Illegality of Israeli Settlements? Some Second Thoughts
Lewis D. Eigen
Settlements! Whenever any of the media interview Arabs unhappy about Israel, one of the major complaints is that the Israelis keep expanding their settlements which either take more of what is supposed to be Arab land
and/or utilize more of the limited resources of the area–mostly water. The word “illegal” is almost always used in connection with the settlements by critics and many of the American friends of Israel. Yet the Israelis keep enlarging the existing settlements (in housing units if not in geographic territory). The Palestinians are put in the difficult position that the Peace Talks are supposed to negotiate the exact borders and division of the land and allocation of resources, but the Israeli’s keep unilaterally changing the subject of the negotiations–the land borders–at Palestinian expense. The Israeli government is also in a difficult position in that there is a very strong political minority of orthodox Jews who say that God concreated Judea and Samaria for the Jewish People, and no Israeli government has the right to agree to prevent Jews from settling in their God-given lands. Regardless of the law and the decisions of the government, they keep trying to settle on new areas, even as the Israeli Defense Forces remove them, often forcibly. Each such incident causes a major political issue within Israel. The Governments of Israel have thus far been unwilling to crack down sufficiently to stop the new settlement attempts completely. They claim they would do so for a general, lasting and secure peace where the Arabs recognize the right of Israel to exist as a Jewish State. But since that is not close, and one major wing of the Palestinians–Hamas–takes the position that Israel does not have such a right of existence and worse, their charter calls for the murder of all Jews in any part of the world, the Israeli government is not about to go through the internal pain and disunity that would take place when they did officially give up the right of Jews to all of the land God consecrated for them. (Of course no one knows what the precise borders of God’s gift are.)
This article explores a few facets of the settlement problem that are rarely discussed–aspects that will help those people interested in the settlement of the Arab-Israeli conflict might better understand.
Land & War
The claim of illegality of the settlements is based on one of the International Conventions that prohibits accession of territory as the result of war. If this legal principle were taken literally and all past violations remedied, we would be redrawing the borders of much of the world. Start with this reality: There is not a square foot of territory of the Middle East that has not been annexed as the result of war. Most square feet have changed hands and nations many times–almost each time by force of arms. Some Israelis point out correctly that the Jews were ousted from their huge empire in Judea and Samaria by the force of arms. How could it be immoral or improper to take back by force what was taken from them by force. Of course, what most do not say is that the Ancient Jews themselves built that Empire by force. So at what point do we start the moral status quo of who has the right to what land? If we choose the latter half of the 20th Century, then Israel has altered the territory by force. If we consider the first half of the 20th Century, the land belongs to Turkey. It was taken from them by the allies in WWI–by force of arms. The Ottoman Turks “owned” the land for more time historically than any other nation or group. Of course the Turks siezed the land by force, from other Moslems who had taken it by force from pre-Islamic peoples of the Middle East, the Romans, the Jews and so forth into pre Biblical times. Really, only the British transferred control to the Arabs and Jews without a formal war, but there were insurrections of both.
So to pick a point in historical time and say the morality of the world is now reversed, the rules of the game have been changed, and those whose lands have been usurped cannot take it back by force is quite hypocritical. Of course the Israelis who make this point, cannot then turn around and say that it is “illegal” for the Palestinians to try and get control of the land they once controlled using violence and war. Even Jews who think that the israeli settlement policy is self-destructive for Israel if not immoral, observe that it may be a coincidence or it may be anti-Semitism, but why is Israel the only nation which has won territory by war who should give it back. America does not offer to return Indian lands. No one suggests that the Austro-Hungarian territory of much of Europe be returned to Austria and Hungary. China (although they still claim it) is not supported by any other country in their desire to re-control Vietnam. Or cede South Africa back to the Zulus or to the other Black tribes from whom the Zulus took the land by force of arms. Only the Jews seem to be held to this new “enlightened” level of morality and international law. It should be noted however that most of the world has also criticized Russia for taking the Crimea from Ukraine, however the difference there is that it was the Russians themselves who gave the Crimea to Ukraine.
