Demography, Settlements and Jerusalem

by

Howard Adelman

Thus far, I have attended only to the framing of United Nations Security Council Resolution 2334. I now want to turn to the nub. There are four issues, not just one. I deal with three in this blog: demography and Jerusalem as well as settlements. In the next blog, I will take up the impact of the resolution on the two-state solution and the issue of borders.

The resolution condemned “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem.” Secondly, the resolution reaffirmed “that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.” That is a mouthful. Demography and Jerusalem bracket the core thesis of settlements. The resolution demanded “that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem.” UNSC Res. 2334 required the freezing “by Israel of all settlement activity, including “natural growth,” and the dismantlement of all settlement outposts erected since March 2001.

As I stated, in my next blog on Resolution 2334, I will discuss whether and to what extent the settlements “dangerously imperil the viability of the two-State solution, particularly in light of the claim of that resolution that the two-state solution must be “based on the 1967 lines.” It is certainly a key repeated theme of the resolution which insisted on non-recognition of “any changes to the 4 June 1967 lines other than those agreed by the parties through negotiations.” But then why is there no reference made to the distinctions between Areas A, B and C that was arrived at through negotiations? As I stated above, a follow-up blog will focus on border issues and the impact of the resolution on the two-state solution.

Excluding Nahal settlements established by the IDF for security purposes and outposts created by Israeli settler groups that are not legally recognized by Israel, I focus only on so-called “legal” settlements, that is, settlements authorized by the Israeli government, though they may be considered illegal by most of the international community and, in a few cases (Ofra), even illegal under Israeli law because much of the settlement was built on privately held land. Further, it is important to distinguish between and among settlements in different areas.

I already wrote about the Resolution’s reference to the wall. Many settlements are on the eastern side of the wall. Excluding the 28 Jewish settlements in the Jordan Valley (population 15,000), there are less than 50,000 Israelis living in 10 different settlements that can be considered exurbs of Jerusalem as follows:
 
Kiryat Arba just outside of Hebron where the patriarchs and matriarchs
of Judaism are said to be buried and where Jews continuously lived
until the Hebron massacre of 1929. 7,100
Since the settlement was re-established in 1970, 16 settlers have
been killed in 8 different incidents, just over half the number
killed by Baruch Goldstein (29) in a single massacre.
Kokhav Ya’akov about 12 miles equidistant from both the Qalandiya
Checkpoint and Ramallah. 7,300
Beit El north of Jerusalem and just east of al-Bireh & Ramallah 6,500
Site of Jacob’s dream of angels going up and down a ladder
Geva Binyamin 5 km north-east of Jerusalem 5,200
Eli, Mateh Binyamin, north of Jerusalem and Ramallah 4,100
Ofra, northern West Bank between Jerusalem and Nablus 3,500
20 km. north of the old Green Line
Most built on expropriated privately owned land, hence illegal
under Israeli law; adjacent to Silwad and Deir Dibwan
Talmon, 18 km. north of Modin 3,700
Shilo, Mateh Binyamin 45 km. north of Jerusalem 3,400
Tekoa, Gush Etzion, 15 km. south of Jerusalem & 20 km. northeast of
Hebron; 5 killed in 3 separate incidents 3,500
Mitzpe Yeriho, 20 km. east of Jerusalem; 10 km. east of Ma’ale Adumim 2,300

Total 46,600

There are also over 90 settlements west of the wall or separation barrier with a total population of almost 400,000. In addition, there are almost 180,000 living in different very familiar Jewish neighbourhoods of Jerusalem on land captured in the Six Day War in 1967 – East Talpiot, French Hill, Gilo, Giv’at Hamivtar, Har Homa, Ma’alot Dafna, Neve Yaakov, Pisgat Ze’ev, Ramat Eshkol, Ramat Shlomo, Ramot and Sanhedria Murhevet. Further, there are about 3,000 residents and 1,500 Yeshiva students living in the Old City, overwhelmingly in the Old Jewish Quarter with a very few scattered Jewish families in East Jerusalem. This can be compared to a non-Jewish population of 30,000 in the Old City and just under 500,000 non-Jews in East Jerusalem.

