This piece by Nathaniel Berman picks apart the argument commonly used by the Jewish right to justify the legality of the settlement project in the occupied West Bank. Professor Berman is the Rahel Varnhagen Professor of International Affairs, Law, and Modern Culture at the Cogut Center for the Humanities at Brown University. The article appeared just recently here at Tikkun. Berman’s website is here. I have put in bold what to me seems like the crux of his argument. The crux of the crux is the rejection of the principle of terra nullius, replaced by the “recognition of the political rights of non-state peoples, the [sovereign] beneficiary of the trust-like status of occupied territory, in the absence of a legitimate prior [nation-state] sovereign, must be “the people” of the territory” (the interpolations in brackets are my own).
The Settlement Legality Debate by Nathaniel Berman
Editor’s Note: The Spring 2017 issue of Tikkun Magazine is entirely devoted to the 50th anniversary of the Six Days War and the beginning of the Occupation of the West Bank by Israel. It includes a wide range of Israeli and Palestinian voices as well as those from the Jewish and Palestinian Diaspora. If you don’t yet subscribe, do so now at http://www.tikkun.org/subscribe. If you do subscribe,or are a member of the Network of Spiritual Progressives at the $50 or more level (www.spiritualprogressives.org/join) or you havdonated $50 or more this year,and have not yet gotten the new issue in the mail, Duke U. Press promises that it is in the mail already sodon’t worry, it’s coming and it’s powerful. If you “read it at the bookstore” and it is not at your local bookstore, please urge them to carry it–speak to the person in charge of ordering magazines and urge them to carry the magazine (they can contact Ingram book distributors which is now taken over by The News Group TNG.com which can be reached at 866-466-7231).
The Settlement Legality Debate: FAQ
I. Why Now?
The resurgence of debates about legality, particularly the legality of Israeli settlements in the West Bank, has become an unexpected feature of public discussion of Israel/Palestine over the past decade. This resurgence has been primarily the work of two kinds of forces. On the one hand, pro-settler advocates have been asserting that the pervasive international view of the illegality of the settlements is simply wrong. Such advocates range from a 2012 Israeli government “Report on the Status of Building in the Region of Judea and Samaria” (the “Levy Commission Report”), to articles published in the right-wing press, to activists relentlessly advancing such views in social media. On the other hand, the illegality of the settlements has been vigorously asserted by those active in international campaigns critical of Israel, especially the BDS movement. This article will primarily focus on the pro-settler use of the legality argument, evaluating its soundness and considering the contextual significance of its resurgence.
The revival of the legality debate is surprising because it seems, at first glance, at odds with current global developments. To be sure, there was a period, roughly between 1990 and 2003, when international debate about the use of force was pervaded with legal argumentation. In retrospect, it is astonishing how much of the debate about the Iraqi invasion of Kuwait in August, 1990 and the US-led military response in January, 1991, was framed in terms of legal argument. The decade that ensued was something of a golden era for public international lawyers. The conviction that the end of the Cold War meant that the international law governing the use of force could “finally” be implemented, that the Security Council could “finally” play the role for which it was intended, became quite widespread. Even as such hopes became tarnished as the decade continued – most egregiously by the international failure to stop the 1993 Rwanda genocide – international legal discourse remained a key shaper of world opinion about the use of force. Every intervention – or lack thereof – was accompanied by fierce debate about its legality. The 1999 NATO invasion of Kosovo, despite – or perhaps precisely because of – its questionable legality, produced volumes of creative legal discussion.
That period now seems long past, though it may not be possible to identify the precise moment of its demise. Kosovo played a role, as did the decision of the US not to seek Security Council approval for the invasion of Afghanistan. Nevertheless, both of these actions could be plausibly (if not uncontroversially) justified under longstanding doctrines (humanitarian intervention in the former case, self-defense in the latter). But it was the 2003 American invasion of Iraq, and the subsequent, if grudging, acquiescence to it by much of the world, that signaled that international norms about the use of force had lost their power to shape international policy. With the Russian invasion of Crimea in 2014, both of the erstwhile “superpowers” had firmly demonstrated their contempt for such international norms. To be sure, many condemned that invasion in terms of its blatant illegality, but such terms seemed out of touch with the new discursive character of international debate.
