Does Jewish in Judea and Samaria Impede a Peaceful Resolution of Palestinian Arab/Israeli Conflict?
Alex Grobman, PhD
Is the presence of Jewish communities in Judea and Samaria an impediment to Israel’s ability to reach a settlement with the Arabs? “Just as terror is the greatest Palestinian threat to Middle East peace, so are settlements on territory captured in the 1967 war the greatest Israeli obstacle to peace,” complained The New York Times The only solution is to evacuate them. This view became acceptable among some Israelis and American Jews, at least until the Jews were expelled (euphemistically called “unilateral disengagement”) from Gaza in August 2005. 
When the Al Aqsa Intifada began in late September 2000, The New York Times columnist Thomas Freidman visited Israel and Ramallah where he concluded, “This war is sick, but it has exposed some basic truths… to think that the Palestinians are only enraged about settlements is also fatuous nonsense. Talk to the 15-year-olds. Their grievance is not just with Israeli settlements, but with Israel. Most Palestinians simply do not accept that the Jews have any authentic right to be here. For this reason, any Palestinian state that comes into being should never be permitted to have any heavy weapons, because if the Palestinians had them today their extremists would be using them on Tel Aviv.” 
The Jewish population of Judea and Samaria is approximately 360,000 to 382,000. Jews living in Judea and Samaria during the 1948-1949 War of Independence were expelled. They did not return until after 1967. 
Israeli civilian settlement in Judea and Samaria began at the request of the Levi Eshkol government in response to political pressure to resettle the Gush Etzion Bloc and create a permanent presence on the Golan Heights. After the Six-Day War, Israeli Prime Minister Golda Meir’s government came under even greater pressure to allow settlements throughout the biblical Land of Israel. She responded by establishing a small number of security settlements in the Sinai, the Golan, and the Jordan Valley. 
Under the Eshkol, Meir, and Rabin governments there was significant settlement activity, yet by the time Menachem Begin and the Likud assumed power in 1977, there were only 3,200 settlers. By the end of Begin’s second term as Prime Minister in 1983, the number increased to 28,400. By 2004, there some 230,000. The IDF constructed roads that bypass Palestinian Arab towns and villages to protect the Jews from snipers, bombings, and drive-by shootings. 
With a projected annual growth rate of five percent, Dani Dayan, former chairman of the Yesha Council of Jewish Communities in Judea and Samaria, predicted they would reach 400,000 by 2014-not including the almost 200,000 Israel’s living in Jerusalem’s newer neighborhoods. As far as relinquishing the land, Dayan said “Giving up this land in the name of a hallowed two-state solution would mean rewarding those who’ve historically sought to destroy Israel, a manifestly immoral outcome.” 
Some settlements were erected on previously owned Jordanian government land, others on land purchased from Palestinian Arabs and some on confiscated land. Some communities are 40 years old and others were recently built. Some are isolated outposts, some are small villages. Some are medium-sized towns with six- and eight-story apartment buildings. A number of Jews in the more remote areas are there for religious or ideological reasons; others, living nearer to the Green Line, are attracted to
larger homes or apartments at more reasonable rates than they can in any other cities.[ 8] Modi’in Illit has a population of 59,000, Beitar Illit 46,000, Maale Adumim 39,000, and Ariel 18,000.
To understand why Judea and Samaria remain disputed areas, we will examine what transpired at the end of the Six Day War when Arab states sought to regain lands they lost. Henry Kissinger, U.S. Secretary of State, said that “Arab radicalism grew exponentially” after the war, driven by the impulsive Egyptian president Gamal Abdel Nasser. The vast military rearming of Egypt, Iraq, and Syria by the Soviets “reinforced the irredentist and intransigent streak of Arab policy, expressed by the Khartoum Arab Summit in late August 1967 in the unanimous proclamation of the ‘three no’s’ — “no peace with Israel, no negotiation with Israel, no recognition of Israel.”
Arab refusal to negotiate ensured the Israelis would remain in Judea and Samaria. Though Syria remained adamant, Jordan and Egypt explored some form of accommodation. None of the Arab offers, however, met Israel’s requirements: a guarantee of direct talks, open frontiers for travel and trade, and unfettered navigation through international waters. 
