Israel Report

July/August 2003         

Understanding the Settlement Issue

By David Meir-Levi - August 26, 2003
One of the most prominent issues in the Israel-Arab conflict is Israeli settlements in the West Bank and Gaza Strip. So it is worthwhile to explore the issue of settlements in some detail.

There are five types of settlements:

The establishment of settlements in the West Bank began shortly after the Six Day War in Hebron, followed by the reconstructed Jewish Quarter of Jerusalem (Type A). Nahal sites were soon established along what the IDF felt were crucial corridors of defense, like the Jordan River, near the Green Line (pre-1967 border), and near the Gaza Strip (Type B).

Unoccupied areas around Jerusalem and to the east of Kfar Saba were used as sites for major building projects that created low cost housing for the expanding population of the Jerusalem and Tel-Aviv areas (Type C). Over time, religious and right-wing political pressure supported the creation of settlements elsewhere in the West Bank and Gaza Strip. Under former prime ministers Menachem Begin and Yitzhak Rabin, these settlements (Type D) proliferated.

Type E settlements were set up by break-away settlement occupants, often contrary to IDF and/or government instructions, sometimes on Palestinian lands illegally taken. Some have been forcibly dismantled.

Arab propaganda has repeatedly branded all types of settlements as "illegal" in accordance with the 4th Geneva Convention. However, a look at international law shows that the opposite is the truth.

The prohibition of exiling conquered populations and settling populations from the conqueror's territory in conquered territories pertains to territory conquered in an offensive war. Regarding territory conquered in a defensive action, the Charter of the League of Nations (the same one which gave Britain the right to establish a Mandatory Government over Palestine) indicates that the disposition of such territory will be part of the peace treaty between the warring parties. In the absence of such a treaty, the disposition of these territories remains in dispute. Such territories are referred to as "disputed territories," not "occupied territories." Their continued occupation by the defensive party is legal. Since the wars in 1948 and 1967 were defensive wars, and the defeated Arab states were unwilling to enter into peace negotiations, Israel's occupation of territories beyond the 1947 partition boundaries and 1949 armistice lines is completely legal.

International law is also clear that populations that had been dispossessed from their ancestral homes by an offensive action, have the right to re-settle their homes when a successful defensive action re-captures the land from which they were driven out. Thus the return of Jews to Hebron, Gush Etzion and the Jewish Quarter in Jerusalem is legal under international law.

It is also legal for the defensive party maintaining occupation in the absence of a peace treaty to take necessary measures to maintain security. Thus Nahal settlements are legal.

Moreover, UN Resolution 242 makes it clear that the purpose of the resolution was to create a just and lasting peace, with guarantees for the territorial inviolability and political independence of EVERY state in the area. According to Eugene Rostow, one of the drafters of 242, the plain meaning of the resolution is that Israel's administration of the West Bank and Gaza Strip is completely legal until a just and lasting peace is achieved. Such administration, in the absence of a treaty, and in the face of continued hostility, can include the development of unoccupied segments for housing a growing population. Such activity is not the same as transporting population to the territory for resettlement. So Type C settlements are also legal.

Type D is more difficult. Nothing in the Geneva Convention prohibits voluntary development of the disputed territories. What is prohibited is forced deportations and organized displacement of original populace by a forced settlement of the conquering population. Since the population of West Bank Arabs almost tripled under Israeli control, it can hardly be argued that the Israeli settlements have forced a displacement of original populace.

Moreover, since the West Bank and Gaza were never legally part of any sovereign nation (they were part of the British Mandatory Palestine till 1947, were intended to be part of a Palestinian State that never came in to being, and ended up being occupied forcibly by Egypt and Jordan in 1948 in stark and defiant violation of the UN partition plan and in violation of international law), Israel's occupation of these territories after the Six Day War does not violate the legal claims of any nation. However, since some Palestinian land was taken by government fiat, and it could rationally be argued that either by complicity or by design the Israeli government sponsored these settlements, it seems fair to say that Type D settlements may be in a gray area. Type E settlements seem to be illegal.

The impact of Israeli settlements of types A-D has been almost exactly the opposite of what the Arab propaganda claims. It is important to note that from 1967 to 1992, the population and economy of the West Bank grew substantially. The standard of living of the Palestinians, as well as the average per capita income increased. This was in part due to the Israeli "Marshall Plan," which expanded the infrastructure, modernized the supplies of water, electricity, and sewerage, and made 20th century medical care available. It was also due in part to the partial integration of the Palestinian working populace into the Israeli economy by the employment of hundreds of thousands of Palestinians in a wide variety of Israeli business and agricultural endeavors. The growth of tourism throughout the West Bank was a further boost to the area's economy. It is only since 1993, when the occupation ended and 96% of Palestinians living in Israel came under the autonomous and independent control of the PA that the economy has been crippled and the lives of the Palestinians wrecked by the PA despotic and terrorist rule.

Rather than displacing Palestinians, the Israeli occupation of the West Bank stimulated substantial growth and improvement in their lives. The approximately 1,000,000 Arabs living in the West Bank and Gaza Strip in 1967 grew to a bit more than 3,000,000 in 1994. It has been often noted that when an Israeli settlement of any of the four types was erected, areas around it that were hitherto uninhabited became sites for Palestinian shops selling agricultural goods and cottage industry wares to the Israelis. Later, Palestinian houses followed the shops. Later still, the PLO succeeded in creating excellent anti-Israel photo-ops from this process. The PLO paid Palestinians to build homes abutting the settlement. The photo-op was the image of a settlement encroaching upon the Palestinian home. When the Israeli government tried to intervene, the photo-op was the Israeli government destroying a Palestinian home.

Arab propaganda argues that the settlements are an obstacle to peace. However:

Bottom line: It is the unwillingness of the Arabs to negotiate, not the presence of settlements, that stalls the peace process and makes compromise impossible.

Israel's detractors assert that Israel violated the Oslo Accords by building settlements. However, the Oslo Accords say that settlement-related issues will be discussed during final stage negotiations. A moratorium on settlements would be one of 16 "confidence building" measures that Israel and the PA would undertake. The provision about not changing the "status" of the territories refers to the agreement that neither side would unilaterally annex the areas (or declare them an independent state). In the presence of glaring, overt, and provocative violations of every one of the Oslo Accords by the PA almost immediately after its signing, former prime minister Binyamin Netanyahu's government felt no need to maintain the tacit informal agreement. Since the PA was not building confidence, Israel saw no reason to compromise its security.

While Israel has built a total of 144 settlements in the West Bank and Gaza, more than 260 new Palestinian settlements have been constructed. These Palestinian settlements are no less a change of status of the territories than are the Israeli ones.

Critics suggest that Israel would achieve the peace it craves if it unilaterally pulled out of the West Bank and Gaza Strip, and dismantled the settlements. However:

Concessions about the settlements can be made in the context of negotiations, which can begin after the violence stops. The question of settlements is a matter for final status negotiations. The simple fact is that no sovereign state would ever be expected to do otherwise.

Originally published by The Jewish Community News of Silicon Valley.

David Meir-Levi is an American-born Israeli currently living in Palo Alto, California. He taught Archaeology and Near Eastern History at the Hebrew University in Jerusalem and at the University of Tel Aviv during the 60s and 70s. He has a weekly radio show, "Mid-East Media Watch" at KZSU Stanford and is the director of the Israel Peace Initiative(IPI), a grass-roots not-for-profit organization in the San Francisco Bay area working to educate the American public and its leaders in to the history of the Arab-Israel conflict and realistic options for resolution.

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