In the Israel/Palestine conflict, legal debate has long played a central, if intermittent, role. While I cannot rehearse the entire history here, suffice it to say that the conflict has been decisively shaped by the debate over, and adoption of, such international instruments as the 1922 Mandate for Palestine, the 1947 Partition Resolution, the 1967 Security Council Resolution 242, and so on. But there have been periods when questions of legality seemed more or less irrelevant to ongoing political developments.
In my view, it was the 1993 Oslo agreements and their aftermath that largely encouraged the most recent (if temporary) sidelining of the core legal issues of the conflict, such as the legitimacy of the State of Israel, the right to self-determination of the Palestinian people, legality of the settlements, and so on. The twin recognitions of Israeli statehood and Palestinian peoplehood by Rabin and Arafat in 1993 promised to set aside zero-sum debates over rival, totalizing legal claims. In their stead, Oslo seemed (however briefly) to augur a focus on pragmatic adjustment of interests, the establishment of complementary Palestinian and Israeli societies, and the gradual oblivion of incommensurable claims over the land and its history.
The death of Oslo had both its sudden and gradual dimensions, with causes far too complex to discuss here. The second intifada sealed its demise – even though some of its formal structures persisted, and indeed continue to persist. Yet, this demise was not initially accompanied by a revival of the centrality of the legal debate. This was partly due to the accompanying violence: it seemed that neither legal principles nor pragmatic interests would henceforth be relevant, but only brute force.
However, as ever in this conflict, brute force has not decided matters, and zero-sum ideological battle has again become the order of the day: on one side, the de-legitimation of Israel as such; on the other side, the de-legitimation of any Palestinian claims to the land. Or, to use common shorthand: the advocates of a “one-state solution,” whether that state be Israel or Palestine, have seemed to be gaining the upper hand in shaping international debate, employing legal argumentation to advance irreconcilable claims.
II. What is the Law?
I turn to an overview of the legal issues relevant to the settlements, beginning with the basics. A full legal discussion would take an entire volume (or more); I have striven here to deal with the most central questions.
Israel is a State (in the international law, not the American, sense – i.e., an independent country). Its statehood has been recognized by most other States, and, most importantly, by its status as a Member State of the U.N. If any other State were to use force against its “territorial integrity or political independence …, or in any other manner inconsistent with the Purposes of the United Nations,” it would be violating Article 2(4) of the UN Charter, one of the most sacred norms of post-World War II international law. At a formal legal level, such issues as the “legitimacy” of Zionism, Jewish historical claims to the land, and so on, are simply irrelevant to the legal status of the State of Israel.
The Palestinians, for their part, have been recognized as a “people” with the right to “self-determination” by the U.N., most States, and the International Court of Justice [the “ICJ”, a.k.a, the “World Court”]. Under General Assembly Resolution 2625 (1970), most of whose norms are considered by international legal authority as binding, the right to self-determination can be implemented in one of three ways: “the establishment of a sovereign and independent State, the free association or integration with an independent State, or the emergence into any other political status determined by a people.” As a “people,” the Palestinians thus possess the right, as yet unimplemented, to choose one of these three options. There is a strong international preference that the right to self-determination be implemented through independent statehood, as expressed in state practice during decolonization and in General Assembly Resolution 1514 (1960), the predecessor to 2625 and the seminal document in the ripening of self-determination into a general international legal right.
