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Home , Ariel (city), Gershom Gorenberg, Israeli settlement, Sasson Report

Israel & America, Unsettled

BEHIND THE SETTLEMENTS ’s settlements now sit on the wrong side of Zionist history.

Daniel Kurtzer

AFP/Getty Images

4 Th e Am e r i c a n In t e r e s t riel Sharon was considered the godfa- all of the unauthorized outposts that had ther of the Israeli settlements move- been established since Sharon became Prime A ment. His ardent support of settle- Minister in March 2001. ments construction and the legitimacy he lent Sharon’s motives in asking Sasson to pre- to the strategic argument for settlements as a pare the report remain unclear. Because Gaza means of enhancing Israeli security were vital disengagement was his priority, it was widely to the success of the enterprise, particularly understood that the government would not in the years after he left the Israeli military want to waste its political capital in disman- for politics. Sharon’s basic argument revolved tling the outposts at the same time. Whatever around security. During my time as U.S. Am- his motives, however, Sharon must have been bassador to Israel, Sharon would often hold shocked when Sasson delivered her report in forth on the rationale for and his own role in 2005. After meticulous research, Sasson out- the planning of new settlements. lined systematic and systemic illegalities and But Sharon was also a multi-dimensional misconduct on the part of the government in politician whose political twists and turns support of settlement outpost activity. Indeed, confounded even his supporters. One evening the indicted an array of Israeli in his office he expounded on his role in es- official behavior, spread over many years. tablishing the Qatif bloc of settlements in the Sasson found that the themselves . Sharon explained to me the secu- had in some cases made their way into gov- rity rationale for implanting an Israeli pres- ernment offices responsible for various as- ence there: It would separate the Palestinian pects of settlement activity, including the population in Gaza from . He boasted housing ministry, or they had found allies of the political maneuvering he employed to ready to circumvent the law, even lawyers get the project through the Cabinet. Now, to make legal what clearly was not. Budgets what really made this conversation so inter- were redesigned to divert funds to the out- esting is when it took place: late 2004, name- posts. Indeed, the pattern of outpost activity ly, after Sharon had decided to withdraw all was transparent and patently illegal: Settlers settlements and settlers from Gaza. would stake an unauthorized claim to a piece Even more interesting was Sharon’s deci- of land and bring in caravans in which to sion in 2004 to ask Talya Sasson, an Israeli live. Shortly after that, the authorities would Justice Ministry official, to investigate the establish linkages to electricity and other in- legal status of outposts. By frastructure, including paving some roads. In that time, there were an estimated 87 such short order, the “illegal” or unauthorized out- outposts that had been set up by settlement post was being treated to essentially the same activists outside the Israeli government’s legal level of government services and support en- framework for approving such activity. Since joyed by settlements that had gone through the mid-1990s, successive Israeli governments the formal processes of approval. In Sasson’s had adhered to a policy of not authorizing the words: establishment of new settlements. In response, settlement activists had taken to creating The “engines” behind a decision to establish their own “facts on the ground”, to use an old outposts are probably regional councils in and well-known Moshe Dayan phrase. Under , and Gaza, settlers and activ- pressure from the on this issue, ists, imbued with ideology and motivation Sharon promised President George W. Bush to increase Israeli settlement in the Judea, at the Aqaba summit meeting in May 2003 Samaria and Gaza territories. Some of the that the Israeli government would dismantle officials working in the Settlement Division of the World Zionist Organization and in Daniel Kurtzer, U.S. Ambassador to Israel from the Ministry of Construction and Housing 2001 to 2005, is visiting professor in Middle East cooperate with them to promote the unau- policy studies at the Woodrow Wilson School of Pub- thorized outposts phenomenon. After the lic and International Affairs, Princeton University. mid nineties, these actions were apparently

