Playing Loose With History and Law in the Settlement Debate
Richard L. Cravatts Ph.D.
September 01, 2009
In an effort to back pedal on Vice President Joe Biden´s June 5th observation that Israel would be justified in using its own initiative to launch a preemptive strike against Iran´s nuclear facilities, State Department spokesman Ian Kelly quickly cautioned that "We are certainly not going to give a green light to any kind of military strike." "But," he added as a way of making such a future action diplomatically tolerable, "Israel is a sovereign country and we're not going to dictate its actions."
That notion—that the U.S. will not dictate the actions of sovereign Israel—is a sound one, but one that would come as a surprise to Kelly´s boss, Secretary of State Hillary Clinton, as well as her boss, President Obama, who have of late been very willing to issue all kinds of diktats to Israel, particularly regarding the issue of West Bank settlements.
In his June 4th Cairo speech, for instance, President Obama chose to widely and publicly proclaim that "The United States does not accept the legitimacy of continued Israeli settlements. This construction violates previous agreements and undermines efforts to achieve peace. It is time for these settlements to stop." Secretary Clinton was even more strident when she also scolded Israel for allowing Jews in Judea and Samaria to have children and enlarge the population of neighborhoods. "With respect to settlements," she said, "the president was very clear . . . He wants to see a stop to settlements―not some settlements, not outposts, not natural growth exceptions . . . And we intend to press that point."
In the Middle East, where a messianic madman in Iran lunges forward in his quest for nuclear weapons in an apocalyptic vision for Islamic supremacy, where Khartoum-supported Janjaweed militias continue with their genocidal slaughter and rape of hundreds of thousands of black and animist Sudanese citizens, and where Gaza has morphed into Hamasistan and become the world´s largest staging area for rocket attacks against a sovereign state, apparently the most serious diplomatic issue about which Washington is willing to take a firm stand is making sure that Jews do not have too many children and expand neighborhoods in the biblical areas of Judea and Samaria.
The problem with this defective diplomacy, as is often the case where Israel is concerned, is that operates in a morally-inverted universe where the perennial victim status of the long-suffering Palestinians trumps any sovereign rights of Israel regarding its borders, security, and even its survival in a sea of jihadist foes who yearn for its destruction. The settlement debate has also been hijacked by the Arab world and its Western apologists who, willingly blind to history, international law, and fact, continue to assign the blame for the absence of peace on the perceived offenses of occupation, illegal settlements, Zionist land grabs, Israeli truculence, and the colonial basis of Israel. Thus, Secretary Clinton and her predecessor, Condoleezza Rice, have both referred to the nuisance Israel causes by letting Jews live in the West Bank, against the wishes of the Palestinians who view that territory as once and forever theirs, as "unhelpful" in seeking a viable solution to Palestinian statehood.
What is truly "unhelpful," however, is the obsession with the settlement issue by the Arab states and the current U.S. administration, while they simultaneously ask nothing of the Palestinian Authority; in fact, Mahmoud Abbas has adopted a strategy now in his negotiations with Israel in which he merely waits for further Israeli concessions, largely as a result of the signals coming from Washington that it is happy to apply pressure on Netanyahu to implement broad policy changes. What is "unhelpful" are the repeated references to the West Bank and Gaza, as well as East Jerusalem, as "Arab" land, the putative Palestinian state in waiting, encumbered only by Israeli oppression, the dreaded occupation, and those pesky settlers. This widely held notion that European Jews with no connection to historic Palestine colonized Arab land and displaced the indigenous Palestinian population, of course, is a key part of the decades-old propaganda war against Israel, and serves the perverse purpose of validating Arab territorial rights to the West Bank and Gaza, and, more importantly, casts Israelis as squatters who have unlawfully expropriated land that is—and never was—theirs.