The territorial dimension of Israeli statehood and Palestinian self-determination requires discussion of at least two additional legal issues. The first concerns the status of the “Green Line,” the border defining Israel under the 1949 Armistice Agreements between Israel and its neighbors, particularly Egypt and Jordan. The Agreements explicitly declared that they were not decisive as to the parties’ legal claims, including territorial claims. Nonetheless, the years after 1949 saw a growing international recognition, at least de facto, of the Green Line as the border of the State of Israel. The precise moment when this de facto recognition acquired legal stature may be hard to pinpoint, though it seems to have largely occurred. Thus, in its 2004 decision on the Israeli security wall, the ICJ implicitly assumed the de jure status of the Green Line – particularly in its proclamation that the Geneva Conventions’ provisions for occupied territories apply to “Palestinian territories … east of the Green Line,” implicitly declaring them inapplicable to territories west of the Green Line because they lay within the sovereign territory of Israel.
This statement by the ICJ brings us to the legal term, “occupation.” Recent pro-settler advocates insistently deny that this term can be applied to the West Bank. They contend that “occupation” only applies when territory is wrested by one sovereign State from another sovereign State. The West Bank has not had an internationally recognized sovereign since the long defunct Ottoman Empire. The British, who succeeded the Ottomans in ruling Palestine, were merely a “Mandatory Power,” a kind of trustee, administering the territory on behalf of the League of Nations. Jordan, which conquered the West Bank in the 1948 war, was widely condemned for its subsequent annexation – an annexation recognized formally only by Britain and perhaps, at an informal or de facto level, by the U.S. The annexation was initially condemned as illegal by the Arab League, which nearly expelled Jordan over the issue.
In 1968, Yehuda Blum, an Israeli international legal scholar and diplomat, offered what was perhaps the first, and most influential, legal argument for an Israeli claim to the West Bank: the theory of the “missing reversioner.” Under this theory, the full set of international rules governing “belligerent occupation” did not apply due to the absence of a legitimate prior sovereign to which the territory could “revert.” Blum, however, did not go so far as to deny that the term “belligerent occupation” applied. Rather, the “missing reversioner” meant that only those rules “intended to safeguard the humanitarian rights of the population” applied, and not those “protecting the reversionary rights of the legitimate sovereign.” Current proponents of the Israeli claim, however, have assertively taken the step from which Blum refrained: the denial of the very existence of an “occupation.”
In any case, the relevance of the “missing reversioner” to the international law of occupation has been soundly rejected by the International Court of Justice in its 2004 decision (as well as by almost all other authorities), as I have noted above. The ICJ based its rejection on the purpose of the relevant provisions of the Geneva Conventions, the travaux preparatoires (records of discussions among the parties to the Conventions), subsequent confirmation by the views of the parties to the Conventions, and many Security Council resolutions – the standard methods used to determine the meaning of a treaty’s provisions. Moreover, as I show below, the Court’s declaration that all the Geneva Conventions provisions governing belligerent occupation apply to the West Bank is amply supported by the overall policies underlying those provisions, as well as other legal developments, above all the right of self-determination.
(I note that I do not have the space here to discuss the legality of the occupation as such, but only that of the legality of settlements in any occupied territory. A plausible argument could be made that the inception of the occupation was legal in 1967 as an exercise of the right of self-defense, but that, as Aeyal Gross has recently shown, the question remains as to whether it has become illegal due to the manner in which it has been conducted.)
The core argument for the illegality of the settlements is based on one of the primary goals of the rules governing belligerent occupation: the obligation of the occupier not to change the character of the occupied territory beyond that which is required by strict military necessity. This goal underlies the basic rule about occupation codified in Article 43 of the Hague Regulations of 1907: the requirement that the occupying State “take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” This policy also informs the prohibitions on forcing the inhabitants to swear allegiance to the occupying State (art. 45) and on the confiscation of private property (art. 46), as well as the rules about public property: “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct” (art. 55). Articles 46 and 55 leave no land upon which an occupier could build any civilian settlement, let alone one of a permanent character.
