With the recent election of a liberal American president and a conservative Israeli prime minister, pressure on Israel to reach a final agreement with the Palestinian Authority is likely to intensify. According to the conventional political wisdom, peace will require substantial Israeli concessions to the Palestinian Authority regarding the status of Jerusalem, the return of refugees, and the future of Jewish settlements. But the problem that has eluded resolution for sixty years remains: demarcating the permanent, recognized borders of the Jewish state.

Settlements have been a deeply polarizing issue, in Israel and elsewhere, ever since the Israel Defense Forces swept triumphantly through the West Bank of the Kingdom of Jordan in June 1967. Before long, clusters of religious Zionists returned to the once inhabited, then tragically decimated, sites of Gush Etzion and Hebron, south of Jerusalem. They were the vanguard of a growing movement to restore a Jewish presence throughout Judea and Samaria, the Biblical homeland of the Jewish people.

Settlement of the Land of Israel, after all, had defined Zionism ever since the founding of Rishon l'Tzion, the first settlement, in 1882. The "tower and stockade" settlements built overnight by kibbutzniks under British Mandatory rule remained legendary achievements in Zionist annals. With its stunning victory in the Six-Day War, Israel unexpectedly confronted new possibilities to fulfill ancient dreams — and, it is seldom recognized — long-deferred international commitments.

Now, four decades after the first settlers blazed the trail of return, nearly 300,000 Israelis live in more than one hundred settlement communities amid 1.5 million Palestinian Arabs. No Jews anywhere in the world have been as persistently maligned — indeed, as maliciously vilified — as these Jewish settlers. Everyone from Yasir Arafat to Jimmy Carter (who has made a new career of hectoring Israel) has condemned them for occupying Palestinian land and violating fundamental principles of international law, to say nothing of impeding peace efforts.

This allegation has been incessantly propagated by Israeli critics of settlement and by enraged Palestinians who claim that Jewish settlers have stolen "their" land. In Lords of the Land (2007), the first comprehensive survey of the Jewish settlement movement, Israeli historian Idith Zertal and Ha'aretz journalist Akiva Eldar lacerated settlers for their illegal occupation, plunder, destruction, and lawlessness. The "malignancy of occupation," they wrote, "in contravention of international law," has "brought Israel's democracy . . . to the brink of an abyss." By now, The New York Times has reported, "Much of the world" regards "all Israeli settlements in land occupied in the 1967 war to be illegal under international law."

At the core of the settlement critique is the incessant allegation, rarely scrutinized or challenged, that Israeli settlements established in "occupied" territory since 1967 are illegal under international law. It surfaced within Israeli government circles three months after the Six-Day War when Theodor Meron, legal counsel for the Foreign Ministry, sent a memo to Foreign Minister Abba Eban, a copy of which he forwarded to Prime Minister Levi Eshkol. "My conclusion," Meron wrote, "is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention."

The Geneva Convention, adopted in 1949 in the shadow of World War II atrocities, declared that an "occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." According to Meron, this provision (Article 49) was intended to forever prevent repetition of the notorious Nazi forced transfers of civilian populations — for "political and racial reasons" — from conquered territory to slave labor and extermination camps. As a youthful prisoner in a Nazi labor camp, Meron had painful personal memories of such population transfers, when hundreds of thousands of Jews were deported from their homes and replaced by foreign nationals. He insisted that the Geneva prohibition was "categorical and is not conditioned on the motives or purposes of the transfer."

Meron's legal opinion, recently rediscovered by journalist Gershom Gorenberg during his research for a critical study of the early years of Jewish settlement, was filed and forgotten — for good reason. It was neither persuasive to his superiors nor an accurate appraisal of the applicability of the Geneva Convention to new Israeli settlements in the former West Bank of the Kingdom of Jordan. Military Advocate General Meir Shamgar, who subsequently became attorney general and then chief judge of the Supreme Court, asserted, "The legal applicability of the Fourth Geneva Convention to these territories is in doubt." For legitimate legal reasons, no government of Israel has ever accepted the validity of Meron's argument.

