Settlements – International Law and the physical and political realities
Jan 11, 2013
Jan. 11, 2013
Number 01/13 #02
This Update features some information and argument related to the always contentious issue of Israeli West Bank settlements.
First up is noted Israeli international law expert Alan Baker looking at the arguments about the legality of the settlements. He summarises the case that they are legal in the most concise way I have yet seen. He also has a strong discussion of the relationship between the settlement question and the Oslo accords, noting that the Palestinian demand for a settlement freeze as a precondition for talks is actually a violation of Oslo, just as the recent UN decision to upgrade Palestinian status to a “non-member state” was. For this admirably brief summary of the legal arguments, CLICK HERE.
Next up is a collection of facts and background intended to refute the often-heard argument that settlement construction is destroying or rendering impossible prospects of a two-state Israeli-Palestinian resolution. It comes from Col. (res.) Shaul Arieli, an Israeli security expert, former peace negotiator and long-time advocate of a two-state resolution. Arieli makes it clear that that are no insuperable obstacles on the ground to drawing a West Bank border between Israel and a Palestinian with an annexation of perhaps 6% of the West Bank land to Israel (land housing 80% of settler and few Palestinians) in exchange for land swaps. For this important look in detail at why the claim that settlements are destroying prospects for a two-state resolution amounts to a myth, CLICK HERE. Plus, commentator Mendy Finkel notes that many of those how insist that a two-state solution is dead are making this claim only because they want it to be true, as this serves their rejectionist agenda.
Finally, academic analyst and former Israeli Ambassador to the UN Dore Gold attempts to put European outrage over Israeli construction in settlements into perspective. He notes a legally and morally far more troubling form of settlement construction on “occupied land” is occurring in the same region, and Europeans not only ignore it, but participate in it economically – in Northern Cyprus. Gold details a number of ways – in terms of international law, morality, and UN resolution – why the Cypriot case is clearly a more severe violation of the international legal norms that Europeans claim to be demanding Israeli comply with, yet is completely ignored as the EU passes resolution after resolution condemning West Bank construction, and some Europeans even purchase or develop property in northern Cyprus. For his argument in full, CLICK HERE.
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1. Upon Israel’s taking control of the area in 1967, the 1907 Hague Rules on Land Warfare and the Fourth Geneva Convention (1949) were not considered applicable to the West Bank (Judea and Samaria) territory, as the Kingdom of Jordan, prior to 1967, was never the prior legal sovereign, and in any event has since renounced any claim to sovereign rights via a vis the territory.
2. Israel, as administering power pending a negotiated final determination as to the fate of the territory, nevertheless chose to implement the humanitarian provisions of the Geneva convention and other norms of international humanitarian law in order to ensure the basic day-to-day rights of the local population as well as Israel’s own rights to protect its forces and to utilize those parts of land that were not under local private ownership.
3. Article 49 of the Fourth Geneva Convention, prohibiting the mass transfer of population into occupied territory as practiced by Germany during the second world war, was neither relevant nor was ever intended to apply to Israelis choosing to reside in Judea and Samaria.
4. Accordingly, claims by the UN, European capitals, organizations and individuals that Israeli settlement activity is in violation of international law therefore have no legal basis whatsoever.
5. Similarly, the oft-used term “occupied Palestinian territories” is totally inaccurate and false. The territories are neither occupied nor Palestinian. No legal instrument has ever determined that the Palestinians have sovereignty or that the territories belong to them
6. The territories of Judea and Samaria remain in dispute between Israel and the Palestinians, subject only to the outcome of permanent status negotiations between them.
7. The legality of the presence of Israel’s communities in the area stems from the historic, indigenous and legal rights of the Jewish people to settle in the area, granted pursuant to valid and binding international legal instruments recognized and accepted by the international community. These rights cannot be denied or placed in question.
8. The Palestinian leadership, in the still valid 1995 Interim Agreement (Oslo 2), agreed to, and accepted Israel’s continued presence in Judea and Samaria pending the outcome of the permanent status negotiations, without any restriction on either side regarding planning, zoning or construction of homes and communities. Hence, claims that Israel’s presence in the area is illegal have no basis.
