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Wednesday, June 10, 2009

Some historical facts about Israeli 'settlements'

Former UN ambassador Dore Gold has written an issue brief on US policy regarding Israeli 'settlements' in Judea and Samaria. While I urge you to read the whole thing, I believe that some of the historical facts he cites may come as a surprise to some of you.
Before turning to the specific issue of the settlements, it is instructive to recall that Israel's entry into the West Bank, in particular, created a number of legal dilemmas that would ultimately impinge on how the legal question of settlements was examined. Israel entered the West Bank in a war of self-defense, so that the UN Security Council did not call on Israel to withdraw from all the territory that it captured, when it adopted UN Security Council Resolution 242 in November 1967. The previous occupant in the West Bank from 1949 to 1967 had been the Hashemite Kingdom of Jordan, whose sovereignty in the territory the entire international community refused to recognize - except for Britain and Pakistan. Prior to 1949, the governing document for legal rights in the West Bank was the 1922 Palestine Mandate, which gave international recognition to Jewish legal rights.

U.S. officials were cognizant of these considerations. Eugene Rostow, a former dean of Yale Law School who was also Undersecretary of State in the Johnson years, would write years later that "Israel has an unassailable legal right to establish settlements in the West Bank." He argued that Israel's claims to the territory were "at least as good as those of Jordan." Prof. Stephen Schwebel, who would become the State Department legal advisor and subsequently the President of the International Court of Justice in The Hague, went a step further when he wrote in 1970 that "Israel has better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt." On July 29, 1977, Secretary of State Cyrus Vance stated that "it is an open question as to who has legal right to the West Bank."

In the late 1960s, the Johnson administration was critical of Israeli settlement activity, but did not characterize the settlements as illegal. It was not until the Carter administration that the State Department Legal Advisor, Herbert Hansell, expressed the view that the settlements violated international law. The Carter policy was reversed by all of his sucssessors. Thus, President Ronald Reagan declared on February 2, 1981, that the settlements were "not illegal." He criticized them on policy grounds, calling them "ill-advised" and "proactive."

The question about the legality of settlements came from how various legal authorities interpret the applicability of the 1949 Fourth Geneva Convention relative to civilian persons in times of war. Article 49 of the convention clearly prohibits "mass forcible transfers" of protected persons from occupied territories. Later in the article, it states that "the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies." American interpretations of this article maintained that it referred to forcible deportations that were practiced by the Nazis and not to Israeli settlement activity. During the Bush (41) administration, the U.S. ambassador to the UN in Geneva, Morris Abram, explained that he had been on the U.S. staff during the Nuremberg trials and was hence familiar with the "legislative intent" behind the Fourth Geneva Convention. He stated on February 1, 1990, that it applied to forcible transfers and not to the case of Israeli settlements.


Many observers are surprised to learn that settlement activity was not defined as a violation of the 1993 Oslo Accords or their subsequent implementation agreements. During the secret negotiations leading up to the signing of Oslo, Yasser Arafat instructed his negotiators to seek a "settlement freeze," but Prime Minister Yitzhak Rabin and Foreign Minister Shimon Peres refused to agree to Arafat's demand. Nonetheless, Arafat agreed to the Oslo Accords despite the lack of a settlement freeze. The Oslo Accords were essentially an interim arrangement; they stipulated that the issue of settlements would be addressed in permanent status negotiations. If the U.S. is subsequently seeking to constrain Israeli settlement activity, it is essentially trying to obtain additional Israeli concessions that were not formally required according to Israel's legal obligations under the Oslo Accords.

Settlements became a far more salient issue with the release on May 4, 2001, of the report of a commission headed by Senator George Mitchell that sought to address the outbreak of the Second Intifada in 2000 and to propose a return to negotiations. The Mitchell Report recommended that as a part of confidence-building measures between the parties, "Israel should freeze all settlement activity, including the 'natural growth' of existing settlements." The Bush (43) administration adopted the Mitchell Report, putting the settlement issue right in the center of U.S.-Israeli discussions.

Like I said, read the whole thing. It will make you wonder why successive Israeli governments have not taken a harder position over the years regarding the future borders of the Jewish state.


At 3:02 PM, Blogger NormanF said...

Israel can cut the Gordian Knot by annexing Yesha and then since Israel will have sovereignty it can build as many settlements as it wishes. Incidentally, that's the only way an Andorra Plan can work upon the Palestinians. If Netanyahu thinks they will ever voluntarily accept it, he's dreaming.


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