Jewish Communities and Settlements in Judea and Samaria

Jewish Communities and Settlements in Judea and Samaria

Key Facts

• Settlement in the West Bank are often simplistically cited as the cause of the Israeli-Palestinian conflict but a practical approach to settlements, taking into consideration Israeli security issues, must be taken to reach a long-term solution to the conflict.
• Settlements are used by Palestinian leadership as an excuse not to enter into negotiations and as weapon to discredit Israel.
• The sovereignty of the West Bank and the Gaza Strip remains unclear: from 1920 to 1948, Great Britain administered the areas as part of the League of Nations Mandate for Palestine, which facilitated Jewish settlement throughout the country. New Jewish communities, often near ancient religious sites, were established during the Mandatory period in what is now referred to as the West Bank.
• While disputing the de jure designation of the West Bank and Gaza as “occupied territories,” Israel has voluntarily complied with the humanitarian provisions of the Law of Occupation by providing all forms of public service, improving medical care and establishing universities for the local Arab population.
• No Israeli government ever moved to annex the territories, compelled Israeli citizens to move to settlements there, or instituted a policy of displacing or transferring the Palestinians.
• Jewish settlement in the West Bank is based on a complex blend of religious, legal, historical, strategic and demographic claims.
• Discussion of the final disposition of the settlements issue must account for the fact that some 350,000 Jews now reside in communities in the West Bank. Various formulas have been developed for consolidating the majority of settlers into geographic blocs that would remain part of Israel in exchange for concomitant land swaps, adjusting the political boundaries between Israel and a future Palestinian state.
• The 1993 Oslo Accords stipulated that discussion of the final disposition of the settlements question should be deferred until the last phase of Israeli-Palestinian peace talks.
• Land-swap formulas that would allow a large proportion of Jewish settlers to remain in a small proportion of the West Bank are viewed by many as an expression of an emerging national consensus among Israelis on how to resolve the settlements issue.

More Information

The disposition of Jewish settlements in the West Bank (Judea and Samaria) is one of the most complex issues affecting the Israeli-Palestinian relationship. The settlements issue is made all the more complicated by serious misconceptions about the moral, political, historical, religious and legal right of Jews to reside in these “disputed territories” and by the vital security function performed by many of the settlements (as “trip wires” and “early-warning stations” against possible future attack). It is only when Israeli claims vis-à-vis the West Bank and practical considerations regarding settlement activity are taken into account that a permanent resolution of the Israeli-Palestinian conflict might be possible.

Since 1967, official Palestinian policy (backed by widespread international public opinion) has argued that all Jewish settlement activity in the West Bank and Gaza is illegal under international law and must be withdrawn as a precondition for peace. This policy is based primarily on a narrow interpretation of the Fourth Geneva Convention, which prohibits the “occupying power” from altering the status of territories taken in war. Specifically, the Palestinians charge that Israeli settlement activity violates Article 49 of the Convention, which states that the occupying power:

shall not deport or transfer parts of its own civilian population into the territory it occupies.

With the active encouragement of their supporters internationally, Palestinian leaders have used the settlements issue and the Geneva Convention as their principal excuses to avoid direct negotiations or reach a peace agreement with Israel.

The settlements issue is also used as a weapon in the Palestinian campaign to discredit, delegitimize and isolate Israel at the United Nations and in other international fora. In July 1998, Israel initially declined to support the draft treaty for the International Criminal Court, mainly because of the inclusion – at the insistence of Arab countries – of a clause implying that settlement activity in “Occupied Palestinian Territory, including Jerusalem” is a violation of the Geneva Convention and a “war crime” and “grave offense” comparable to the Holocaust and other more contemporary atrocities.

Between 1997 and 1999 a series of Emergency Special Sessions of the United Nations General Assembly were convened to condemn Israeli settlement activity as was, in July 1999, an unprecedented meeting of the High Contracting Parties to the Fourth Geneva Convention. Settlement activity was also a central focus of Arab-led efforts to delegitimize Israel and Zionism at the World Conference Against Racism, Racial Discrimination, Xenophobia and Other Intolerance (Durban, South Africa, September 2001), a second meeting of the High Contracting Parties (December 2001), and at yet another Emergency Special Session of the UNGA (December 2001).

