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Chapter 2

Between Legality and Illegality

In April 1968, a group of young religious students together with a number of families who were disciples of the hawkish leader Rabbi Zvi Yehuda Kook obtained a forty-two-hour permit from Uzi Narkiss, the commanding general of the Israeli Central Command, allowing them to enter the occupied city of Hebron. It was less than a year after the beginning of the occupation, and a permit was needed because the West Bank was closed off to Israeli civilians for overnight stays. This group of religious right activists rented out the Palestinian Park Hotel from its owner Fahd Kawasmeh under the guise of celebrating the Passover holiday in Hebron.¹ They used the week-long time frame of the holiday to initiate a permanent return to a city deemed sacred in the Bible and second only to Jerusalem in its significance for Jews. Once inside Hebron, they squatted in the hotel for approximately six weeks and refused to leave. The Israeli government responded by deferring any binding decision on whether these settlers could remain permanently, relocating them instead to Hebron’s military headquarters. Settlers continued to live in this military compound for three years on a putatively temporary basis with their families, until they were granted the right to build the settlement of Kiryat Arba on the city’s outskirts.

The government’s decision to relocate the Hebron settlers to the military compound was controversial from the outset. It was spurred on in part by a seeming concern with international law, particularly the Fourth Geneva Convention, which prohibits deporting protected persons or introducing part of an occupier’s own civilian population into an occupied territory. Under the Geneva Convention, then, an occupying power is bound to maintain the demographic composition of the territory under its control. The decision to transfer settlers into what was considered a de facto temporary military location was presented as a compromise that initially positioned these religious devotees as an extension of the occupying military presence. Nominally satisfying this noncivilian and temporary requisite established by the Geneva Conventions, however, gave rise to two important precedents that continue to have deep ramifications: retroactively recognizing as legal settlers’ illegal acts of squatting; and giving settlers arms so that the military would not be charged with directly defending them, claiming that they posed an additional security burden.

Figure 5. Archival photo of Kiryat Arba (1971). Central Zionist Archives, PHG/1066154.

Legal Indeterminacy and Religious Devotion

This chapter, based on interviews, primary sources, and secondary histories, looks back on the beginning of Hebron’s settler presence from the vantage of Kiryat Arba for the lessons on illegality it provides. It does not pretend to be a complete history or a comprehensive study of the legal and illegal elements of the occupation as a whole. Rather, my aim is to highlight the conditions and contradictions that allowed a particular version of Jewish settler practice to be mobilized and take hold. In doing so, I reexamine the idea that historical continuity and the sacredness of Hebron alone led these religious settlers to inhabit the city. Rather, settling Hebron required incrementally producing a site on the ground in a Palestinian city that could then be apprehended as Jewish in order to make settler appeals to origins more plausible. Moreover, legal indeterminacy was the condition that enabled these settler activists to use small tactics on the ground to create an authoritative religious realm. They invoked Jewish law with the aim of diminishing the significance of the Palestinian presence in Hebron because the legal gray zone of the occupation rendered both legal limits and geographic boundaries malleable.² This allowed settlers to mobilize limited interpretations of the Bible as prescribing religious imperatives in ways that would not have been possible in a more stable legal environment, granting religious devotion the power to play a key role in confronting the legal authority of the state.

In terms of this legal gray zone and the environment in which an ideological settler project first took hold, it is important to note that the Israeli government’s ambiguous position on international law was shaped by the absence of a Palestinian state. Israel contended, in other words, that it had not taken over territory from any “legitimate” sovereign power precisely because it deemed Jordanian rule of Palestinian West Bank areas unlawful. Rather, seeing itself as a liberal occupier, the state claimed that the Geneva Conventions on occupied territory did not apply because it was acting as a temporary trustee, administering the area on behalf of the Palestinian residents living there until they were prepared to rule themselves.