That is a convenient fable, as is the fictive people that the Palestinians have been conjured up to be: an indigenous nation that had sovereignty, a coherent society, leadership, and some form of continuous government—none of which, obviously, have ever existed. More to the point, it is "unhelpful" to overlook the fact that not only all of the land that is current-day Israel, but also Gaza, the West Bank, and, in fact, the land east of the Jordan River that became Jordan, is part of the land granted to the Jews as part of the League of Nations Palestine Mandate, which recognized the right of the Jewish people to "close settlement" in a portion of those territories gained after the break up of the Ottoman Empire after World War I. Britain gave away more than three quarters of the pledged future Jewish home when it arbitrarily created Jordan on land east of the Jordan River in 1922 as a favor to the Hashemite dynasty; but according to Eugene V. Rostow, the late legal scholar and one of the authors of UN Security Council Resolution 242 written after the 1967 war to outline peace negotiations, "the Jewish right of settlement in Palestine west of the Jordan River, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors," something which the intransigent Arab nations have never seemed prepared to do.
Moreover, Rostow contended, "The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel was created," and "the Jewish right of settlement in the area is equivalent in every way to the right of the existing Palestinian population to live there." It is convenient, but again, "unhelpful," for those spinning the Palestinian narrative to forget that Jews lived in Judea and Samaria for millennia before the birth of Mohammed; but since for Muslims history begins with the birth of Islam, an inversion of facts and a contortion of reality has made the Arab Palestinians the indigenous people of Palestine, not the Jews, and the Israelis have been cast as interlopers in a land to which they actually have clear historic and legal rights.
The Six Day War of 1967, in which Israel recaptured Gaza and the West Bank, including Jerusalem, resulted in Israel being cast in another perfidious role—in addition to colonial usurper of Arab land, the Jewish state became a brutal "occupier" of Arab Palestine, lands to which the Jews presumably had no right and now occupied, in the opinion of many in the international community, illegally. But that "unhelpful" view again presumes that parts of the territory that may someday comprise a Palestinian state is already Palestinian land, that the borders of the putative Palestinian state are precise and agreed to, and that Jews living anywhere on those lands are now violating international law.
When did the West Bank, Gaza, and East Jerusalem become Palestinian land? The answer is: never. In fact, when Israel acquired the West Bank and Gaza and other territory in the defensive war 1967 after being attacked by Egypt, Syria, and Jordan, the Jewish state gained legally-recognized title to those areas. In Israel´s 1948 war of independence, Egypt, it will be recalled, illegally annexed Gaza at the same time Jordan illegally annexed the West Bank—actions that were not recognized by most of the international community as legitimate in establishing their respective sovereignties. Israel´s recapture of those territories in 1967, noted Professor Stephen Schwebel, State Department legal advisor and later the President of the International Court of Justice in The Hague, made the Jewish state what is referred to as the High Contracting Party of those territories, both because they were acquired in a defensive, not aggressive, war, and because they were part of the original Mandate and not previously under the sovereignty of any other High Contracting Party. "Where the prior holder of territory had seized that territory unlawfully," Schwebel wrote, referring to Jordan and Egypt, "the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title." In fact, he wrote in 1970, "Israel has better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt."
Thus, the final borders of a Palestinian state do not yet exist, just as the final borders of Israel have not been defined, largely due to the Arab´s implacability in repeatedly refusing a state when it was offered to them―notably in 1937, 1947, 1967, and 2000―because the creation of their state would entail recognizing, finally, the Israeli state, as well. And it is clearly "unhelpful" when Palestinian negotiators continue to point to West Bank settlements as the reason that Palestinian statehood cannot be realized, particularly since it has been assumed that the largest of the settlement blocs, comprising 80 percent of the total settlements, most of them contiguous with the 1949 Green Line, would become part of Israel through land swaps when the final borders are drawn. Former president Bush also supported that view in his 2004 negotiations with Ariel Sharon, suggesting that "In light of new realities on the ground, including already existing major Israeli population centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949."
It is also "unhelpful," not to mention unrealistic, for those arguing on the Palestinian side, that the West Bank, like Gaza, eventually be made Judenrein, totally absent of Jews. For all the bleating about the negative impact of settlements on the nascent Palestinian state, Jews still comprise only about 12 percent of the West Bank´s population, and the dreaded settlements themselves occupy only some three percent of the West Bank´s land. Beyond the moral and political considerations, as a practical matter it would be virtually impossible, not to mention unnecessary, to uproot nearly 300,000 Israelis living in the West Bank. To put such a task in perspective, the 2005 disengagement from Gaza, when Israel forced the expulsion of just 9,000 Israelis, including 1,700 Israeli families, from the Gaza Strip and northern West Bank, required some 50,000 Israeli soldiers and policemen and an expenditure of some $1.7 billion—all of which resulted, not in peace, but in the unceasing barrage into southern Israeli towns of 6000 rockets from a newly-radicalized Gaza.
