encourage entry of Jordan into the Egypt-Israel peace process. Jordan refused. The freezing of settlements did not stimulate peaceful interaction.  Arafat too (then engaged in creating a terrorist state in south Lebanon) was invited to join Egypt at the peace talks, and this settlement freeze was intended to encourage his participation. He refused.  The existence of settlements in Sinai did not interfere with the Israel-Egypt peace accords; and the freeze on settlement activities did not encourage Jordan or the PLO to enter into peace accords.

   iii.      In 1994, Jordan signed a peace treaty with Israel, while settlements in theWest Bank and Gaza Strip were growing in size and increasing in number. The existence and expansion of the settlements in no way impaired the peace process with Jordan.

c.   Do the settlements make territorial compromise impossible? The accords discussed atMadrid, Wye, Oslo and Taba all include the acknowledgement that settlements (a few, some, many, probably not all) will be dismantled in the context of a peace agreement. Those accords were discussed while settlements were expanding.  Settlements did not impede negotiation then.

   i.      Currently, c. 200,000 Jews live in a total of 144 communities scattered through the West Bank and Gaza Strip. 80% of these could be brought withinIsrael’s pre-67 borders with only a very minor re-arranging of “green line” boundaries.

   ii.      Part of Barak’s offer to Arafat in 2000 was the exchange of land such that the Palestinians would be compensated for the small number of settlements that would not be dismantled by the ceding of Israeli land within the pre-67 boundaries to the PNA.  This offer included c. 95% of all settlements in the WBGS.  Arafat rejected this offer, much to the surprise and chagrin of President Clinton.

   iii.      Does Israel’s violation of international accords by building the settlements show Israel’s unwillingness to negotiate a fair peace? Except for the Rogue Settlements, which Israel does not defend and will not support, there are no violations.

    iv.      the Camp David accords called for a 3-month moratorium on settlements. Menahim Begin kept this agreement (cf. supra, IV.b.iv)

   v.      the Oslo Accords say nothing about settlements. It was tacitly agreed informally that a moratorium on settlements would be one of sixteen “confidence building” measures that Israel and the PNA would undertake. The provision about not changing the “status” of the territories refers to the agreement that neither side would unilaterally annex the areas (or declare them an independent state). In the presence of glaring, overt, and provocative violations of every one of the Oslo Accords by the PNA almost immediately after its signing, Netanyahu’s government felt itself under no obligation to maintain the tacit informal agreement. Since the PNA was not building confidence, why should Israelcompromise its security and position for future negotiation?

   vi.      While Israel has built a total of 144 settlements in the West Bank andGaza, more than 260 new Palestinian settlements have been constructed. These are concrete (excuse the pun) testimony to the flourishing of the West Bank’s economy and the growth of Palestinian population under Israeli control (1967-94), contrary to the Arab allegations that Israel has perpetrated genocide and crippled the economy of the West Bank. By what logic would anyone suggest that these Palestinian settlements are any less a threat to negotiations or a change of status of the territories than are the Israeli ones?

Bottom line: the settlements – except for the Rogue Settlements that Israel is ready to dismantle -- o are legal.  Their growth and expansion have contributed substantively to the economic improvement of theWest Bank and the Gaza Strip. When there were no settlements in the WBGS, no territorial compromises or peace settlements were reached; and later territorial compromises and peace agreements have been reached despite the existence of settlements in the WBGS. Israel’s settlements violate no international accords.

Thus it is irrational to suggest that Israeli settlement in the WBGS prevent peace. Rather, it is the unwillingness of the PNA and Arab terrorist groups to negotiate, not the presence of settlements, that stalls the peace process and makes compromise impossible.

Part V: WHAT ABOUT UNILATERAL WITHDRAWAL?

A.     Part of the intent in creating “uvdot bashetakh” (facts in the field) was to create “bargaining chips” for future negotiations.  They are one of the things that Israel will negotiate about. That is clearly what Netanyahu and Barak had in mind when they encouraged settlement expansion following Arafat’s violations of the Oslo Accords. There is no rational justification for a one-sided curtailment of population growth when the other side maintains a state of war despite the agreement to curtail violence.

B.     The security needs that prompted the Alon Plan and Nahal settlements still exist, especially in light of the surge of terror activities sponsored openly by Hamas and at least nine other terror groups operating in Israel; and in light of many terrorist factions and Arab states that refuse to consider any peace with Israel, that continue to perpetrate Jew-hatred in media and education, and continue to promulgate the goals of Hamas and other terror groups for the total destruction of Israel.  The settlements and IDF presence in the major Arab population clusters of the West Bank reduce substantially the ability of terror groups to successfully launch their attacks.  Unilateral withdrawal enhances the ability of the terror groups to wage terror war.