To be sure, the 1907 Hague Regulations seem to assume the existence of a sovereign “reversioner” and to see the role of the occupying State as a kind of trustee for that sovereign until the negotiation of a peace treaty. The “missing reversioner” theory would declare all provisions informed by this assumption to be inapplicable to the West Bank. And, indeed, one might very well ask: for whom is the occupying State a trustee in the absence of a legitimate sovereign, for whom is it obligated to observe the rules of usufruct in relation to public property, on behalf of whom is it forbidden to impose its own legal framework – and, in general, whose rights is it supposed to safeguard?
The answer under current international law is clear: the beneficiary of all these rules is the population, or rather, “the people” of the occupied territory. Recall that even Blum affirmed that, in the absence of a legitimate prior sovereign, those rules designed to safeguard the “humanitarian rights of the population” are applicable to the West Bank, thus acknowledging that the absence of a “reversioner” did not entail the absence of a beneficiary of at least some of the rights granted by the law of occupation. To be sure, Blum distinguished between such “humanitarian rights” and political claims – the latter, under his theory, inapplicable by virtue of the absence of a legitimate prior sovereign. And Blum’s position would have been plausible in 1907.
But Blum’s distinction is no longer valid under current international law, due to the right of self-determination, recognizing the political rights of “peoples” not yet organized into a sovereign State, and the infusion of international law generally with the values it embodies. Under this recognition of the political rights of non-state peoples, the beneficiary of the trust-like status of occupied territory, in the absence of a legitimate prior sovereign, must be “the people” of the territory. It is on its behalf that the occupying State must govern the territory, refrain from unnecessary legal changes, safeguard public property, and so on.
The pro-settler (and indeed pro-annexation) argument – that the absence of a legitimate prior sovereign makes the territory available for appropriation by the occupier – thus completely ignores the gradual emergence into international law of the right of political self-determination. While the self-determination of peoples may have only fully ripened into a general international legal right after 1960, the principle informed much of the post-World War I redrawing of the boundaries of Europe. Woodrow Wilson gave it one of its earliest and most eloquent formulations in his 1918 “Four Principles” speech, when he declared that “peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game” – a principle which runs directly counter to the “missing reversioner” theory.
Indeed, the concept of pre-20th century international law that the right of self-determination directly rejects is the close ancestor of the “missing reversioner” theory: that of “terra nullius,” land that belongs to no one and therefore available for appropriation. This notion had a long and ignoble career in the history of imperialism, whose phases were sketched by ICJ Judge Ammoun in the 1975Western Sahara Case:
(1) Roman antiquity, when any territory which was not Roman was nullius.
(2) The epoch of the great discoveries of the sixteenth and seventeenth centuries, during which any territory not belonging to a Christian sovereign was nullius.
(3) The nineteenth century, during which any territory which did not belong to a so-called civilized State was nullius.
The ICJ thoroughly rejected the notion of terra nullius in the Western Sahara Case, declaring that “territories inhabited by tribes or peoples having a social and political organization” cannot be regarded legally as terrae nullius. Since all “tribes” and “peoples” have “social and political organization,” the Court effectively declared that only uninhabited territory could possibly be nullius. The “acquisition of sovereignty” over any inhabited territory, therefore, cannot be “effected unilaterally through ‘occupation’” but, rather only through “agreements concluded with local rulers,” whether or not such local rulers were the representatives of States.
I now turn to the key legal rule specifically governing settlements, Article 49(6) of the Fourth Geneva Convention: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” The meaning of this provision has been fiercely contested in the West Bank context. Pro-settler advocates argue that it refers only to forcible transfers of population, and relate it to the mass Nazi deportations to concentration camps. This interpretation treats the two terms, “deport” and “transfer” as synonymous. The authoritative 1958 commentary on the Geneva Conventions by the International Committee of the Red Cross [“ICRC”], however, gives a very different reading:
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.
