Sunday, March 21, 2010

Illegal Settlements

Veteran reader David Sigeti wonders if I'd like to comment on this article, in which former US ambassador to Israel Daniel Kurtzer writes about the illegality of the West Bank settlements. Kurtzer's thesis is that much of the settlement activity is illegal - and has been throughout - even by the standards of Israel's legal system.

It's an interesting read, mostly for the quick and truncated glimpse it gives us behind the scenes of the American-Israeli relationship; on one level, the American ambassador has routine access to top-level Israeli officials to a degree unmatched by most regular Israeli citizens. (There's also an amusing anecdote, when Kurtzer and some Israelis are trying to agree on where the settlements end, and Kurtzer has relevant secret American intelligence data he's not able to share with the Israelis: because it came from satellites? From Palestinian farmers? From American moles in Israel's officialdom? He doesn't say, alas).

The most interesting thing I come away from the article with is how fiendishly complex the matter really is, with almost no ability to reach agreements about the simplest facts of almost any part of the story. What is the legal case? Who owns which land? How does anyone know? When is a legal document "right", if at all, ever? If an attorney states a legal position, how do you decide if it's law, or politics, or both, or neither?

For a number of years I've been idly telling myself that once Israel leaves the West Bank, I'd like to write a book about the settlement project and Israeli society. The book can't be a book of history until after the story is over, of course, which is one reason I never started working on it; Kurtzer's article indicates that long before writing about the project and Israeli society, it will first be necessary to figure out what the project was. The simple facts. Because something like 90% of what people think they know to be facts, are actually little more than ideologically-driven hearsay.

Take the fundamental question: who owns the land. I don't know the answer, which in any case would differ according to whichever plot of it you're standing on. I do know, however, that contrary to everything the media ever tells you, most of the West Bank is barren hill-sides or dessert, and has been forever. It's not fertile farmland, not olive groves nor vineyards, and certainly not towns and villages. Thorny hillsides, dry and dusty ravines. Before you determine who owns pieces of it, you're going to have to figure out how they may have come to claim that ownership.

Back to Kurtzer's thesis, however: I expect he's roughly right. Much of the settlement project happened in murky gray zones on the edge of legality, some of it on the outside parts of it. This is not the reason the settlements need eventually to be disbanded, most of them: that's a matter of politics. As regular readers will recognize, I'm of the opinion that in matters of international relations politics, power relations and national interests generally trump legality. When they don't, it's often because the power brokers managed to have the law written to fit their purposes. Sorry if that makes me sound like a cynic.


Anonymous said...

off topic but just in case your press missed it there is misbehaviour out there that Israel is not guilty of:

Turkey's Erdogan is all over German news because he has loudly complained that Swedish parliamentarians of Turkish descent have enabled the Armenian Genocide bill to pass - his catch line is: once a Turk always a Turk on and on through the generations endlessly irrespective of passport held.

as he made the same demand in a public speech while visiting Germany the commentariat is less than amused i.e. not in my own backyard ...


Avigdor said...

You also haven't made a distinction between "disbanding" the settlements, and relinquishing sovereignty over them.

And why not? Fayyad has broadly welcomed the new "Palestinian Jews". Why doth Yaacov Lozowick protest? ;)

NormanF said...

There are too many Jews to be forced out. Its the Arabs, the UN and the rest of the world who are living in denial of reality. And the more they continue to try to change things back the more it will become impossible for them to do so. Seeking to make Yesha and Jerusalem Judenrein will only set back efforts to achieve peace.

Yaacov said...

Victor and Norman -

It's fine with me if everybody agrees the settlers can remain under Palestinian sovereignty, shoud there ever be such a thing. The matter is that I've never yet met a Jewish Israeli who'd be willing to live under Palestinian rule. Would you?

Matter of fact, even most Palestinians who've got Israeli citizenship proclaim loudly that any suggestion that there towns be moved to Palestinian sovereignty is a horrendous idea if not worse.

