Construction workers build illegal settlements in occupied Jerusalem
By Ramzy Baroud
It is hardly a major surprise that the US government has finally decreed that illegal Jewish settlements built in defiance of international law are somehow “consistent” with the said law. US foreign policy has been edging closer towards this conclusion for some time. Since moving into the White House in January 2017, President Donald Trump has unleashed a total and complete reversal of his country’s foreign policy regarding Palestine and Israel.
Let us not have any illusion regarding the American approach to the so-called “Israeli-Palestinian conflict” prior to Trump’s Presidency, though. The US has never, not even once, stood up for Palestinians or Arabs since the establishment of the State of Israel on the ruins of historic Palestine in 1948. Moreover, Washington has bankrolled the Israeli occupation of Palestine in every possible way, including the subsidising of the illegal Jewish settlements.
Nevertheless, Secretary of State Mike Pompeo’s statement at a press conference on 18 November — “The establishment of Israeli civilian settlements is not, per se, inconsistent with international law” — is still very dangerous. In fact, it constitutes a political departure from previous US policies.
How? Historically, Washington has struggled in its understanding of international law, not because of its lack of legal savvy but because, quite often, US interests have clashed with the will of the international community. A recurring case in point is the Israeli occupation of Palestine, where the US has vetoed or voted against numerous UN Security Council and General Assembly resolutions that either criticised Israel or supported the rights of the Palestinians.
Only in 1978 did a US administration dare to describe Israeli settlements as “inconsistent with international law”. That happened during Jimmy Carter’s Presidency, when Washington began fiddling earnestly with the “peace process” political model, which eventually led to the signing of the Egypt-Israel Peace Treaty at US Presidential retreat Camp David in 1979.
“Since then,” Joseph Hincks wrote in Time Magazine online, “Republican and Democratic Presidents have referred to settlements as ‘illegitimate’ but declined to call them illegal — a designation that would make them subject to international sanctions.”
That said, it was President Ronald Reagan who — although objecting to the principle of the illegality of the settlements — deemed them to be an “obstacle to peace”, demanding a freeze on all settlement construction.
Pompeo’s statement is, in fact, compatible with Washington’s self-contradictions regarding the construction of Israel’s illegal settlements in occupied Palestine. In December 2016, the Barack Obama administration declined to veto a UN Security Council resolution that described the settlements as a “flagrant violation” of international law, adding that they have “no legal validity”. Although Obama chose to abstain from the vote, that decision was itself seen as a historical departure from traditional US foreign policy-making, further highlighting the US unconditional and, often, blind support for Israel.
While, in some way, the Trump administration’s support for Israel is a continuation of the dismal trajectory of American bias, it is also particularly unique and disturbing. Previous US administrations attempted to maintain a degree of balance between their own interests and those of Israel. Trump, on the other hand, seems to have aligned his country’s foreign policy regarding Palestine and Israel entirely with that of Israeli Prime Minister Benjamin Netanyahu and his right-wing camp.
US decision to back Israel’s building of settlements – Cartoon
Indeed, for over two years, the State Department has been giving Israel political carte blanche, agreeing to all of its demands and expectations and asking for nothing in return. As a result, Washington has accepted Israel’s designation of Jerusalem, including occupied East Jerusalem, as its “eternal and undivided capital”; agreed to Israel’s sovereignty over the occupied Syrian Golan Heights; and actively plotted to dismiss the issue of Palestinian refugees altogether. The latest announcement by Pompeo was but one of many such steps.
One theory regarding the ongoing surrender of US foreign policy to Israel is that Washington is slowly, but permanently, withdrawing from the Middle East, a process that began in the later years of George W Bush’s presidency and continued unabated throughout the two terms of the Obama administration. The current succumbing to Israel’s wishes is like America’s departing gift to its most faithful ally in the Middle East.
Another explanation is concerned with the apparently defunct “deal of the century”, a vaguely defined political doctrine that seeks to normalise relations with Israel, regionally and internationally, while keeping the status quo of its occupation and Apartheid regime untouched.
For that deal to be resurrected after months of inertia, Washington is keen to prolong Netanyahu’s premiership, especially as the long-serving Israeli Prime Minister is facing his greatest political challenge and even a possible jail term following various corruption charges.
