If there is anything that perplexes good friends of Israel, it is the issue of settlements beyond the "Green Line" (a misleading term, as we shall see). In a familiar phenomenon, a foreign politician arrives in Jerusalem to make a speech that manifests genuine admiration of the State of Israel and its achievements, but proceeds to an equally genuine cry of distress over its settlement policies. Why? Because they are supposedly "illegal under international law."
These friends, as we shall see, are making a widespread basic mistake. Because of the endless talk of a "two-state solution," the conflict between Israelis and Palestinians is viewed as if it had always been a war between two states. In fact, it began as a civil war under the British Mandate for Palestine and continued as such until at least the late 1980s. By that time, almost all the present settlements were already in existence. Consequently, the provisions of international law that should apply to them are those that pertain to civil wars, not to inter-state wars.
Preliminaries
To start with, let us set aside some questions whose answer is relatively simple. First, the present Israeli occupation of lands acquired during the Six Day War of 1967 is not illegal per se, because it resulted from aggression by the neighboring states concerned. Hostilities with Egypt started when Egypt blockaded the Israeli port of Eilat, an act of aggression that was followed by Egypt's demand for the removal of United Nations peacekeepers from the border between the two states (obviously in preparation for further acts of aggression). Hostilities with Jordan began with a Jordanian bombardment of the Israeli part of Jerusalem. As for Syria, it had for years been engaged in constant aggression by way of encroachments into Israeli territory and bombardment of Israeli villages from the Golan Heights. Moreover, a recent expert report (2012) of the International Committee of the Red Cross emphasized that International Humanitarian Law "did not set any limits to the time span of an occupation" (see p. 72); rather, the longer the occupation lasted, the more the "occupying power" was required to upgrade the infrastructure, etc., for the benefit of the inhabitants.
Second, the sale of goods produced in those Israeli settlements is not illegal in most of the world's markets. In the European Union (EU), for example, it is legal under two conditions. One condition is obligatory: those goods do not enjoy the reductions in customs duties that pertain to free trade agreements between Israel and the EU, because these agreements apply explicitly to the area of pre-1967 Israel. The other condition is optional: the EU Commission issued guidelines in November 2015 on how to label such products. After a fuss, the Commission conceded that the individual European governments could decide whether and how to implement the guidelines, while emphasizing that such labeling is not a boycott and that the EU opposes any boycotts of Israel. (See here for a comprehensive discussion of the matter, also regarding other disputed territories.)
Some have accused the EU of antisemitism because it issued guidelines about Israel while treating other disputed territories in the world differently. But one should be wary of issuing blanket accusations of antisemitism. While some EU officials may be spurred by antipathy to Jews, various European leaders have not merely emphasized that the labeling is not equivalent to a boycott but have gone out of their way to combat boycotts of Israel -- also by way of legislation to punish boycotters. To accuse those leaders of antisemitism is both unfair and unwise.
So we are left with the question of whether the building of Israeli settlements is itself illegal. Here too, a further simplification is possible. As the Golan Heights were part of sovereign Syrian territory before 1967, there is a stronger argument that Israeli settlements there are illegal (except where Syria had encroached beyond the border between the former French and British Mandates). But this issue is hardly topical, given the current civil war in Syria and the fact that almost all the participants (Kurds may be an exception) are fanatically opposed to the existence of Israel as such. What pains friends of Israel, as well as others who at least tolerate Israel's existence, is territory in dispute between Israelis and Palestinians. We shall consider only this.
One further preliminary: there are fundamental differences between national law and international law. National law relies upon legislatures that can decree or alter it and upon judicial systems that enforce it. International law largely lacks both. In the time of ancient Greece and Rome, the lack was supplied by a widespread conception that certain acts, such as the violation of ambassadors and heralds, were abhorrent to the gods and would be punished by the gods (with epidemics or famines or whatever). That is, the gods both defined international law and enforced it. Homer's Iliad opens with such a case.
Today, of course, such theological conceptions -- which intimidated the Ancients and imposed a degree of morality upon them -- are regarded as quaint and outdated. As a result, international law now depends partly upon ancient custom that has survived (even after the disappearance of its original justification) and partly upon individual treaties between states. Yet gaps remain; filling them is the plaything of those who have set themselves up as international lawyers and debate among themselves.
International Consensus and International Law
Earlier this year, a visiting European professor held a public lecture in Jerusalem to tell us "what international law says about" Israel's conflict with the Palestinians. He called this "the Near East Conflict," as if international law had little to say about the far bloodier conflicts that currently engulf the rest of the region.