And in secret, when there are no journalists around, many Palestinians in East Jerusalem admit they, too, would prefer not to live in Palestine. Who will pay them social security, Israeli wages and so on. You can see their point.

Avigdor said...

I've mentioned the canary in the coalmine metaphor before, right Yaacov?

If the Arabs will not let a few thousand Jews live in their midst, then they will not let a few million Jews live across the border.

I HAVE spoken with several Jews prominent in their settlement communities, like Shilo and Kfar Tapuach, who will stay, regardless of who controls the land.

If the Palestinians keep to their commitments, then there will be no problem with security, right? We all know that Palestinians always keep their commitments.

We should be unremitting in advocating for the rights of "Palestinian Jews" to remain in their homes. This is especially true when the only people advocating the "disbanding" of the settlements are Jews, not Arabs! What's up with that?

The money to sustain, secure and grow their communities can come from abroad. I'm working with the Shomron Regional Council on a long term community funding mechanism even now.

Yaacov said...

Well, good luck on that. It will never happen, but I don't see the problem with trying.

Avigdor said...

More enthusiasm! Where's that Zionist zeal, Yaacov?!

Think of it like this - what will be easier for Israel, to ethnically cleanse 70,000 people and deal with the consequences, or to hand off sovereignty and then demand Palestinians afford the Jews equal rights, housing, discrimination, etc.

Anonymous said...

how much protection do you grant the remaining villages/housing projects?
arm them to the hilt with the latest and best and how do you get supplies to them if their new sovereign doesn't allow it? Or do you think you will be able to prevent pogroms by singing Kumbaya?

and that is only one of many many questions that arise if you force population on a sovereign who doesn't want it - even if all the international community would support it which is a wild dream I can't see it becoming feasible - the indoctrination to hatred has been going on so long that it would take quite some time to change perceptions - material well-being alone won't do the trick just the opposite - take our really well-off class of teachers etc. you'd have a hard time getting more delusional in your world-views than they are.


Anonymous said...


Thanks very much for looking into this. I must say that your take on the subject of land ownership in the territories is pretty much what I had feared, that the whole thing is almost impossible to entangle. I was hoping that you would have some information that I did not. For the purpose of arguing with various demonizers of Israel, it would be nice to be able to say that the settlements are built entirely on state land. Barring that, it would at least be nice to be able to say what percentage of settlement land was originally private land. It looks like the error bars on such a percentage are likely to be so broad as to render any estimate useless. Is it correct to say at least that no one is evicted from their home to build a settlement?

David E. Sigeti

Avigdor said...


I'm in touch with Jews living in these communities, and not merely any Jews, but security coordinators whose job it is to defend the villages. I would never presume to know what is best for them. If they tell me that they know what they're doing, and all they need is a little financial support, then I trust them to protect their own families.

how much protection do you grant the remaining villages/housing projects?

You have to remember, these Jews have lived among the Arabs for decades. The men have all been through basic training (thanks Israel!) and many have gone through elite units. They have complete situational awareness, excellent understanding of the terrain and all the motivation one could hope for. They don't need our advice on what is necessary to secure their communities, only our help to do so.

You assume that Israel helps to arm these communities. This is not the case at all. In most "remote" villages, the IDF has already pulled out months or years ago. All their security arrangements are made by community members with the training to do so, paid out of their pockets and donations.

In much worse circumstances, so very few Jewish communities have ever fallen, even in the face of regular Arab armies, that discussing such an outcome - where a Jewish village would be overrun - is completely unrealistic. With sufficient preparation even a small community of 100 families can defend itself from a massed assault. And help will come. If not from the IDF, then from the surrounding Jewish villages and volunteers from Israel itself. There will never be a pogrom of Jews next to a State of Jews. This is not "pinpoint strikes" by the IDF they will be dealing with. This will be civil war. If ever such a thing is ever tried Arab blood will flow until they beg for mercy.

how do you get supplies to them if their new sovereign doesn't allow it?

How did supplies get through during the second intifada? You think the IDF provided an escort to every Israeli car going to a village in Yesha? Is it a problem? Yes. Can it be solved? Of course. Armor plated buses are already in common use.

