An Ibishblog reader writes:

"I recently saw an interesting view on West Bank building activity.  It posited that both Palestinian and Israeli building activity there created 'facts on the ground' that changed the Oslo 'status quo.'  Hence, building by EITHER side equally implicated the letter and spirit of the Oslo Accords.  So (the opinion writer said), if either side is forbidden to build, BOTH sides should be forbidden to build.  Thus, no unilateral moritorium is fair or warranted (according to the pundit I'm paraphrasing). I don't recall seeing this view expressed before.  Do you think it has any validity?"

Thanks for the interesting question. I've seen this argument cropping up recently as well, although it gets very little traction because it's so obviously fatuous and specious. The whole argument is premised on the idea that there is a moral and legal equivalency between the Israeli settler presence in the occupied territories and the indigenous Palestinian one. Of course that's not the case. It's a subset of the old argument that these are “disputed” territories rather than occupied ones, a claim that relies entirely on ignoring the mountain of UN Security Council resolutions designating East Jerusalem, the West Bank and the Gaza Strip as territories under foreign military occupation, and Israel as the occupying power. If there is a dispute, it is between Israel and the unanimous voice of the international community, including the body legally authorized to make these judgments. Therefore, from a legal and political standpoint, there is no dispute. There is only an occupation.

The fact that Israel is the occupying power in the occupied territories carries with it tremendous legal and political significance, which of course is why Israel generally speaking denies that it is the occupying power or that the territories are occupied. For a start, a very large body of international law prohibits settling or colonizing territories under occupation, as well as the acquisition of territory by war. Most notably, Article 49 of the Fourth Geneva Convention prohibits occupying powers from transferring its civilian population into territories under occupation. Supporters of the settlement movement sometimes try to get around this by arguing that it refers only to forced transfer of such populations. Again, this is obviously specious since there are numerous other provisions of the Convention already prohibiting forced transfers of populations against their will, which would make Article 49 redundant and meaningless. Moreover, the Geneva Convention was adopted in the aftermath of the second world war, and in full memory of colonization and population transfers engaged in by the axis powers, especially Nazi Germany, and this was clearly seen as a human rights abuse against people living under occupation. This is why a prohibition of such activity was included in a human rights instrument designed to protect civilians in a time or context of war. In other words, resting simply on the Geneva Convention, we can say with certainty that beyond simply being illegal, Israel's settlement activities are a human rights violation against the civilian Palestinian population in the occupied territories.

There isn't any aspect of international law that prohibits a population living under occupation from continuing to live and develop its society insofar as it can in spite of the occupation. This claim is a direct attack on the vital Palestinian Authority program for state and institution building, laying the groundwork of an independent Palestinian state in spite of the occupation and with the aim of ending the occupation. But while Israel's settlement activities are illegal under international law and are required to be frozen entirely under Phase One of the Roadmap of the Middle East Quartet, nothing in the Oslo documents, any other treaty obligation, any aspect of international law, or the Roadmap, obliges Palestinians to cease to engage in social, infrastructural, institutional and economic development because Israel is bound by its legal and political obligations not to engage in settlement activity because it is a human rights violation against the Palestinian people living under occupation.

Moreover, Israeli settlement activity is a direct threat to the potential for a two-state peace agreement, which is the only viable path to ending the conflict and the occupation that began in 1967. Among many other things, it makes the future border much more difficult to draw, increases and entrenches the often belligerent Israeli constituency opposed to territorial compromise, and expands the circle of Israelis with a financial stake in continuing the occupation. In contrast, Palestinian state and institution building efforts and all forms of social and economic development promote the prospects of a two-state peace agreement, since the Palestinian state must be functional when it comes into existence and be a successful and not a failed state. As Palestinians continue to demand and press for the right of self-determination, it is not only legal and reasonable, it is necessary, for them to take up the responsibilities of self-government. Any objection to this program can only come from an implicit starting point that is hostile to a two state agreement as a peaceful outcome. There is no doubt that anybody who makes this case is a supporter of the occupation and wishes to see it continue indefinitely. Why else would they try to impede Palestinian development? There is no other plausible motivation. In the same sense, I think it's fair to say all of us who oppose continued Israeli settlement activity take this position because we are first and foremost opposed to the occupation and wish to see it come to an end. This is an a priori assumption that defines opposition to settlement activity.

So, it boils down to this: those who are in favor of peace are generally opposed to settlement activity, recognizing that it poses a serious threat to prospects a workable, reasonable agreement, and are generally supportive of Palestinian state and institution building as a necessary bedrock for that two-state arrangement. Conversely, those who are opposed to peace, at least on the Israeli side, are creating spurious and pseudo-legal arguments opposing Palestinian state and institution building and economic development because they correctly see it as a very significant, and quite possibly decisive, long-term strategic threat to the occupation which they support. As for the argument itself, it's so transparently absurd we needn't bother with it. It's not creating any traction, even in Israel, and internationally will be laughed off any multilateral table at which it may be presented. It's a joke, and not a very funny one at that.