Legal Issues and Human Rights Dimensions of the Israeli Settlements Issue: Victims and Spoilers

Panelist Michael Ignatieff argues that legitimacy arguments need to be approached as a question of balancing rights among different groups. If settlers are demonized as a “guilty minority” and their rights are ignored, they will be radicalized and their perceived legitimacy in Israel will be enhanced rather than diminished.

Brian Mandel and David Matz both argue for the need to plan systematically to deal with the settlers and other “spoilers,” especially around key procedural choice points. Steps can be taken to reduce their clout, their legitimacy, and their motivation. Matz argues that the United States needs to lead a determined coalition in this effort, reasoning that it is unlikely that the U.S. would be able to apply sufficient pressure unilaterally in the face of political opposition at home from Jews and evangelical Christians.

Yishai Blank makes the very useful and important point that a portion of the compensation offered to settler elites needs to be in the form of political power to replace the very significant clout they have come to wield through regional councils. To focus only on monetary and ideological issues would miss both an important motivator of settler opposition to resettlement and a creative means to co‐opt at least some portions of the settler leadership.

This panel also underscored some of the important lessons of negotiation theory for the peace process. On the one hand, it highlighted the need to treat process issues systematically. On the other, it opened the door to thinking creatively about substance, as in Blank's presentation. In dealing with Cyprus, for example, where Turkish Cypriots claim 40 percent of the island and Greeks 80 percent, one solution that has been proposed is to give them both what they want. In other words, Turks would have sole control of 20 percent of the island, Greeks would have sole control of 60 percent of the island, and 20 percent would be jointly controlled. In the Falkland/Malvinas Islands dispute, before former British Prime Minister Margaret Thatcher realized the political popularity of war, a solution was outlined that adopted the key arguments of both sides: the right to self‐determination and the right to the free movement of peoples. By agreeing that Argentineans could immigrate to the islands annually in numbers that totaled no more than 5 percent of the islands’ population, a sufficiently certain tipping point could be seen in the future to diffuse the current conflict, but it would have been far away enough to avoid too much heat on politicians who were then in office. Similar creativity might help in the Middle East. President Bill Clinton's proposal, for example, required Palestinians to give up the right of return absolutely. A different approach might affirm the right, but with such restrictions and alternative offers of attractive compensation that, for practical purposes now and in the future, it will no longer have practical political meaning.

Most practitioners of international humanitarian law would say that the West Bank and Gaza are under a continuing regime of belligerent occupation to which the Fourth Geneva Convention applies. The settlements breach the convention's prohibitions on population expulsion and resettlement. Moreover, the 1907 Hague Conventions confer obligations on Israel as the occupying power to ensure the welfare of the occupied people. Many of the operational dimensions of the occupation — water and electricity closures, encirclement by the wall, and so on — violate these obligations. Similarly, practitioners of international human rights argue that Israel violates its obligations under international human rights law through its restriction of free movement and the confiscations of land without compensation.

Israel contests the normative judgments made by many in the international community point by point. Israel denies the applicability of the Fourth Geneva Convention, asserts its fulfillment of its obligations under the Hague Conventions, and most importantly, claims its right to territorial self‐defense that trumps all other international legal obligations. Israel also claims the right to derogate from certain international legal obligations under conditions of public emergency or military necessity.

Given the “legitimacy gulf” between the interpretations of predominantly European international lawyers and Israel, what is the function of legal argument in the political battle over the future of the settlements?

First, international law cannot be treated as a trumping argument. It is nothing but legal fetishism to do so despite the legitimacy gulf between the two positions. This summer's Advisory Opinion of the International Court of Justice (ICJ) on the construction of the wall illustrates this. The ICJ ruled that the wall was illegal wherever it crossed the Green Line separating Israel proper from the occupied territories because the Israeli right to territorial security does not trump its obligations under international law. In doing so, it gave extremely cursory attention to the claims of military necessity and public emergency, and it simply dismissed the security grounds for the wall. Its refusal to engage with these arguments compounded the illegitimacy of international law to address the issue. International law is becoming part of the problem and not part of the solution.

Another practical political problem arises from the use of language in human rights advocacy. Israel considers human rights groups guilty of “moral asymmetry” because their assertion of the illegality of Israeli actions in the Occupied Territories since 1967 leads them to privilege Palestinian victims over Israeli victims. The illegality of the settlements, according to this thinking, strips them of their human rights.

In reality, state security drives Israeli settlement policy, not international humanitarian and human rights law. Arguments based in these terms will consequently have no effect.