Currently, Israel is undergoing a political crisis after two General Elections within six months — and the possibility of a third — coupled with a historic socio-economic and political polarisation among the electorate. To keep Netanyahu alive politically, his allies in Washington have thrown him some major lifelines, all in the hope of winning him more support among Israel’s dominant right-wing political camp. By rendering the illegal settlements “consistent” with international law, Washington is paving the road for Israel to annex all major settlement blocs in the occupied West Bank, for which Netanyahu will no doubt take the credit.
Israel has never been truly concerned with international law, but it needed this US green light to move forward with annexing at least 60 per cent of the occupied West Bank. Indeed, with the haemorrhaging of US concessions to Israel, Netanyahu is eager for more.
Desperate to strengthen his faltering grip on power, the Israeli leader agreed on 20 November to advance a bill that calls for the annexation of the Jordan Valley. The bill was drafted by Sharren Haskel, a member of the Israeli Likud — Netanyahu’s party — who tweeted following the Prime Minister’s decision that the US announcement was “an opportunity to promote my law for sovereignty in the [Jordan] Valley.”
The US decision to defy international law on settlements is not dangerous because it violates international law, for the latter has hardly ever been a concern for Washington. The danger actually lies in the fact that US foreign policy regarding the Israeli occupation has become a mere rubber stamp that allows Israel’s extreme right-wing government to determine single-handedly the fate of the Palestinian people and sow the seeds of instability and war in the Middle East for many years to come.
“They want a quality of life like we have but are afraid of being tainted with the label of being settlers. Some of them can’t accept it for ideological reasons. While they are saving up money in order to buy a home, I fly abroad five times a year”.
According to Eitan Singer, head of consumer-oriented real estate website Madlan, “the place that stands out in recent years is Ariel”, a major settlement in the northern West Bank.
“One reason for the high demand is the accreditation of Ariel College as a university in 2012, with its attendant growing ecosystem”, he noted. “This has affected the rental market and the demand for housing in the area”.
Yair Cohen, the head of a company that builds settlement housing, commented that “there is a trend toward expanding the communities [i.e. settlements in the West Bank], and no one is interested anymore in left or right. The determining factor is the quality of life”.
US decision to back Israel’s building of settlements – Cartoon
“Most people realize that these settlements will not be evacuated [in any future peace agreement]”, he added, “so the Green Line is becoming blurred”.
One important development cited by the paper is “the legitimisation the government has given to some settlements by means of its promotion of the Mechir Lemishtaken programme”.
“This lottery-based scheme has offered an incentive for banks to give mortgages for purchasing the apartments that it markets, and they have attracted a lot of interest among new families who’ve decided to move over the Green Line”, the paper explained.
The head of another construction firm active in the occupied West Bank said that Israeli banks have increased their involvement in settlement expansion.
“A decade ago, some of the larger banks were unwilling to take the risks associated with construction in these settlements, but in major settlements, there is no longer a problem”, said Zvi Fuchs, CEO, and co-owner of Z.F. Building Company.
“In fact, the trend has changed, with banks chasing people moving to these areas, who are considered well-educated and reliable”.
Palestinians react against Israeli soldiers’ intervention during a protest against construction of Jewish settlements in Hebron, West Bank on 22 November 2019
The Palestinian Authority called on Sunday for urgent Arab, Islamic and international measures to protect the occupied West Bank city of Hebron from Israel’s Judaisation policies. The PA’s Foreign Ministry warned of the policies being imposed by the Israeli occupation authorities and illegal Jewish settlers in Hebron’s Old City, targeting Al-Ibrahimi Mosque as well as Palestinian properties.
The PA highlighted the repeated calls by the Israelis and the settlers to expel the Palestinians from the Old City. The settlers — all illegal under international law — aim to extend the Jewish neighbourhood in the city and the demographic around the historic mosque.
Blaming the Israeli government for the consequences of settlers’ raids on Palestinian properties in Hebron, the PA also warned that international silence about such breaches of the law are ominous. On Saturday, for example, thousands of Jewish settlers raided Al-Ibrahimi Mosque and erected tents in its courtyard so that they could perform their own rituals. During the incursion, Israeli security officers supporting the settlers closed the mosque to Muslims and prevented the Islamic call for prayer being made.
