The legality of house-building for Jews over the Green Line (which I shall call “settlements” for short and not for any other political reason) has been the subject of much discussion in recent months, culminating in John Kerry’s unreasonable outburst at Netanyahu that “illegal building” and “land-stealing” will ignite a third intifada. (NB: I use the term “Jews” and “Jewish housing” rather than “Israeli” advisedly. There appears to be no opposition to Palestinian house-building in those same territories, even if built without the necessary permits and licences, and even if built on land intended for Israel).
The American Administration has also done its utmost to tie the settlements to the
capitulation nuclear disarmament talks with Iran in its attempt to strong-arm Israel to agree to an agreement with Iran , and it appears that even Prime Minister Binyamin Netanyahu has taken that conflation under advisement.
Netanyahu also claimed that bad press regarding Israeli construction in the West Bank harms current diplomatic efforts aimed at halting Iran’s nuclear ambitions.
Addressing the Knesset in a special session focusing on the housing crisis currently facing Israel, Netanyahu said continued economic pressure on Iran was the best alternative to two other options, which he described as a bad deal and war.
“I would go so far as to say that a bad deal could lead to the second, undesired option,” he said, referring to war.
The prime minister further noted that Housing Minister Uri Ariel’s plan to build 23,000 housing units in the West Bank creates “unnecessary clashes with the international community – at a time when we are making an effort to convince the international community to reach a better agreement with Iran.”
“In recent months we have been building and have offered numerous tenders for thousands of housing units,” the prime minister said, adding “it wasn’t easy, but it never is. Nonetheless we did it responsibly, as we have been doing for the last four years, standing in the face of international pressure.”
Hinting criticism at Ariel, Netanyahu further said “there is no need to take additional steps which are unpractical and testify to a theoretical potential in building, it creates friction with the international community. (Minister Ariel’s plans) are unfeasible and are not part of any real process. We need to fight for something real, practical and legal.”
Regarding the move’s timing, Netanyahu said that “at this time it is especially pointless wasting efforts, energy and expensive political clout for something that has no real world implications and in my opinion, harms settlement. We need to fight for those things that yield real results.”
On Tuesday, according to a PMO statement, Netanyahu slammed Ariel for “circulating the plan without coordination.”
Netanyahu does have a point that if Israel is going to build, we need to do it sensibly and logically and without enraging the outside world, especially those nations who are negotiating with Iran. He is also correct that his ministers should not act without consultation and without proper planning and shouldn’t make bombastic statements without any cover.
However it is precisely because the international community, aided and abetted by a hostile media, conflates the issues of settlements and Iran, and moreover constantly accuses Israel of acting illegally in building Jewish housing over the Green Line, that we must counteract this libel about the illegality of the settlements.
In fact the accusation of the settlement’s illegality was rebutted back in 1979, as Eli Herz writes at Myths and Facts:
The following excerpt, stated in June 1979, is sadly still relevant 34 years later:
“A corollary of the inalienable right of the Jewish people to its Land is the right to live in any part of Eretz Yisrael [Palestine], including Judea and Samaria which are an integral part of Eretz Yisrael. Jews are not foreigners anywhere in the Land of Israel. Anyone who asserts that it is illegal for a Jew to live in Judea and Samaria just because he is a Jew, is in fact advocating a concept that is disturbingly reminiscent of the ‘Judenrein’ policies of Nazi Germany banning Jews from certain spheres of life for no other reason than that they were Jews. The Jewish villages in Judea, Samaria and the Gaza district are there as of right and are there to stay.
“The right of Jews to settle in the Land of Israel was also recognised in the League of Nations ‘Mandate for Palestine’ which stressed ‘the historical connection of the Jewish people with Palestine and … the grounds for reconstituting’ – I repeat, reconstituting ‘their national home in that country.’ “The Mandatory Power was also entrusted with the duty to encourage ‘close settlement by Jews on the land, including state lands and waste lands not required for public purposes.’”
