Australia/Israel & Jewish Affairs Council

Israel's controversial settlements regulation bill

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Update from AIJAC

 

Update 02/17 #02

As readers will probably be aware, on Monday night the Israeli Knesset passed a very controversial law, known as the "Regulation Law" which retroactively allows residents of housing units in the West Bank "outposts" - settlements built without government permission - to stay in their homes if it is discovered their homes are inadvertently built on privately-owned Palestinian land. The landowners are to receive compensation rather than the evacuation of the land by the Israeli residents, as Israeli courts had previously ordered.

We lead with a very good backgrounder on this law, its history, impetus and implications, from BICOM, the British-Israel Communications and Research centre. This explains exactly what the bill says and is intended to do - and the reality that virtually no one expects the bill to survive a court challenge, with even Israeli Attorney General Avichai Mandelblit saying the law is unconstitutional and refusing to defend it in court. The backgrounder explains all that you need to know about the political realities and sentiments that led to it passing anyway in the wake of the evacuation of the Amona outpost, as well as the likely international implications of this law for Israel.  For all the background you need on this controversial measure, CLICK HERE. More on the reasons it is almost universally expected that Israel's High Court will invalidate this  law comes from Yonah Jeremy Bob of the Jerusalem Post.

Next up is an argument about the international law implications of the bill. In a piece written a few weeks ago when this bill was being considered, American academic specialist in international law Eugene Kontorovich goes through the legal arguments being forward to claim that it is illegal under international law for Israel to confiscate private land in the West Bank in exchange for just compensation, and offers a refutation for each of them. Most interestingly, he argues that with respect to the land in question in the "outposts", describing it as "private Palestinian land" is misleading, because in almost all cases, no Palestinian owner has come forward for decades, and under most legal systems, including the Jordanian one that applies to the West Bank, "adverse possession" should ostensibly give title to the long-term inhabitants. He also has some interesting arguments about precedents in similar cases in Cyprus and Crimea, and to read it all, CLICK HERE.  (The article also contains a link to a contrary view on the subject provided by Israeli academics Yaël Ronen and Yuval Shany.)

Finally, noted Israeli intellectual and author Yossi Klein Halevi explains Israeli beliefs and debates about settlements in a detailed and knowledgeable essay published in the Wall Street Journal. Providing more background to the debate on the settlements "regulations law", he notes that the debate in Israel has shifted away from being about "land for peace" - which the public is deeply sceptical can result  - to one about whether withdrawal is essential to preserve Israel as a Jewish and democratic states versus withdrawal as an existential threat, given the Gaza evacuation experience. He also notes that almost no one in Israel views Jerusalem Jewish neighbourhoods as settlements, and Israelis largely do not see all settlements as the same, nor all settlers as the same. For this must-read - and very readable - guide to the real debate about settlements in Israel, CLICK HERE

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Article 1

BICOM Briefing: The Regulation Law

 

February 7, 2017

Key Points

  • On Monday, 6 February the Israeli Knesset passed the third and final reading of Hok Hahasdara, the Regulation Law, by 60 votes to 52. The Regulation Law retroactively gives residents of up to 4,000 housing units in West Bank settlements the right to live in their homes which were built – some accidentally – on private Palestinian land, in return providing the landowner with an annual usage payment of 125 per cent of the land’s rental value. The Law sits alongside other potential legislation being promoted in right-wing circles which includes plans to declare sovereignty in parts of Area C of the West Bank, beginning with the large settlement of Maale Adumim.

  • Shifts in both domestic and international politics affected the Israeli political calculus and created the framework for this piece of legislation to pass. The Law comes in the context of the evacuation of the Amona outpost and Prime Minister Benjamin Netanyahu and Jewish Home leader Naftali Bennett’s attempts at assuaging objections of their own constituents. The incoming American administration – far less critical, if not supportive, of the settlement project than its predecessor – led the Israeli government to believe that the tide had turned and assessed that a Trump Presidency would not object to these moves. Former American ambassador to Israel, Dan Shapiro, wrote that it is “difficult to imagine this vote would have occurred so soon before PM Netanyahu’s visit to DC without a clear OK sign from Trump Administration”.