All this assumes that the Palestinian Authority will not attempt to impose order. Presumably, they will be under some pressure to limit violence against Jewish communities. Right, Silke? We're expecting a civilized state, right? Otherwise, why give them a country, right? Right?

Or do you think you will be able to prevent pogroms by singing Kumbaya?

You're not talking to me. You're talking to some of the best trained soldiers on the planet, with years of experience in dealing with the Arabs, and with their children behind them. If they tell you they can handle it, would you believe them?

Avigdor said...

and that is only one of many many questions that arise if you force population on a sovereign who doesn't want it

Silke, I don't know if you've noticed, but I couldn't care less what the Palestinians do or don't want. Believe me, they don't sit around worrying about what Jews want. My priority is to protect Jewish life and Jewish rights.

Ethnically cleansing 70-100,000 Jews and forfeiting their right to inhabit the land is unacceptable. Particularly so, when the alternative is so low cost - ensure Arab compliance with basic provisions for law and order, demand access to all aspects of the state and protest vehemently at the smallest infraction against the Jewish communities.

even if all the international community would support it

The Palestinian Prime Minister, Salam Fayaad has publicly WELCOMED the Jews to stay as part of Palestine! I know quite a few Palestinians - the "moderate" marxist kind - and I can honestly say that I don't know a single one that wants the Jewish settlements to be liquidated. Ask them yourself. Most understand that setting such a precedent will give Israel the excuse to do the same to the Arabs at some future date.

Why are you resisting when the Palestinians themselves are not pushing for such a position?

the indoctrination to hatred has been going on so long that it would take quite some time to change perceptions

That's like saying we should send all black people back to Africa because there is racism in the US. Ethnically cleansing Jews and creating a "Jew-free zone" will provide the stimulus to further hatred, not a lessening of it.

you'd have a hard time getting more delusional in your world-views than they are

I appreciate the rebuke. The only thing I can tell you, which you should take seriously, if nothing else, is that I am not spilling words on the pavement here. The Jews of Yesha have no intention of going anywhere, and they are preparing for every eventuality. The security aspect, they tell me, is completely manageable. Should pressure be exerted on the future Palestinian government to ensure its obligations to its citizens? Of course. That's something you, Silke, and I can do.

Anonymous said...

"you'd have a hard time getting more delusional in your world-views than they are"

just to be clear I wasn't referring to the settlers here not even in the back of my mind but to our own middle-class know everythings, the ones who all of them in no time whatsoever have become experts on international law without knowing even the most basic thing about how to read such stuff.

All my worries and questions stem from having read too much about ancient warfare when all kinds of actors trusted in being able to defend their castles and I keep forgetting the news reel stories of my youth when we were shown Israelis tilling their fields with always a gun in reach. (yes there was a time when our media told us to admire Israelis for that)


YMedad said...

Try this out

Anonymous said...


"Williams said: "Unless there is a way of representing the settlements as

legitimate self-defence"

to me this reads exactly like what Williams is asking for - btw reading about ancient warfare had led me long ago to roughly the same conclusions this guy fills up with details so convincingly.


Menachem Mendel said...

IMHO, when someone like Yoram Dinstein thinks that outside of some Nachal settlements, West Bank settlement is illegal, the legal argument has an uphill battle.

See his article, "Problems of Belligerent Occupation," in the Israeli Yearbook of Human Rights, vol. 7, 1977, pp. 217-218.

It's also worth reading this article about the legal approach of Julius Stone, probably the most vocal supporter among legal scholars of Israel's legal right to settle the West Bank.

Avigdor said...

It's also worth looking at the author, Ben Saul's previous legal responsa:

Wearing Thin: Restrictions on Islamic Headscarves and Other Religious Symbols

Exclusion of Suspected Terrorists from Asylum: Trends in International and European Refugee Law

Defining 'Terrorism' to Protect Human Rights

The Curious Element of Motive in Definitions of Terrorism: Essential Ingredient - Or Criminalising Thought?