Then of course there is the major justification of most of the Israeli settlers themselves. They have been given the right to all those lands by God! And what religion in the world has not at some point claimed that God’s law trumps man’s law? The extreme, fundamentalist Jews of Israel believe that. Now most Jews of Israel do not, and the majority of Jews outside of Israel do not believe in the literal obedience to the word of God in general as revealed in the Bible. This is true of most people in the world. The irony is that there are three groups of people in the world who do believe that God’s law generally and in this case must supercede human secular law. They are the very fundamentalist Jews, Christians, and Moslems. The fundamentalist Jews and Christians interpretation of His law is that the Jews should have control of the disputed lands. The fundamentalist Moslems agree in principle with their Jewish and Christian counterparts–God’s law must prevail. However, they believe that the Koran trumps and supersedes the earlier Bible and that God changed his will.
Perhaps the most difficult problem that the human race faces in the 21st century is how to prevent minority extreme wings of majority religions in a culture to dominate the religious and civil life and laws of a culture and nation.
Israel Has Never Totally Destroyed the Arabs
There is one difference in the Arab-Israeli conflict over land and virtually all others. The difference is that in other wars, the winners imposed such horrific pain on the losers that the latter sued for peace and agreed to whatever settlement the winners imposed. The Germans in WWII were literally starving to death after the Allies had destroyed the entire German infrastructure and most of the male German population. The Germans “agreed” to cede the territories they claimed to Poland and others, and a peace treaty was signed with a puppet government that had been established by the Allies. The Germans would have given anything after the Russians finally took Berlin, to have a situation like that of the Gazans after Israel attacked Gaza after years of repeated acts of war and thousands of attacks against Israel. No Gazans have starved to death as many Germans did. No Gazan women were been raped by the dominant military forces as the Russians did in Germany. The percentage of the Gazan infrastructure that was destroyed was a small fraction of what had occurred in Germany–Japan also. And as for human casualties, total military and civilian casualties of the Gazans was but a tiny fraction of what the Germans and Japanese suffered. (Hamas themselves have killed more Palestinians than the Israelis have and since the creation of Israel in all the wars between the Arabs and Israel, the Israeli’s have killed far fewer Arabs than the Arabs themselves have in their almost constant internecine warfare.)
The net result was that the Palestinians have not done what almost all other war defeated people have done in history: Make a peace on the best terms that they can get, concentrate on rebuilding their economy, and in most cases become strong allies and traders with the nations who defeated them.
Some argue that the Arabs have not been beaten badly enough. That Israel, with all its military prowess, simply did not have the political will to “finish them off.” Their own traditional morality has simply forbidden that. Others point to the Arab culture, where “face”, dignity, and self-respect are of greater value to the Arabs than is their infrastructure, the lives and welfare of their people, their national aspirations and even the futures of their children.
The other explanation is that the religious fundamentalists in the Palestinian minority have dominated the society and, persuaded many that all Palestinians who may be killed are better off for it as they go directly to Paradise as martyrs, Therefore they are willing to lose many lives and all infrastructure.
Peace Requires Political Control by the Moderate Majority
Almost everyone who has studied the Middle East agrees that if there is to be any solution, the non extreme majorities of both sides have to be able to gain control over their extreme minorities. However on each side, there is a critical factor that has made this impossible in the recent past and so far, the present. In Israel, the democratic structure of many parties in a politically polarized society, gives the extreme religious parties a de facto veto over most government actions. If the settlement growth were stopped–a goal of the majority of Israelis–the existing government would fall. The reality is that simple. In addition, some of the ultra orthodox are so fanatical that they would likely assassinate political leaders who would deny God and the Jewish people just as they murdered Prime Minister Rabin when they thought that he was about to do that. Many Jewish politicians personally fear Jewish terrorists more than Moslem terrorists.
