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Progressive News & Views (since 1982)
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Jewish Liberation
Settlements, Legal or Disputed?
By Hank Roth
Muslims have not changed their tone when speaking about the Jews among
themselves but when it is sometimes moderated in public pronouncements it
may seem ambiguous or even moderate but the intent is always clear. Those
who look for a moderation among Arabs must invent it just as they must
invent the idea of the "progressive Muslim" because the reality is much
different. Islam promotes hatred for Jews and others they also consider
infidels - but none as much as they hate the Jews.
Examples of their statements would be too boring and redundant
to repeat them here.
EQUALITY BETWEEN JEWS AND MUSLIMS?
There is also the myth of equality between Jews and Arabs. Distinguished
Orientalist, Bernard Lewis wrote: "The golden age of equal rights was a
myth and belief in it was a result, more than a cause, of Jewish sympathy
for Islam. The myth was invented by Jews in 19th centujry Europe as a
reproach to Christians--and taken up by Muslims in our own time as a
reproach to Jews."
Continuing, he wrote, "...European travelers to the East in the age of
liberalism and emancipation are almost unanimous in deploring the degraded
and precarious position of Jews in Muslim countries, and the dangers and
humailiations to which they were subject. Jewish scholars, acquanted with
the history of Islam and with the current situation in Islamic lands, can
have no illusions on this score. (Arminium) Vambery is unambiguous: `I do
not know any more miserable, helpless, and pitiful individual on God's
earth than the Jahudi in those countries...The poor Jew is despised,
belabored and tortured alike by Moslem, Christian and Brahmin...'" (Lewis)
There were times when Jews fared better but most of the time it was
turbulent for Jews - but occasionally - when under a colonial protector,
like the British or the French or Turkish, the Jews were a bit more secure
and even at times they may have flourished but always these were
intermittent periods. It was also like that when the state religion was
Christian.
Some say America can be like that and while Jews are doing quite well
today there may come a time when it is not so. When Jews were doing well
in Germany and the rest of Europe the Jews believed they were as much
German or whatever it was where they lived as they were Jews - and some
even rejected Judaism or were secular and were cultural Jews, but in times
of national distress, war, economic disparity, whenever a scapegoat was
useful, it has been the Jew.
Christians were persecuted in Islamic countries also, but Jews were
persecuted both in Islamic countries and in Christian countries. Neither
Christian, Muslim or atheist is persecuted in Israel.
It wasn't until Jews provided for their own protection with their Zionist
Jewish Liberation Movement and a state of their own that they could
overcome that contemptible Arab dhimmitude and persecution.
Israel is a very small country. Of 22 Arab countries created at about the
same time by the United Nations, Israel was also carved out of an area
much less than envisioned and promised in the Mandate and Israel has
became a target for Muslim terrorists who attack Israelis from outside its
borders and within its territory encroaching from the porous boundary
which separates it from its Muslim neighbors. Israel established
settlements on those borders to protect Israelis, both Arabs and Jews in
the interior.
".....Since 1967, successive Israeli governments have, directly
or indirectly, participated in the transfer of some 230,000 civilians
into 145 West Bank and Gaza settlements and approximately 110
outposts." *
* American Jewish Committee, "Fact Sheet on Israeli Settlements"
[unpublished brief] (New York, July 25, 2003), 2-3.
Michael Galchinsky, Israel Studies, 9/22/2004 - "The Jewish settlements in
the West Bank: international law and Israeli jurisprudence" writes about
the settlements and international law:
SECURITY SETTLEMENTS
"Israeli civilian settlement in the territories began as
a response of the Eshkol government to political pressure to re-settle
the Gush Etzion villages and to establish a permanent presence in the
Golan Heights. Following the Israeli victory in the Six-Day War, Golda
Meir's government came under enormous pressure to settle in all parts
of the biblical Land of Israel. She responded with efforts to develop
a small number of security-oriented settlements in Sinai, the Golan,
and the Jordan Valley. The Jordan Valley settlements, the first in the
West Bank, were conceived under the Allon Settlement Plan (adopted in
1974 but circulating since 1970) as agricultural settlements that
would serve as outposts on Israel's Eastern front. Settlers, led by
Gush Emunim leader Rabbi Moshe Levinger, also had early successes in
manipulating the Labor government into supporting their extended stay
in the Park Hotel in the city of Hebron, and eventually their
establishment of Qiryat Arba on the outskirts of the city." *
* For a history of early settlement, see Yehiel Admnoi, Decade of
Discretion: Settlement Beyond the Green Line, 1967-1977 (Tel-Aviv,
1992) [Hebrew] passim; Ilan Peleg, Human Rights in the West Bank and
Gaza: Legacy and Politics (Syracuse, NY, 1995), 22-43.
