BACKGROUNDER: Jewish Settlements and the Media

The subject of Jewish settlements in the West Bank and Gaza has long provoked severely distorted coverage. Regardless of differing political views on settlement policy, information about the much-reported issue should be factual and balanced. Among the most frequent of the distortions is the blanket claim that the settlements are illegal. This claim, which directly echoes those of the Palestinians, is particularly prevalent in the European media, but also crops up in American newspapers, television, and radio. Typical of the reporting in Europe are the following:

The settlements, illegal under international law, are one of the main Palestinian grievances against the Jewish state… (AFP June 26, 2001)
The mortar bombs fired almost daily by Palestinians in the Gaza Strip are all aimed at Jewish settlements, which are illegal under international law. (BBC May 10, 2001)
The Jewish settlements on the West Bank and in Gaza, illegal under international law, are one of the main causes of friction between Israel and the Palestinians. (The Guardian [London] June 27, 2001)

Reuters until recently repeated the Palestinian characterization of settlements on an almost daily basis, even to the point of implicitly justifying attacks on settlers:

Palestinians see settlements, illegal under international law, as legitimate targets in their struggle for independence. That 200,000 Jews live in 145 settlements scattered among three million Palestinians on West Bank and Gaza lands Israel captured in the 1967 war is a major grievance driving the uprising. (July 20, 2001)
Jewish settlements, illegal under international law, are built on land Israel captured in the 1967 Middle East war and which Palestinians want for an independent state. (June 26, 2001)
Jewish settlements, illegal under international law, are at the heart of a Palestinian uprising that began last September. (July 1) Some 200,000 Jewish settlers live among three million Palestinians in the West Bank and Gaza Strip on Arab land Israel captured in the 1967 Middle East war. The international community says the settlements are illegal. Palestinians view them as an obstacle to building a state and a legitimate target in their uprising. (June 24, 2001)

More recently, Reuters began to tone down and qualify this characterization:

Much of the international community regards as illegal Israeli settlements in areas occupied by Israel in the 1967 Middle East war. Israel disputes this. Many Palestinians view settlers as legitimate targets in their uprising. (October 4, 2001)

In contrast to this, the Associated Press correctly refrains from commenting on the legality of the settlements; articles either refer to the settlements as disputed, or attribute to the Palestinians opinions about their legality:

About 200,000 settlers live in the disputed lands, captured by Israel in the 1967 Mideast war. (June 27) Palestinians regard all Jewish settlements as illegal and have killed more than two dozen settlers in drive-by attacks and roadside shootings during nine months of violence. (June 23; June 24, 2001)
The Palestinians, calling them [settlements] illegal encroachment on their land, demand that all of them be removed. (June 27, 2001)

The major American newspapers vary in how they portray settlements. The New York Times passes no independent judgment on the legality of the settlements while others, like the Los Angeles Times, Chicago Tribune, and Boston Globe, repeat the Palestinian claim as fact. Still others, such as the Washington Post, fall somewhere in the middle, qualifying the Palestinian position by attributing it to the opinion of “most Western governments and human rights organizations.”

Various false or questionable assumptions and claims underpin the assertion that settlements are illegal.

False Assertion: The settlements are built on Arab land and are therefore illegal under international law.

Fact: While ownership of the land and the legality of Jewish settlements are sometimes disputed, there is no international law that prohibits Israel from building settlements.

Those who maintain that the settlements are illegal rely on Article 49 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, which states:

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the occupying power or to that of any other country…are prohibited…

and in the sixth paragraph:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

They interpret this to be applicable to Israel’s settlement of the West Bank and Gaza, understanding Israel to have become a “belligerent occupant” of this territory through entry by its armed forces.

Those who argue that the settlements are legal point out that the Geneva Convention does not apply to the West Bank or Gaza, for, under its Article 2, the Convention pertains only to “cases of…occupation of the territory of a High Contracting Party” by another such party. The West Bank and Gaza were never the territory of a High Contracting Party; the occupation after 1948 by Jordan and Egypt was illegal and neither country ever had lawful or recognized sovereignty. The last legal sovereignty over the territories was that of the League of Nations Palestine Mandate, which stipulated the right of the Jewish people to settle in the whole of the Mandated territory. According to Article 6 of the Mandate, “close settlement by Jews on the land, including State lands not required for public use” was to be encouraged. (Article 25 allowed the League Council to temporarily postpone the Jewish right to settle in what is now Jordan, if conditions were not amenable.) Article 80 of the U.N. Charter preserved this Jewish right to settlement by specifying that:

nothing in the [U.N. Charter’s chapter on the administration of Mandate territory] shall be construed … to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments. (This updated version of the quote corrects an earlie r typographical error.) 

Furthermore, even if the Geneva Convention would apply, it would not outlaw Israeli settlements, since the relevant Article 49 was intended to outlaw the Nazi practice of forcibly transporting populations into or out of occupied territories to death and work camps, and cannot be applied to Israel because Arab residents were not forcibly transferred. More than a year after Israel gained control of the territories as the result of an act of self-defense in 1967, Jews moved there of their own volition because of the historical and religious connection they felt, in some places reestablishing Jewish communities that had been destroyed in 1948 by Arab aggression. Arabs continue to live in these territories and their population continues to grow rapidly.