  • The Regulation Law faces its strongest challenge in the Israeli Supreme Court and is highly unlikely to survive. Israel’s Attorney General Avichai Mandelblit has been one of the most vocal critics of the Law, declaring it unconstitutional and refusing to defend it in the Supreme Court. Critics of the Law, including Mandelblit and former Foreign and Justice Minister Tzipi Livni, have warned of potential lawsuits that Israelis may face at the International Criminal Court (ICC)


    Israel’s Attorney General Avichai Mandelblit: He has been one of the most vocal critics of the Law, declaring it unconstitutional and refusing to defend it in the Supreme Court

What is the Regulation Law?

  • Hok Hahasdara, known as the Arrangements Law, the Legalisation Law or the Regulation Law (hereinafter The Regulation Law) seeks to solve a situation in which, over several decades, Israeli housing units in the West Bank were built – sometimes accidentally – in open areas adjacent to already established settlements on land where individual Palestinians subsequently asserted property claims. As the Law states: “In many cases, settlements were built in agreed-upon areas, and were even encouraged or built in coordination with the state, or were built in good faith by the Israeli residents, who were unaware that this was privately-owned land. Leaving the situation as is in these settlements or their destruction is liable to seriously, unjusti ably harm those who have lived there for many years. Therefore, the regulation of these settlements is necessary.” The Law permits the State to retroactively legalise these settlement houses or outposts which are located on privately- owned Palestinian land and give usage of the land to the existing residents until there is a diplomatic resolution of the status of the West Bank.

  • This retroactive legalisation will apply in cases were Israelis living in the West Bank initially received government assistance or construction was carried out “innocently”. The Law defines government assistance as either initial or post-facto, and also includes the backing of local municipalities. It describes innocent construction as a situation in which the settlers did not know that the land they were building on was privately owned by Palestinians.

  • Although the Regulation Law has navigated successfully through the Knesset, it faces a strong legal challenge in the country’s Supreme Court. The Law presents a significant shift away from the Supreme Court’s interpretation of international law regarding the expropriation of land in the West Bank, and Israel’s Attorney General Avichai Mandelblit has been one of its most vocal critics. During its preliminary and rst readings, Mandelblit argued that the Law bypassed standard land regulation procedures in the West Bank and would be in breach of local and international law. He has also reportedly told PM Netanyahu that he was not prepared to defend it in court.

  • The Regulation Law includes a monetary mechanism that would compensate any potential Palestinian landowners in return for the communities remaining in place. The Law says that a landowner can choose between receiving an annual usage payment of 125 per cent of the land’s value as determined by an assessment committee for renewable periods of 20 years, or an alternate plot of land if this is possible.

  • While the actual scope of the Regulation Law remains unclear, reports from Israeli settlement watchdog Peace Now suggest it could result in the legalisation of 55 outposts and approximately 4,000 housing units in settlements and outposts. The Law also freezes all demolition orders against homes built on land claimed by Palestinians in these areas for 12 months, in order to allow the government to determine whether such buildings were built in good faith and/or with government assistance.

  • To alleviate concerns of the centrist Kulanu party within the coalition, the Regulation Law does not apply to three cases of homes built on private Palestinian land on which the Supreme Court has already ruled should be dismantled. These include the Amona outpost (which was evacuated on 2 February), nine homes in the Ofra settlement (delayed by the Supreme Court till 5 March), and 16 homes in the Netiv Ha’avot outpost in the Gush Etzion area.

The Regulation Law and Israel’s Supreme Court

  • The Supreme Court has ruled that Israel holds the West Bank under belligerent occupation, and that the area is under military, rather than civil authority. The Court has thus historically allowed public or state land to be used for settlements, as well as privately-owned Palestinian land to be requisitioned for security or public purposes (such as building roads or the separation barrier). However, the Supreme Court has never allowed the State to expropriate privately-owned Palestinian land for the sole purpose of establishing an Israeli settlement. In order for the Regulation Law to survive a legal challenge, the Supreme Court would have to overrule this previous stance, a move that is highly unlikely.

The controversy in Israel surrounding the Law

  • Aside from those whose ideological position supports Jewish rights to the entire “Land of Israel,” proponents of the Regulation Law argue that it provides a solution for individuals and families who bought homes in good faith with the support of government agencies whose homes have subsequently turned out to be on private Palestinian land. They argue that the majority of the plots of land of which these housing units sit were originally built on uncultivated fields and in the overwhelming majority of cases, no individual Palestinians have come forward to claim them. While they see it as unjust that these Israelis should be under the threat of eviction in such circumstances, they also argue they are addressing the rights of Palestinian land owners through nancial compensation.

