Obstacles to Peace? Israeli Settlements and BDS

BDS / 3 Demands End Israeli Occupation of Palestinian Territory and end Israeli colonization and settlement of Palestinian Land; Recognize the right of Palestinian citizens of Israel to full equality; Respect and promote the right of Palestinian refugees to return to their homes and property.

John Kerry / Speech on Israeli Settlements We have to be clear about what is happening in the [Palestinian] West Bank. The Israeli prime minister publicly supports a 2-state solution to the conflict. But his coalition is more committed to settlements than any in Israel's history…. In 1978 the State Department legal advisor advised Congress that Israel's government program establishing civilian settlements in the occupied territory is inconsistent with international law. We see no change since then to affect that fundamental conclusion. December 23, 2017

Barak Obama / Cairo Speech “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” June 4, 2009

Settlements / Unabated Expansion 2008-17

Israel Approves Wave of West Bank Settlement Expansion Emboldened by Trump Israel Approves Wave of West Bank Settlement Expansion By Isabel Kershner Jan. 24, 2017 JERUSALEM — In a pointed act of defiance, Israel on Tuesday approved a huge new wave of settlement construction in the occupied West Bank. The announcement made clear that just days into the Trump presidency, the Israeli government feels emboldened to shake off the constraints imposed by the Obama administration and more willing to disregard international condemnation.

In Historic First, Israeli Settler Politicians Invited to Attend Trump Inauguration Yesha Council hails “different attitude” of new administration, weeks after Obama failed to veto UN resolution condemning settlements Jeremy Gimpel Yehuda Glick

Questions What are the origins and legal standing of Israeli settlements in the Palestinian Territories? Do Israeli settlements pose an intractable obstacle to resolving the conflict? Why have settlements emerged as a primary target of the BDS Movement?

Argument Israeli settlements in the Palestinian West Bank (and Gaza) have always been, and continue to be violations of international law. Israeli settlements, in their cartographic configuration, constitute the most intractable impediment to peace between Israelis and Palestinians. The settlement problem under the Trump Administration is likely to become more pronounced, and is likely to exacerbate the conflict.

Partition, War and 1949 Borders

Birth of the Palestinian 1947-48 Birth of the Palestinian Refugee Problem

Palestinian Refugees (1947-49) “There are circumstances that justify ethnic cleansing. A Jewish state would not have come into being without the uprooting of 700,000 Palestinians. Therefore it was necessary to uproot them…. It was necessary to cleanse the border areas and main roads…to cleanse the villages…I know it doesn’t sound nice, but that’s the term we used at the time.” Benny Morris Ha’aretz Interview (2004)

Where Did Refugees Go? Place # (est) Jordan/W. Bank 400,000 ----------------------------------------------------------------------------------- Jordan/W. Bank 400,000 Gaza 220,000 Lebanon 120,000 Syria 75,000

Victors and Vanquished (1947-49)

1947-49 Dilemma of Victory What to do with the Abandoned Palestinian Towns and Property?

Depopulation and Settlement

Lifta

June, 1967 -- Dilemma of Victory? What to do with West Bank / Gaza?

The ‘Allon’ Plan (July, 1967) “Settlement” “We have never held territory without settling it.”

Fourth Geneva Convention (1949) Article 49 “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited…. The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

The Meron Memorandum Jerusalem, 13 Elul 5727 18 September 1967 TOP SECRET To: Mr Adi Yafeh, Political Secretary to the Prime Minister From: Legal Counsel, Ministry of Foreign Affairs Subject: Settlement in the Administered Territories At your and Mr Raviv’s request, I am enclosing a copy of my memorandum on the above subject, which I submitted to the Minister of Foreign Affairs. My conclusion is that civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention. Regards, Theodor Meron

Creating a Legal Basis for Settlement Law of War / Law of Belligerent Occupation “It is especially forbidden ... to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war.” Hague Regulations (1907), Article 23, paragraph g “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.” Geneva Convention (1949), Article 53

The Nexus of Settlement and Security From 1967–79 the state of Israel used military orders to confiscate 61,000 dunums of land (15,000 acres) for 19 settlements, primarily in the Jordan Valley in accordance with the Allon Plan, ostensibly for reasons of security. “We here in the Jordan Valley cultivate thousands of dunums of land. These lands are – let us tell the truth – the lands of Arabs.” Jewish Settler, Jordan Valley (1978)

The Legality of Israeli Settlements UN Security Council Resolution 446 (1979) “determines that the policy and practices of Israel in establishing settlements in the Palestinian territories occupied since 1967 have no legal validity…”

The Israeli Legal Position * Palestinian Territories are not occupied but “disputed.” * Geneva Convention (GC) covers only forcible transfers; Israelis have settled voluntarily. Article 49 was intended to prevent transfers of population of the type carried out by the Nazis. * Israeli settlers returning to areas of Jewish settlement prior to 1948. * Legality of settlements was resolved by Oslo Agreement which holds that the fate of settlements is to be determined by future negotiations. After Oslo (1993), Israel was no longer an occupier. http://www.haaretz.com/print-edition/business/legality-is-in-the-eye-of-the-beholder-1.101181

Letter of the State Department Legal Advisor Concerning the Legality of Israeli Settlements in the Occupied Territories Washington DC April 21, 1978 To: Reps. Donald Fraser and Lee Hamilton / Committee on International Relations From: Herbert J. Hansell, Legal Counsel, Department of State Subject: Israeli Settlement in the Occupied Territories Secretary Vance asked me to reply to your request for a statement on the legal considerations regarding the Israeli civilian settlements in the territories occupied by Israel. I am providing the following response to that request. While Israel may undertake actions necessary in the occupied territories to meet its military needs and to provide for orderly government during the occupation, the establishment of the civilian settlements in those territories is inconsistent with international law. Very Truly Yours, Herbert J. Hansell https://www.jstor.org/stable/20691910?seq=3#page_scan_tab_contents

‘The Bloc of the Faithful’ Gush Emunim

The ‘Allon’ Plan (July, 1967) “Settlement” “We have never held territory without settling it.”

Gush Emunim /Elon Moreh Ascent (1975-78)

Elon Moreh Decision (1979) On behalf of the village of Rujeib and its residents, we ask the high court to nullify the order for the requisition of 800 dunums of land belong to village residents. We contend that the order has no military purpose. Its sole purpose is to take land for permanent civilian settlement. This is illegal and contravenes Israeli law. Izzat Muhammed Mustafa Dweikat “Our concern is not security but the commandment to settle the Land of Israel. Basing the land requisition orders on security …can only be construed in one way. The settlement is temporary and replaceable. We reject this conclusion outright. Our settlement is a permanent Jewish settlement, no less than Degania or Netanya.” Menahem Felix, Gush Emunim “It is not possible to seize private land in order to hand it over to Israeli civilians,… In this petition, there is a definitive response to those who seek to interpret the historical right promised to the nation of Israel in the Book of Books, as running contrary to property rights according to private ownership laws.” Moshe Landau, Chief Justice

Declarations of State Land Unregistered Land, Hilltops and the 50% Rule (Sinjil)