Even moderate Arabs spurned these conditions. In an October 1968 statement, Al-Fatah, the Palestinian Arab political and military organization, rejected “all compromises aiming at halt of armed strife,’” cautioned Arab governments from engaging in peace talks, and announced it wanted a “free, open, non-sectarian, non-racist society in Palestine,” so that Israel will be defeated and destroyed. 
Based on the uncompromising manner the Arabs present their demands, one might assume that they won the war, not Israel. They precipitate a conflict, make explicit demands of the victor and threaten another Intifada unless Israel complies with their ultimatums. Instead of being criticized for their intransigence, Arab objurgate directives are viewed as totally reasonable. 
Author Hillel Halkin asks what if every Israel government since 1967 had prohibited Jews from living in Judea and Samaria until a peace agreement had been signed. In the interim, Israel would have held the land in escrow for the Palestinian Arabs until they ceased fighting, and then give them the land free of Jews. 
Would this have accelerated peace negotiations or tempered the PLO’s determination to obliterate the Jewish state? This would simply have enabled the Arabs the opportunity to pursue their goal of destroying Israel. If the Palestinian Arabs succeeded, they would say “all to the better.” If not, they would respond “what did we lose?” Furthermore, it is quite offensive to tell Jews they can live in London, Paris, Berlin, Madrid, New York, Moscow, Mexico City or Buenos Aires, yet are prohibited from living in Judea and Samaria — the areas in the land of Israel most linked to the Bible, Jewish memory and history. 
Limiting Jews from settling in Judea and Samaria would have been impossible because of the Allon Plan, which allowed Jews to live beyond the 1967 boundaries. On June 19, 1967, Yigal Allon, a former IDF general, warned against transferring control of most of Judea and Samaria to the Jordanian monarch. “The last thing we must do is to return one inch of the West Bank,” Allon said. “We must not view Hussein as existing forever.” After failing to reach a peace agreement, Allon proposed that the Jordan Valley, Gush Etzion, part of the Hebron foothills and united Jerusalem remain in Israeli hands. All the remainder, except for a passage to join Jordan to the West Bank in the area of Jericho, would be given to King Hussein. This would free Israel from dealing with the Arabs. 
Allon believed that Israel “still exists is due only to its success in maintaining such defensive strength. Without it, Israel would never have seen the light of day or would already have been eliminated in the first years of its existence. Such were the Arab intentions, and it was fortunate that the Arab states had not the strength to realize them…. The subject of Israel is the only one that unites the Arab states today, for they are deeply riven by splits and conflicts.” 
With regard to U.N. Resolution 242, he pointed out that it specifically states only withdrawal from territories. This intent was expressed by American U.N. Ambassador Arthur Goldberg on November 15, 1967, in the U.N. Security Council discussions preceding the passage of Resolution 242. He stated: “Historically, there never have been secure or recognized boundaries in the area. Neither the Armistice Lines of 1949, nor the Cease-Fire Lines of 1967, have answered that description.” 
One does not need a military background to recognize the perilous flaws of the armistice lines that lasted until June 4, 1967. A significant portion have no security value for they do not provide even the minimum of strategic depth. The severest problem exists on the eastern borderline, where the whole width of the coastal plain changes between 10 and 15 miles.
This is where the main centers of Israel’s population, including Tel Aviv and its suburbs, are located, and where the position of Jerusalem is especially dangerous. “Within these lines,” Allon said, “a single successful first strike… would be sufficient to dissect Israel at more than one point, to sever its essential living arteries, and to confront it with dangers that no other state would be prepared to face. The purpose of defensible borders is thus to correct this weakness, to provide Israel with the requisite minimal strategic depth, as well as lines which have topographical strategic significance.” 
Some critics argued that sophisticated military hardware have nullified the value of strategic depth and geographical barriers. Yet Allon did not know of any state prepared to relinquish a border because of these technological advancements. The developments have increased the importance of territorial barriers and strategic depth for Israel, rather than diminished them. 
Having failed to dislodge the Israelis from Judea and Samaria using terror, Alan Baker, former Legal Adviser to Israel’s Foreign Ministry, noted that the Palestinian Arabs launched a campaign to have the U.N. declare Israeli settlements “illegal and constitute a major obstacle to the achievement of peace.” Though settlements are one of the subjects to be negotiated between Israel and the Palestinian Arabs in the Permanent Status negotiations, the Arab leaders purposely separated the issue of settlements as an independent “cause célèbre.”
