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February 9, 2015 8:46 am

When is an Illegal Settlement Legal?

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avatar by Jerold Auerbach


A neighbourhood in Ariel. Photo: Michoel Jacobson.

Everyone knows that Jewish settlements are illegal under international law. This is one of the endlessly repeated mantras that reinforce the denigration of Israel as a loathsome pariah state. Imagine: since the Six-Day War the State of Israel has displayed the temerity to authorize the construction of settlements for Jews in the biblical homeland of the Jewish people. To be sure, that defines Zionism, the return of Jews to their ancient cities (Jerusalem and Hebron), hills and valleys (Judea and Samaria). To Israel’s legions of enemies and critics, however, settlement is the illicit conquest and colonization of someone else’s land. They claim that Jewish settlements violate Article 49 of the Geneva Convention (1949), stipulating that an “Occupying Power” may not “deport or transfer parts of its own civilian population into the territory it occupies.”

But Jordan’s West Bank, conquered in 1948, was never internationally recognized under its legal sovereignty. Nor did Israel “deport or transfer” its citizens into that territory. Unlike the forced Nazi deportations that inspired Article 49, Israelis voluntarily chose to become “settlers.” Nearly three years ago the Israeli legal commission chaired by former Supreme Court Justice Edmund Levy declared: “According to international law, Israelis have the legal right to settle in Judea and Samaria.”

If law is law, and a settlement is a settlement, the serial violator of international law, it now turns out, is none other than the European Union. Last week journalist Jake Wallis Simons broke the story in the Daily Mail that the EU has funded unauthorized Palestinian construction on land under Israeli legal jurisdiction. More that 400 EU-funded homes (along with a school and mosque) have been built without permits in 17 illegal settlements on state land in a closed military zone. Inhabited by Bedouin nomads, a.k.a. “Palestinians,” they proudly display EU flags and stickers.

Why are they illegal? Because under the Oslo Accords (1993) Israel enjoys exclusive military and civilian authority over planning and construction within Area C of the West Bank, where the EU settlements have been built. As Tom Wilson pointed out in his Commentary blog, the EU and the Palestinian Authority both signed this agreement, which is binding under international law. The EU’s settlements, according to Northwestern University international legal expert Eugene Kontorovich, are “openly in violation of international law.” International lawyer Alan Baker, who participated in drafting the Oslo agreement, concurred.

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The first EU response to the exposure of its illegal actions, from its Brussels spokeswoman, was denial. But an EU spokesman on the ground acknowledged (proudly) that it was a justified attempt to secure the territory for a Palestinian state. So it is, Wilson noted, that EU officials and European governments “use accusations of settlement building to lambaste Israel” for violations of international law – while they themselves violate international law.

It is surely no coincidence that the primary illegal EU settlement cluster has occurred in an area known as E1, in the Judean hills between Jerusalem and Jericho where the major Israeli highway to the Dead Sea and the Jordan River is located. Indeed, the EU mission in East Jerusalem confirmed to Emily Amrousi, writing in Israel Hayom, that it is “very frustrated with the Israeli plans to build in the E1 zone, which will jeopardize the possibility of establishing a contiguous and viable Palestinian state.” So it built its own illegal settlements, in stark violation of the Oslo Accords, to express its frustration.

According to Regavim, an Israeli NGO that focuses on land ownership issues, the EU strategic plan is “to create a Palestinian state de facto, while avoiding the need for negotiations with Israel.” It has clearly evaded the requirement for a permit to build anywhere in E1. And it has already built some structures on nature reserves, where construction is prohibited. Israeli construction in the area has been halted under international pressure – no credit to Prime Minister Netanyahu, who backed down from his own support for E1 construction two years ago. But the Israeli government has averted its eyes from EU construction on the same land.

Perhaps the Prime Minister, if he does not reconsider the invitation he accepted to address Congress next month, will seize the opportunity to reassert Israel’s legal rights in Area C, even as he calls upon the American government to forget about Crusaders and focus on Iranian nuclear threats.

To his credit, Netanyahu and Defense Minister Moshe Ya’alon have agreed that Israel will demolish the illegal EU structures.

Jerold S. Auerbach is a frequent contributor to The Algemeiner

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