Settlements Law

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Last night, while the Prime Minister was still in London, the Knesset passed the new Settlements Law. Reactions were immediate and vocal. Rather than partake in the general cacophony, let’s step back and reflect.

First, we must address the issue of property laws in Israel and the territories under Israeli administration by COGAT. A lot of this goes back to the rule of the Ottomans. At that time, absentee ownership was the rule, meaning the true owners were not the ones who toiled the lands. Entire villages rented lands collectively from such absentee land-lords, and cultivated such fields communally, i.e. without individual farm tenancies. Vast strips were swamps or stony desert areas, which noone owned legally – the origins of the present day state-land category. Early Jewish dwellers from the 1880s to 1920s, from the first to the third Aliyah, were aided by wealthy American and European Jews, to purchase land for kibbutzim or moshavim. Beginning in the early 1920s Arab leaders criminalized the sale of lands to Jews, in an effort to find an answer to the increasingly successful farming efforts of the Jewish dwellers, as well as an effort to establish an Arab claim to the land, following the Balfour declaration and San Remo. A direct agreement in 1919 i.e. even before San Remo, between Chaim Weizmann and Emir Feisal in Versailles, never bore any fruits, and effectively went under following the establishment of Mandatory Palestine. When Israel was established, Jordan occupied the territory that, to this day, is called the West Bank by those denying Jewish rights to the area, kown since biblical times as Judea and Samaria. With the exception of Great Britain and Pakistan, no country ever recognized Jordan’s annexation of these territories.

In the 50 years since the Six-Day-War, a lot has been said about the legality of Israeli settlements in territories Israel had gained in that conflict. A lot of the negative comments center on the Fourth Geneva Convention, which forbid the state driven resettlement of populations to and from occupied territories. An impressive number of mostly politicized bodies, ranging from national governments like those of the UK, France, Germany or New Zealand, have put forwards this argument, along with international organisations, mostly under the UN umbrella. The US, true to form, had long hid behind the legalistic argument of settlements being ‘illegitimate’, but not illegal, before coming down on the side of the opponents, in the twilight zone of the Obama administration.

Largely unknown, except by legal experts in academia, arguments based on international law have been put forward for the legality of Israeli settlement in the disputed territories. They cited the existence of a “sovereignty vacuum” right after the war and the fact that Israel had acted in self-defense. The fact that the national unity government, originally formed in May 1967, reelected in 1969 and that was in power until 1974, could not define a common policy on the question of what to do with the territories, led to what is the settler movement. But, for the last 25 years, no new settlements have been created in Judea and Samaria. Over the past decades, settlements were established for strategic reasons, but equally out of religious motives. Most Israeli governments “managed” the settlers, until this became impossible, when newly elected president Barack Obama declared – in 2009 – that any territorial agreement must be based on the armistice lines of 1949, also known as “The Green Line” or “The Auschwitz Borders”. The intransigency of the Palestinian Arab side after this became even more rigid after this, and led to a de facto freeze of construction even within the large settlement blocks. Add to this that, at least since the 1990s, the Israeli High Court has increasingly been called upon to declare outposts illegal, if there was the slightest ground to suspect that they might have been built on “private Palestinian land”.

In this political climate, and given the inherently unmanageble nature of Israel’s coalition governments, the status quo was untenable. As the results came in from Washington, last November 8, Prime Minister Netanyahu was forced to act. On the one hand, he decided to have Amona evacuated. That he succeeded in this, without a repetition of the traumatic events of evacuating Gaza, is testimony to his ability to act responsibly under immense pressures. On the other hand, he had to act on what became the Settlement Law, to appease his religious conservative base and coalition partners. That the vote took place while he was out of the country, may still turn out to have been a blessing in disguise. At any rate, no responsible actor has ever had any doubt that the Law will end up in the High Court, and will be struck down. Until then, Netanyahu will have visited Washington, will have had a chance to assess the limits of what is possible with the Trump administration. Domestically, Bennet still has a lot to learn, before he can become a serious challenger to Netanyahu; and the rest of the pack – also-rans, every one of them. Internationally, I am convinced that we will soon see some movement on the peace process, largely driven by Israel, and with actors on the Arab side very different from what we had grown accustomed to throughout the “Oslo” years. Settlements have never been the core issue, or impediment to peace. The days when Saeb Erekat can influence Washington politics for whoever is chairman of the PLO, are over.

Moravi Ödön

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