Institute for Contemporary Affairs founded jointly with the Wechsler Family
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JERUSALEM ISSUE BRIEF
Vol. 2, No. 16 19 January 2003

Diplomatic and Legal Aspects of the Settlement Issue
Jeffrey Helmreich

One may legitimately support or challenge Israeli settlements in the
disputed territories, but they are not illegal, and they have neither the
size, the population, nor the placement to seriously impact upon the future
status of the disputed territories and their Palestinian population centers.

The outbreak of the Al Aqsa Intifada in the fall of 2000 began to erode the
orthodoxy that settlements were driving Palestinian anger and blocking
peace. New York Times foreign affairs analyst Thomas L. Friedman wrote in
October 2000: "This war is sick but it has exposed some basic truths." In
particular, Friedman wrote, "To think that the Palestinians are only enraged
about settlements is also fatuous nonsense. Talk to the 15-year-olds. Their
grievance is not just with Israeli settlements, but with Israel. Most
Palestinians simply do not accept that the Jews have any authentic right to
be here. For this reason, any Palestinian state that comes into being should
never be permitted to have any heavy weapons, because if the Palestinian had
them today, their extremists would be using them on Tel Aviv."

In recent months, however, the settlements have re-emerged as an explanation
for the failure of nearly every ceasefire and diplomatic effort to quell the
conflict. The Mitchell Report in 2001 and recent remarks by visiting U.S.
senators have raised the question of settlements (though not directly
blaming them for the conflict), and the UN General Assembly concluded its
2002 session with over 15 agenda items condemning "illegal" Israeli
settlements. Settlements have also become a focal point in the Quartet's
December 2002 "road map."

In fact, since their establishment nearly three decades ago, settlements
have been the cause celebre of critics seeking to attribute the persistence
of the conflict to Israeli policy. The criticism falls into two categories:
moral/political arguments that settlements are "obstacles to peace," and
legal claims that settlements are illegitimate or a violation of
international norms. The pervasiveness of these claims masks the fact that,
upon closer scrutiny, they are false, and they hide the true source of
grievances and ideological fervor that fuel this conflict.

An Obstacle to Peace?

Settlements make up less than 2 percent of the West Bank. According to Peace
Now, which opposes Israeli settlement in the territories, the built-up areas
of the settlements take up only 1.36 percent of the West Bank (Foreign
Affairs, March/April 2000). B'Tselem, an Israeli human rights watchdog
group, places the figure slightly higher, at 1.7 percent. The much larger
numbers often used to describe the land comprising Israeli settlements are
reached only by including roads and adjacent areas, as well as land between
settlements or between settlements and roads, nearly all of which is
unpopulated. In truth, settlements simply do not comprise enough land to be
serious obstacles to any political or geographic eventuality in the area, be
it a Palestinian state or a continuation of the Oslo process.

Settlements do not block the eventual establishment of a contiguous
Palestinian entity. Some critics charge that settlements prevent peace by
blocking the potential for a contiguous Palestinian state in the West Bank,
which is proposed in most peace plans. This claim ignores certain basic
realities.

The settlers would not block a peace agreement. Most Jews living in the West
Bank express a deep love of the land and an attachment borne over two
millennia when Jews yearned, prayed, and at times sought to return to their
ancestral homeland. This natural bond has led to the view, popular in some
Western circles, that these Jews prefer land to life, and would sacrifice
the blood of Palestinians and fellow Jews on the alter of their biblical
vision. This image -- while dramatic and a neat counterpart to the image of
Islamic fundamentalism -- is simply untrue of the settlers today.

A majority of the settlers have already indicated a willingness to relocate
if a final agreement should require it, according to a poll taken by Peace
Now (Agence France Presse, July 31, 2002). Even if such polls are disputed
by opponents of Peace Now, such data indicates a far more pragmatic approach
on the part of large numbers of settlers than has been allowed them by their
critics.

Recall that the residents of Yamit in the Sinai were relocated as a result
of the peace agreement with Egypt. Thousands of Israelis were involved in
this operation. The Yamit community was removed by none other than Israel's
Prime Minister Ariel Sharon when he served as minister of defense in the
second Begin government.

The overwhelming majority of settlers, close to 80 percent, live in
communities such as Elkana, Maale Adumim, Betar, and Gush Etzion, located
close to, if not contiguous with, pre-1967 Israel, and which can be
connected geographically to the "Green Line" without involving Palestinian
population centers. For separate reasons, the settlements in the strategic
Jordan Valley do not impede the contiguity of the main Palestinian
population centers, or prevent their expansion -- the Jordan Valley is,
after all, sparsely populated by Palestinians, with the exception of
Jericho, which is today under full Palestinian control.
Most settlements are concentrated in a few areas that, for security reasons,
Israel cannot afford to cede. For example, the settlement of Ofra is located
next to Baal Hatzor, the highest point in the West Bank and the location of
the main early warning station for the Israeli air force. It was from high
points along the West Bank hill ridge that neighboring Arab armies twice
invaded Israel's low-lying heartland, in 1948 and in 1967, which was then
nine miles wide and completely exposed.
The late Prime Minister Yitzhak Rabin, architect of the Oslo Peace
agreements, coined the term "security settlements" to describe those
communities, in order to emphasize those settlements located on strategic
terrain essential to Israel's security interests. And yet, as noted above,
these areas make up barely two percent of West Bank territory and nearly all
of them do not encroach upon Palestinian population centers or block their
contiguity. Moreover, Israel cannot, in any event, afford to withdraw from
these small but strategic points even if they were entirely unpopulated.
Thus, the presence of settlements in such locations is not the reason Israel
remains in these areas.