Israel’s Government position as expressed by Professor Yehuda Z. Blum, Ambassador and Permanent Representative of Israel to the United Nations at the Louis D. Brandeis Award Dinner of the Zionist Organization of America. (Washington D.C., 11 June 1979)
But it is obvious that those wise words have fallen on deaf ears in the international community. Therefore, as a reminder to John Kerry, and to strengthen Netanyahu’s quavering spine, here is Ambassador Alan Baker, former Israel Ambassador to Canada, in an open letter to John Kerry (via Elder of Ziyon). I reproduce it in full:
The Hon. James Kerry, U.S. Secretary of State,
The State Department,
November 8, 2013
Dear Secretary Kerry,
After listening to you declare repeatedly over the past weeks that “Israel’s settlements are illegitimate”, I respectfully wish to state, unequivocally, that you are mistaken and ill advised, both in law and in fact.
Pursuant to the “Oslo Accords”, and specifically the Israel-Palestinian Interim Agreement (1995), the “issue of settlements” is one of subjects to be negotiated in the permanent status negotiations. President Bill Clinton on behalf of the US, is signatory as witness to that agreement, together with the leaders of the EU, Russia, Egypt, Jordan and Norway.
Your statements serve to not only to prejudge this negotiating issue, but also to undermine the integrity of that agreement, as well as the very negotiations that you so enthusiastically advocate.
Your determination that Israel’s settlements are illegitimate cannot be legally substantiated. The oft-quoted prohibition on transferring population into occupied territory (Art. 49 of the 4th Geneva Convention) was, according to the International Committee Red Cross’s own official commentary of that convention, drafted in 1949 to prevent the forced, mass transfer of populations carried out by the Nazis in the Second World War. It was never intended to apply to Israel’s settlement activity. Attempts by the international community to attribute this article to Israel emanate from clear partisan motives, with which you, and the US are now identifying.
The formal applicability of that convention to the disputed territories cannot be claimed since they were not occupied from a prior, legitimate sovereign power.
The territories cannot be defined as “Palestinian territories” or, as you yourself frequently state, as “Palestine”. No such entity exists, and the whole purpose of the permanent status negotiation is to determine, by agreement, the status of the territory, to which Israel has a legitimate claim, backed by international legal and historic rights. How can you presume to undermine this negotiation?
There is no requirement in any of the signed agreements between Israel and the Palestinians that Israel cease, or freeze settlement activity. The opposite is in fact the case. The above-noted 1995 interim agreement enables each party to plan, zone and build in the areas under its respective control.
Israel’s settlement policy neither prejudices the outcome of the negotiations nor does it involve displacement of local Palestinian residents from their private property. Israel is indeed duly committed to negotiate the issue of settlements, and thus there is no room for any predetermination by you intended to prejudge the outcome of that negotiation.
By your repeating this ill-advised determination that Israel’s settlements are illegitimate, and by your threatening Israel with a “third Palestinian intifada” and international isolation and delegitimization, you are in fact buying into, and even fueling the Palestinian propaganda narrative, and exerting unfair pressure on Israel. This is equally the case with your insistence on a false and unrealistic time limit to the negotiation.
As such you are taking sides, thereby prejudicing your own personal credibility, as well as that of the US.
With a view to restoring your own and the US’s credibility, and to come with clean hands to the negotiation, you are respectfully requested to publicly and formally retract your determination as to the illegitimate nature of Israel’s settlements and to cease your pressure on Israel.
Alan Baker, Attorney, Ambassador (ret’),
Former legal counsel of Israel’s Ministry for Foreign Affairs,
Former ambassador of Israel to Canada,
Director, Institute for Contemporary Affairs, Jerusalem Center for Public Affairs,
Director, International Action Division, The Legal Forum for Israel
H.E. Daniel B. Shapiro, US Ambassador to Israel,
71 Hayarkon Street, Tel Aviv, Israel 63903
Here is a copy of the actual letter as it appeared, which I have uploaded to Scribd:
How many more times will this slander against Israel, that she is stealing land and building illegally (in her own territory!) have to be refuted?
More importantly, how long will it take for our own leaders to internalize the fact that we are entitled to build wherever we wish in Eretz Yisrael, which includes our historical heartland of Judea and Samaria, because it is our land not only by Divine right, which not everyone recognizes, but by historical and political right.