  • The Regulation Law has come under fire from MKs both among the opposition and within the government. Opposition leader Isaac Herzog described it as “a bill for the creation of a bi-national state,” and argued that “this law creates de facto annexation, contrary to all of Israel’s international obligations”. Yesh Atid Faction Chairman Ofer Shelah said that “Netanyahu himself said that a legalisation law would bring us to The [International Criminal Court] Hague, and he is passing this illegal Law in the Knesset because [Betzalel] Smotrich [from Bennett’s national religious Jewish Home party] forces the Prime Minister’s hand in this coalition”. Echoing this critique, Yesh Atid Chairman Yair Lapid told his faction meeting that the “only reason this law is being raised is politics...they are passing a law that will endanger IDF soldiers, will endanger Israel’s international standing, will endanger our being a state of law and order, because they have problems within the coalition”.

  • Likud MK Benny Begin, a strong supporter of the settlement movement, was the only member of the coalition to cast a vote against, condemning it as a “looting bill” and stating that “this bill is not smart, responsible or stable”. Former Justice Minister and Likud MK Dan Meridor called the law “unjust and unconstitutional” arguing that it was “harmful to Israel and endangers all settlement in Judea and Samaria”.

  • Some within the coalition, such as Defence Minister Avigdor Lieberman and Minister for Regional Cooperation Tzachi Hanegbi voted for the Regulation Law despite assuming it would be overturned by the Supreme Court. Over the weekend, Hanegbi said that “people on the right haven’t got the courage to tell the settlers the truth. It is reasonable to assume that the bill will not pass [in the Supreme Court]”.

  • With so many MKs opposed to the bill, and some within the ruling coalition predicting its rejection by the Supreme Court, the motivation to pass it can primarily be found in the political arena and is related to the battle between Netanyahu and Naftali Bennett for the leadership of the pro-settlement constituency, an electoral asset worth approximately three to five Knesset seats. As the current Knesset approaches the two-year mark, and with Netanyahu under threat of criminal indictment, an election may be closer than many believe and these votes might prove crucial in determining the next Prime Minister.

  • The right-wing coalition parties were put in an awkward position by a Supreme Court legal ruling requiring the government to evacuate 40 modular homes built illegally on private Palestinian land in the West Bank outpost of Amona. This evacuation led to a physical confrontation between residents and their supporters and security forces, which garnered angry opposition among the supporters of right-wing parties. The storm and controversy surrounding Amona created an added impetus for each party to try and position itself as supportive of the settlements and more determined to prevent more Amona- type scenarios.

    The evacuation of the Amona outpost last week: it was the court order to evacuate this outpost which created an impetus among right-wing Israeli parties to find a solution to preventing similar evacuations in future.

  • Pressure from the international community – particularly the American administration – is another factor which has traditionally impacted Israeli decision making with respect to the West Bank, but which is now absent. Netanyahu was often deterred to pursue settlement policies by expected American condemnation. In fact, he reportedly postponed a previous discussion of the Regulation Law in December due to fear of how it would affect relations with the Obama administration. Obama was heavily critical of Israeli settlement expansion in both the West Bank and East Jerusalem and ultimately refused to veto UN Security Council Resolution (UNSCR) 2334 in December 2016, which termed all building over the former armistice “Green” Line as lacking any legal validity, and which was widely rejected by Israelis and their supporters across the board as unreasonable and unbalanced. The UN resolution also led to a mood amongst many Israelis of double jeopardy. That as the country would be criticised regardless of its actions, it should not be deterred by potential international condemnation for settlement building or legalisation.

  • Netanyahu frequently pushed back against pressure from his right wing coalition partners to expand settlements or promote annexation of parts of the West Bank by arguing the need to be cognisant of international concerns. American pressure also led Netanyahu to implement a one-time, ten-month settlement moratorium between November 2009 to September 2010 in the hope of renewing peace negotiations with Palestinian Authority President Mahmoud Abbas, although the gesture failed to convince Abbas to return to negotiations and he refused to restart talks for the first nine months of that period.

  • The transition from an Obama to Trump administration has therefore a ected the Israeli political calculus. The election of Trump – who is perceived as a strong friend of Israel and who appointed a supporter of the settlement project as his ambassador to Israel – was welcomed by the Israeli Right and viewed as giving Israel a carte blanche on West Bank actions. The perceived change of position in the American administration has also enabled Bennett to pressure Netanyahu to demonstrate his commitment to the settlements, especially following Amona.

