Ariel settlement in the West Bank. Wikimedia Commons/Ori~. Some rights reserved.
There is a growing polarization in the content as well as in the dialectic concerning the status of the Palestinian territories and the “legitimacy of the settlements”. In the following, four main points will be addressed, arguing that the commonly propagated support for Israeli settlement of the Palestinian territories is based on a selective use of the history of the region, as well as on a problematic interpretation of international law and the exploitation of a powerful feeling: fear.
A selective use of history
One of the most repeated claims about the legitimacy of the settlements is rooted in archeology and history, i.e. in the ancient “historical Jewish presence in Judea and Samaria”. If this is the reason for colonizing land, however, Israel should simultaneously give up the coast between Ashdod and Ashkelon, which were never part of the ancient Israelite kingdoms. The numerous archaeological expeditions carried out over decades in Ashkelon – one of five ancient Philistine cities, which today encompasses what was, until 1948, the Palestinian village of al-Majdal – have confirmed that it was never conquered by the ancient Israelites. And even if one assumes that there was a conquest, the occupation of an area for a few years does not mean that it represents part of the “historic Jewish homeland”. Otherwise, the many Philistine raids and sometimes occupations of Israelite towns as far east as the Jordan River valley would also make these areas “less Israelite”.
The “exclusivity thesis”
According to an interpretation increasingly widespread among Israel’s right-wing parties and adopted in the Levy Report released on 9 July 2012 by a special committee appointed by Israeli Prime Minister Benjamin Netanyahu, the preamble as well as Article 2 of the Palestine Mandate assured the Jewish people the exclusive right to create their “national home” on “the whole country of Palestine, not a mere part of it”. The entire Mandatory Palestine, West Bank and Gaza Strip included, would thus remain legally open to Israeli colonization.
This thesis of “exclusivity” – besides being unjustified from an historical point of view, since Palestine did not belong in an exclusive way to one single population in its entire history – is also incorrect from the legal perspective pursued by London and, afterwards, by the League of Nations. Hubert Young wrote in November 1920 that the commitment made by London “in respect of Palestine is the Balfour Declaration constituting it [Palestine] as a National Home for the Jewish People”. George Curzon, the only member of Lloyd George’s cabinet that had visited Palestine at the time, corrected him: “No. ‘Establishing a National Home in Palestine for the Jewish people’ – a very different proposition”.
The British White Paper of June 1922 pointed out that the Balfour Declaration does “not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine’”. Furthermore, it stressed that the “Zionist congress” that took place in Carlsbad in September 1921 had officially accepted the principle to make “the common home into a flourishing community, the upbuilding of which may assure to each of its peoples an undisturbed national development”.
It was therefore implicitly clarified that the “common home” – i.e. the home in which Jews and Arab Palestinians were living and not the land to the East of the Jordan, completely devoid of a Jewish presence, excluded by the White Paper itself and never considered by the local majority as part of their Al ‘Arḍ al Muqaddasa (“The Holy Land”) – should have hosted the “undisturbed national development” of two peoples. This helps to explain the reason why no official document of the time exists which expresses the will to transform the entire area West of the Jordan in a Jewish national home.
It is noteworthy that the consent of the main Zionist current to the interpretation contained in the White Paper of 1922 – an interpretation that was expressed, as never happened in the previous years, in official terms – was requested and received before the Mandate was confirmed by the League of Nations in July 1922: “It was made clear to us,” – Chaim Weizmann clarified – “that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper [of 1922], and my colleagues and I therefore had to accept it”.
Furthermore, after the United Nations General Assembly suggested the partition of Palestine in 1947 and the State of Israel was unilaterally established, the Jewish people’s rights under the Mandate have been fulfilled. In Marcelo Kohen’s words, “once the [Jewish] National Home was established on part of Palestine, and more importantly, as a state, immigration to other parts of Palestine was no longer justified under the Balfour Declaration or under the Mandate agreement”.
Some scholars, however, have claimed that resolution 181, which proposed the partition of Palestine “has no legal ramifications” and that its “validity hinged on acceptance by both parties of the General Assembly’s recommendation”. Writing about the UN’s partition resolution 181 of 1947 former Knesset member Uri Avnery noted that no one asked the Arab Palestinians to accept or reject anything: “If they had been asked," – Avnery clarified – "they would probably have rejected partition, since – in their view – it gave a large part of their historical homeland to foreigners”.