They pursue this tactic knowing “that in their agreements, Israel had not obligated itself in any way to refrain from, halt, or freeze construction in the settlements.” Distorting the truth about settlements has been successful Baker finds “in blocking any progress in the negotiating process, so much so that the Palestinian leadership is now holding any return to a negotiation mode as a hostage to a settlement freeze.” 
This policy has influenced the European Union and the U.S. Secretary of State. The EU now requires all future agreements between the EU and Israel must clearly bar Jewish settlements in Judea and Samaria and East Jerusalem.[ 23] After discussions with Mahmoud Abbas, Kerry said, “Let me emphasize at this point the position of the United States of America on the settlements is that we consider them… to be illegitimate.” 
The argument that once the settlements issue is resolved, a peaceful resolution of the conflict could be concluded is groundless. No mention is made about the homicide bombers, incitement and attempts to deny Jewish connection to the land of Israel, the Jewish refugees expelled from Arab countries or the deadly rock-throwing and fire-bombing attacks, beatings and stabbings and the failure to acknowledge Israel’s to exist. 
Another canard is that settlements violate the Fourth Geneva Convention Relative to the Protection of Civilians (1949). Baker said the text and the post-World War II conditions under which it was drafted, “indicate that it was never intended to refer to situations like Israel’s settlements. According to the International Committee of the Red Cross, Article 49 relates to situations where populations are coerced into being transferred. There is nothing to link such circumstances to Israel’s settlement policy.”
Ambassador Morris Abram, who participated in the drafting of the Fourth Geneva Convention, agreed that the convention “was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people.” 
Israel has never forcibly deported or relocated her citizens to Judea and Samaria. She has consistently allowed people to live voluntarily on land not privately owned. “The presence in these areas of Jewish settlement from Ottoman and British Mandatory times is totally unrelated to the context of, or claims regarding, the Geneva Convention,” Baker notes. 
Julius Stone, a leading international legal scholar, agreed and said, “A demand that this territory be kept judenrein [free of Jews] would be a gross travesty of this legal position, turning international law on its head.”
Alan Baker added that this conflict, and especially issues with regard to Judea and Samaria are unique and sui generis, as are the agreements and memoranda signed between the Palestinian Arab leadership and the Israeli government between 1993 and 1999, which produced a special independent regime – a lex specialis – that controls all areas including the settlements.
The special regime, which is still binding, involves all the key issues: “governance, security, elections, jurisdiction, human rights and legal issues.” There is no explicit clause limiting planning, zoning and continued construction, of towns and villages, or halting such construction. 
In the 1995 Interim Agreement the Israelis and the Palestinian Arabs decided to separate their individual jurisdictions in Judea and Samaria into areas A and B (Palestinian Arab jurisdiction) and area C (Israeli jurisdiction). The powers and responsibilities of each side were clearly delineated. Israel’s authority and obligations in Area C included all phases of her settlements—which remain in effect until the Permanent Status negotiations are concluded. The Palestinian Arabs agreed to this division, which they cannot now invoke the Geneva Convention to circumvent this agreement. 
The settlements have not precluded Israel and Egypt or Israel and Jordan from signing separate peace agreements, observed Nicholas Rostow, a professor at the National Defense University. Settlements on the Golan Heights also have not created an obstacle for peace between Syria and Israel. Israel has shown her willingness to make enormous sacrifices, as with their evacuation from the Gaza Strip, to hasten peace between her neighbors. 
If the settlements are illegal, he says, then there is less an incentive to make peace with Israel based on U.N. Security Council Resolution 242 (1967). Similarly, if the settlements are proclaimed legal, Israeli has less reason to compromise on lands in Judea and Samaria it needs for defense. 
In 2004 the International Court of Justice declared that Israel’s settlements are illegal. Though few U.N. member states consider Israeli settlements legal, there are an equal number of states that fail to interpret U.N. Security Council Resolution 242 of November 22, 1967 as it was envisioned. 
Rostow concludes that raising the question of legality only inserts “an insoluble element to what is already an extremely difficult problem.” Instead, the focus should be to aid the Israelis and Arabs in resolving all the issues that “divide them on the basis of rights for all… but, to succeed, a solution must reflect the parties’ acceptance of the need for peace.”