Hebron Settlers as an Inconvenience

According to Shlomo Gazit, who at the time of the Park Hotel takeover was serving as the head of the Unit for the Coordination of Operations in the Territories in the Israeli Labor government, the initial settler presence in Hebron was considered a headache (rather than a serious dilemma) because it afforded no strategic value for the military administration. Hebron had originally been excluded from Deputy Prime Minister Yigal Allon’s settlement plan, which, after the 1967 war, envisioned setting up security settlements directly along the Jordanian border and creating a land barrier by annexing a swath of territory ten to fifteen kilometers wide along the Jordan River along with other lands (cf. Shlaim 2014:274). Allon’s plan also called for creating two noncontiguous Palestinian areas, including major cities, which he thought would become either demilitarized autonomous Palestinian zones or areas given back to Jordanian rule. His idea was to include as few Palestinians as possible in the most amount of land that could be added to Israeli territory (ibid.). The government later adopted the Allon Plan as its own, modifying it by allowing a settler presence to be established just outside the heavily populated Palestinian city of Hebron and well beyond any previously envisioned security barrier.

Inside Israeli government circles, there was as yet no consensus around what the 1967 war’s large territorial gains meant for the long term (ibid.). While those in the Labor-led ruling coalition took the position that a portion of these lands should be exchanged for a lasting peace, others took a more hawkish view and maintained that holding onto all territorial gains made Israel more secure than it had been within its 1949 armistice lines. In trying to explain the ascendance of ideological settlers prompted by the settler group entering Hebron a year later, scholars point to the euphoric mood in Israel immediately after these vast territorial gains (Sprinzak 1991, 1999; Feige 2009). They allege that government officials and a comparatively secular Israeli public were more favorably disposed to a divinely inspired return to cities (East Jerusalem) and sacred sites (e.g., Tomb of the Patriarchs) deemed important in Judaism that had been under Jordanian control for nineteen years. Hebron, then, was seen as a religious exception to strategic plans for the West Bank during a period in which Jerusalem’s holy sites were being incorporated into the Israeli state.

As part of this wider security strategy after the war and in accordance with the Allon Plan, Prime Minister Levi Eshkol first began to establish Nahal (Hebrew acronym for Noar Halutzi Lochem, lit. “fighting pioneer youth,” a special unit of the Israel Defense Forces) military settlements in the newly expanded border areas, particularly in the Jordan Valley, mixing military outposts with agricultural activities (Gazit 2003:251). The idea behind establishing these Nahal settlements was to create an entrenched military presence while using agriculture to finance it and to allow for the possibility that these military bases would eventually be turned into civilian communities along the Jordanian border. Nahal settlements, then, introduced a way of integrating military aims with civilian elements, which in turn made possible a more permanent form of rule over the territories (ibid.). They also enshrined the government stance of “deciding not to decide,” which paradoxically extended relatively permanent forms of control while not committing the government to remain in these areas (Demant 1988; Gazit 2003; Zertal and Eldar 2009). In terms of Hebron’s ideological settlers, these Nahal settlements served as one of several justifications for religious right civilian-led initiatives. When religious settlers first entered Hebron in 1968, they framed their actions as similar to the Nahal initiatives already in progress, while invoking an earlier history of Zionist settlement to legitimize their actions. Yet at the same time, they began using elements of religious practice to test legal limits from the start, flouting military restrictions in a context where international law was itself being violated.

One could argue that at the time small-scale settler tactics on the ground meant little and that it was mainly government policy (or indecision) that set the stage for the entrenchment of a more radical settler ethos. Moreover, everyday religious lives shaped by adherence to Jewish law and tradition among ideological activists in this period may seem less significant than the bold statements of key religious leaders like Rabbi Moshe Levinger, Rabbi Hanan Porat, and Rabbi Eliezer Waldman, as well as a range of other Labor supporters. Yet the tactics the original Hebron settlers deployed on the ground are worth revisiting here because they tipped the scales in favor of settlement at a moment when a permanent ideological settler presence in Hebron still hung in the balance. Standing between a distinct shift in older forms of messianism, which scholars like Aviezer Ravitzky (1996) and Gideon Aran (1991, 2013) rightly pinpoint as significant in spearheading the religious sensibility of these ideological settlers, and the broader context of government indecision, there exists a whole range of small-scale practices, either directly illegal or pushing the boundaries of a decidedly ambiguous legality, which religious settlers used to create precedents on the ground and to persuade their supporters of the necessity of allowing them to remain in Hebron. By focusing on the spatial or material character of these activities and the agency of these settler-believers, it becomes possible to investigate how distinct forms of Jewish devotion and belief came to depend more fully on the legal gray zone of the Israeli occupation in its first year and thereafter.

