The Unmaking of Israel (9 page)

Those were the exceptions. The vast majority of settlements did have cabinet approval. But the government itself had a similarly cavalier attitude toward legal restraints. This time, instead of a pre-independence underground hoodwinking British authorities, the Israeli government thought it could fool the international community, and particularly the United States.

Kfar Etzion was the first civilian settlement in occupied territory for which Eshkol sought cabinet approval, and the first in the West Bank. Porat had been evacuated from the original kibbutz at the site as a child, before it fell to Arab forces and the defenders were slaughtered in 1948. After the Six-Day War, he organized other children of the original members and agitated to reestablish the Orthodox kibbutz. When Eshkol gave his assent in September 1967, Porat’s group—and the press—believed that the Mapai prime minister had folded under Orthodox pressure. In fact, Porat had broken down an unlocked door. The paper trail from Eshkol’s office that summer shows that even without a strategy for the future of the West Bank, he too wanted to reestablish Jewish settlements that fell in 1948. Though neither Porat nor Eshkol would ever use the term, they were advocating the “right of return” of 1948 refugees—as long as the refugees were Jewish.

Before asking the cabinet to ratify his decision, Eshkol asked Foreign Ministry legal counsel Theodor Meron, the government’s top authority on international law, whether civilian settlement in the “administered territories” was permitted. Meron’s written response stated unequivocally, “Civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention.” The specific provision he cited was Article 49, paragraph 6: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Meron left Israel’s foreign service a decade later to teach at New York University. A child survivor of the Holocaust, he became one of the world’s leading experts on the laws of war, and then a judge on the International Criminal Tribunal for the former Yugoslavia. Interviewed four decades later, he stood by what he had written in 1967. “I believe that I would have given the same opinion today,” he told Donald Macintyre of
The Independent on Sunday
, a British paper.

Meron’s memo did note that the occupier was allowed to establish temporary military bases. Speaking in the cabinet, Eshkol described the new Kfar Etzion as an “outpost,” suggesting a paramilitary settlement manned by soldiers in the army’s Nahal (Pioneering Fighting Youth) unit. The press and Israeli diplomats were explicitly told that Kfar Etzion would be a Nahal position.

A secret military memorandum dated September 27, 1967—the day that the new Kfar Etzion was established—tells the real story. Addressed to the IDF chief of staff’s office, it is signed by Colonel Shlomo Gazit, who served as Dayan’s No. 2 in the military administration of occupied land. Gazit passed on these instructions:

1. As a “cover” for the purposes of the diplomatic struggle, the outpost of the religious young people in the Etzion Bloc will appear as a Nahal military outpost.

2. Instructions on the matter will be given to the settlers, in case they are asked questions.

3. There is no intent of the IDF taking practical steps to implement this “cover.”

This is a directive to the army to deceive the public. It shows Eshkol accepted Meron’s opinion and chose to evade it by misrepresenting what he was doing. The prime minister had also decided that the cause of settlement superseded legal constraints. In his reenactment of the pre-state script, the international community filled in for the British authorities.

Further evidence that cabinet members were aware of settlement’s illegality but did not see it as an impediment comes in a 1968 proposal by Dayan for building Israeli towns in the West Bank. “Settling Israelis in administered territory, as is known, contravenes international conventions, but there is nothing essentially new about that,” he wrote. After Kfar Etzion, the government did set up real Nahal outposts in occupied land—as preparation for settling civilians. Sometimes, though, settlements were established as civilian communities from the outset.

Ex post facto, government and supportive jurists produced arguments for why the Geneva Convention did not apply. The difference between Meron’s position and these arguments is the difference between a lawyer’s response when a client asks if the law permits insider trading and the lawyer’s answer when the client says he has already committed the act and needs a defense. In the latter case, we are likely to see unconventional readings of the law.