9. The Palestinian leadership undertook in the Oslo Accords, to settle all outstanding issues, including borders, settlements, security, Jerusalem and refugees, by negotiation only and not through unilateral measures. The Palestinian call for a freeze on settlement activity as a precondition for returning to negotiation is a violation of the agreements.
10. Any attempt, through the UN or otherwise, to unilaterally change the status of the territory would violate Palestinian commitments set out in the Oslo Accords and prejudice the integrity and continued validity of the various agreements with Israel, thereby opening up the situation to possible reciprocal unilateral action by Israel.
Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, is former Legal Adviser to Israel’s Foreign Ministry and former Ambassador of Israel to Canada.
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Col. (res.) Shaul Arieli
• Regardless of where one stands on the wisdom or otherwise of past or future settlement construction in various parts of the West Bank, creating a border between Israel and the West Bank remains entirely possible.
• To create a border which connects the major Israeli settlement blocks in the West Bank and the East Jerusalem neighbourhoods to Israel requires annexing around 6% of the West Bank, which can be compensated with 1:1 land swaps.
• The continuing viability of partition from an Israeli perspective is enhanced by the fact that:
- Most Israeli settlers are concentrated in blocks;
- The Israeli settlement presence beyond the blocks is limited;
- Most working settlers are employed inside Israel;
- Israeli settlements use largely distinct infrastructure from West Bank Palestinians;
- Many settlers would be motivated to seek their future within the Green Line if government subsidies were removed from the settlements;
- The number of new homes currently planned for construction within Israel is 20 times the number of households that might need to be relocated.
- The picture outlined here of the demographic and settlement reality in the West Bank shows that the real difficulty in implementing the idea of partition is not physical but political.
Ever since the 1937 Peel Commission, the only viable solution to the Israeli-Palestinian conflict has been based on the idea of separating the territory into distinct Jewish and Arab states. As the Peel report stated, it is ‘a struggle between two national movements with valid claims, that cannot be settled together … other than by partition.’
Over time, this idea developed into the form of ‘two states for two peoples,’ with negotiations between Israel and the PLO over the past two decades establishing the pre-1967 lines as the basis for a territorial agreement with land swaps on a ratio of 1:1. Turning this idea into a reality requires first and foremost political support from both sides, but physical feasibility is also necessary. This means that the cost of implementing what is agreed should be practically manageable, particularly in social and economic terms.
An increasing number of people, from various political perspectives, are asserting that it is becoming geographically unviable to create a separation between Israel and the West Bank, if it has not become so already. The reason given is that Israeli settlement construction has reached a point that it is no longer possible to create a border between Jewish and Palestinian population centres.
Among the proponents of this case are opponents of the two-state solution, whether from the Israeli right, or from the international anti-Zionist left, who want to force the idea of creating a separate Palestinian state alongside Israel off the agenda. Those on the Israeli right who are opposed to a two-state solution want to claim that the Israeli settlement enterprise in the West Bank has made the idea of two countries meaningless, to support their case that Israeli sovereignty should be imposed on some or all of the West Bank. The anti-Zionist left argues with increasing confidence that the two-state solution is dead and only the so-called ‘one state solution’ remains feasible.
At times, a comparable claim is made by those who believe and hope for a two-state solution to the conflict, and who express concerns that there is a window of opportunity for implementing this whichwill soon close. British Foreign Secretary William Hague said recently, ‘If progress on negotiations is not made next year, then the two-state solution could become impossible to achieve.’
It is true that the construction of settlements over the years has complicated the issue of drawing a border and undermines confidence in Israel’s intentions. At the same time, it is important for all those who believe that advancing a two-state solution is in the interests of both Israelis and Palestinians, to challenge the claim that the possibility for creating a border has almost closed.
SETTLERS CONCENTRATED IN BLOCKS
Civilian Israeli presence over the Green Line is mainly concentrated in neighbourhoods of East Jerusalem and a small number of settlement blocks in the West Bank. In East Jerusalem there are 12 Jewish neighbourhoods with some 200,000 Israelis, representing 40% of the 530,000 Israelis living over the Green Line. It is beyond the scope of the paper to address Jerusalem in detail, or the sensitive issue of the proposed E-1 development between Jerusalem and Maale Adumim. Suffice to say that as it stands, it remains entirely feasible to divide Jerusalem along the lines of the Clinton Parameters, under which Jewish neighbourhoods would stay part of Israel and Arab neighbourhoods would come under Palestinian sovereignty.
