Commentary Magazine


Defining Settlements Down: the False “Appropriation” Hysteria

Israel’s declaration of certain open, uncultivated areas near the 1949 Armistice Line as “state land” has been widely mischaracterized as an “appropriation” of private Palestinian land, and a promotion of settlement activity. It is neither.

A determination that land is “state land” is a factual, administrative finding that does not change the ownership of land. In the West Bank–like in the American West–massive amounts of land have no private owners. There is nothing unusual about this; indeed, it is even truer inside the Green Line. Moreover, if Israel is indeed an occupying power, it has a duty to administer and maintain the rule of law, and oversee public resources, both of which require the authorities to know what land has private owners and what does not.

An “appropriation” involves taking something that is someone’s. A designation of land as “state land” requires a determination, based on extensive investigation, that it does not have a private owner. The determination can be challenged administratively and judicially, as Palestinian claimants often do, and sometimes prevail.

In other words, nothing has been taken from anyone, or given to anyone. Thus a “state land” determination does not create any new facts or change ownership.

Moreover, designating an area state land does not mean that a Jewish community can be built on it. Both illegal Jewish and Arab building on state land is often demolished. Authorizing a new residential community would require a vast number of additional administrative and political permissions, none of which appear to be remotely forthcoming. Indeed, those who object to Israel’s recent action also object Jews living or even studying on undisputedly private Jewish-owned land in the West Bank.

The hysteria over this announcement illustrates several points. First, it reflects how detached discussions of “illegal settlements” are from international law. The entire legal argument against settlements rests on one sentence of the Fourth Geneva Convention, which prohibits an “occupying power” to “deport or transfer parts of its own civilian population” into the territory it occupies.

Assume the treaty even applies to this situation–and there is good reason to think it does not. Further assume that Israelis moving across the Green Line can be considered a “deportation or transfer” committed by the Israeli government, though it does not appear the government is moving anyone. None of that has anything to do with the occupying power determining the ownership status of the land, an action which does not transfer or help transfer, and indeed, has nothing to do with the movement of people.

On the other hand, Israel also announced this week the construction of thousands of housing units in eastern Jerusalem for Arab Israelis. If the Geneva Convention indeed forbids building apartments in occupied territory for one’s nationals, it does so without any ethnic discrimination. The question would not be whether the “settlers” are Jews or Arabs, but whether they are part of Israel’s “civilian population.” Yet on this action, the international community was entirely silent.

The outrage over Israel’s “settlement” actions has no basis in law. Moving people is settlement activity, but only when done by Jews. Not moving people is also settlement activity. “Settlement activity” has just become a term of opprobrium with legal pretensions.

Second, the outrage over Israel’s “state land” declaration must be seen on the background of the six-month moratorium on new settlement construction that the Netanyahu government has been quietly implementing. Indeed, even a plan to allow for some building in blocs in response to the murder of the boys was scrapped.

Bibi has quietly done exactly what all his critics in the peace camp have long demanded. But instead of bringing Abbas to the table, it has sent him on unilateral attacks at the UN and ICC.

So instead of giving Netanyahu credit for his silent freeze–credit which would raise serious questions about Abbas’s sincerity–Peace Now and the international community simply define settlements down.

In short, Netanyahu’s moratorium has only encouraged more extreme international attacks on any Jewish presence in the territories.

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4 Responses to “Defining Settlements Down: the False “Appropriation” Hysteria”

  1. ALBERT HAND says:

    OK. But what is the effect, what are the consequences, of designating such land “state land”? Why make such a designation?

    • JOHN BENNETT says:

      Q1:As the article points out above, “to administer and maintain the rule of law and oversee public resources”.
      Maybe you should reread the article.

      • ALBERT HAND says:

        I’ve read the article and don’t need to re-read it thanks. The “hysteria” over Israel’s appropriation, expropriation, land grab or whatever it is isn’t prompted by any notion that some of the land in question is privately owned by Palestinians. Just check out the responses to a Google search of “Israel West Bank land.” What upsets those who are upset is that the State of Israel unilaterally lays claim to land that some consider “occupied territory” and others “disputed territory” irrespective of whether the land may be or may have been privately owned by Palestinians. Building a straw man and tearing it down is sophistry. And absent some dire circumstances not supplied by Kontorovich, justifying an appropriation (or whatever) with the thought that you want “to administer and maintain the rule of law and oversee public resources” is Orwellian gobbledegook .

  2. ALBERT HAND says:

    And what state is the “state” referred to in the term “state land”?

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