In the words of the ICJ in 2004, the provision prohibits “not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory.” This interpretation, endorsed by the ICRC, the ICJ, and most international lawyers, is consistent with the overall policy framework of the law of occupation, which is that the occupying State must refrain from taking steps to change the character of the occupied territory – and attempts to alter its demographic character through settlements, and a fortiori any unilateral steps toward annexation, run directly counter to that policy.
III. What about San Remo?
One of the most surprising features of recent pro-settler legal argumentation is its preoccupation with three, nearly century-old, texts culminating in the establishment of the League of Nations Mandate for Palestine: the Balfour Declaration (1917), the San Remo Resolution (1920), and the Mandate for Palestine (1922). These documents are of variable legal significance. The British Balfour Declaration, which “view[ed] with favor the establishment in Palestine of a national home for the Jewish people,” was a unilateral declaration of policy by a State engaged at that time in a military struggle for the control of Palestine. Standing alone, it had no international legal significance. The San Remo Resolution was an agreement between four States (Britain, France, Italy, and Japan), declaring their intention to accept certain terms to be incorporated in the Mandates for Palestine, Syria (apparently including Lebanon), and Mesopotamia (soon to be called Iraq). The four States agreed that the Mandate for Palestine would be granted to Britain which would be “responsible for putting into effect the [Balfour] Declaration.” Again, the Resolution was a statement of policy by four States, but had no independent legal significance. Finally, the Mandate for Palestine, a binding international treaty between Britain and the League of Nations, adopted the Balfour Declaration in its preamble and provided for a number of detailed provisions for its implementation. Of these texts, only the Mandate, an international treaty, was legally binding – making the current emphasis by pro-settler advocates on the Balfour Declaration and the San Remo Resolution rather inexplicable from a legal point of view.
In any case, even the Mandate has lost all current legal relevance. The Mandate and its precursor texts were written in a radically different time, before a vast array of radical factual and legal changes in the international and regional situation. Above all, these texts were adopted before the establishment of the internationally recognized State of Israel. The establishment of the State did more than fulfill the goal of the “establishment in Palestine of a national home for the Jewish people”: it over-fulfilled it – since the vague term “national home,” a term with no precise legal meaning in 1917 or any prior or subsequent time, was chosen precisely to avoid promising Jewish statehood. A comparison of the Palestine Mandate with all other post-World War I treaties make this clear: when the intention was to guarantee independent statehood to peoples, the texts said so explicitly.
One could quibble further about the language of the Balfour Declaration (for example, it seems to promise only that the “national home for the Jewish people” will be somewhere “in Palestine,” rather than providing for the constitution of Palestine as a whole as a Jewish national home). However, the establishment of the State of Israel, with its over-fulfillment of the “national home” policy, suffices to render the related provisions of the Mandate obsolete. Under a long-established rule governing international treaties, “rebus sic stantibus,” a “fundamental change of circumstances” that alters the basic conditions under which treaty provisions were adopted nullifies their binding character.
Two other provisions are often mentioned by pro-settler advocates. The first is the provision in the Mandate calling for Britain to “encourage … close settlement by Jews on the land.” Again, with the lapse of all the “national home” provisions by operation of rebus sic stantibus, this provision, too, is obsolete. Indeed, the establishment of an internationally recognized State of Israel renders the obligation of a foreign Mandatory Power to “encourage … close settlement” a bit absurd.
The second provision is Article 80 of the U.N. Charter. Article 80 is part of Chapter XII of the Charter, providing for the establishment of an International Trusteeship System to replace the League of Nations Mandates. Article 80 provides that “nothing in” Chapter XII “shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments.” Pro-settler advocates, drawing on an article written by Eugene Rostow in 1978, view this provision as maintaining all the provisions of the Palestine Mandate in relation to any part of the territory that has not been “allocated” – a term they use to mean territory not yet granted to an internationally recognized sovereign.
