In a perfect world, the area previously known as Palestina, would be a thriving democratic nation for all people, regardless of religion, to live in as free and equal citizens. In a perfect world, Palestina’s neighboring nations would allow trade and travel to all people, much like the US and Canada. It’s a lovely utopian thought experiment that has zero to do with reality.
The question isn’t whether the settlements in the West Bank are legal or not, the question is whether having military presence and de facto, military occupation in Area C, is necessary to Israel, and what are the moral consequences and justifications to having one.
If you don’t believe a people should be under military rule, the answer is clear. What makes things complex, is the question of how do we maintain security for both Palestinians and Israelis with zero military presence in the West Bank? How do we let two people, who have been battling for decades, have a right to their lands and homes with the outmost minimal damage to the other?
Alan Baker is the director of the international law program at the Jerusalem Center for Public Affairs, and has served as the legal counsel of Israel’s foreign ministry and Israel’s ambassador to Canada. He was involved in all the negotiations on the various agreements between Israel and its neighbors. Baker argued on the legality of the WB occupation in the following manner:
“ There are three major elements defining Israel’s rights in the West Bank:
Firstly, and underscoring all other considerations, are the international legal rights emanating from the indigenous and historic claims of the Jewish people in the area as a whole, virtually from time immemorial. These rights were acknowledged in 1917 by the Balfour Declaration’s promise of a national home for the Jews in Palestine, and subsequently recognized internationally and encapsulated into international law through a series of international instruments.
Secondly, Israel’s legal rights following the 1967 Six-Day War, as the power administering the West Bank areas of Judea and Samaria (so described in the U.N. 1947 Partition Resolution 181), and the concomitant, unique sui genesis status of the area.
Thirdly, Israel’s rights under international law following the 1993–1995 Oslo Accords between Israel and the PLO, and especially the 1995 Interim Agreement, (commonly known as Oslo 2) which established a unique territorial arrangement as a form of lex specialis, that divided the control and governance of the West Bank areas between a Palestinian Authority established for that purpose, and Israel.”
Since her inception, international bodies have been highly focused on the state of Israel. U.N. decisions to appoint autocratic leaders at the helm of its Human Rights Councils, the recent corruption cases of UNRWA, UNHRC’s condemnations on Israel, which constitute close to 50% of its resolutions, are a few of the frustrating actions and events that have damaged their credibility. The United Nations Human Rights Council has more resolutions condemning Israel than the rest of the world combined. From 1967 to 1989 the UN Security Council adopted 131 resolutions addressing the Israeli Palestinian conflict. The blatantly hyper focus on Israel, leaves these bodies less than desired cogency regarding interpretation of international laws surrounding the issues of settlements and occupation.
The amount of legal opinions as well solutions is a throwback to the old Jewish joke of 10 Jews in a room, 11 opinions. While I tread lightly on my legal understanding of international law, I find myself drawn to those who don’t just argue the minutiae of the law, but provide a long term solution that has both people’s well being in mind. Before we can address one though, perhaps we need to clarify what is the West Bank, how it is divided, and who controls what area.
1967, a war broke out between Israel and Syria, Egypt, Iraq, and Jordan. Up until then, Gaza and Sinai were under Egypt rule, Golan Heights under Syria, and the West Bank under Jordan. No international outrage was called by the UN, as Palestinian national identity, was not yet validated and solidified by the local Arabs living on the land. In fact, the Palestine Liberation Organization (PLO), which was created in 1964, had no qualms with Jordan and Egypt “occupying Palestinian Land”. Their stated goal, via The Palestinian National Covenant (article 24), was to liberate Israel proper. Neither country was considered colonialist or occupiers of Palestinian land. This concept takes flight and accelerates only after Israel takes hold of these regions after a 6 day battle on all fronts.
Following Israel’s victory in 1967, strategic concerns led Labor and Likud to establish settlements under three major waves. By 1968, only five settlements existed beyond the Green Line.The first wave was led by Labor government and lasted for a decade leading to 1977. It was largely motivated by lessons of the brutal wars that preceded it. The main objective was securing Jewish majority in previously attacked areas such as the Tel Aviv-Jerusalem corridor.
The second wave of settlement also began in1968, but was led by Rabbi Moshe Levinger and his wife, Miriam, under religious and historical reasoning. This wave was centered around Hebron, a city that saw its continuous Jewish presence cut short by a massacre of Jewish residents by Arabs in 1929. The attempt by Rabbi Levinger and his wife was cut short in 1971, when they were forced to relocate to Kiryat Arba, ordered by the Israeli Government. Begin’s government (Likud) supported the various religious waves of religious settlers and provided them with financial incentives to relocate. By 1977, 38 settlements were establish with around 2000 Jewish inhabitants.
