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Elliot Leven


By Elliot Leven, January 24, 2013


[Editor's note:  Elliot Leven's piece below is a response to David Matas's article "Settlements and Peace." Matas's article is reprinted in full at the end of Leven's article].


by Elliot Leven, Jan 24, 2013

Israel should avoid building new settlements in the West Bank, not because of international law or abstract moral obligation, but simply out of long-term self-interest.

David Matas has a brilliant academic mind and he is a skillful debater. Mr. Matas correctly points out that, “in principle” there is no reason why the presence of Jews in the West Bank should be a problem. He is correct. In principle, no nation state should restrict citizenship on ethnic or religious grounds. In principle, there is no reason why a future Palestine based in the West Bank and Gaza should not include some Jewish citizens, just as Israel now includes many Arab citizens. Peaceful, multicultural nations like Canada rejoice in the ethnic and cultural diversity of their citizens.
The reality is that the Middle East is neither peaceful nor multicultural, and that ain’t gonna change in the foreseeable future.  
The reality is that the Israeli and Palestinian people are at war. The war waxes and wanes. Things are currently pretty quiet in the West Bank. However, the reality is that most Israelis profoundly distrust Palestinians, and most Palestinians profoundly distrust Israelis. That won’t change in the short-term future.
Perhaps, in the distant future, Israelis and Palestinians might actually cooperate as closely as Canada and the United States cooperate today. If and when that happy day arrives, some Jews will probably choose to live in various West Bank (or Gaza) locations under Palestinian rule, with the warm consent of their Palestinian neigbours.
But nations do not jump directly from a state of war to a state of close friendship. The reality is that almost all wars end with some form of cease-fire. The parties still hate each other, but they agree that it is in their mutual self-interest to stop shooting. If the parties are lucky, the cease-fire holds and the parties gradually grow to hate each other a bit less. The initial peace is a “cold peace”. Over many, many years, the hatred might eventually be replaced with friendship.
For example, England and France were at war, on and off, for centuries. By the start of the 20th century, the two nations were friends and allies. The change happened gradually, over the centuries, with both parties making compromises along the way (for example, England used to have territorial claims on parts of France).
If Israel really wants to make peace, as opposed to simply scoring debating points, it will have to make some painful compromises. The Palestinians will also have to make painful compromises. Other than the few wars that end in absolute surrender, that is the way wars end.
The terms of the peace will have to be mutually agreed upon. Realistically, the terms will probably be something like those set out in the 2003 Geneva Initiative – the unofficial “peace treaty” hammered out by influential Israeli and Palestinian private citizens. The 2003 Geneva Initiative is not carved in stone. Israeli and Palestinian negotiators will eventually want some changes. However, the Initiative does give us a fairly good window into what peace might eventually look like. The Initiative would allow Israel to keep 34 settlements, and would require it to abandon the rest.
Peace is in Israel’s own self-interest. If Israel wants to be pragmatic, as opposed to ideological, it will not build any new settlements (or expand any existing settlements) other than 34 listed in the Initiative. Yes, in principle that might be a shame. But in the real world, that is one of the painful compromises that will pave the way towards peace. 


by  David Matas, posted Jan 14, 2012 

It is common to hear that Israeli settlements on the West Bank are an obstacle to peace. The Israeli announcement of an intention to expand settlements in the West Bank following on the UN vote to give the Palestinian Authority non-member observer status at the United Nations produced a new round of condemnations of these settlements.

Yet, objectively, what is the problem? Why should the settlements be an obstacle to peace?

The Palestinian Authority, to be sure, does not like them. They have become an obstacle to negotiations because the Palestinians have insisted on a freeze on the settlements as a pre-condition for returning to the peace negotiation table. However, all that would be necessary to remove that obstacle would be for the Palestinian Authority to drop the pre-condition. Why is it there?

The current global round of condemnation of settlements hooks onto the Palestinian Authority objection, asserting that the leadership of the Authority is moderate and should be encouraged. That form of condemnation though is derivative. If the Palestinian Authority had no objections to the settlements, the friends of the Palestinian Authority would have none either.

If one goes beyond the fact of objection to the reasons for the objection, they are threefold. One is legal hocus pocus, a misuse of terminology.

The Geneva Conventions on the Laws of War prohibit transfer of nationals of an occupying state to the territory of an occupied state. Israel is labelled an occupier and the settlements a transfer.

It is debatable whether Israel can be considered an occupying state since it has the same status at international law in relation to the West Bank as Jordan did before 1967 and Jordan was never considered an occupier. In any case, the Geneva Conventions prohibit forcible transfer, not voluntary movement. The Government of Israel has not forced the settlers to move to the West Bank.

The second objection is that the settlements create facts on the ground and divide up Palestinian territory. This objection assumes that, when we get to a negotiated two state agreement, all the territory on which the settlements sit would become part of Israel. However, that is not necessarily so, not even likely so. That has never been the negotiating position of Israel in the many negotiations which have already taken place.




The third objection is that the settlements make the West Bank and Israel an apartheid state. Settlers live apart from Palestinians and are surrounded by security.

This form of criticism is an inversion. Settlers are attacked. They set up defence mechanisms, security barriers, check points. If the attacks stopped, the self-defence separation would also stop.

It is closer to reality to accuse the Palestinian Authority of apartheid. Arabs live in Israel proper in safety. It is impossible for Jews to live in the West Bank except under armed guard. When Israel pulled out of Gaza, the Jews who lived there had to be evacuated for their own safety.

The very label "settlements" beclouds the reality of the situation. They would be better and more accurately described as Jewish neighbours. The objection to the settlements is an objection to having Jewish Israeli neighbours.

It is the objection to the settlements, not the settlements themselves which are an obstacle to peace. The objection to the settlements is an objection, in another form, to the existence of a Jewish state in the Middle East. Anti-Zionists do not want the state. And they do not want the nationals of such a state in their midst.

As of September 2012, Israel's population stood at about eight million. The Israeli Jewish population makes up about six million or about 75%. The Arab population is about 1.6 million or about 20%.

As of July 2012, the West Bank consisted of about 2.6 million people. Of that population, the estimate of the settler population, for December 2010, is about 328,000. The settler population is about 12.6% of the West Bank.

So the Jewish population in the West Bank both in absolute and percentage terms is considerably less than the Arab population of Israel. In principle, there is no reason, other than Palestinian intolerance of Jewish neighbours, why the presence of Jews in the West Bank should be a problem.

The existence of the settlements is a litmus test for peace, but not in the way commonly described. We will not get to peace when the settlements are frozen or gone. Even if that should happen, it would amount to appeasement, emboldening the anti-Zionsts.

We will get to peace only when the settlements are accepted, even welcomed. Only when Palestinians are ready to accept Jews as their neighbours will there be peace in the Middle East.



David Matas is senior honorary counsel to B'nai Brith Canada. He is an international human rights lawyer based in Winnipeg, Manitoba. This article was first published in the Jewish Tribune.

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