The Israeli Foreign Ministry, for instance, asserts to this day that Article 49 only bars the occupier from “forced transfer of [its] civilians.” This ignores the accepted reading that the ban is much wider, forbidding establishment or promotion of settlement by the occupying power. It also ignores the resources that the Israeli government has devoted since 1967 to building settlements—thereby warping the Israeli housing market, applying economic pressure on Israelis to buy inexpensive homes in occupied territory, and steadily constricting the land resources and freedom of movement of Palestinians.

Another defense asserts that the West Bank is exempt from the Geneva rules because the world did not recognize Jordan’s sovereignty there. Since there is no previous sovereign whose rights must be protected—says this reasoning—the laws of occupation do not apply. Yet the normal reading of the Geneva Convention is that it is not aimed at protecting another country’s claim to sovereignty over occupied territory. Rather it protects the
people
under military occupation. It safeguards “the demographic, social status quo” from the occupier moving its citizens into the occupied area.

Still another claim is that Israel is free to assert its sovereignty anywhere in former British mandatory Palestine, and that the right of Jews to settle anywhere in Palestine under the League of Nations mandate is still in force. All these defenses are intellectual sleight of hand, directing the readers’ eyes to the West Bank and Gaza Strip, though Israel also built settlements in the Sinai and Golan, where Egyptian and Syrian sovereignty was clear. They also assert technical exceptions to the Geneva Convention, evading the ethical principle expressed in the convention’s legal language: people living under military occupation are subject to a regime imposed from outside, which all too easily serves the interests of the occupying power rather than the interests of those governed. Normal democratic protections are missing; the convention is meant to serve in their stead. If Israel really believed that the territorial division created by the 1949 armistice was null and void, it could have asserted its sovereignty in all of former Palestine—and granted the vote and other democratic rights to all inhabitants. It chose not to do so for the reason given by Justice Minister Shapira: this would have been the end of the Jewish state. Instead, it behaved as if the territories were part of Israel for the purpose of settlement, and under military occupation for the purpose of ruling the Palestinians.

The same dual standard was applied to the settlers themselves. Like the physical growth of the settlements, the extension of Israeli law to cover Israelis in occupied territory began immediately after the war, at first without planning or strategy. The first step was a six-month emergency regulation that Defense Minister Dayan promulgated on July 2, 1967. It was intended to cover Israelis visiting occupied land, and preceded the first settler in the Golan Heights. Israeli courts, it said, could try anyone in Israel for acts committed in “administered” territories “as if” the offense were committed inside Israel. The court would use Israeli law, rather than the local law pertaining where the act took place. In December that year, following standard Israeli procedure, the Knesset extended the emergency regulation for another twelve months, and has gone right on extending it ever since.
As if
was the critical phrase in the law. Gradually, as settlement began and expanded, Knesset legislation and military decrees broadened the realm of “as if.”

A critical example: Israel does not have absentee ballots. A citizen who is out of the country on Election Day cannot vote. But from the October 1969 national election, the first held after the Six-Day War, settlers were allowed to vote in their settlements, as if they were in Israel.

The media and the public paid little attention. Each time the Knesset extended the emergency regulation, it had the chance to add more content to make sure that the growing number of settlers enjoyed rights and obligations as if they lived inside the Green Line. For instance, Israelis dwelling outside the country normally cannot receive National Insurance pensions, roughly equivalent to Social Security. A 1984 addition to the regulation, however, granted National Insurance coverage to Israelis living in occupied territory. By then, the number of settlers in the Gaza Strip and the West Bank—not counting annexed East Jerusalem—had reached 81,000. In 1994, after the Knesset enacted a national health insurance law, another bland sentence in the unnoticed extension of the emergency regulation gave settlers health insurance as well.