A third wave can be attributed to economic and financial incentives for people who couldn’t afford housing and/or found the location convenient to their jobs while unable to afford larger housings in bigger cities. Many of them moved from Bnei Brak and Jerusalem and are also Orthodox Jews but it isn’t clear if their motivations were religious at the time as much as housing shortage that was escalating in those cities.
According to Professor Sara Hirschhorn, “Americans comprise about 15 percent of the settlement population. Americans have founded several settlements, including Efrat and Tekoa. Originally, Americans who settled in the West Bank were liberal Jews who thought they were trailblazing pioneers like the Jews who came to Palestine in the early 20th century. Later, Americans moving to the area were predominantly Orthodox Jews.” The shift in extremist attitude came to an overwhelming conclusion when Baruch Goldstein, a doctor who immigrated from Brooklyn, murdered 29 Muslim worshippers in the Tomb of the Patriarchs on February 1994.
The West Bank is divided into three major areas: Area A — under full PA control. Palestinian law and security forces under the presidency of Abbas are the laws of the land and passports are issued under Palestinian constitution and courts. All Palestinians are entitled to citizenship under the Palestinian Authorities, though Gaza residents are under Hamas rule who isn’t recognized by international bodies. Area B — is a mixed governance area under Palestinian civil laws, but security forces are mostly Israeli military with cooperation with PA security forces. Area C — is fully controlled by the Israeli military.
The overall area in dispute is very small. The built-up areas constitute only 1.7% of the West Bank. That is less than 40 square miles. Even if you add the unbuilt areas falling within the municipal boundaries of the settlements, the total area is only 152 square miles. The estimate for the Jewish population in 132 West Bank settlements in 2018 was 427,800, roughly 5% of Israel’s total population and 14% of total population in the West Bank. Not a single new settlement was approved by the government for 25 years except for 2017. Amona, which was illegally built on private Palestinian land was evacuated and a new replacement, legal one, called Amichai, was built instead. We need to understand these details before we go ahead and dispose of any talk of two states.
Many confuse settlements with outposts. They also conflate expansions within an existing settlement with a creation of a new one. Outposts are settlements typically constructed without government authorization. Israel removed some outposts; however, in 2017, the Knesset passed the Regularization Law, which legalized outposts, including those built on private Palestinian land with a caveat of monetary compensation.
Dr. Einat Wilf, a former Israeli politician who served as a member of the Knesset for Independence and the Labor Party, and the author of the book: “The War of Return,” (which she co-authored with Haaretz journalist Adi Schwartz, and is mandatory reading to understanding the top impediment to peace, Palestinian right of return and the function of UNRWA as a major force prolonging and exacerbating this issue), wrote this:
“It must be made clear that the Zionist movement recognizes the existence of another people that also views the land as its homeland. It has a right to this land, so we are willing to limit the fulfillment of our right to this territory. It must be stressed that the Zionist movement expects that at some stage the other side must also limit the fulfillment of its right to the land, and that this right is not supreme or exclusive either.”
Dr. Wilf approaches the idea of coexistence as an equal right to land for both sides but also equal right to security and peaceful existence. She views a “Military occupation is an essential system of government in territories that are not intended to be annexed − until the end of a war. As long as Israel adopts a clear policy that proves its willingness to divide the land, the military occupation of these territories is justified until the other side proves a similar willingness.”
The “Yes to the Occupation, No to the settlements” is an interesting policy approach meant to set clear lines of rules that apply by geographical lines and not religious or national ones. It is one of many but worth a read.
On the right side of the aisle, Naftali Bennet, has laid out a an annexation plan that includes the following:
- Granting 80,000–90,000 Palestinian residents of Area C citizenship which they can decline, or opt for a residency status.
- Apply Israeli sovereignty over Area C while moving out of Area B.
- Removing any and all movement barriers between area B and A.
Any way you slice it, removing people from the land on which they live is a cruel and complicated issue. Lessons must be learned from Israel’s exit from Yamit in Sinai where 2000 Jewish civilians were evacuated forcibly in 1982, the Gaza disengagement, were eviction & demolition of the residential buildings from the Gaza Strip was completed by 2005, or the 2008, Jewish settlers evacuation from Hebron. Additional eviction of the 4 settlements in the northern West Bank was completed after the Gaza disengament. A total of 8,000 Jewish settlers from all 21 settlements in the Gaza Strip were relocated. Very different results were yielded. Mixed emotions are still hanging in the political arena as rocket attacks have become a regular feature of Israeli living.
One thing remains clear; the Palestinian leadership is not interested in signing their name under an agreement that only recognizes a small part of Israel as their land. That effort has taken many shapes and forms throughout the years since the 1920’s early zionist Aliyah to Eretz Israel. A solution needs to take place, and the realization that there will never be one to satisfy all sides, needs to be clear. Israel will inevitably have to annex some land. They will need to have military presence to avoid a repeat of the Gaza takeover by Hamas. And they will have to give up some holy land.