West Bank Settlements on the Ground and the ICC

The title gives me away. It does not read, “Settlements in Judea and Samaria.” Neither phrasing is neutral. Using the term “the West Bank” suggests the writer considers the territory “occupied” by Israel and even “illegally” occupied. Using the terms “Judea” and “Samaria” suggest that, at the very least, Jews, and Jewish Israelis in particular, have a legitimate claim for and at least a right to live in the territory and even make all or part of that territory part of Israel.

On Monday, I wrote a blog on the Israeli response to the protests at the Gaza fence in 2018 and 2019 and the ICC investigations into that response. Those protests started on Land Day.” On 30 March 1976, hundreds of Arabs living in Israel began a protest against Israel’s expropriation and occupation of Palestinian lands. Six Palestinians were killed and what became known as “Land Day” became a symbol of the national struggle of the Palestinian people for independence and self-determination.

Note that the term “expropriation” precedes that of “occupation.” For the instigation for that protest was the Israeli Government’s pronouncement of a plan to expropriate thousands of dunams of land for state purposes. The expropriation plan stimulated a general strike by Palestinian citizens of Israel in towns from the north in the Galilee to the south in the Negev. A left-wing Labour government was in office. Violent force was used to suppress the protests and, as well as the six killed, about a hundred were wounded and hundreds were arrested.

This was the first time that Arab Israeli citizens had protested against the state since it was constituted in 1948 and it, rather than the struggle for self-determination in the West Bank and Gaza, became the pivotal event symbolizing Palestinian national aspirations. The message that a protest within Israel became the key marker for the nationalist struggle for the Palestinians was not lost on Jewish Israelis.

156,000 Palestinians remained in Israel after the War of Independence. 720,000 fled or were expelled. Under Israel’s Absentee Property Law, the land and buildings previously owned by Palestinians was transferred to state ownership to be administered by the Custodian of Absentee Property. However, the expropriation was not restricted to just the land owned by Arabs who were no longer in Israel. It applied to Palestinian land of those who remained within the borders of Israel but had been displaced. These Internally Displaced Persons (IDPs) were classified as “absent”. Of the 156,000, an estimated approximately 30,000 Palestinian citizens of Israel were displaced. Their land was expropriated, and they were paid compensation.

However, the planned expropriation in 1976, already almost 30 years after the creation of the State of Israel, instigated a sense of solidarity among Israeli Palestinians. Though the initial military rule that had been part of their lives and that had restricted Palestinian freedom of movement, rights to assembly and free expression typical of a victorious power has been lifted years earlier, Infrastructure development and even rights to build had remained relatively restricted.

On 11 March 1976, the Israeli government published its expropriation plan to confiscate 20,00 dunams in the Galilee between the Arab villages of Sakhnin and Arraba. 6,300 of those dunams were owned by Palestinian, then known primarily as Arab citizens of Israel. One dunam was about a quarter of an acre so the issue was over about 1,600 acres.

Of course, the conflict was not only over that acreage, the size of sixteen average family farms in southern Ontario. The plan included developing eight Jewish industrial villages. The general policy was known as the “Judaization of the Galilee which had a majority Arab population. In the UN Partition Plan, the western Galilee had been assigned to the Arab state. The 1949 Armistice Agreement had incorporated the land into Israel. The Judaization of the land was meant not only to provide a place for the Jewish migrants largely from Arab lands to own land and build homes, but to Judaize the region and prevent the return of the 720,000 Arab refugees. The latter was perhaps more important as the goal than the former.

Arab place names were replaced by Jewish ones. Arab neighbourhoods, villages and towns had been eradicated in the process of Judaization all over Israel after the end of the War of Independence. The policy of Judaizing the Galilee went back to 1949 as did the creation of Upper Nazareth as a Jewish neighbourhood in what had previously been entirely an Arab town. Thus, even before the 1967 Six Day War and the capture of Gaza and the West Bank by Israel, the demographic battle was an important ingredient of government policy to ensure that no serious discussion would take place of the return of these captured Arab lands to an Arab polity.