As I indicated in my last two blogs, ALL of these areas are considered illegal under the Fourth Geneva Convention, including the re-establishment of the Jewish Quarter in the Old City that was totally ethnically cleansed of Jews when the Jordanian government captured the Old City in 1948 and expelled all its Jewish inhabitants. Jews had continuously resided in the city for centuries. Under that Convention, it does not matter whether the case is one of a returned population or of voluntary movements as opposed to forced relocation of Israelis, these areas are all considered illegal since the population moved there after Israel occupied and annexed some of these areas after the Six Day War. Right wing defenders of Israeli actions insist they are legal under international law because a) they were captured in a defensive war; b) the territory did not previously legitimately belong to a recognized state. But most interpreters of international law simply make occupancy of a territory held by a belligerent following the cessation of a conflict as the relevant marker.

Currently, about 1 out of every 10 Jewish Israelis live in areas considered illegal under international law. International law may be an ass in not making any of these distinctions. It also may be totally ineffective. One need only recall the effort to evacuate 9,000 Jews from Gaza and the political storm that caused within Israel in the forced removal of a population living in an area lacking all the deep religious attachments of the sites under consideration. Can you imagine the effort it would take to move over 600,000? That would certainly tear the country apart. Anyone who opposed settlements all these years has to at least recognize this.

Well, what about the 65,000 living east of the separation barrier in the Jordan Valley and in the 10 neighbourhoods listed above? Many of the latter areas have deep religious significance for Orthodox Jews. Why do they have to be evacuated? Why could the population there not continue to live in a Palestinian state? After all, almost 1.5 million Arabs live within the Jewish state. This was precisely the question asked courageously by a Palestinian law student who was head of the youth wing of Fatah at a conference at al-Qds University that I attended. But then, what about all the settlements west of the separation barrier? If they stayed in Israeli hands, then Israel would be acquiring territory by force even if subsequently ratified by negotiations. After all, in the Oslo talks, the Palestinians had agreed to a land swap of an almost equal amount of territory in exchange for the territory on which these settlements were located.

Recall that the resolution condemned “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem.” It did not call for a swap. It did not call for returning the settlements east of the separation barrier to a nascent Palestinian state, but leaving the settlers in place. The resolution condemned the whole effort to settle Jews on land cleansed of Jews between 1948 and 1967 whether or not they lived on that land prior to 1967. Why 1967? Why not include the territory captured by the new state of Israel in the 1948 war?

The answer is simple. If you go back to 1948 for the Jews, you have to go back to 1948 for the Arabs and the territory was not sovereign Arab land then. In particular, in the 1947 division of territory recommended by UNSCOP, Jerusalem was to remain an international city under UN auspices. But the two principles pushing the members of the Security Council last week were: 1) no acquisition of territory by force and then by movements of people into a territory; and 2) the principle of self-determination, namely that a territory should become the sovereign land of the national group constituting the largest majority in a territory. But then in the areas of settlement west of the separation barrier excluding Jerusalem proper, there are about 400,000 Jews and only 100,000 Palestinians. Does not a land swap already agreed to make sense and be worthy of endorsement by the international community? The supporters of the resolution were not being puritans about the issue. They did not condemn the occupation and seizure of different parts of Jerusalem in 1948.

The real answer is that using 1967 rather than 1948 is already a compromise, but one which allows control of both the Old City as well as Eastern Jerusalem to go to a Palestinian state. And though the two sides eventually agreed on water sharing and on refugees, they could not agree on Jerusalem. Hence, John Kerry yesterday rehashing an old condominium proposal on Jerusalem that had been consistently rejected by both sides.

Further, there had been two separate thrusts to the settler movement. One was the establishment of secure borders for the Jewish state. Second there had been the claims made by the Israeli right for sovereignty over the whole of the Mandate territory. The current right wing government in Israel includes heirs to that belief. They repeat the mantra and make most members of the international community believe that this is the ultimate goal of the settlements and not a two-state solution.