The international consequences of the Regulation Law

  • The passage of the Regulation Law will likely create diplomatic fallout from the international community, who will question Israel’s continued commitment towards a viable two- state solution. Despite its temporary nature, the notion of expropriating privately-owned land undercuts the government’s narrative that it supports the two-state solution and puts the government at odds with UNSCR 2334, which “calls for affirmative steps to be taken immediately to reverse the negative trends on the ground that are imperilling the two-State solution”.

  • The passage of the Regulation Law will also raise fears that it will strengthen those right-wing voices in Israel calling for “creeping annexation”. A bill proposing Israel annex Maaleh Adumim, a large settlement in the West Bank close to Jerusalem, is being prepared in the Knesset Ministerial Committee on Legislation. Bennett has suggested Israel annex Area C, an area comprising 60 per cent of the West Bank, a move which would destroy the chances for a two-state solution.

  • Critics of the Regulation Law, including Mandelblit and former Foreign and Justice Minister Tzipi Livni, have warned of potential lawsuits that Israelis may face at the International Criminal Court (ICC). At the Palestinians’ request, ICC Prosecutor Fatou Bensouda is soon to decide whether Palestine is a country and whether the court will discuss crimes committed in its territory. The Rome Statute that established the ICC believes settlements to be illegal and in 2012 the UN General Assembly decided to afford Palestine “Non-Member Observer Status”. Indeed, senior Fatah official Jibril Rajoub confrmed the Palestinians’ intention to deal with the Law at the ICC.

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Article 2

Israel’s Settlement Regulations Bill and International Law


By Eugene Kontorovich
Tuesday, December 20, 2016 at 8:04 AM

[Editor’s Note: After reading Eugene Kontorovich’s post, be sure to read a response to his post by Yaël Ronen and Yuval Shany, “Israel’s Settlement Regulation Bill Violates International Law,” which is being published simultaneously at Just Security.]
 
Israel’s proposed “Regulations Bill” has attracted broad international criticism, including from the U.S. State Department and the European Union, as well as from opposition Israeli politicians and some government lawyers. The bill seeks to solve a situation in which, over several decades, over one thousand Israeli homes in West Bank settlements have been built in open areas to which Palestinians subsequently asserted property claims, typically based on broad give-aways of state land by the King of Jordan during the Hashemite occupation (1949-67). The homes are in communities built with some level of government involvement. Thus the bill provides the government would compensate the landowners 125% of the value of the land, in order to allow the communities that have been built there to remain.

The plots are generally open, uncultivated fields. The frequently used characterization of “private Palestinian lands” is misleading. In the overwhelming majority of cases, no individual Palestinians have come forward to claim the lands. Indeed, in most cases, no property claimants asserted their interests for decades after houses were built, a situation that in common law would certainly warrant the application of adverse possession doctrines, under which long-term possession of property unprotested by owners can change legal title, exactly to prevent these kinds of conflict between long-term users and owners who slept on their rights . Under Jordanian law, rules of prescription, which would turn the land over to its existing inhabitants, would apply. In cases like the community of Amona, which inspired but are not covered by the law, the Court made its determination without any fact-finding, and the lands claimed by the Palestinian petitioners only slightly overlap with those on which the Israeli homes stand.

Thus the law regulates situations where property claims, often difficult to verify, are being belatedly brought against areas that have seen significant improvement and home-building. Moreover, in the background are two legal doctrines that make the property impasse particularly costly. On one hand, the Israeli Supreme Court exercises broad remedial powers. Instead of merely awarding title to Palestinian claimants, it affirmatively requires the government to destroy all structures whose plots may overlap even in part with the claimed lands. On the other hand, bargaining in the shadow of obscure Jordanian land allotments is made close to impossible by a Palestinian Authority law criminalizing the sale of land to Jews. While Palestinian President Mahmoud Abbas has recently issued an executive order reducing the traditional death penalty to life at hard labor, there are reports that the old punishment may still be enforced de facto.

The central international law argument against the bill is that it exceeds the powers of an occupying power over private property. Assuming, for the sake of argument, that the law of belligerent occupation applies to Israel’s settlements in the West Bank, the central question becomes whether that body of law prohibits eminent domain and similar land use regulation by the occupying power. This argument has focused on Art. 46 of the Hague Convention, which states that “private property cannot be confiscated.” Critics of the Israeli bill have broadly declared that Art. 46 of The Hague Conventions absolutely prohibits any action involving private real property absent military necessity. This is not the established law, but rather one view of a longstanding debate.

