By MAURICE OSTROFF
The international brouhaha generated by the decision to build 900 houses in the Gilo suburb of Jerusalem points to the imperative need to reach a common definition of the word "settlement" in relation to Israel. The anger expressed by the White House and echoed by the EU and even China, obviously stems from the impulsive conclusion that Gilo is a settlement, no different from the outposts in remote areas of the West Bank. To quote the bard, therein lies the rub.
The $64,000 question then, is
whether Gilo is in fact a settlement and if so, what type of settlement it is. To all who prefer to analyze a situation before arriving at a conclusion it is important to look at the facts in context.
The Oxford English dictionary defines a settlement as "newly settled tract of country, or a colony," but according to the BBC, a settlement is merely a place where people live; as small as an individual house or as large as a city. Since a settlement also refers in law, to reaching agreement by parties to a dispute, one may hope that agreeing on a commonly acceptable definition of this inflammatory word may possibly contribute to "settlement" of the Arab-Israeli conflict.
THE REALITY is that Gilo is very different than the outposts in the West Bank. It is not in east Jerusalem as widely reported. It is a Jerusalem neighborhood with a population of around 40,000. The ground was bought by Jews before WWII and settled in 1971 in south west Jerusalem opposite Mount Gilo within the municipal borders. There is no inference whatsoever that it rests on Arab land.
The current building approval was not a deliberately provocative political decision by Binyamin Netanyahu as reported in some media. The plan was initiated a long time ago by the Israel Land Administration. Since Gilo is an integral part of the city, the approval was given by Jerusalem's Construction and Planning Committee and, as Jerusalem mayor Nir Barkat said in a statement released by his office, "Israeli law does not discriminate between Arabs and Jews, or between east and west of the city. The demand to cease construction just for Jews is illegal, as in the US and any other enlightened place in the world. The Jerusalem Municipality will continue to enable construction in every part of the city for Jews and Arabs alike."
Ironically, Netanyahu has gone further than any previous Israeli prime minister. While continuing the policy of previous governments in refusing to consider a construction freeze in Jerusalem he unexpectedly did agree to halt construction in the West Bank during negotiations with the Palestinians.
Secretary of State, Hillary Clinton, surprised the world and angered some, by recognizing Netanyahu's departure from the stance of previous governments and praising his offer as "unprecedented." She was indeed very perceptive in recognizing the extent of Netanyahu's compliance with the demands of the White House.
According to a November 19 report, a cabinet minister told Ha'aretz that Netanyahu has entirely frozen building in the settlements. Ever since this government was established in April, not a single tender has been issued or plan approved, not even in east Jerusalem. And this has been done by a cabinet including ministers considered to be extreme right wingers like Bennie Begin, Moshe Ya'alon, Avigdor Lieberman, Uzi Landau and Eli Yishai. "Yet," the minister said, "Bibi is getting clobbered, relentlessly".
In his video message to the November 8 Rabin Rally in Tel Aviv, US President Barack Obama urged Israel to pursue Rabin's legacy. It is therefore relevant to recall that Rabin had no intention of returning to the 1967 lines. In his last speech to the Knesset on October 5, 1995, Rabin said "The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the 4 June 1967 lines....First and foremost, united Jerusalem - which will include both Ma'aleh Adumim and Givat Ze'ev - as the capital of Israel, under Israeli sovereignty, while preserving the rights of the members of the other faiths, Christianity and Islam, to freedom of access and freedom of worship in their holy places, according to the customs of their faiths...."
AS THE Western Wall, Ramat Eshkol, French Hill, Pisgat Ze'ev, and Mount Scopus are all beyond the Green Line, it important to consider its significance realistically. The Green line is not an international border. It refers only to the 1949 Armistice lines established after the 1948 Arab-Israeli War. Its name is derived from the green ink used to draw the line on the map. Nor is it fixed, as explained by Justice Stephen M. Schwebel, who spent 19 years as a judge of the International Court of Justice at The Hague, including three years as President. He wrote "...modifications of the 1949 armistice lines among those States within former Palestinian territory are lawful (if not necessarily desirable), whether those modifications are, in Secretary Rogers's words, "insubstantial alterations required for mutual security" or more substantial alterations - such as recognition of Israeli sovereignty over the whole of Jerusalem.." And in a footnote he added "It should be added that the armistice agreements of 1949 expressly preserved the territorial claims of all parties and did not purport to establish definitive boundaries between them".
The Palestinians never had sovereignty over the West Bank nor east Jerusalem and Justice Schwebel concluded that since Jordan, the prior holder of these territories had seized that territory unlawfully in 1948, Israel which subsequently took that territory in the lawful exercise of self-defense in 1967, has better title to it. Jordan's illegal annexation of the West bank and east Jerusalem in 1948 was recognized only by Britain and Pakistan and Jordan now makes no claim to it.
In terms of international law, between 1948 and 1967 this territory was terra nullius, or "land belonging to no one" over which sovereignty may be acquired through occupation. The concept of terra nullius is well recognized in international law. For example it has been a major issue in Australian politics and Norway occupied parts of uninhabited Eastern Greenland in the 1920s on the grounds of terra nullius.
As east Jerusalem came into Israel's possession in the course of a defensive war, Israel was entitled to annex it and create a united Jerusalem. Consequently, the Jerusalem City Council has jurisdiction over building approvals for Jewish and Arab residence in any part of the city.
It is highly relevant that the Oslo Accords do not require any freeze of building activity and even the road map which was never formally ratified, speaks only of dismantling "outposts" erected since March 2001, a far cry from Gilo, that has been a residential suburb of Jerusalem since 1971.
In proposing solutions towards achieving two states, co-existing in peace and security, impractical slogans like 'evacuate the settlements' should be discarded because of their vagueness and replaced by a pragmatic call for territorial compromise taking the above realities into account.
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