As a result of Jewish settlement policy, gradually a majority of the population of the whole of the Galilee became Jewish, though only by a small ratio. The 1976 plan was designed to increase that ratio. Before the Six Day War, over 200 Jewish settlements had been created in the Galilee spurred by infrastructure development, tax breaks and subsidized mortgages.    

The policy was both a success and a failure. The majority of the Galilee became Jewish but the heart of the Galilee remained over 70% Palestinian. When Israel captured the West Bank, the program of Judaization simply extended into the West Bank to begin the process of what came to be called “creeping annexation.” The term Judaization had been dropped following the Second Intifada. As opportunities were made available for Jewish settlements, restrictions on building permits and planning of new neighbourhoods meant an exodus of the Arab population before the Six Day War from increasingly Jewish parts of what had previously been Arab majoritarian areas and after the Six Day War the same pattern followed in the West Bank.

Thus, in Area C of the West Bank that has been under Israeli official military and political control since the Oslo Agreement was signed, about half of Area C has become a majority Jewish area as a result of the settlements. There has also been an exodus of the Palestinian population from these areas.

However, there has been another conflict developed over the years within the Jewish community, a majoritarian drive for the creation of strictly Jewish new settlements and an effort by NGOs in Israel to promote integration and the development opportunities for Palestinian residents. What is clear is that, just as in Israel proper where the integrationists have lost out to the Jewish-firsters, this pattern has extended into the West Bank even as some municipalities, as had been the case in Israel proper, adopted a policy of cooperation and even partnerships with local Arab communities.

This is just to say that the policies in the West Bank have been continuations of the policies adopted in Israel proper before the Six Say War and the capture of the West Bank. On the 45th anniversary of Land Day, the IDF quelled a protest in the town of Sebastia, north of Nablus in the West Bank. Tear gas and stun grenades were used.

In the United Nations Special Committee on Palestine, UNSCOP had recommended that 43% of the portion of British Mandatory Palestine, after Jordan had been carved away, be allocated to the Jewish state even though Jews only constituted 55% of the population in that territory. UN Resolution 181 accepted the principle of partition and the allocation of disproportionate allocation of the land to the Jews to accommodate the Jewish refugees from Europe. After the War of Independence and the 1949 Armistice Agreement, 78% of Mandatory Palestine was left in the hands of the Jewish majority and 22% of that area was seen as the territory for a prospective independent Palestinian state.

In the Oslo Accords, 60% of the West Bank (constituting 22% of the original Mandatory Palestine) had been allocated to the military and administrative control of Israel. In the 2020 Trump peace plan, it was proposed that approximately 50% of Area C be annexed to Israel, that is areas where Jewish settlements had created a majoritarian Jewish population. Palestinians would be left with roughly 15 % of the original British mandate for a state of their own or, more likely given the politics, an autonomous political entity with limited sovereignty.

That is why in the marking of Land Day in 2021 this past week, Palestinians have charged Israel with having laid hand to 85% of the lands of historical Palestine – that is, with Jordan cut away, even though Jews owned less than 7% of that land in 1947. From the Palestinian perspective, the pattern of Jewish encroachment on Arab land has been continuous. From the Israeli perspective, unlike the Arabs who rejected not only the majority but the minority UNSCOP Report, the Jews had always accepted the principle of partition only to meet with armed resistance. The result has been victory after victory for the Jewish Israelis with the land allocated to a prospective self-governing Palestinian political entity shrinking at each stage.

Land Day is commemorated to remind Palestinians that what has happened to Palestinians within Israel proper – that is, land expropriated, building permits held in effective permanent abeyance, Bedouin villages declared illegal and torn down = is but standard Israeli policy extended to the West Bank. In 2019, Israel initiated legal proceedings to evict 500 Bedouin from the unrecognized village of Ras Jrabah in the Negev to make room for the expansion of the majoritarian Jewish town of Dimona. (Of the 34,000 population, 31,000 are Jews.)

