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Jewish Settlements in a Palestinian State

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Jewish Settlements in a Palestinian State (c) David Morris Phillips The Unexplored Option: Jewish Settlements in a Palestinian State David Morris Phillips * I. Introduction With the withdrawal of Israeli settlers and soldiers from the Gaza Strip, increasing attention inevitably has focus ed upon the fate of Israeli settlements on the West Bank, 1 the area of the Palestinian Mandate west of the Jordan River that Jordan captured in 1948 and that Israel refers to as Judea and Samaria. Excluding small outposts constructed without permission of the Israeli military administration 2 and certain disputed neighborhoods within the borders of Jerusalem3, approximately 250,000 * Professor of Law, Northeastern University. This article was presented at faculty seminars at Touro Law School and Northeastern University School of Law. The author would like to thank Darleen Cantelo, Sholom Fine and Stacey Dippong, Northeastern University law students, for their val uable research assistance, and David Kretzmer, John Leubsdorf, Noah Phillips and Dan Subotnik, whose critical yet constructive comments on earlier drafts of the article have immeasurably improved it. The opinions expressed herein are those of the author. 1 See,e.g., Editorial, Not Good Enough , HAARETZ , Mar. 6, 2006, http://www.haaretz.com/hasen/spages/690437.html (urging removal of West Bank settlements); Aluf Benn & Yossi Verter, Olmert to Offer Settlers: Expand Blocs, Cut Outposts , HAARETZ , http://www.haaretz.com/hasen/spages/692632.html (last updated Mar. 10, 2006) (Acting Prime Minister Ehud Olmert, if Kadima Party forms th e next government, intends to remove settlements beyond a certain line, but then to expand settlement blocs within that line); Mazal Mualem, Netanyahu: Poll is Referendum on Olmert’s Pullout Plan , HAARETZ DAILY , http://www.haaretzdaily.com/hasen/spages/692852.html (last updated Mar. 12, 2006); Nir Hasson & Lilach Weissman, Peretz: Labor won’t Waive on Negotiations for Withdrawal , HAARETZ DAILY , http://www.haaretzdaily.com/hasen/spages/692847.html (last updated Mar. 11, 2006) (Labor will not witdraw from West Bank unilaterally, but will remove illegal outposts and compensate settlers who leave West Bank voluntarily). 2 See, generally , Talya Sason, Summary of Opinion Concerning Unauthorized Outposts , Mar. 20, 2005 http: //www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Summary+of+Opinion+Concer ning+Unauthorized+Outposts+ -+Talya+Sason+Adv.htm (hereinafter, the “Sason Report”). 3 A 2004 map prepared by the Washington Institute for Near Policy shows all areas of Greater Jerusalem that fall outside the pre -1967 armistice lines, distinguishing between those areas largely inhabited by Jews, those largely inhabited by Arabs, and those with mixed populations. See http://www.washingtoninstitute.org/mapImages/41de98e058452.jpg (last visited Jan. 5, 2006). One of the neighborhoods that falls outside the pre -1967 lines is Gilo, which lies in the direction of Bethlehem and has been the subject of many attacks. See CNN.com, Bomb kills 19 on Israeli bus , http://archives.cnn.com/2002/WORLD/meast/06/18/mideast.violence/index.html (last visited Dec. 22, 2005 ). The question of what areas of Jerusalem Israel should retain has now resurfaced, with talk of a “unified Jerusalem” under Israeli sovereignty less current than it had been under the Sharon government. 1 Israeli Jewish settlers live in approximately 150 settlements on the West Bank. 4 While the exact amount of territory the settl ements occupy on the West Bank is subject to debate, most authorities place that area as less than two percent of the land mass of the West Bank. 5 Both the agony of the Gaza withdrawal6 and the impetus for establishing a Palestinian state according to the “road map” 7 – the plan adopted by the United States, the United Nations, the European Union and Russia and accepted by the Palestinian Authority See Nadav Shragai, No MoreTalk of Unified Jerusale m, HAARETZ , http://www.haaretz.com/hasen/spages/690895.html (last updated Mar. 7, 2006). 4 See Nadav Shragai, Peace Now: No New West Bank Outposts, But More Settlers in 2005 , HAARETZ DAILY , http://www.haaretzdaily.com/hasen/spages/679476.html (last updated Feb. 2, 2006) (estimate of 250,000 at end of 2005); Mitchell Bard, Facts About Settlements , http://www.jewishvirtuallibrary.org/jsource/Peace/settlements.html (last visited Jan. 9, 2006) (estimate of 246,000 as of August, 2005); B’Tselem, http://www.btselem.org/English/Settlements/Settlement_poplation.xls (visited Jan. 9, 2006) (estimate of 232,718 settlers at end of 2004). Note that Palestinians, who characterize many parts of present Jerusalem (e.g., Gilo) as settlements, state much higher figures. See, e.g., EDWARD SAID , THE END OF THE PEACE PROCESS , introduction at xiii (2000) (“there are about 350,000 Israeli Jewish settlers on Palestinian land”). 