A guest post by Gidon Ben-Zvi
In an August 12 article the Guardian’s Jerusalem correspondent Harriet Sherwood reported that, “In highly contentious moves heralding the renewal of Middle East peace talks this week, Israel…authorized 1,200 new homes to be built in settlements in the West Bank and East Jerusalem.”
In response, Palestinian leaders warned that continued settlement expansion could scuttle peace talks.
Evidently, if not for Israeli communities on the ‘wrong’ side of the 1949 armistice lines, peace between Israel and its Arab neighbors would have broken out decades ago. And if large swaths of the “international community” evidently deem the territories seized by Israel during the 1967 Six Day War as illegally occupied, then it must be true.
It is easy to see why such a consensus has coalesced around the perceived relationship between the Jewish State and the West Bank. When you google the term ‘settlement’, pages upon pages of news items, essays, studies and screeds – nearly all of them equating the Jewish civilian communities built on lands captured by Israel during the Six-Day War with illegal occupation – proliferate.
In her report, Sherwood asserts that, “all settlements in the Israeli-occupied West Bank and East Jerusalem are illegal under international law.” However, the term “occupied” In relation to Israel’s control of these areas has little basis in international law or history.
A petition by 1,000 international jurists arguing that Israel’s West Bank settlements are in fact legal, recently sent to EU foreign affairs chief Catherine Ashton, made the following points:
- The long-held view of the EU as to the illegality of Israel’s settlements is a misreading of the relevant provisions of international law, and specifically Article 49 of the Fourth Geneva Convention, which is neither relevant to the unique circumstances of Israel’s status in the area, nor was it ever applicable, or intended to apply to Israel’s circumstances in Judea and Samaria.
- The EU together with other international bodies has consistently ignored authoritative sources, including the 1958 official commentary by International Committee of the Red Cross, as well as the published opinions of prominent international jurists, all of which explain the provenance of Article 49 in the need to address deportations, forced migration, evacuation, displacement, and expulsion of over 40 million people by the Nazis during the Second World War. This has no relevance to Israel’s settlements in Judea and Samaria.
- The EU totally ignores the very agreement to which it is signatory as witness, the 1995 Israeli-Palestinian Interim Agreement, in which it was agreed by the parties, pending a permanent status agreement, to exercise powers and authority in the areas under their respective control. Such powers include planning, zoning and construction. The issues of settlements and Jerusalem, as agreed upon between the parties, are negotiating issues, and hence, determinations by the EU undermine the negotiating process and run against the EU’s status as signatory.
- The legality of Israel’s presence in the area stems from the historic, indigenous and legal rights of the Jewish people to settle in the area, as granted in valid and binding international legal instruments recognized and accepted by the international community. These rights cannot be denied or placed in question. This includes the 1922 San Remo Declaration unanimously adopted by the League of Nations, affirming the establishment of a national home for the Jewish People in the historical area of the Land of Israel (including the areas of Judea and Samaria and Jerusalem) as well as close Jewish settlement throughout. This was subsequently affirmed internationally in the League of Nations Mandate Instrument, and accorded continued validity, up to the present day, by Article 80 of the UN Charter which reaffirmed the validity of the rights granted to all states or peoples, or already existing international instruments (including those adopted by the League of Nations).
- The inference regarding Israel’s borders as recognized by the EU is no less misguided and historically and legally wrong. The pre-1967 Armistice lines (so-called “green” line) were never considered to be borders. UN Security Council resolution 242 (1967), endorsed by the European members of the Council, called for “secure and recognized boundaries” to replace the pre-1967 Armistice lines. The European leaders further endorsed this principle in their 1980 Venice Declaration. By its persistence in referring to the pre-1967 lines, the EU is undermining future negotiation on this issue by pre-determining its outcome.
- In a similar vein, the repeated use by the EU of the term “occupied Arab” or “Palestinian territories” to refer to the area of Judea and Samaria, has no basis in law or fact. The area has never been determined as such, and thus the continued EU usage of the term runs against the very concept of negotiations to resolve the dispute regarding these areas, supported by the EU, to determine their permanent status.
And, leaving aside the legal basis for the settlements for a moment, while the geopolitical situation between Israel and the Palestinians is undeniably tense, it is also remarkably ordinary when perceived through a wider, global lens – especially when you glance at the long list of disputed territories around the world which has somehow eluded the attention of the ‘international community’.
Furthermore, the actual area inside the West Bank that’s being bickered over is much smaller than popularly understood. Built-up Jewish settlements account for a tiny fraction of the disputed territories. An estimated 70 percent of the settlers live in what are in effect suburbs of major Israeli cities such as Jerusalem. These are areas that virtually the entire Jewish population believes Israel must retain to ensure its security.
Probably the only net benefit to be reaped from the Oslo Accords is that their failure clarified what the true obstacle to peace between Israel and the Palestinians is and has always been. It is not the territories, nor the settlements, nor the settlers – but the very existence of Israel. Recent history confirms this Arab intransigence: from 1949–67, when Jews were forbidden to live in the West Bank and “East” Jerusalem, the Arabs nonetheless refused to make peace with the “Zionist Entity”.
If it is not the settlements, then what is the true reason for this 45-year-old stalemate? While there are no easy answers, allowing the Jewish population in the territories to grow could arguably even serve as a catalyst for negotiations since the Palestinians would quickly realize that time is on the side of an Israel that is building settlements and creating facts on the ground.
Realizing this, Israel’s peace partners may finally acknowledge that the only way out of its dilemma is face-to-face negotiations, without preconditions such as the demand (met by Israel) to release Palestinian prisoners convicted of murder, attempted murder, or being an accessory to murder - many of whom identify with terrorist movements which reject peace with the Jewish state under any terms.
Ultimately, the disposition of settlements is a matter for final status negotiations. While one may legitimately support or challenge Israeli settlements in the disputed territories, they are not illegal, and demonizing Jews who live in communities across the green line is certainly not moral and does not help the peace process.
Harriet Sherwood’s ‘obstacles to peace’ have neither the size, population, nor placement to have a serious impact on sincere efforts to reach a comprehensive agreement on all issues related to the disputed territories.