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A Palestinian State Free of Jews?

A legal view into Netanyahu’s ‘ethnic cleansing’ speech

Eugene Kontorovich
September 15, 2016
Benjamin Netanyahu. YouTube
Benjamin Netanyahu. YouTube

Israeli Prime Minister Benjamin Netanyahu provoked a storm of diplomatic disapproval last week, when he pointed out that “the Palestinian Authority actually demands a Palestinian state with one precondition: no Jews.” The Obama Administration responded that it is “inappropriate” to speak of demands for a removal of settlers in such terms. Removing the settlers, Netanyahu’s critics say, is natural and appropriate: their presence in a Palestinian state would cause tension and problems, and in any case, they should not have been there in the first place.

While it is not surprising that the head of the U.N. was unhappy with Netanyahu’s remarks, the head of the Anti-Defamation League, Jonathan Greenblatt, also joined in. But neither actually addressed the central issue that Netanyahu raised: why it is legitimate for the Palestinians to ask for a Jew-free state?

When pressed, defenders of the Palestinian position characterize the demand as no settlers rather than the uglier-sounding no Jews. The claim is hard to take at face value, as the Palestinians have never objected to Israeli Arabs settling across the Green Line, as they have in significant numbers. But, granting its sincerity, what does international law say about the demand to remove settlers as part of a solution to a territorial conflict? To answer this question, as part of a larger research study on settlements, I examined the fate of settlers in every occupation since the adoption of the Geneva Conventions—eight major situations in total. The results highlight how extraordinary the Palestinian demand is.

There is simply no support in international practice for the expulsion of settlers from occupied territories. In the many situations involving settlers around the world, the international community has never supported expulsion, and consistently backed plans allowing the settlers to remain in a new state.

Settlement activity is the rule rather than the exception in situations of belligerent occupation around the world. In places like Western Sahara and northern Cyprus, the settlers now make up a majority of the population. In most other places, they account for a much higher percentage of the territory’s population than Jews would in a potential Palestinian state. In all these cases, the arrival of the settlers was accompanied with the familiar claims of seizure of land and property, and serious human rights abuses. Unlike the Israeli situation, it was also accompanied with a large-scale expulsion of the prior inhabitants from the territory.

In internationally-brokered efforts to resolve these conflicts, the question of the fate of the settlers naturally arose. The answer, across all these very different situations, has always been the same: the settlers stay. Indeed, the only point of dispute has typically been what proportion of settlers receive automatic citizenship in any newly-created state and what proportion merely gets residence status. Thus, when East Timor, for example, received independence in an internationally-approved process, none of the Indonesian settlers were required to leave. The current U.N.-mediated peace plan for Western Sahara and Cyprus not only presupposes the demographically dominant settler population can remain, it also gives it a right to vote in referenda on potential deal.

This is not because these settlers are beloved by the surrounding population. The opposite is true. In the Paris peace talks to end the Vietnamese occupation of Cambodia, representatives of the latter tried to raise the possibility of expelling the nearly million Vietnamese settlers. Their arguments were familiar: the settlers remind them of the occupation, rekindle ancient hatreds, and destabilize the peace. Yet the Cambodian demand for the mass removal of ethnic Vietnamese was rejected outright by diplomats: One simply cannot ask for such things.

Indeed, uniform international practice shows that the removal of settlers is an obstacle to peace. In those occupations that have been resolved—East Timor, Cambodia, Lebanon—such demands would have been a complete deal-breaker. And those still subject to international diplomacy, however slim the chances of resolution, there would not even be a pretense of negotiation had demands similar to the Palestinians been made.

In short, the Palestinians couching their objection as one about removing “settlers” rather than Jews does not change the harsh reality. There is simply no precedent in international practice for the demand. Whatever term one uses for such a demand, Netanyahu was clearly right to call attention to the extraordinary nature of the demand. It is also disappointing that, instead of exercising moral leadership on this issue, the ADL went against its mission by seemingly excusing singular treatment for Jews.

Yet the most controversial part of his comments were two words: ethnic cleansing. Indeed, the phrase invites criticism because there is no precise legal definition of the term. However, it is generally used to refer to the purge of other ethnic groups, rather than the group doing the cleansing. Indeed, that is why the international community demands that Israel remove the settlers itself, so the Palestinians won’t have to. One might call it ethnic pre-cleansing. Again, there is no international precedent for a country being required to forcibly remove its own population en masse.

While it may not be entirely apt, ethnic cleansing is definitely part of the story. Jews lived throughout what would later be called the West Bank until its conquest by Jordan in 1949. The Jordanians expelled every single Jew from the area they controlled. Unlike the flight of Arabs from Israel, the purge was clearly coercive, by the fact that not one Jew was left in the Jordanian occupied territory. This expulsion was clearly ethnic cleansing, and indeed it left the area clean.

Israel wrested this area, including the Old City of Jerusalem, from Jordanian control in the Six Day War. Much of the international community believes Israel was legally required to maintain the Jew-free status quo created by the Jordanian expulsion 19 years earlier. Any Israelis who do move into the area, in this view, are illegal settlers, and should be removed.

Assume that the presence of settlers is illegal. The only reason these people were “settlers” was the Jordanian expulsion of 1949, and their subsequent 19 year enforcement of a Jew-free territory. International law scholars like to say that Israel, as an occupying power, must maintain the prior status quo. Even assuming that is true, pointing out that the status quo was itself a result of recent, complete to-the-last Jew ethnic cleansing should hardly be bad form.

Eugene Kontorovich is a professor at the George Mason University Scalia Law School and the director of its Center on the Middle East and International Law. He is also the head of the international law department at the Kohelet Policy Forum, a think tank in Jerusalem.