It is also "unhelpful," not to mention racist and hypocritical, for Mahmoud Abbas and his pro-Palestinian fellow travelers to still insist that, while they want a Jew-free state of their own (and still have laws making it a capital offense for an Arab to sell land to a Jew), they still covet what they call a sacred and legal "right of return" to lost homes and property in present-day Israel, and that, in theory, some 5 million Palestinians could exploit that so-called right to flood the Israel and dilute the demography of the Jewish state. The reality is that the enemies of Israel want it both ways—no Jews in what will be the Palestinian state, and, ideally, no Jews, or at least only Jews living in dhimmitude under Arab sovereignty, in what is now Israel.
Does anyone doubt that once the Palestinians, aided and abetted by mendacious Western elites and a morally incoherent international community of supporters, have purged Gaza, the West Bank, and East Jerusalem of all Jews, that new calls will then arise accusing Jews of "occupying" more "Arab" lands in Tel Aviv, Netanya, Tiberias, or Haifa, that once more the 3000 year Jewish connection to a land of Palestine would be obscured, contorted, and inverted for Arab political objectives? Professor Rostow saw through the disingenuous talk about legal rights when it came to the issue of the settlements. The discussion was not, in his mind, "about legal rights but about the political will to override legal rights." In fact, the settlement debate is part of the decades-old narrative created by the Palestinians and their Western enablers to write a false historical account that legitimizes Palestinian claims while air brushing away Jewish history. "Throughout Israel's occupation," Rostow observed, "the Arab countries, helped by the United States, have pushed to keep Jews out of the territories, so that at a convenient moment, or in a peace negotiation, the claim that the West Bank is ´Arab´ territory could be made more plausible." As Abbas and Netanyahu prepare to come to the negotiating table, that "convenient moment" may well have arrived.
That notion—that the U.S. will not dictate the actions of sovereign Israel—is a sound one, but one that would come as a surprise to Kelly´s boss, Secretary of State Hillary Clinton, as well as her boss, President Obama, who have of late been very willing to issue all kinds of diktats to Israel, particularly regarding the issue of West Bank settlements.
In his June 4th Cairo speech, for instance, President Obama chose to widely and publicly proclaim that "The United States does not accept the legitimacy of continued Israeli settlements. This construction violates previous agreements and undermines efforts to achieve peace. It is time for these settlements to stop." Secretary Clinton was even more strident when she also scolded Israel for allowing Jews in Judea and Samaria to have children and enlarge the population of neighborhoods. "With respect to settlements," she said, "the president was very clear . . . He wants to see a stop to settlements―not some settlements, not outposts, not natural growth exceptions . . . And we intend to press that point."
In the Middle East, where a messianic madman in Iran lunges forward in his quest for nuclear weapons in an apocalyptic vision for Islamic supremacy, where Khartoum-supported Janjaweed militias continue with their genocidal slaughter and rape of hundreds of thousands of black and animist Sudanese citizens, and where Gaza has morphed into Hamasistan and become the world´s largest staging area for rocket attacks against a sovereign state, apparently the most serious diplomatic issue about which Washington is willing to take a firm stand is making sure that Jews do not have too many children and expand neighborhoods in the biblical areas of Judea and Samaria.
The problem with this defective diplomacy, as is often the case where Israel is concerned, is that operates in a morally-inverted universe where the perennial victim status of the long-suffering Palestinians trumps any sovereign rights of Israel regarding its borders, security, and even its survival in a sea of jihadist foes who yearn for its destruction. The settlement debate has also been hijacked by the Arab world and its Western apologists who, willingly blind to history, international law, and fact, continue to assign the blame for the absence of peace on the perceived offenses of occupation, illegal settlements, Zionist land grabs, Israeli truculence, and the colonial basis of Israel. Thus, Secretary Clinton and her predecessor, Condoleezza Rice, have both referred to the nuisance Israel causes by letting Jews live in the West Bank, against the wishes of the Palestinians who view that territory as once and forever theirs, as "unhelpful" in seeking a viable solution to Palestinian statehood.
