A Matter We Must Solve Ourselves

Whether settlements and outposts in Judea and Samaria are legal or illegal must be judged by the degree of their conformity with Israeli law.


By Moshe Arens

(A version of this column appeared in Haaretz on July 28, 2009.)

“The United States does not accept the legitimacy of continued Israeli settlements,” President Barack Obama declared in his speech in Cairo last month, and called into question the legality of Jewish settlements in Judea and Samaria. But in terms of international law, there is nothing illegal about Jewish settlements there. Although it has been claimed over and over again that the Israeli communities in the territories were established in violation of the 1949 Fourth Geneva Convention on the rules of war, a reading of that convention and an acquaintance with the history of Palestine since the Balfour Declaration and the League of Nations Mandate for Palestine, as well as with the circumstances of the occupation of Judea and Samaria by the Jordanian army in the years between 1948 and 1967, make it clear that that Geneva Convention is not applicable to Israel’s presence in these territories. None other than the late Eugene Rostow, a one-time dean of the Yale Law School, and under-secretary of state under president Lyndon Johnson, as well as one of the framers of UN Security Council Resolution 242 stated that the Jewish right of settlement west of the Jordan river is “unassailable.”

The policy of settlements in Judea and Samaria is therefore an internal Israeli matter, and should not be a subject for negotiations with the United States. Whatever commitments Ariel Sharon made to president George W. Bush, in order to prepare the groundwork for the disengagement from Gush Katif with the Israeli public, were ill-advised and not binding on another Israeli government that was elected on a platform of opposition to that disengagement. It is similarly true that Bush’s promise of American support for the idea of “settlement blocs” in Judea and Samaria, made as part of that arrangement, can hardly be viewed as a permanent commitment regarding U.S. policy in future years.

Whether settlements and outposts in Judea and Samaria are legal or illegal must be judged by the degree of their conformity with Israeli law. And from that point of view there is little doubt that some of those established in recent years were not established legally. It was the same Ariel Sharon who commissioned Talia Sasson of the Justice Ministry to prepare a report on the legal status of settlements and outposts in Judea and Samaria. As might have been suspected, and as Sharon surely knew before he saw the report, the Sasson report found that the Israeli government itself had funded the creation of Jewish settler outposts in Judea and Samaria that were illegal and in violation of stated government policy. One could have died laughing when Sasson, keeping a straight face, handed her report to the man who had been the architect of Jewish settlements and with little regard for the law had instructed settlers to establish themselves on any mountaintop that could be considered of strategic importance.

The fact is that over the years, successive Israeli governments have done almost nothing to enforce the law in this matter. Sharon, who thanked Sasson profusely for her work, also did nothing. What he subsequently did do was to order the uprooting of the settlements in Gush Katif and northern Samaria whose legal status was in no doubt at all, in blatant violation of the civil rights of the Israeli citizens who had been living there for many years.

A relatively large number of settlements and outposts in Judea and Samaria, some in existence for many years, lack a legal basis for their presence there. The forcible removal of so many illegal settlements now represents a serious, if not insurmountable, problem. This is a common problem whenever the authorities have been negligent in their enforcement of the law over many years. It is equally true for many illegal buildings put up over the years by the Palestinian population in Judea and Samaria, as well as for illegal building activity in Israel itself, especially in the Negev.

Under these circumstances, a reasonable government policy would be first to prevent the establishment of any new settlements or outposts that are in contravention of the law, while preparing a list of the illegal settlements in order of the date on which they were established, and dealing with the latest violators first.

Those young people who have established settlements and outposts illegally in Judea and Samaria, and who warn that they will resist the removal of any of those settlements, may be under the illusion that they are performing a great service for the Zionist cause. Actually they are causing it great harm, by creating the impression in the public mind that all settlements in Judea and Samaria have been established illegally.

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