Last, the human rights of the settlers and other “guilty minorities” are not focused on enough. The human rights system purports to be universal but has repeatedly favored certain types of victims over others. Guilty minorities have been particularly disfavored. The Serbs were treated as the guilty minority in Bosnia, Croatia, and Kosovo despite being in aggregate quantitative terms the biggest victims of Yugoslavia's dissolution. Thus, moral selectivity by the international community can result in serious human rights harm.

The Israeli settlers are at risk of being classed as a guilty minority by the international community and the Israeli state. Their rights must be protected, specifically their right to compensation despite the many complex issues that compensation raises. How much should each settler receive and who will pay? Of course, one reason they will continue to be stigmatized as a guilty minority is if they continue to be seen as the unjust beneficiaries of political leverage. The equity package must balance the human rights of the settlers against those of the majority.

To suggest that the settlers should have a right to remain with minority rights following the withdrawal of the Israeli Defense Force is an admirable fantasy. But the human rights community has a duty to ensure that they are adequately compensated, that they have recourse to nonviolent protest, and that force is used against them as a last resort.

The international community must not parse away the rights of the settlers on the grounds that the occupation is illegal. Rather, it must view the problem as one of balancing the rights of a minority with those of the majority.

Our work on spoilers builds upon that of Larry Susskind at the Massachusetts Institute of Technology and Bob Mnookin at Harvard Law School on complicating factors in multiparty negotiations: spoilers have a greater opportunity to derail the process as the number of parties to a negotiation increases (Mnookin and Susskind 2003). And it is informed by the work of Max Bazerman and Mike Watkins of the Harvard Business School on “predictable surprises”: spoilers can repeatedly derail the process and thereby incrementally erode it (Bazerman and Watkins 2004). For instance, the Israeli newspaper Ha’aretz recently reported a strategy of legal filibuster by which each settler would demand an individual compensation hearing to delay the disengagement plan by months or even years (Hasson 2004).

What can be done on the Israeli side of the table to ensure that we are not condemned to an endless game of repetition that erodes the credibility of the Israeli–Palestinian peace process? More broadly, what is the “power of the few” in multiparty negotiations?

Building on the work of Stephen Stedman (1997) on spoiler problems in peace processes, the conditions that foster the strength and proliferation of internal, behind‐the‐table spoilers include: political instability/ disequilibrium; a high‐stakes environment leading to clear winners and losers; intense ideological differences within the identity group; highly cohesive, well‐resourced opposition groups; and predictable repeated games or patterned behavior within the system.

Deepak Malhotra has outlined the “militancy paradox” by which spoiler behavior simultaneously makes negotiations possible and improbable (Malhotra 2004). Spoilers emerge both to counter the party across the table and to challenge moderates within their own camp.

Stedman has developed a typology of spoilers based on their type (limited, greedy, or total); their position inside or outside the negotiation process; and their locus as leaders, followers, or both. Most importantly, the possibility for gridlock and impasse increases exponentially with the number of spoilers.

Stedman argues that international actors have very limited leverage in behind‐the‐table negotiations where many peace processes are foiled even before they get started. However, the Israeli government can manage relationships on its side of the table by: (1) generating cross‐cutting coalitions; (2) avoiding burning bridges; and (3) simultaneously working to block and win.

There are four primary factors that have allowed spoilers to flourish in the current peace process. First, they have sizeable but underestimated material and symbolic resources. Most important is their high nuisance value — their capacity to transform their problems into those of the whole society through legal challenges, coalition politics, economic and political disruption, and so on. The Israeli settlers also exploit a public perception that they are cultural touchstones within an overall political debate.

Second, the structure of political institutions and the architecture of the peace process privileges the settlers and incorporates fatal flaws. Key elements include unstable coalitions, systems of patronage, institutional rigidity, and the opacity of the negotiations. Particularly important is the lack of an obvious negotiation partner among the Palestinians because it allows the spoilers to feel that they can spoil.

Third, the political, economic, and security aspects of the region generate a highly charged, complex, and uncertain negotiating environment. As parties to and around the negotiation process proliferate, the complexity and uncertainty that they generate increases the leverage of spoilers. Other factors that benefit the settlers include a failure of parties to engage with the grassroots of spoiling parties, cultural barriers between settlers and nonsettlers, and repetitive cycles of failure.

Finally, there has been a failure by the settlers’ negotiating partners and third parties to properly understand their basic psychology and motivations, together with an assumption that they are simply irrational. On the other hand, the settlers do display inhibitive psychological flaws such as a pervasive sense of victimization, and particularly important, a reactive devaluation of proposed solutions and an instinctive delegitimizing of the parties making offers.

