Israel’s controversial ‘settlement bill’: A conversation with Richard Falk
A controversial bill in Israel aims to legalize settlements in the occupied West Bank built on privately owned Palestinian land. The bill was proposed after an Israeli court ordered the demolition of the Amona “outpost,” a West Bank settlement that has not been authorized by the Israeli government.
About 40 families live in Amona, which was founded in 1995 near Ofra, a settlement in the central West Bank. Amona was built on privately owned Palestinian land in three villages – Silwad, Ein Yabrud, and Taybeh – according to Israeli human rights group Yesh Din.
Although right-wing parties in Israel’s Knesset have enthusiastically backed the legislation, opposition from Finance Minister Moshe Kahlon has stalled a vote on the measure for now.
JMEPP’s Sam Bollier spoke with Richard Falk, former UN Special Rapporteur on Palestinian human rights and a professor emeritus of international law at Princeton University, about the settlement bill and its implications for the viability of a two-state solution.
Journal of Middle Eastern Politics and Policy: What is the historical and legal context of the Israeli settlement bill?
Richard Falk: There’s an important, fundamental distinction between Israel’s treatment of the settlements under Israeli law and the understanding of the legal status of the settlements under international law … Israel has always taken the position that as far as Israeli law is concerned, settlements constructed on public land – what Israel defines in a rather complicated way as public land – is legal for the purposes of Israeli law, but that settlements – what they call sometimes “outposts” – established on private Palestinian land is not legal.
What the settlers have pressed for is the option of legalizing these outposts and providing some kind of compensation to the Palestinian owner that he or she must accept, that they don’t have the discretion not to accept. That’s the general legal context in which this Knesset law is proposing to end that dualism between settlements and outposts within Israeli law. It doesn’t respond to the question of legality under international law.
JMEPP: Is there historical precedent for this type of bill?
RF: It’s the first blatant challenge to the disallowance of settlements on Palestinian private land. And it’s a challenge that is of a general character because … it’s not dealing with one particular outpost, it’s dealing with the overall status of outposts constructed on Palestinian private land. It refers essentially, as far as I know, to the West Bank, though it may have some relevance for East Jerusalem as well.
JMEPP: If the bill were to become law, is it likely that it would be challenged in the Israeli legal system?
RF: Yes, there’s a supposition that the law, if it passes, would be challenged in the Israeli court system … And it would probably be addressed eventually, at any rate, by the Israeli Supreme Court, which in the past has upheld this dual approach to the settlements.
Whether it would [uphold this approach] under Knesset law, I’m not sure. And I think many people are uncertain, though the Israeli attorney general has said that it would be a very difficult task for him to convince the Israeli Supreme Court of the legality of this law.
Netanyahu has himself played a very schizophrenic role in relation to this legislation. He voices strong opposition to its passage at this time, because he thinks it will harm relations with the international community, especially the US, which has been very critical of other recent Israeli moves relating to the settlements … yet he voted for the legislation when it came before a parliamentary committee. So it’s a very typical Netanyahu posture – doing one thing for internal public opinion in Israel that also seems to express his own real views, and do quite another to appease international public opinion and especially that in Washington.
JMEPP: Do you think Netanyahu’s stance is driven by pressure to maintain his coalition?
RF: It’s difficult to know the range of his motivations. I suspect that he’s personally sympathetic with basically annexing the West Bank whether accomplished by formal action or through de facto control. The passage of this Knesset bill would serve as a vehicle for terminating any further diplomatic pursuit of a Palestinian two-state solution.
One can argue that diplomacy under the Oslo framework was never meant to succeed, and was always a way of … deferring any pressure on Israel so that it could continue with the settlement expansion that it was determined to undertake, and which, as far as all indications are, Netanyahu and the Likud party support.
JMEPP: So if the bill passes, it would be the death knell of the two-state solution?
RF: It would be the death knell of Israeli overt support of the two-state solution. In my view, the volume of settlements on public land, combined with the appropriation of other territory in the West Bank, and the separation wall, and the whole posture that Israel has taken in the last decade or so, already conveyed the death knell of the two-state consensus. And it was only kept nominally as an option, I think, to lesson international pressure on Israel to seek peace for the Palestinians in good faith
The diplomacy that had functioned within the Oslo framework and was accepted by all parties in 1993 seems in retrospect to have been for Israel a delaying game rather than, as claimed, a genuine search for accommodation and compromise.
JMEPP: Do you think Trump’s victory in the US presidential election is emboldening hard-core supporters of expanding Israeli settlements?
RF: It seems that the hard-core supporters of the settlements phenomenon – and the annexation that is implied by it – are encouraged by the Trump victory. One of the primary right-wing opposition leaders, the head of the so-called Jewish Home Party, Naftali Bennett, has been quoted as saying that with Trump’s election, the era of a Palestinian state is over, or something to this effect.
But as I say, I and many other people who have followed the situation closely have reached this conclusion long before this legislative issue emerged. All that [the settlement bill] does is to sort of underscore explicitly the failure of Oslo diplomacy and Israel’s plan, which is to engage in a policy of what could be described as “creeping annexation” that seems to have reached a point of irreversibility – now upwards of 700,000 settlers, it’s hard to imagine how the settlement phenomenon could be reversed at this stage. It’s even harder to imagine how an independent Palestinian state could exist without the substantial removal of the settlers and settlements.
And it’s not so much an expansion [of settlements] as the legalization of those built on private Palestinian land or unauthorized by Israeli administrative approval. These outposts on private land or on unauthorized construction sites have existed for decades in a kind of legal twilight zone, where they were subsidized by the government, while still being viewed as unlawful, and from time to time Israeli courts have ordered the demolition of these unlawful settlements.
JMEPP: Do you think it [the bill] will pass?
RF: I think at some point it’s likely to. As I say, it’s more symbolic than substantive, as far as I can tell, although it has some significance for the stability of these outposts that are on private Palestinian land. By and large these are smaller than the established settlements. For instance, this one that’s currently under threat of demolition [the Amona outpost] contains only 40 families, and these 40 families would be absorbed by a nearby authorized settlement if the threat is carried out.
But it should be understood that the authorized settlements are pretty much uniformly viewed as violations of the fourth Geneva Convention, Article 49, Paragraph 6, which prohibits an occupying power from transferring its population to an occupied society. It’s been interpreted as making all the settlements in violation of international humanitarian law.
It’s clear that the Obama presidency has been very annoyed with Israel for creating this friction that is associated with the settlement expansion moves that it’s made from time to time, including recently. And it’s upset not because it’s so opposed to the settlements as such, but expansionist moves make the US peace diplomacy seem increasingly without any credibility. So it’s a matter of Washington’s public posture on the conflict that I think is at risk here as a result of this Israeli move. It is definitely, from the perspective of Israeli internal politics, a move to the right, which is associated with the extreme settler ambitions for what some call greater Israel: the Israel that incorporates these biblical areas of Samaria and Judea, which are the names used in Israel to describe what internationally is called the West Bank.