Ruth Gavison
Haaretz (Opinion)
February 8, 2013 - 1:00am

Israeli government officials are absolutely correct to point out that the UN Human Rights Council is a biased, anti-Israeli body. Nevertheless, one shouldn’t ignore the recent report on West Bank settlements which was written on its behalf, since it reflects the maturation of a prolonged process, typical of international law.

The report reflects the views of the international community that sees Israel not only as an on-going occupier in the West Bank, but one that conducts itself as proprietary owners, perceiving their rights as overruling the Palestinians’ quest for self-determination on part of their homeland.

It should be noted that in contrast to the Human Rights Council’s report, which views the 1967 borders (the Green Line) as the only criterion for the legitimacy of Jewish settlement projects, the Israeli government has before it the report prepared by retired Justice Edmond Levy which states otherwise. This report, basing itself on the same international law, states that the entire West Bank is a legitimate target for Jewish settlement, subject to proprietary rights of Palestinian residents.

The state and its courts have done their utmost to avoid taking an unambiguous stand regarding the legality of Jewish settlement beyond the Green Line in the context of international law. The courts have dealt mainly with property rights of individual Palestinians, such as in the case of Elon More, where expropriation of private land by settlers was forbidden. However, the courts have never addressed the significance and ramifications of the injunction against an occupying state transferring its population into conquered territories. The international community was always critical of the settlement enterprise, but the terminology used was more vague, such as "obstacles to achieving peace,” rather than explicitly about its illegality, as is now the case.

The Rome Treaty of 1998 that established the International Criminal Court laid the foundation for the UN's new report. The treaty explicitly defined the transfer of population to occupied territories by a victorious combatant as a war crime. This treaty had the Israeli-Palestinian conflict in mind when choosing the wording of this definition.

Thus, the declared and consistent policy of transferring Israeli citizens into the West Bank, in the context of a territorial dispute, is now perceived not only as undesirable, but as patently illegal in the eyes of the entire international community, including the United States. This puts Israel on a collision course with international opinion, and it's only bound to get worse.

Changing the debate over the settlement enterprise into a legal one is indeed bad for Israel. There is no distinction between legal and illegal settlements, as judged by Israel, or between Jerusalem, settlement blocs or more isolated settlements. The new discourse entirely ignores local political and security considerations and does not encourage negotiations and mutual concessions. It was understandable, therefore, that Israel objected to including this topic in the Rome Treaty, but it was overruled.

If Israel continues to argue that it is permissible for Jews to settle anywhere in Mandatory (pre-1948) Palestine (other than on private land), which is what the Levy report recommends, rather than claim that this was how it interpreted international law until the issue was clarified, the country and its leaders will face mounting criticism and even sanctions.

After a deliberate suppression of the topic during the election campaign, the new government will have to decide: It must declare either that it supports a two-state solution or that it continues to see the West Bank as part of the Jewish homeland. It must be aware of the fact that the second choice, based on the Levy report, will be an explicit rejection of the commitment to the concept of international law, as perceived by the entire world.

So, in fact, the government has no choice. It’s time that it accepted the fact that, even according to its own courts, these are occupied (or held) territories. As such, they are not part of the state and no "annexation" can alter this fact. According to international law, a country cannot act as the owner of such lands and settle them with its citizens. Such conduct is no longer merely forbidden, but now constitutes a crime.

The government’s obligation does not constitute "surrender" to its enemies, but rather recognition of its commitments to international standards and statutes, as well as Israel’s best interests. Thus, it is of vital urgency that Israel makes a distinction between settlements that are already established, and thus probably not subject to the treaty’s clauses, and settlements not yet built. Negotiations should be based on this distinction.

Not every inch of conquered territory must be repatriated. A conquest that follows a defensive war is terminated when an agreement is reached over security concerns that may have underlain the original conflict. The Palestinians are currently not addressing some of Israel’s legitimate concerns.

There is also some weight given to facts that were established on occupied territory, even if they turn out to have been unlawful, and to the length of time that has elapsed, not all of which was the fault of Israel. Israel is right in arguing that a total dismissal of the entire settlement project and a call for full withdrawal is unrealistic, and not conducive towards finding a solution. It is obvious that some areas will remain within Israel and construction there should be allowed, as opposed to construction in other areas.

Importantly, developments in the region require demilitarization and security arrangements that will not endanger Israel. It is important to seek creative solutions that will minimize the uprooting of Jewish settlers from homes they have lived in for more than a generation. All these considerations disappear when Israel conducts itself as the sole owner of Area C. If Israel persist in its stance that “it’s all mine," it is likely to be countered with “it’s all theirs," rather than with compromise.

Israel should submit a proposal for solving the conflict in which it relinquishes its claims to the entire area, and recognize the Palestinians’ rights for self-determination in part of their homeland, subject to adequate security arrangements. Any further construction should be limited to areas that are likely to remain part of Israel. In practice, all Israeli governments have adopted this stance, which has raised the ire of the right. This was done by the Olmert government and by Netanyahu in his Bar-Ilan speech and at the UN.  This is also reflected in the route followed by the separation fence, despite claims that security considerations were the primary concern.

For many years now, Israel’s governments have distinguished between areas within this fence, including Jerusalem and settlement blocs, and those that are beyond this fence, where Israel does not build and occasionally even acts against private initiatives. However, this has never been openly stated. The policy is also often accompanied by a wink and a nod to the settlers in their expansion endeavors, as well as by imposing restrictions on Palestinians on their own land. In its stuttering, the government does not win over supporters of the settlement movement but it does distance itself from the international community and from many Jewish citizens of Israel.

The establishment of Israel and its achievements are incredible by any standard. It would be a shame to risk it all, along with the faith in the justice of our cause shared by the majority of Jews who wish to live here as a free people on its land. The Palestinians erred in 1947, and again when they later underestimated the determination of Israelis to preserve their home and independence. Israelis would do well not to underestimate the Palestinian struggle against the occupation, viewing it as an anti-Jewish campaign.

Conceding part of our homeland, recognizing that another nation also lives here is not a relinquishing of our strong historic ties to the entire land. Only by offering Palestinians sovereignty over part of their homeland can Israel demand support at home and abroad for the realization of its own dreams. Only this will isolate those who call for the enforcement of international law in order to destroy Israel’s independence in any part of the land.

This is not only an issue of international law, but of Jewish wisdom. "Do not do unto others what is hateful to you" is not only a moral imperative, but also a practical one. Trying to over-reach may leave one empty-handed. It is said that “Zion will be redeemed by law” – this does not concord with use of force or with waiting for miracles from above.


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