His presentation consisted largely of a recital of lists of resolutions by various United Nations bodies disapproving of Israeli settlement activity. More interesting were his answers to some of the questions.
One question noted that resolutions of the UN General Assembly are not binding and that even resolutions of the Security Council, to be enforceable, must escape a veto by any permanent member and be adopted under Chapter VII of the UN Charter. Thus the resolutions that he had quoted might be seen as expressing an international consensus, but when and how does an international consensus become international law? "This," said the professor, "is the most important question in international law!" His answer was something to the effect that -- to his mind -- if enough international players say the same thing repeatedly, then it could be seen as international law.
This answer is problematic. Consider UNESCO: it has a professional Secretariat, which tries to do sound scientific work, but its governing body is an International Council to which each member country sends a representative. In the decisions of the International Council, political interests trump scientific opinion. Recently, the International Council adopted an Arab-sponsored resolution that denounced Israeli activity in and around "al-Aqsa Mosque/Al-Haram al-Sharif." Not only did the resolution fail to mention that this is the Temple Mount, it also accused Israel of "planting Jewish fake graves in other spaces of the Muslim cemeteries" and of "the continued conversion of many Islamic and Byzantine remains into the so-called Jewish ritual baths or into Jewish prayer places."
Of course, there are such ancient graves, ritual baths and Jewish religious sites; they are not fakes. To claim otherwise is to endorse the nauseous lie promoted by the Palestinian Authority (PA) in recent years: that there never were Jewish temples on the Temple Mount and that the Jews are a medieval European invention that has no ancient connection with the Land of Israel. To her credit, the Secretary-General of UNESCO expressed her dismay at this violation of all professional norms. The automatic pro-Palestinian majority in UN bodies, however, can ensure that the lie will be repeated in resolution after resolution. According to the professor's criterion, therefore, the big lie and all the associated smaller lies will eventually become entrenched in international law; to act in disregard of those lies will be a violation of international law.
A second question pointed out that the most famous UN General Assembly resolution (November 29, 1947) approved the plan to divide Mandatory Palestine into a Jewish-majority state and an Arab-majority state. But the proposed territory of the former was smaller than the State of Israel as it emerged from its War of Independence in 1949. In particular, northwest Israel -- from Haifa to the border with Lebanon -- was assigned to the Arab state. So why should international law recognize this transfer of territory from Arab to Jewish control?
The professor's answer was that international law changed between 1949 and 1967. In 1949 it was still permissible for a state to acquire territory by way of warfare, but by 1967 it was forbidden even in the wake of a defensive war.
This answer is astounding. During World War II, the Soviet Union perpetrated a vast land grab from states to its west: Karelia from Finland, the three Baltic Republics, half of prewar Poland, Transcarpathia from Czechoslovakia and Moldova (Bessarabia and North Bukovina) from Romania. That massive theft remains valid in international law (only the breakup of the Soviet Union freed some of the subject peoples). But the building of a dozen Israeli homes in Samaria is a serious "violation of international law."
When exactly did this change take place? The professor suggested "the end of the colonial era," but perhaps one can be more precise. The Ukraine and Belarus, although part of the Soviet Union, were founder members of the UN with seats in its General Assembly; they were formally independent states in international law. When the Supreme Soviet decreed the transfer of the Crimea from Russia to the Ukraine in 1954, regardless of the feelings of the inhabitants, international law could apparently tolerate it. But when Russia took it back in 2014, after a referendum in which 94% of the inhabitants approved the step, it was a violation of international law.
The change in international law, then, took place between 1954 and 1967. Remember that Israel captured the Sinai Peninsula twice: in 1956 and 1967. The first time, it might have got away with annexing it; the second time, it was too late. Or so it seems.
At the end of his lecture, the professor got quite angry, not specifically with Israel. All over the world, he complained, "creeping annexations" were going on in defiance of international law. As a specialist in the field, he felt infuriated and helpless.
In Oliver Twist, Mr. Bumble protests: "If the law supposes that, the law is a ass... and the worst I wish the law is that his eye may be opened by experience..." (This was the lifelong conviction of Dickens himself, as other novels testify.) Apparently, international law is also perceived as "a ass" in the experience of all those creeping annexers.