"..under the Eshkol, Meir, and Rabin governments there was not a great
deal of civilian population transfer. By the time Menachem Begin and
the Likud came to power in 1977, there were a total of 3200 settlers. *
* Ilan Peleg, "The Legacy of Begin and Beginism for the Israeli
Political System," in Gregory S. Mahler (ed), Israel after Begin
(Albany, 1990), 19-49; Peleg, Human Rights, 22-5.
By the end of Begin's second government and term as PM in 1983, the number
of settlers had increased to 28,400. Some attribute to Ariel Sharon the
establishment of the settlement barrier, but it was an idea which began
before Ariel Sharon became the architech of settlement expansion.
When Sharon with Foreign Minister Yitzhak Shamir became the architects of
expansion it was part of the "facts on the ground" policy to provide
security and also to create a larger "greater Israel" as a fulfillment of
the restablishment of Jewish "historical" rights as it existed prior to
Jewish expulsion.
Since the Oslo Accords in 1993, which were a failure, and as a response to
the Arab challenge of Jewish presense (with government assistence and
encouragement), there was a 55% increase in settlement activity/housing
and the settlement population doubled.
Michael Galchinsky writes, the Israeli Defense Forces (IDF) built 180
miles of bypass roads in the territories to protect settlers from sniping,
bombing, and drive-by shootings. *
* American Jewish Committee, "Fact Sheet," 3; Geoffrey Aronson,
Settlements and the Israel-Palestinian Negotiations: An Overview
(Washington, DC, 1996), 14-16; Laurie Copans, "Jewish settlers granted
US $34 million in tax breaks, government report says," Associated
Press (New York, 6 November 2002); Editorial, "Chance for Change in
Israel," New York Times (New York, 31 October 2002), A26.
OCCUPIED or HISTORIC LAND?
--> BUT, wait. Isn't the settlement of Israelis into land it occupies a
violation of International Law? It would be except there is also the view
that the WEST BANK isn't occupied territory. There is an ongoing _dispute_
over this interpretation because while the Arabs claim it is occupied and
the left has sided with the Arabs (and to be perfectly fair there is some
international community support for their position) Begin's justification
for moving Jews to the West Bank and Gaza -- and settling those areas
because of "historic rights" would nullify the claim made by Arabs that
settlements are illegal. <--
While you would think settlements for security by itself would be
acceptable under law, because it's purpose is to _protect_ and _save_
lives, under international law as it is now constituted would hold against
that view, but if there is the _historic claim_ the West Bank and Gaza
(from which Israel has now withdrawn) isn't occupied at all - it is
reclaimed.
BUT, Michael Galchinsky also writes:
"At first glance, international law seems quite plainly to prohibit all
of these activities. No prohibition could seem more straightforward
than the one found in the Fourth Geneva Convention, the one on
protecting civilians in time of war, adopted on August 12, 1949. The
Convention's Article 49, sixth paragraph, reads as follows: "The
Occupying Power shall not ... transfer parts of its own civilian
population into the territory it occupies."
* See page 318 in Adam Roberts and Richard Guelff (eds), Documents
on the Laws of War, 3rd ed. (New York, 2000) for the 1949 Geneva
Convention IV Relative to the Protection of Civilian Persons in Time
of War, Art. 49.
"The phrasing of this
prohibition is absolute, permitting no exceptions. Israel ratified the
Geneva Conventions on July 6, 1951. Moreover, by now, in the view of
virtually all international lawyers and every state but Israel, the
Geneva Conventions have become customary international law, meaning
that every state is bound by them, whether it has formally become a
Party to the treaties or not. From this standpoint, it makes no
difference whether one is referring to Labor's security-oriented
settlements of the 1970s, the Likud-backed Gush Emunim settlements of
the 1980s, Sharon's suburban dormitory settlements around Jerusalem
and Tel-Aviv of the 1990s, or the outposts of the new century. *
* For a history of the religious wing of the settlement movement,
see Amnon Rubinstein, From Herzl to Rabin: The Changing Image of
Zionism (New York, 2000), 111-158; Robert I. Friedman, Zealots for
Zion: Inside Israel's West Bank Settlement Movement (New Brunswick,
NJ, 1992) passim; Peleg, Human Rights, 35-43.