C.     Any unilateral dismantling of settlements is likely to be interpreted by the PNA and terrorist leadership as a victory for terrorism.  This, in fact, is exactly what has happened following PM Sharon’s decision to unilaterally dismantle Jewish settlements in the Gaza Strip.  Terrorist spokespersons vociferously rejoice in the apparent success of their terror activity, which they claim is the real motivator for Sharon’s decision; while other PNA spokespersons level the accusation that the unilateral withdrawal from the Gaza Strip is just another Israeli deception.  According to their logic, the unilateral withdrawal, instead of being a real concession to the Palestinian demand for national self-determination, is actually aimed at distracting the world and the Palestinian leadership so that Sharon can strengthen his hold on the West Bank and continue to expand Jewish settlement there. They argue that Sharon can now claim that Gilo, Jewish Hebron and the Gush Etzion areas are non-negotiable since Israel has given up so much in the Gaza Strip.  In other words, Sharon’s unilateral gesture has backfired very badly precisely because it is not part of a negotiation process.

D.     Netanyahu abandoned any thought of a settlement freeze after Oslo because the PNA made clear its intent to disregard Oslo and pursue a policy of unrelenting terror war. It is believed by some that part of his purpose in creating more settlements was to send Arafat a clear signal: ‘if you keep doing your anti-Oslo stuff, the area that you are likely to end up with as a Palestinian state is going to get smaller and smaller’. Sounds logical, especially since a military response may have been justified but would have caused world outrage. It didn’t work, even though a number of Palestinian intellectuals and political leaders (most notably, Elyas Freij, mayor of Bethlehem, quoted in the Washington Post in l991) publicly advocated negotiation because the growth of Israeli settlements in the West Bank made it clear that “time is on Israel’s side now”.

It did not work, probably, because Arafat never intended to negotiate. He always intended to perpetrate his long-dreamed final solution of the total destruction of Israel.  In his 90-minute cell-phone speech to a Lebanese PLO radio station on 4.14.2002 (from his bedroom of the Muqat’a which Israel had surrounded and partially destroyed in Operation Defensive Shield) he outlined his strategy. With the help of other Arab states, with the success of Arab propaganda to gradually weaken Israel’s legitimacy in the eyes of the world such that UN forces could be deployed to assist the Palestinians and impede the Israelis in a future battle, and with Israel’s only foul-weather friend (USA) having moral and political difficulty providing assistance to what was now defined as a renegade or rogue nation, the terror armies and their allies could use the West Bank as a launching pad for the great final Jihad against Israel.  Arafat’s intent as expressed in that speech has been corroborated by the Israeli destruction of major arms smuggling networks handling hundreds of tons of illegal (per Oslo) weaponry and munitions since 2001 (most recently the 50 tons of weapons on the Karine A and the scores of smuggling tunnels from Sinai to the Gaza Strip).

Bottom line: There is no rational justification for a one-sided settlement compromise when the other side maintains a state of war. Unilateral withdrawal enhances the ability of the terrorists to wage terror war.Sharon’s unilateral gesture backfired precisely because it was not part of a negotiation process.  In light of the unrelenting and vociferously ballyhooed commitment of terror groups, and Abbas’ frequent public statements commending the terror groups, defining their casualties as martyrs, and vowing to never use force against them, it is irrational to suggest that further Israeli concessions will generate a Palestinian willingness to reciprocate.  In fact, the opposite has happened.  The failure of Camp David 2 was due in large part to Arafat’s strategy of pocketing Barak’s concessions, making no substantive concessions in return, and then demanding more from Barak.

CONCLUSION:

Most Israeli settlements in the WBGS are legal and violate no international laws or relevant UN resolutions.  Most do not involve the theft of any Palestinian land. The settlement movement as part ofIsrael’s economic development of the WBGS after the Six Day War has provided enormous benefit to the Arabs of those areas and has enabled a tripling of Arab population and a skyrocketing West Bank economy, until the onset of Arafat’s rule. Settlements do not create stumbling blocks to peace or hindrances to peace negotiations. They can be, and have been, dismantled in the context of negotiations with an honest peace partner. Concessions about settlements should be made only in the context of negotiations, which can begin only after Palestinian leadership stops the violence, ends the terror war, and ends the hate speech and hate preach and hate teach that have permeated Palestinian society since 1994.

There is no issue relating to the Israeli settlements in the WBGS that could not be settled honorably to mutual satisfaction at the negotiating table between honest peace partners negotiating in good faith. The question of settlements is a matter for final status negotiations.

The simple fact is that no sovereign state would ever be expected to do otherwise.

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