Put simply, the ban on “confiscation” of real property does not mean a ban on expropriation, that is, a taking subject to just compensation. “Confiscation” in The Hague Regulations is a narrow term that refers only to certain uncompensated taking, which of course are the kind occupying powers may be particularly wont to make.  To put it differently, “confiscation” does not cover all kinds of property taking or regulation, as is made clear in numerous military manuals that refer to an entire taxonomy of regulation, from confiscation to expropriation to requisition. The U.S. Defense Department’s Law of War Manual provides for compensation for takings of private real property, and refers to this as “appropriation” not “confiscation.”

For example, Prof. Yutaka Arai’s recent treatise on the law of occupation specifically distinguishes the question of “expropriation” with compensation from Art. 46’s ban on “confiscation.” Arai writes that “many experts argue that expropriation … is not forbidden.” He goes on to cite the leading post-war authority George Schwarzenberger as maintaining that ordinary eminent domain for development purposes is not governed at all by the law of occupation. That is, the articles of The Hague Regulations simply do not address this issue.

Some specific examples of permissible purposes for which such eminent domain by occupying powers might be used include “land reform” addressing feudally based land-ownership. Certainly the current property situation in Samaria, created by broad grants to clans by an occupying Jordanian monarch, would qualify. To be sure, there are also authorities that say expropriation is forbidden, but currently there is no resolution of this dispute in theory or practice. That means there is no prohibition, as the basic rule of international law is that action is permitted unless a clear prohibitory norm has emerged.

It is probably unnecessary to discuss the Rome Statute of the International Criminal Court, as Israel is not a member (though the Office of the Prosecutor has controversially purported to accept jurisdiction over “the State of Palestine”). But for thoroughness, it is worth noting the Rome Statute criminalizes the “seizing” of property absent military necessity (Art. 8(2)(b)(xiii)). To be sure, such acts are only criminal for ICC purposes when committed “in the context of … and associated with international armed conflict,” an element that appears missing in the Israeli-Palestinian situation.  In any case, commentaries treat “seizure” as referring to uncompensated takings, analogizing it very closely to crime of “pillage,” which of course requires much more than a switch from property to liability rule protection.

Not surprisingly, those who argue international law forbids such action fail to cite any state practice outside of Israel for this proposition. To be sure, the payment of compensation by belligerent occupiers is probably quite rare, as typically long-term occupiers seem to simply take what they want without bothering about compensation. The entire question of eminent domain – which involves a transfer of title – will only arise in prolonged occupations. In the typical short-term occupation envisioned by the Hague and Geneva treaties, the occupier has no need or interest to change the title to land, which is always about long-term policies.

Yet in several prominent cases, long-term occupiers have used compensated takings, and the international community appears to have acquiesced, and certainly did not declare it illegal.  Examples include the Turkish occupation of Northern Cyprus, where a compensation scheme aimed at permitting Turkish settlers to remain in Greek properties was approved in 2005 by the European Court of Human Rights. Similarly, the Russian occupation of Crimea takes private property with compensation (often in the form of other land), even for highly controversial projects like the Kerch Bridge, which will serve to deeply entrench the occupation and facilitate the transfer of settlers. Yet while many aspects of Russia’s occupation of Crimea have been denounced as illegal by the international community, the use of eminent domain has not. In particular, the ICC Prosecutor’s report on possible Russian crimes in Crimea makes no mention of it. The fact that many aspects of Russia’s Crimean occupation have been explicitly criticized on international law grounds, but this one ignored, suggests that it is not seen as illegal.

Indeed, property owners who have been compensated have no injury to complain of. As the French Government wrote in its submission to the International Court of Justice in the Wall Case, “international law…  requires compensation which effectively makes good the entire injury suffered by the owners of the property in question. Indeed, claims of violations of international law are often accompanied by demands for compensation. This may be the first case where it is the payment of above-market compensation is claimed as an international law violation.

In short, prior to the introduction of the Israeli “Regulations” bill, neither the consensus of commentators nor any state practice supported the view that the prohibition on confiscation or seizure of private property in occupied territories applies to land-use regulations accompanied by the payment of complete compensation.

Professor Eugene Kontorovich teaches at Northwestern University’s Prtizker School of Law. He specializes in constitutional and international law, and has written extensively about the legal aspects of the Arab-Israeli conflict.