Around 400 illegal Jewish settlers live in Hebron, mainly in the Old City, where they are protected by around 1,500 Israeli occupation soldiers. In 1994, an extremist settler opened fire with his army-issue rifle at Muslim worshippers in Al-Ibrahimi Mosque during the dawn prayer. He killed 29 men and boys, several as young as twelve, and wounded 125 others before being killed himself. His grave in a nearby illegal settlement remains a place of veneration for Jewish settlers.
On Sunday at night, the soldiers abducted Salem Malaysha and Hasan Malaysha, from Jaba’ town, south of the northern West Bank city of Jenin, after stopping them near a gate of the illegal Annexation Wall close to the nearby Qaffin town.
Israeli soldiers abducted, on Monday at dawn, nine Palestinians from their homes in the al-‘Isawiya town, in occupied East Jerusalem, and summoned several residents for interrogation, the Wadi Hilweh Information Center in Silwan (Silwanic) has reported.
Silwanic said the soldiers stormed and ransacked dozens of homes and interrogated many Palestinians while inspecting their ID cards.
It added that the soldiers summoned several young men for interrogation, and abducted nine Palestinians, identified as:
When Secretary of State Mike Pompeo announced earlier this week that the Trump administration would no longer recognize Israeli settlements in the West Bank as illegal, he displayed a keen understanding of the law’s relationship to politics, one that makes the blood of his liberal counterparts boil. “Arguments about who is right and wrong as a matter of international law will not bring peace,” he proclaimed. “Dwelling on legal positions [doesn’t] advance peace.”
For many liberals, law is the sine qua non, the be-all and end-all, of justice. Liberal criticism of Israel’s treatment of Palestinians, for example, usually peaks at the mere concern over whether Israel sufficiently adheres to the major tenets of international law.
Pompeo’s comments signal a technical departure from his predecessor’s. In 2016, John Kerry declared Israel’s settlements to be “inconsistent with international law.” Similarly, during Israel’s sniper attacks on the Great March of Return in Gaza last year, five House Democrats implored Israeli soldiers to “exercise utmost restraint in the use of deadly force and to fully comply with international law.” Some liberal legal scholars have even argued that the Trump administration is trying to “kick the legs out from under the postwar international legal order” for recognizing Israeli sovereignty over the Golan Heights. To achieve peace, according to this “flawed democracy” narrative, all Israel must do is better respect international law.
A new book by Noura Erakat, Justice for Some: Law and the Question of Palestine, illustrates the folly of this position. A human rights attorney and professor of Africana studies at Rutgers University, Erakat argues that international law has, on balance, done more to entrench Israel’s settler colonialism than impede it. The book is a vital political intervention into contemporary debates on Israel and Palestine, as well as a compelling history of the last century, told through the lens of a critical-legal theory.
Erakat shows the immense amount of “legal work” Israel has performed to advance its twin goals of territorial expansion and demographic superiority. Though it could achieve these objectives through military prowess alone, Erakat argues, “as a liberal settler state, it has sought the legitimating force of law as well.”
At the heart of Israel’s legal work lies its persistent claim that the unique circumstances of Israel and Palestine constitute a state of exception, or a sui generis situation (literally “of its own kind”). By claiming that no existing legal framework fully applies to its relations with Palestinians, Israel has gradually established its own legal models: as a sovereign state with legal powers to declare such an exception, Israel can claim that it’s acting within the bounds of law.
“A sui generis framework maintains the veneer of legality while producing a violence that ‘shed[s] every relation to law,’” Erakat writes. Indeed, it was this very exception that Mike Pompeo invoked in his announcement this week. Trump’s reversal of Obama’s position on the legality of settlements was “based on the unique facts, history, and circumstances presented by the establishment of civilian settlements in the West Bank,” he said. This legal window dressing has proven essential for cultivating Israel’s (misleading) image as “the only democracy in the Middle East.”
