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September 5, 2014 9:06 am

To Settle or Not to Settle? That is the Question

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avatar by Jerold Auerbach

View of the Har Homa settlement in the West Bank. Photo: James Emery.

Not long after the recent Gaza war finally subsided, a familiar contentious issue reemerged. Following an investigation lasting several years Israel’s Civil Administration declared nearly one thousand acres south of Jerusalem, within the cluster of communities known as Gush Etzion, to be state land. This meant that new homes could be built for Jews. Or, in the reflexive common parlance: Israel was planning another “illegal settlement” on “Palestinian” land.

To the contrary. The Etzion bloc, located between Jerusalem and Hebron, currently comprises 18 communities with nearly 40,000 residents. Its modern origins are traceable to 1927, when Yemenite immigrants and ultra-Orthodox Jews established “Migdal Eder,” named after the biblical site (mentioned in Genesis 35:21) where Jacob pitched his tent after burying Rachel. Destroyed during the violent Arab riots of 1929, when the ancient Jewish community in nearby Hebron was also decimated, it was rebuilt between 1943 and 1947, only to be demolished yet again by marauding Arabs on the eve of Israel’s independence. More than 200 Jewish residents, who fought valiantly to the bitter end, were massacred. By Knesset decree, the day Gush Etzion fell became – and remains – the day of remembrance for Israeli soldiers killed in military action.

Following the Six-Day War, Hanan Porat, a child survivor of the Gush Etzion carnage, was determined to restore his vanquished community. Impelled by the politics of memory, he joined Rabbi Moshe Levinger and lawyer Elyakim Haetzni in urging “a Jewish vengeance of building, rebirth and return” in Hebron and Gush Etzion. Their resolute efforts were crowned with success. But in the eyes of the world (including myopic secular Israelis), the current Jewish inhabitants of these ancient Jewish communities are “settlers,” illegally occupying “Palestinian” land. In fact, like their ardent Zionist predecessors ever since the 19th century, they have returned to the ancient homeland of the Jewish people.

Predictable public furor erupted, outside and inside Israel, following the Civil Administration announcement. A State Department official declared “We have long made clear our opposition to continued settlement activity.” Al-Jazeera condemned “the latest and largest in a series of land grabs.” Peace Now warned that it could “dramatically change the reality” in the area. “Most countries,” noted The New York Times in a familiar trope, “consider Israeli settlements to be a violation of international law.” Times of Israel blogger Marc Goldberg, accusing Prime Minister Netanyahu of a land grab propelled by ulterior political motives, urged: “Forget the 1,000 acres, leave them for the Palestinians and enter into a new peace process with Mahmoud Abbas.”

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The canard of settlement “illegality” should finally be put to rest. Despite the incessant claims of settlement critics, international law fails to support them. Article 80 of the United Nations Charter (known as the “Palestine clause”) preserved the right of the Jewish people to “close settlement” west of the Jordan River. Article 49 of the Fourth Geneva Convention (1949), frequently cited by settlement critics, declared that an “occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Promulgated in the wake of forced Nazi population transfers during World War II, it hardly applied to the decisions of individual Jews (“settlers”) to return to their ancient homeland. Nor did the government of Israel “deport” Palestinians from, nor “transfer” Israelis to, biblical Judea and Samaria (Jordan’s “West Bank”) after the Six-Day War.

Following that war, the carefully framed language of UN Security Council Resolution 242 only required Israel to withdraw from “territories” – not from “the territories” or “all the territories” – that it gained during the Arab war to destroy the Jewish state. The absence of “the” was not an oversight; it was meant to assure Israel that the 1949 “Green Line” boundaries had been obliterated. As Undersecretary of State Eugene V. Rostow subsequently wrote: “The right of Jewish settlement in the area is equivalent in every way to the right of the existing [Palestinian] population to live there.”

If that provides insufficient legal support for the recent Israeli Civil Administration ruling, it might be noticed that the Oslo II Accord, signed by Rabin and Arafat at the White House in 1995, divided the West Bank into three zones. In Area A, Palestinians have full control; in Area B, there is mixed Palestinian and Israeli security control (and exclusive Palestinian civil control); and in Area C, Israel retains full military and civil control (including the power to zone and plan for development).

The territory generating the current international bruhaha is entirely within Area C, where Israel possesses every right under international law to develop, and – to use that despised word – “settle.” If not in the land between Hebron and Jerusalem, the capitals of ancient Israel, then where?

On Wednesday the Jerusalem Local Building and Planning Committee approved a large construction proposal for an Arab neighborhood in East Jerusalem with 2,200 homes. Israel’s settlement critics remain silent. Might there be a double-standard?

Jerold S. Auerbach is a frequent contributor to The Algemeiner and other publications.

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