 The major persistent objection to the settlements is not niceties of international law but the claim that they are an obstacle to peace. Take that claim away and the settlers can look forward to a prosperous future, albeit without the fulfillment of the wilder dreams of some. Pictured: The Israeli settlement of Maale Adumim, at the edge of the Judean Desert. (Photo by Hazem Bader/AFP via Getty Images) |
Widespread surprise greeted the publication of the "Joint Statement of the United States, the State of Israel, and the United Arab Emirates," announcing "the full normalization of relations between Israel and the United Arab Emirates."
Delegations from the two countries "will meet in the coming weeks to sign bilateral agreements regarding investment, tourism, direct flights, security, telecommunications, technology, energy, healthcare, culture, the environment, the establishment of reciprocal embassies, and other areas of mutual benefit." Israel, for its part, "will suspend declaring sovereignty over areas outlined in the President's Vision for Peace and focus its efforts now on expanding ties with other countries in the Arab and Muslim world"
Reactions, both local and worldwide, have varied from exultation to despair, depending upon how different parties identified themselves among the winners and losers of this development. Instructive is an analysis by Ben Sales, who picks "5 winners and 4 losers." The winners include – obviously – Trump, Netanyahu and the UAE, but also "the long view of Israeli history." By the last is meant, despite decades of hostility to Israel from its neighbors, "the hope for peace in the Middle East" that is "written into Israel's founding documents." Liberal Zionists are both winners and losers. Thus J Street has claimed that the Joint Statement is "just the latest evidence that dialogue and diplomacy, rather than unilateral action and belligerence, are the route to long-term security." But the more fundamental assumptions of Liberal Zionists have been refuted: that Israel's settlement enterprise in the West Bank makes "peace with other Arab countries is impossible" and "harms U.S.-Israel relations."
The outright losers, for Sales, are the "Palestinians," the "Israeli opposition" and the "settlers." On this last point, we part company. The "settlers" belong to the winners. Fortunately, however, they are behaving vociferously as if they were the biggest losers: since this behavior is exactly what the UAE needs in order to sell the accord with Israel in the Arab world.
Retrospect
To explain why the settlers are winners, a short look back is required. In January 2020, the Trump administration published "Peace to Prosperity." This document, the so-called "deal of the century," outlined the administration's vision for a settlement of all the issues obstructing peace between Israel and the Palestinians. Its main architect was Jared Kushner. It was widely welcomed not just by most members of Prime Minister Benyamin Netanyahu's ruling coalition but also by Benny Gantz, then the leader of the opposition in the Knesset.
The plan envisaged that all the Israeli settlements in the West Bank (aka Judea and Samaria – we use common terminology without prejudice) would remain in place in a peace agreement between Israel and the Palestinians, while Israel would make some territorial concessions elsewhere. Moreover, the Trump administration indicated that it might agree to let Israel already help itself to territory that the plan envisages for Israel, provided that Israel refrains from settling on land that the plan awards to the Palestinians and agrees to work with the administration on accurately delineating the areas in question. Contrary to the misleading talk of "annexation" and "declaring sovereignty," what it would mean in practice is a decision by the Knesset to apply internal Israeli law to those areas, in place of the military law under which they have been administered since 1967.
Netanyahu and his Likud party made this scheme a major plank in their platform for the Knesset election on March 2. The coalition agreement made subsequently between the Likud and Gantz's Blue and White party allowed the Likud to bring the scheme to a Knesset vote from July 1 on. Blue and White is not obliged to vote in favor, since Gantz – while approving the American plan – is opposed to implementing it without broader international support. But there is an estimated Knesset majority for the scheme. It has not yet been brought to the Knesset, first and foremost because the Israeli and American teams have not completed the tedious and intricate process of mapping out areas on the ground. Anyway, this is what Israel has "suspended" for the sake of full relations with the UAE.
Moreover, as Israel estimates that full relations with other Arab countries are in the offing, even a "temporary" suspension may last a long while. First those opportunities need to be brought to fruition, as may be. Then a decent period must be allowed to elapse before Israel, alleging unending Palestinian intransigence, could envisage unilateral steps without fatally annoying its new Arab friends.
Settlers as Winners
There seems to have been universal automatic assent to placing the settlers among the losers of the Israel-UAE accord. It is nevertheless mistaken, for a reason that is simple to explain. Why is there opposition to the settlement project in principle, whether from friends or enemies of Israel, including both Jewish organizations and foreign governments? It comes down to two alleged reasons: first, that the settlement project was illegal under international law; second, that it is an obstacle to peace. Now note that many commentators have already said, like Sales, that the agreement between Israel and the UAE has refuted the second reason. Then, finally, ask: Which of the two reasons was more important?
If the scheme to extend internal Israeli law to the settlements had gone ahead at the expense of peace agreements with a series of Arab states, just imagine the international opprobrium directed at Israel and at the settlers in particular. Now the opposite has happened: the settlers are no longer an obstacle to peace, just some people who allegedly ought not to be where they are, a local nuisance and not a global one.
The implication is that the settlers can now basically anticipate living where they are forever. The question of their presence has been reduced to a local issue that will not arise as long as the Palestinians maintain their perennial intransigence. Even if it does arise, the Trump-Kushner plan is based on the principle that neither Israelis nor Palestinians need leave their current dwelling places.
As it happens, we have also shown previously that the first alleged reason – the argument from international law – is invalid. The argument turns on a sentence in clause 49 of the Fourth Geneva Convention: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." The Convention, however, was designed to regulate conflicts between states, whereas the Israeli-Palestinian conflict originated as a civil war within the territory of the British Mandate for Palestine in which both sides, but especially the Palestinians, laid claim to the whole area. The Convention does contain one clause on civil wars, clause 3, but it is confined in general to humanitarian issues, such as that nobody who lays down arms shall be harmed and all sides are obliged to tend the injured of all sides. Clause 3 adds to all that a further significant sentence: "The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention." That is, clause 49 has to be interpreted in the context of clause 3.
For decades, the Palestinians refused to negotiate with or recognize Israelis in any manner. The first "special agreements" between "the Parties to the conflict" were precisely the Oslo Accords of 1993 and 1995. So no settlements established up to then violated the Convention. Moreover, the Oslo Accords exclude the settlements and Jerusalem from their provisions, saying that they are issues that belong to negotiations over the final status, in which: "Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions."
The conclusion to be drawn is therefore:
All the settlements created by Israel before the Oslo Accords are legitimate, including the new Israeli housing estates created in the extended boundaries of Jerusalem. As long as the "interim period" envisaged in those accords remains in force, Israel is allowed to build within the originally defined pre-Oslo boundaries of the settlements, but is not allowed to change their pre-Oslo status. As initial negotiating positions on the final status agreement, the Palestinians are not excluded from demanding a total Israeli withdrawal to the ceasefire lines of 1949, but Israel is likewise not excluded from demanding the retention not merely of the settlements but also of any other part of the Mandatory Palestine of 1947.
Further articles on the matter can be found here and here. As already said, however, the major persistent objection to the settlements is not niceties of international law but the claim that they are an obstacle to peace. Take that claim away and the settlers can look forward to a prosperous future, albeit without the fulfillment of the wilder dreams of some.
Malcolm Lowe is a Welsh scholar specialized in Greek Philosophy, the New Testament and Christian-Jewish Relations.
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