This argument fails on at least two grounds. First, the operation of rebus sic stantibus, rendering obsolete the Mandate’s Jewish national home provisions, is not a result of Chapter XII, and thus the restrictions of Article 80 are simply not pertinent. Second, the ripening of self-determination into an international legal right has not only changed the legal situation (reinforcing the rebus sic stantibus argument) but also signifies that the territory cannot be considered “unallocated” simply because there is no recognized sovereignty over it. In any case, all such arguments have been implicitly rejected by the ICJ, almost all international lawyers, and the international community of States.
IV. What about Resolution 242?
Another old debate which pro-settler advocates have resurrected concerns the meaning of Security Council Resolution 242, adopted in November, 1967. Among other things, the resolution calls for “withdrawal of Israel armed forces from territories occupied” during the Six Day War. Pro-settler advocates argue that the absence of a definite article before the word “territories” signifies that the resolution did not require Israel to withdraw from all the territories occupied during the war and that this provision could be fulfilled by withdrawal from any of the occupied territories – for example, by the withdrawal from Sinai under the 1979 Camp David Accords. Such arguments often involve comparison of the French and English texts, fine points of English and French grammar, and statements by various people involved in drafting the resolution. The pro-settler advocates also argue that the resolution thus legitimates Israeli settlements.
These arguments are rather baffling. Even if the grammatical point is correct (which is by no means certain), the resolution must be interpreted in light of general international legal rules about occupied territory. Under these rules, territory occupied during war cannot be unilaterally annexed. This prohibition is, indeed, stated in Resolution 242 itself, whose second preambular paragraph “Emphasiz[es] the inadmissibility of the acquisition of territory by war…”. Even if the pro-settler interpretation of “territories” is correct, the resolution would simply be stating that in a negotiated resolution of the conflict, the parties would be free to consent to changes to the pre-war boundaries. This reading renders compatible the second preambular paragraph and the (controversial) interpretation of the word “territories.” I also note that the resolution makes no mention of settlements at all.
In any case, the resolution must be interpreted in light of later legal developments, above all, by the near-universal recognition of the Palestinians as a “people” with a right to self-determination. The resolution makes no mention of Palestinians, who appear only as anonymous “refugees.”
IV. What about Howard Grief?
One of the frustrating features of the pro-settler legality arguments is their seeming indifference to the basic rules governing the determination of the state of international law. They repeatedly point to the existence of a small number of legal writers who have argued for the legality of the settlements, ignoring the thousands who have held the contrary view, as well as the authoritative decision-makers who have also so held (almost all States, the U.N., the ICJ, the ICRC, etc.). They argue for the superiority of the arguments of their chosen writers and contend that, at the very least, the issue is “disputed” and that illegality cannot be viewed as conclusively established.
The pro-settlement legal writers cited are a heterogeneous group – they include some recognized international lawyers, as well as legal scholars in other fields who dabbled to some extent in international law; the careers of some included official Israeli government positions. One of the latter prominently mentioned by pro-settler advocates is Howard Grief, an otherwise obscure Canadian-born lawyer who advised a cabinet minister during the Shamir government, who seems to be responsible for their obsession with the San Remo Resolution. Almost all are individuals clearly identified with the right-wing or even far-right of the political spectrum – including Howard Grief, whose petition to the Israeli Supreme Court to declare the illegality of the Oslo Accords was summarily dismissed as “a political position.”
Whatever the variable credentials of this group, ad hominem arguments are beside the point. International law is not a natural science in which something may be objectively true even if the vast majority of authorities fail to recognize it as such. Nor is it a moral inquiry in which (at least according to some moral theories) a value may be superior to others despite majority thinking. Nor is it concerned with a religious inquiry into the divine intent of a holy scripture. On the contrary, international law defines itself as concerned with consent of States, consensus or near-consensus of scholars, and authoritative institutional interpretations of texts. According to the widely accepted categorization (codified, among other places, in the Statute of the International Court of Justice), the sources of international law are: 1) treaties ratified by states; 2) “customary international law” – widespread State practices that “ripen” into legal rules by virtue of their acceptance as such by most States (the latter known by the Latin phrase, “opinio juris”); and 3) “general principles of law” – principles of the domestic law of States that are so widespread they become transformed into international legal rules.
