US Secretary of State Mike Pompeo’s statement of November 19 regarding the legal status of Israeli settlements in the West Bank unambiguously refers to Israel’s presence there as being consistent with international law. This, in effect, is a reversal of the Obama Administration’s approach toward Israeli settlements.
Obama, for his part, based his anti-settlement policy on that of the Carter Administration, which in 1978 “categorically concluded that Israel’s establishment of civilian settlements was inconsistent with international law.” Then, in 1981, said Pompeo, “President Reagan disagreed with that conclusion and stated that he didn’t believe that the settlements were inherently illegal.” Nevertheless, continued Pompeo, “in December 2016, at the very end of the previous administration, Secretary of State John Kerry changed decades of … careful, bipartisan approach by publicly reaffirming the supposed illegality of settlements.”
The names of presidents who took conflicting views regarding the meaning of the relevant international law points to the obvious, that opinions regarding the “occupied territories” are not based on legality, but rather on agenda. Or, as Pompeo chose to express it, “international law does not compel a particular outcome, nor create any legal obstacle to a negotiated resolution.”
Leaving aside the issue of international law–about which Alan Dershowitz said it is “a construct in the mind of a bunch of left-wing academics,” and that “it is the ultimate exercise in elitist non-democracy”–there is little doubt that the Geneva Convention and UN resolutions are internationally-recognized as legal and binding. After all, Israel itself often points enthusiastically to such resolutions. For example, the international decisions in 1920 and 1922 that ratified the Balfour Declaration and called on “His Majesty’s Government to view with favor the establishment in Palestine of a national home for the Jewish people,” and, of course, the 1947 UN Resolution 181 that officially recognized the establishment of the State of Israel.
The quarrel over “occupied territories” stems mainly from Article 49 of the 1949 Fourth Geneva Convention, which was never intended to be applied to the circumstances of Israel’s settlements. Article 49, to recall, was drafted by the Allies after World War II to prevent the forcible transfer of an occupied population, as was carried out by Nazi Germany. Further still, UN Resolution 181 was rejected by the Arab countries. Consequently, in the absence of peace agreements, the West Bank is at best a territory under dispute that can only be settled via bilateral treaties, which means that the future of these areas is not a legal question, but a political one. That’s what Pompeo now asserts.
The Trump Administration’s conclusion should have been obvious in light of the famous 1967 UN Resolution 242, that in its binding English version recognizes the fact that the annexation of the West Bank by Jordan in 1950 was illegal. This means that there is nothing illegal in Israel claiming a territory originally designated by the League of Nation as part of the Jewish Home, particularly not after Jordan declared in 1988 that it no longer considered itself as having any status over West Bank.
As Alan Dershowitz, who helped drafting Resolution 242, has rightly noted, this resolution calls for Israel to return “territories,” instead of “all the territories,” which is what the anti-settlement advocates say. Further still, Resolution 242, does not mention “the rights of non-states, such as the Palestinian Authority [and] Hamas … It would be wrong for the Security Council retroactively to rewrite Resolution 242 [some] 44 years after it was enacted.”
Contrary to renowned legal professors like Dershowitz and Eugene Rostow–who in 1980 wrote that “Jewish rights of ‘close settlement’ in the West Bank are derived from the Mandate. Therefore they exist; it is impossible to seriously contend, as the United States government does, that Israeli settlements in the West Bank are illegal”–the Carter Administration anti-settlement position was based on the 1976 “Hansell Report,” drafted by State Department legal advisor Herbert Hansell. Hansell’s position, he seems to have admitted in a later interview with Charles Stuart Kennedy, was given so as to back up the policy position of the Carter White House.
The exact same thing happened in Israel with the controversial 2004 “Sasson Report.” Then-Prime Minister Ariel Sharon, who by that time had already decided on his Gaza Disengagement Plan, appointed known radical left-wing lawyer Talia Sasson to give her legal advice regarding the status of settlements. Though the first sentence in Sasson’s report says that “the relevant law is unknown,” she nevertheless finds no less than 39 illegal settlements, some of which were established after Sharon himself encouraged the building of as many settlements as possible to countermeasure the 1993 Oslo Accord. And as it is now with the Trump Administration, in 2012, Israel Supreme Court Justice Edmond Levi issued his statement that repudiated the conclusions of the Sasson Report.
The Trump Administration’s position, therefore, will hopefully put an end to false agenda-driven legal opinions that for decades succeeded in portraying Israel as an illegal occupier of non-state Palestine. This position is crucial for peace because, noted law professor Talia Einhorn, true and lasting peace can’t be based on lies. “The entire nation of Israel longs for true peace,” she wrote in the daily Israel Hayom, and “those who insist upon calling the territories ‘occupied’ are doing so out of wishful thinking in hope that by doing so Israel will be able to come closer to peace. But, as (our national poet Nathan) Alterman said, ‘those who allow it (falsification) to enter the competition have already defeated liberty.'”