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November 13, 2013 12:28 pm

An Open Letter to John Kerry on the Peace Process

avatar by Alan Baker

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John Kerry in Israel. Photo: Israel Hayom.

The Hon. James Kerry, U.S. Secretary of State,

The State Department,

Washington D.C.

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November 8, 2013

Dear Secretary Kerry,

After listening to you declare repeatedly over the past weeks that “Israel’s settlements are illegitimate”, I respectfully wish to state, unequivocally, that you are mistaken and ill advised, both in law and in fact.

Pursuant to the “Oslo Accords”, and specifically the Israel-Palestinian Interim Agreement (1995), the “issue of settlements” is one of subjects to be negotiated in the permanent status negotiations. President Bill Clinton on behalf of the US, is signatory as witness to that agreement, together with the leaders of the EU, Russia, Egypt, Jordan and Norway.

Your statements serve to not only to prejudge this negotiating issue, but also to undermine the integrity of that agreement, as well as the very negotiations that you so enthusiastically advocate.

Your determination that Israel’s settlements are illegitimate cannot be legally substantiated. The oft-quoted prohibition on transferring population into occupied territory (Art. 49 of the 4th Geneva Convention) was, according to the International Committee Red Cross’s own official commentary of that convention, drafted in 1949 to prevent the forced, mass transfer of populations carried out by the Nazis in the Second World War. It was never intended to apply to Israel’s settlement activity. Attempts by the international community to attribute this article to Israel emanate from clear partisan motives, with which you, and the US are now identifying.

The formal applicability of that convention to the disputed territories cannot be claimed since they were not occupied from a prior, legitimate sovereign power.

The territories cannot be defined as “Palestinian territories” or, as you yourself frequently state, as “Palestine”. No such entity exists, and the whole purpose of the permanent status negotiation is to determine, by agreement, the status of the territory, to which Israel has a legitimate claim, backed by international legal and historic rights. How can you presume to undermine this negotiation?

There is no requirement in any of the signed agreements between Israel and the Palestinians that Israel cease, or freeze settlement activity. The opposite is in fact the case. The above-noted 1995 interim agreement enables each party to plan, zone and build in the areas under its respective control.

Israel’s settlement policy neither prejudices the outcome of the negotiations nor does it involve displacement of local Palestinian residents from their private property.  Israel is indeed duly committed to negotiate the issue of settlements, and thus there is no room for any predetermination by you intended to prejudge the outcome of that negotiation.

By your repeating this ill-advised determination that Israel’s settlements are illegitimate, and by your threatening Israel with a “third Palestinian intifada” and international isolation and delegitimization, you are in fact buying into, and even fueling the Palestinian propaganda narrative, and exerting unfair pressure on Israel. This is equally the case with your insistence on a false and unrealistic time limit to the negotiation.

As such you are taking sides, thereby prejudicing your own personal credibility, as well as that of the US.

With a view to restoring your own and the US’s credibility, and to come with clean hands to the negotiation, you are respectfully requested to publicly and formally retract your determination as to the illegitimate nature of Israel’s settlements and to cease your pressure on Israel.


Alan Baker, Attorney, Ambassador (ret’),

Former legal counsel of Israel’s Ministry for Foreign Affairs,

Former ambassador of Israel to Canada,

Director, Institute for Contemporary Affairs, Jerusalem Center for Public Affairs,

Director, International Action Division, The Legal Forum for Israel


H.E. Daniel B. Shapiro, US Ambassador to Israel,

71 Hayarkon Street

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  • sid

    I just don’t think that John Kerry is intelligent enough to understand these arguments. Or perhaps he is prejudiced.

  • Bear Klein

    Kerry does care about legalities and the political rights of Israelis nor their safe future. He is just a naive arrogant person who like Obama knows what is better for Israel than Israel.

    He also knew that Assad was a reformer who could be pulled away from Iran.

    You could publish an encyclopedia with what he Does NOT KNOW.

  • Bill Stein

    Settlements are legal Eugene W. Rostow assistant secretary of state for the United States in 1967 who wrote UN resolution 242 wrote in several articles New Republic in 1991 that resolution 242 never meant for Israel to go back to the 67 borders. He also wrote that settlements were legal in the West Bank based on the fact that the British mandate in 1922 could not be rescinded. There is nothing in his writings in any agreements that say Israel had to go back to 67, and nothing was ever mentioned about land swaps.Read also what the other authors wrote about Resolution 242 in the January 15 2007 article in Camera titled. “Security Council Resolution 242 According to its Drafters”

    Lord Caradon: Quotes Res 242
    “Much play has been made of the fact that we didn’t say “the” territories or “all the” territories. But that
    was deliberate. I myself knew very well the 1967 boundaries and if we had put in the “the” or “all the” that could only have meant that we
    wished to see the 1967 boundaries perpetuated in the form of a permanent frontier. This I was certainly not prepared to recommend.”

    “We could have said: well, you go back to the 1967 line. But I know the 1967 line, and it’s a rotten line”

    “Had we said that you must go back to the 1967 line, which would have resulted if we had specified a
    retreat from all the occupied territories, we would have been wrong.”

    Dr. Jacques Gauthier, a Canadian lawyer who specializes in international law says that the San Remo Conference was the “final hearing” of a “world court,” the council of the five leading nations and victors of World War I. The “case” before the “court” began at the Paris Peace Conference of 1919, where both the Jews and the Arabs of the Middle East submitted claims to the council to obtain independence and control of various territories. Gauthier calls April 24-25 in San Remo the “key defining moment in history” on the issue of title to Jerusalem and says that Chaim Weizmann called the decision the “most important moment for the Jewish people since the exile.”

    Please see the 5 or so YouTube video lectures on Jerusalem judea and Samaria international law by famed non Jewish international lawyer Dr. Jacques Gauthier. Unfortunely can’t post links in this forum. I only say “non Jewish” because to some bigots might use the excuse that he is Jewish for his Pro Israeli legal opinion

    The Britsh Mandate was recognized by the league of nations in 1923. As per wiki “In June 1922 the League of Nations approved the Palestine Mandate with effect from September 1923. The Palestine Mandate was an explicit document regarding Britain’s responsibilities and powers of administration in Palestine including ‘securing the establishment of the Jewish national home’, and ‘safeguarding the civil and religious rights of all the inhabitants of Palestine”