Israel must continue to build east of the greenline.

By Ted Belman

Ted 4In his first term in office, President Obama targeted Israel’s settlement activity with a vengeance, like no one before him did. He continued American policy of calling them “illegitimate” whatever that means, rather than illegal which the which was the term of choice put forward by the UN and the EU representatives. But he went further and forced PM Netanyahu to agree to a nine month construction freeze to enable negotiations to take place. This wasn’t enough to induce Abbas to enter negotiations until the last weeks of the freeze.  Ultimately all his efforts to bring about a settlement failed. It was generally accepted that his insistence on making the freezing of settlement construction the centerpiece of his efforts was largely to blame for their failure.

It should be noted that there is no legal precedent declaring them illegal but opinions to this effect, abound. On the other hand, the legality of Israeli communities beyond the 1949 armistice lines has been affirmed by international-law experts Eugene Rostow, Stephen Schwebel, Julius Stone, and others.

More recently, Alan Baker, a former legal adviser to the Israeli Foreign Ministry and former Israeli ambassador to Canada, in The Legal Basis of Israel’s Rights in the Disputed Territories, noted:

“The Palestinian leadership, in the still valid 1995 Interim Agreement (Oslo 2), agreed to, and accepted Israel’s continued presence in Judea and Samaria pending the outcome of the permanent status negotiations, without any restriction on either side regarding planning, zoning or construction of homes and communities.”

In Obama’s second term, he appointed Secretary John Kerry to devote himself to achieving a peace agreement. Kerry and his team studied all the previous failed attempts, including Obama’s failed attempt and carefully laid out his approach. He somehow believed that if he could lead the horse, Abbas, to water i.e., to negotiate, he could get him to drink. He too failed in his efforts.

Subsequently, he couldn’t resist picking on the settlement activity as responsible for the failure and openly blamed Israel for it. Martin Indyk, his special envoy, did likewise.

American policy starting with former President Carter was biased in favor of the Palestinians. After the Oslo Accords were negotiated in secret without American involvement and announced in 1993, an Interim Accord was signed in 1995.

Thereafter America got involved and inserted their Arab bias.  She attempted to override the only binding resolution for ending the conflict, namely UNSC Res 242, with the Saudi Plan which  demanded full withdrawal. She also attempted to override the provisions of the Interim Accord by demanding a settlement freeze where none was required.  She turned a blind eye to PA violations and blamed Israel for… well, everything.

In line with this bias, Obama announced that negotiations must take place based on the ’67 lines plus swaps. This principle had no foundation in law.

Until such time that Israel accepts a peace agreement,  she must insist on her rights including the right to settle Judea and Samaria as set out in the League of Nations Mandate.

Israel has every right to build having not conceded that right either in general or specifically as a “gesture” to bribe Abbas to sit at the negotiating table. We are told that Israel released 76 murderers to preserve that right. While some argue that settlements are “illegal”,  others, “illegitimate” and others yet, an “obstacle to peace”,  Israel should ignore them.  Israel was given the choice of releasing murderers or freezing construction. Kerry and Abbas, by accepting the release of murderers, ceded the right of Israel to build. They are not entitled to both a release and a freeze. Come to think about it, they aren’t entitled to either in any event.

Looking at it another way, Abbas, by denying Israel’s right to build even in the absence of negotiations is following his narrative that these lands are stolen by Israel from the Palestinians and that any rights given to Jews (Israel) by San Remo or the Mandate are invalid because both of these are illegal. Israel, by not conceding her right to build is pursuing her rights according to her narrative. Just as no one is demanding that Abbas accept her narrative, neither should they demand that Israel accept the Arab narrative.

Abbas and Kerry say settlement construction is either illegal or provocative and must stop whether or not there are negotiations.  Would that they also concede that Arab incitement is provocative and must cease whether or not there are negotiations. But there is no equivalency here. The PA has many times agreed to cease incitement and must be held to their agreement before another  agreement is entered into.   In fact there should be no negotiations until the PA honors their earlier agreements. Israel on the other hand has never agreed to cease construction permanently and thus there are no grounds for expecting her to do so.

Unfortunately the Arabs are given a pass on incitement and their resistance because after all they and the world want to keep the pressure on Israel.  Similarly, by Israel continuing construction, she is keeping the pressure on Abbas. The more Abbas avoids painful concessions in pursuit of peace, the more it will cost him. Building more homes puts time on Israel’s side while ceasing to build puts time on the side of the Arabs.

Were Israel to agree to stop construction she would be violating her narrative and her rights. It is one thing to do so in the context of a final agreement but quite another in the context of negotiations.