In the West Bank, the settlement enterprise has created a scattered network of 124 settlements and dozens of unauthorised outposts. However, the Israeli West Bank settlements, with 330,000 residents, have not achieved Jewish dominance across the territory. The Jewish population of the West Bank is just 12%, and the built-up area of the settlements covers just 1% of the West Bank (1.9% including East Jerusalem neighbourhoods).
Some 80 per cent of the settlers (excluding East Jerusalem) live in settlement blocs, where they represent 95 per cent of the total population. The
blocks include the three largest Jewish towns — Modi’in Illit, Beitar Illit and Ma’ale Adumim — each of which has 40,000 residents or more. Also within the blocs there are another 15 smaller communities with up to 10,000 residents each, such as Efrat and Alfei Menashe, and two that are larger than this — Ariel (18,000) and Givat Ze’ev (13,000). The majority of the population in the blocs are either ultra-Orthodox or secular Israelis. The main reason for living in the West Bank among both these populations is economic, since housing in West Bank settlements is cheaper. To create a border which connects these major settlement blocks and the East Jerusalem neighbourhoods to Israel requires annexing around 6% of the West Bank, which can be compensated with 1:1 land swaps.
LIMITED SETTLER PRESENCE BEYOND THE BLOCKS
For the 20 per cent of the settlers who live outside the blocks the picture is completely reversed.
Most of the settlements outside the settlement blocs have fewer than 2000 residents each. In many of them, the number is no more than a few dozen families. The large majority belong to the national religious sector of Israeli society who built their settlements as part of the ‘Gush Emunim’ (‘Block of the faithful’) ideological movement. These communities established themselves beyond the areas Israeli governments mainly wanted to settle (the Jordan Valley, the ‘Jerusalem envelope’, and along the Green Line), with the conscious intention of breaking up Palestinian contiguity and preventing the establishment of a viable Palestinian state. Many of these settlements are located along the central mountain ridge (‘Gav HaHar’) on Route 60, which is the main traffic axis from north to south for Palestinians.
But despite the efforts of these groups, in the area of the West Bank beyond the separation barrier and the main settlement blocks there is clear Palestinian dominance in terms of population. Israeli settlers represent just 2.6% of the total population of the West Bank outside the blocks. The built-up area of the settlements outside the blocks is less than 0.4% of the area of the West Bank and is 17 times smaller than the built-up area of the Palestinian villages and towns. For example, in the northern part of the West Bank, in the area between Nablus and Jenin, which is four times greater than the Gaza Strip, there is no Israeli presence at all aside from seven tiny settlements.
SETTLERS LARGELY EMPLOYED IN ISRAEL
Israeli settlements are largely urban and residential, rather than agricultural. Some 93% of Israeli construction in the West Bank is for residential purposes, and 105 of the 124 settlements are urban, without industrial or agricultural areas. One third of the settler population is ultra-Orthodox, living in the two largest Jewish towns in the West Bank — Modi’in Illit (54,000) and Beitar Illit (40,000). Both towns are located close to the Green Line, and many of their residents do not participate in the Israeli labour market.
In the 14 Israeli industrial areas in the West Bank, most of them are small in scale and the majority of employees are Palestinians. The flourishing agriculture in the Jordan Valley, which generates NIS 0.5 billion a year (£80m), covers only 40 square kilometres, or just 0.6% of the West Bank. The land is worked by around 700 households, and almost 95% of its employees are Palestinians.
This means that most of the working Israeli settlers living in the West Bank are actually employed in Israel, and therefore would not have to change their place of employment if they were required to evacuate when a permanent agreement is signed.
The Israeli settlement enterprise is not integrated with Arab population centres in the West Bank. Like the IDF’s military posts, the settlements are located on hilltops, and not on the slopes like the Arab villages. They are supported by a separate network of roads originally established for the emergency movement of IDF forces from West to East, which over time have become fast roads for the benefit of Israelis. The settlements have separate water and electricity infrastructures, and are protected in part by the separation barrier, which creates a situation
whereby the settlements to the west of it are already connected to Israel.