Defending 'Terrorism': Justifications and Excuses for Terrorism in International Criminal Law

A brilliant mind, no doubt.

Yaacov said...

David -

I don't remember any cases where Palestinians were evicted from their homes, nor even from fields they were cultivating, in order to set up settlements. Tho even then, who knows? If an uncle sold the entire family plot to Israelis, and they then removed the nephew who refused to accept the sale, how do you count that? Such cases occured, I have no doubt (and can even think of at least once case I know of). And of course, there are the (few) Jewish thugs who forceully evict rightful owners from their fields at times - but these cases are rare, even if they're always widely reported.

Yisrael -

I'm not a great fan of basing our claim to the land on the San Remo conference et al. On the other hand, the idea about the Jews who were evicted prior to 1948 returning thereafter: I'll try that one out on some legal types I know, and let's see what they say. I'll come back to report in a few days.

Menachem Mendel said...


Do you have any substantive critique of anything that Ben Saul has written? His article on Stone was an interesting read and I see nothing wrong with a discussion of someone whose position was in the minority on a much-discussed question of international law.

Avigdor said...

I'm merely providing more references to legal works by Ben Saul. I thought you would be pleased. Is there a problem?

Menachem Mendel said...


If there was no sarcasm intended by your comment, I apologize. When you wrote, "A brilliant mind, no doubt.", it didn't sound like your intention was to point out his other writings for enrichment purposes.

Avigdor said...

Sarcasm was implied. I've never trapped someone in faux innocence(?) before, so there's that. Good luck in your studies Menachem.

Anonymous said...

Top Writers from the New Yorker discuss the US-Israel flare up - to my ear they sound outright petulant being especially miffed that the WHOLE world is loving Obama only the Israelis do not - letting these people pontificate on their petty world views and complaints can't be good for their standing in the long run.

My question is:
now it is all about demography, and nothing but demography and nothing about geography - the fact how narrow Israel is is not to be mentioned that would be unsophisticated out of date unfashionable ...


YMedad said...

Just to clarify, Yaakov wrote: "I'm not a great fan of basing our claim to the land on the San Remo conference" so to clarify: I do not base it but point out that the entire civilized world in the post-WW I period, almost 60 nations recognized the historic Jewish connection to our national homeland and that is the phrase that defines our right, our claim, our justification. That reality of a connection and its history is what provides us the right which the nations admit is true and genuine and correct. We could have gone on with immigration and upbuilding and eventually waging a liberation struggle without that recognition and probably would have obtained independence (which is basically what happened anyway after the British reneged on the Mandate concpetion already in 1920) but those steps, Balfour, San Remo and League of Nations and Anglo-American Convention of 1924 all oblige the nations. If they try to back out, they have to explain why, not us because we know why we are in Zion.

Anonymous said...

just in case this also applies to the West-Bank ...
- if it does it means that two totally opposing systems/traditions of land-ownership meet/clash and any attempt to regard it through the filter of "our" concepts is bound to be dead-wrong as is the other side's - therefore any clerk of the power that is realizing that he/she is in the midst of a perfect Catch22 will cut any corner possible to avoid total standstill of everything and he/she will do that in desperation no malign ideology/partisanship or whatever needed - in real life you just can't tolerate the files accumulating endlessly.


"The answer may be as boring as a real-estate title search.

Caliphs and sultans did not bestow feudal lands on a hereditary nobility. Fiefs were generally temporary. Land was given to a particular person for a certain time in return for military or other services. Agricultural estates were your salary. You got a raise by squeezing everything you could out of them. And you had to do it quickly, before you lost your job. There was no incentive to invest in the land, much less in the people who tilled it. This was a carnival concession. You were never going to see these rubes again."

Anonymous said...

my feel-good find of the morning - a short summary of the history of the Olmert-proposal - read and enjoy that there is a commenter left that does not envisage Israel as a Disney-Land like alike -

A familiar obstacle to Mideast peace: Mahmoud Abbas