Returning to the Green Line, we can pinpoint the mistake made by the professor and by such colleagues as agree with him. The crux is the interpretation of the Fourth Geneva Convention of 1949, which says, inter alia: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." This statement occurs in Article 49 of Section III of Part III of the Convention.
The professor acknowledged that some international lawyers, not only Israelis, object to the application of the Convention to areas beyond the Green Line on various grounds: that Article 49 was formulated with Nazi deportations of Jews in mind, that those areas did not belong to any state in 1967, and that the Jews who subsequently chose to live there did so of their own free will and not because they were "deported" or "transferred" by Israeli governments, although it was these governments that planned and approved the settlements. Quite correctly, the professor claimed that his own view is endorsed by the consensus expressed in the many resolutions that he quoted, including a few resolutions of the Signatories of the Convention itself (most recently in December 2014).
We would like to suggest a solution to this dispute, a suggestion that seems never to have been made hitherto. In particular, it does not feature in the Edmond Levy Report of 2012, of which some arguments and conclusions are available in two English translations.
The Fourth Geneva Convention contains a Part I that applies to wars both within a Power and between Powers. Otherwise, the Convention applies primarily to wars between Powers alone. The conflict between Israelis and Palestinians began as a civil war under the British Mandate for Palestine and continued as such until at least the late 1980s. Until then, consequently, Part I of the Convention applied to the conflict, including Israeli settlements beyond the Green Line, but Part III – which purportedly forbids the existence of such settlements – did not yet apply. Part III became relevant, if at all, only for events that postdated the Oslo accords of the 1990s.
To be precise, the relevant item in Part I is Article 3: "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties..." (There follow some elementary principles about the treatment of prisoners and the wounded, but nothing about settlements.) This article does go on to say: "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." But the possibility of such "special agreements" was ruled out by the Arab states shortly after the Six Day War with their Khartoum Resolution (September 1, 1967). The resolution reiterated "the main principles by which the Arab states abide, namely, no peace with Israel, no recognition of Israel, no negotiations with it, and insistence of the rights of the Palestinian people within their own country" (i.e., their "right" to all of Mandatory Palestine).
Specifically, a mutual agreement not to create settlements was excluded by the insistence of the Palestine Liberation Organization (PLO) that its mission was to destroy the State of Israel, expel most of its Jewish population and replace them with Arabs. Indeed, Article 24 of the original PLO National Covenant of 1964 expressly excluded the West Bank and Gaza from that mission, so as not to antagonize Jordan or Egypt; this article was omitted in the revised version of 1968. The latter further clarified (Article 6): "The Jews who had normally resided in Palestine until the beginning of the Zionist invasion will be considered Palestinians." That is, almost the entire Jewish population of Israel -- which fails that criterion -- should be expelled. This is proof enough that for the PLO their war against the Jews continued -- even after the Six Day War -- to be a civil war for the control of the whole of Mandatory Palestine.
That was the united Arab position until the Palestinian National Council (PNC) decided in 1988 to envisage negotiations with Israel. In Yasser Arafat's address to the UN General Assembly in December that year, he admitted that previously the PNC had insisted upon the "dream" of a single state in the former Mandatory Palestine, but asserted that the PNC had now decided to adapt to "reality" by proclaiming a Palestinian State just in those areas occupied by Jordan and Egypt during 1949-1967.
That proclamation, of course, did not create a State of Palestine. Serious negotiations on a two-state solution began only with the Madrid Conference of 1991. In the meantime, Arafat had made himself hated among the Arab states by his support for Iraq's seizure of Kuwait in 1990; he had been exiled to the South Libyan Desert because nowhere else wanted to have him. Nor was the PLO allowed to send a delegation to Madrid. Instead, there was a joint Jordanian-Palestinian delegation whose Palestinian members were residents of the West Bank and Gaza. It was only through the so-called Oslo accords of 1993 and 1995 that the conflict began to move away from civil war toward a conflict between states. Those accords, consequently, should be classified as "special agreements" in the sense of Article 3 of the Fourth Geneva Convention. By entering into the accords, the State of Israel has both obeyed the letter of the Convention and acted in its spirit. Accusations that Israel has ignored the Convention are thereby refuted.
By 1995, however, virtually all of the currently existing Israeli settlements in the West Bank were in place. They are products of a period of civil war and should be evaluated as such.