Observing Passover, Skirting Authority

Shlomo Gazit, head administrator of the Occupied Territories during the Park Hotel takeover (and later a dissenting voice within the military establishment), contended in an interview that “chance” was largely responsible for allowing the initial settler presence to take hold in Hebron. He recalled that the two military authorities who would have intervened at the time of their entry were absent. Moshe Dayan, the Israeli minister of defense, had just been hospitalized for serious injuries after an archaeological accident (a wall had collapsed on him), and, as head administrator, he too had been away for the week sitting shiva (mourning) for his father, who had died the day before. “The military people who should have and could have intervened at the time didn’t exist,” he emphasized. He maintained that the settlers used this window of opportunity to enter Hebron illegally. After this, he insisted, it was the government alone who was to blame for their continued presence because its decisions were imposed on military leaders. That is, military leaders were charged with carrying out government orders from above rather than making policy of their own.

Historians Idith Zertal and Akiva Eldar (2009:24), commenting on the settler’s illegal entrance into Hebron, allege that Gazit’s claims and others like them amount to a rewriting of history in order to minimize the responsibility of those in authority who made a series of decisions that empowered the settlers.³ As evidence, they quote Rabbi Moshe Levinger, the radical right rabbi leading the Hebron settlers, who refutes the idea that settlers established themselves illegally: “We never told anyone that we were going only to celebrate Passover. The government authorities knew we wanted to settle … we didn’t want to play tricks. Had they followed us closely, they would have seen that any one going to Hebron with Frigidaires and washing machines wasn’t intending a pleasure trip. I don’t think that it is respectful of the truth, respectful of the Jewish people, or respectful of Hebron to say that if there are Jews in Hebron, it is because we rebelled and went against the will of the government of Israel” (Zertal and Eldar 2009:457n35).

If military authorities disagreed with the settlers, why did they not enforce their own rules and regulations? Did they not have the authority to do so? Gazit’s view of the situation was that the military was charged with overseeing Jewish visitation to the Tomb of the Patriarchs, while preventing any permanent Jewish presence to take hold in Hebron. Yet he also maintained that he was not about to resign over a dispute that seemed at the time to be relatively insignificant (Gazit 2003:164). In my conversation with him, Gazit emphasized: “I was in charge of an area with a [Palestinian] population of one million people. That was my population, not the Jewish [settlers], but the local Arab Palestinian population.” He spoke of the broad task of administering as one of taking on the responsibility for meeting the basic needs of Palestinians, specifically in Nablus, Hebron, Ramallah, and East Jerusalem—all areas that had absorbed refugees from the 1948 war. He also noted that as a fighting force, the military was not particularly well suited to the task.⁴ In comparison, he noted, this band of young religious settlers rightfully warranted little of his attention; not only were their numbers small, but their views were marginal. Gazit, however, did seem to have a basic sympathy with settler demands to pray at the Tomb of the Patriarchs, because he viewed it as a request entirely in keeping with the national ethos of returning to sacred Jewish places.

Occupying a Legal Gray Zone

A distinctive feature of the Israeli occupation has been the legal overlay granted to its many illegal actions. Palestinians under military rule have brought cases to the Israeli High Court, as a check to military actions, but they have rarely won. Ideological settlers, by contrast, have proven more successful in deploying legal ambiguities for their own advantage. The prevailing legal gray zone of the occupation for them meant capitalizing on multiple legal codes that could be invoked and enforced in an ad hoc way by the military administration controlling Palestinian areas. During the early period, this ambiguity allowed for maneuverability with respect to a variety of religious claims as well. Settlers sought to establish precedents, push against regulations, and expand spatial boundaries using religious rationales. These tactics were being deployed on the ground as debates took place in the Israeli government over whether the Occupied Territories were indeed truly “occupied.”