Settlements are Not Illegal

The settlements are not located in "occupied territory." The last binding
international legal instrument which divided the territory in the region of
Israel, the West Bank, and Gaza was the League of Nations Mandate, which
explicitly recognized the right of Jewish settlement in all territory
allocated to the Jewish national home in the context of the British Mandate.
These rights under the British Mandate were preserved by the successor
organization to the League of Nations, the United Nations, under Article 49
of the UN Charter.

The West Bank and Gaza are disputed, not occupied, with both Israel and the
Palestinians exercising legitimate historical claims. There was no
Palestinian sovereignty in the West Bank and Gaza Strip prior to 1967. Jews
have a deep historic and emotional attachment to the land and, as their
legal claims are at least equal to those of Palestinians, it is natural for
Jews to build homes in communities in these areas, just as Palestinians
build in theirs.

The territory of the West Bank and Gaza Strip was captured by Israel in a
defensive war, which is a legal means to acquire territory under
international law. In fact, Israel's seizing the land in 1967 was the only
legal acquisition of the territory this century: the Jordanian occupation of
the West Bank from 1947 to 1967, by contrast, had been the result of an
offensive war in 1948 and was never recognized by the international
community, including the Arab states, with the exception of Great Britain
and Pakistan.

The Settlements are Consistent with Resolution 242

Many observers incorrectly assume that UN Security Council Resolution 242
requires a full Israeli withdrawal from the land Israel captured in the 1967
Arab-Israeli War. Some may have a hidden agenda aimed at depriving Israel of
any legal rights whatsoever in the disputed areas. In either case, they use
this misinterpretation to conclude that settlement activity is unlawful
because it perpetuates an "illegal" Israeli occupation.

The assumption and the conclusion are deeply flawed. Resolution 242 calls
for only an undefined withdrawal from a portion of the land -- and only to
the extent required by "secure and recognized boundaries." Israel has
already withdrawn from the majority of the land it had captured, and nearly
all of the areas in which it retains communities are essential to "secure
and recognized boundaries." The specific location of Israeli settlements was
determined by Israel's Ministry of Defense over the last 30 years, not by
the settlers themselves, and they were set up in order to strengthen
Israel's presence in those few areas from which it cannot, militarily,
afford to withdraw.

Settlements are Consistent with the Geneva Conventions

In three recent emergency special sessions of the UN General Assembly,
Israeli settlement was cited as a violation of the 1949 Fourth Geneva
Convention. These international humanitarian instruments, forged in the
ashes of the Holocaust to prevent future genocidal brutality and oppression,
were never invoked in 50 years until the case of condominium construction in
Jerusalem during 1998. Was such construction -- any settlement
construction -- a violation of the Geneva Convention?
No. The relevant clause, Article 49, prohibits the "occupying power" from
transferring population into the "occupied territory." Aside from the fact
that the territory is not occupied, but disputed, Morris Abrams, the U.S.
Ambassador to the UN in Geneva, had pointed out that the clause refers to
the forcible transfer of large populations. By contrast, the settlements
involve the voluntary movement of civilians. The U.S. Department of State,
accordingly, does not view Article 49 of the Fourth Geneva Convention as
applicable to settlement activity in the West Bank and Gaza Strip. For that
reason, the official U.S. position has been over the years that settlements
are legal, even though successive administrations have criticized them on
political grounds. (Only the Carter administration for a short time held
that settlements were illegal; this position was overturned by the Reagan
administration.)

Settlement Growth Never Violated Oslo

Although certain Palestinian negotiators demanded a settlement freeze, the
peace agreement ultimately reached by Israel and the Palestinians at Oslo,
along with the Interim Agreement of 1995, allow settlement growth as well as
the growth -- and creation -- of Palestinian communities in the disputed
territories. The Palestinians acquired planning and zoning rights in Area A,
while Israel retained the same rights in Area C where the settlements were
located. Indeed, their legal status was to be addressed and decided only in
the final status negotiations which, unfortunately, never took place. Until
this point is reached, settlement growth remains within the legal scope of
the Oslo Agreements.

At the October 5, 1995, session of the Knesset at which the Interim
Agreement was ratified, the late Prime Minister Yitzhak
Rabin proclaimed that we "committed ourselves before the Knesset, not to
uproot a single settlement in the framework of the interim agreement, and
not to hinder building for natural growth" (Israel Foreign Ministry,
http://www.israel-mfa.gov.il/mfa/go.asp?MFAH00te0 ). On the basis of this
understanding of Oslo II, the Knesset voted to approve the Agreement.

Conclusion

One may legitimately support or challenge Israeli settlements in the
disputed territories, but they are not illegal, and they have neither the
size, the population, nor the placement to seriously impact upon the future
status of the disputed territories and their Palestinian population centers.
* * *
Jeffrey S. Helmreich is the author of numerous articles on Israel for
American newspapers and journals.

Dore Gold, Publisher; Lenny Ben-David, ICA Program Director; Mark Ami-El,
Managing Editor. Jerusalem Center for Public Affairs (Registered Amuta), 13
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opinions expressed herein do not necessarily reflect those of the Board of
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