Indeed, many Israelis and Palestinians still think and act even today as if they were Parties involved in a civil war in the territory of Mandatory Palestine. Both continue to debate the pros and cons of a one-state solution and a two-state solution, despite the international consensus favoring the second. They have always seen it as a dispute about a single country to which both groups possess a total claim. Even many on the Israeli Left, who campaign doggedly for Palestinian independence, admit that they give up the historic heartland of Judea and Samaria with a sad heart for the sake of peace.
Especially the Palestinians wish to restore the state of affairs that existed before 1947. Although some Palestinian factions have expressed readiness for a peace treaty based on the Green Line, all the factions are agreed that the conflict will not end until an Arab majority has been created in Israel by flooding the country with the refugees of 1948 and their millions of descendants. Reunion with Gaza and the West Bank would then follow. Likewise, opinion polls have testified that the vast majority of the Palestinian population views the "two-state solution" as acceptable only as a stage toward a unitary state on the territory of the British Mandate.
As for Arafat himself, despite his speeches in English from 1988 on, he clearly never abandoned the struggle to eliminate the State of Israel. In early 1996, details of a speech emerged that he had given to a closed audience of Arab ambassadors in Stockholm on January 30. There he explained that the Oslo accords signed with Israel in 1993 and 1995 were a ruse to give the PLO a base in Palestine from which it could make the lives of Jews so miserable that they would all want to leave. This strategy he put into action, in vain, during the Second Intifada of 2000-2005, after refusing Israeli-American offers to create a Palestinian state that satisfied all Palestinian demands except the "right of return" for Palestinian refugees.
 Picture: Israeli Prime Minister Yitzhak Rabin, U.S. President Bill Clinton, and PLO chairman Yasser Arafat at the Oslo accord signing ceremony on September 13, 1993. |
When the Israel Defense Force (IDF) occupied Arafat's headquarters in Ramallah during 2002-2004, it found documents signed by Arafat authorizing money for bomb belts for suicide bombers. Arafat was aware of what he was signing, as he had personally crossed out the sums requested and replaced them with smaller sums. So much in secret; his public speeches in Arabic included a ditty that sang of "a million martyrs marching on Jerusalem." It made meaningless his commitments in the Oslo accords to cease terrorism and incitement.
Arafat's successor, Mahmoud Abbas, clearly disapproved of Arafat's terrorism during the Second Intifada, not because it was immoral but because it was counterproductive. Incitement continues until today: Palestinian Media Watch has compiled a vast archive of examples from the Palestinian media, education system and public ceremonies, including senior PLO and Fatah figures close to Abbas himself.
The Violet Line
There were originally two French Mandates, in Lebanon and in Syria, and two British Mandates, in Iraq and in Palestine. All four have turned into theaters of unresolved civil war. Palestine was the first and the least bloody. (Even in Lebanon, civil war is estimated to have claimed more victims and remains unresolved as long as Hizbullah forms a heavily-armed state within the state.)
Probably none of those civil wars can be resolved, if ever, without multi-state solutions. The international consensus -- with the stubbornness of "a ass" -- treats such solutions as impermissible except in the case of Mandatory Palestine. Only here the consensus regards partition as obligatory. The consensus also sees the "Green Line" drawn in the Israel-Jordan Armistice Agreement of 1949 as the appropriate boundary between the Israeli and Palestinian states, subject to modifications agreed between both Parties.
The fault of this consensus is that it treats a civil war as an inter-state war and proposes a half-baked solution that fits neither kind of war. It is no wonder that the decades-long attempts to implement such a misconception constantly end in failure. That it is a misconception can be shown by a brief review of the whole history. It will suffice to recall main features of the history: the aim is simply to show that the history reads best as a history of civil war among the inhabitants of a single territory.
The British Mandate for Palestine was agreed by the League of Nations in 1922, following the latter's creation (January 1920) and the San Remo Conference (April 1920). Its express purpose included the realization of the Balfour Declaration (November 2, 1917):
"His Majesty's government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country."
The Mandatory Power, however, was given the discretion to exclude Transjordan from the provisions of the Jewish National Home. Britain did so already in 1923, appointing its ally, Emir Abdullah, to rule there. When Transjordan was given full independence in 1946, Abdullah was its King.
At the beginning of the Mandate, the population west of the Jordan was under a million. Less than 15% were Jews, but their numbers quickly grew as the project to create a Jewish National Home got under way. The initial assumption was that the area would, like Transjordan, become independent under British tutelage. The Arab leadership -- both religious and intellectual -- was however opposed not merely to that project but to the Mandate itself, demanding immediate independence and refusing to participate in any provisional government.
