Dani Dayan’s New York Times op-ed (July 26), “Israel’s Settlers Are Here to Stay,” was an eyebrow raiser. The return of Jewish settlers to Judea and Samaria, the biblical homeland of the Jewish people, has long irritated Times editors and columnists. Indeed, their discomfort with the Jewish state, reflecting the Jewish assimilationist preferences of the Sulzberger family, is as old as Israel. For the Times it doesn’t get much worse than passionate Zionists inhabiting and defending the Land of Israel.

Only a few days before Dayan’s op-ed was published, a Times editorial warned that an “expanding” Palestinian population is “hastening a day when Jews could be a minority.” The danger to Israeli democracy from erroneous presumptions about Palestinian demography is a well-worked theme among critics of Jewish settlements. The only problem is the absence of supporting evidence.

Within Israel’s recognized pre-1967 borders live 7 million citizens, 20% of whom are Arabs. Judea and Samaria are inhabited by 1.6 million Palestinians and 350,000 Jews. Between the Jordan River and the Mediterranean Sea, therefore, two-thirds of the population is Jewish. Given declining Arab and rising ultra-Orthodox birthrates (which also trouble the Times), Israel is in no foreseeable danger of losing its Jewish numerical majority or its democratic base.

Dani Dayan is a secular Jew who moved from Argentina to Israel as a teenager and became active in the settlers’ cause. After serving as a major in the IDF he was a high-tech tycoon, eventually selling his software company to participate in the work of the Yesha Council of Jewish Communities in Judea and Samaria, the settlers’ highly effective lobby. Now its chairman, he guides Yesha’s efforts to persuade the predominantly secular Israeli public “to understand the historical link we have to the territories.”

Unraveling the conventional wisdom of a “two-state solution,” with Israel retreating from its post-1967 borders, defines Dayan’s current challenge. He is trying to convince Israelis (and Times readers) that Jewish settlements are vital to Israel’s interests. He grasps the importance of Judea and Samaria for the preservation of Jewish identity, noting that “King David never walked in Tel Aviv, but he did reign in Hebron.”

In his Times op-ed Dayan wrote: “Arabs called for Israel’s annihilation in 1967, and Israel legitimately seized the disputed territories of Judea and Samaria in self-defense.” Therefore, Israel’s “moral claim to these territories, and the right of Israelis to call them home” is “unassailable.” To relinquish this land “in the name of a hallowed two-state solution” would reward those who have “historically sought to destroy Israel.”

Dayan anticipates that a massive influx of Palestinians from Syria, Lebanon and Jordan, where they have been degraded and confined as refugees for six decades, would transform any new Palestinian state into “a hotbed of extremism.” A Palestinian state, he warns, would (like Gaza) become a “launching pad for attacks on Israel.” His recommended alternative is to expand Jewish settlements – not as “a theological adventure” but as “a combination of inalienable rights and realpolitik.”

But Dayan’s insistence on Israel’s “moral claim” to Judea and Samaria, even if grounded in God’s promise of the land to Abraham and the history of ancient Jewish commonwealths in Judea and Samaria, is unlikely to persuade Israel’s critics. Indeed, the very next day the Times (perhaps to make amends) printed only critical letters in response to Dayan’s op-ed. A PLO representative warned that the choice for Israel is “either settlements or peace.” A good liberal suggested that the two-state solution rejected by Dayan is “the only possible way to preserve the Jewish and democratic principles on which Israel was founded.” A Judaic scholar accused Dayan of “ignoring both demography and democratic values.”

But for those who do not wish to rest Israel’s legitimate claims to Judea and Samaria on divine promise, historical rights, or reflexively challenged “moral” claims, international law, which Israel is incessantly accused of violating, should be consulted. Ironically, it offers the most compelling source of legitimacy for Jewish settlements.

The League of Nations Mandate, drafted at the San Remo Conference in 1920 and adopted unanimously two years later, recognized “the historical connection of the Jewish people with Palestine.” It guaranteed to Jews the right of “close settlement” between the Jordan River and the Mediterranean – in Judea and Samaria no less than within what would define Israel’s boundaries between 1949-1967.

That right has never been rescinded. Indeed, Article 80 of the United Nations Charter explicitly protects the rights of “any peoples” and “the terms of existing international instruments to which members of the United Nations may respectively be parties.” Known as the “Palestine clause,” it assured that Mandatory guarantees of Jewish settlement west of the Jordan River would remain in force.

UN Security Council Resolution 242, approved after the Six-Day War, permitted Israel to administer Judea and Samaria, the land that Arab aggression had returned to the Jewish people, until “a just and lasting peace in the Middle East” is achieved. Even then (and it hardly seems iminent), Israel would only be required to withdraw its armed forces (nothing was said about civilians) “from territories” – not from “the territories” or “all the territories” – that it administered. The missing “the” was intentional, assuring that legitimate Israeli land claims in Judea and Samaria had not been abrogated.

Dayan’s soft “moral” justification for Jewish settlements is not likely to persuade their legions of critics. Perhaps that explains why the Times printed it. No one should hold their breath until the Times acknowledges that settlements are legal according to ninety years of international law supported by an impressive array of international legal scholars. Even Prime Minister Netanyahu, who has already pledged to relinquish “land for peace,” might be persuaded.

Jerold S. Auerbach is the author, most recently, of Against the Grain: A Historian’s Journey, published by Quid Pro Books.

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