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.
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