Riots inspired by the Arab leadership began sporadically already in 1920. Particularly horrifying was the 1929 massacre of Jews by Arabs in Hebron. The Great Arab Revolt (1936-1939) began with attacks by Arabs upon Jews, but became the occasion for the Husseini clan to kill or expel much of the rival Nashashibi clan.
This set the pattern for later outbursts of warfare up to today's confrontations between Fatah and Hamas: it would start with civil war by Arabs against Jews and proceed to civil war among the Arabs themselves. At the same time, all parties nursed the ambition to rule the entire country. There were also many cases of close personal relations between Jews and Arabs, at least until the outbreak of riots. During the Hebron massacre, for instance, many Jews were hidden by Arab friends, though in other cases they were drinking tea with supposed friends on one day and killed by them on the next. This sort of thing, too, is typical of civil wars, as in the former Yugoslavia.
The British tried two approaches to end the Great Arab Revolt. The first was to appoint the Peel Commission (1937), which recommended partition of the territory into a Jewish state, comprising Galilee and a strip along the coast to Tel Aviv, and an Arab state linked to Transjordan. But there were to be close relations between the two states as well: since taxpayers were predominantly Jews, the Jewish state should pay an annual subvention to the Arab one. The Jewish leadership under David Ben-Gurion accepted the principle of partition, though in the hope of getting more, but the Arab leadership rejected it outright.
The second approach was to suppress the revolt with Jewish help, but then to publish a White Paper (May 1939) that effectively cancelled the Jewish National Home (while pretending to achieve it). Only 75,000 new Jewish immigrants would be allowed over five years, after which further Jewish immigration would be subject to Arab agreement (that is, vetoed). Palestine would become independent after ten years. The White Paper was accepted by the Arab leadership under Amin al-Husseini. The Jews naturally rejected it. When World War II broke out a few months later, Ben-Gurion famously declared: "We will fight the White Paper as if there is no war, and fight the war as if there is no White Paper."
A minority of Jews went further: they planned armed insurrection against the British. This began in the closing months of World War II and continued until, in early 1947, the British government announced its intention to leave Palestine the next year. A fresh partition plan was approved by the UN General Assembly on November 29. and the British announced that the following May 14 would be the last day of their administration.
Under the UN plan, the Northeast, West Central and Southeast of the Mandate territory were allotted to the Jewish state; Northwest, East Central and Southwest (plus Jaffa as an enclave) to the Arab state. Jerusalem and Bethlehem were to remain initially under a "Special International Regime." Obviously, such a division into areas presumed that the two states would have to cooperate closely in order to be viable and that the whole country would remain in many regards a single entity.
The Jewish leadership, again, tentatively accepted it, but with reservations especially about the safety of Jews in Jerusalem. The Arab leadership rejected it immediately, making the plan unworkable, and Arab "irregulars" quickly began to attack Jews anywhere. The remaining months of the British administration formed the first stage of this civil war, when the Arabs had numerous initial successes, but the Jews eventually fought back and -- at least in the north and central areas -- secured what they had been promised and more, including a corridor linking the central coast to Jewish neighborhoods in Jerusalem. On May 14, they proclaimed the State of Israel in those areas.
The second stage began the next day with the invasion of armies from the neighboring Arab states and contingents from others. Once again, the Arabs had major initial successes. But soon the Jews mobilized larger forces, armed them massively with imported weapons, and gained land beyond their original allotment. Moreover, the Arabs did not have a united aim. King Abdullah wanted to annex as much land as he could to his kingdom, whereas the other Arabs aimed to turn all of Mandatory Palestine into a single Arab state. Thus although both Jordanian and Egyptian forces reached the kibbutz Ramat Rachel on the southern outskirts of Jerusalem, their inability to cooperate helped the Jews to retain the kibbutz. As the war approached its end early in 1949, Ben-Gurion was advised that the Israel Defense Force was now strong enough to drive the Jordanian Arab Legion back across the Jordan, but he preferred to expel the Egyptian Army out of nearly all the south.
The war ended with the signing of four Armistice Agreements between Israel and its Arab neighbors. In the Jordanian case, a violet line and a green line were drawn on a map. The Israeli representatives (Yigal Yadin and Walter Eytan) signed on the map to confirm that the violet one showed their military front line; Lieutenant Colonel Coaker of the Arab Legion signed to confirm that the green one showed the Jordanian front line. A portion of the map can be studied here and the whole map is unfurled in this video. Also at places where the gap between the two lines is particularly wide, as in Southeast Jerusalem, they can be seen as two distinct dotted lines in Google Maps.