Israelis who do not live in the West Bank use only 293 km (10%) of the West Bank’s roads outside the blocs (for example, Route 90 which runs up the Jordan Valley and Route 443 which connects Jerusalem to Tel Aviv). Israelis who live in the West Bank travel on an additional 19% of the roads, most of them access roads to their homes. The remaining 71% of West Bank roads are used only by Palestinians. On the other hand, within the settlement blocs, 83% of the roads are in use by Israelis.
Maintaining the security of the settlements in the West Bank also requires several layers of protection:
- The first — for the settlement: A peripheral fence, patrol route, watchtowers, observation devices, security squad, call center, distress buttons, electric gate, emergency road etc.
- The second — for Israelis on the roads: reinforced buses and escort vehicles for suppliers and service providers.
- The third — for separating traffic: A network of obstacles, barriers, gates and checkpoints.
- And the fourth, and most costly, the separation barrier: Though not completed, the final planned route, designed to include the maximum number of settlements, is 815 km, at a cost of NIS 15 million per kilometre.
This is therefore an existing situation in which Israelis in the West Bank use distinct infrastructure, meaning there is a de facto separation of the fabric of Israeli and Palestinian life in the West Bank.
In order to encourage settlers to move east of the Green Line, the Israeli Government guarantees their well-being. The per-capita budget transferred to local authorities in the West Bank is more than double that of the general Israeli population. Settlements in the West Bank are also among those areas considered by the Israeli government to be ‘priority areas’, meaning that their residents are entitled to mortgage subsidies when buying an apartment. The government also subsidises the development of construction projects and land purchase and provides additional benefits in spheres such as education and health.
This array of subsidies is one of the central reasons for 70% of Israelis who live over the Green Line. A change in this costly government policy, even without an agreement, would motivate many to seek their future within the Green Line.
In the framework of an agreement, based on the Palestinian and Israeli proposals presented in the negotiations at Taba in January 2001 and during the Annapolis process in 2008, the number of households that would have to be absorbed back into Israel would be between 20,000 (Israeli proposal) and 30,000 (Palestinian proposal). With the right preparation, there will be no difficulty absorbing them within Israel’s borders. Israel has in any case a fast growing population and the planned inventory of new housing units in Israel today is more than 20 times the anticipated number who would have to relocate from the West Bank.
The picture outlined here of the demographic and settlement reality in the West Bank shows that the real difficulty in implementing the idea of partition is not physical but political. Given that fact, public opinion and decision-makers in Israel and around the world should refocus public debate around dividing the territory between Israelis and Palestinians based on the pre-1967 lines, which remain the only viable solution.
What was written in the 1947 UN Partition Commission report remains true today: ‘Only through partition can these two conflicting national aspirations attain tangible expression and enable the two peoples to take their places as independent nations in the international community and the United Nations.’
Col. (res.) Shaul Arieli is one of Israel’s leading experts on borders and the separation barrier. During his IDF career he has served as commander of the Northern Division in Gaza, deputy military secretary to the Minister of Defence and the Prime Minister, and head of the administration for negotiations with the Palestinians under Yitzhak Rabin, Shimon Peres, Benjamin Netanyahu and Ehud Barak. He is a senior researcher at the Economic Cooperation Foundation, one of the initiators of the Geneva Initiative, and an executive member of the Council for Peace and Security.
© BICOM 2012 All rights reserved. The opinions expressed in this report are those of the author and not necessarily those of BICOM.
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Anyone flipping through cable television channels with his or her remote control has undoubtedly come across programs about British and other retirees from Northern Europe seeking to escape the harsh climate where they live by venturing to one of the well-known vacation spots along the Mediterranean coast. The difficult problem that these buyers face is the soaring prices of properties over the last decade in places like Marbella, Spain, the French Riviera, or Italy’s Amalfi Coast, which leads many to look for more economical alternatives. As a result, many European buyers after 2002 have been flocking to Northern Cyprus, where a villa with a swimming pool can be bought at discount prices.