Israel’s governing state of exception emerges from the British government’s creation of a “special regime” in post-World War I Palestine, when it sought to govern an area where native Arabs constituted 90 percent of the population. The Balfour Declaration of 1917, which called for a “national home for the Jewish people” in Palestine, worked to deny Arab Palestinians the status of a recognized political community. Zionists justified this political erasure on the grounds that Palestine was, in the words of Lord Balfour, “absolutely exceptional.”
By incorporating the declaration verbatim into the Mandate for Palestine in 1922 — making Britain the mandatory power in Palestine — the League of Nations “institutionalized the framework of exception” by “transforming British colonial prerogative into international law and policy,” Erakat writes. Palestinians’ claims to legal redress were thus rendered nonjusticiable.
This predicament was only further entrenched with the establishment of Israel in 1948. “The state’s establishment retroactively legitimated Israel’s founding violence because, not only was the violence used in the service of a public interest defined by the nascent settler sovereign, it also embodied a claim of new lawmaking authority,” Erakat argues. “Therefore, once diplomatic recognition was extended to Israel, its actions in pursuance of its statehood become beyond legal and diplomatic challenge.”
New Legal Frontiers
Israel’s occupation of the West Bank and Gaza in the aftermath of the June 1967 war created an opportunity for the state to make novel claims about international law that served to consolidate its land theft and ethnic cleansing.
The occupation forced Israel’s lawyers to confront a major question of international law: did Israel’s presence in the West Bank and Gaza constitute an “occupation”? If so, international law would require that Israel work toward a political solution to restore a displaced sovereign’s authority — meaning Israel would have to give up control over these territories. On the other hand, if the territories were not occupied as a matter of law, international law would require that Israel grant citizenship to the territories’ Palestinian inhabitants, thus nullifying Israel’s goal of a Jewish demographic majority.
Yehuda Zvi Blum, Hebrew University law professor and Israeli ambassador to the United Nations, resolved Israel’s dilemma in a 1968 scholarly article. Consistent with the 1922 mandate’s political erasure of Palestinians, normalized later by Israel’s creation, Blum “exceptionalized” the West Bank and Gaza Strip by claiming that they had no sovereign power prior to the war, thus rendering void the law’s requirement that an occupying power maintain the sovereignty rights of a nation under occupation. Rather than completely eschewing occupation law, however, Blum insisted that Israel should abide by its humanitarian provisions for the sake of assuming quasi-legal control over the territories, and creating the appearance of abiding by occupation law.
Under this sui generis legal regime, Erakat writes, Israel “could exercise its authority . . . without either preserving the sovereign rights of its inhabitants or absorbing them under its civil jurisdiction,” thereby suspending Palestinians in a “legal vacuum with only attenuated legal claims to humanitarian relief.”
After decades of effective legal work by Israel, Palestinians’ already nearly nonexistent capacity for pursuing legal recourse was extinguished even further. Israel’s rule-of-law framework enabled it to enjoy “both the powers of an occupant and a sovereign in the [West Bank and Gaza], while Palestinians enjoy neither the rights of an occupied people nor the rights of citizenship,” as other scholars have written.
“An Armed Conflict Short of War”
The next major inflection point in Israel’s legal work occurred as Israel began to use exceptional military force — most notably public assassinations — during the Palestinian uprising of the early 2000s known as the Second Intifada. By claiming the right to use a greater amount of force than usually available to an occupying power under conventional interpretations of international law, Israel crushed the intifada with the legitimating force of a liberal rule-of-law framework.
Consistent with this sui generis tradition of applying its own legal framework, Israel strategically avoided classifying its military operations as either of the two types of war recognized under international law: neither an international armed conflict (IAC) nor a non-international armed conflict (NIAC). Instead, Israel claimed that it was engaged in an “armed conflict short of war.” To classify the conflict as a war against a liberation movement (IAC) would recognize Palestinians’ right to use force in pursuit of their self-determination, enshrined in international law in the 1970s. Similarly, calling it a civil war (NIAC) would “unravel the false partition separating Israel from the Occupied Territories,” Erakat writes, and “acknowledge Israel’s maintenance of a singular, discriminatory government.”