On the Arab side, they do not have the difficulty that democracy imposes on Israel, since although many claim they want to be democratic, the concept of democracy is far from what anyone in the West might recognize, and the prevailing Islamic religious view is that democracy itself is against the will of Allah. However, their predilection to internal violence and assassination makes the Israeli few political assassinations seem like a Sunday School picnic. Thousands of Arab politicians and political wannabes have been slaughtered by the extremists. Anwar Sadat, the great Egyptian who pushed peace foward, didn’t last very long afterward. Political killings and brutal tortures are almost normative in many Arab cultures and amongst the Palestinians in particular. The situation is so bad, that the names of the political victims do not even make the press and media coverage of the area unless it is a major official as in Lebanon. the underlings are murdered frequently.
Many were terribly puzzled as to why Yasser Arafat never accepted the Independent state that Bill Clinton had brokered and Arafat had indicated he would sign. The reason may not be so complex as many of us try make it. He told us himself. He would have been murdered if he had signed. All it takes is one dedicated fanatic willing to sacrifice his own life. Arafat knew better than anyone else that he had tens of thousands, not just a few who were potential assassins if he signed. He had been attacked several times when there were suspicion that he was doing something that some fanatic extremist did not like.
Must Israel Behave Differently Than the Rest of the World Has?
A solution will be difficult enough. But something that plays into the hands of the fanatic extremists on both sides is the harping of many of us in the rest of the world on the niceties of international law. Outside focus in the settlement legality issue is counterproductive. If there were a worldwide return of annexed land in process, the argument could be made for Israel, but in its absence, pressuring Israel alone only increases the sense of the Israeli center that the nation is under siege by a hypocritical world which wants Israel to do what no other nation has ever done before and is not willing to do now. For those Jew’s whose paranoia of anti-Semitism has been justified by the events of the first half of the 20th century, it produces an artificial alliance between moderate and secular Jews and their extreme fundamentalist fellow Israelis with whom they would normally be politically fighting tooth and nail if there were not these artificial causes for the false unity. One left wing Israeli told me:
“I personally am opposed to territorial acquisition by force. I personally would live to see the American Secretary of State go the our Knesset (parliament) and announce that New Mexico, Arizona, Colorado, and much of Southern California is being ceded back to Mexico from whom it was taken by force, (settling the Mexican War) and as part of the new justice of the world that the US asks Israel to give back and relinquish all title and rights to the non-Israeli areas of Judea and Samaria. I and most Israeli’s could get behind that. But as long as we Israelis are the only one, I could not in good conscience say that the Jewish people should be the only ones in the world to give up the right of land by conquest. In our case, our war was defensive–agaisnt all those Arab Armies who attacked us. The Mexican army never attacked you.”
The wagging of the international diplomatic fingers and citing international law also gives more strength and influence to the Arab extremists and religious fanatics. They become more than ever convinced that they are morally right–even some of the Christian West agrees. And the Moslems turn to their word of God, through The Prophet, which makes Islamic land as sacred to them as to the fundamentalist Jews. They become more convinced than ever that the sacrifice of their coreligionists’ lives is for the protection of Islam and is desired by God. And they have arguments to attack and even murder those Palestinian leaders who are more interested in a viable independent state than one that controls ever square foot of “Islamic” territory.
The illegality argument regarding the israeli settlements have been made for almost half a century, and certainly has done no good whatsoever, and many think it has made matters much worse. Israel must abandon the fanatical notion of a small group of religious extremists, not because it violates international law which as we have seen is not totally clear. They must be abandoned because they do no good for the vast majority of Jews who are paying their taxes to support the dream of the ultra orthodox few who neither pay their share of taxes but will not even fight for Israel against the real enemies. They must be abandoned because it is not worth the lives of those innocent Israelis, nor the Arabs who die over land that has no strategic value and de minimis economic value to the people of the region.
So what can be an effective argument to Israelis regarding their settlements policy?
