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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.
King Hussein ignored the warning and launched an infantry invasion of Jewish
Jerusalem. It was only then that Israel responded with its own 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 beyond the Suez Canal, although its forces
could have advanced almost unopposed to Cairo. It did not cross the Jordan
River, although the Jordan Legion was in disarray, as some troops had 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
a crucial point in regard to the issue of Israeli settlements in and sovereignty
over the West Bank and Gaza Strip. International law is very clear. Had Israel
been the aggressor, its 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. The legal disposition of territories conquered
in a defensive war can be determined only by a peace treaty between the
belligerents. If such a peace treaty is absent, 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. In fact Israel’s sovereignty over
the West Bank and Gaza Strip was beneficial, as we shall see, until their
administration was turned over to the Palestinian Authority under the Oslo
Agreements.
Immediately after the war, Israel offered to return conquered territory
in exchange for a formal peace. The Arab nations rejected this offer, as
they rejected similar offers after the previous Arab-initiated wars. Israel
could legally have annexed all 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 exactly this with Egypt, returning all of Sinai at the
Camp David I accords in 1979. In these accords Egyptian leader Anwar es-Sadat
refused to accept the Gaza Strip back, preferring that the Palestinians who
lived there 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 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 1967 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 leaders 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 and again in 2000 been amenable to peace with Israel, there would
never have been a continued Israeli sovereignty over the disputed territories
of the West Bank and Gaza.
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.
THE SETTLEMENTS 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 of East Jerusalem); C. Expanding suburbs of Israeli
cities on or near the “Green Line;” D. Settlements unrelated to
the previous three types; E. Illegal rogue settlements
A. 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.
B. Settlements of Jews Returning To Their Pre-1948 Homes
Settlement of civilian Israelis in the West Bank began shortly after the
1967 war, with a small group of Orthodox Jews setting up a few households
in the former Jewish section of Hebron, followed by a 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
ago, 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 mobs of Arab irregulars had massacred most of the Jews of these villages
during the 1948 war, the return of Israelis to these sites created additional
Type B settlements.
C: Settlements Expanding Suburbs of Israeli Cities On Or Near The
“Green Line”
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,
Arafat declared that sale of land to Jews was a capital offense; and 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 1948-1967 phenomenon of a “Jerusalem
Corridor” (where Jerusalem was surrounded on three-and-a-half 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 hilltop site to the municipality of Jerusalem in 1974.
D: Settlements Unrelated to the Previous Three Types
Over time, religious and right wing political pressure supported the
creation of settlements elsewhere in the West Bank and Gaza. 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 Shechem).
Arab spokespersons claim that these settlements, some of which were
built well inside the West Bank or Gaza 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’ on 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 Type D settlements to be developed
was productive in the context of Israel’s long-term goal of achieving
peace. 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 useful
as bagaining chips in future negotiations.
E: Illegal Rogue Settlements Illegal Rogue Settlements were
set up by break-away settlers, 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 mostly 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 rogue sites; and it is almost
exclusively this type of settlement on the West Bank that Prime Minister
Sharon has considered dismantling even before peace negotiations with the
Palestinian Authority.
The Legality of the Settlements 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 Orwellian “doublespeak”. It is precisely international
law, the Geneva Convention, and relevant UN resolutions that define these
settlements as legal.
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 territories 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 potentially hostile. Moreover, Israel never
exiled any Arabs from anywhere in the territories (except in 1992 when it
deported about 400 terrorists to south Lebanon in an attempt to stop terror
activities).
On the contrary, because of Israel’s policies of ‘open
bridges’ across the Jordan (although 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 on 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.
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, 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.
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 Nahal settlements (for military reasons) are legal according to
international law.
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 recaptures the
land from which they were driven out. Thus the return of Jews to Hebron,
Gush Etzion, and the Jewish Quarter is also legal under international law.
UN Resolution 242 (November 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 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 (C) is also legal.
Type D Settlements are more complex. Nothing in the Geneva Convention
prohibits voluntary development of the disputed territories.
What is prohibited is forced deportations and organized displacement
of original populace by a forced settlement of the conquering population.
So, to the degree that settlements of Type D 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,
these Type D settlements are legal. Moreover, since the West Bank and Gaza
were never legally part of any sovereign nation (they were part of British
Mandatory Palestine till 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 1967 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 Type D settlements, although legal according to the Fourth Geneva Convention
and relevant UN resolutions, may be in a gray area morally.
Rogue settlements (Type E) are palpably illegal. Israeli government
officials have referred to them as “rogue” settlements, IDF forces
have dismantled some, and Prime Minister Sharon has targeted some for a similar
fate.
Impact of Settlements On Arab Population
The impact of Israeli settlements (excluding rogue settlements) has
been almost exactly the opposite of what the Arab propaganda claims.
It is important to note that from 1967 to 1992, 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 20th century medical care available.
Telephone and radio technology was upgraded to 20th 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 West Bank and Gaza Strip
more than tripled from 1967 to 1994, with an Arab population of about 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 teachertraining 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 4 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 roadblocks
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). West Bank and Gaza Strip 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 Palestinian National
Authority, that the economies of the West Bank and Gaza Strip have been crippled
and the lives of the Palestinians wrecked by the Authority’s despotic
and terrorist rule. The West 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 West Bank
and Gaza Strip destinations without exposing themselves to terrorist attacks.
In sum, until Arafat began his terror war, the growth of the Israeli
population in the West Bank and Gaza, and the expansion of Israeli villages
and towns in those territories, was highly beneficial economically for the
West Bank and Gaza 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 West Bank and Gaza.
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