DISPUTED TERRITORY
By all of the above _strict_ readings of current interpretations of the
law as stipulated by the Fourth Geneva Convention it would seem that
Israeli settlements by those who are interpretating the law -- would
maintain that they are illegal. There are Israeli jurists who however
_dispute_ this interpretation and maintain that international law is
weighted against Israel and always has been -- in spite of Jewish
contributions to the establishment of International Law.
There has also been an obvious double standard between the way Israel is
treated in the international community and the way Arabs (you know, the
ones with all the oil) are treated in the UN and the international
community:
ISRAEL IS A PARIAH STATE
Michael Galchinsky writes:
"MANY WHO CARE ABOUT ISRAEL have learned to stop caring about
international law. After all, for forty years, Arab states, members of
the Non-Aligned Movement and the former Soviet Union, have ceaselessly
and atrociously manipulated international law so as to turn Israel
into a pariah state among the nations. The UN's infamous resolutions
equating Zionism with racism are only the best known examples." *
* UNGAR 3379 (XXX): Elimination of all forms of racial
discrimination--2400th plenary meeting determines that Zionism is a
form of racism and racial discrimination (New York, 10 November 1975);
Asian Preparatory Meeting, UN World Conference against Racism, Racial
Discrimination, Xenophobia and Related Intolerance (WCAR), Declaration
and Plan of Action (Tehran, Islamic Republic of Iran, 19-21 February
2001).
"Each spring, when the UN Commission on Human Rights rolls out its
allegations of Israeli human rights violations, this political body
holds Israel to a far higher standard than it does states that have
demonstrated far less commitment to the Geneva Conventions and the UN
Charter."
* The UN Commission on Human Rights (CHR)--a body comprised of the
delegates of UN member states and thus overtly political--has dealt
harshly with Israel from just after the Six-Day War. (There are
entirely too many examples to go into all of them here)
AND, it was Jews who contributed so much scholarship to the development of
international law:
Michael Galchinsky continues:
"It can be hard to remember how much energy and optimism Jewish leaders
invested in the development of international law in the two decades
immediately following the Shoah. Those leaders recalled all too well
what had happened when the first international legal system, the
League of Nations, had disintegrated and left Nazi Germany without
check, to treat its citizens in its own way. Now, it is hard to
remember that it was the American Jewish Committee that convinced the
states' representatives at the San Francisco Conference in 1945 that
human rights should become one of the pillars of the UN's mission. Or
that it was Rend Cassin, president of the Alliance Israelite
Universelle, who drafted the UN Universal Declaration of Human Rights.
Or that a Polish Jew, Raphael Lemkin, coined the term "genocide" and
pushed through the UN Genocide Convention. Or that two generations of
American Jewish leaders saw international law as one of the
cornerstones of their Never Forget/Never Again program, consistent
with core Jewish values like tikkun olam, get lo tilhaz, b'tselem
elohim, kevod haberiyyoth, mippene darkhe shalom, and ben adam
l'havero. For most of these leaders, support for internationalism in
no way conflicted with their support for Jewish nationalism. They saw
the Universal Declaration of Human Rights and the State of Israel as
the twin births of 1948--both dedicated to making Jews safe from
persecution. *
* For accounts of Jewish human rights activism in the early decades
of the UN, see Cotler, Jewish NGOs and Religions Human Rights, 165-87;
Felice Gaer, "Reality Check: Human Rights NGOs Confront Governments at
the UN," in Thomas G. Weiss and Leon Gordenker (eds), NGOs, the UN,
and Global Governance (Boulder, 1996), 51-66; William Korey, NGOs and
the Universal Declaration of Human Rights: A Curious Grapevine (New
York, 1998), 21-88; Nehemiah Robinson, The United Nations and the
World Jewish Congress (London, 1956), 1-120; Moses Moskowitz, Human
Rights and World Order (Dobbs Ferry, NY, 1958), 113-44 and Forward;
and Raphael Lemkin, Axis Rule in Occupied Europe (Washington, 1944)
passim.
The claim that Israel violates the "law of belligerent occupation"
is not valid in the case of Jewish settlements on the West Bank.
The IDF when protecting the settlements is not placed in the position of
being an occupying army. There does not need to be a condition of
"temporary trusteeship" for the IDF to protect settlements nor for the
settlements to be a buffer to protect Israelis.
Israel cannot give the appearance of being a temporary occupation nor does
it need to annex any land; it already belongs to Israel. There is NO
"belligerent occupation." There is no territorial integrity of any
existing state because there is no state which can claim rights in
settlement land except for Israel and by being there is in itself the
establishing of territorial integrity as historic land of Israel.