Sp r i n g (Ma r c h /Ap r i l ) 2010 5 Israel & America, Unsettled

inspired by different Ministers of Housing, ties, regional councils in Judea, Samaria and either by overlooking or by actual encour- Gaza and settlers, while falsely presenting an agement and support, with additional sup- organized legal system. This sends a message port from other Ministries, initiated either to the IDF [Israeli Defense Forces], its sol- by officials or by the political echelon of each diers and commanders, the Israeli police and Ministry.1 police officers, the community and the public. And the message is that settling Sasson pulled no punches, delivering a stinging in unauthorized outposts, although illegal, is indictment against the legal infrastructure of a Zionist deed. Therefore the overlook, the the state and the army: “wink”, the double standard becomes it. This message has a very bad influence—both on Therefore it seems that violation of the law the IDF and on the Israeli police. became institutionalized. We face not a felon The establishment of unauthorized out- or a group of felons violating the law. The posts violates standard procedure, good gov- big picture is a bold violation of laws done erning rules, and is especially an ongoing by certain State authorities, public authori- bold violation of law.2

The unpleasantly explo- Getty Images sive nature of Sasson’s report and the diversion of the gov- ernment’s attention to the Gaza disengagement com- bined to consign the outpost report to a relatively forgot- ten place in the archives. Nothing was done to address or correct the systemic abuse of power and violations of law. Since 2005, fewer than a handful of outposts have been evacuated—often to be repopulated within days— and an even more pernicious process has begun to “legal- ize” some of the outposts ex post facto. The most note- worthy pending case involves one of the earliest and larg- est outposts, Migron, which appears headed toward be- ing legalized and integrated into the nearby settlement of Adam. Sasson’s report and re- search did not cover those settlements authorized le- gally by the Israeli govern- ments over the years since the autumn of 1967; that Talya Sasson arrives at a cabinet meeting after submitting was not her mandate. But her report on illegal Jewish settlements. there is substantial reason to

6 Th e Am e r i c a n In t e r e s t Behind the Settlements

believe, and some evidence to prove—as not- settlements in Judea & Samaria.”5 Weissglas ed below—that similar illegal and unauthor- specified that the Israeli government would ized activities by settlers and their supporters provide me with the timetable of outposts to within the bureaucracy have been occurring be evacuated and that Israeli officials of the with regularity in that domain as well. appropriate level and authority would sit with me to work out an agreement on the outer t about the same time that Sasson had construction line of settlements. Abeen tasked with writing a report on out- The Israeli government never produced a posts, Baruch Spiegel, a recently retired IDF list or timetable of outposts to be dismantled. brigadier general, was asked by the Israeli But the and I did conduct a dialogue government to engage with me in an effort to over several months whose purpose was to de- define the outer “construction line” in settle- fine a line around the built-up areas in each ments; if such a line could be agreed upon, settlement, beyond which Israel would agree the American government would not object not to undertake any further settlement ac- to additional construction there. This effort tivity. Weissglas and I held many discussions derived from three previous interactions be- on this issue, both in his office in tween the American and Israeli governments and at the American Embassy in . We on the question of settlements. In 2003, secret never reached agreement on anything, even on talks between then-Deputy National Security which settlements should be discussed first. Advisor Steven Hadley and Sharon had re- Part of our problem was the absence of agreed sulted in a draft set of principles governing data on which to assess activity within settle- future settlement activity: (1) No new settle- ments. I had classified American information ments would be built; (2) no Palestinian land that I could not share with Weissglas or use would be expropriated or otherwise seized for in negotiations, and Weissglas averred that he the purpose of settlement; (3) construction did not have authoritative Israeli information within the settlements would be confined to on the extent of Israeli settlement activity in “the existing construction line”; and (4) pub- the West Bank. It was then that Spiegel was lic funds would not be earmarked for encour- asked by the Israeli government to collect the aging settlements.3 At this time, May 2003, data so that the government could make deci- the meaning of “the existing construction sions on a construction line. line” was left vague. Spiegel and I held numerous meetings even On April 14, 2004, as an expression of U.S. while he embarked on an intensive effort to support for Israel’s readiness to evacuate the collect data on the settlements. I should note Gaza settlements, President George W. Bush that Spiegel, in company with Talya Sasson, is gave a letter to Sharon that conveyed U.S. one of the most honest, meticulous and hard- support of an agreed outcome of negotiations working public servants whom I have ever in which Israel would retain “existing major met. Both individuals are people of integrity Israeli population centers” in the West Bank who worked diligently to gather all the facts “on the basis of mutually agreed changes.”4 before reaching conclusions. Knowing this This letter left vague what the U.S. govern- about Spiegel made it easier for me to accept ment meant by “existing major Israeli popula- the long process in which he was engaged to tion centers.” In an effort to achieve clarity on collect information from various Israeli gov- these points and to convey Israel’s assurance ernment and military offices, and to conduct that it would dismantle the unauthorized out- aerial and ground surveys so that he would posts set up during Sharon’s tenure as Prime know precisely the details about which we Minister, Sharon’s adviser Dov Weissglas gave were supposed to negotiate. then-National Security Advisor Condoleezza Spiegel and I used these months of prep- Rice a letter that read: “Within the agreed aration to try to reach agreement on some principles of settlement activities, an effort ground rules and principles for the negotia- will be made in the next few days to have a tions. For example, we discussed whether the better definition of the construction line of construction line around “built-up areas”