The custom of referring to the two lines collectively as "the Green Line" may be convenient, but it is seriously misleading. Hardly any contemporary politician or journalist is aware that there were two lines and that their purpose was just to show the positions of armed forces, not to designate a border. At the insistence of the Arab states, all the Armistice Agreements included a statement to this very effect. In both the Jordanian and Lebanese cases, the wording was:
"It is also recognised that no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations."
The Syrian one makes the point even more clear by replacing "by military considerations" with "by military, and not by political, considerations." The Egyptian one has a much longer formulation in order to ram the point home utterly unambiguously.
In every case, the aim was to deny any recognition of legitimacy to the State of Israel and to insist that the Arabs retained their claim to the whole of Mandatory Palestine. Thus when the IDF crossed the violet and green lines in June 1967, it was crossing not a border but mere ceasefire lines that had been made inoperable by a massive violation of the Israel-Jordan Armistice Agreement by the Kingdom of Jordan.
On April 24, 1950, the Kingdom of Jordan annexed the area that it had occupied. This completed a process begun in Jericho on December 1, 1948, when several thousand Palestinian notables from areas controlled by Jordan dutifully begged King Abdullah to do it. No other Arab state recognized this step; the Arab League later half-accepted it by insisting that the area was in Jordanian custody until circumstances would permit the Palestinians to acquire it. Indeed, the Arab League had set up an "All-Palestine Government" on September 22, 1948, which was recognized by all its members except Jordan; this soon became a tool of Egypt with the role of sending terrorists into Israel.
Jordan's constitution was changed to give equal representation in the parliament to the "East Bank" and the "West Bank," as they were now renamed. In the whole world, only Britain (some would add Pakistan) recognized this other "united kingdom." The last election took place in April 1967, just before the Six Day War; the West Bank members who were then elected retained their seats until Jordan finally ceded the representation of Palestinians to the Palestine Liberation Organization in 1988. Curiously, the replacement of the millennial names of the area, "Judea" and "Samaria" (also in Arabic: يهودا والسامرة), by the term "West Bank" has been accepted by an international consensus that always denied the validity of what the term was invented to designate.
From 1949 on, Egypt sponsored incursions of Palestinians to commit terrorist attacks in Israel. After the Six Day War, such incursions continued from Jordan, provoking Israeli retaliation. There were also clashes between armed Palestinians and the Jordanian police, until King Hussein ordered his army to suppress armed Palestinian groups and expelled the PLO leadership in 1970-71. Israel likewise suppressed Palestinian violence in Gaza. The situation calmed down to such an extent that during the Yom Kippur War of 1973, the Palestinians under Israeli rule remained wholly passive.
Once again, the former Mandatory Palestine became effectively a single country, where everyone could go anywhere. Up to 100,000 Palestinians commuted to daily work in Israel and a similar number was believed to be working there illegally. Another result was that much -- maybe the majority -- of at least the male Palestinian population learned to speak Hebrew, allowing everyone to communicate.
On the other hand, when in 1976 Israel permitted elections for mayor in the Palestinian cities, various pro-Jordanian notables were replaced with evident PLO sympathizers. Nevertheless, during most of the 1970s and 1980s the whole country was remarkably tranquil; violent incidents were small compared with other parts of the Middle East and the Palestinians enjoyed an economic boom. Menahem Milson, a distinguished Israeli Professor of Arabic Studies, recently published a memoir of his discussions with Palestinian intellectuals in those years. The memoir documents the ease with which they met, the genuine friendships that developed, but also the total intransigence and incapacity of the Palestinians to envisage any alternative solution to the replacement of Israel with a unitary Palestinian state.
The precarious peace ended in December 1987, when some clashes between soldiers and Palestinians were badly mishandled by Defense Minister Yitzhak Rabin, who at first did not take them seriously but later tried to suppress them with gross brutality. There erupted the First Intifada of 1987-1991, during which -- as in the 1930s -- eventually Palestinians also began to fight each other. About a thousand Palestinians were killed by other Palestinians, matching about a thousand killed in clashes with Israeli forces.
