By Jerold S. Auerbach. Whether you support settling beyond the 67 lines or not this article clearly invites all of us to re-evaluate our understanding of the laws and obligations involved regarding the land and its people. No Israeli policy is more incessantly vilified than settlement in Judea and Samaria, the biblical homeland of the Jewish people. Nonetheless, ninety years of international law sustains it.
By Jerold S. Auerbach for http://www.algemeiner.com/
In 1920 the League of Nations, building on Lord Balfour’s Declaration three years earlier, adopted a resolution at San Remo calling for “the establishment in Palestine of a national home for the Jewish people.” The Mandate for Palestine, approved by the League Council two years later (and by the United States in 1924), assured “the establishment of the Jewish national home” there. The British Mandatory Administration, according to Article 6, “shall encourage . . . close settlement by Jews on the land.”
But where was “Palestine”? To placate the Hashemite sheikh Abdullah, Colonial Secretary Winston Churchill set aside the territory east of the Jordan River for the kingdom of Trans-Jordan. Reduced to one-quarter of its original size, Palestine now comprised only the land between the Jordan and the Mediterranean. There the right of close settlement by Jews remained protected under international law.
After World War II the United Nations superseded the League of Nations. But Article 80 of its Charter provided that “nothing in the Charter shall be construed . . . to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments.” Known as the “Palestine clause,” it protected Jewish settlement west of the Jordan River.
In 1947 the UN General Assembly called for the partition of shrunken Palestine into Arab and Jewish states. A non-binding recommendation without Security Council endorsement, it carried no legal authority, violated Article 80, and was summarily rejected by the Arab states.
Under the Armistice Agreement following Israel’s Independence War, the truncated partition boundaries of the fledgling Jewish state became temporary borders. But it stipulated that they did not prejudice the preexisting “rights, claims, and positions” of the warring parties.
Israel’s stunning victory in the Six-Day War, forty-five years ago this month, restored the possibility of close settlement west of the Jordan River, in Jordan’s West Bank. UN Resolution 242 permitted Israel to administer its newly acquired territories until “a just and lasting peace in the Middle East” was assured.
Even then, its carefully worded language assured that Israel would only be required to withdraw its armed forces – civilians were not mentioned – from “territories” gained in war, not from “the” territories or “all” the territories. By now, more than 300,000 Jewish settlers fulfill their Zionist commitment while simultaneously enjoying their international legal rights.
Critics repeatedly cite Article 49 of the Fourth Geneva Convention (1949) as a prohibition on Jewish settlement. Written in the shadow of World War II atrocities, it provided that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” But their interpretation, according to esteemed international law scholar Julius Stone and Judge Stephen Schwebel of the International Court of Justice, is “a subversion . . . of basic international law principles.”
There was a vast difference between territory acquired through “aggressive conquest” (by Nazi Germany) and territory gained in a war of self-defense (Israel). The forcible Nazi transfer of civilian populations to work and death camps during World War II hardly was analogous to Israelis who voluntarily chose to settle in the Jewish homeland.
Yet despite nearly a century of international guarantees, never rescinded, successive governments of Israel across party lines have been indifferent, if not actively hostile, to Jewish settlements outside Israel’s pre-1967 boundaries.
Drafting the Proclamation of Independence, David Ben-Gurion ignored the San Remo authorization for close settlement west of the Jordan River, instead citing the UN Partition Resolution to justify Israel’s truncated boundaries. Benjamin Netanyahu not only has been reluctant to assert Jewish settlement rights; like his predecessors ever since the Oslo Accords (1993), he has indicated his willingness to relinquish portions of Judea and Samaria, which his Defense Minister Ehud Barak strongly advocates.
What explains this curious Israeli reluctance to assert the right of “close settlement”? It surely was the religious Zionist passion of the pioneering settlers, who remain the core of the settlement movement. Their unrelenting determination to return to Hebron, site of the burial tombs of the biblical patriarchs and matriarchs, and to dwell throughout biblical Judea and Samaria, has not inspired enthusiasm among secular Tel Avivians – or prime ministers. The war against Israel, sadly, is paralleled by the conflict among Israelis over their right to their own biblical homeland.
Jerry Auerbach
Jerold S. Auerbach is the author of ten books, including Unequal Justice: Lawyers and Social Change in Modern America (1976), a New York Times Noteworthy Book; Justice Without Law? (1983); Rabbis and Lawyers: The Journey From Torah to Constitution (1990, 2010); Jacob’s Voices: Reflections of a Wandering American Jew (1996, 2010); Are We One? Jewish Identity in the United States and Israel (2001); Explorers in Eden: Pueblo Indians and the Promised Land (2006); Hebron Jews: Memory and Conflict in the Land of Israel (2009); Brothers at War: Israel and the Tragedy of the Altalena (2011); and Against the Grain: A Historian’s Journey (2012). His articles have appeared in the Wall Street Journal, Commentary, Harper’s, The New York Times, Jerusalem Post, Forward, The Jewish Press and American Thinker. Auerbach has been a Guggenheim Fellow, Fulbright Lecturer at Tel Aviv University, recipient of two College Teachers Fellowships from the National Endowment for the Humanities, and Visiting Scholar at the Harvard Law School. He is Professor Emeritus of History at Wellesley College.
Jerold S. Auerbach is the author of Hebron Jews and, most recently, Against the Grain: A Historian’s Journey.