What is truly "unhelpful," however, is the obsession with the settlement issue by the Arab states and the current U.S. administration, while they simultaneously ask nothing of the Palestinian Authority; in fact, Mahmoud Abbas has adopted a strategy now in his negotiations with Israel in which he merely waits for further Israeli concessions, largely as a result of the signals coming from Washington that it is happy to apply pressure on Netanyahu to implement broad policy changes. What is "unhelpful" are the repeated references to the West Bank and Gaza, as well as East Jerusalem, as "Arab" land, the putative Palestinian state in waiting, encumbered only by Israeli oppression, the dreaded occupation, and those pesky settlers. This widely held notion that European Jews with no connection to historic Palestine colonized Arab land and displaced the indigenous Palestinian population, of course, is a key part of the decades-old propaganda war against Israel, and serves the perverse purpose of validating Arab territorial rights to the West Bank and Gaza, and, more importantly, casts Israelis as squatters who have unlawfully expropriated land that is—and never was—theirs.
That is a convenient fable, as is the fictive people that the Palestinians have been conjured up to be: an indigenous nation that had sovereignty, a coherent society, leadership, and some form of continuous government—none of which, obviously, have ever existed. More to the point, it is "unhelpful" to overlook the fact that not only all of the land that is current-day Israel, but also Gaza, the West Bank, and, in fact, the land east of the Jordan River that became Jordan, is part of the land granted to the Jews as part of the League of Nations Palestine Mandate, which recognized the right of the Jewish people to "close settlement" in a portion of those territories gained after the break up of the Ottoman Empire after World War I. Britain gave away more than three quarters of the pledged future Jewish home when it arbitrarily created Jordan on land east of the Jordan River in 1922 as a favor to the Hashemite dynasty; but according to Eugene V. Rostow, the late legal scholar and one of the authors of UN Security Council Resolution 242 written after the 1967 war to outline peace negotiations, "the Jewish right of settlement in Palestine west of the Jordan River, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors," something which the intransigent Arab nations have never seemed prepared to do.
Moreover, Rostow contended, "The Jewish right of settlement in the West Bank is conferred by the same provisions of the Mandate under which Jews settled in Haifa, Tel Aviv, and Jerusalem before the State of Israel was created," and "the Jewish right of settlement in the area is equivalent in every way to the right of the existing Palestinian population to live there." It is convenient, but again, "unhelpful," for those spinning the Palestinian narrative to forget that Jews lived in Judea and Samaria for millennia before the birth of Mohammed; but since for Muslims history begins with the birth of Islam, an inversion of facts and a contortion of reality has made the Arab Palestinians the indigenous people of Palestine, not the Jews, and the Israelis have been cast as interlopers in a land to which they actually have clear historic and legal rights.
The Six Day War of 1967, in which Israel recaptured Gaza and the West Bank, including Jerusalem, resulted in Israel being cast in another perfidious role—in addition to colonial usurper of Arab land, the Jewish state became a brutal "occupier" of Arab Palestine, lands to which the Jews presumably had no right and now occupied, in the opinion of many in the international community, illegally. But that "unhelpful" view again presumes that parts of the territory that may someday comprise a Palestinian state is already Palestinian land, that the borders of the putative Palestinian state are precise and agreed to, and that Jews living anywhere on those lands are now violating international law.