Meanwhile, military orders issued in 1979 began applying Israeli law to settlements as territorial enclaves. The orders empowered the IDF commander of the West Bank to set up municipal governments on the Israeli model: regional councils for groups of small communities; a local council (township) for each larger community. The commander would set the municipal limits. But even inside those limits, the councils’ jurisdiction did not apply to any private Palestinian land. The enclaves were ragged, fragmented splotches on the map because the point was not to include Palestinians in the new arrangement. (Similar orders were issued for the Gaza Strip. Israel unilaterally annexed the Golan Heights in 1981, and by 1982 withdrew from the Sinai, so the issue of municipal government for settlements in those areas was moot.)

The timing for establishing local governments for the settlements was not accidental. The Likud settlement drive was gearing up. It would be much easier to attract Israelis to live in the West Bank if they could live there
as if
living in Israel. Meanwhile, under the March 1979 Egyptian-Israeli peace treaty, negotiations were about to start on a Palestinian “self-governing authority” for the West Bank and Gaza. The military orders, it seems, were aimed at preemptively marking the settlements as a realm apart. The autonomy talks failed. The Israeli local governments remained. Additions to the original order applied more and more Israeli laws to their territories, while fine-tuning the statutes. The words
as if
were helpful here, too: laws would apply to residents of settlements as if they were residents of Israel.

In the utterly formal sense, the rule of law existed in the occupied territories. Following—ironic as it sounds—international law on occupation, the military was sovereign. It governed by laws that prevailed before the Israeli conquest, modified by the military commander or, less often, the Knesset. But the concept of the rule of law also has a substantive meaning. It requires following legal basic norms that express justice in the ethical sense. One of those norms is equality before the law. In that substantive meaning, Israel sacrificed the rule of law in order to settle the land beyond the Green Line.

In June 1967, Yisrael Galili and Menachem Begin spoke of, but could not describe, a “constructive solution” that would enable Israel to hold the West Bank without making the Palestinians part of the state. Gradually, without public debate, with no formal declaration, the “constructive solution” was patched together: for practical purposes, settlers and settlements were annexed to Israel. Palestinians lived under military occupation.

In acquiring land for settlement, the state’s misuse of law was particularly blatant. So was the basic dynamic of the settlement enterprise: treating occupied territory as if it were an arena where two ethnic movements struggled for supremacy, as if it were stateless land or still under the British Mandate—while one of those movements enjoyed the power of the state.

In the first years of occupation, Israel tapped several sources of land. One was property registered as belonging to the state under previous rulers. In the West Bank, that amounted to about an eighth of the total area. On the face of it, settling Israelis on that land violates the second major source of international law on occupation, the 1907 Hague Regulations. An occupying power may administer property of the hostile state, the Hague Regulations state, and act as an “usufructuary”—meaning that it can enjoy any profits from the property, but cannot permanently alter it. The explicit purpose of settlement is to create permanent change. By military order, Israel also enacted a version of the Absentees’ Property Law, allowing the state to take control of land belonging to refugees who fled during or after the Six-Day War.

But this land wasn’t necessarily where the government wanted to build settlements. In some cases, Israel used the Jordanian law of eminent domain. In 1975 and 1977, it expropriated about eleven square miles east of Jerusalem for the new settlement of Ma’aleh Adumim. Today the town is home to over 35,000 Israelis, making it one of the three largest settlements in the West Bank. The expropriation was a prima facie violation of the Hague Regulations, which state that “private property cannot be confiscated” by the occupier, and a misuse of the Jordanian law, which allows expropriation only for public use.

In the early years, though, the government more often exploited the opening in the Hague Regulations that allows the occupier to “requisition” land temporarily for military purposes. The state claimed settlements served Israeli security, an argument anachronistically based on Zionist experience up to 1948. In the occupied territories after 1967, settlements have been an extra burden on the army, which has to guard them. The Syrian surprise attack at the start of the 1973 Yom Kippur War showed that the era of settlements holding off invading armies was over. While trying to hold back Syrian tanks, the IDF had to evacuate frontline Golan settlements. But the myth had a strong grip, and successive governments stood by it in requisitioning land for settlement.