No Easy Road: Easements and Occupation in the West Bank

Anyone who’s spent time in libertarian circles has probably encountered the notorious debate over easements. Here’s an interesting iteration of the debate from about a decade ago, involving Walter Block, Stephan Kinsella, and Roderick Long. Roderick’s position nicely summarizes the basic issue involved:

I’ve long argued that one property owner cannot legitimately buy up all the land around another’s property and thereby either keep the latter prisoner (if she was on the property at the time) or bar the latter from her own home (if she was away) – since one cannot legitimately use one’s own property to interfere with the liberty and property of others.

I read the debate with intense interest when it came out, but never quite settled on a position, in part because I found the thought-experiments involved too distant from anything I could think about with any degree of confidence. Also because I wasn’t sure I agreed with the underlying assumptions that got the debate off the ground.

Robert Nozick discusses a similar sort of issue in Anarchy, State, and Utopia–the case “where someone appropriates the total supply of something necessary for life,” then uses his property right to that thing against someone who desperately needs it for life. The case he mentions is that of someone who appropriates the only source of water in a desert that has very few water sources, and, invoking his property right in the water source, either extorts the next thirsty traveler or allows her to die of thirst for lack of the ability to pay the going price for water. I guess there’s also the possibility that for a certain kind of owner, if you’re the wrong kind of traveler, no price is high enough to buy the water; the owner might just be malevolent enough to want to watch you die for the fun of it. Stranger things have happened. (Nozick, Anarchy, p. 179, discussing Hastings Rashdall’s “The Philosophical Theory of Property,” Property, its Duties and Rights [1915], and Ayn Rand’s “Man’s Rights” [1964]).

As it happens, the water example is illustrated by a famous scene in “Lawrence of Arabia.” Things go hard for the hapless Tafas, but only go well for Lawrence because he’s the star of the show. In a different mood, Ali would have shot him, too.

I happened to see a presentation last night by the Palestinian cartoonist/activist Mohammed Sabaaneh that reminded me of the fact that life in the Occupied West Bank raises the easement issue in a vivid and all-too-realistic way.

Here’s a striking if imperfect case. The Palestinian city of Qalqilyah is, notoriously, surrounded almost entirely by a security wall and by Jewish settlements. There is, to be sure, a road out of Qalqilya, but it can and is closed at will by the Israeli military, and when it is, the entire town of Qalqilya is walled-in and cut off from the rest of the world. Granted, people can move around within Qalqilya, so in that respect it’s not quite like the standard examples one finds in the libertarian easement literature. But the point is, when the road out of Qalqilyah is closed, its residents can’t get out. The situation sounds uncomfortably like the advertisements for the old “roach motel” traps for cockroaches.

A second example, also merely approximate: Claire Anastas’s home on the outskirts of Bethlehem.  The Anastas home is closely surrounded on three of four sides by a separation wall which simultaneously serves to separate her house and Palestinian Bethlehem from an Israeli settlement and Jewish religious site (Rachel’s Tomb) nearby. For “security reasons,” the Anastas family is not allowed on the roof of their home (they’re shot at if they try), not allowed to open their second floor windows, and (I strongly suspect) not allowed to dig underneath it, either. That said, it’s not entirely surrounded: there’s a bit of road before you hit the wall on the fourth side, in front of the house. That road leads back out into Bethlehem, so that the family, while crowded and confined in a variety of ways, is not closed off.

I was familiar with both of the preceding examples but not with this last one, from Sabaaneh’s presentation, which strikes me as the best real-life approximation of the easement issue I’ve ever seen. It’s a Palestinian house in a village near Ramallah, almost literally surrounded by the homes of Jewish settlers, who own just about all the land around it. According to Sabaaneh, the Palestinians are permitted a right of exit and entry into and out of their home at military discretion through a narrow passageway. When the passageway is closed, the family’s situation essentially exemplifies the situation described in the passage I quoted above from Roderick’s blog post.

Apologies for the poor quality of these photos, hurriedly taken during the presentation, but you can watch a video of the presentation itself at the Facebook page of the Palestinian American Community Center of Clifton, New Jersey; the material on this case comes up around minute 14:58 or so (and is preceded by a discussion of Qalqilya). The first picture below is an overhead of the situation, with the Palestinian house in a red circle, surrounded by the houses of the Jewish settlement, i.e., the buildings with red roofs. The second shot is at street level.

Of course, one important way in which the West Bank situation differs significantly from the situations envisioned in the libertarian literature is that the libertarian literature is about a person’s being held prisoner by purely private means, e.g., a single home surrounded by hostile Lockean homesteaders, where “homesteading” is understood as initial appropriation of land from a law-less or state-less State of Nature, and enforced, perhaps, by private militias. The question being asked is whether someone can be held prisoner by purely private acts of appropriation, and held there by purely private acts of enforcement–assuming that both acts are exercises of genuine rights.

It’s not really possible to pose exactly this scenario or ask precisely this question about anything in the West Bank. Over there, appropriation and enforcement of property “rights” operate against the backdrop of a 51-year-old military occupation, military law, state ownership of land, and militarized control over the rules of property (and population) transfer. Granted, the Israeli settlements are privately owned (to a remarkable degree owned, occupied, and funded by Americans), but the strategy behind their development is driven by Israeli strategic policy as formulated by the state. The aim seems to be to Balkanize the Palestinian population so as to raise the price of staying put. The end game is to induce them to leave, or convince them that submission is the price of staying.

If it’s bad enough for one property owner to buy up all the land around someone’s property, and keep him prisoner there, it seems a lot worse for a bunch of putative property owners on contested land to declare all the land around someone’s property state land, then use the state to appropriate it, then congratulate themselves on the fact that, by contrast with a libertarian thought-experiment, they’ve at least given the prisoner a way out–a single road, subject to military discretion; a single road surrounded by gun towers; a narrow passageway that can be closed at whim. It becomes worse when the only reason they’ve offered a way out at all is to underscore the difficulty of making one’s way back in. At a certain point, they calculate, the persons targeted will regard the way out of their homes as a one-way street. They’ll leave, never to return, solving the problem constituted by their existence.

The Israeli occupation is like a nightmare out of a libertarian thought-experiment–except that by contrast with a libertarian thought-experiment, even at its most nightmarish, no one owns anything, there is no rule of law, and military justice is dispensed in an ad hoc fashion by an all powerful State. And it’s not a thought experiment. It’s an in vivo experiment. The question it seeks to answer is how long people can resist injustice before they give up. Early findings indicate that the answer is: a long time.

One thought on “No Easy Road: Easements and Occupation in the West Bank

  1. Pingback: Nightcap | Notes On Liberty

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