The long era of civil war began to end -- maybe -- with the Madrid Conference of 1991. A major consequence of the Oslo accords is that, apart from Jerusalem, Israelis and Palestinians hardly meet each other anymore. After the creation of the PA, weekend shopping trips of Israelis to Palestinian cities came to an end because they became too dangerous. Since the Second Intifada, Israel has forbidden its Jewish citizens from visiting Areas A and B of the Palestinian Authority (PA), lest they be killed or kidnapped. Organs of the PA are currently running an "anti-normalization" campaign that bans any public meetings between Palestinians and Israelis. The PA also stopped the teaching of Hebrew for years.
Yet recently, Hebrew was returned to the curriculum in the West Bank and even in Hamas Gaza. Said a report:
"Somayia al-Nakhala, director of curriculum at the ministry of education... points out that people in Gaza consume Israeli products, are prescribed Israeli drugs and often watch Israeli television via satellite or access Israeli websites. 'We are connected to Israel,' she said. 'Politics is different from practicalities.'"
She could have added that some 200,000 Palestinians receive treatment in Israeli hospitals annually and that Israel supplies most of Gaza's water and electricity, even when Gaza is shooting thousands of rockets at Israel and even though Hamas publicly declares its intention to destroy and replace Israel. In practical terms, Mandatory Palestine is still one country.
Lastly, Jordan and Israel made peace in 1994, after the agreed delineation of their borders everywhere outside the West Bank. (The line of separation between the Jordan and the West Bank itself is also all but established, since it must run along the River Jordan and into the Dead Sea.) With the signing of the Israel-Jordan Peace Treaty, the violet and green lines both vanished. One thing that is certain in international law (as well as in elementary thought) is that a peace treaty abolishes any preceding ceasefire lines.
The Cheshire Cat
Cheshire cats have long been proverbial for their grin. Lewis Carroll elevated that facial feature to new metaphysical heights in his Alice's Adventures in Wonderland (1865), where Alice meets a Cheshire cat that slowly disappears until only the grin lingers.
Just as the violet and green lines were on the point of expiring in 1994, the Israeli government decided to give them a fresh gasp of life in the negotiations with the PLO that led to the signing of the Declaration of Principles on Interim Self-Governing Arrangements (1993) and the Interim Agreement on the West Bank and the Gaza Strip (1995). They are popularly known respectively as "Oslo I" and "Oslo II." Those two lines -- though it is unclear which of them -- were an implicit point of reference for the provisions of both agreements. So the grin on the face of this vanishing cat is whatever is implied about those lines by the Oslo accords.
It is noteworthy that Oslo I and II were not international treaties, as the PLO -- despite its widespread recognition as the exclusive representative of the Palestinian people -- had never been the government of a state. A central feature of the Oslo I was the election of a Council by -- and in order to be representative of -- the Palestinian population in the areas acquired by Israel in the Six Day War.
Article IV of Oslo I specifies the jurisdiction of the Council, once elected:
"Jurisdiction of the Council will cover West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status negotiations. The two sides view the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved during the interim period."
Article V lists the permanent status issues as "including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest." It adds, however, this proviso:
"The two parties agree that the outcome of the permanent status negotiations should not be prejudiced or preempted by agreements reached for the interim period."
Article VI defines the powers that in "the Gaza Strip and the Jericho area" -- even before the election of the Council -- were to be "transferred to the Palestinians" (meaning, presumably, to persons authorized by the PLO). They were "education and culture, health, social welfare, direct taxation, and tourism."
Put those three articles together and several conclusions seem to follow concerning Israeli settlements. First, the PLO accepted that the already existing settlements would remain throughout the interim period until the conclusion of the permanent status negotiations. That is, the PLO itself legitimized their continued provisional existence. Second, the Israeli side effectively conceded that during the interim period no new settlements would be built. This is because the powers to be transferred immediately in "the Gaza Strip and the Jericho area" (Article VI) were presumably ones that would be exercised by the Council in "West Bank and Gaza Strip territory, except for" the already existing settlements (Articles IV+V); thus the Council would exercise them in any new Israeli settlements.
That the second conclusion is correct is also confirmed by the following statement about direct taxation in Article 8 of Annex III of Oslo II:
"The powers and responsibilities of the Israeli side for levying and collection of income tax and deduction at source, with regard to Israelis (including corporations in which the majority of shares which grant rights to distribution of profits are held by Israelis) in respect of income accrued or derived in Area C outside the Settlements and military locations, will be exercised according to the Palestinian tax code and the tax collected will be remitted to the Palestinian side."
