The last week has been rather packed, and not just because of two days of Rosh Hashanah. On the first night of the holiday, while my wife and kids and I were at the synagogue praying, our kitchen caught fire. By the time we got home, the fire crew had been and gone. A cop was standing in the dark, smoke-filled, wet apartment to calm us – and to tell us we’d need to find someplace else to stay. Thank God for my friends and especially for my congregation, Kehillat Yedidya. Generosity has turned this from a crisis to an inconvenience.
In the meantime, though, I’ve been remiss in putting up the links to two new articles.
In the Washington Post, I wrote this article on a recurring pattern: Poorly implemented diplomatic initiatives on Israeli-Arab peace have actually spurred settlement construction. A prime example is Ma’aleh Adumim, born of the failed talks with Jordan in the mid-70s. It was also born in flagrant violation of international law:
The government’s method of acquiring land for the settlement was audacious — and, until now, well hidden. After a tenacious freedom-of-information legal battle, Israeli human rights activist Dror Etkes of the organization Yesh Din recently received data from the Israeli army’s Civil Administration on West Bank land expropriations. In April 1975, Israel expropriated 11 square miles east of Jerusalem “for public use.” In 1977, another square mile was taken.
On his laptop, Etkes showed me an aerial photo of the settlement today, superimposed on a map of the expropriation. Most of the built-up area of Maale Adumim lies inside the land that was confiscated.
This is a prima facie violation of international law. Under the 1907 Hague Convention, an occupying power may expropriate land only for the public use of the occupied population. Taking private West Bank land for Israeli use is therefore barred.
Meanwhile, my article on the 41st anniversary of Kfar Etzion went up at the Ha’aretz site – in Hebrew, and in English translation. As I explain there, the long-standing Israeli consensus on settling at the Etzion Bloc is based on some lazy and dangerous thinking:
The feeling was that those who lost their homes must return. Settlements that fell and were etched in national memory must be reestablished. If the refugees themselves or their descendants were not interested in going back, other Jews would “return” in their place.
In other words, the right of return for 1948 refugees was taken as self-evident – if the refugees were Jews. That became a diplomatic position. In negotiations, no Israeli representative would dream of giving up the Etzion Bloc. Rather, the Arab side will have to accept our emotional tie to the place… Can there be a greater folly than Israel insisting on reopening the file of 1948 and returning all the refugees to their homes?
As I’ve noted before, Prime Minister Eshkol had been warned in advance by the Israeli government’s in-house authority on international law that civilian settlement in the West Bank was illegal. He went ahead anyway. The manner in which he did so showed that he accepted the validity of the legal opinion: Since civilian settlement was illegal, Kfar Etzion was deceptively presented as a military outpost:
The public, and Israel’s representatives at the United Nations, were told that Kfar Etzion would be an outpost of Nahal, the army branch combining active duty with settlement training.
A secret military order dated September 27, 1967, the day the settlement was established, says the tie between Kfar Etzion and Nahal is “a ‘cover’ for purposes of the diplomatic battle,” but “there is no intention of practical steps by the Israel Defense Forces to implement this ‘cover.'” This was deception, carried out under orders, intended to hide a violation of international law.
I discovered that order, by the way, in the IDF Archive, as a result of a long legal battle for access. Here’s the place to express gratitude to the Association for Civil Rights in Israel for its dedicated assistance in that fight.
This may also be the place to clarify some concepts:
As Israeli Foreign Ministry legal counsel Theodor Meron wrote in 1967, the Geneva Convention bars the occupying power from settling its citizens in occupied territory. The prohibition is comprehensive. The purpose of the settlement is irrelevant. The settlement need not be forced relocation. There is no doubt that settlement was and continues to be a project of the Israeli government, which provides funding, logistic support, planning and security for settlers.
The fact that no state has recognized sovereignty in the West Bank is also besides the point. The purpose of the Geneva Convention – as top scholars in the field have explained to me – is to protect the population of the territory under occupation. The purpose is not to protect the sovereign rights of a country that lost territory. While almost no one has recognized Jordanian sovereignty in the West Bank, absolutely no one in the international community thinks that the territory is under Israeli sovereignty. That includes Israel, which controls the West Bank under the status of “belligerent occupation.”
The Israeli Supreme Court has never ruled on the legality of settlement as such. If you want to understand the technical reasons for avoiding such a ruling, read David Kretzmer’s authoritative work, The Occupation of Justice.
However, both the Court and the government have accepted that the 1907 Hague convention applies to the West Bank. That convention bars confiscating private property. The Court first stepped in to prevent confiscation in the 1979 Elon Moreh case. Prima facie, the expropriation at Ma’aleh Adumim also violated the Hague Convention. Since the expropriation was not challenged in court, the Supreme Court never ruled on it.
One could make an argument that settlement in the Etzion Bloc does not violate the Hague convention. The argument would be a bad one for several reasons:
- The settlements at the Etzion Bloc now use much more land than the original grounds of the four pre-1948 kibbutzim in the area.
- It is extremely foolish for Israel to seek return of 1948 property to refugees who left their land at that time, as I’ve argued above.
- Settlement in the area would still violate the Geneva Convention.
Oh yes, I know that Eugene Rostow disagreed. Rostow’s position on this subject is akin to that of a legal expert still arguing for separate but equal schools in America, or claiming that the federal government has no right to impose an income tax. To say he is in a tiny minority would be to exaggerate the amount of support his position has.
Now that I’ve stated the basic legal info on the subject, I am sadly prepared for the usual misconceptions to be repeated in response. Sigh.