To the contrary: Israeli settlement throughout the West Bank is explicitly protected by international agreements dating from the World War I era, subsequently reaffirmed after World War II, and never revoked since. The Balfour Declaration of 1917, calling for "the establishment in Palestine of a national home for the Jewish people," was endorsed by the League of Nations Mandate for Palestine, drafted at the San Remo Conference in 1920, and adopted unanimously two years later. The mandate recognized "the historical connection of the Jewish people with Palestine" and "the grounds for reconstituting their national home in that country." Jews were guaranteed the right of "close settlement" throughout "Palestine," geographically defined by the mandate as comprising land both east and west of the Jordan River (which ultimately became Jordan, the West Bank, and Israel). This was not framed as a gift to the Jewish people; rather, based on recognition of historical rights reaching back into antiquity, it was their entitlement.

Jewish settlement throughout Palestine was limited by the mandate in only one respect: Great Britain, the Mandatory Trustee, acting in conjunction with the League of Nations Council, retained the discretion to "postpone" or "withhold" the right of Jews to settle east — but not west — of the Jordan River. Consistent with that solitary exception, and to placate the ambitions of the Hashemite Sheikh Abdullah for his own territory to rule, Colonial Secretary Winston Churchill removed the land east of the river from the borders of Palestine.

Churchill anticipated that the newly demarcated territory, comprising three-quarters of Mandatory Palestine, would become a future Arab state. With the establishment of Transjordan in 1922, the British prohibited Jewish settlement there. But the status of Jewish settlement west of the Jordan River remained unchanged. Under the terms of the mandate, the internationally guaranteed legal right of Jews to settle anywhere in this truncated quarter of Palestine and build their national home there remained in force.

Never further modified, abridged, or terminated, the Mandate for Palestine outlived the League of Nations. In the Charter of the United Nations, drafted in 1945, Article 80 explicitly protected the rights of "any peoples" and "the terms of existing international instruments to which members of the United Nations may respectively be parties." Drafted at the founding conference of the United Nations by Jewish legal representatives — including liberal American Rabbi Stephen S. Wise, Peter Bergson from the right-wing Irgun, and Ben-Zion Netanyahu (father of the future prime minister) — Article 80 became known as "the Palestine clause."

It preserved the rights of the Jewish people to "close settlement" throughout the remaining portion of their Palestinian homeland west of the Jordan River, precisely as the mandate had affirmed. But those settlement rights were flagrantly violated when Jordan invaded Israel in 1948. The military aggression of the Hashemite kingdom effectively obliterated U.N. Resolution 181, adopted the preceding year, which had called for the partition of (western) Palestine into Arab and Jewish states. Jordan's claim to the West Bank, recognized only by Great Britain and Pakistan, had no international legal standing.

Contrary to Theodor Meron's citation of Article 49, the Geneva Convention did not restrict Jewish settlement in the West Bank, acquired by Israel during the Six-Day War. As Eugene V. Rostow, formerly dean of Yale Law School and undersecretary of state for political affairs between 1966 and 1969, noted, the government of Israel neither "deported" Palestinians nor "transferred" Israelis during or after 1967. (Indeed, beginning with the return of Jews to Hebron the following year, settlers invariably acted on their own volition without government authorization.) Furthermore, Rostow noted, the Geneva Convention applied only to acts by one signatory "carried out on the territory of another." The West Bank, however, did not belong to any signatory power, for Jordan had no sovereign rights or legal claims there. Its legal status was defined as "an unallocated part of the British Mandate."

With Jordan's defeat in 1967, a "vacuum in sovereignty" existed on the West Bank. Under international law, the Israeli military administration became the custodian of territories until their return to the original sovereign — according to the League of Nations mandate, reinforced by Article 80 of the U.N. Charter — the Jewish people for their "national home in Palestine." Israeli settlement was not prohibited; indeed, under the terms of the mandate, it was explicitly protected. Jews retained the same legal right to settle in the West Bank that they enjoyed in Tel Aviv, Haifa, or the Galilee.

