Portuguese / Spanish / English

The planned land swap: a legal, geographic and political transgression

By Dr. Salman Abu Sitta

Newspaper columns are currently busy with commentaries on Arab, Israeli and US diplomatic moves suggesting new initiatives in the peace process, which died some time ago (although nobody has signed the death certificate yet). These attempts to resuscitate the process will not bring it back to life because the causes of death are conclusive and they're the same causes that have been known for decades. The "new" moves are nothing new at all, they're simply recycled and repackaged calls to return to the armistice lines of 1949 (which are erroneously known as the "1967 borders"; they are not 1967 and they are not borders). At the same time, they plan to allow Israeli settlements beyond the armistice line to become part of Israel, through a process of land exchange. This plan does not call for the application of the right of return (of refugees) although it does state that international law needs to be adhered to, rather pointlessly, as it will be subject entirely to the dictates of Israel and America.


The focus of the new version is the land exchange demanded by Israel; this is not as innocent a negotiating demand as it seems because Israel essentially wants to invalidate the international law which says that Gaza and the West Bank are Occupied Territories. Israel also wants to overturn the International Court of Justice advisory ruling that this Palestinian land is occupied and the occupiers must withdraw completely; and that the apartheid wall is contrary to the law and has to be dismantled with due compensation paid.

Thus in one fell swoop, Israel wants to demolish established legal norms and to transform the land beyond the wall into what will be at best a Palestinian state with partial sovereignty. This will be very similar to what Israel achieved through its peace treaty with Egypt in 1979, which left the Egyptians with incomplete sovereignty over large tracts of Sinai even though there was a complete Israeli military withdrawal.

If concessions are granted to Israel on this basis, and the Palestinian negotiators accept it, then the Palestinian cause will be fragmented into relatively small detached issues such as borders, water, settlements, refugees and others, based on the principle of equal rights of Palestine and Israel in the West Bank. What is left to haggle over is only the distribution of these rights to the two parties according to the balance of power.
This justifies the uproar caused by the issue of land exchange. The newspapers were full of comments on the "breaking news" in Haaretz last month (Aluf Benn: Olmert's plan for peace in 17/12/2009), and published alongside them a map of the proposed land exchange. This was presented to Palestinian President Mahmoud Abbas for his perusal; childishly, he was denied an official copy unless he agreed to sign it as an agreement.

Israeli deception has no limits but no one can be fooled except those who are desperate or ignorant of the facts, or both. Israel wants to exchange land it occupied in 1948 with land it occupied in 1967, while it does not have the right to either. Israel believes that this format gives legitimacy to land occupied in either year by dispensing of the owners' rights in favour of itself. Some may say that Israel "owns" the land it is exchanging for the settlements, but that's not true; even if they recognize Israel as a country, control of a land does not mean its ownership and the land remains the property of its original owner no matter how long it takes to get it back. Hence, Israel does not have a legal right to suggest such an exchange of land, unless the owner of the land first transfers that ownership to Israel which, of course, is not going to happen legally.

A study of the Olmert draft as it is shows that, in fact, it proposes the confiscation of Palestinian property located between the apartheid wall and the 1949 armistice line, including East Jerusalem, which means it considers Israel's new borders to be the path of the wall itself (see the map). This means adding around 370 sq km from the West Bank to Israel in addition to the 68 sq km annexed from Arab Jerusalem in 1967, making a total of 438 sq km of territory.

Arab Jerusalem

One of the historical ironies is that Israel wants to expand the area given up by King Abdullah (of Jordan) in March 1949 under the threat of the then new state of Israel occupying the entire West Bank. That "concession" by Abdullah saw an area of 375 sq km, including 70 villages with 100,000 inhabitants, falling under Israeli rule.

The scam proposed by Olmert today has several precedents: the armistice with Jordan in March-April 1949 stipulated that Jordan has a right to exchange the land ceded to Israel with other land in Al-Fator (Bissan District) and in Al Khalil (Hebron) district. Guarantees were given that Israel would pay the cost of a new road between Qalqilia and Tulkarim in order to restore the connection between them after the compromise of the territories noted above.