Other than state legal processes, vigilante vandals are a serious problem in both the West Bank and Israel proper. For example, recently in the Arab-Israeli village of Kafr Qasim, cars were vandalized and spray painted. Though the crime wave in Israeli Arab neighbourhoods is overwhelmingly a matter of Arab-on-Arab criminality, Jewish vigilantes are a disturbing element. This is a more general practice in the West Bank. Palestinians from Beit Dajan protested when an armed settler set up a machine gun post on Palestinian land. The army did not immediately remove the settler but, instead, dispersed the protesters with tear gas and stun grenades.

Israeli (and Palestinian) intelligence services have both warned of Jewish settlers creating terrorist cells in the West Bank to harass Palestinians, cut down their olive trees and vandalize their property to encourage them to move. This in keeping with the Kahanists who advocate expulsion of the Arabs, winning a surprising 7% of the vote in the recent election.

Last month, there were many more acts of vandals as Israelis were not yet totally preoccupied with their election. The problem was not just vandalism. Israeli authorities demolished homes, forced residents to demolish their newly-built houses, or seized 153 Palestinian-owned structures across the West Bank and East Jerusalem: The right to a home was challenged legally as homes were constructed without legal permits in the West Bank after legal permits proved almost impossible to obtain.

These actions are indefensible. Of course, they are offset by many examples of cooperation between Palestinian residents and settlers and even business partnerships between Israeli businessmen and Palestinians. Some Jews and Palestinians even enjoy personal friendships. But the battle to win more land for Israel through harassment, intimidation and legal warfare continues as has been the case since the creation of Israel.

However, there is something very different and new emerging. Significant numbers of Palestinians have begun to have a stake in Israel and envision a future as citizens with equal rights. Palestinian political parties – whether The Joint List or Mansour Abbas of Ra’am may become the kingmakers in the formation of the next Israeli government. Both on the part of the Palestinians and Jewish Israelis, this would be a very remarkable and noteworthy change.  Further, some experts in the Palestinian Authority are pushing for a new policy of soft sovereignty lest the pattern of a continually receding Palestinian state in terms of area evaporate altogether.

This is where the ICC really comes in. It is simply untrue that the ICC does nothing about Turkish settlements in northern Cyprus. Falou Bensouda announced that, before her term ends in June, she will issue a ruling on Turkish occupation of northern Cyprus. The Israeli NGO, Shurat Hadin, since 2014 has led the legal team suing Turkey for its settlement policies. The ICC has also agreed to open a case of war crimes and aggression against Ukraine by Russia in both Crimea and Donbass.

Whatever the prospects and differences between these (and other) cases of settlement practices in comparison to the Israeli one, there are two fundamental issues. One is of jurisdiction discussed earlier but decidedly different when it comes to the settlements within and outside of Israel. Israeli Attorney General Avichai Mandelbilt wrote a 34-page brief making the case not only why the ICC lacks jurisdiction based on the arguments I put forth in an earlier blog, but on the nature of the alleged events in the West Bank. They were not matters of international criminality. Vigilantism was a crime which Israel investigates and prosecutes. However terrible and shameful such activities are, they do not constitute crimes of aggression.

But neither does Israel’s use of legal disputation over building permits. And, as far as Israel is concerned, neither do Israeli settlement activity fall under such a claim for they are settlements on territory over which Israel has a legitimate claim and over which Palestinians have rejected sovereignty whenever they had an opportunity because of a determination for decades of denying Israeli right to sovereignty.

In the end, this problem is not one of law but of fundamental political conflict that has yet to be settled. It is highly unlikely that the ICC intervention will contribute to such a legal settlement and there is the prospect of the ICC losing considerable ground in the effort to expand the jurisdiction and applicability of international law.

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