Sp r i n g (Ma r c h /Ap r i l ) 2010 7 U.S.: 202-383-6064 EUR: 45 86 14 55 60 [email protected] © 2009 MCT Information Services. Reprint with permission only. The credit "MCT" must appear with all uses of this graphic image.

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20090804 West Bank update

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DETAIL AREA Jenin 50 km

50 miles Med. Sea Gaza

Tulkarem

EGYPT ISRAEL Qalqiliya

Israeli settlements Palestinian Authority control (full or partial) (All other territory under Israeli control) Barrier completed or under construction (as of February 2008) WEST BANK Barrier approved or pending approval

Ramallah

Modiin Illit Jericho 43,875 population

East Jerusalem , which Israel annexed after the 1967 War, today is home to West Jerusalem more than 190,000 Jewish settlers Ma‘ale Adumim 35,750 population 36,141 population

West Bank/East Jerusalem Population 2.9 million Jewish (settler) 17% Source: B’Tselem, Palestinian Foundation for Middle East Peace, , Ir Amim, , 83% Palestinian Central Bureau of Statistics Graphic: Adam Zoll and Steve Layton, Chicago Tribune © 2009 MCT

5 km 5 miles

8 Th e Am e r i c a n In t e r e s t Behind the Settlements

should be limited to built-up living areas, or in Israel this past August and asked about the whether it should include the agricultural and Haaretz report. He confirmed that the rea- industrial buildings within settlements, or son he had never shared the settlements data even a gas station at the entrance to a settle- with me was that the data showed systematic ment on the highway. The implications of violations of Israeli laws and regulations—not these different criteria were enormous. In one something he was proud of, but certainly not case, an agreement to limit construction to something his superiors believed ought to be the existing built-up living area would leave shared with the Ambassador of the United relatively little room for new construction, States to Israel. while in another case, there would be vast The underlying question here—regarding tracts of land on which to build houses and the Sasson report and the Spiegel data base— apartments and thus expand the population is why? Why would the Israeli government of the settlements. turn a blind eye for decades to activity clearly My discussions with Spiegel ultimately illegal under Israeli law? Why, indeed, would faded away, with no agreements having been settlements be allowed to grow as a result of reached on anything, and without the Israeli such illegal activity even during Israeli gov- side ever having produced even the data on ernments, like that led by , whose which we were supposed to work. I was busy at policies clearly differed from those of ear- the time, especially as the target date for Gaza lier (and later) pro-settlement governments? disengagement was nearing, and in any event, Even if Israel maintains a legal right under Washington (and Jerusalem, presumably) had international law to build settlements in the lost its appetite for the whole exercise. Thus, occupied territory—a legal interpretation despite the four-part draft agreement on settle- disputed by almost every other state in the ments, the Bush-Sharon letter and the Weiss- world—why would it allow the settlement glas-Rice letter, no details were ever concluded process itself to be grounded in systemic legal or agreed between the United States and Is- corruption?6 Indeed, the underlying question rael on the three most critical elements we had is not why the U.S. and other governments undertaken to discuss, which were necessary have demanded that settlement activity stop, to form the basis of a binding agreement— but rather why Israel has persisted in activi- namely, what constituted the “existing major ties so infused with illegalities and bureau- Israeli population centers” in the Bush letter, cratic corruption. what outposts would be dismantled and when, and what constituted the “construction line of The settlement of the is the es- settlements” within which the U.S. govern- sence of . Without settlement, we will ment would not object to continued Israeli not fulfill Zionism. It’s that simple. settlement activity. —Yitzhak Shamir, Until recently, it was a mystery to me why Maariv, February 21, 1997 Spiegel did not produce the data for our nego- tiations. In January 2009, Haaretz published he ideology of settlements is intimately what it asserted were detailed excerpts from Tbound up with the ideology of Zionism. Spiegel’s data base. What the data indicated is With the advent of Zionism in the late 19th that, in many cases, zoning laws were not re- century, Zionist leaders preached the need to spected, building permits were not obtained, settle the land, to build and be built as , to and construction was sometimes undertaken reclaim the ancient Jewish homeland of Eretz well beyond even the outer boundaries of set- Yisrael, the land of Israel, as a means to nor- tlements. In other words, the data indicated malize Jewish history and society. Until the that even with respect to settlements autho- declaration of Israeli independence in 1948, rized by the Israeli government and suppos- the cornerstone of the settlements enterprise edly in compliance with Israeli law, there were was the idea of the “Whole Land of Israel”, systematic violations of the law that had gone based on the historical connection between the uncorrected over the years. I met with Spiegel Jewish people and the land promised to them

