Lets’ Get This Settled

Settlements: A Good Idea or a Bad One?

We’ve spent two installments of this blog^[1] looking at Israel’s legal claims to the disputed territories^[2] . We reached the conclusion that Israel’s settlements are not illegal under international law and that the legal status of “belligerent occupation” doesn’t apply to the disputed territories ^[3]. If the conclusions we have reached are right, what is there left to talk about?

In the face of such evidence, can anyone argue that Israel should cede territory? The answer is, of course, yes. Just because you have a right to do something doesn’t mean it would be wise or just to insist on your right. In Israel an entirely legitimate debate goes on regarding the wisdom and/or morality of the settlement enterprise that has nothing to do with the legal status of the settlements or Israel’s territorial claims.

The proponents of settlements:

• Point to the historical claims of the Jewish people (Jews come from Judea).
• Assert the need to retain at least parts of the territories for security reasons.
• Argue that, without Jews inhabiting the areas, it would be much harder to retain them in the face of international pressure.

The opponents of settlements:

• Assert that at some point Israel will have to withdraw from the territories, since incorporating them into Israel poses a danger to Israel’s Jewish majority due to the higher Arab birthrate.[3]
• Maintain that the disparity between the liberal democratic legal system prevalent in Israel and the modified system of martial law in effect in areas of Judea and Samaria under Israeli control are unsustainable in the long run.
• Agree with proponents of settlement that the very presence of Jews in the territories make it more difficult for an Israeli government to withdraw from Judea and Samaria; however they see that presence as an obstacle to trading land for a peace agreement.

The fact that Israel has already actually uprooted settlements can be interpreted at least two ways. It could be viewed as proof that Jewish communities in Judea and Samaria are no more of an obstacle to withdrawal than those in Gaza were. On the other hand it can be argued that, if the uprooting of 8,500 Jews from Gaza was a national trauma, then the evacuation of 300,000 or more from Judea and Samaria is an impossibility.

What Are We Arguing About?

Despite the very real controversy within Israel regarding the settlement enterprise, it should be clear by now that it is not the “root cause of the conflict” as it is so often presented. The “1967 borders” were not borders at all but only ceasefire lines and were never recognized as borders by Israel, the Arab states, the PLO or anyone else[4]. When the PLO signed the Oslo accords with Israel in 1993, there was no mention of Israel’s settlement as being “illegal” and no requirement for any restriction on building new settlements, much less dismantling the existing ones.

If the debate on territorial concession and the related issue of settlement was only about the wisdom and/or morality of these policies, it would be a legitimate one. But the assertion that Israel has no claim on the territories and that settlement activity is inherently illegal strikes at the heart of Jewish claims (religious, historical and legal) to any part of the Land of Israel since there is no firm basis to differentiate Jewish rights on either side of the “green line.”

Since the debate over settlement almost always assumes that Israel has no rights in the territories, it forms the thin end of the wedge of the delegitimatization movement… unless it is firmly couched in terms of whether it is wise and/or just for Israel to insist on her full rights.

There are advocacy consequences to the way in which the debate is framed. If the assumption is that Israel is a thief who has taken what belongs to others, then the Jewish State can expect little, if any, credit for reluctantly giving up what she stole. International reaction to the withdrawal from Gaza (a traumatic and divisive episode for Israeli society) seems to bear out this conclusion.

Advocates for Israel, regardless of where they stand on the issue of territorial concession, have a duty to insist that this distinction (between the false allegation of illegitimacy on the one hand and the legitimate issues of wisdom and/or morality on the other) is always clearly made. There are precedents for insisting on this sort of clarity of public discourse.

Other areas of public discourse infected with bigotry

Take the issue of illegal immigration, for example. This has been a legitimate matter of debate in many Western countries over the years (and has recently become one in Israel). Reasonable people may differ over the relative weight to be attached to the problems caused by illegal immigration and the benefits the immigrants have brought to their host societies. Equally one can argue over the duty of compassion to the immigrant versus that owed to the native. The conclusions one draws from such analyses will lead to policies that are more or less welcoming to the illegal immigrants. However, the issue of immigration has been so widely used as a cover for racism that it is reasonable to insist that those who argue (say) for the repatriation of immigrants first clearly reject the racist attitudes that have come to infect the debate. The price one must pay to make an argument that calls for such policy is the explicit rejection of bigoted assumptions about Africans or Latinos or whoever the local ethnic communities of illegals are.

Similarly, we must insist that those asserting that Israel must cede territory clearly reject the assumptions of delegitimatization that underlie so much discourse about settlement policy. It may be unfair to the conservative opponent of illegal immigration to make them prove that they are not racists, but it’s necessary and justified. It may be unfair to the liberal opponent of settlements to insist that they prove that they are not a delegitimatizer, but to do so is equally fair and necessary.