One of the best is the appeal to the Israeli tradition of trying to be a beacon to the nations–to set an example for the world. This was an important concept for the Jews who first established Israel and the Labor Party governments of the past. It is less important to Israelis today as a deep cynicism of moral rectitude is part of the opinion of many who have seen that no matter what they do, so many countries attack their various attempts to defend themselves.
A Beacon to the Nations
There are still many Israelis who still are committed to the idea that by establishing a state in modern times, they have a chance to be a model nation for others to emulate. Ironically they have been very successful at this in many ways. No country has ever developed so rapidly. Their modern, technological society is the envy of many and that has been a model others have tried to emulate. Their water management has changed the way all nations deal with water, including the Arabs who fight their existence. Their education system is a model for many counties for in less than a century Israel has world class universities with students coming from much older nations to study generally and many of the Israeli nation building techniques like reclaiming the desert for habitation and agriculture. Israel’s Supreme Court is prestigious worldwide and its independence of the legislature and executive is rare even among democracies. So it is time that acquisition of land by conquest is ended for a modern, globalized world. In principle, most Israeli political leaders are willing to live within the 1967 boundaries with swaps of land for Israel to include the larger settlements in return for giving other land to the Palestinians to give them a corridor to connect Gaza and the West Bank and other purposes. Fairness is a fundamental Jewish concept deeply embedded both in the Jewish religion and the secular ethics and norms. Not all Israelis will be at all moved by this argument, but the secular Jews, the majority, still value this notion.
The majority of the Israelis still prefer a two state solution so long as Israel be accepted as a Jewish State by the new Palestinian State and have assurances of security. The fear of many Israelis is that the Palestinians might claim to accept Israel, build their state (even with Israeli assistance) but use the time to continue to preach hate of the Jews to the coming generations and build their resources for another full scale war in 20 years to eliminate Israel. But negotiations could provide security guarantees, and that Israeli majority knows perfectly well that the settlement issue is just a major thorn in the sides of both the Israeli and Palestinian peace negotiators. So simply on pragmatic grounds, a halt in new settlements will help pursue the possibility of peace.
Other Arguments of Persuasion
There is an internal political situation in Israel that could also be used to persuade the majority of Israelis to support new settlement cessation. The deeply religious Israeli minority that wants the right of Jews to settle in the land God gave them tend to also be very much opposed to any two state solution. The peace opponents, and there are many but still a loud minority, realize that they can blow up peace talks by more encroaching on Palestinain territory with more settlement building attempts, just as the Palestinian minority that wants no peace settlement so they can continue their armed struggle to oust the foreign usurpers from the Middle East. A suicide bomber of other violent attack on Israel will cause a halt to the Peace Process. For most Israelis the extreme religious drive to settle in Judea and Samaria has not resonance, and that extreme minority is de facto in control of the peace process for the Israeli side. Many Israelis want to “get their country back.” Most Israelis are reluctant to make this schism very public lest the enemies of Israel think they are divided and view it as a weakness of which they can take advantage. But it really does exist. There is no successful peace process possible in Israel unless the majority can gain enough control to prevent the extreme minority from sabotaging efforts to reach a solution, just as the majority of the Palestinians who want peace have to gain enough political control so that Hamas cannot make sure that there will be no settlement.
Positive reasons for ending new settlement expansion is that much money can ge saved by not having to pay for the Israeli Defense Forces to keep the peace as each new settlement produces push back and squabbles with the Palestinians in the area. The majority can also prevent what is a real scam where opportunists pretend to create new settlements for religious reasons when their real purpose is to have the Israeli government pay them a huge stipend to leave the settlement at some time in the future when peace may be iminent. The families who had settled in Gaza were paid large sums when the Israeli government decided to withdraw from Gaza. The majority would gladly put a stop to that.
In summary, positive arguments presented to the Israelis are likely to have much better results than wagging the settlement illegality finger. At worst, it will not have much effect, but the negative legality arguments have made no headway whatsoever.