Sp r i n g (Ma r c h /Ap r i l ) 2010 9 Israel & America, Unsettled in the Bible. Until 1948, settlers were seen as Under the ideological tutelage of ultra- the authentic pioneers of Zionism.7 nationalist rabbis, the (“Bloc In the pre-state period, settlements activ- of the Faithful”) movement was founded ists were mostly educated secular Zionists who with the idea of claiming title to all of the drew on the Bible for their historical-cultural historic land of Israel. For a religious Zionist approach and who believed that the only way community that largely had not participated to build a state was to reclaim the land and in the pioneering settlements of the pre-state establish a Jewish presence on it. While pre- period, the post-1967 period offered an op- state settlements never constituted more than a portunity to claim a share of history while modest fraction of the land under Zionist con- bringing to life the Bible’s promise of Jewish trol or of the population of the country, they in the ancient homeland. Instead played a vital role in laying out the future lines of focusing only on strategic areas, these that the Zionist military wing, the , settlers demanded the right to settle in the and the nascent Israeli Defense Forces were to heart of the West Bank, and in 1977 the new defend. With statehood, this state-building as- -led government headed by Menachem pect of settlements came to an end. Begin agreed. The issue did not arise again until after the It was around this time that Sharon 1967 War, which left substantial new territo- retired from the IDF and entered politics, and ry—especially the historically and religiously his presence on the scene gave the settlements important West Bank and East Jerusalem— movement the legitimacy of contributing to in Israel’s hands. Without a clear idea of what the security of the state. Years later, when he they were doing, successive Israeli govern- became Prime Minister, Sharon would tell me ments authorized small groups of Israelis to that it was imperative for the to recog- remain in places they sought to populate. nize not just the fact of Israel’s existence but Nearly from the beginning, however, the ef- also the right of the Jews to build an explic- forts of settlers were conducted deceptively. itly in their historic homeland—a For example, the settlement of Jews in Hebron formulation that current Prime Minister Ben- started out as a Passover holiday trip in 1968, jamin Netanyahu has elevated to a matter of after which the vacationers simply stayed on. national policy. The Israeli Cabinet—sensitive to the history During the post-1973 settlements boom of Jewish life in Hebron, the 1929 massacre and in subsequent years, the Israeli govern- of a substantial number of Jews there, and in ment established legal guidelines for approv- deference to the swing votes of the National ing settlements. These guidelines were re- Religious Party in maintaining coalition sta- fined constantly in light of Israeli Supreme bility—allowed the settlers to remain. Shortly Court decisions, perhaps the most important thereafter, the government, worried about the of which was handed down in October 1979 volatility of the situation, encouraged the He- in the case, in which the Court bron settlers to take over an abandoned army ruled that the state could not seize private base outside Hebron and to create the Kiryat Palestinian land for the purpose of allowing Arba settlement. Even so, about ten years lat- a settlement to be built. The Court said that, er, some Jews moved back into the center of in order to seize land, there needed to be a Hebron itself. specific and concrete security reason. Three In the late 1960s, then-Minister of Defense weeks after the Court’s decision, the Israeli developed a concept, later named government decided that: the full Cabinet the , which predicated settlement ac- would need to approve the establishment of tivity on the basis of security, particularly in the a new settlement; a settlement could be es- .8 But Allon also supported Jew- tablished only on “state land”; the settlement ish settlement in Hebron, thereby fudging the would need an approved municipal building security underpinnings of his concept. plan; and the local IDF commander would After the 1973 Yom Kippur War, a differ- need to approve the settlement’s municipal ent kind of settlement enterprise began. boundaries.

