Would forcing Jews out of Judea and Samaria be ethnic cleansing?

Leftist Israelis and many Westerners are upset an Binyain Netanyahu's video where he said that a Palestinian state that would include no Jews in Judea and Samaria would be practicing ethnic cleansing.



Chemi Shalev is livid and creates a litany of reasons why Netanyahu decided to say this:

Prime Minister Benjamin Netanyahu’s claim in a Facebook video on Friday that the Palestinian demand for the evacuation of Jewish settlements from the West Bank constitutes “ethnic cleansing” belongs in the same league as “Arabs are coming to vote in droves” and “the Mufti persuaded Hitler to exterminate the Jews.” It’s the kind of statement you can’t believe he really said until you see he really said it. Then come the aftershocks, when all sorts of people in the know laud the utterance as a brilliant gambit of a grandmaster strategist.
He wanted to divert the public agenda from the recent crisis over railroad construction on Shabbat, which tainted him, to rebuffing the expected backlash of leftists over his right wing assertions, at which he excels. He is distracting attention from the ongoing police investigation of potential corruption charges. He wants to humiliate Mahmoud Abbas a bit more, after the Palestinian leader was forced to agree to a Moscow summit without preconditions, and perhaps to scuttle the meeting altogether. He wants to show Yair Lapid, who has been breathing down his neck in the polls after assuming a more right wing position, how a consummate rabble-rouser can muster up the nationalist mob without even breaking a sweat. He wants to stick it to U.S. President Barack Obama while he still can, just for the fun of it - or to show what a ferocious war he'll wage against the prospective UN Security Council resolution on the conflict.

You can practically feel Gideon Levy's spittle on his laptop as he writes:

Israel knows a thing or two about ethnic cleansing. Prime Minister Benjamin Netanyahu knows a thing or two about propaganda. The video he posted on Friday proves both points. Here’s the real thing — yet another record for Israeli chutzpah: The evacuation of settlers from the West Bank (which has never happened, and presumably never will) is ethnic cleansing.
Yes, the state that brought you the great cleansing of 1948 and that has never, deep in its heart, given up on the dream of cleansing, and that never stopped carrying out methodical microcleansings in the Jordan Valley, in the South Hebron Hills, in the area of Ma’aleh Adumim and in the Negev, too — that state calls the removal of settlers ethnic cleansing. That state compares the invaders of the occupied territories with the children of the land who clung onto their lands and homes.
Netanyahu proved once more that he is the real thing, the most authentic representative of the “Israeliness” that created reality for itself: Turning night into day, shamelessly and without any sense of guilt, without inhibition.

There is really only one question here: would the forced deportation of Jews from Judea and Samaria be considered ethnic cleansing? To make the question sharper: was the forced removal of Jews from Yamit during the withdrawal of the Sinai, and from Gaza during the disengagement, ethnic cleansing? Shalev asks this question in a starker fashion: were Menachem Begin and Ariel Sharon guilty of ethnic cleansing of their own people in those examples?

The question is difficult to answer because there is no universally accepted definition of ethnic cleansing, a relatively recent term coined in the late 1980s/early 1990s. Wikipedia gives a few definitions:

The official United Nations definition of ethnic cleansing is "rendering an area ethnically homogeneous by using force or intimidation to remove from a given area persons of another ethnic or religious group".[21]

As a category, ethnic cleansing encompasses a continuum or spectrum of policies. In the words of Andrew Bell-Fialkoff:
[E]thnic cleansing [...] defies easy definition. At one end it is virtually indistinguishable from forced emigration and population exchange while at the other it merges with deportation and genocide. At the most general level, however, ethnic cleansing can be understood as the expulsion of a population from a given territory.[22]

Terry Martin has defined ethnic cleansing as "the forcible removal of an ethnically defined population from a given territory" and as "occupying the central part of a continuum between genocide on one end and nonviolent pressured ethnic emigration on the other end".[9]

The Bell-Fialkoff and Martin definitions would seem to indicate that a state can be guilty of ethnic cleansing against its own people, the UN definition seems to say it must only be against a different ethnic group.

But Shalev's question is actually a larger one than he admits. The only reason Begin and Sharon forcibly moved the Jews from those areas was to save their lives. The land was being given away, the Jews would not have ever been allowed to live in their same homes in Egypt or Gaza in safety. The larger context is that the Arabs would have ethnically cleansed those same Jews in a much more violent (i.e., genocidal) fashion, so this was the lesser of evils.

Presumably any withdrawal from parts of Judea and Samaria would follow the same model. The Palestinians are on the record as not allowing any Jewish "settlers" to remain on any land they control, and this demand for what is undeniably ethnic cleansing even according to the UN definition is outrageous, immoral - and accepted as perfectly OK by Western governments. It is not Begin and Sharon that were guilty of ethnic cleansing; it was the demand by the Egyptians and Palestinian Arabs that no Jews remain on their lands that made the expulsion a necessary evil. The Arab demand was paramount to ethnic cleansing, if not exactly that.

But, the critics say, the Jews that live there are there illegally to begin with! Does that make a difference?

