Thursday, May 28, 2009

Arlene Kushner On Legal vs. Illegal Settlements

The following excerpt is reposted with permission from Arlene Kushner's mail list ("First Things First", May 27, 2009). 
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Also check out her website: Arlene From Israel.
The whole business of legal vs. illegal settlements is both complicated and political. Most settlements have had some interaction with some government departments or agencies. They've hooked up water lines, or electric lines, or paved a road, or whatever. There is sanction somewhere along the way. And sometimes that sanction is considerable. But if final papers are not in place, then the settlement can be called "illegal" or "unauthorized."

The region comprised of Judea and Samaria is not governed by Israeli civil law -- civil law was never extended to this area as it was to the Golan and to eastern Jerusalem. (Note: this is not a case of annexing it, but extending the law of Israel to apply.) The region is administered separately under the jurisdiction of the Ministry of Defense, and it is the office of the Defense Minister that must sign off on a settlement. Thus Barak's involvement here.

There are instances in which "illegal" settlements have been later declared legal, and there is hope that this might happen now in a handful of instances at least. That can particularly be the case when so-called outposts are really outlying neighborhoods of recognized settlements.

But it can happen in other instances as well. And actually it was explained to me by a lawyer some time ago that many settlements considered authorized today moved through a process this way.


There are some charges being made -- by far left groups such as Peace Now and Yesh G'vul -- that some of the settlements are on private Palestinian land. While these charges are not necessarily accurate, where this might be a problem, shifting of the settlement to other land, rather than demolishing it, is a possible resolution.


Several political issues complicate this whole matter. The Obama administration is saying that we have certain obligations with regard to settlements stemming from the Road Map for Peace. Introduced by the US, with Quartet sponsorship, in the spring of 2003, it presented a phased plan, with a timeline, for achieving a two-state solution.

You can see the full text here;

In the proposed first phase, it says the Government of Israel must "immediately dismantle settlement outposts erected since March 2001" and "freeze all settlement activity (including natural growth of settlements)."

We may not like it. We may hate it. But it says it.


But -- wait! -- it's not nearly as simple as Obama would have it.

First there is the question of whether it still applies, as it was envisioned as resulting in a Palestinian state by 2005. Has a post-2005 situation superseded this document?

Unfortunately, our new foreign minister, Avigdor Lieberman, has made it more difficult to make this case, as he declared early on that we should scrap Annapolis and go back to the Road Map. It was clear why he did this: Annapolis was trying to jump past the phased program and get to the end result of a Palestinian state at the beginning. Lieberman was undoubtedly reasoning that under the Road Map the PA had obligations it would not honor and thus we'd not get to that end result.


Then there is the very important issue of reciprocity (which Netanyahu has made much of) and the need for the Palestinian Authority to simultaneously fulfill its obligations. We cannot be the only party that "walks the walk."

According to this same Road Map, the Palestinians must "declare an unequivocal end to violence and terrorism and undertake visible efforts on the ground to arrest, disrupt, and restrain individuals and groups conducting and planning violent attacks on Israelis anywhere."

Never mind that Fatah is not exactly clean itself, what about Hamas terrorism, with rockets and mortars still launched (170 since the end of our war in Gaza)? What action will the PA take with regard to this? This is a joke. The PA, which has this obligation, cannot do it.

And there's more: "All official Palestinian institutions [must] end incitement against Israel." This is an even bigger joke than the terrorism issue. Anyone who has seen an analysis of the textbooks produced and utilized by the PA understands what a huge joke it really is.

See my article, "Texts of Hate," for some mind-blowing examples of what PA school kids are taught.

To comply with this requirement, the PA would have to publish a whole set of adjusted texts. And there's no thought of doing so. Not a glimmer of a suggestion that they must do so.

But WE have to stop building in the settlements? The Road Map calls for "reciprocal steps by the two parties."

It seems to me a very public campaign has to be launched focusing on the inequities of what is demanded of us and of the PA. Most of the world knows about the settlements as an "impediment to peace." Time they knew that there can't be peace when the Palestinian kids are taught to hate us, but that the PA, which is bound to do so under the Road Map, is taking no action in this regard. The PA is always yapping about how we don't want peace because we keep building. Where is the voice of our government saying that clearly the PA doesn't want peace if its youngsters are taught Jihad and Palestine from the river to the sea?


And this is not the end to the problems surrounding the demands made of us.

The Sharon government of 2003 did not simply accept the Road Map as is. A set of "14 reservations" was attached and given to the Bush government. It was only after the US government committed to "fully and seriously address[ing]" the issues raised by Israel that the Israeli Cabinet voted to accept the Road Map. Unfortunately, this was naive, for a commitment to address the issues is not a promise that they will ultimately be incorporated into arrangements.

But the government of Israel is on record as having reservations. Some of those reservations:

"...during the process, and as a condition to its continuance. calm will be maintained. The Palestinians will dismantle the existing security organizations and implement security reforms during the course of which new organizations will be formed and act to combat terror, violence and incitement (incitement must cease immediately and the Palestinian Authority must educate for peace). (emphasis added)

"In the first phase of the plan and as a condition for progress to the second phase, the Palestinians will complete the dismantling of terrorist organizations (Hamas. Islamic Jihad. the Popular Front, the Democratic Front Al-Aqsa Brigades and other apparatuses) and their infrastructure... (emphasis added)

"...declared references must be made to Israel's right to exist as a Jewish state and to the waiver of any right of return for Palestinian refugees to the State of Israel."

Additionally, PM Sharon is on record as having objected to the call for a freeze on settlements. It was "impossible," he said to Secretary of State Colin Powell.
"Our finest youth live there. They are already the third generation, contributing to the state and serving in elite army units. They return home and get married, so then they can't build a house and have children?

"What do you want, for a pregnant woman to have an abortion just because she is a settler?"

(You can find this quote here:

Unfortunately, bewilderingly, this objection, this perception that a freeze is impossible, was not written into the reservations.


And one last factor in helping you understand the complexities of this situation:

In April of 2004, PM Sharon met with President Bush and they exchanged letters in the context of the Road Map and the forthcoming "Disengagement." President Bush's letter contained the phrase:

"In light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949..."

This was broadly understood as an acknowledgement by the US that in any final agreement with the Palestinians we would retain major settlement blocs. Dore Gold, head of the Jerusalem Center for Public Affairs, called it a "significant shift in US policy."

Netanyahu is currently using this to make the case that it had become informal US policy to acknowledge that we will be retaining settlement blocs in any event, and that there is thus no reason for the US to demand that we be restricted in building within those settlements. (Gold, by the way, is a Netanyahu advisor.)

From what I've read, this letter of Bush's is a stumbling block to Obama's demands, a frustration to him as he seeks to move on pressuring us.

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Also check out her website: Arlene From Israel.

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1 comment:

colin nelson said...

Another excellent article. In the continuing struggle that some day might lead to an agreement between the Israelis and the Palestinians (based on UNSC 242 and 338), we once again see that terms such as "legal" and "illegal" are not as cut and dried as the critics of Israel would have us believe.