The repeated demands by Barack Obama and the Europeans for a freeze on settlement construction reveals that Benjamin Netanyahu's promise - that Israel will neither build new settlements nor expropriate land for the benefit of the settlements - is nothing more than an effort to throw sand in the public's eyes.
Customary international law gives occupied nations an absolute right to the ownership of their land, so land cannot be expropriated. Israel's practice of expropriating land in accordance with Jordanian law is permissible only if the land is taken for a purpose that serves the public. Only once has Israel expropriated land for the sake of establishing a settlement - 30,000 dunams (some 7,500 acres) for Ma'aleh Adumim. But after applying Israeli law to East Jerusalem, Israel expropriated one-third of the 70,000 dunams it annexed for the sake of building new Jewish neighborhoods.
An occupying power is entitled to seize land temporarily for defined security needs, after paying compensation to the owners, but this does not give it any property rights to the land. Once the security need has passed, the land must be returned to its owners.
Israel made use of this loophole between 1967 and 1979, issuing "military seizure orders" for some 50,000 dunams for "security needs." It then established settlements on this land, such as Kiryat Arba and Beit El. But the High Court of Justice's ruling in the Elon Moreh case, which overturned a military seizure order and ordered 5,000 dunams returned to the village of Rujib, closed this loophole.
In part, this was thanks to the testimony of Menachem Felix, one of the leaders of the Gush Emunim settlement movement: "Basing the seizure order on security grounds ... can have only one interpretation: making the settlement temporary and fleeting. We utterly reject this frightening conclusion .... We all see Elon Moreh as a permanent community, no less so than Degania or Tel Aviv." After that, Menachem Begin's government decided that settlements would henceforth be built only on "state lands."
Israel's initial land reserve, through 1979, stemmed from its declaration as state lands- in an order issued immediately after the Six-Day War - of some 700,000 dunams that had been registered as belonging to the government of Jordan. Between 1980 and 1984, Israel declared another 800,000 dunams as state lands, bringing the total amount of land at its disposal to about 25 percent of the West Bank. Most of the settlements were established on these lands.
Thus Israel does not need any further expropriations or declarations of state land. The built-up area of all the settlements combined, with their 294,000 inhabitants, does not exceed 60,000 dunams, or 1 percent of the West Bank. There are hundreds of empty apartments in these settlements. And the settlements still have another 350,000 dunams available for building, based on their master plans and their municipal boundaries, which encompass 550,000 dunams in total.
Netanyahu also does not really need to establish new settlements; he only needs to finish "laundering" the outposts established before March 2001, when Ariel Sharon became prime minister. Israel only promised to evacuate 24 outposts that were established after that date, out of a total of about 100. And Netanyahu could not launder the remaining outposts in any case, because most of them were built wholly or partially on private Palestinian land.
In negotiations on a final-status agreement, it would be possible to reach understandings with the United States and the Palestinians on the completion of projects that are almost finished - for instance, in Ma'aleh Adumim - and new construction within the built-up areas of certain settlements, mainly Modi'in Ilit and Betar Ilit, which abut the Green Line. But to demand more than that in exchange for Netanyahu's speech at Bar-Ilan University - for instance, the trick of relocating Migron settlers to Adam or "high-rise construction" - looks like an attempt to put one over on the Americans. And the Americans are quite familiar with the Sasson and Spiegel reports on the settlements and outposts.
The writer is a member of the board of the Council for Peace and Security and one of the founders of the Geneva Initiative.
Front Page Features