10 Th e Am e r i c a n In t e r e s t Behind the Settlements

1967 1970s Israel captures New settlements the West Bank are built, some of The growth from Jordan as them near the part of a war with as a its Arab neighbors; security bu er of West Bank settlement between Israel construction and Jordan settlements begins soon after

©2009 MCT

1980s 1990s Two of the most Negotiations Despite the freeze populous settle- between Israel on new West Bank ments are started and the Palestin- settlements, the just inside the ians yield the settler population West Bank from and grows rapidly, Israel: Modiin Illit a freeze on new aided by the (1981) and Beitar settlements after proliferation of Illit (1985) 1995; existing dozens of illegal settlements outposts (shown continue to as triangles) expand, however

There is an old adage about lawyers that had held his land for many years no longer warns never to ask a lawyer for a legal opin- could register his ownership.© 2009 Furthermore, MCT Is- ion; rather ask for a legal rationale for doing raeli maps showing “state lands” were replete what you want to do in the first place. In this with errors. When Sasson noted this in the respect, the late Plia Albeck was the lawyer for report she submitted to the government, the the settlers to turn to. Albeck served for many then-head of the Israeli Civil Administration, years in the State Attorney’s Office, rising to Brigadier General Ilan Paz, confirmed her become head of its Civil Division. From this information and told the Cabinet that about perch, Albeck became essentially the sole ar- 30 percent of the lands indicated by Israel as biter of what constituted “state land.” She was “state lands” were improperly categorized.10 At not an objective arbiter. She was quoted by least some of this derived from Albeck’s deci- one source as saying: “When I visited them sion that land which had not been cultivated [the settlers] I always felt like they were my for ten years or that had been abandoned for children. There were more than a hundred three years would be considered state land. No settlements that were built because of my le- exceptions were made for Palestinian owners gal opinion.”9 separated from their land because of war or Albeck started from the premise that the unable to plant their land because of security onus for proving ownership rested on the Pal- reasons. estinians. This was problematic, for when Is- Yet, even with the “law” and the law inter- rael took over the territories in 1967, the IDF preter (Plia Albeck) supposedly clearing the issued an order to stop the process of land reg- way for the use of “state land” for settlements,11 istration immediately. By that time, a registra- a 2006 report issued by Peace Now asserts that tion process proceeding under Jordanian ae- 38.8 percent of the land in Israeli settlements gis had been completed in only 30 percent of in the West Bank is privately owned by Pales- the West Bank. Thus, even a Palestinian who tinians, in direct violation of the 1979 Israeli

Sp r i n g (Ma r c h /Ap r i l ) 2010 11 Israel & America, Unsettled

The improprieties used to alienate private land for settle- ments were on display in a 2009 investigatory article on the settle- ment of , which found that 58 percent of its land is registered in the Israeli Land Registry to Palestinian owners.13 The behind- the-scenes maneuvers are docu- mented further in a 2005 article in Haaretz:

Building companies owned and managed by settler leaders and land dealers acquire lands from Palestinian crooks and transfer them to the Custodian of Gov- ernment Property in the Israel Lands Administration. The custo- dian “converts” the lands to “state lands”, leases them back to the settler associations that then sell them to building companies. In this way it has been ensured that the (under the law in the territories, the onus of proof is on them) will never demand their lands back.14

