Settlements and Sovereignty

As the Trump administration develops its plan, soon to be announced, for the extension of Israeli sovereignty over Jewish settlements, fury in the United States and among left-wing Israelis is reaching fever pitch.

A group of Democratic senators has warned that annexation would destroy bipartisan Congressional support for Israel. Joe Biden proclaimed that “a priority now for the cause of Israel-Palestinian peace should be . . . pressing Israel not to take actions that make a two-state solution impossible” – as though Palestinians had embraced a two-state solution that Israel was thwarting.

House Speaker Nancy Pelosi claimed that “unilateral annexation puts the future at risk and undermines US national security interests.” Three Democratic senators advised Prime Minister Netanyahu that unilateral annexation would convince them that “Israel no longer values the bipartisan support that Congress has provided it for decades.”

Israeli protesters at a Peace Now rally chanted “Annexation is a disaster, no peace, no security.” Some Israeli military officials, warning that annexation could prompt increased violence and endanger Israel’s peace treaty with Jordan, labeled the Netanyahu annexation plan “a threat to Israel’s nature as a Jewish and democratic country.” The Times of Israel overflowed with criticism of the Trump Plan and Netanyahu’s support for it. Some settlement leaders caution that the resulting disconnected settlement enclaves, if prevented from expanding, would become vulnerable to Palestinian attacks.

Given this outburst it is worth exploring some history of the legality of settlements under international law. At the San Remo Conference following World War I, Great Britain received the League of Nations Mandate to govern Palestine. The Mandate cited “the historical connection of the Jewish people with Palestine and the legitimacy of grounds for reconstituting its national home in that country.”

Under the original terms of the Mandate “Palestine” comprised the land east and west of the Jordan River – including present-day Jordan, the West Bank and Israel. Palestinians were not mentioned; they did not yet comprise an identifiable people. Great Britain retained the power to “postpone” or “withdraw” the right of Jews to settle east – but not west – of the Jordan River.

Colonial Secretary Winston Churchill decided to separate Trans-Jordan from Palestine to provide a kingdom for England’s wartime ally Abdullah. He received three-quarters of the land originally designated for the Jewish national home for what became the Kingdom of Jordan. But Article 6 of the Palestine Mandate explicitly protected “close settlement” by Jews west of the Jordan River, on land to be called “Palestine.” That guarantee was never rescinded or superseded.

Following World War II Article 80 of the Charter of the United Nations, known as the “Palestine clause,” preserved the right of the Jewish people to settle throughout their historic homeland west of the Jordan River. That included Biblical Judea and Samaria. It was flagrantly violated when Jordan invaded Israel in 1948, asserted sovereignty over its West Bank and prohibited Jews from living there.

Two decades later, following the Six-Day War, UN Security Council Resolution 242 permitted Israel to administer its newly acquired territory – the West Bank, Gaza and the Golan Heights – until the achievement of “a just and lasting peace in the Middle East.” Even then, in carefully crafted language, Israel would only be required to withdraw its armed forces (civilians were not mentioned) “from territories” – not from “the territories” or “all the territories.”

The absence of “the” was not accidental. According to American Under Secretary for Political Affairs Eugene Rostow, who played a major role in drafting Resolution 242, “the Jewish right of settlement” west of the Jordan River
“is equivalent in every way to the right of the existing Palestinian population to live there.”

What does all this mean? Specifically: Jewish history aside, Jews retain the internationally guaranteed legal right to “close settlement” west of the Jordan River – on land, known as Judea and Samaria, that comprised the Biblical homeland of the Jewish people. Geographically and demographically, a Palestinian state already exists east of the River in two-thirds of the land defined as Mandatory Palestine by the League of Nations. Why should its Hashemite King Abdullah be permitted to prevent a Palestinian state, in historic Palestine, east of the Jordan River?

The Trump plan to extend Israeli sovereignty over settlements in Biblical Judea and Samaria has predictably provoked liberal fury and annexation hysteria that have spread like a contagious virus through American media – especially and predictably The New York Times – and its liberal Israeli counterpart, The Times of Israel.

In the end there is no justification, in history or international law, for preventing the State of Israel from extending sovereignty over Jewish settlements in the Biblical homeland of the Jewish people. It might seem preferable to some settlers for Israel to be granted sovereignty over the entire West Bank, lest partial sovereignty endanger the residents of isolated settlements.
But that would create a serious demographic problem since Palestinians in Judea and Samaria vastly outnumber Israelis.

For now, at least, extension of Israeli sovereignty over settlements protects their Jewish residents without prohibiting future expansion. Dayenu.

Jerold S. Auerbach is the author of Print to Fit: The New York Times, Zionism and Israel 1896-2016, chosen by Ruth Wisse and Martin Kramer for Mosaic as a Best Book for 2019

About the Author
Jerold S. Auerbach is author of Hebron Jews: Memory and Conflict in the Land of Israel (2009). His new book, Print to Fit: The New York Times, Zionism and Israel 1896-2016, will be published in February by Academic Studies Press.
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