Sparked by Israel’s (and international) reluctance to recognize either Jordan or Egypt as the legitimate sovereign powers of the Palestinian territories, Israel maintained that it had liberated rather than occupied these areas. To quote Shlomo Gazit again expressing the Israeli government point of view: “Is the West Bank occupied, and if it is, do all the international laws apply to it? If so, we are not allowed to confiscate territory, and we are not allowed to move Israeli civilians into that area. Or is it a liberated area, and a traditional homeland of the Jews?” As an indication of the seriousness of this legal predicament, Major General Meir Shamgar, who later became president of the Israeli High Court, advocated using the more neutral-sounding terminology of “held” or “administered” territories (sheṭaḥim muḥzaḳim) rather than “occupied,” striking a compromise among divided Israeli opinion. Disputing the idea that the area had any legitimate sovereign ruler gave Israel greater liberty to reinterpret international law, overriding injunctions against selling or transferring property, while making permanent changes to the area’s demographic and Palestinian character.

Though administering Palestinians within the boundaries of the Israeli state had already been established policy by the time of the occupation (cf. Robinson 2013), Gazit alleged that West Bank Palestinians were viewed as a distinct case by military authorities because they were slated to remain beyond the borders of the state. Unlike imposing military rule within its own territory, he contended, where Israel was dealing with Palestinians who were de facto citizens but whose rights had been suspended and would one day be returned, Palestinians in the West Bank were always viewed as a foreign population.⁵ Gazit also asserted that because the rights of Palestinian citizens would eventually have to be restored, the military administration necessarily observed more built-in limits in their case than in the West Bank. He did not, however, stipulate what these limits were or address rationales for the indefinite occupation of the West Bank.

Apart from sidestepping international law, the occupying military also shaped its actions by using several inherited legal codes—Ottoman, British, and Jordanian. In Hebron as in other occupied areas, these were merged with Israeli administrative law and new military ordinances further expanding the legal gray zone. The convergence of multiple legal frameworks and codes changed the tenor of many of the original laws, allowing administrators and government officials to pick and choose the laws they saw as most relevant, while confiscating Palestinian land by citing pressing security concerns or military needs.⁶ Most prominent among these were the Ottoman-derived laws distinguishing “private” land from that which was “public,” or state-owned. In the view of the Israeli military, any lands that were deemed to be state lands, namely, Palestinian lands that had not been cultivated, presumably in keeping with Ottoman precedent, could be taken over to facilitate military rule on behalf of Palestinian civilians. Yet the “public” use of this state land translated into settler and military use alone, to the exclusion of Palestinian needs (Zertal and Eldar 2009:368–72). While confiscated land enabled settler religious claims to take further hold, it also gave rise to settler struggles with the military over whether they, as civilians, would be subject to its authority.

Zertal and Eldar (2009), who contemplate the central role of illegality in their examination of Jewish settlement, hypothesize that the rampant illegality of settlers had its roots in the British Mandate period, where quickly made land claims under the rubric of “stockade and tower” settlements and the sidestepping of British colonial authority were tactics used in laying the foundation for the Jewish state. They do not grapple, however, with the implications of ideological uses of religion in the context of the occupation. Did settler claims based on the Bible contribute to the ways in which those in the government and the military were willing to override law in the name of “tradition”? The record shows that investments in Judaism alone did not directly lead to tolerating settler illegality. Initially, the predominant concern was with not wanting to publicly air internal disputes with the settlers that might jeopardize the military’s ability to rule over Palestinians. Moreover, there was also a strong reluctance on the part of the government to deploy the Israeli military against what was perceived to be the nation’s devout Jewish representatives.