Moreover, since many of the disagreements here concern the interpretation of treaties, we should note that the principle governing the formation of customary international law – which may be summarized in the formula, “practice + opinio juris” – reappears in only slightly different form in relation to the interpretation of potentially ambiguous legal texts. As stated in the Vienna Convention on the Law of Treaties:
There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
The contention of the wrongness of the overwhelming consensus about the illegality of settlements – shared by States, Courts, and the vast majority of international lawyers – thus misunderstands the nature of international law. One may, of course, oppose international law in whole or in part. But to treat it as though it had a timeless truth, which a lone observer or small group of observers could discover independently of such a consensus is simply a misunderstanding.
V. The Debate as a Tragic Symptom … and One Last Canard
As I noted at the outset, my general view is that this strange resurgence of the legal debate is a symptom of a growing loss of faith in a possible resolution of the conflict within a framework that would give at least partial expression to each of the competing nationalist aspirations. But it also reflects an even more disturbing phenomenon. As many observers have pointed out for years, the two-state solution – which still seems to many, including me, to provide the only framework that could plausibly bring about a peaceful and just resolution of the conflict – is belied by a “one-state reality” for which it serves as an alibi. Moreover, as the occupation looks ever-increasingly permanent, the legal category begins to look increasingly detached from reality, because permanence is the very condition the legal rules intend to obviate. And, yet, for all the reasons pointed out above, once “occupation” becomes obsolete, the alternative is not legitimate Israeli sovereignty over the West Bank, as the pro-settler advocates claim. Rather, it can only be replaced by terms like “colonialism” and “apartheid,” historical categories that describe systems of governance in which settlers and the majority population are governed by two legal systems, and in which only the former have citizenship and civil and political rights. In the context of a “one-state reality,” the campaign against the applicability of the legal descriptor “occupation” is thus chilling indeed.
One last, unpleasant canard must be mentioned here. Pro-settler advocates contend that those who think all settlements must be evacuated are calling for the West Bank to be “judenrein,” thus associating opponents of settlements with Nazis. This is wrong, indeed obscene, on so many grounds, and in so many ways, that another essay would be required to express them all. Since my focus here is on international law, I limit myself to one point only. The settlement project may not be honestly described as the effort by individual Jews to rent or purchase homes and whose rights to do so should be protected by something like anti-discrimination law. The settlement project involves the collective movement of portions of the civilian population of a State into territory under military occupation by that State. The project was initiated and remains directed by governmental and non-governmental leaders whose declared intention was, and is, to facilitate the eventual imposition of Israeli sovereignty over the territory in whole or in part. The project was largely (though not exclusively) initiated, and remains largely led, by those guided by a nationalist-messianist ideology, which views the retention of the land by the State of Israel and/or the Jewish people to be mandated by divine will. The project is maintained with the backing of the full might of the Israeli military and by massive governmental expenditure on housing and infrastructure. In short: the core legal issues do not concern housing discrimination or private property – and even less the moral evaluation of individual settlers. If some settlers are violent and racist extremists, and many simply indifferent to the human reality of Palestinians as individuals and as a people, others are ordinary families drawn to the West Bank by governmental economic incentives, some are apolitical spiritual exemplars, and there are even a few, like the late Rabbi Menachem Froman, who are genuine peace-seekers. The legal issues concern the actions of a State bound by international rules governing territory occupied during armed conflict, rules that prohibit moves toward the unilateral imposition of sovereignty on such territory and subordination of its population, of which the settlement project is the most flagrant form.