In the same article, Sasson is quoted describing the intimate relationship between the Civil Administration and the settlers, a relationship that does not comport with international law: The Civil Administration was es- Supreme Court decision in the Elon Moreh tablished because under the international law case.12 According to this report, 86.4 percent that applies in the territories, the commander of Ma‘ale Adumim; 35.1 percent of Ariel; 44.3 of the area is obligated to take care of the percent of Givat Zeev; and 44.6 percent of Mo- “protected” population in the area, that is to diin Illit—four of the largest settlements that say the Palestinians who were there when the Israel claims are covered by President Bush’s IDF entered the territory. Over the years the 2004 letter to Sharon—sit on private land. The Civil Administration became the main body Peace Now report defines privately owned land that dealt with all the matters of the Israeli as land “that was registered and recognized as settlement in the territories, not mainly the private property before 1968, at a time when Palestinians, but in fact the Israelis. the process of land registration was still open and available to Palestinians, or cultivated land Sasson went on to say that the Civil Ad- which is recognized by Israel as private land ac- ministration in effect allocates land to the set- cording to the Ottoman law.” tlements, approves the decision to categorize

12 Th e Am e r i c a n In t e r e s t Behind the Settlements

these lands as “state lands”, approves permits appears not only unwilling to enforce the law and licenses for construction, and ensures with respect to those who break it in support that the settlements are connected to water, of settlements, but also afraid to confront electricity and other utilities. “In effect”, Sas- the settler movement and its various layers of son concludes, “it is the Civil Administration support in the population. In the meantime, that enables in practice the acts of the Israeli the corrosion of civil and military ethics con- settlements in the territories.” tinues, as the authorities continue to turn a If the methodology of the unlawful acts blind eye to illegal settlement activity and the associated with settlements lands has been IDF continues to invest heavily in the daily uncovered so easily, and if some of the cul- tasks of protecting settlements and settlers. prits have been identified—and there is no The rationale of settlements as helping the doubt that large numbers of attentive, news- security of the state has been turned on its paper-reading Israelis have known all this for head; the settlements are now undermining years—then why has nothing been done by Israeli security by eroding the state’s ability Israel to stop these practices, punish those to enforce its own laws. who have broken the law and stop these settle- ment abuses? riel Sharon should have been immensely Indeed, even when Israel agreed in the A proud to read Talya Sasson’s concluding 1990s with an American demand to limit set- words in her report to him. Sharon had told me tlement activity in order to support the Oslo repeatedly that Israel was a “democracy among peace process, reality proved to be far different. democracies”, a nation that observes the fun- In 1992, the Israeli government adopted Reso- damental tenets of democracy even while in a lution 360 that specified that new construc- perpetual state of war since its independence. tion in existing settlements would take place Thus, Sasson’s words would have resonated only within the boundaries of existing settle- with Sharon: ments, a precursor of the 2003 commitment to limit building to within existing construc- The State of Israel is a democratic state. This tion lines. However, in 1996, the government is what the Declaration of Independence and authorized a dramatic expansion of settlement the Basic Laws teach us. This is the glue that boundaries, effectively opening up ever-greater sticks all its citizens together, allows them to amounts of territory on which to build while live together in one political entity. Democ- remaining within the purview of Resolution racy and the rule of law are two inseparables. 360. The area controlled by Ma‘ale Adumim, One cannot exist without the other.15 to take one example, is larger than the munici- pal area of Tel Aviv. And the number of settlers Some claim that after all these years, and increased exponentially during this period. with so many tens of thousands of settlers Settlers and their supporters now control throughout the West Bank, ultimately many much of the bureaucracy and the process in- settlements cannot be evacuated in order to volved in the settlements enterprise—many implement a peace treaty with the Palestin- civil servants, employees of the Civil Admin- ians. But they can be, and I believe they must istration and soldiers in the IDF itself see be if a peace settlement is to be reached with themselves as protectors of settlements rather the Palestinians. That perspective is gaining than upholders of state laws and interests. ground in Israel. It is exemplified by Israeli In recent months, the IDF has confronted writer , whose recent growing protests from soldiers against being analysis of the settlement issue has drawn a asked to evacuate settlements and signs of fair bit of attention. Gorenberg has noted the protest on army bases themselves. In short, vital role that settlers and settlements played the prolonged erosion of the rule of law as in the pre-state period, concluding that the it applies to settlements has diminished the success of this Zionist enterprise was the dec- state’s authority and the nonpartisan charac- laration of Israel’s independence in 1948. At ter of military jurisdiction. The government that moment, however, the national mission