Israel rejects the Palestinian perspective on several grounds. It disputes the applicability of the Fourth Geneva Convention to the West Bank and Gaza, inasmuch as the Convention relates explicitly to the responsibilities of a foreign power in belligerent occupation of another country as the consequence of an aggressive war, whereas Israel came into possession of the disputed areas in 1967 as the result of a purely defensive war. With specific reference to settlement activity, Israel discounts the Arab interpretation of Article 49 of the Convention, arguing that the reference was clearly to the forced transfer of civilian populations (along the lines of that committed by the Nazis during the Second World War), whereas settlement activity in the West Bank is entirely voluntary (Israel withdrew all settlements from Gaza in 2005).

The settlement issue is complicated by the fact that the sovereignty of the West Bank and the Gaza Strip remains unclear. From 1920 to 1948, Great Britain administered the areas as part of the League of Nations Mandate for Palestine. The Mandate both legitimized Jewish immigration to Palestine and instructed the Mandatory authority to encourage and facilitate Jewish settlement throughout the country. It was partly on this basis that new Jewish communities were established during the Mandatory period in what is now referred to as the West Bank, often near ancient religious sites.

The Arab repudiation of the UN Partition Plan (General Assembly Resolution 181 of November 1947), combined with the termination of the Mandate on May 14, 1948, left the status of the West Bank and Gaza in limbo. Though Israeli sovereignty was applied to areas under Jewish control at the end of the 1948-1949 War, no legal regime was instituted in Arab-controlled areas to replace Mandatory law. From 1948 to 1967 no Jews resided in Egyptian-occupied Gaza and Jordanian law prohibited Jews from living in the West Bank. But at no time did Egypt incorporate Gaza nor was Jordan’s 1950 annexation of the West Bank and eastern Jerusalem recognized internationally. According to international legal authority Eugene Rostow:

The right of the Jewish people to settle in Palestine has never been terminated…The Jewish right of settlement in the area is equivalent in every way to the right of the local population there.

While disputing the de jure designation of the West Bank and Gaza as “occupied territories” as defined by the Fourth Geneva Convention, Israel has, since 1967, voluntarily complied with the humanitarian provisions of the Law of Occupation in its administration of the territories. In practical terms, this has meant providing all forms of public service to the territories, including improving the quality of medical care and establishing universities for the local Arab population. No Israeli government ever moved to annex the territories, compelled Israeli citizens to move to settlements there, or instituted a policy of displacing or transferring the Palestinians.

Jewish settlement in the West Bank is based on a complex blend of religious, legal, historical, strategic and demographic claims.

Religious

Legal

Historical

Strategic

Demographic

The 1993 Oslo Accords stipulated that discussion of the final disposition of the settlements question should be deferred until the last phase of Israeli-Palestinian peace talks. The 1995 Oslo II agreement incorporated all settlements in “Area C”, areas of the West Bank and Gaza over which Israel retained exclusive control during the interim period of partial Palestinian autonomy, from which Israel would undertake a phased, partial redeployment within the context of permanent status talks.

In a 1994 study undertaken for Tel Aviv University‘s Jaffee Center for Strategic Studies, Joseph Alpher proposed a plan involving minor adjustments to the Green Line so as to permit Israel to annex about 11% of the West Bank – incorporating most settlements in Western Samaria (where the vast majority of Jewish settlers reside) as well as a corridor of trip-wire settlements in the Jordan Valley and around Jerusalem. Additional fine-tuning of the political boundary would be undertaken to avoid Israel’s annexing Palestinian population centres, and the remaining territory in the West Bank and Gaza Strip would be transferred to Palestinian control. Settlers wishing to remain in areas not incorporated in Israel would be subject to Palestinian authority. In secret discussions concluded in the fall of 1995, Israel government minister Yossi Beilin and Palestinian official Abu Mazen (Mahmoud Abbas) reportedly agreed on a plan calling for Israel to annex about 10% of the West Bank, thereby incorporating under Israeli sovereignty the large blocs of Jewish settlements, then accounting for approximately 70% of the settlers. As compensation for the small percentage of West Bank land retained by Israel, the Palestinians would receive territory from inside the Green Line near the Gaza Strip. It was agreed that no settlements would be required to dismantle and that settlers residing in non-annexed areas would retain Israeli citizenship but live under Palestinian sovereignty with special security arrangements (including safe passage between settlement blocs and to and from Israel).