Of course, nothing of this kind ever happened; no money for the road was ever paid, Al-Fator was not restored and land in Hebron was not acquired. It was all phoney theatre, and the actors knew it; and what's surprising is that Al-Fator was Arab land in 1949 and there was no need for it to be "restored", but because it was all for show, Israel annexed it anyway.

This Olmert project, if approved, will confer legitimacy on the occupation of Jerusalem and its environs, the occupation of the Latrun area of the West Bank, and the legitimacy of continued extraction by Israel of water from the western aquifer, the largest ground water reservoir in the West Bank.

What has Israel offered in exchange for such Arab generosity? It offers to expand the West Bank area in the district of Hebron with 190 sq km (number 28 in the map) of land that was, still is, and always will be, barren, which has nothing in it but an Arab village that is not recognized by Israel; Atir (or Um Alhairan) has no water or even a shoreline on the Dead Sea. Israel, therefore, does not lose anything, but gains by getting rid of another Arab village. As for the west side of the Hebron district, Israel is offering an expansion of 12 sq km, also infertile land, so none of the settlements in the area will be affected, including Alchomaripa and Omazia; the latter is built on the land of Dawayma, the Palestinian village which experienced the largest massacre in the 1948 Nakba-Catastrophe. These settlements will not be affected and Jewish settlers won't notice any change.

Observers of the history of the Nakba know that the armistice line in the Hebron district, starting from Jerusalem to the Dead Sea, was arbitrary to a large extent; there was no battle or argument about it, either with Egypt or Jordan, both of whom had forces to defend this area in 1948. In effect, the armistice line could have been to the west of its current location, bringing Fallujah and Beersheba into the West Bank, along with hundreds of square kilometres of land. It was neglect by the Arabs that lost this territory.

The proposed line around Jerusalem and Latrun is the second major attempt to seize Arab land. The first was carried out successfully in 1949 when Moshe Dayan moved the armistice line to include west of Jerusalem and Beit Safafa and the Walaja territories, as well as the Jaffa-Jerusalem railway. The second is the plan currently proposed to create a Jerusalem with a majority Jewish population.

Gaza's story is no less a tragedy than that of the West Bank. The real armistice line agreed to by Egypt in February 1949 (shown on the map) allocated to the Gaza Strip an area of 555 square kilometres, which is 200 square kilometres more than its current size.

How did that happen? A secret agreement was negotiated between the Egyptian government and the Israelis a "co-existence agreement" and signed in February 1950. The pretext was security, but in reality it was meant to prevent Palestinians from returning to their homes across the armistice line; such Palestinians are referred to as "infiltrators" by Israel and according to that agreement, the armistice line was moved to its current position. What is strange is that the "co-existence agreement" states that the original armistice agreement will not be affected by what was intended to be a temporary agreement, but no one thought to ask for the armistice line to be restored to its original place throughout the period from 1950 to 1967!

This brings us to the Olmert plan for peace with the expansion of the Gaza Strip by 64.5 sq km, out of the original 200 sq km seized through fraud and secret negotiations and about which Palestinians are unaware. Just like the situation proposed for the Hebron district, the expansion of the Gaza Strip does not mean the removal of any settlement; none of the Beeri, Kissufim or Nirim settlements, which were built on land stolen from the Gaza Strip, are going to be affected in any way.

This is Israel's perennial attitude; it seizes land by force or extortion and then proposes to return a small portion of it to the rightful owner, in exchange for the forfeiture of his rights to the entire piece of land. This is considered to be a huge concession on Israel's part!

The commotion that accompanied the leaking of the Olmert plan was entirely artificial aimed at moving the issue forward within the framework of Arab and US diplomacy. This is because the plan itself has already been published in the Newsletter of the Foundation for Middle East Peace (FMEP) and is, therefore, not top-secret. The officer who drew the map is Shaul Arieli, who submitted it as a part of the "Geneva Initiative."