By claiming that these existing legal frameworks did not sufficiently apply to its self-proclaimed sui generis conflict with Palestinians, Israel asserted the sovereign right to create its own framework for regulating war. As Erakat puts it, “Israel deliberately exceptionalized its in fact non-exceptional confrontations with Palestinians in order to expand its right to use force and delegitimize any responsive force.” This set the tone for its massive military assaults on Gaza in the decade to come. In short, Erakat asserts, “Israel literally created new law for colonial dominance.”
Violations Become the Norm
Erakat’s goal isn’t to provide a book-length rebuttal to all of Israel’s novel and dubious legal arguments, but rather to show how Israel’s strategic deployment of international law at critical junctures over the past century — importantly, with the backing of the United States — has functioned to consolidate its political and military victories. Although Israel’s legal claims may lack merit, to denounce Israel’s actions as violations of the law is, by itself, a fruitless endeavor.
In a geopolitical context that strongly favors Israel, international law, for Erakat, is not a particularly helpful resource for winning Palestinian liberation. For one, it lacks a hierarchal enforcement model. Unlike US domestic law, international law has no supreme court to issue rulings that would be binding on all nation states. Rather, it is fragmented among various institutions and mechanisms that correspond with specialized areas of law.
Moreover, international law sources much of its substance from custom — how states, especially powerful ones, behave and what they believe is legal. In this context, the enforcement of international law “reflects the measure of political will and the prevailing balance of geopolitical power,” Erakat writes. “In cases where there is no political will to compel a state to comply with the law, violations become the norm rather than the exception.”
The United States’ drastic policy shift on Israel’s assassination program during the Second Intifada neatly illustrates the malleability of international law. Although several top US officials initially criticized Israel’s assassination program, Al-Qaeda’s attacks on September 11 changed the calculus. As Washington adopted its own assassination program on a global scale, “US opposition transformed into explicit collaboration with Israel,” tempering international criticism of Israel’s practices and bringing the “once unacceptable within the realm of possibility.” The ramifications of this shift, Erakat argues, were huge.
Had the United States maintained its opposition to targeted killings and to the framework of “armed conflict short of war,” Israel’s actions might have remained somewhere between a controversial proposition and a violation of international law. However, because of diminishing US protest . . . Israel’s violations steadily escaped the zone of brazen violations and moved into the scope of legitimacy.
As though to prove the point, Daniel Reisner, former head of the Israeli military’s International Law Division, boasted, “If you do something for long enough, the world will accept it. . . . International law progresses through violations. We invented the targeted killing thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal molds. Eight years later, it is in the center of the bounds of legitimacy.”
Law’s Emancipatory Potential
That international law is not an effective starting point for achieving justice in Palestine is a vital insight for leftists developing a progressive foreign policy. Justice for Some makes clear that winning Palestinian freedom will require confronting the geopolitical power structure that gives international law its meaning. Insurgent Democrats like Bernie Sanders and Alexandria Ocasio-Cortez are on the right track when they propose using US aid as leverage against Israel’s discriminatory practices. Because Washington’s diplomatic, political, economic, and military support for its client state in Israel has been a “necessary and sufficient condition” for Israeli colonialism, the United States has the power to uniquely influence Israeli policy.
Although Erakat provides a deeply compelling account of how international law has adeptly serviced Israel’s needs, she does not believe that law has no role to play in the road to liberation. To explain law’s operative value, she offers a metaphor for law as the sail of a boat: “The sail, or the law, guarantees motion but not direction. Legal work together with political mobilization, by individuals, organizations, and states, is the wind that determines direction.” The wind, in her view, is what can make law work for Palestinians.
To capitalize on law’s emancipatory potential, Erakat argues that “the law must be wielded in the sophisticated service of a political movement.” While a purely legal strategy may attract proceduralist liberals who fetishize law as the savior of the oppressed, it lacks the chops to challenge the power structure that has “placed Palestinians outside the law.” Only a radical political project can do that. For Erakat, the revolt of the Third World in the 1960s and ’70s, before it was ultimately crushed by imperial restructuring toward global neoliberalism, set a good example: it began to create a geopolitical context that made claims for legal redress by dispossessed people more justiciable.
