On November 18, 2019, Secretary of State Michael Pompeo expressed the Trump administration’s position that “the establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.” This was inaccurately described in the media as a reversal of long standing American policy. In truth, the record is more complicated.
Jews have lived in Judaea and Samaria – the West Bank – since ancient times. The only period when were prohibited from living in the territories was during Jordan’s occupation from 1948 to 1967. Jews began to settle in the area again after it was captured by Israeli forces in the defensive war fought in 1967.
The idea that these Jewish communities are illegal derives primarily from UN resolutions and the International Court of Justice (ICJ), which is an arm of the UN. The UN does not make legal determinations, only political ones tainted by the overwhelming anti-Israel majority. The ICJ “does not have jurisdiction over all disputes between UN member-states,” according to the Congressional Research Service. In fact, “with the exception of ‘advisory opinions,’ which are non-binding, the ICJ may only resolve legal disputes between nations that voluntarily agreed to its jurisdiction” (Stephen P. Mulligan, “The United States and the ‘World Court,’” Congressional Research Service, October 17, 2018).
Opinions of the ICJ are routinely ignored by countries they are directed at, and the Europeans would never accept the idea that they trump the decisions of their own judiciaries. Likewise, the United States has explicitly rejected the court’s jurisdiction and National Security Adviser John Bolton called the ICJ “politicized and ineffective” (Lawfare, October 5, 2018).
Israel does not recognize the court’s jurisdiction on the settlement issue. Like other democracies, Israel has an independent judiciary and, as Pompeo noted, its Supreme Court has “confirmed the legality of certain settlement activities and has concluded that others cannot be legally sustained.”
The ICJ opinion that the settlements violate international law is disputed by legal scholars. Stephen Schwebel, formerly president of the ICJ, notes that a country acting in self-defense may seize and occupy territory when necessary to protect itself. Schwebel also observes that a state may require, as a condition for its withdrawal, security measures designed to ensure its citizens are not menaced again from that territory (Stephen M. Schwebel, “What Weight to Conquest?” American Journal of International Law, April 1970, pp. 345–46).
The ICJ opinion was largely based on a fallacious interpretation of the Fourth Geneva Convention, which says an occupying power “shall not deport or transfer parts of its own civilian population into the territory it occupies.”
The ICJ presupposes that Israel is now occupying the land of a sovereign country; however, as Dore Gold notes, “there was no recognized sovereign over the West Bank prior to Israel’s entry into the area.” The area had previously been occupied by Jordan (Dore Gold, “A long awaited correction,” Israel Hayom, November 18, 2019).
A country cannot occupy territory to which it has sovereign title; hence, the correct term for the area is “disputed territory,” which does not confer greater rights to either Israel or the Palestinians. The Palestinians never had sovereignty in the West Bank whereas the Jews did for hundreds of years; therefore, “Israel has the strongest claim to the land,” according to legal scholar Eugene Kontorovich. “International law holds that a new country inherits the borders of the prior geopolitical unit in that territory. Israel was preceded by the League of Nations Mandate for Palestine; whose borders included the West Bank” (Eugene Kontorovich, “Pompeo Busts the ‘Occupation’ Myth,” Wall Street Journal, November 19, 2019).
Gold also notes the Convention was never meant to apply to a case like the settlements. Morris Abram, one of its drafters “wrote that its authors had in mind heinous crimes committed by Nazi Germany that were raised during the Nuremberg trials. These included forcible evictions of Jewish populations for purposes of mass extermination in death camps in places like Poland.” Israel is not forcibly transferring its population; Jews moving to the West Bank do so voluntarily.
Adam Baker, a former legal adviser to Israel’s Ministry of Foreign Affairs, adds that the “Oslo Accords instituted an agreed legal regime that overrides any other legal framework, including the 1949 Fourth Geneva Convention” (Alan Baker, “The Legality of Israel’s Settlements: Flaws in the Carter-Era Hansell Memorandum,” JCPA, November 21, 2019).
Furthermore, UN Security Council Resolution 242 gives Israel a legal right to be in the West Bank. According to Eugene Rostow, a former undersecretary of state for political affairs in the Johnson administration, “Israel is entitled to administer the territories” it acquired in 1967 until “a just and lasting peace in the Middle East” is achieved (Eugene Rostow, “Bricks and Stones: Settling for Leverage,” New Republic, April 23,1990).
United States policy has been inconsistent. A State Department legal adviser in the Carter administration, Herbert Hansell, is believed to be the first U.S. official to argue the establishment of settlements in the “occupied territories,” which then included the West Bank, the Gaza Strip, the Sinai Peninsula and the Golan Heights, is “inconsistent with international law.” This was consistent with the views of President Carter at the time who was critical of Israeli settlement policy. Kontorovich has noted that Hansell said the state of occupation would end if Israel entered into a peace treaty with Jordan, which it did in 1994. Nevertheless, the State Department never updated the memo.
Ronald Reagan rejected Hansell’s opinion of settlements. On February 3, 1981, he said, “I disagreed when the previous Administration referred to them as illegal, they’re not illegal” (“Excerpts From Interview With President Reagan Conducted By Five Reporters,” New York Times, February 3, 1981).
On July 20, 1991, Secretary of State James Baker was asked if the Bush administration regarded the settlements as illegal and his answer was, “this is not our policy” (Paul Claussen and Evan M. Duncan, Eds., American Foreign Policy Current Documents, NY: William S. Hein & Co., 2008, p. 570).
The Obama policy has also been mischaracterized. Secretary of State John Kerry and President Obama were very critical of Israel’s settlement policy, but Kerry did not call them “illegal,” he said they were “illegitimate” (“Kerry: Israeli settlements are illegitimate,” Al Jazeera, November 6, 2013). His only statement regarding their “illegality” was when he mentioned “settler outposts that are illegal under Israel’s own laws.” Obama abstained rather than veto the UN Security Council resolution labeling settlements illegal, which was generally interpreted as an endorsement of that view; however, it had no effect on U.S. policy since he left office shortly thereafter.
In response to criticism that the decision would harm the peace process, which at the time was moribund, Pompeo said the Carter formulation “hasn’t advanced the cause of peace.” He added, the Israeli- Palestinian conflict “that can only be solved by negotiations between the Israelis and the Palestinians.”
The decision was praised by Israeli leaders but, predictably, condemned by the Palestinians. By making clear the settlements are not illegal, the United States is sending a message to the Palestinians and their supporters that international law cannot be used to coerce Israel to capitulate to their demands.
The claim that settlements are “illegal” has not had any impact on Israeli policy. A future government may decide to change the current policy if that is the will of the Israeli people and advances the peace process irrespective of the views of the international community.
It is also possible the U.S. will change its position again.
Several Democrats running for president in 2020 criticized the Trump administration’s decision, and two, Elizabeth Warren and Bernie Sanders, expressed their view that the settlements are illegal (“Leading Democratic presidential candidates denounce US settlement decision,” Times of Israel, November 19, 2019)