Those "Illegal Settlements"
Essay by William Safire
New York Times - May 24,1979

     Washington, May 23 - As Israel and Egypt begin negotiations
this weekend on the degree of autonomy to be given Palestinian 
Arabs, the central question is this: To whom does the West Bank
belong?
     Our State Department has no position about who owns that
land, except to say that it does not belong to Israel. Although
Secretary Vance admitted in 1977 that it is "an open question as
to who has legal right to the "West Bank," his spokesmen lose no
opportunity to label Israeli settlements in that area as "illegal".
     When a reporter asks for the legal opinion on which such
condemnation is based, the best the State Department can come up
with is a six-page letter written to House Foreign Affairs
sub-committee chairmen on April 21, 1978, from legal advisor 
Herbet Hansell.
     In that letter, Mr. Hansell pointed out that the U.N. 
partition of 1947 was "never effectuated"; that's a lawyerly way
of saying that Trans-Jordan (the name meant "across the Jordan")
grabbed the West Bank by invading the new Jewish state in 1948 and
became the occupying power.
     In 1967, Jordan's King Hussein saw a chance to take the rest
of the land west of the Jordan River and joined the Syrian-Egyptian
attach on Israel. The Arabs lost, and the West Bank - previously
occupied by Jordan's troops - was then occupied by Israel.
     Here the Hansell Doctrine takes its curious leap. Never mind
taht the West Bank was taken by force and occupied by Jordna in 
1948, or that it was retaken by Israel while defending itself in
1967, or that its sovereignty was murkey. Simply because Israeli
troops went in, says Hansell, "under international law, Israel thus
became a belligerent occupant of these territories."
     From that pronouncement, all else flows: "territory coming
under the control of a belligerent occupant does not thereby become
its sovereign territory," and under Article 49 of the 1949 Geneva
convention (intended to prevent displacement of populations) the
"occupying power shall not transfer parts of its own civil population
on to the territory it occupies." Hence, settelements are "illegal".
     But the Israeli settlers are not displacing Arabs, and do not
threaten to. Moreover, those rules were never applied to Jordan when
it was the occupier. Oregon Senator Bob Packwood attacked the 
"illegal" charge in a speech last week: "From 1949 to 1967, Jordan
held the West Bank. No second Arab-Palestinian state was ever 
created in those 18 years. No country except Great Britain and
Pakistan ever recognized Jordan's sovereignty over the West Bank.
No Arab country has ever conceded Jordan's right to the "West Bank."
     Sovereignty - who owns the land - is the key. Jordan claims it;
the P.L.O. claims it; and Israel, through its continued settlement
policy, asserts its own claims. The moment Israel were to admit it
is not at least part owner, an independent Palestinian state would
be born, which - in this decade, at least - would be an intolerable
threat to Israel's security.
     That's why Mr. carter, blind to the danger of a radical Arab
state nestled in Israel's vitals, call the settlements "an obstacle
to peace"; in reality, they are an obstacle to the P.L.O.
     At Camp David, when Menachem Begin presented his plan for
self-government by Palestinian Arabs, he made clear that at the 
end of five years, if anyone else claimed sovereignty, Israel would
also claim sovereignty: Israel was not giving up its interest in 
that West Bank land.
     That's what the big flap in the Israeli Cabinet was about last
week, as Israel and Eygpt prepared initial positions. For openers,
Mr. Sadat announced he would be calling for his extreme: a sovereign
Palestinian Arab state. As promised, Mr Begin countered with his own
extreme: local autonomy of the people, but Israeli sovereignty over
the land.
     Defense Minister Weizman blew his stack at that; he felt such
an honest laying of the cards on the table would distress Mr. Sadat.
Foreign Minister Dayan patched thing up by treating the position
paper as "guidance" to the Israeli negotiators and not as a paper
to be handed the Egyptians.
     That provides some more room to maneuver, but illustrates the
essence of the negotiation: It's about sovereignty. If the 
negotiations succeeds, nobody will emerge the clearcut sovereign
power. Nobody - not Israel, not Jordan, not some autonomous entity -
should wind up with exclusive sovereignty. National ownership can be
shared; there can be no final settlement that does not include the
right of Jewish settlers to settle.
     We should be on our guard against phony Administration claims
that only by pressuring Israel to give up its settlements policy can
we induce the Saudis to embrace the egyptians again. Mr. Carter
should stop insisting Israel has no rights of sovereignty in the
West Bank, and start urging the negotiators to find a middle ground -
one that will enable Jews to live peaceably among Arabs in that 
Arab-populated land just as a half million Arabs live peaceably in 
Israel.