The implication is that only residents of the already existing Israeli settlements -- but not any subsequent Israeli civilian settlers outside them -- would be exempt from Palestinian taxation.
Third, the statement in Article IV about preserving the "integrity" of the West Bank and Gaza does not except settlements. Thus Israel implicitly agreed not to change the status of the settlements during the interim period (in particular, not to annex them to the State of Israel). Of course, Israel is permitted to make changes to the personal status of Israeli citizens who live in them, as long as the status of the settlements themselves remains the same.
A fourth conclusion, however, is that the proviso in Article V quoted above implies that those three conclusions apply only to the interim period. In negotiating the final status, the Palestinians can ask for the removal of all Israeli settlements, while the Israeli side can ask to acquire not merely individual existing settlements but blocks of settlements that include territory lying between settlements. Indeed, neither Israel nor the PLO is excluded a priori from asking for any part of Mandatory Palestine.
Also Oslo II (see Article XXXI of the main document) propounds similar restrictions in force during the interim period, but adds that:
"Nothing in this Agreement shall prejudice or preempt the outcome of the negotiations on the permanent status to be conducted pursuant to the DOP. 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."
A fifth conclusion, then, is that if the PLO decides unilaterally to abolish the Oslo accords, as some of its senior members have threatened, then all restrictions accepted by Israel in the accords will end. The violet and green lines will vanish completely once and for all, and the conflict will revert to a conflict between two Parties within and over a single territory -- the territory of Mandatory Palestine. Israel can again create settlements in any part of that territory, as the only relevant provision of the Fourth Geneva Convention will again be Article 3 of Part I.
It should be noted that the Israeli settlements were generally set up according to proper town planning principles in which a specific area was allotted to each of them, after which infrastructure and building began stage by stage within the allotted area. Thus building can continue throughout the interim period until the entire originally planned area has been used up. Moreover, this is a right that the PLO -- whether it likes it or not -- conceded to Israel in Oslo I and II; that is, the PLO thereby forfeited any preexisting right in international law to oppose it during the interim period.
The same applies to Israeli building within the extended boundaries of Jerusalem that it introduced after the Six Day War, as that is the "Jerusalem" that the PLO agreed to defer to the final status negotiations. The last major Israeli neighborhood to be built here was Homat Shmuel, popularly known as "Har Homa" (from 1991 on). Recent building that aroused tut-tuts from the international consensus was in Israeli neighborhoods that were established earlier, such as Ramot and Gilo. We say "Israeli" and not "Jewish" neighborhoods because Israeli Arabs, too, are living there, as they can legally do so. From the viewpoint of international law, they are "Israeli settlers" just as much as Israeli Jews living there.
We can summarize all the above findings in a few sentences. 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 (that is, the territory remaining after Transjordan was separated from the Mandate and made independent).
One further point concerns the hundreds of thousands of Jerusalem Arabs who were given Israeli identity cards (but not citizenship) after 1967, yet became entitled to vote for the Palestinian Legislative Council (in virtue of Oslo I and II). The number of them who work, shop and pursue leisure activities together with Jews also runs into six digits. A poll in 2011, conducted jointly by Palestinian and American agencies, yielded results like the following:
"Some 35% of them said that Israeli citizenship is their preferred citizenship and only 30% chose to be citizens of the future Palestinian state... 40% said they would move in order to remain Israeli citizens if their neighborhood was transferred to Palestinian sovereignty. In contrast, only 29% said that if the opposite were to occur, and their neighborhood remained under Israel's authority they would move to an area under Palestinian authority."
In fact, some 24,000 Jerusalem Arabs have already taken out full Israeli citizenship and applications to do so now run at up to a thousand a year, according to recent statistics.
Thus another feature of the international consensus -- that Jerusalem should be split into two capitals for two states -- is also seriously flawed. The maintenance of a united city is the preference of Israeli and Palestinian residents alike, while even the latter tend to prefer Israeli over Palestinian rule. Moreover, the whole structure of the city has thoroughly changed during the last 49 years. Instead of pontificating from afar, we would like the devotees of the international consensus on dividing Jerusalem to spend a few days actually visiting the city. There they can count the scores of border crossings that would need to be installed, turning all the major traffic arteries into dead ends. This, too, is "a ass."
Malcolm Lowe is a Welsh scholar specialized in Greek Philosophy, the New Testament and Christian-Jewish Relations. He has been familiar with Israeli reality since 1970.
