“Settlements”: Do they Thwart a Two State Solution?

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“All settlement growth is categorically bad and infuriating,” former US Ambassador Thomas R. Nides declared.

By that, one must assume he means the Jewish communities in Judea and Samaria. Based on the uncompromising manner the Arabs present their demands, one might assume that they won the war, not Israel. They precipitate a conflict, make explicit demands of the victor and threaten another Intifada unless Israel complies with their ultimatums. Instead of being criticized for their intransigence, Arab objurgate directives are viewed as reasonable.

Author Hillel Halkin asks what if every Israel government since 1967 had prohibited Jews from living in Judea and Samaria until a peace agreement had been signed. In the interim, Israel would have held the land in escrow for the Palestinian Arabs until they ceased fighting, and then give them the land free of Jews.

Would this have accelerated peace negotiations or tempered the PLO’s determination to obliterate the Jewish state Halkin askes? This would simply have enabled the Arabs the opportunity to pursue their goal of destroying Israel. If the Palestinian Arabs succeeded, they would say “all to the better.”

If not, they would respond “what did we lose?” Furthermore, it is quite offensive to tell Jews they can live in London, Paris, Berlin, Madrid, New York, Moscow, Mexico City or Buenos Aires, yet are prohibited from living in Judea and Samaria — the areas in the land of Israel most linked to the Bible, Jewish memory and history.

Having failed to dislodge the Israelis from Judea and Samaria using terror, Alan Baker, former Legal Adviser to Israel’s Foreign Ministry, noted that the Palestinian Arabs launched a campaign to have the UN declare Israeli settlements “illegal and constitute a major obstacle to the achievement of peace.” Though settlements are one of the subjects to be negotiated between Israel and the Palestinian Arabs in the Permanent Status negotiations, the Arab leaders purposely separated the issue of settlements as an independent “cause célèbre.”

They pursue this tactic knowing “that in their agreements, Israel had not obligated itself in any way to refrain from, halt, or freeze construction in the settlements,” Baker said. Distorting the truth about settlements has been successful Baker finds “in blocking any progress in the negotiating process, so much so that the Palestinian leadership is now holding any return to a negotiation mode as a hostage to a settlement freeze.”

The argument that once the settlements issue is resolved, a peaceful resolution of the conflict could be concluded is groundless asserted Kaled Abu Toameh. No mention is made about the homicide bombers, incitement and attempts to deny Jewish connection to the land of Israel, the Jewish refugees expelled from Arab countries or the deadly rock-throwing and fire-bombing attacks, beatings and stabbings and the failure to acknowledge Israel’s to exist.

Another Canard: Fourth Geneva Convention Relative to the Protection of Civilians (1949)

Another canard Baker points out, is that settlements violate the Fourth Geneva Convention Relative to the Protection of Civilians (1949). Baker said the text and the post-World War II conditions under which it was drafted, “indicate that it was never intended to refer to situations like Israel’s settlements. According to the International Committee of the Red Cross, Article 49 relates to situations where populations are coerced into being transferred. There is nothing to link such circumstances to Israel’s settlement policy.”

American Ambassador Morris Abram, who participated in the drafting of the Fourth Geneva Convention, agreed that the convention “was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people.”

Israel has never forcibly deported or relocated her citizens to Judea and Samaria. She has consistently allowed people to live voluntarily on land not privately owned. “The presence in these areas of Jewish settlement from Ottoman and British Mandatory times is totally unrelated to the context of, or claims regarding, the Geneva Convention,” Baker notes.

Julius Stone, a leading international legal scholar, agreed and said, “A demand that this territory be kept judenrein [free of Jews] would be a gross travesty of this legal position, turning international law on its head.”

Alan Baker added that this conflict, and especially issues with regard to Judea and Samaria are unique and sui generis, as are the agreements and memoranda signed between the Palestinian Arab leadership and the Israeli government between 1993 and 1999, which produced a special independent regime – a specialist that controls all areas including the settlements. The special regime, which is still binding, involves all the key issues: “governance, security, elections, jurisdiction, human rights and legal issues.” There is no explicit clause limiting planning, zoning and continued construction, of towns and villages, or halting such construction.

In the 1995 Interim Agreement, Baker said, the Israelis and the Palestinian Arabs decided to separate their individual jurisdictions in Judea and Samaria into areas A and B (Palestinian Arab jurisdiction) and area C (Israeli jurisdiction). The powers and responsibilities of each side were clearly delineated. Israel’s authority and obligations in Area C included all phases of her settlements—which remain in effect until the Permanent Status negotiations are concluded. The Palestinian Arabs agreed to this division, which they cannot now invoke the Geneva Convention to circumvent this agreement.

The Jewish communities have not precluded Israel and Egypt or Israel and Jordan from signing separate peace agreements, observed Nicholas Rostow, a professor at the National Defense University. Settlements on the Golan Heights also have not created an obstacle for peace between Syria and Israel. Israel has shown her willingness to make enormous sacrifices, as with their evacuation from the Gaza Strip, to hasten peace between her neighbors.

If the Jewish communities are illegal, he says, then there is less an incentive to make peace with Israel based on UN Security Council Resolution 242 (1967). Similarly, if the settlements are proclaimed legal, Israeli has less reason to compromise on lands in Judea and Samaria it needs for defense.

In 2004 the International Court of Justice declared that Israel’s settlements are illegal Rostow added. Though few UN member states consider Israeli settlements legal, there are an equal number of states that fail to interpret UN Security Council Resolution 242 of November 22, 1967 as it was envisioned.

Rostow concluded that raising the question of legality only inserts “an insoluble element to what is already an extremely difficult problem.” Instead, the focus should be to aid the Israelis and Arabs in resolving all the issues that “divide them on the basis of rights for all… but, to succeed, a solution must reflect the parties’ acceptance of the need for peace.”

Eugene Kontorovich, a legal scholar, specializing in constitutional and international law, concurs that the conflict between Israel and the Palestinian Arabs is “not an issue of occupation or legality –it is simply a border dispute that must be resolved the way all border disputes are resolved (or not.)”

Moshe Arens, who served as Israeli defense and foreign minister, said there are “So many reasons for abandoning Judea and Samaria, but If you believe in the justice of Israel’s cause, are concerned for the security of the State of Israel, and are convinced that Jews and Arabs can live together in a democratic society, you will dismiss them all.”

What is often lost in this discussion is that the Palestinian Arabs do not want Jews living in any part of their ancestral homeland. How do we know?

Article 15 of The Palestinian National Charter: Resolutions of the Palestine National Council July 1-17, 1968 states: “The liberation of Palestine, from an Arab viewpoint, is a national (qawmi) duty and it attempts to repel the Zionist and imperialist aggression against the Arab homeland, and aims at the elimination of Zionism in Palestine. Absolute responsibility for this falls upon the Arab nation – peoples and governments – with the Arab people of Palestine in the vanguard.

Accordingly, the Arab nation must mobilize all its military, human, moral, and spiritual capabilities to participate actively with the Palestinian people in the liberation of Palestine. It must, particularly in the phase of the armed Palestinian revolution, offer and furnish the Palestinian people with all possible help, and material and human support, and make available to them the means and opportunities that will enable them to continue to carry out their leading role in the armed revolution, until they liberate their homeland.”

Dr. Alex Grobman is the senior resident scholar at the John C. Danforth Society, a member of the Council of Scholars for Peace in the Middle East, and on the advisory board of The National Christian Leadership Conference of Israel (NCLCI). He lives in Jerusalem.

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