Palestinian sources have apparently disclosed that in stages over the next decade Israel is prepared to withdraw its soldiers and civilians from the strategically crucial Jordan valley, and the biblical homeland of Judea and Samaria (the West Bank). In Jerusalem, the capital of Israel, the historic Old City and the Temple Mount, the holiest Jewish site, would form an autonomous region under international supervision.
This "disclosure" may only represent scare tactics designed to stiffen the backs of the Netanyahu government and its negotiators. But it nonetheless raises the perennial question about the legality of Israeli "occupation" of "Palestinian" land since its 1967 victory in the Six-Day War and the subsequent proliferation of Jewish settlements (now numbering more than 120, with 350,000 residents).
Israel's critics incessantly claim that it is illegally "occupying" Palestinian land, and that Jewish settlements violate Article 49 of the Geneva Convention (1949), which stipulates that an "Occupying Power" may not "deport or transfer parts of its own civilian population into the territory it occupies." But Article 49, as a bevy of international law experts have pointed out, applies to the invasion of sovereign states and is inapplicable to Israel because Jordan never held legal sovereignty over the West Bank. Furthermore, Jewish settlers hardly were deported or transferred, as were the citizens of European countries by Nazi Germany during World War II; they relocated entirely of their own volition.
Indeed, Jews have enjoyed the right of "close settlement" west of the Jordan River under international law dating to the League of Nations Mandate for Palestine (Article 6) granted to Great Britain in 1922. That included what illegally became Jordan's West Bank between 1948-1967 no less than Jerusalem, Tel Aviv, Haifa, Hebron, and the surrounding land.
Following World War II, when the United Nations replaced the League of Nations, Article 80 provided that "nothing in its 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." U.N. Resolution 242, carefully and laboriously drafted following the Six-Day War, stipulated that Israel would only be required to withdraw its armed forces -- civilians were not mentioned -- from "territories" gained in the war, not from "the" territories or "all" the territories.
There is, consequently, an irrefutable legal argument, grounded in nearly a century of international law, which supports Jewish settlement throughout Judea and Samaria. It bolsters historic Jewish claims grounded in the biblical text, King David's rule, and subsequent periods of Jewish national sovereignty in the Land of Israel.
There is only one problem: successive Israeli governments since 1967, whether on the left or right, have abjectly failed to assert Jewish settlement rights. Why? Left-wing politicians have long since relinquished settling the land of Israel, the dream that galvanized their pioneering socialist Zionist predecessors, for normalization, individualism, prosperity, world approval, and peace now.
With occasional exceptions, right-wing politicians -- most conspicuously Prime Minister Benjamin Netanyahu -- have tacitly endorsed Labor Party anti-settlement policy. Apprehensive of the religious right, and its relentless determination to settle the entire Land of Israel, their secular principles have made them wary of religious claims based on divine promise.
In their determination to stifle the religious right, and retain their hold on power, Netanyahu and his political allies have ignored the irrefutable legal case for Jewish settlement throughout Judea and Samaria. The Israeli Foreign Ministry declares on its website: "Jewish settlement in West Bank and Gaza Strip territory has existed from time immemorial and was expressly recognized as legitimate in the Mandate for Palestine adopted by the League of Nations, which provided for the establishment of a Jewish state in the Jewish people's ancient homeland." Yet one would need to search long and hard to find statements even by right-wing ministers supporting Jewish settlement rights under international law.
Recently a group of international legal experts has begun to fill the void left by politicians. As Nadav Shragai documents in Israel Hayom (December 23), lawyers at the Regavim Institute Center for Zionism, Justice and Society, and the Legal Forum for Israel have strongly and persuasively asserted that Judea and Samaria are not "occupied territory." Indeed, Jewish settlement rights are solidly grounded in ninety years of international law and "the historic right of the Jewish people to sovereignty over the Land of Israel."
Even if John Kerry embraces the Palestinian position, that is no reason for the government of Israel to abandon legitimate historic and Jewish claims to its own homeland.
Jerold S. Auerbach is author of the forthcoming Jewish State/Pariah Nation: Israel and the Dilemmas of Legitimacy.
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