At the time of the first publication, retired General Giora Eilan published the same plan with full details in the Washington Institute's Policy Focus No. 88. General Eilan, who was chair of the Israeli National Security Council from 2004 – 2006, included in his plan an integrated project for "peace" containing the following points:

  • The borders will be based on Israeli expansion in the West Bank, in return for a symbolic retreat from Hebron and Gaza, similar to the map.
  • The return of refugees would be symbolic, accompanied by a mass resettlement of the refugees in Arab countries under different options. This is the same formula as the "Geneva Initiative".
  • Jerusalem is to be divided according to neighbourhoods, leaving sovereignty to Israel.
  • The state of Palestine will not be a state and will not be Palestine as we know it. It will be demilitarized, with no sovereignty or ability to engage in foreign treaties, no authority over its borders, the Jordan Valley, the space above the land and that below the ground, and Israel will have the right to establish and operate early warning stations anywhere within its territory.
  • Water will be distributed according to the current situation.
  • A corridor connecting the West Bank and Gaza Strip will be allocated.

This fragmentation has a dual purpose: First of all, Israel can get away with not recognising the West Bank and Gaza as occupied land, and thus the land therein can be shared according to the balance of power. And second, Israel does not have to accept the return of Palestinian refugees to their homes and land.

As a result, the acceptance of negotiations on the basis of a multiplicity of issues would lead to an Israeli trap, whereas the Palestinians' rights are clear and are based on two principles:

1. The inadmissibility of the occupation and acquisition of land by force, as confirmed by the advisory opinion of the International Court of Justice in July 2004, which calls for Israel's withdrawal to the armistice line of 1949.

2. The right of return for refugees, which is a right confirmed by the international community more than 130 times; it cannot be annulled and no alternative formulas can be invented to abrogate it.

It seems that the United States has basically adopted the Olmert plan in one form or another, according to the Maariv newspaper on 5th January; perhaps that is the reason for the current shuttle activity of Arab foreign ministers. As noted in Al-Hayat newspaper, US Secretary of State Hilary Clinton, in a press conference with the Jordanian Foreign Minister Nasser Jawdat, called for "ending the conflict" by way of a Palestinian state with "friendly exchange of land and realizing the Israeli goal of a Jewish state within secured and recognized borders". This last clause (the reference to a "Jewish State") opens the door for Israel to expel Palestinians living in the "Jewish State" according to the land exchange programme (see map).

This plan will not succeed for several reasons:

1. Palestinians will not agree to the so-called "land exchange", as the President of the Palestinian Authority has no power to hand over Palestinian land to Israel because Palestine's borders are set by the Palestinian National Charter of 1968. Any such decision would have to be determined by an elected Palestinian National Council representing 11 million Palestinians, and such a council does not exist.

2. The legitimate and acceptable way to achieve justice for Palestinians based on their inalienable rights is for the Israelis to end the illegal occupation, remove the immoral blockade imposed on the West Bank and Gaza Strip, and reaffirm the right of return of Palestinian refugees; no one has the right to waive or annul any of these.

As for the "Arab Initiative", it does not emphasize the right of return and leaves it subject to Israel's approval, which opens the door to negotiations lasting for several years in order to agree to a "just solution" to the issue of refugees. This is contrary to the fact that the right of return is inalienable, and international law has previously determined that the "just solution" has to be the return of those people to the homes and land from which they were expelled. As such, there is no need to be negotiating about this right unless the intention is to rescind it.

What is planned today is the re-drafting of failed plans, with a new look that has all parties in agreement, except the Palestinian people. This new Israeli formulation offers each party to the negotiations what it wants, including: land exchange, a state in name only, the "Geneva Initiative", the "Arab Initiative" and American blessing. But the Palestinian people, the possessors of legitimate rights, who lack genuine representation at the negotiation table, will not concede their rights now after six decades of steadfastness.

The author is founder and president of the Palestine Land Society and an honorary advisor to the Middle East Monitor (MEMO)

Source: Al-Hayat newspaper, 18/1/2010

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.

Categories
ArticleMiddle East
Show Comments
Show Comments