The main legal question that is not addressed with this new European property boom is the legal status of the area where these new homes are being built. It should be recalled that in 1974 the Turkish army invaded Cyprus, which had been an independent state since 1960 and took over 37 percent of the island. Tens of thousands of Greek Cypriots were expelled in this period in what they viewed was a deliberate policy of ethnic cleansing by the Turkish army. In the aftermath of the invasion, the U.N. Security Council adopted Resolution 353 which demanded “an immediate end to foreign military intervention” and called for “the withdrawal without delay from the Republic of Cyprus of foreign military personnel.”
The Turkish Cypriots declared their independence in 1983 by forming the “Turkish Republic of Northern Cyprus,” an act that the U.N. condemned as “null and void.” Over the years, an estimated 160,000 “settlers” who came from Turkey moved into Northern Cyprus. In many cases, properties that had been left behind by Greek Cypriot refugees were given by the Northern Cyprus administration to Turkish Cypriots and to the Turkish settlers, who sold them to European buyers. To date, some 5,000 British citizens have purchased homes in Northern Cyprus despite it being a clear-cut case of an “occupied territory.” According to a BBC report, as many as 10,000 foreigners have bought up former Greek Cypriot properties in Northern Cyprus.
Is there any basis for comparing Northern Cyprus to the situation with the West Bank?
A number of glaring differences stand out. First, Israel entered the West Bank in a war of self-defense in 1967 when it faced an Arab war coalition that was massing forces along its borders. In contrast, the circumstances of the Turkish invasion were very different. Turkey did not face imminent attack from Cyprus, but rather was concerned with intercommunal tensions in Cyprus.
Second, there was no established sovereignty in the West Bank in 1967 that Israel violated; there was no Palestinian state while Jordan’s claim to sovereignty was rejected by most of the international community except for Britain and Pakistan. Moreover, there were earlier Jewish rights under the British Mandate, which never expired. Looking at the Cypriot case, prior to the Turkish invasion in 1974, the Republic of Cyprus was the undisputed sovereign over the entire island, including the area of Northern Cyprus.
Finally, the resolutions adopted by the U.N. Security Council in the two conflicts were very different. In the aftermath of the Six-Day War, the U.N. Security Council adopted Resolution 242 which did not call for an Israeli withdrawal from all the territories it captured as a result of the conflict. The resolution suggested that the old armistice lines be replaced with secure and recognized borders.
Yet in the case of Northern Cyprus, the U.N. did not qualify its demand for a Turkish withdrawal by allowing, for example, the Turkish military to remain in even part of the island. Looking at these different considerations, it appeared that the international community should have judged the dispute over Northern Cyprus far more severely than the way it viewed the dispute over the West Bank, where Israel had multiple rights that it could exercise if it decided to do so.
However, in practice, that was not the case. As usual, on Dec. 10, the European Union declared yet again that it was “deeply dismayed by and strongly opposes Israeli plans to expand settlements in the West Bank, including in east Jerusalem.” Its statement made wild charges that Israeli construction in E1 “could also entail forced transfer of civilian population.”
It finally added that “the European Union reiterates that settlements are illegal under international law and constitute an obstacle to peace.” Ironically, while the EU releases harsh statements of this sort against Israel for any construction activity in West Bank settlements, it has nothing to say about tens of thousands of Turkish settlers that have moved into Northern Cyprus.
Nor are European governments condemning their own citizens who are seeking to build beachfront villas with swimming pools in territory that is technically still under Turkish occupation. European governments have warned their citizens that former Greek residents of Northern Cyprus may initiate legal proceedings in European courts against those who take over their properties. But there is no objection being stated in principle against European citizens moving into these territories in order to build vacation homes.
How does international law apply in these situations? There is a long-standing dispute over whether Article 49 of the Fourth Geneva Convention, for the protection of civilians, should be understood narrowly as prohibiting an occupying power from forcibly transferring its population into an occupied territory (the traditional Israeli and U.S. view) or should be interpreted broadly so that it even prohibits an occupying power from letting its citizens voluntarily move into an occupied territory (the European and Arab view).
But the European foreign ministries cannot have it both ways: they cannot condemn Israelis who build homes in the West Bank for violating international law, while they approve, in principle, or are at least silent about Turkish settlers and their European business partners who benefit from the lands Turkish Cypriots have taken over, as they develop what has been one of the hottest Mediterranean real estate markets for Europeans seeking a place in the sun.