Eugene Kontorovich concurs that the conflict between Israel and the Palestinian Arabs is “not an issue of occupation or legality –it is simply a border dispute that must be resolved the way all border disputes are resolved (or not.)”  Moshe Arens, who served as Israeli defense and foreign minister, said there are “So many reasons for abandoning Judea and Samaria, but If you believe in the justice of Israel’s cause, are concerned for the security of the State of Israel, and are convinced that Jews and Arabs can live together in a democratic society, you will dismiss them all.”
1. “Israel’s Historic Miscalculation,” The New York Times (April 26, 2002).
2. Victor Sharpe, “Gaza’s Rich Jewish History,” American Thinker (February 1, 2009).
3. Thomas Friedman, “Foreign Affairs; Ritual Sacrifice,” The New York Times (October 31, 2000).
4. Hezki Ezra, Tova Dvorin, “How Many Arabs, Jews Live in Judea-Samaria?” Israel National News (November 11, 2014); Gil Ronen “Judea and Samaria Jewish Population Up 2% in 6 Months,” Israel National News (August 8, 2013).
5. Michael Galchinsky, “The Jewish Settlements in the West Bank: International Law and Israeli Jurisprudence,” Israel Studies Volume 9, Number 3, (Fall 2004):116-117.
7. Dani Dayan, “Israel’s Settlers Are Here to Stay,” The New York Times (July 25, 2012), Moshe Arens, “The world doesn’t get it, Israelis do: The two-state solution is unrealistic,” Haaretz (March 2, 2015).
8. Hillel Halkin, “What to Do With the Settlements,” The Wall Street Journal (February 4, 2010); P. David Hornik, Kerry’s Slander of ‘Illegitimate’ Israeli Settlements,” Frontpagemag (November 8, 2013).
9. Philip Mattar, Encyclopedia of the Palestinians Revised Edition (New York: Facts On File Library of World History, 2005), 32-33; William R. Quandt, Fuad Jabber, Ann Mosley Lesch, The Politics of Palestinian Nationalism (Berkeley, California Press, 1974), 182-185, 187.
10. Henry Kissinger, White House Years (Boston, Massachusetts: Little, Brown and Company, 1979), 344.
12. Ibid. 345.
13. At a meeting of leading Arab and Jewish intellectuals in Jerusalem who met rather regularly, a Hebrew University professor asked the Arab participants “whether any of them knew of a single example in his history of victors withdrawing when the vanquished had not even begun to sue for peace, but vowed day in and day out that they would never make peace, never recognize the victor’s very right to exist, never meet him to negotiate face to face but would continue to labour with no respite for his destruction and annihilation?” Jacob L. Talmon, Israel Among The Nations (London: Weidenfeld and Nicolson, 1970), 172.
14. Halkin, “Why the Settlements Should Stay,” Commentary (June 2002): 24.
16. Reuven Pedatzur, “The ‘Jordanian option,’ the plan that refuses to die,” Haaretz (July 25, 2007).
17. Yigal Allon, “Israel: The Case for Defensible Borders,” Foreign Affairs (October 1976):39.
18. Ibid.41; Alan Baker, “The Fallacy of the “1967 Borders” – No Such Borders Ever Existed,” Jerusalem Center for Public Affairs (December 21, 2010).
19. Allon, op.cit.
20. Ibid. 42.
21. Alan Baker, “The Settlements Issue: Distorting the Geneva Convention and the Oslo Accords,” Jerusalem Center for Public Affairs Volume 10, Number 20 (January 5, 2011.)
23. Harriet Sherwood, “EU takes tougher stance on Israeli settlements,” The Guardian (July 16, 2013).
24. Kaled Abu Toameh, “Kerry: US considers Israeli settlements to be ‘illegitimate,” The Jerusalem Post (November 6, 2013); Benjamin Weinthal, “Germany’s gift to BDS: The slippery slope of labeling Israeli products,” Haaretz (June 5, 2013); Daniel Levy, “Europe sticks a warning label on the settlements,” Haaretz (June 14, 2013); Mark Landler and Jodi Rudoren, “Kerry’s Path Steepens in Israeli-Palestinian Talks,” The New York Times (November 6, 2013); Efraim Inbar, “Kerry: Stay home,” Israel Hayom (November 10, 2013).