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Article 3

How Israelis See the Settlements

 

By Yossi Klein Halevi

 

Some want to annex the West Bank, others to separate from the Palestinians—and all view Jerusalem as anything but a settlement


Wall Street Journal, Feb. 5, 2017

A billboard near the highway entering Jerusalem proclaims in Hebrew: “The Time for Sovereignty Has Come.” It is part of a new campaign for the formal incorporation into Israel of Ma’ale Adumim, one of the largest settlements in the West Bank and barely a 10-minute drive east of Israel’s capital. The campaign’s sponsors, backed by several ministers in Prime Minister Benjamin Netanyahu ’s coalition, see annexing Ma’ale Adumim as the first step to annexing the entire West Bank and preventing the creation of a Palestinian state.


A pro-annexation sign at the entrance to Jerusalem, stating "Yes to Israeli Sovereignty over Judea and Samaria"

Israelis have been arguing about settlements ever since the Six Day War of June 1967, when the Israeli army captured the West Bank—the biblical regions of Judea and Samaria—and small groups of Israelis began establishing enclaves there. Annexation, long the goal of the settlement movement, has always been more aspiration than possibility, thwarted by opposition within Israel and from the international community.

But with the rise of Donald Trump, settlement leaders have sensed an opening. Mr. Trump’s nominee as U.S. ambassador to Israel, David Friedman, is a longtime pro-settlement activist. And in a marked break with American policy, the Trump administration refused to condemn Israel’s announcement that it intends to build some 5,000 housing units in settlements, the largest expansion project in recent years.

The collapse of the Israeli-Palestinian peace process and the chaos of the Arab world in recent years have reinforced the settlers’ sense of opportunity. So too has the imminent approach of a date fraught with symbolic significance: the 50th anniversary of the Six Day War. According to Jewish tradition, 50 years—a jubilee—is the time for a reset. For those who believe that Israel needs to overcome its hesitancy and claim its rightful borders, it is a moment of high expectation.

Unlike critics abroad, including the U.N. Security Council, who denounce settlements as illegal under international law, mainstream Israeli discourse takes for granted the legitimacy of Israel’s claims to the West Bank—lands where the Jewish people find their deepest historical roots, won in a war of self-defense against the Arab world’s attempt to destroy the Jewish state. The debate, instead, is over the wisdom of implementing these claims to the “territories” (the more politically neutral term preferred by many in Israel).

Permanently absorbing the West Bank would mean adding more than two million Palestinians to Israel’s population, forcing it to choose eventually between the two essential elements of its national identity as both a Jewish state and a democracy.

That is precisely the point of another new campaign, from the opposite side of the political spectrum, urging withdrawal from the territories. “We’re Not Annexing—We’re Separating,” reads one billboard near the highway in Tel Aviv. A second billboard warns of what will happen if Israel doesn’t separate from the Palestinians: “The One-State Solution. Palestine.”

That warning reveals a profound shift in Israeli discourse. The mainstream Israeli left no longer promises “land for peace” but instead offers a more modest formula: withdrawal as the best way to ensure that Israel remains both Jewish and democratic. This shift recognizes that, after years of terrorism and Palestinian rejection of past Israeli peace offers (the last offer was in 2008), the Israeli public has become deeply skeptical of Palestinian intentions.


A Palestinian laborer works at a construction site in the Jewish West Bank settlement of Ma’ale Adumim, near Jerusalem, Sept. 16, 2014. Photo: Dan Balilty/Associated Press

Polls consistently show that a majority of Israelis support a two-state solution, while doubting the possibility of peace. According to an October 2016 poll conducted by the Israel Democracy Institute’s Peace Index, nearly 65% of Israelis backed peace talks—but only 26% thought they would succeed.

Israelis worry that a Palestinian state would be overtaken by the radical Islamist movement Hamas and would threaten their population centers with rocket attacks—precisely what happened in 2005 when Israel uprooted its 21 settlements in the Gaza Strip and withdrew. For supporters, settlements are crucial to security—preventing Israel’s contraction to its pre-1967 borders, barely 9 miles wide at their narrowest point. For opponents, settlements are a mortal threat to the Jewish state. The Israeli dilemma: Which alternative is the greater existential danger?

Some 430,000 Israelis live in 131 officially sanctioned settlements spread throughout the West Bank (not including East Jerusalem). In addition, dozens of small settlement outposts have been established without Israeli government approval.




