The illegal settlement mantra

What if the settlements are actually not illegal?

By ROBERT HORENSTEIN
The Gevaot outpost near Bethlehem, in the West Bank (photo credit: REUTERS/BAZ RATNER)
The Gevaot outpost near Bethlehem, in the West Bank
(photo credit: REUTERS/BAZ RATNER)
WE LIVE in a world where if something is repeated often enough, regardless of its accuracy, it becomes “fact.” So it is with the widely held notion that all of the Israeli settlements built beyond the 1949 armistice lines are “illegal” under international law.
This “illegal settlement” mantra is the cornerstone of the Boycott, Divestment and Sanctions (BDS) campaign to portray Israel as a pariah state occupying another people’s land.
According to BDS, Israel has defied international law by establishing communities in East Jerusalem and the West Bank, even in areas where Jews once lived before being driven out by force. In contrast, BDS proponents don’t hesitate to claim a “right of return” for Palestinians to places where they lived before 1948 in what is now Israel.
Last November, predictably, the UN General Assembly adopted yet another non-binding resolution reaffirming the “illegal” status of the Israeli settlements “in the Occupied Palestinian Territory, including East Jerusalem.” And in late June, the Palestinian Authority submitted files on Jewish settlement activity to the International Criminal Court in The Hague as part of a wider legal case against Israel.
To be sure, most of the world agrees with the Palestinian position, from the so-called UN Human Rights Council and European Union to mainline Protestant church bodies and academic associations – and even some Jewish groups.
Whereas US President Barack Obama and his Secretary of State John Kerry have repeatedly declared the settlements to be “illegitimate,” for J Street, the left-wing Jewish lobby, that doesn’t go far enough. The group is urging the Obama administration to define the settlements as “illegal” and thereby refrain from vetoing future UN Security Council resolutions condemning settlement expansion.
But what if, despite the endless repetition to the contrary, the settlements are actually not illegal? And if, in fact, they are legal, how would that affect the prospects for a two-state solution? Although one could reasonably argue that Israeli settlement activity is politically unwise and needlessly provocative, that doesn’t equate to unlawful. Those who claim the settlements are illegal mistakenly refer to Article 49 of the 1949 Fourth Geneva Convention, which states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
This clause, however, was intended to prevent the type of atrocity that had occurred during the Holocaust: the forced transfer of large numbers of Jews by Nazi Germany to the death camps. With respect to the settlements, Israelis aren’t being transferred involuntarily to the West Bank, nor are Palestinians being deported from there.
The only international law that is both germane to the settlements and binding is the League of Nations Mandate for Palestine, which was adopted unanimously in 1922. The Mandate recognizes “the historical connection of the Jewish people with Palestine” as the basis for “reconstituting their national home in that country.” Article 6 explicitly directs the British mandatory authorities to facilitate “close settlement by Jews on the land…” There’s no debating that the “land” referred to in Article 6 includes Judea and Samaria, later renamed the “West Bank” by Jordan.
Notably, the rights derived from the Mandate have never been superseded and are therefore still in force.
It’s unfortunate that the international community continues to consider the settlements – even east Jerusalem’s Jewish neighborhoods – as categorically illegal, because this stance renders the twostate solution that much more difficult to achieve. Since the conflict is viewed (erroneously) as an open-and-shut legal dispute in which Israel is violating the law by building on occupied Palestinian land, the only “just” resolution is an Israeli withdrawal from every inch of territory captured from Jordan in the Six Day War. With the burden on Israel alone to make painful concessions, what incentive is there for the Palestinians to abandon their “lawfare” strategy and negotiate in good faith? On the other hand, if it were widely understood that this is a political dispute in which two peoples have equal legal claims over the same land, not only would it take some of the steam out of the BDS movement, it would also make clear that peace can only be achieved through direct talks between the parties.
A sensible US policy would be one that encourages Israel to stop building in areas that are unlikely to remain part of Israel under a permanent accord, while acknowledging that the settlements do not violate international law and that their future status must be decided at the negotiating table. Perhaps then, the Palestinians will begin to disabuse themselves of the notion that they can avoid having to compromise.
Robert Horenstein is Community Relations Director of the Jewish Federation of Greater Portland, Oregon