The U.S. has consistently been wrong when, since 1967, it has voted in
favor of ten Security resolutions criticizing Israel's failure to abide by
the Fourth Geneva Convention, including Art 49 and demanding that Israel
cease settlement activity and dismantle settlements. The 1998 Rome Statute
also does not apply to Israel with regard to resettlement since it can't
apply to land already owned historically for which a deed cannot be given
because no one can claim the same rights. (The Rome Statute's
reclassification of resettlement as a war
crime is unenforceable)
There has also been decades of condemnation by oil interests and an Arab
dominated United Nations with political unfairness in the
Israeli/Palestinian conflict, also obvious by the Zionism=Racism
resolution, and unfair criticism from the UN Commission on Human Rights
and UNESCO, et al., hardly a reason for Israel to now subordinate itself
to anti-Israeli decisions emanating from the international community.
---> Israeli Jurists stipulate that settlements on the West Bank
cannot be a violation of the Geneva Convention because those territories
were NEVER a state. Israel merely filled a vacuum left there by Jordan.
<---
Here is how Michael Galchinsky describes how Israelis differ from the
international community on the issue of settlements and international law:
"...Israeli legal theorists and jurists have differed in their approach
from international norms. According to the 1968 "missing reversioner"
theory advanced by Yehuda Z. Blum, Jordan's aggression against Israel
in 1967 caused it to lose its title to the West Bank, creating a
sovereignty vacuum that Israel stepped in to fill. In that case, the
Fourth Convention would not apply because Israel had not occupied
another state's sovereign territory, there was no sovereign to whom
the territory could revert, and the settlements could not be in
violation of the Convention.
* See Yehuda Blum, "The Missing Reversioner: Reflections on the
Status of Judea and Sumaria," Israel Law Review, 3, 1968, 279; Meir
Shamgar, "The Observance of International Law in the Administered
Territories," IYHR, 3, 1971, 262-77; Arie Pach, "Human Rights in West
Bank Military Courts," IYHR, 7, 1977, 229, 252.
"...the Convention is designed
for armed hostilities between states that are parties to the treaty
(Fourth Convention, Art. 2); the territories do not comprise a state
and therefore cannot be a party."
* Shamgar, "The Observance of International Law in the
Administered Territories," 262-77.
"Finally, the Israeli/Palestinian
conflict does not fit into the Convention's definition of an "armed
conflict not of an international character," because the conflict
occurs in a non-state territory rather than "in the territory of one
of the High Contracting Parties" (Art. 3). According to this argument,
under the terms of the Convention, the Israeli/Palestinian struggle
cannot be classified as either an international armed conflict or a
non-international armed conflict, and these are the only conflicts
covered by the Convention's definition of "occupied territory." Thus,
Article 49's prohibition cannot be applied to the West Bank
settlements." (Galchinsky)
"With the rise of Menachem Begin, the Likud government took this theory
further and claimed that, in the absence of a sovereign, Israel had in
fact taken title to the territory, based on the Jews' ancient
ancestral and biblical claim to the entire Land of Israel. Begin said,
"You can annex foreign land. You cannot annex your own country. Judea
and Sumaria are part of the land of Israel [Eretz Yisrael], where the
nation was born." *
* Quoted in John Quigley, "Loan Guarantees Israeli Settlements,
and Middle East Peace," Vanderbilt J. of Transnational Law, 25
November 1992, 561.
Intentions could not be any clearer than that and with that statement by
M Begin, there was an unambiguous claim which amounted to a de facto
annexation through settlement, a view which is held by many today - that
the land on which the settlements are built is the Land of Israel and as
such annexation is one of the "facts on the ground" of Israel sovereignty.
Even if Israel was in violation of the Geneva Convention with regard to
the settlements, the U.S. constantly chooses to violate international law
for security considerations which it feels outweighs any international
restrictions on internal security policy and goes far beyond the
precautions taken by Israel with building a security fence and
establishing outposts on it's borders to keep out terrorists. While I
believe in many instances the U.S. has exceeded ethical bounds in the
treatment of those perceived (or misperceived) as dangerous, Israel is
far more restrained and has not exceeded it's ethical bounds in protecting
citizens of Israel against those who would destroy them and find it far
easier from a distance of a few kilometers than al-Qaeda attacking the
U.S. from a distance of thousands of kilometers.
Hank Roth
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