When did the West Bank, Gaza, and East Jerusalem become Palestinian land? The answer is: never. In fact, when Israel acquired the West Bank and Gaza and other territory in the defensive war 1967 after being attacked by Egypt, Syria, and Jordan, the Jewish state gained legally-recognized title to those areas. In Israel´s 1948 war of independence, Egypt, it will be recalled, illegally annexed Gaza at the same time Jordan illegally annexed the West Bank—actions that were not recognized by most of the international community as legitimate in establishing their respective sovereignties. Israel´s recapture of those territories in 1967, noted Professor Stephen Schwebel, State Department legal advisor and later the President of the International Court of Justice in The Hague, made the Jewish state what is referred to as the High Contracting Party of those territories, both because they were acquired in a defensive, not aggressive, war, and because they were part of the original Mandate and not previously under the sovereignty of any other High Contracting Party. "Where the prior holder of territory had seized that territory unlawfully," Schwebel wrote, referring to Jordan and Egypt, "the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title." In fact, he wrote in 1970, "Israel has better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt."
Thus, the final borders of a Palestinian state do not yet exist, just as the final borders of Israel have not been defined, largely due to the Arab´s implacability in repeatedly refusing a state when it was offered to them―notably in 1937, 1947, 1967, and 2000―because the creation of their state would entail recognizing, finally, the Israeli state, as well. And it is clearly "unhelpful" when Palestinian negotiators continue to point to West Bank settlements as the reason that Palestinian statehood cannot be realized, particularly since it has been assumed that the largest of the settlement blocs, comprising 80 percent of the total settlements, most of them contiguous with the 1949 Green Line, would become part of Israel through land swaps when the final borders are drawn. Former president Bush also supported that view in his 2004 negotiations with Ariel Sharon, suggesting that "In light of new realities on the ground, including already existing major Israeli population centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949."
It is also "unhelpful," not to mention unrealistic, for those arguing on the Palestinian side, that the West Bank, like Gaza, eventually be made Judenrein, totally absent of Jews. For all the bleating about the negative impact of settlements on the nascent Palestinian state, Jews still comprise only about 12 percent of the West Bank´s population, and the dreaded settlements themselves occupy only some three percent of the West Bank´s land. Beyond the moral and political considerations, as a practical matter it would be virtually impossible, not to mention unnecessary, to uproot nearly 300,000 Israelis living in the West Bank. To put such a task in perspective, the 2005 disengagement from Gaza, when Israel forced the expulsion of just 9,000 Israelis, including 1,700 Israeli families, from the Gaza Strip and northern West Bank, required some 50,000 Israeli soldiers and policemen and an expenditure of some $1.7 billion—all of which resulted, not in peace, but in the unceasing barrage into southern Israeli towns of 6000 rockets from a newly-radicalized Gaza.
It is also "unhelpful," not to mention racist and hypocritical, for Mahmoud Abbas and his pro-Palestinian fellow travelers to still insist that, while they want a Jew-free state of their own (and still have laws making it a capital offense for an Arab to sell land to a Jew), they still covet what they call a sacred and legal "right of return" to lost homes and property in present-day Israel, and that, in theory, some 5 million Palestinians could exploit that so-called right to flood the Israel and dilute the demography of the Jewish state. The reality is that the enemies of Israel want it both ways—no Jews in what will be the Palestinian state, and, ideally, no Jews, or at least only Jews living in dhimmitude under Arab sovereignty, in what is now Israel.
Does anyone doubt that once the Palestinians, aided and abetted by mendacious Western elites and a morally incoherent international community of supporters, have purged Gaza, the West Bank, and East Jerusalem of all Jews, that new calls will then arise accusing Jews of "occupying" more "Arab" lands in Tel Aviv, Netanya, Tiberias, or Haifa, that once more the 3000 year Jewish connection to a land of Palestine would be obscured, contorted, and inverted for Arab political objectives? Professor Rostow saw through the disingenuous talk about legal rights when it came to the issue of the settlements. The discussion was not, in his mind, "about legal rights but about the political will to override legal rights." In fact, the settlement debate is part of the decades-old narrative created by the Palestinians and their Western enablers to write a false historical account that legitimizes Palestinian claims while air brushing away Jewish history. "Throughout Israel's occupation," Rostow observed, "the Arab countries, helped by the United States, have pushed to keep Jews out of the territories, so that at a convenient moment, or in a peace negotiation, the claim that the West Bank is ´Arab´ territory could be made more plausible." As Abbas and Netanyahu prepare to come to the negotiating table, that "convenient moment" may well have arrived.