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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6 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”?


    I responded to the article “Misplaced Hysteria Over Israel’s Land Appropriation: No Appropriation Possible” when it was published in the Jewish Press newsletter by saying the follwing:

    This land is not even ‘state land’ – rather, it is land belonging to the TRADITIONAL CUSTODIANSHIP OF ISRAEL! So, on these grounds – no appropriation by Israel is possible as it is just not logical that traditional owners could ever ‘appropriate’ land belonging to them. The side who is trying to say that Israel ‘appropriated’ the land is wrong just as much as the side who is trying to monopolize the situation with the equally falicious argument that the land is ‘state land’ is wrong.

    After this some guy tried to curtail my efforts at speaking the truth by retorting:

    Siuyin Ho According to your occupation, you are somehow related to or sympathize with the First Nations cause. I don’t understand how you can take the side of an oppressor. If you’re indeed sympathetic with the First Nations cause or have witnessed the trauma firsthand, you should know better than to side with colonialists who will stop at nothing to exploit the defenseless. At least the First Nations could put up an armed struggle!

    My reply to him was as follows:

    Ahsan Shariq – your argument against mine makes no sense! Why dont you tell this rubbish about so-called oppressors to the author of the oroginal article. Dont whinge to me about it cos I made no defence of any so-called state and my position is clear on this for everyone who reads my comment. I made it clear that as far as traditional law is concerned, there is no such thing as “state land”. In this respect those Israeli politicians who want to talk in terms of “state land” have got it all misconstrued. The other issue I have with your response to my comment is that it was unreasonably negative and to be specific, very presumptuous and ignorant of my position. You presume unjustifiably, that I am siding with an oppressor yet you fail to be specific about who this vague oppressor you speak of actually is. The other issue here is that the tone of your argument against ME seems to strongly suggest you are not in any haste to “have a go” at the author of the article above even though your position seems to clash with theirs too but instead you have, once again, decided to direct your dislike in my general direction. To make you more aware of my REAL position on the entire situation of Israel politically & culturally speaking, it might do you a world of good to read my article “Indigenous People Have Rights and So Do Asylum Seekers” published on my blogsite http://indigenous-perspectives/ where I talk in some depth about the need for the people of Israel (as traditional owners), to see the plight of Arab asylum seekers/refugees as a REAL need, one that needs to be positively affirmed and compassionately engaged with. I am totally convinced that over many years, the hard-line position taken by many politicians of Israeli heritage has been an undeniably undiplomatic, selfish, and tragic one and I go into the details of this in my article. The other thing I need to point out to you is that is you have incorrectly dubbed my relationship to Israel as “an occupation” which, btw, grammatically doesn’t make sense. My relationship to Israel is matrilineal and I see the notion of statehood as a situation no different to that commonplace in many post-colonial African nations today. In fact, it’s no wonder many African countries politically share many of the same problems and conflicts Israel does, and I know that these problems are to do with too rapidly and undiscerningly, without much regard for the traditional G-d given mandate of custodianship, had donned a rather crude state system and this system in many respects forgets the sacred position and Biblical decrees Israel had been given in ancient times. This forgetting has been to the demise of Israel both reputationally speaking and culturally as well as to the detriment of other peoples living in and around the region.

    The fact is, I don’t know really what was with this guy’s reaction to my position. I was simply being honest about how Israel, although the rightful owners of the land, have none-the-less got into some stuck situation. Firstly, there was really no need for an armed struggle if Israel years back could have just presented the rightful cause for recognition as the traditional owners of the area (the whole/entire area designated by G-d as land belonging to the tribes of Israel) to the United Nations and self-repatriated back to the traditional areas without the need to institute a formal STATE based upon American political rubric. This then would have been a prototype of or a pre-cursor to the very recently released United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and therefore would have presented as Prima Facie in international law and this could ahve gone much further to prevent all the wars that have since 1948 come and gone. In fact, in the here and now, there is nothing stopping the people of Israel from claiming rightful place at the UN as part of the International Working Group of Indigenous Peoples and the International Forum on Indigenous Peoples. This positive participation would legitimize Israel in a far greater capacity internationally speaking in terms of getting proper recognition for the rightful place of Israel as traditional custodians of the land given to the nation from ancient times. And it would then serve to clear the air of the horrid confusion abounding regarding what exactly is meant by this other issue of so-called Palestinian right of return, which by the way, would then be broadcasted publically as it really is – a situation concerning the right of Arab asylum seekers to return to Israel as refugees rather than remain unlawfully evicted.

    See, there is much confusion over what all this so-called Palestinian “right of return” is all about. Many people are confused and believe ridiculous and ludicrous things such as “oh it has to do with Palestinians having rights to the land which Israel is ‘occupying’etc.” This is vague and furthermore soaked with mixed-messages because it misleads people to believe a big fat lie – the lie that Arabs are traditional owners of the land that in actual fact was traditionally belonging to the people of Israel from Biblical times. The truth remains: it is Israel who are the TRADITIONAL OWNERS of this land – which is land that was designated by the Creator as belonging to all respective tribes within the nation of Israel. The real truth about the right of return for Arabs is in regards to their legitimate position as refugees who DO have a legitimate RIGHT to seek asylum in Israel, for G-d also mandated that His people Israel give shelter and safe refuge for those from outside the nation. He commanded Israel to love and welcome the stranger not to wage war against and delegitimize the well-being and rights of these other peoples to come and rest under the shade of the tree which the L-rd hath provided.

    And further to this when Israel chooses the path of participating in the UN as an indigenous nation rather than a nation-state it would be completely in keeping with the sovereign mandate of Divine decree given by
    G-d in this regard also and would further not violate the sacred covenant between Him and Israel as a nation.
    On the other hand, becoming obscessed with state-ism and other secular methods of political agency is causing a rift between G-d’s traditional birthright given to Israel and Israel itself as a people. The method of negotiating with diplomatic and reconciliatory fervor is favored more by G-d than a military might and conquest mentality which was never part of G-d’s plan but rather an integral part of His warning to Israel back in the days when droves of pagan nations were tantalizing Israel with their might – the Philistines, the Phoenicians, the Assyrians, Babylonians, Egyptians, Greeks etc…. These were the nations of power and prestige back in Biblical times, in the times when G-d commanded Israel to be unlike these neighboring peoples whose might is in the armies and swords they muster and treasures they horde. Israel was meant to be a simple nomadic nation of tribes dedicated to serving G-d with supernatural power and upholding the integrity of the covenant with Him, the rest of humanity, and the wider creation with a love that was unsurpassed by anything other than G-d’s own and a compassion that knew no bounds. But what happened later sure turned the tide rather sharply but certainly not irrevocably….I could continue with my telling of this story but I think many of you, if familiar with Biblical history, know what came next……


    Maybe a suggestion to the moderators to include and “edit” option for us who are posting as when there are layout problems (which occurred with my posting) and typos, then it is well that we can correct them easily. Without the convenience of an “edit” button, corrections like this will have to do:

    Can I just alert readers to a correction in the typing of the address for my website. It should read:

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