Update: Kfar Etzion, Ma’aleh Adumim and the Law

Gershom Gorenberg

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.

7 thoughts on “Update: Kfar Etzion, Ma’aleh Adumim and the Law”

  1. I don’t have the legal background to argue the points you have. You claim that Rostow (whom you seem to claim is a bigot and racist because he disagrees with you) is a “tiny, minority opinion”. However, as I understand it, when President Carter said “settlements are illegal”, the international law division of the State Department said that is not so. Is this correct?
    You state that the Geneva Convention prohibits expropriation of land. How does this make the settlments illegal if they were NOT built on exprorpiated land but state land, which is the case with most, as I understand it? Also Jews have privately bought land, and also owned land in Judea/Samaria before 1948. So what’s the problem with building settlements on those locations?
    Politically, the large majority of the Supreme Court is on the Left and politically agrees with you. So why haven’t they ruled that all the settlements are illegal, if the case is so clear as you make it?

    In any event, according to your logic and precedents, much of pre-1967 Israel is full of “illegal settlements” because it was captured in a war outside the boundaries of the UN Partition Plan of 1947 and the Arab owners fled, but did not give up their claims of ownership. Or is that “different” because MERETZ-affiliated Kibbutzim grabbed that land, and since they don’t wear kippot, they are entitled to it, unlike the settlers in Judea/Samaria whom you don’t take a liking to?

  2. YBD: “Also Jews have privately bought land, and also owned land in Judea/Samaria before 1948. So what’s the problem with building settlements on those locations?”

    If you are prepared to let Palestinians build settlements everywhere they owned land before 1948 (including, needless to say, in Israel proper), then go ahead, and more power to you. Goose, gander.

    The Supreme Court hasn’t ruled on all the settlements because is has never been asked to.

    The prohibition on moving one’s civilian population into an occupied area is entirely independent of ownership of the land. It’s self-evident that everyone in living their life makes abundant use of land they do not personally own, if it’s only crossing the public road to go for groceries. The relevance for the OPT is just as self-evident, especially at this time of the year, when some thugs among the settlers will once again try to prevent their neighbours from bringing in the harvest.

    You do have a point about the robbing of those who fled or were expelled from the land captured in 1948. (It wasn’t “just” the land, their movable property, even their bank accounts were robbed, too – there is no other term than “armed robbery” for this.) The difference is not that those were “good” settlers, as opposed to today’s “bad” ones – the difference is that the PLO in 1989 and again in 1993 recognized Israel.

  3. fiddler, the difference is not the PLO, but Israel itself: the territories conquered in the 1948 War were annexed by Israel, with (remaining) Arab inhabitants given (nominally equal) rights as citizens (eventual), and the borders were recognized by every country in the world except Iraq. Meanwhile, the territories occupied in 1967 aren’t Israel according to any government (Israeli, American, or otherwise) in the world, making Israelis moving their colonists – whose presence destabilizes the whole region (arguably, the world) and forces the Israeli army to continue to occupy Israel to defend them…and thus, bad.

  4. Thank you for bringing up the Oslo Agreements. Fiddler-The Oslo Agreement barely mention the settlements. The Palestinians did not insert a clause saying the are “illegal”, the agreements imply their future will be determined politically.
    So we can say that the PLO recognized their legality, just as you say they did regarding the territories Israel occupied in 1948.

    Why hasn’t the Supreme Court not been asked about the settlements “legality”? Doesn’t Shalom Achshav and various other organizations do things like that?
    What if the Court were to rule they are all “illegal”? Do you think the gov’t would suddenly order the residents out? Why hasn’t the UN Security Council passed a resolution that the settlements are illegal? I know what you will answer “because the US will veto such a resolution”. So , again, it comes down to a political question. Working one’s self into a “righteous fury” over the supposed “illegality” of the settlements is simply a waste of energy. Olmert has already said he would withdraw to the pre-67 lines. So to him, the legality or illegality of the settlements is irrelevant. If using the matter is rather a form of political propaganda, meant to turn Israeli public opinion against the settlements, then it opens up the whole question of 1948 and the “legality” of the presence of Israel in the territories occupied then. Don’t forget, although you claim that the PLO “recognized” the 1948 borders, they also insist to this day on the Palestinian “right of return” which means they do NOT recognize Israel’s sovereign rights within those borders because they claim to have the right to force Israel to accept the refugees against its own sovereign will.

  5. YBD, you’re right, the Oslo accords don’t deal with the settlements. So? Here’s Arafat’s letter to Rabin, of September 9, 1993:
    http://www.jewishvirtuallibrary.org/jsource/Peace/recogn.html
    So he explicitly recognized Israel and renounced the contrary articles in the Palestinian Covenant.
    How you glean from the absence of a statement about the settlements a recognition of their legality is beyond me.
    Here’s a proposition: break into someone’s house and steal something. Get caught. In court, make your defense strategy that, since the house owner hadn’t explicitly prohibited your burglary, the ownership of the stolen goods will be determined “politically”, that is, you’ll keep them (until the cops bust your door and take them away). If your attorney doesn’t tell you you’re nuts, the judge will.

    Now that Olmert is on the way out, he can very conveniently promise the Palestinians the moon. Even if he’s sincere, he won’t have to make good on it.

    I’m afraid you’re right to be skeptical about the govt following a possible court decision against the settlements. House demolition orders are almost always enforced against Palestinians, rarely against Jewish Israelis. The army’s practice of taking Palestinian human shields continued after the 2002 injunction and the 2005 ban by the Supreme Court. When it relates to Palestinians, everything’s “political”; who needs such quaint concepts as the rule of law.

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