The absence of the “High Contracting Party”
Article 42 of 1907 Hague Convention – “Territory is considered occupied when it is actually placed under the authority of the hostile army” – has been indirectly adopted (also) by the Israeli High Court of Justice. The latter, who repeatedly made use of the concept of “belligerent occupation” in reference to the Palestinian territories, established that the application of the regulations on the matter of occupation depends on the effective military control exercised from outside the nation’s borders, and not from previous sovereignty over the territory of a specific state.
The fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law – does not justify the use of the expression “disputed territories”. This is even more the case given that the term “occupation” should not be defined exclusively in relation to the land, but also and above all to the consequences suffered by the people who live on it.
In other (vaguely) similar contexts such as Western Sahara, Tibet, Abkhazia, Northern Cyprus, and East Turkestan, the “occupying countries” of these territories have claimed sovereignty over them and have integrated their inhabitants as citizens, with all the guarantees and the problems that this entails. The fact that Israel is ruling over a population of millions of Palestinians who are not Israeli citizens should trigger more than one question even to the staunchest supporters of the colonization process.
This is further underlined when it is considered that the right granted to the Jewish people to settle in the mandated territories was not unlimited, but explicitly subordinated to the protection of the “rights and position of other sections of the population”. Those very same rights are currently being violated by the funding allotted to new settlements and outposts and through the exploitation of local natural resources, a policy prohibited by the Fourth Hague Convention of 1907. It is enough to mention that about 94 percent of the materials produced nowadays in the Israeli quarries in the West Bank are transported to Israel.
The exploitation of fear
A working paper published on the site of Israel’s Ministry of Foreign Affairs claims that Palestinians “are demanding that every Jew leave the West Bank, a form of ethnic cleansing. By contrast, within Israel, Arabs and Jews live side-by-side”. In order to further strengthen such a position it is often claimed that “Judea and Samaria”, as PM Benjamin Netanyahu once remarked, “cannot be Judenrein” and that the Palestinian Authority, following a pre-1967 Jordanian policy, has a law banning the sale of property to Jews.
The Jordanian law banned land sales to Israeli citizens, not to Jews. Such a law was passed in 1973, when Israel and Jordan were still technically in a state of war. Although morally objectionable, it is hardly surprising that a state is committed to banning land transfers to citizens of an enemy country in wartime.
Furthermore, most of the Palestinian leaders in power in the West Bank have clarified on many occasions that any Jew who wants to live in their community, following the rules which this entails, must be free to do so. Nazmi Jubeh, one of the leading Palestinian archaelogists, noted that “when Israel was created, the Palestinians were already here, and accounted for the vast majority of the local population. This is why there are now over one million Palestinians in Israel. In constrast to this, settlers arrived in the Palestinian territories through violence and incentives received in recent years from Israeli governments. Equating the former to the latter is not only simplistic, but also morally reprehensible”.
The occupation of the Palestinian territories and the related settlements do not represent the only hindrance for the definitive pulling-down of the mental and physical walls that affect the region. Before the Six-Day war of 1967, that can hardly be simply described as a “defensive war” (“preventive self-defense” violates art. 51 of the UN Charter), no occupation and settlement was in place and the general situation was far from stabilized.
Still, until 1966 the Palestinian cause was “hijacked” by the “Arab brothers” (the Gaza Strip was in Egyptian hands, the West Bank was occupied by Jordan), while almost all Arab Israelis, internally displaced refugees included, were subject to martial law and their freedom of movement was restricted. Freedom of movement was granted only once every year on Israel’s Independence Day, when Palestinian refugees were allowed to visit their obliterated villages. Therefore, once again, one of the main problems was connected to the denial of self-determination and to the lack of freedom of millions of human beings. This further supports the claim that the end of the occupation of the Palestinian territories and a firm condemnation of the “E1 approach” will not ipso facto lead to the resolution of long-standing problems that plague the region, but would represent two significant steps in that direction.
 TNA FO 371/5124. Curzon, 29 November 1920.
 Despite the widespread claim that the E1 area “doesn’t cut the West Bank in two”, this very land is necessary to avoid an almost complete detachment of the key network connections between the Northern and Southern portions of the West Bank; one of the few viable passages left would be placed near Jericho. Very few other options would remain for the Palestinians, among them the problematic and extremely onerous construction of a highway in the natural reserve of Wadi Qelt. These alternatives, however, are no more than links for traffic and do not represent territorial continuity.