Were Israel to agree to stop building for ever, she would be put at a disadvantage for ever.  the Arabs, with the support of the EU and the US, would continue building in violation of Oslo and would avoid making painful concessions  forever. On the other hand, were Israel to offer to cease constructions for one year to give negotiations a chance, on the condition that if no agreement is consummated in that time frame, then Israel would be fully within her rights to build in Area C, no one would agree to this deal. What’s really at stake here, is to get Israel to give up any of her rights to Judea and Samaria before a deal has been arrived at.

The Oslo Accords prohibits acts by anyone which alters the status of the lands.

Specifically Article XXXI of the Interim Accords of 1995 provides,

6. Nothing in this Agreement shall prejudice or preempt the outcome of the negotiations on the permanent status to be conducted pursuant to the DOP. Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions.

7. Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.

 By “status”, it is meant the status as set out in the Oslo Accords. Thus Israel can’t annex the land and the PA can’t go to the UN to recognize them as a state unless and until the Accords have been abrogated.

Another argument that is trotted out to prohibit construction, is that neither side should do anything to prejudge the outcome of negotiations. This has no foundation in the Oslo Accords or any other agreement made by Israel.  Yet the EU does so constantly by calling the settlements illegal and demanding that Israel cease construction.  The US likewise.  Not only has the US applied a full court press to get Israel to stop building, the Obama administration is demanding that the settlement be based on the ’67 ceasefire line subject to swaps which is contrary to Res 242, the only governing law.  If that isn’t prejudging the outcome, I don’t know what is.

Surely, Israel, by insisting on her rights or defending herself, can’t be considered as doing things which pre-judge the outcome.

Bottom line,  Israel must continue to build east of the greenline.

 

May 12, 2014 | 8 Comments »

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  1. The following letter by Ketsele ( Katz) is most appropriate for this discussion.

    Op-Ed: An Open Letter to Martin Indyk
    Published: Sunday, May 11, 2014 7:59 PM
    High level discussions, conferences and negotiations did not help the Jewish people 70 years ago. And blaming the “settlement” movement for the conflict is, in effect, blaming the heroic pioneers of the last 130 years as well.

    Former MK Yaakov Katz
    Former National Union Party Chairman and Member of Knesset Yakov Katz, known to all as “Ketsele”, is a wounded hero of the Yom Kippur war and a key figure in the development of Judea and Samaria, including the founding of the Beth El Yeshiva and Arutz Sheva. He and his wife Tami live in Beth El where they were one of the first fifteen families to settle the site.
    ? More from this writer

    Now we are those holding the torch that was relayed to us to pass on to the idealistic pioneers of the next generation.
    To the Honorable Mr. Indyk

    Sir:

    Several days ago, you appeared on the Israeli media and blamed all the current ills, including the breakup of talks between our negotiators and the Arabs among us, on the “settlement” movement and the resumption of Jewish life in Judea and Samaria.

    We would have you know, that from the first days of the “Return to Zion movement”, over 130 years ago, and followed by the forming of Theodore Herzl’s Zionist movement, there was always – and still is – disagreement between the movement’s leaders and ordinary citizens, immigrants and pioneers, on the direction in which the movement must concentrate its efforts in order to reach the goal of the return to Zion, the building of a national home for the Jewish people and the re-establishment of a Jewish state in the Land of the Bible.

    Some felt that it was necessary to convince the world, and perhaps even the Arab residents of the Land of Israel, of the moral and legal rights of the Jews in the land of Israel, using solely intellectual, historical, logical and political explanations.

    As opposed to them, there were those who understood that there is no hope of persuading the Christian and Muslim worlds, consumed with hatred for our people and religion as they are, of the justice of our claims to the land. Accordingly, we must concentrate on creating facts on the ground, through engaging in Sisyphean agricultural work, erecting new settlements in isolated and peripheral areas, building up a defensive force, working to expand industry, creativity and educational institutions such as yeshivas and universities.

    The latter method is the one that proved itself, and has been the main method of dealing with the issue.

    This is the conceptual model whose application brought about the establishment of the State of Israel, our historic homeland from time immemorial, a Jewish state of which we are justly proud.

    What can one do, Mr. Indyk? Talks, intellectual discussions and political negotiations, such as there were, did not help us throughout our history and tragically, did not protect us 70 years ago when the most hellish of Holocausts befell our people. You, too, know what the results were when we limited ourselves to words.

    That is why the “settlement” movement, today’s wonderful pioneers in the lands of Judea, Samaria, the Golan and east Jerusalem, is a continuation of the messengers’ race that took off over a hundred years ago. Now we are those holding the torch that was relayed to us to pass on to the idealistic pioneers of the next generation.

    We are the descendants of the practical Zionists, those who refused to go to Uganda; we continue the path of those pioneers who built the first moshavim, the first kibbutzim, the “Shomer” watchman’s organization, the heroes of the Palmach and the martyrs of the Hagana and the Jewish Underground fighters..