In the Oslo Accords, the territory of the West Bank had been divided into three zones. In zone A, the Palestinians had exclusive administrative and security responsibility. In Zone B, the Palestinians exercised administrative responsibility but security was a matter of joint responsibility. In area C, where most of the populated settlements are located, Israel retained both administrative and security control. The jurisdiction of the Israeli municipal regional councils cover almost two-thirds of Area C. Palestinians are forbidden according to their agreement to engage in construction and development in area C. Therefore, some could with some legitimacy claim that the settlements could now be said to have taken place in this area by agreement.

The resolution did not condemn settlement activity only in areas outside those in which Israel had been given the right to control and settle by previous agreements. Rather, 1967 and the old green armistice line became the dividing line. Why? Because by allowing the Fourth Geneva Convention to trump agreements already entered into by the parties, the status of the settlements west of the separation barrier were left in question. So, certainly, was the status of East Jerusalem and especially the Old City.

There are other issues. Some parts of a few settlements, specifically Ofra, were built on land expropriated from private Arab citizens, contrary to the legalization of those settlements by Israel. There were issues of division over water supplies, the provision of access roads and the provision of equality of water and sanitary sewers available to Palestinian towns in comparison to the Israeli settlements. Often, this was not because of intent but because of the difficulty of getting the two sources of authority to agree, especially when one authority disputed the legitimacy of the other. As a result, Israeli settlements enjoy advanced infrastructure; the nearby Palestinian towns do not. Further, Jewish settlers in the West Bank remain and retain full Israeli citizenship while Palestinians in Area C live under martial law.

I have concluded that the resolution is not really about the settlements, but about the status of East Jerusalem and the Old City and about using the humanitarian laws of war as leverage on behalf of the Palestinians who are in the much weaker position. Unable to defeat the Israelis militarily with or without the help of the Arab states, the Palestinians have enlisted the international community using international humanitarian law, diplomacy and economic pressure to confront the Israeli settlement policy.

There is, of course, for many Israeli Jews, and now perhaps most, the issue of the right to settle and live in the West Bank. Eugene Rostow wrote resolution 242 which ended the 1967 war. He has always claimed that it gave Jews the right to settle anywhere in the old Mandate territory since the resolution did not obligate Israel to return ALL occupied land, but only occupied land in anticipation that there would be a future further division. Further, resolutions calling for withdrawal of Israeli forces from ‘all’ the territories were defeated, not only in the Security Council but in the General Assembly as well. The 1993 Oslo Accord and the 1995 Israel-Palestinian Authority Interim Status Agreement specify that the issue of settlements was to be negotiated and neither accord prohibited Jewish settlements in the West Bank. However, the international community has come to the conclusion that in the over two decades since, it is Israel that has been the obstacle to concluding a final two-state solution. It is Israel that has been using the interim period to predetermine the results of the permanent status negotiations.

The mantra at the time and continuously preserved, but with a seriously diminished status, has been the refrain, “secure and defensible borders” when Israeli settlements and the wall were intended to put facts on the ground that would help predetermine the outcome instead of waiting for “secure and recognized borders” to be determined in negotiations. The number of applications for new homes in the West Bank continues to grow with almost 4,500 applications in 2015. The equivocation of diplomatic linguistic compromises allowed others to interpret the requirements of Resolution 232 in very different ways, and in a way that seems to have displaced its previous emphasis on security. Israelis have always contended that the old Green Line, the armistice line determined by the ceasefire agreement in 1948, was NOT a border and should not be used as a reference for applying international humanitarian law. Israeli courts have upheld that opinion, but the international court in The Hague did not in its advisory and non-binding opinion.

The situation had now been radically changed by the resolution at the same time as Donald Trump is coming into office and the Israeli right wing government is reacting to the passage of the resolution with very aggressive diplomatic and economic moves putting, as I will argue in my next blog, the prospect of a two-state solution in never-never land. The debate may be conducted over the rhetorical issue of whether Israel is an occupying power when the territory occupied did not legitimately belong to another state and, therefore, was not foreign territory, but the debate will be won, not in the diplomatic halls or through international and domestic courts of law, however useful they have been, but in power games which Netanyahu and the new Trump administration seem ready and eager to play.

With the help of Alex Zisman