These terms of the Palestine Mandate have never been modified, abridged or annulled. In the Charter of the United Nations, drafted in 1945, Article 80 explicitly protected the rights of “any peoples” under “the terms of existing international instruments to which members of the United Nations may respectively be parties.” Drafted by, among others, Ben-Zion Netanyahu (Prime Minister Netanyahu’s father), it became known as “the Palestine clause.” It preserved for Jews the right of “close settlement” throughout western Palestine.
When Jordan invaded the fledgling State of Israel in 1948, it illegally annexed the territory that became known as the West Bank. But with Jordan’s defeat nineteen years later in the Six-Day War, a “vacuum of sovereignty” existed there. Under international law, the Israeli military administration became the custodian of the West Bank until its return to the rightful sovereign. In November 1967 United Nations Resolution 242, approved by the Security Council, authorized Israel to administer the West Bank until – not before – “a just and lasting peace in the Middle East” is achieved.
Even then, Israel would only be required to withdraw “from territories,” not from “the” territories or “all the territories.” Such proposals were defeated in both the General Assembly and Security Council. No prohibition on Jewish settlement, wherever the League of Nations Mandate had guaranteed it, was adopted. Under international law Jews retain the same right to live in Hebron that they enjoy in Tel Aviv.
According to Stephen Schwebel, who served as a judge on the International Court of Justice (1981-2000), the allocation of land in Palestine west of the Jordan River to Jews for their homeland remains in force until the signing of a peace treaty determines otherwise. The persistent attempt to undermine the legitimacy of Jewish settlements, international law expert Julius Stone has written, is a “subversion of basic international law principles.”
But Israelis, like the international community that vilifies them, have forgotten, or chosen to disregard, the legal foundation for Jewish settlements. Beginning with David Ben-Gurion, as Howard Grief indicates in The Legal Foundation and Borders of Israel Under International Law, Israeli political leaders – and their ambassadors – have ignored the San Remo Resolution of 1920. But it remains the legally binding definition of the right of Jewish settlement in Judea and Samaria, in western “Palestine.”
President Obama, doubtlessly ignorant of these legal guarantees, has described Jewish settlements as “illegitimate.” Palestinian Authority chairman Abbas, recognizing a sympathetic fellow traveler, has asked Obama to “intervene” to divest Israel of land that properly belongs to the Jewish state. Even if Netanyahu remembers the lesson he surely learned at his father’s knee, it is unlikely he will stand up to Obama. Like his recent predecessors, he has already clearly signaled his willingness to surrender the land on which Jews still retain the right of “close settlement.”
It is time for an Israeli prime minister to finally affirm the legal right of Jews, guaranteed ninety years ago by the League of Nations and never rescinded, to settle anywhere within their national homeland west of the Jordan River. That would truly demonstrate Netanyahu’s commitment to thinking outside the box.
Jerold S. Auerbach, author of “Hebron Jews” (2009), is completing a book about the sinking of the Altalena.
