To Settle or Not to Settle? That is the Question by Jerold Auerbach
Not long after the recent Gaza war finally subsided, a familiar
contentious issue reemerged. Following an investigation lasting
several years Israel’s Civil Administration declared nearly one
thousand acres south of Jerusalem, within the cluster of communities
known as Gush Etzion, to be state land. This meant that new homes
could be built for Jews. Or, in the reflexive common parlance: Israel
was planning another “illegal settlement” on “Palestinian” land.
To the contrary. The Etzion bloc, located between Jerusalem and
Hebron, currently comprises 18 communities with nearly 40,000
residents. Its modern origins are traceable to 1927, when Yemenite
immigrants and ultra-Orthodox Jews established “Migdal Eder,” named
after the biblical site (mentioned in Genesis 35:21) where Jacob
pitched his tent after burying Rachel. Destroyed during the violent
Arab riots of 1929, when the ancient Jewish community in nearby Hebron
was also decimated, it was rebuilt between 1943 and 1947, only to be
demolished yet again by marauding Arabs on the eve of Israel’s
independence. More than 200 Jewish residents, who fought valiantly to
the bitter end, were massacred. By Knesset decree, the day Gush Etzion
fell became – and remains – the day of remembrance for Israeli
soldiers killed in military action.
Following the Six-Day War, Hanan Porat, a child survivor of the Gush
Etzion carnage, was determined to restore his vanquished community.
Impelled by the politics of memory, he joined Rabbi Moshe Levinger and
lawyer Elyakim Haetzni in urging “a Jewish vengeance of building,
rebirth and return” in Hebron and Gush Etzion. Their resolute efforts
were crowned with success. But in the eyes of the world (including
myopic secular Israelis), the current Jewish inhabitants of these
ancient Jewish communities are “settlers,” illegally occupying
“Palestinian” land. In fact, like their ardent Zionist predecessors
ever since the 19th century, they have returned to the ancient
homeland of the Jewish people.
Predictable public furor erupted, outside and inside Israel, following
the Civil Administration announcement. A State Department official
declared “We have long made clear our opposition to continued
settlement activity.” Al-Jazeera condemned “the latest and largest in
a series of land grabs.” Peace Now warned that it could “dramatically
change the reality” in the area. “Most countries,” noted The New York
Times in a familiar trope, “consider Israeli settlements to be a
violation of international law.” Times of Israel blogger Marc
Goldberg, accusing Prime Minister Netanyahu of a land grab propelled
by ulterior political motives, urged: “Forget the 1,000 acres, leave
them for the Palestinians and enter into a new peace process with
Mahmoud Abbas.”
The canard of settlement “illegality” should finally be put to rest.
Despite the incessant claims of settlement critics, international law
fails to support them. Article 80 of the United Nations Charter (known
as the “Palestine clause”) preserved the right of the Jewish people to
“close settlement” west of the Jordan River. Article 49 of the Fourth
Geneva Convention (1949), frequently cited by settlement critics,
declared that an “occupying Power shall not deport or transfer parts
of its own civilian population into the territory it occupies.”
Promulgated in the wake of forced Nazi population transfers during
World War II, it hardly applied to the decisions of individual Jews
(“settlers”) to return to their ancient homeland. Nor did the
government of Israel “deport” Palestinians from, nor “transfer”
Israelis to, biblical Judea and Samaria (Jordan’s “West Bank”) after
the Six-Day War.
Following that war, the carefully framed language of UN Security
Council Resolution 242 only required Israel to withdraw from
“territories” – not from “the territories” or “all the territories” –
that it gained during the Arab war to destroy the Jewish state. The
absence of “the” was not an oversight; it was meant to assure Israel
that the 1949 “Green Line” boundaries had been obliterated. As
Undersecretary of State Eugene V. Rostow subsequently wrote: “The
right of Jewish settlement in the area is equivalent in every way to
the right of the existing [Palestinian] population to live there.”
If that provides insufficient legal support for the recent Israeli
Civil Administration ruling, it might be noticed that the Oslo II
Accord, signed by Rabin and Arafat at the White House in 1995, divided
the West Bank into three zones. In Area A, Palestinians have full
control; in Area B, there is mixed Palestinian and Israeli security
control (and exclusive Palestinian civil control); and in Area C,
Israel retains full military and civil control (including the power to
zone and plan for development).
The territory generating the current international bruhaha is entirely
within Area C, where Israel possesses every right under international
law to develop, and – to use that despised word – “settle.” If not in
the land between Hebron and Jerusalem, the capitals of ancient Israel,
then where?
On Wednesday the Jerusalem Local Building and Planning Committee
approved a large construction proposal for an Arab neighborhood in
East Jerusalem with 2,200 homes. Israel’s settlement critics remain
silent. Might there be a double-standard?
Jerold S. Auerbach is a frequent contributor to The Algemeiner and
other publications.
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