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Later this month the United Nations General Assembly is likely to recognize the state of Palestine (which the United States is expected to veto in the Security Council). This diplomatic charade will ignore long forgotten, but far more consequential, international decisions.
At the San Remo Conference ninety-one years ago the victorious Allied Powers adopted a resolution incorporating the Balfour Declaration (1917) into the British Mandate. It called for “the establishment in Palestine of a national home for the Jewish people.”
The San Remo resolution was aptly identified (by British Secretary of Foreign Affairs Lord Curzon) as Israel’s “Magna Carta.” According to Chaim Weizmann, who would become the first president of Israel, “you can say that the Israeli state was born on the 25th of April  in San Remo.”
The resolution, the first international guarantee of Jewish national rights in Palestine, was, according to international law scholar Howard Grief, “the pre-eminent foundation document of the State of Israel.”
In July 1922 the Council of the League of Nations approved the British Mandate for Palestine that was framed at San Remo. But “Palestine” had been redefined. British Colonial Secretary Winston Churchill, a wily diplomat in pursuit of multiple diplomatic objectives, had secured a provision (Article 25) empowering the Mandatory authority (Great Britain) to “postpone or withhold” its application to “territories lying between the Jordan and the eastern boundary of Palestine.”
So, in one fell swoop, three-quarters of “Palestine” was lopped off. Bestowed upon Sheikh Abdullah of Saudi Arabia, it became the Hashemite Kingdom of Trans-Jordan. East of the Jordan River, the Mandate provisions dealing with the development of a Jewish national home ceased to apply. But Article 6 of the Mandate guaranteed “close settlement by Jews” on the land west of the Jordan River (now Jordan, the West Bank, Israel and Gaza).
Another world war later, the League of Nations gave way to the United Nations. Under its Charter (Article 80), “nothing … shall be construed . . . to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.”
Known as “the Palestine clause,” Article 80 was drafted by Jewish legal representatives including the liberal Rabbi Stephen S. Wise, Peter Bergson (Hillel Kook) from the right-wing Irgun, and prominent Revisionist Ben-Zion Netanyahu (father of the current Israeli prime minister). It preserved the right of the Jewish people to “close settlement” throughout their remaining portion of Palestine west of the Jordan River.
The United Nations partition resolution of 1947, dividing western Palestine into two states, clearly violated Article 80. But once Arab states rejected it, the UN resolution was meaningless.Boundaries would be determined by war. Twenty years later, during the Six-Day War, Israel returned to its promised land in Mandatory Palestine – and, of course, to its biblical patrimony in the Land of Israel.
It is nothing less than astonishing that successive Israeli governments ever since – regardless of their political orientation – have seemed oblivious to the internationally guaranteed right of Jews, under the League of Nations as affirmed by the United Nations, to “close settlement” west of the Jordan, in biblical Judea and Samaria no less than in Tel Aviv.
Nor is the United States blameless in the relentless undermining of Jewish settlement rights. In a 1924 Convention, ratified by Congress and proclaimed by President Coolidge, it recognized all rights guaranteed to the Jewish people under the Mandate – including the right of “close settlement.” Current American opposition to Jewish settlements, Professor Grief argues, violates the legal doctrine of estoppel, which prohibits a state from denying any rights previously granted by treaty or other international obligation.
Ironically, it was Likud Prime Minister Menachem Begin, negotiating the Camp David Accords with Egypt in 1978, who first agreed to future negotiations to determine the “final status” of the West Bank and Gaza. But their international legal status had already been decided in 1922 – with settlement rights vested in the Jewish people.
Prime Minister Yitzhak Rabin’s willingness in the Oslo Accords to relinquish nearly all of Judea and Samaria to the PLO reaffirmed the Israeli surrender of land that under international law – to say nothing of Jewish history – belongs to the Jewish people. So, in a bizarre twist of historical irony, Israeli prime ministers have followed the British lead in sabotaging Mandatory guarantees.
How can one explain the obliviousness of successive Israeli governments to Jewish settlement rights in the biblical homeland? Settlement in the Land of Israel, after all, always defined Zionism. But the rules changed once the monopoly on settlement by secular Zionist pioneers yielded to religious Zionists after the Six-Day War.
The synthesis of Zionism and Judaism forged by Rabbi Abraham Isaac Kook, chief rabbi of Mandatory Palestine, and taught by his son Rabbi Tzvi Yehuda Kook to students at the Mercaz HaRav yeshiva in Jerusalem, inspired the first cohort of settlers, led by Rabbi Moshe Levinger, to return to Hebron and launch the settlement movement. By now more than 300,000 Jews have followed the Mandate guarantee for “close settlement” west of the Jordan. But it threatens secular Zionism at its core.
Reviled worldwide as illegal occupiers of Palestinian land, Jewish settlers are, ironically, abiding by international legal assurances that their own governments, regardless of the party in power, still seem quite willing to relinquish.
In liberal Jewish circles, predictably, venom against Jewish settlers is the conventional wisdom. Several weeks ago New York Times columnist Roger Cohen warned that Jews, lest they become “systematic oppressors” of Palestinians, “must be vociferous in their insistence that continued colonization of Palestinians in the West Bank will increase Israel’s isolation and ultimately its vulnerability.”
To refer to Jewish settlement as “oppression” or “colonization” is to disregard ninety years of international law – to say nothing of 3,000 years of Jewish history in the Land of Israel. Jews have as much right to live in Hebron, Kiryat Arba and Ariel as they do in Bethesda, Scarsdale and Santa Monica. The embarrassment of Roger Cohen – or J Street and the New Israel Fund – at being linked to “those Jews” is their problem.
Whatever the United Nations may decide, it is powerless under international law to deny to Jews the right to settle in their homeland – all of it. UN Security Council Resolution 242, adopted after the Six-Day War, called upon Israel to withdraw from “territories,” not “the territories” or “all the territories” – and only once “a just and lasting peace in the Middle East” is achieved. That, it seems reasonable to say, is not imminent.
When the resolution for Palestinian statehood is introduced the UN is likely to provide good theatre for Israel-bashers. But, ironically, it is Jewish settlers, not their venomous critics, who have the law on their side.
Jerold S. Auerbach is the author of “Brothers at War: Israel and the Tragedy of the Altalena” (Quid Pro Books), published in June.
About the Author: Jerold S. Auerbach is the author of “Jewish State/Pariah Nation: Israel and the Dilemmas of Legitimacy,” to be published next month by Quid Pro Books.
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