The U.S. government, as well as others, presently hold the view that the settlements are not illegal and that the extent of Israeli withdrawal from the territories is subject to negotiation. The Carter administration had held that settlements were illegal, relying on the opinion of its legal advisor Herbert Hansell, who in turn quoted the prominent authority on jurisprudence and international law, Professor Julius Stone, from his 1959 analysis “Legal Controls of International Conflict.” It is noteworthy, however, that in writing about the specific legal aspects of the Arab-Israeli conflict in 1980, Professor Stone maintained that the effort to designate Israeli settlements as illegal was, in fact, a “subversion. . . of basic international law principles.”

The Reagan administration and subsequent administrations reversed Carter’s position, with the opinion that while it disapproved of building new settlements in the disputed territories before negotiations, settlements are not illegal.

Former U.S. Undersecretary of State Eugene Rostow wrote several articles presenting the case why the settlements are legal and arguing that United Nations Resolution 242 stipulates that Israel withdraw from some of the disputed territory, but not necessarily all. It should be remembered that Rostow was one of the drafters of Resolution 242, the very resolution relied upon by Palestinians and their supporters to demand Israel’s complete withdrawal from all of the West Bank and Gaza and the dismantlement of all of the Jewish settlements.

Proponents of the view that settlements are illegal also often cite numerous U.N. resolutions criticizing Israel’s presence in the West Bank and Gaza, as if these General Assembly resolutions had any legal weight. They do not, even if one ignores the U.N.’s long, deplorable history of bias against Israel evidenced by the infamous “Zionism is Racism” resolution. Backed by a pro-Arab majority, special U.N. bodies have been set up exclusively to report on Israel’s practices—for example, the “Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People” and the “Committee on the Exercise of the Inalienable Rights of the Palestinian People,” which continue to pass partisan, anti-Israel resolutions.

Although the United States abstains or votes against Security Council resolutions unfairly condemning Israel, under former President Carter the United States initially voted for U.N. Security Council Resolution 465 which was passed on March 1, 1980. This resolution stating that Israeli settlements in the territories have no “legal validity” is often quoted to bolster the “illegality of settlements” argument. However, the American vote for this resolution was subsequently retracted, with the United States claiming that it had intended to abstain and blaming a communications failure as responsible for the vote. Finally, although Article 25 of the U.N. Charter says: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter,” this cannot invalidate Article 80 which says that:

nothing in the [U.N.] Charter shall be construed . . . to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments.

False Assertion: The existence of Jewish settlements within the West Bank and Gaza is the main issue at stake for the Palestinians and the reason for launching their “uprising for independence.”

Fact: The intifada was not launched because of the settlements. At Camp David, Barak had offered to withdraw from 100 percent of the Gaza Strip and over 95 percent of the West Bank, with compensation to the Palestinians with land in Israel’s Negev. Most of the settlements would have been closed. Arafat spurned the offer and did not even make a counter-offer.

Demonizing “Settlers”

In parallel with the constant characterization of settlements as “illegal” and as a foremost obstacle to peace is the pejorative media treatment of Jewish residents of these territories.

When Israeli shepherd Yair Har-Sinai was shot dead by Palestinian gunmen, a Reuters subtitle read “Settler Body in River Bed.” And when Ekaterina Weintraub of Ganim was fatally shot in the chest as she was driving home on the Jenin bypass road, Jennifer Ludden of NPR referred to the victim as “a settler woman.” When 10-month-old Shalhevet Pass was targeted by a Palestinian sniper in Hebron and fatally shot in front of her parents, BBC reported that “The Israeli army has imposed severe restrictions on Palestinians in the West Bank town of Hebron after a Jewish settler baby was shot dead.” And when Palestinian terrorists targeted an Israeli schoolbus in the Gaza Strip, CNN, NPR and other newscasters referred to attacks on “a settler bus.” By referring to victims of Palestinian violence as a “settler body,” “settler woman,” “settler children,” or “settler bus,” instead of man’s body, Israeli civilian, Jewish children, or Israeli school bus, news writers are adopting the Palestinian position of portraying them as interlopers on Palestinian land and, by implication, legitimate targets of violence.

Sometimes the problem is more explicit. For example, in an interview by BBC’s Alex Brodie with Mahmoud Zahar, a Gazan Hamas leader, in the aftermath of a murderous rampage by Hamas terrorists on the Jewish community of Elei Sinai in Gaza, which killed two and wounded at least 15, Brodie suggested that:

…one could argue that an attack on an illegal Jewish settlement is not terrorism. However what about suicide bomb attacks on buses inside Israel? (BBC World Service Newshour, Oct. 3, 2001)

And when Erez and Elanit Shmuelian and their baby daughter were ambushed and shot by Palestinians near the entrance of their Har Bracha neighborhood in Samaria, BBC’s Frank Gardner explained that::

…most Palestinian militants continue to consider Jewish settlers to be legitimate targets. They’re living on Arab land seized by Israel, and the militants are determined to drive them out (BBC Newshour World Brief ing, July 12, 2001).

Media misinformation about settlements and settlers, including the frequent repetition of Palestinian assertions without regard to fact, not only harms public understanding of the important subject but can even serve, unconscionably, to sanction violence.

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