Predictable surprises can be forecasted in these negotiations. It should have been obvious in the 1990s, from the political structure of the Knesset, that the settlers would emerge as a political group because that structure contains strong incentives for holdouts. Future surprises are likely to include violent demonstrations, resistance to the Israeli Defense Forces (IDF), and acts of violence against Palestinians. We can also expect the mobilization of political groups in the United States within the Jewish and evangelical Christian communities.

In conclusion, we believe that spoilers can and must be taken into account when designing the negotiation process. An architectural approach would help us to identify key leverage points during the negotiation and to develop strategies with which to do so. Thus, strategies of inducement might include addressing the concerns for security, fairness, and justice. Strategies of socialization bring spoilers into the mainstream by establishing norms of behavior aimed at guaranteeing democracy, human rights, and accountability. Such strategies serve to identify illegitimate demands and tactics. Finally, coercive strategies would include identifying and deterring unacceptable spoiler behavior, reducing the spoilers’ resources, threatening international withdrawal, and Stedman's “departing train” strategy (1997), which involves taking the peace process irrevocably forward and leaving behind parties who fail to come on board at the moment of departure.

The conflict is not simply an internal matter; and the international community, particularly the United States, must pay attention to the issue of the settlers as spoilers. American policy toward Israel‐Palestine can be divided into three crude categories. The first is a “hands‐off” policy based on the view that the conflict is an internal matter, or it is too complicated, or some other justification. More often, the U.S. has adopted varying degrees of “doing something” and being seen to do so but having little impact. Last, and rarely, the U.S. has adopted an intense and high‐pressure policy aimed at real progress.

Most capitals that are concerned about the issue publicly support variations of the Geneva Plan. The majority of Israelis and Palestinians also support a two‐state solution. It is reasonable, albeit simplified, to say that it is the spoilers — who could also be called the rejectionists — on both sides that have prevented progress toward that solution.

The spoilers on both sides, Israeli and Palestinian, fit into Stephen Stedman's typology as “total spoilers.” Therefore, they must be dealt with, but they cannot be negotiated with. Unfortunately, neither the Israelis nor the Palestinians are capable of doing so. It is, for example, most unlikely that the “Gaza First” Plan will succeed because of the pervasive threats of violence and even of civil war that surround that process.

The U.S. has neither the moral nor the material capacity to effectively act unilaterally. It must, instead, act as a member of a coalition that expressly defines the Geneva Plan as its goal and identifies and deals with those groups that wish to spoil progress towards that goal. So far, we have worked to build progress and consensus in the center while allowing each side to deal with its spoilers, but this has proven unsuccessful. The spoilers must be taken on directly.

An international coalition that firmly and publicly states its intention to pursue the Geneva Plan while taking a strong stand against spoilers would have considerable and effective moral weight. It could then progress by working with those majorities of Israelis and Palestinians who want a two‐state solution.

It is questionable whether Israel‐Palestine will ever be high enough on the U.S. agenda to overcome the risks of failure or the combined pressure of the American Jewish and right‐wing Christian lobbies. However, the mess in Iraq in the wake of the American occupation may present an opportunity for an American administration to re‐formulate a more comprehensive and progressive strategy for the Middle East, which incorporates this approach to the problem of Israel‐Palestine.

Developing a better understanding of local government law and local politics in the settlements is essential to any plan for their withdrawal. A just and acceptable compensation scheme must incorporate political compensation, that is, a scheme that would address the political and legal structure in which the settlements are currently organized.

I would like to begin my contribution by telling two stories. The first concerns the funding of the campaign against withdrawal by local authorities in the occupied territories. A member of the Knesset filed a petition, challenging the scheme for funding the campaign on the grounds that providing such funding was ultra vires (beyond the scope of their power). The Israeli Supreme Court, basing its decision on a previous ruling that dealt with a campaign against the withdrawal from the Golan Heights, rejected the petition. However, the court warned the local authorities that they risked exceeding their authority if they pursued the campaign too aggressively, or if it turned out that some of them funded the campaign even though their constituents were not the targets of the withdrawal plan.

The second story concerns the very small settlement of Eli, which mostly comprises religious Jews, but is also home to a minority of secular Jews. Eli, using its mandate to “screen” its future residents on the basis of whether they fit in with the character of the settlement, refused one couple a license to purchase property in Eli on the grounds that, though the husband was Jewish, the wife was not, and thus, they were not married according to Jewish law. The settlement argued that it was a religious community and that it was entitled to discriminate on those grounds. Their argument was rejected by the local court on the grounds that, although settlement communities have been allowed to screen their residents on religious grounds, Eli was not a “purely” religious settlement, and thus, was not legally allowed to discriminate against the couple. Both stories illustrate my central thesis that the key issue for the resolution of the conflict is actually local government.