Meanwhile, a bill is advancing in the Knesset to legalize some 4,000 housing units built on private Palestinian land in the West Bank, while offering compensation to the owners. The bill has been widely denounced abroad and by Israel’s opposition Labor Party. For their part, the Palestinians regard all settlement building, especially since the signing of the Oslo accords in 1993, as intended to deny them national sovereignty and basic dignity—proof that Israel has no intention of ever withdrawing.

For both sides, settlements can assume mythic symbolism. Palestinians often refer to them as “colonies,” reflecting the supposedly colonialist nature of Israel itself. Indeed, Palestinian media regularly ignore any distinction between Israel’s boundaries before and after the 1967 war, labeling coastal cities such as Tel Aviv and Ashkelon as settlements too. For Israelis, the refusal of many Palestinians to come to terms with Israel’s legitimacy is proof that the conflict isn’t about settlements but about the very existence of a Jewish state.

Although the settlements tend to be regarded by the international community as an undifferentiated entity, the discourse about them in Israel is very different. For Israelis who support a two-state solution, settlements fall into two broad categories: those within so-called settlement blocs, close to the pre-1967 border and likely to remain a part of Israel in a final agreement, and those outside the blocs, which Israel would probably evacuate as part of a peace deal.

Israel’s retention of the blocs near the border would still allow territorial contiguity for a Palestinian state—though at least one settlement, Ariel, which Israel regards as a future bloc, is deep enough inside the West Bank to threaten that contiguity. Under various proposed plans, a Palestinian state would be compensated for lost land with territory from within pre-1967 Israel.

Depending on how one draws the map, more than three-quarters of the settler population lives in blocs likely to be kept by Israel under an agreement. The blocs plan gives hope to supporters of a two-state solution that settlement-building hasn’t yet reached the point of no return. Though Israel is hardly likely to evacuate 430,000 settlers, it could, with enormous strain to its social fabric, evacuate the 80,000 or so settlers living outside the blocs. (How traumatic would a forcible evacuation be? This past week, it took some 3,000 police and soldiers to remove a few dozen settlers from Amona, an illegal hilltop outpost.)

In a 2004 letter to then-Israeli Prime Minister Ariel Sharon, President George W. Bush endorsed the concept of blocs, noting that demographic changes needed to be taken into account—and implicitly accepting settlement building so long as it was confined to the blocs. But Israel and the U.S. couldn’t agree on the borders of those blocs, and President Barack Obama ignored the Bush administration’s approval of some settlement expansion.

The Bush letter may yet have a second life, however, and could become the basis for an understanding on settlements between Mr. Netanyahu and Mr. Trump. Tellingly, Israel’s announcement about renewing massive settlement building—primarily in the blocs—occurred after Mr. Netanyahu’s first phone call with the new president. The White House issued a mild rebuke to Israel on Thursday, but only after Mr. Netanyahu announced a new settlement for the evacuated residents of Amona—the first new government-sponsored settlement in more than two decades and a violation of the spirit of the Bush letter.

Mr. Netanyahu has also declared his intention to renew major building in East Jerusalem, which Israelis across the political spectrum regard as a category separate from the West Bank. For Israelis, the international community’s discourse over Jerusalem seems delusional. About 300,000 Israelis live in a dozen East Jerusalem neighborhoods built after the Six Day War. Israel annexed East Jerusalem in 1967, and for almost all Israelis—including those who support ceding part of the city to a Palestinian state—East Jerusalem’s Jewish neighborhoods are just that: neighborhoods, not settlements.

The recent U.N. Security Council vote, facilitated by an American abstention, that condemned all Israeli building over the pre-1967 border as illegal, outraged the Israeli public. That resolution, Israelis noted bitterly, allowed for no distinction between, say, an isolated settlement on a West Bank hilltop and the ancient Jewish Quarter in Jerusalem’s Old City, which Jordan destroyed in Israel’s 1948 War of Independence and which Israel rebuilt immediately after the Six Day War.

I live in an East Jerusalem neighborhood called French Hill. My neighbors’ politics cover the range of Israeli opinion; some have been peace activists. Yet not once have I heard any neighbor doubt the status of French Hill as part of the state of Israel. In recent years, growing numbers of Arab Israelis have moved into the neighborhood—one more indication of its irreversible absorption into Israeli society. But for the U.N., French Hill residents—including, absurdly, its Arab Israeli residents—are “settlers.”