    All of them, that’s right – all of them – Mr. Indyk, acted instead of talking.

    All of them, that’s right – all of them – enabled us to create, with the help of G-d, a glorious Jewish state whose 8 million-strong population includes six and a half million Jews. And 750,000 of those Jews live over the Green Line in parts of the Land of Israel that were liberated during the Six Day War.

    Mr Indyk, the Zionist train is travelling up the track at full power, returning our nation to health and normalcy, while you and other anachronistic Jews refuse to see the miraculous development of our country. As the train speeds on, you run towards the back carriages until you find yourself hitting the walls of the caboose, falling backwards and returning to your desperate and obsessive efforts to run in the opposite direction to that of the train – which is going on forward.

    The Jewish people are believers and the descendants of believers. Some have said, and I among them, that G-d’s plan for Redemption is being brought to fruition through our actions; others say that it is all due to the pioneers, soldiers, builders and immigrants. What is certain, Mr. Indyk, is that a majority of he Jewish nation living in Zion wishes for a large and strong Jewish state that deals equitably with minority groups within it.

    That is why your blaming the “settlements” is the same as blaming all the pioneers and heroes of the past 130 years, for we are only continuing their work. The views you expressed have remained a minority view throughout the years and because the majority acted otherwise, we survived, prospered and moved forward.

    I feel that it was my duty to write the above words to you. Thank you for reading them.

    http://www.israelnationalnews.com/Articles/Article.aspx/14987#.U3E4cih46So

  2. This letter by Katzaleh is most appropriate for this commentary about building the State of Israel:

    Op-Ed: An Open Letter to Martin Indyk
    Published: Sunday, May 11, 2014 7:59 PM
    High level discussions, conferences and negotiations did not help the Jewish people 70 years ago. And blaming the “settlement” movement for the conflict is, in effect, blaming the heroic pioneers of the last 130 years as well.

    Former MK Yaakov Katz
    Former National Union Party Chairman and Member of Knesset Yakov Katz, known to all as “Ketsele”, is a wounded hero of the Yom Kippur war and a key figure in the development of Judea and Samaria, including the founding of the Beth El Yeshiva and Arutz Sheva. He and his wife Tami live in Beth El where they were one of the first fifteen families to settle the site.
    ? More from this writer

    Now we are those holding the torch that was relayed to us to pass on to the idealistic pioneers of the next generation.
    To the Honorable Mr. Indyk

    Sir:

    Several days ago, you appeared on the Israeli media and blamed all the current ills, including the breakup of talks between our negotiators and the Arabs among us, on the “settlement” movement and the resumption of Jewish life in Judea and Samaria.

    We would have you know, that from the first days of the “Return to Zion movement”, over 130 years ago, and followed by the forming of Theodore Herzl’s Zionist movement, there was always – and still is – disagreement between the movement’s leaders and ordinary citizens, immigrants and pioneers, on the direction in which the movement must concentrate its efforts in order to reach the goal of the return to Zion, the building of a national home for the Jewish people and the re-establishment of a Jewish state in the Land of the Bible.

    Some felt that it was necessary to convince the world, and perhaps even the Arab residents of the Land of Israel, of the moral and legal rights of the Jews in the land of Israel, using solely intellectual, historical, logical and political explanations.

    As opposed to them, there were those who understood that there is no hope of persuading the Christian and Muslim worlds, consumed with hatred for our people and religion as they are, of the justice of our claims to the land. Accordingly, we must concentrate on creating facts on the ground, through engaging in Sisyphean agricultural work, erecting new settlements in isolated and peripheral areas, building up a defensive force, working to expand industry, creativity and educational institutions such as yeshivas and universities.

    The latter method is the one that proved itself, and has been the main method of dealing with the issue.

    This is the conceptual model whose application brought about the establishment of the State of Israel, our historic homeland from time immemorial, a Jewish state of which we are justly proud.

    What can one do, Mr. Indyk? Talks, intellectual discussions and political negotiations, such as there were, did not help us throughout our history and tragically, did not protect us 70 years ago when the most hellish of Holocausts befell our people. You, too, know what the results were when we limited ourselves to words.

    That is why the “settlement” movement, today’s wonderful pioneers in the lands of Judea, Samaria, the Golan and east Jerusalem, is a continuation of the messengers’ race that took off over a hundred years ago. Now we are those holding the torch that was relayed to us to pass on to the idealistic pioneers of the next generation.

    We are the descendants of the practical Zionists, those who refused to go to Uganda; we continue the path of those pioneers who built the first moshavim, the first kibbutzim, the “Shomer” watchman’s organization, the heroes of the Palmach and the martyrs of the Hagana and the Jewish Underground fighters..