Local legal governance issues have been largely ignored — partly because the occupied territories are believed to be lawless, and partly because Israel is perceived to be a highly centralized state. Moreover, law, particularly local government law, is seen as inconsequential beside the big issues of power, religion, and ideology. But these views are incorrect. The settlements — regardless of their international legal status — are, in fact, highly bureaucratic, and Israel is highly federalized. Moreover, law does play a significant role, both in shaping the consciousness of the settlers and in the very material sense that the law tells people and state organs what they can and cannot do.

Alongside the more traditional cities and local councils, Israel invented a special local entity in 1948 called a “regional council,” which is a unique, two‐tiered system of local government. In the West Bank and Gaza Strip territories, as in Israel proper, localities were legally organized as either regular municipalities or as regional councils. In the territories, there are currently eighteen local councils in which about two‐thirds of the Jewish settlers live (150,000), and seven more regional councils in which the remaining one‐third live. This one‐third (roughly 75,000 settlers) lives in more than one hundred different settlements scattered across the occupied territories. Because of the unique legal structure of their local government, they are allowed local autonomy as well as intra‐local cooperation and regional governance.

Regional councils became key instruments of the occupation because they allowed the settlements a large degree of autonomy from the central government while requiring a high degree of cooperation among them. These twin processes facilitated the accumulation of considerable power by settler elites who ran the regional councils. Continuing devolution over the last two decades has resulted in key control of sewage, water, education, social welfare, and business licensing (including religious observance) passing to local government.

Removing settlements will cause the settlers to lose not only their private property and communal life but also their regional political structures and regional communities. Hence, current political leaders in the settlements are afraid of losing their power and control over their constituencies. A scheme of compensation that addresses the unique political and legal structure of the regional councils will not only allow for settler communities to continue their particular communal life (both autonomous and cooperative) but will also enable settler elites and leaders to retain their control and thus more easily accept the resettlement scheme.

Such a proposal raises some obvious concerns that cannot be addressed in this presentation. First, where these new regional councils would be located is a major problem. Second, any collective compensatory scheme would necessarily be at the expense of individual compensation because of the need to create a sufficient incentive for settlers to choose the collective route of political compensation.

What of the example of the pieds noir in Algeria? They were violent spoilers who were subsequently treated as guilty minorities who were given inadequate financial compensation and treated as pariahs in France. Yet they disappeared as a political problem within five years. What lessons can be learned from this? Also, is there any way to use the strength of the settlers — their ideological commitment — to maneuver them into politically disastrous positions?

Yes, the problem at the moment is that the settlers are currently in charge of the game in Israel. The government should take a high‐risk and coercive political strategy, which is contrary to Michael Ignatieff's view, because it must fight the impression that the spoilers cannot be beaten.

The government has to split the elites from the settlers by seducing them with political compensation. The elites are not only interested in their communities but also in their own power positions.

Regarding the pieds noirs and a Machiavellian approach: it is important to identify the issue at stake. You must politically and normatively isolate the settlers. The democratic legitimacy of the state of Israel is at stake because it must make a tough, collective decision and enforce it, at the point of a gun, against fellow Israelis. The settlers must clearly and expressly be caught at the wrong end of a life‐and‐death issue for the entire state. There is an obligation to treat the settlers as part of the national community and not just a group to be pushed out of the window. Sheer Machiavellianism will undermine the democratic values of Israel; principled Machiavellianism that makes clear what the stakes are will reinforce those values.

Why would the U.S. intervene in a broad coalition with the Europeans, given how things have shaped up with the war in Iraq?

Precisely because of the mess in Iraq, the U.S. has learned that it needs the Europeans on its side. There is broad agreement that the Geneva Plan is the way forward. The U.S. cannot send troops to police the border, but the Europeans should.

The U.S. has no motive to get tough on this issue at the moment. The U.S. has never understood that its own national security could be directly jeopardized by the Palestinian–Israeli conflict. It will, therefore, continue with a policy that is flagrantly contradictory with regard to the conflict. It will not make the strategic choice between supporting a two‐state solution on the one hand and the settlements on the other, and it must do so. Israel also fails to understand that the settlements pose an existential threat, that this is an issue of survival for the entire state. You can get extremely tough once those issues are understood. But we are so far from that point that getting tough is nothing but a gesture.