Netanyahu's Settlement Jungle
The issue of Jewish settlements in Judea and Samaria, the biblical homeland of the Jewish people, continues to roil Israeli politics. According to worldwide conventional wisdom, settlements built since the Six-Day War on land that previously had been known as Jordan's West Bank violate fundamental principles of international law.
But conventional wisdom, according to the recent report of an Israeli commission chaired by retired Supreme Court Justice Edmond Levy, is wrong. The report concluded: "according to international law, Israelis have the legal right to settle in Judea and Samaria and the establishment of settlements cannot in and of itself be considered illegal."
Prime Minister Netanyahu's announced intention to seek ministerial approval for the Levy Report instantly stirred the wrath of his left-wing political opponents, who dismissed it as "a transparent elections scheme" and accused the government of planning "an infestation of illegal settlements to annex territories." Defense Minister Ehud Barak warned that government adoption would cause "diplomatic damage to Israel and deepen its isolation in the world." (Barak's palpable hostility to settlers was demonstrated years ago when he ordered the forcible eviction of Hebron Jews from property they legally owned, an order recently overturned in court.) But Alan Baker, one of the authors of the Levy Report and former legal adviser for the Israeli Foreign Ministry, dismissed Barak's reasoning as "nonsense."
The Obama administration, ever eager to soothe Muslim sensibilities, also was not pleased. A State Department spokesman declared that the United States rejects "the legitimacy of continued Israeli settlement activity." UN Ambassador Susan Rice emphasized that the United States would not recognize Israel's settlement claims.
Yet the Levy Commission had merely reiterated a ninety-year-old principle of international law. The League of Nations Mandate for Palestine, adopted in 1922, recognized "the historical connection of the Jewish people with Palestine" and guaranteed their right of "close settlement." Even after British Colonial Secretary Winston Churchill partitioned Palestine to provide Prince Abdullah of Saudi Arabia with his own East Bank kingdom, Jews retained the internationally guaranteed legal right to "close settlement" west of the Jordan River. That right has never been rescinded.
Settlement critics invariably cite Article 49 of the Geneva Convention (1949), prohibiting the "forcible transfers" by an Occupying Power of its civilian population to occupied territory "for political and racial reasons." It was inspired by the brutal population transfers conducted by Nazi Germany and the Soviet Union during World War II. But international law expert Julius Stone decried attempts to portray Article 49 as "an obligation on the State of Israel to ensure (by force if necessary) that these areas, despite their millennial association with Jewish life, shall be forever judenrein." Israel has never forcibly transferred anyone to a settlement. Indeed, settlements were voluntarily established by small groups of Jews, often over government objections, resistance, and expulsions.
After the Six-Day War, UN Security Council Resolution 242 permitted Israel to administer its newly acquired territory until "a just and lasting peace in the Middle East" is achieved. Even then, Israel would only be required to withdraw its armed forces "from territories" -- not from "the territories" or "all the territories." Resolution 242 imposed no restriction on Jewish settlement west of the Jordan River, guaranteed under the Palestine Mandate forty-five years earlier.
Legions of settlement critics have asserted that under international law Israel is a "belligerent occupier," without sovereignty over territories whose future must be decided by international agreement. But the Levy Commission rejected that argument, concluding that because no state had territorial sovereignty over the West Bank in 1967 (Jordan's occupation after 1949 was not recognized under international law) Israel cannot be considered a "belligerent occupier." Accordingly, Jews enjoy the legal right to live there.
Learning of Netanyahu's plan, a Palestinian Authority representative insisted: "We will not sign any peace agreement if there is a [single] settlement on Palestinian land." That, however, raises another interesting question: Where is "Palestinian" land? Archeological discoveries -- coins, pottery, seals, inscriptions (many bearing the name YHWH, the Israelite God) -- confirm a sovereign Jewish presence in the Land of Israel for one thousand years preceding the Common Era. Indeed, Roman coins bearing the words "Judea Capta," minted after the capture of Judea and the destruction of the Second Temple, poignantly testify to the loss of Jewish national sovereignty that would endure for nearly nineteen hundred years. By contrast, no evidence of an identifiable (or self-identified) "Palestinian" people predates the twentieth century.
Despite Netanyahu's proclaimed intention to seek Cabinet approval for the Levy Report, the prime minister quickly backed down after Attorney General Yehuda Weinstein, yielding to pressure from Kadima Party chairman Shaul Mofaz, indicated his own strong opposition to consideration of the report until after the election. Once again, Netanyahu -- playing both sides of the issue for maximum political advantage -- yielded to pressure from settlement opponents. If he remains prime minister after February he might try to remember that the largest Jewish settlement in the Middle East, routinely delegitimized in the international arena, is the State of Israel.
Jerold S. Auerbach is the author, most recently, of Against the Grain: A Historian's Journey (Quid Pro Books).