25. Ibid; Hornik, op.cit; Shlomo Cesana,” Study shows Palestinian textbooks rife with incitement,” Israel Hayom (March 31, 2014).
26. Baker, op.cit; Fares Akram and Jodi Rudoren, “To Shape Young Palestinians, Hamas Creates Its Own Textbooks,” The New York Times (November 3, 2013). Paragraph six sixth of Article 49 of the Fourth Geneva Convention states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” According to the “the governing body of the International Red Cross movement, the International Committee of the Red Cross, explained this provision: it is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they
claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.” This included more than 40 million individuals—15 million Germans, 5 million Soviet citizens, and millions of Poles, Ukrainians and Hungarians—who were expelled, displaced and forced to migrate. Baker, op.cit.
27. Baker, op.cit.
28. Ibid; Julius Stone, Israel and Palestine: Assault on the Law of Nations (Baltimore, Maryland: The Johns Hopkins University Press, 1981), 180.
29. Stone, Israel and Palestine: Assault on the Law of Nations, op.cit. 180-181. Stone said, “We would have to say that the effect of Article 49(6) is to impose an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein [free of Jews]. Irony would thus be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that Judea and Samaria (the West Bank) must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants.”
“Common sense as well as correct historical and functional context,” Stone continues “exclude so tyrannical a reading of Article 49(6). So does the consideration…that Judea and Samaria are residual areas of the original Palestine mandate. As such … they have to be regarded as still subject to the substantive obligations of the mandate. Among these the establishment of a Jewish national home, if ‘not the soul of the Mandate’… was at least its ‘primary purpose.’ A demand that this territory be kept judenrein would be a gross travesty of this legal position, turning international law on its head.” Stone, Israel and Palestine: Assault on the Law of Nations, op.cit. 180-181.
30. Baker, op.cit. Baker said they include Israel-Palestinian Declaration of Principles, September 13, 1993, Exchange of Letters between Prime Minister Rabin and Chairman Arafat of September 9-10, 1993, Agreement on the Gaza Strip and the Jericho Area, May 4, 1994, Interim Agreement between Israel and the Palestinians, September 28, 1995, Agreement on Temporary International Presence in Hebron, May 9, 1996, The Wye River Memorandum, October 23, 1998, The Sharm el-Sheikh Memorandum on Implementation Timeline of Outstanding Commitments of Agreements Signed and the Resumption of Permanent Status Negotiations, September 4, 1999, Protocol Concerning Safe Passage between the West Bank and the Gaza Strip, October 5, 1999. All these documents are referenced in http://www.mfa.gov.il/mfa/peace%20process/reference%20documents/.
31. Baker, op.cit. During the negotiations, the Palestinian Arab delegation asked for a “side letter” to be appended to the agreement obligating Israel to restrict construction in area C while they implemented the agreement and during the subsequent negotiations. Israel acceded to restricting construction. Ultimately, the Palestinian Arabs abandoned the request for a letter. Alan Baker, “Biased, Prejudiced, and Unprofessional: The UN Human Rights Council Fact-Finding Mission Report on Israeli Settlements,” Volume 13, Number 7 Jerusalem Center for Public Affairs (March 17, 2013); Alan Baker and Dan Diker, “Kerry is mistaken on settlements,” The Jerusalem Post (November 12, 2013).
32. Nicholas Rostow, Are the Settlements Illegal?” The American Interest (March 1, 2010).
36. “Eugene Kontorovich: Disputing Occupation: Israel’s Borders and International Law,” the elder of ziyon blog (January 26, 2012) http://elderofziyon.blogspot.co.il/.
37. Moshe Arens, “Why leave Judea and Samaria?” Haaretz (March 11, 2014);For analysis of the political and military policy issues affecting Judea and Samaria see Menahem Milson, “How Not to Occupy the West Bank,” Commentary (April 1986). Milson was a professor of Arabic literature at the Hebrew University of Jerusalem who served as Head of the Civil Administration of Judea and Samaria from November 1981 to September 1982. He is chair of the Middle East Media Research Institute (MEMRI). Served as the head of the Institute of Asian and African Studies and as dean of the Faculty of Humanities at the Hebrew University.
Alex Grobman, a Hebrew University-trained historian, is a consultant to the America-Israel Friendship League, a member of the Council of Scholars for Scholars for Peace in the Middle East (SPME) and a member of the EMET Advisory Board.