By Steve Kramer
You’ve asked a complex question, to which there are multiple answers. First, “outpost” is a loaded term, as is “settlement.” When a community is called an outpost, it is already judged to be illegal. Settlement, which is a neutral term except in regard to Israel, has also been tarred with negative connotations. Whether the tiny community of Amona is legal or not is entirely based on whose interpretation of international law one wants to apply.
International law is not set down in stone in the United Nations or anyplace else. According to the Israeli government website (www.mfa.gov.il), “Attempts to present Jewish settlement in West Bank territory (Judea and Samaria) as illegal and ‘colonial’ in nature ignores the complexity of this issue, the history of the land, and the unique legal circumstances of this case.”
According to Northwestern University Professor of Law Eugene Kontorovich, international law derives from treaties and custom, not from United Nations General Assembly resolutions, which are non-binding. When countries are established, the most recent administrative border is what counts. (E.g. the French Mandate of Syria and the borders of Syria, Lebanon and Turkey) Once Britain relinquished the Mandate for Palestine, which was explicitly given by the League of Nations to Britain for the purpose of re-establishing a Jewish national home in Palestine, the existing boundaries remained. The area essentially became a territory without a sovereign. Therefore, Israel’s community building is not illegal.
Jordan’s “belligerent occupation” of the “West Bank” (the term for Palestine west of the Jordan River coined by Jordan’s King Hussein after conquering and annexing Judea and Samaria, 1948-1967) was illegal. So said the United Nations and all countries except Britain and Pakistan. In 1967, Israel ended this illegal occupation in a war of self-defense, taking control of all the territory of the former Mandate (plus the Golan Heights). This suggests that it’s actually Israel which has a strong claim of sovereign title to the territory, by virtue of its having retaken the area from an unlawful Jordanian presence.
Kontorovich avers that the pertinent Fourth Geneva Convention’s Article 49(6) has been grossly misinterpreted over the years to be a prohibition against the occupying power’s citizens’ presence. In fact, it’s only a set of injunctions on the occupier, and was explicitly meant to prevent the kinds of deplorable forcible deportations and mass transfers of peoples perpetrated by Nazi Germany during World War II. (http://legalinsurrection.com)
It’s not news that a double standard is applied to Israel. Many nation-states are regarded as occupiers under international law and have populated territories with settlers, but these actions have garnered little international opprobrium in comparison to the negative reactions toward Israel’s settlement of the West Bank. Examples include Morocco’s occupation of Western Sahara; Turkey’s occupation of Northern Cyprus; Spain’s two African colonies, Ceuta and Melilla; Britain’s occupation of the Falkland Islands (Islas Malvinas).
Israel’s government constantly fights the hailstorm of opposition to our community building in the Jewish homeland. Could it do a better job? Perhaps, but the headwind we’re struggling against is the latest incarnation of the anti-Semitism that has been constant for thousands of years. Ultra-liberal Jews promoting the Palestinian narrative are another obstacle. The incoming American administration, and the anti-establishment wave that’s making itself felt worldwide, may give a big boost to Israel’s cause. We’ll have to wait and see what happens in the halls of the United Nations, currently Israel’s worst forum. If the growing disruptive tendency results in policies that work against the Palestinian Arab agenda, which many countries are tiring of, Israel’s standing could greatly improve.
Israel’s High Court judges are not left wing per se, nor are they trying to undermine the government. However, they are a self-selected group of mostly liberal judges who allow parties with no standing to bring cases before them. (The US Supreme Court is selected by the president and approved by the Senate. Parties with no standing cannot bring suits.) Because there is no written Israeli constitution, the High Court has a relatively free hand in determining which government actions are legal. The judges are the ones who interpret the hazy Basic Laws. Since the majority of the justices lean to the left, the Court’s decisions can conflict with the will of the elected Knesset, especially when the government is right of center, as it currently is.
The Regulation Bill, which is working its way through the Knesset, is the first step towards annexation of all or some of Judea and Samaria. During its occupation of Judea and Samaria between 1948 and 1967, Jordan imposed its law there. (In the Golan Heights, it was Syrian law.) The “eastern” part of Jerusalem and the Golan Heights came under Israeli law after the Six Day War, effectively being annexed (1967 and 1981 respectively). Not so Judea and Samaria, which retained Jordanian law based on a hope that negotiations for a peace treaty would result from Israel’s victory. However, there has been no peace movement among the Arabs similar to in Israel, and therefore no peace treaty.
Amona is a tiny community, but one of many in Judea and Samaria which may include some “private” Palestinian Arab land within it, despite being founded with some government support. The case was brought by the action of Israeli left-wing NGOs on behalf of unknown Palestinian Arabs. (In Amona’s case just one-half of one per cent of the community is judged to be private!) The Regulation Bill would finally apply Israeli law to Judea and Samaria and allow the legalization of other similar communities, ending the existing, awkward legal situation.
Israeli analyst/journalist Caroline Glick argued in her 2014 book that annexation of the West Bank would only add 1.4 million Palestinians to the population of Israel and that a one-state solution with a Jewish majority and a political system rooted in Jewish values was the best way to guarantee the protection of democratic values and the rights of all minorities. The annexation which could result from the Regulation Bill would be partial, applying only to Area C (42% of Judea and Samaria with full Israeli civil and security control), where hundreds of thousands, more than 80% of the population, are Israelis. Glick’s plan envisions all of Judea and Samaria being annexed.
Amona is not included in the proposed legislation, in order to obtain support of all of the government’s coalition partners. The few score of Israeli families residing in Amona have finally accepted the government’s revised plan, avoiding a nasty confrontation which would wound Israel.
My overall conclusion: Jews cannot be “occupiers” of Judea (or Samaria).
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Kramer is a freelance writer based in Alfe Menashe, Israel. He may be contacted via steve.kramer@sdjewishworld.com