    All of them, that’s right – all of them – Mr. Indyk, acted instead of talking.

    All of them, that’s right – all of them – enabled us to create, with the help of G-d, a glorious Jewish state whose 8 million-strong population includes six and a half million Jews. And 750,000 of those Jews live over the Green Line in parts of the Land of Israel that were liberated during the Six Day War.

    Mr Indyk, the Zionist train is travelling up the track at full power, returning our nation to health and normalcy, while you and other anachronistic Jews refuse to see the miraculous development of our country. As the train speeds on, you run towards the back carriages until you find yourself hitting the walls of the caboose, falling backwards and returning to your desperate and obsessive efforts to run in the opposite direction to that of the train – which is going on forward.

    The Jewish people are believers and the descendants of believers. Some have said, and I among them, that G-d’s plan for Redemption is being brought to fruition through our actions; others say that it is all due to the pioneers, soldiers, builders and immigrants. What is certain, Mr. Indyk, is that a majority of he Jewish nation living in Zion wishes for a large and strong Jewish state that deals equitably with minority groups within it.

    That is why your blaming the “settlements” is the same as blaming all the pioneers and heroes of the past 130 years, for we are only continuing their work. The views you expressed have remained a minority view throughout the years and because the majority acted otherwise, we survived, prospered and moved forward.

    I feel that it was my duty to write the above words to you. Thank you for reading them.

    http://www.israelnationalnews.com/Articles/Article.aspx/14987#.U3E4cih46So

  3. Obama targeted Israel’s settlement activity with a vengeance, like no one before him did […] calling them “illegitimate

    ”

    Hmmm so now an ILLEGITIMATE BLACK BASTARD has the audacity (not of hope…. Sneer…) to call Israel’s land of Judea and Samaria “illegitimate” huh?

    With ALL RESPECT to all legally- inclined- thinkers… it just puzzles me to no end, how can intelligent people who KNOW HISTORY(or should know history), continue to argue about such none sense as waving a piece of paper in front of an invading mob armed with pitchforks , torches and long knives (who has stated what they want to do to the owners of the house AND to the house itself… [ehm gush katif anyone??]) that show murder in their eyes …..and insists on telling them (very politely, of course…. so as to not get them overly upset) :
    “… eh, folks, you are a little mistaken…. You are on MY property… SEE???? Here. I have aaaaaaaalll the legal papers for this property with proper stamps etc…”
    Is this, f****g stupid or WHAT???

    Israel’s negotiations should mirror putin’s negotiations
    Wether Israel as much as SCRATCHES one of the bastards (ehm … Shalom Eisner… Anyone?) let alone, a long overdue military response to these subhumans, the world would condemn Israel just the same!
    Hell! The world condemned Israel for musloids that were killed by Christians!!! (Sabra and Shattilla)
    So YIM KVAR, AZ KVAR!!!!!

    I saw the american posting his usual shhhhstuff on another thread, with the usual bullshit ‘ you cannot claim to be a light into nations by acting that way’…
    Sneer!!!!
    ‘Light into nations’…. ‘Alek!’
    So never mind this ‘light into nations’, legalities, areas A,B,C,D,E,F,G…..
    respond in kind and finish the exchange of populations!
    Enough pussyfooting!

  4. @ Salomon Benzimra:The only case we have to make is that the PA is in fundamental breach. Nothing more is needed for Israel to abrogate the agreement.

    In fact, we don’t have to make the case at all. We just have to announce that we consider the act by the PA a fundamental breach and as a result are abrogating the agreement. There is nothing the world can do about it. Unless the Accords provide some kind of recourse in the event of a breach. If so, abrogating the agreement might be considered a breach.

  5. @ Ted Belman:
    Ted, you are right on strictly legal terms. But wouldn’t our case be much more convincing if it isn’t seen simply as a “tit-for-tat” but is instead buttressed by solid arguments?
    And if the usual suspects challenge these arguments, great! Let the fundamental debate begin…at long last!

  7. Ted,

    Actually the PLO already abrogated Oslo by going to the UN to unilaterally alter the status quo. There is no reason in the world why Israel should refrain from building in Judea and Samaria now that the PLO has shown Israel what its word is worth.

  8. “Thus Israel can’t annex the land and the PA can’t go to the UN to recognize them as a state unless and until the Accords have been abrogated.”

    Exactly! That is why the annexation plans proposed by Naftali Bennett and Caroline Glick are premature. And in order to abrogate Oslo, Israel ought to give serious reasons, backed by a sustained and well-funded campaign:
    a) Israel’s legal rights to the Land under international law,
    b) Demolishing the forged Palestinian narrative which denies these rights.

    Once these two issues disturb the Quartet’s ballet, they might be open to revise their tune.

    Let these two thoughts