Sp r i n g (Ma r c h /Ap r i l ) 2010 13 Israel & America, Unsettled changed—from building the infrastructure prohibits an occupying power from transferring of a state-in-the-making to the protection of citizens from its own territory into the occupied that state and the achievement of its recog- territory; and the Hague Regulations, which nition and legitimacy.16 He argues that, by prohibit an occupying power from undertak- pursuing an unbridled settlement push in ing permanent changes in occupied areas unless 2009, Prime Minister Netanyahu was de- they are related to military needs or undertaken constructing the very state he has sworn to for the benefit of the local population. See Dan- protect, confusing the issue of what Israel is iel Kurtzer, “Do Settlements Matter? An Ameri- and isn’t. Many Israelis agree with him, and can Perspective”, Israel Journal of Foreign Affairs, Netanyahu’s own apparent change of course Volume 3, Number 2 (2009). late last year suggests that the matter is newly 7For background on settlements, see Gershom open for debate in a way it hasn’t been since at Gorenberg, The Accidental Empire: Israel and least May 1977. the Birth of the Settlements, 1967–1977 (Times In that light, it was not wrong for Presi- Books, 2006) and Idith Zertal and Akiva El- dent Obama to raise a demand for a settle- dar, Lords of the Land: The War over Israel’s Set- ments freeze, even if the tactics employed to tlements in the Occupied Territories, 1967–2007 do so did not prove optimal. The issue will (Nation Books, 2007). not go away, because Israelis themselves in- 8Allon, “The Case for Defensible Borders”, For- creasingly won’t let it. The challenge for the eign Affairs (October 1976). United States is how to pursue the issue in 9Plia Albeck obituary, The Times (London), Oc- a persistent and intelligent manner. It should tober 5, 2005. do so with the confidence that, ultimately, it 10Private correspondence with Talya Sasson, No- will end up aligned not only on the right side vember 23, 2009. of history generally, but even on the right side 11Another problem with the so-called “state land” of the . categorization is that, while the land so des- ignated should have been available for public 1“Summary of the Opinion Concerning Unau- use, Palestinians were not eligible to use “state thorized Outposts”, available at www.mfa.gov. lands” to establish Palestinian villages or ex- il. I want to thank Talya Sasson for her friend- pand Palestinian towns. ship, for educating me on the legal intricacies 12Steven Erlanger, “Israeli Map Says West Bank of settlement activity, and for checking the Posts Sit on Arab Land”, New York Times, No- facts and analysis in this article. vember 21, 2006 and “Breaking the Law in the 2“Summary of the Opinion Concerning Unau- West Bank—One Violation Leads to Another: thorized Outposts.” Israeli Settlement Building on Private Palestin- 3Dov Weissglas, “We are allowed to build, on con- ian Property”, Peace Now (October 2006). dition”, Yediot Aharonot, June 2, 2009. 13Stephen Lendman, “Israel’s Ofra Settlement on 4“Letter from President Bush to Prime Minister Unauthorized Palestinian Land”, sjlendman. Sharon”, available at georgewbush-whitehouse. blogspot.com, September 28, 2009. Indeed, the archives.gov. Israel has contended that this letter Peace Now report charges that 93.2 percent allowed it to continue settlement activity in the of Ofra is on private land; that Ofra’s built-up large settlement blocs of Ariel, Ma‘ale Adumim area is not located in the planning area of the and , but the letter and the discus- ; that there are no approved plan- sions surrounding it did not convey any U.S. ning documents on file; and that there are no support for or understanding of Israeli settle- building permits or exemptions from building ment activities in these particular or other areas permits on file for many structures in Ofra. in the run-up to a peace agreement. 14Akiva Eldar, “Turning Palestinian Property into Is- 5“Letter from Weissglas, Chief of the PM’s Bu- rael’s State Land”, Haaretz, December 27, 2005. reau, to National Security Advisor, Dr. Condo- 15“Summary of the Opinion Concerning Unau- leezza Rice”, available at www.mfa.gov.il. thorized Outposts.” 6The relevant provisions of international law come 16Gorenberg, “Barack the Zionist”, Slate, June 17, from the , which 2009.

14 Th e Am e r i c a n In t e r e s t