US Recognizes Settlement Truth
The United States has finally come to the legal and practical conclusion that “The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.” As with prior announcements recognizing Jerusalem and the Golan Heights, critics immediately went into apoplexy charging the action would kill any hopes for peace and provoke an outburst of violence against the United States. As with those earlier decisions, the critics are again wrong.
The argument that the settlements were illegal primarily has come from annual United Nations resolutions that do not express legal judgments, but political ones. The United States has long been critical of Israel’s settlement policy but has not treated them as illegal.
Media reports have recounted a legal opinion that the settlements were illegal was expressed during the Carter administration. This was consistent with Carter’s general hostility toward Israel and specific disdain for the settlements. As Secretary of State Mike Pompeo noted in his statement regarding the issue, Ronald Reagan rejected this opinion. Though, Pompeo also noted that his predecessor had referred to them as illegal, the Obama administration abstained but did not vote for the UN Security Council resolution labeling the settlements illegal.
Prior to Pompeo’s announcement, other legal authorities had disputed the charge that settlements are “illegal.” The assertion that settlements violate the Fourth Geneva Convention has been debunked, for example, by Alan Baker, who noted that the Convention was adopted to prevent the “post-Second World War mass transfers of populations in Europe by the Nazis in an attempt to alter the demographic structure of the countries involved.” He adds that in the Oslo Accords, Israel agreed to negotiate the final status of the territories.
Stephen Schwebel, formerly president of the International Court of Justice, has written 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.
In addition, Eugene Rostow, a former undersecretary of state for political affairs in the Johnson administration, said Resolution 242 gives Israel a legal right to be in the West Bank. He noted the resolution says “Israel is entitled to administer the territories” it won in 1967 until “a just and lasting peace in the Middle East” is achieved.
The West Bank — Judea and Samaria — is not “occupied” territory; it is disputed land. Hence Israel has as much right to build there as the Palestinians whose “settlements” have been given the international seal of approval.
Moreover, as Pompeo correctly notes, “The Israeli legal system affords an opportunity to challenge settlement activity and assess humanitarian considerations connected to it. Israeli courts have confirmed the legality of certain settlement activities and has concluded that others cannot be legally sustained.”
The US announcement also does not affect Israel’s decision-making. A significant segment of the Israeli population remains opposed to the expansion of settlements and a future government may decide to restrict or evacuate settlements.
Prime Minister Benjamin Netanyahu and his chief rival Benny Gantz both praised the decision. Netanyahu said, “This policy reflects a historical truth — that the Jewish people are not foreign colonialists in Judea and Samaria,” and Gantz tweeted, “The fate of the settlements and the residents of Judea and Samaria should be determined by agreements that meet security requirements and that can promote a peace that will serve both sides while reflecting the reality on the ground.”
As in the case of the Jerusalem and Golan decisions, there is no reason to expect the United States to come under attack because everyone in the region has long recognized the settlements are a reality, and that Israel’s policy regarding settlements is unaffected by pronouncements of their “illegality.”
As Pompeo put it, “calling the establishment of civilian settlements inconsistent with international law hasn’t worked. It hasn’t advanced the cause of peace.” He was also correct in saying the conflict with the Palestinians is not a judicial issue but one “that can only be solved by negotiations between the Israelis and the Palestinians.”
Implicitly Pompeo also rejected the absurd notion that settlements rather than the obduracy of the Palestinians are the obstacle to peace. This is so easy to prove, it boggles the mind that intelligent people still make this claim. Consider:
- From 1949 to 1967, when Jews were forbidden to live in the West Bank, the Arabs refused to make peace with Israel.
- From 1967 to 1977, the Israeli Labor Party established only a few strategic settlements in the territories, yet the Arabs were unwilling to negotiate peace with Israel.
- In 1977, months after a Likud government committed to greater settlement activity took power, Egyptian president Anwar Sadat went to Jerusalem and later signed a peace treaty with Israel. Incidentally, Israeli settlements existed in the Sinai, and those were removed as part of the agreement with Egypt.
- One year later, Israel froze settlement building for three months, hoping the gesture would entice other Arabs to join the Camp David peace process — but none would.
- In 1994, Jordan signed a peace agreement with Israel, and settlements were not an issue; if anything, the number of Jews living in the territories was growing.
- Between June 1992 and June 1996, under Labor Party-led governments, the Jewish population in the territories grew by approximately 50 percent. This rapid growth did not prevent the Palestinians from signing the Oslo Accords in September 1993 or the Oslo 2 agreement in September 1995.
- In 2000, Prime Minister Ehud Barak offered to dismantle dozens of settlements, but the Palestinians still would not agree to end the conflict.
- In August 2005, Israel shattered the mythology of the land for peace formula when it evacuated all of the settlements in the Gaza Strip and four in Northern Samaria only to see an escalation of terror.
- In 2008, Prime Minister Ehud Olmert offered to withdraw from approximately 94 percent of the West Bank, but the deal was rejected.
- In 2010, Netanyahu froze settlement construction for 10 months, and the Palestinians refused to engage in negotiations until the period was nearly over. After agreeing to talk, they walked out when Netanyahu refused to prolong the freeze.
The US decision is another important step toward disabusing the Palestinians of the idea that they can persuade the international community to force Israel to capitulate to their demands to withdraw to the 1967 borders. They had been given renewed hope by Obama and, unfortunately, the response of several Democratic candidates for president will keep it alive.
As I’ve written before, the issue is likely moot given the number and geographic location of the Jewish communities. Israel is not going to forcefully evacuate well over 100,000 Jews from their homes as they painfully did the 9,000 in Gaza. Moreover, given the administration’s position, it is likely a second Trump term would see the population of the disputed territory continue to grow and potentially reach 500,000 (it is now roughly 450,000).
The Palestinians are predictably having a tantrum, but the US decision should be a wake-up call that time is not, as they think, on their side. The longer they refuse to negotiate peace, the less likely they will achieve any form of independence in any part of the West Bank.