The Beilin-Abu Mazen formula was never formally approved by Israel or the Palestinian Authority. Nevertheless, it appeared to contain the essence of a pragmatic and creative solution to the settlements issue. By the same token, though not endorsed as official policy by Labour or Likud, the so-called “Beilin-Eitan” understandings of January 1997 – in which a bipartisan committee of Israeli parliamentarians headed by Labour’s Yossi Beilin and the Likud’s Michael Eitan agreed in principle to terms similar to those discussed by Beilin and Abu Mazen – were nevertheless viewed by many analysts as an expression of an emerging national consensus among Israelis on how to resolve the settlements issue.

Evidence of this emerging Israeli national consensus is reflected in several interesting developments. While continuing to proclaim the moral right of Jews to settle in all of the “disputed territories”, Benjamin Netanyahu’s Likud-led coalition government withdrew from 80% of the city of Hebron (in January 1997) and agreed to additional phased redeployments in the Wye River Memorandum (October 1998). For its part, the Labour Party undertook significant modifications in its own policy toward the settlements issue. In the 1992 election campaign, Yitzhak Rabin drew vague distinctions between “political” and “security” settlements, implying a readiness to abandon the former while retaining the latter in the context of a negotiated agreement. As Prime Minister, Ehud Barak took the discussion to a different plane by:

1. Drawing a more precise distinction than did Rabin between political and security settlements;
2. Acknowledging the likelihood that many of the former would have to be evacuated in order for Israel to retain the latter; and
3. Formally establishing as one of his “red lines” a permanent peace agreement in which the vast majority of Jewish residents of the West Bank would be incorporated in large settlement blocs under Israeli sovereignty. (These blocs were to include Gush Etzion, Ma’aleh Adumim and Ariel.)

At secret talks in Stockholm, Sweden, in the winter-spring of 2000, in preparation for the Camp David summit (July 2000), Israeli and Palestinian negotiators reportedly reached agreement in principle on a plan that would leave Israel in permanent retention of about 5% of the West Bank, into which would be incorporated three large settlement blocs comprising some 80% of the settlers. It was generally assumed (though never formally confirmed by Israeli officials) that most of the remaining settlements, many in isolated and indefensible areas, would be evacuated.

The essence of this working agreement drove the limited discussion about settlements at Camp David and was incorporated in the “bridging” ideas presented by US President Bill Clinton in late December 2000; the Clinton proposal further spoke about Israel’s transfer to the Palestinians of territory inside the Green Line to compensate for the 5% of the West Bank to be retained by Israel. Even though this proposal marked a significant departure from Israel’s longstanding interpretation of UNSC Resolution 242 (according to which Israel is not obligated to withdraw from all territory taken in the June 1967 war), it reportedly was accepted by the Barak government. However, the Palestinians prevaricated, requesting additional “clarifications” from the Americans.

In the meantime, as a gesture of good faith, the Barak government adhered to the practice adopted by successive Israeli governments since Oslo of voluntarily limiting the construction of new settlements, while permitting the controlled expansion of existing settlements. It is important to emphasize that, according to the Oslo accords and all subsequent signed agreements, Israel was under no obligation to limit settlement construction but did so purely as a “confidence-building measure.” Under the terms of the March 2001 coalition agreement, the national unity government headed by Prime Minister Ariel Sharon also pledged not to build new settlements, though it committed itself to fulfilling its responsibility to provide for the welfare of existing settlements, including their expansion to accommodate “natural increase.”c