5 The percentage depends, to a large extent, upon whet her the references are to the designated municipal borders of a settlement or the built -up area and whether the reference includes road construction ancillary to the settlement. See infra notes 254 -58, 279, and accompanying text. 6 See Israel Ministry o f Foreign Affairs, Paying the Price for Peace, The Human Cost of Disengagement Jul. 28, 2005, available at http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Israels+Disengagement+Plan - +Renewing+the+Peace+Process+Apr+2005.htm . For a pictorial presentation of the agony, see Anat st Balint, Haaretz photographer wins 1 prize in World Press Phot o contest , HAARETZ , http://www.haaretzdaily.com/hasen/spages/681472.html (last updated Feb. 11, 2006) and http://www.haare tz.com/hasen/spages/681483.html (last updated Feb.11, 2006). For the difficulty of the Gaza evacuees reestablishing their lives following the evacuation, see, e.g. , Raffi Berg, Israel’s ‘forgotten’ settlers, BBC News, Nov. 11, 2005, http://news.bbc.co.uk/go/pr/fr/ -/1/hi/world/middle_east/4442106.stm .; Nadav Shragai, Abandoned Comrades , HAARETZ , http://www.haa retz.com/hasen/spages/657298.html (last updated on Dec. 13, 2005)(describing the unemployment, homelessness, illness and other social problems of the evacuees). See also Dan Izenberg, Comptroller Slams Gaza Resettlement Failures , THE JERUSALEM POST , http://www.jpost.com/servlet/Satellite?cid=1139395557407&pagename=JPost%2FJPArticle%2FShowFull (Mar. 7, 2006). 7 Israel Ministry of Foreign Affair s, A Performance Based Roadmap to a Permanent Two State Solution to the Israeli -Palestinian Conflict (Apr. 30, 2003) (hereinafter, the “Road Map”), available at http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/A+Performance - Based+Roadmap+to+a+Permanent+Two -Sta.htm . The Road Map called for the creation of a Palestinian state in certain stages, beg inning in Phase 1 with “Ending terror and violence, Normalizing Palestinian Life and Building Palestinian Institutions.” While Phase 1 was supposed to have been accomplished by May, 2003, it has yet to be accomplished. Since its inception, disagreements o ver the various steps – for example, whether the Palestinian Authority must disband various militant groups before Israel has any obligation to cease settlement construction -- have surfaced. Nonetheless, the specifics of the Road Map have seemed to repl ace the Israel -Palestinian Declaration of Principles (Sep.13, 1993) (hereinafter, the “Oslo Agreement”), http://www.mfa.gov.il/MFA/Peace+Proces s/Guide+to+the+Peace+Process/Declaration+of+Principles.htm , resulting from secret negotiations in Oslo between Israel and the Palestinian Liberation Organization, as the primary reference with respect to the mutual obligations of Israel and the Palestin ians. resulting from secret negotiations in Oslo between Israel and the Palestinian Liberation Organization, as the primary reference with respect to the mutual obligations of Israel and the Palestinians. 2 and Israel, with reservations 8 -- highlights the importance of confronting directly the more contentious issue of whether these settlements preclude a peaceful resolution of the Arab -Israeli conflict. To some – a group that includes not only Palestinians 9 and the governments of other Arab nations, but also most members of the European Union 10 , much of the Americ an press 11 , the United Nations General Assembly 12 , and, occasionally, even the American government 13 – the question hardly merits serious review. Along with the security fence that Israel is constructing to separate most of its cities from the major populati on centers of the West bank, settlements constitute the major obstacle to a peace settlement. Even commentators and scholars usually considered stalwarts in their defense of Israel14 and certain American Jewish groups that would define themselves as pro-Israeli 15 decry the presence and expansion of Jewish settlements on the West Bank. Indeed, the liberal left in Israeli politics seems to blame the settlers, for every offense imaginable, including 8 See Israel’s Road Map Reservations, HAARETZ , http://www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=297230 (May 27, 2003). 9 See Associated Press, Palestinian FM: Settlements threaten chance for Palestinian state , HAARET Z DAILY , http://www.haaretzdaily.com/hasen/spages/651888.html (updated Nov. 30, 2005); Glenn Kessler, Palestinians get Rare Bush Meeting,Policy Complaints are behind Meeting , BOSTON GLOB E, Oct. 12, 2005, http://www.boston.com/news/world/articles/2005/10/12/palestinians_get_rare_bush_meeting?mode=PF (last viewed Feb. 25, 2006). 10 See, e.g., Steven Erlanger, Europeans Rebuke Israeli Jerusalem Policy , N.Y. TIMES , Nov. 25, 2005, at A18. 11 See , e.g. , Editorial, Gaza First, But Not Last , N.Y. TIMES , April 13, 2004, at A24 (late ed.); Editorial, One Step Back in the Mideast , N.Y. T IME S, Mar. 23, 2005 at A22; Editorial, Bush, Abbas Intentions, BOSTON GLOBE , Oct. 21, 2005, at A16. 12 See,e.g., A/RES/60/105,18 January 2006, http://domino.un.org/UNISPAL.NSF/a06f2943c226015c85256c40005d359c/d28e6c316706c0438525 7106006ce8ca!OpenDocument (last viewed Feb. 15, 2006). Other resolutions to the same effect can be accessed at, http://domino.un.org/UNISPAL.NSF/vGA!OpenView&Start=1&Count=150&Expand=121#121 (last viewed Feb.
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