Kfar Etzion, the first Israeli settlement in the territories, was founded in September 1967, just months after the Six Day War. At the time, Israelis couldn’t imagine that it heralded the birth of a movement that would transform the country’s borders, complicate its relations with the international community and become the focus of Israel’s most agonizing moral and political dilemma.

An Israeli settler works in the cookhouse of Kfar Etzion, a settlement in the West Bank near Bethlehem, in the months after the Six Day War of 1967. The cookhouse used to be a barracks for Jordan’s Arab Legion. Photo: Israeli Government Press Office

Kfar Etzion, a small kibbutz, or communal farm, just south of Jerusalem, had been established in the 1940s—and was destroyed on the literal eve of Israel’s independence in 1948, its defenders massacred after surrendering to Arab militiamen. The restoration of Kfar Etzion—led by a dozen of its sons and daughters who had been evacuated shortly before its fall—was greeted by Israelis as self-evident. There was no cabinet decision to found the settlement and no public debate to thwart it.

Six months later, on Passover 1968, a group of Israelis pretending to be Swiss tourists rented a Palestinian hotel in the West Bank city of Hebron. When the holiday was over, the group declared its intentions to remain. This time, there was vehement debate among Israelis—about the wisdom of Jews settling in the midst of an Arab population. The Labor-led government was divided, and the settlers exploited that ambivalence to create a fait accompli.

The settlement movement has come a long way from those early days of ideological fervor and subterfuge. Today, settlements have attracted residents from almost every sector of Israeli Jewish society, often drawn not by ideology but by ample government-subsidized housing.

Israelis distinguish not only between different kinds of settlements but also different kinds of settlers. There are settlers who conform to the worst stereotypes—like the alleged Jewish terrorists who in 2015 firebombed a Palestinian home in the West Bank village of Duma, killing three members of the Dawabshe family, including a baby. And then there are those such as Dafna Meir, a mother of six, including two foster children, who was stabbed to death in her home by a Palestinian terrorist, and her husband, Natan, who has publicly warned against hatred and revenge.

Almost 50 years after their founding, the first two settlements—Kfar Etzion and the Jewish community of Hebron—each offers an opposing vision of Israel’s future. Kfar Etzion, the first settlement, is now a part of a thriving region called the Etzion bloc, with 20,000 residents living in 19 communities, some of which resemble suburban sprawl more than isolated hilltops. For Israelis, the permanence of the Etzion bloc, even in a peace agreement, is a given.

Just south of the Etzion bloc, about a half-hour’s drive away, is another model of the Palestinian-Israeli future. Hebron is divided between an Israeli-controlled area, home to some 800 settlers and 30,000 Palestinians, and a Palestinian-controlled area, home to another 120,000 Palestinians.

Israeli soldiers on guard as Palestinians pass by in the West Bank city of Hebron, Oct. 19, 2007. Some 800 Jewish settlers live in Hebron, tightly guarded by Israeli soldiers. Photo: Eddie Gerald/laif/Redux

Hebron is playing out the nightmare vision of a one-state solution. On the Israeli side, the stalls of the Palestinian produce market are shuttered, closed down by the Israeli army after Palestinian terror attacks. Palestinian families tell of harassment by Jewish neighbors. A proxy war is being fought by Palestinian and Israeli children, who sometimes taunt and throw rocks at each other.

Here the traumas of the past refuse to recede. The Tomb of the Patriarchs, the traditional burial place of Abraham and Sarah, is hermetically divided between Muslim and Jewish prayer areas—a division imposed by the Israeli army after a settler, Baruch Goldstein, gunned down 29 Muslim worshipers in 1994. Nearby, in the basement of one of the Jewish-owned houses, is a museum devoted to the 69 Jews murdered by their Arab neighbors in a 1929 pogrom that ended the city’s millennia-old Jewish community. When Hebron’s Palestinians and Jews speak of “the massacre,” they usually mean only the massacre that happened to their side.

An Israeli visitor leaves Hebron with agonizing questions. How can Israel remain here as a permanent occupier of another people? But how can Israel abandon Hebron, second only to Jerusalem as a sacred city for Jews? Is there a future for a nation that rejects its past? Yet can a nation grant the past veto power over its future? Should we cling to the territories or release them? Which way leads to greater safety, and which to greater vulnerability, in a disintegrating Middle East?

Mr. Halevi is a senior fellow of the Shalom Hartman Institute in Jerusalem and the author of “Like Dreamers: The Story of the Israeli Paratroopers Who Reunited Jerusalem and Divided a Nation” (Harper).

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