Even if you accept that premise - which is false - the answer is no. Forced population transfer is considered a war crime by most formulations of international law, and there is no distinction between types of civilian population ("legal" or "illegal") when those laws were written. In no other case of "settlement" activity (Syrians in Lebanon, for example) were the settlers demanded to evacuate when the occupation ended. Therefore, the question of legality of the settlements is moot as far as the ethical and legal aspects of the expulsions are concerned.

Yet in this case it is still the state that is ultimately forcing its own people to move. Is that ethical or legal?

The best historic analogy would be to voluntary population transfers, where by treaty between powers some of the populations of two countries are swapped or one population is moved. This is the closest example one can find because any expulsion of Jews would be a result of a peace treaty.

While population transfer was a popular solution to problems from the late 19th century to post-World War II, since then the idea of forced population transfer even in the context of a treaty is considered objectionable at best, and for many it is considered a violation of international law.

In "Mass Expulsion in Modern International Law and Practice," by Jean-Marie Henckaerts, he writes,

Although the International Law Association has not clearly held that the compulsory exchange of populations is unlawful, it has at least declared it to be "inherently objectional." The ILA Declaration of Principles of International Law on Mass Expulsion provides: 'Compulsory transfer or exchange of population on the basis of race, religion, nationality of a particular social group or political opinion is inherently objectional, whether effected by treaties or by unilateral expulsion....' In contrast, the Draft Declaration provided: 'Compulsory transfers or exchanges of population by treaties are as inherently objectionable as unilateral expulsions, and any such treaties today are to be considered null and void as inconsistent with those peremptory norms of international law from which no derogation can be permitted (jus cogens).'.' The reference to peremptory international law was deleted at the suggestion of ILA International Committee on the Status of Refugees members Chung Il Chee, Henn-Juri Uibopuu and James Nafziger.

Wikipedia says:

The view of international law on population transfer underwent considerable evolution during the 20th century. Prior to World War II, many major population transfers were the result of bilateral treaties and had the support of international bodies such as the League of Nations.

...The tide started to turn when the Charter of the Nuremberg Trials of German Nazi leaders declared forced deportation of civilian populations to be both a war crime and a crime against humanity.[4] That opinion was progressively adopted and extended through the remainder of the century. Underlying the change was the trend to assign rights to individuals, thereby limiting the rights of states to make agreements that adversely affect them.
There is now little debate about the general legal status of involuntary population transfers: "Where population transfers used to be accepted as a means to settle ethnic conflict, today, forced population transfers are considered violations of international law."[5] No legal distinction is made between one-way and two-way transfers since the rights of each individual are regarded as independent of the experience of others.

The author of the Mass Expulsion book goes on to say that the only way that a population exchange would be agreed not to be illegal would be if it is coupled with a viable right to stay. "The ultimate criterium to decide whether the option to stay is viable is whether one can reasonably be expected to stay in the circumstances at hand."

Wikipedia amplifies this:

The final report of the [United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities ] (1997)[8] invoked numerous legal conventions and treaties to support the position that population transfers contravene international law unless they have the consent of both the moved population and the host population. Moreover, that consent must be given free of direct or indirect negative pressure."

It is fascinating how much emphasis is placed on whether the population being moved is doing it voluntarily. In modern human rights law, this is the single most important criterion as to whether population transfer is considered legal or not.

The overwhelming attitude of legal scholars as far as I can tell to a situation where any population is forced to move against their will, or even if they are pressured to move by the alternative of being in an nonviable living situation, is that such a demand is against international law and humanitarian law. Calling it ethnic cleansing is not inaccurate. And it is up to those who demand that Jews be removed from the territories to explain why they are advocating a likely violation of international law and a clear violation of the human rights of the so-called "settlers."

One other data point of interest for those who claim that the Jews in the territories have no legal, property or human rights whatsoever. In 2004, Human Rights Watch discussed the return of ethnic Kurds, Turkomans, and Assyrians displaced by Iraq’s Arabization program. HRW says

"The ethnic Arab populations brought in by the Iraqi government—some against their will, but most with financial or other incentives—also have accumulated rights that must be respected. Many Arabs paid the government for the homes or land they occupied, or built their own homes on the land. Because of the time that has elapsed since the original expropriations in some areas—nearly thirty years for the expropriations and expulsions of the mid-1970s—many properties have changed hands a number of times, and the current occupants are often far removed from the original beneficiary of the expropriation and Arabization policies."

In other words, even residents who were moved there in clear violation of international law have rights to their property, all the more so if they built it themselves and moved there voluntarily. HRW does not demand that these Arabs be removed from their homes; on the contrary, it only says that disputes over property that used to belong to the Kurds, Turkomans and Assyrians and that were later taken over or purchased by Arabs be judged with a consistent legal process. "The right to repossess private property must be balanced against any rights these secondary occupiers may have under domestic or international law, using impartial and efficient procedural safeguards."

Applying these standards to Judea and Samaria, HRW would have to admit that the Jews who moved there voluntarily and built their own homes - which is nearly all of them - have the right to stay in their homes since there is no other claimant.

But being the hypocrites that they are, HRW would never, ever say this about Jews in Judea.

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