After the Six-Day War, a new UN resolution — which Rostow was instrumental in drafting — specifically applied to the territory acquired by Israel. According to Security Council Resolution 242 (superseding Resolution 181 from 1947), Israel was permitted to administer the land until "a just and lasting peace in the Middle East" was achieved. Even then, Israel would be required to withdraw its armed forces only "from territories" — not from "the territories" or "all the territories" — that it administered.

The absence of "the," the famous missing definite article, was neither an accident nor an afterthought; it resulted from what Rostow described as more than five months of "vehement public diplomacy" to clarify the meaning of Resolution 242. Israel would not be required to withdraw from all the territory that it had acquired during the Six-Day War; indeed, precisely such proposals were defeated in both the Security Council and the General Assembly. No prohibition on Jewish settlement, wherever it had been guaranteed by the Mandate for Palestine forty-five years earlier, was adopted.

"The Jewish right of settlement in the area," Rostow concluded, "is equivalent in every way to the right of the existing [Palestinian] population to live there." Furthermore, as Stephen Schwebel, a judge on the International Court of Justice between 1981 and 2000, explicitly noted, territory acquired in a war of self-defense (waged by Israel in 1967) must be distinguished from territory acquired through "aggressive conquest" (waged by Germany during World War II). Consequently, the provisions of the Mandate for Palestine, allocating all the land west of the Jordan River to the Jewish people for their national home, remained in force until sovereignty was finally determined by a peace treaty between the contending parties — now Israel and the Palestinians. Until then, the disputed West Bank, claimed by two peoples, remained open to Jewish settlement.

In sum, the right of the Jewish people to "close settlement" throughout Mandatory Palestine, except for the land siphoned off as Transjordan in 1922, has never been abrogated. Nor has the legal right of Jews to settle in Judea and Samaria, indisputably part of western "Palestine," ever been relinquished. The persistent effort to undermine the legitimacy of Israeli settlements, according to international law expert Julius Stone, has been nothing less than a "subversion . . . of basic international law principles," in which the government of Israel, at best ambivalent about the settlements, has often been a willing accomplice. In the continuing absence of a "just and lasting peace," with an accompanying determination of the scope of Israeli withdrawal from "territories," Israel is under no legal obligation to limit settlement.

World opinion, of course, is another matter. (In his uncritical embrace of Meron's flawed conclusion, Gorenberg cited "the court of world diplomacy" as "the court that mattered.") Ever since the Six-Day war, settlements have provoked unrelenting international hostility toward Israel. A triumphant Jewish state could hardly be expected to win approval from intractable Arab neighbors who had not recognized Israel even before settlements. An international community that in 1975 perceived Zionism as "racism" continues to see Palestinians only as "victims" of Jewish "conquest" and "occupation." Secular Zionists on the political left — long the ruling elite in Israeli intellectual, academic and media circles — are hardly receptive to challenges to their own cultural hegemony from religious nationalist settlers.

So, ever since 1967, Jewish settlements have been widely and loudly — and erroneously — trumpeted as the major obstacle to Middle Eastern peace. They are convenient surrogates for the deep and enduring hostility to the very existence of a Jewish state. That hostility long antedated 1967 and, as Hamas, Islamic Jihad, Hezbollah, and President Ahmadinajad of Iran endlessly reiterate, it is likely to endure for as long as Israel exists within any boundaries. But neither in the court of world opinion, nor in the State of Israel, are settlement critics entitled to ignore the firm protection for Jewish settlements afforded by international legal guarantees extending back nearly a century, frequently affirmed ever since, and never rescinded.
 

Jerold S. Auerbach, professor of history at Wellesley College, is a frequent contributor to Midstream, where this article was published in the Spring 2009 issue
(http://www.midstreamthf.com/). He is the author of Hebron Jews, to be published by Rowman & Littlefield in July, from which this essay is excerpted.

Thanks are due Barbara Sommer for sending the article in to Think-Israel.

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