Despite ubiquitous pleas from liberal Zionists, making sure that Israel complies fully with international law does not guarantee justice for Palestinians. International law isn’t designed for such a task. “Raise the sail,” or the law, “when useful, drop it when harmful, and stitch together a new one when possible,” Erakat recommends. As is the case in liberation struggles elsewhere, winning freedom in Palestine requires a mass political movement in which law functions as a tool rather than a substitute for politics. Only within such a movement can international law be deployed in service of justice, rather than against it.
Ramallah (QNN)- Palestinians have been witnessing the aftermaths of the American announcement, which deemed the West Bank settlements legal, especially that the Palestinians see the announcement as a proactive step to completely annex the West Bank.
In the last few years, the numbers of Israeli settlers in occupied Jerusalem and West Bank have unprecedentedly increased. There has been a marked rise in the numbers of illegal settlements and outposts as well.
Some estimates indicate that the number of illegal settlers in occupied Jerusalem and West Bank is approximately 800,000, most of them live in East Jerusalem. The Israelis have built 198 illegal settlements and 220 outposts in the West Bank and Jerusalem, while the number of Jewish settlers on the eastern side of the “green line” has increased from 110,000 in 1993 to 425,000.
In the same vein, Specialist and researcher in settlement affairs, Ziad Hantash, told QNN that the West Bank land that has been left for the Palestinians is not more than 15% at most of the total area of the West Bank, which definitely means that the Two-State solution is completely dead and impossible in the wake of the ongoing settlement expansion.
Hantsh explained that the “C” area, which is over 2000 square Kilometers and makes 61% of the West Bank, has been considered by the Israelis as a part of the occupation state. Israeli authorities have built 156 illegal settlements and 200 settlement outposts in the “C” area.
“The occupation state intends to use the American announcement to swallow more [Palestinian] land. Israeli leaders are very greedy and they intend to confiscate large areas of the West bank”, Hantash said.
The occupation state, according to Hantash, currently plans to annex the Jordan Valley and enforce the Israeli law on it in a scheme to annex the West bank.
“‘Israel’ does want to annex the West Bank but in stages”, Hantash explained. “At the beginning, they will enforce the [Israeli] law on the large settlement blocks, as there are 6 settlement blocks, which swallow 9% of the West Bank area”.
In the second stage, according to Hantash, the Israelis will turn the illegal settlement of Kiryat Arba into a municipality and merge all the surrounding settlement outposts with it to enforce the Israeli law on them all.
Hantash noted as well that the Palestinians have been suffering from the aftermaths of the Israeli plans; being displaced and expelled through the Israeli policy of land theft and house demolition.
He also expected that the period ahead will see a rise in house demolitions, especially in the “C” area, where the Israelis refuse to provide house permissions for the Palestinians.
The Israelis have demolished over 35,000 houses in the West Bank and Jerusalem since 1967.
Meanwhile, according to the Israeli NGO B’Tselem, Israeli settlements cover 538,126 Dunums, which make 10% of the total area of the West Bank. There are also 1,650,376 Dunums , which have been confiscated by settlements, increasing the total confiscated area of the West Bank to 40%.
The Israeli settlement of Modi’in, which was built on the ruins of five Palestinian villages in Ramallah, is the largest with nearly 60,000 settlers living in it. The illegal settlement of Ma’ale Adumim, which is built on Palestinian lands in eastern Jerusalem, comes next with over 40,000 settlers living in it.
Ramallah (QNN)- Secretary-General of the Palestine Liberation Organization (PLO)’s Executive Committee, Saeb Erekat, said on Sunday that the PLO will raise all of outstanding issues during the International Criminal Court general commission’s meeting next month, according to WAFA.
Erekat said the PLO will urge the ICC Judicial Council to open an investigation into the crimes of the Israeli occupation, and to publish a database of companies dealing with products manufactured in the illegal Israeli settlements.
“Whoever in charge of the institutions established to protect and defend human rights and combat war crimes shall not be subject to any political blackmail from a certain country,” Erekat told official Voice of Palestine radio.
Erekat added that in response to the recent announcement by US Secretary of State Mike Pompeo, in which he recognized Israeli settlements as legal, the Palestinian leadership has sought action in the ICC, the International Court of Justice and the UN Security Council and the Arab Foreign Ministers meeting, so as to create a momentum that may influence the US resolution.