In recent weeks, Israel’s Government has defied international opinion by insisting on its right to consolidate control over the large settlement blocs in the West Bank. Britain is only one of a number of countries that has criticized Israel’s approval of a university in the settlement of Ariel and its announcement of plans to intensify building in the controversial E1 zone around Maale Adumim.
Many in Israel do not take kindly to these British criticisms. After all, it is argued, since Britain continues to occupy the Falkland Islands which are claimed by Argentina, it has no right to lecture Israel over its occupation of the West Bank. Thus, Gideon Saar, Israel’s outgoing Education Minister, recently responded to British condemnations of Israel’s settlement policy, claiming that Israel’s connection to Ariel in the West Bank was at least as strong as Britain’s claim to the Falkland Islands.
While it may be tempting to accuse Britain of hypocrisy, such comparisons are both foolhardy and counter-productive since they undermine the case of Israel’s right wing over the question of settlements. While Britain’s claim to the Falklands is perhaps questionable from a legal and historical perspective, there are significant differences between the two cases under discussion. In 1833, following its invasion of the Falkland Islands, Britain developed a claim to the territory partly through acquisitive prescription. Once other states have acquiesced to the de facto control of territory for a protracted period, that nation can claim legal title to the territory under international law. The principle of prescription is of course problematic in this context since Argentina has claimed that it challenged Britain’s claim to the Falklands during this period.
From today’s perspective, the British invasion and settlement of the Falklands in 1833 can be viewed as a violation of international law, since it involved the transfer of British subjects to territory that was claimed by Argentina. However, we are talking about 1833 – a point in history when occupation was a legitimate means to acquire sovereign rights. International law has evolved significantly since 1833. UN Security Council Resolution 242, for example, has placed an emphasis on “the inadmissibility of the acquisition of territory by war.” This would apply also to a defensive war. The Palestinian challenge to Israel’s settlement policy has traditionally been based on the Fourth Geneva Convention of 1949 which prohibits the transfer of civilian populations to occupied territory, (although Israel disputes this interpretation). Conveniently for Britain, the Fourth Geneva Convention did not exist in the mid nineteenth century, but it was applicable after 1967 when Israel introduced settlements in the territories.
Although there are grounds for arguing that Britain should negotiate with Argentina over the future of the territory, the wishes of the Falkland islanders will also have to be taken into account in future discussions. In a similar vein, during any future negotiations between Israel and the Palestinians, the fate of the Jewish settlers should also be given serious consideration. Nevertheless, there are significant differences between the two cases. Most of the Falkland settlers have strong ties to the British Isles, and most if not all of them wish to remain subjects of the British Crown. The Palestinians who constitute some 83 per cent of the West Bank do not wish to be ruled by Israel.
While Israel’s settlers in the territories wish to remain under Israeli control, they only constitute around 17 percent of the West Bank population. Were Israel to reinforce its claim to the West Bank by annexing the territory, as some on the right are demanding, it would eventually have to offer citizenship to the Palestinians. Naftali Bennett of the Jewish Home party has suggested that Israel should offer citizenship to some 60,000 Palestinians living in Area C of the West Bank in return for annexation of this territory. Until recently, most Israeli politicians on the right had avoided such policy statements, aware no doubt that this is the slippery slope that could spell the end of Israel as a Jewish and democratic State. While Prime Minister Benjamin Netanyahu has accepted the two-state-solution in principle, there are those within the Likud, such as Tzipi Hotovely, who have claimed that this is merely a tactical move to fend off pressure. Saar has also stated openly that a Palestinian State is not on the Likud Platform. An increasing number of Likud politicians are calling for annexation.
Argentina’s sovereign statehood is not damaged by Britain’s occupation of the Falkland Islands. In contrast, the ability of Palestinians to exercise their own self-determination is threatened by the expansion of the Israeli settlements. This is precisely where Saar’s argument falls flat.