US Secretary of State Mike Pompeo’s announcement on the legality of settlements elicited responses along ideological fault lines: Israeli right-wingers and their supporters celebrated the affirmation of their long-held position, while pro-Palestinian activists and officials in Ramallah fumed, saying Washington gave a green light for Israel to annex the entire West Bank.
What exactly Pompeo’s declaration — that the “establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law” — exactly means, and whether it will have any tangible results on the ground, are a matter of debate.
Some argue that it was a mostly declarative step that is merely restoring the US position to what it was during the administration of Ronald Reagan.
Furthermore, the new policy can easily be reversed by a Democrat in the White House. A number of leading presidential hopefuls on Monday strongly criticized Pompeo’s speech, indicating that if Donald Trump loses a reelection bid in 2020, the US will revert to its previous position on the legality of settlements.
Others are interpreting Pompeo’s declaration as a first shot in a campaign that will end with promoting Israel’s annexation of West Bank settlements as an integral part of the White House’s much-anticipated peace plan.
A nuanced history
“Pompeo’s statement is not very dramatic,” said Robbie Sabel, a former legal adviser at Israel’s Foreign Ministry. “There’s a change, but it’s not a sea change.”
As Pompeo mentioned during his Monday press conference, the administration of Jimmy Carter in 1978 determined that Israeli settlements in the West Bank were illegal.
“While Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with international law,” Herbert J. Hansell, who served as legal adviser to the State Department at the time, determined in a letter to Congress.
In 1981, Ronald Reagan partially repudiated the so-called Hansell Memorandum. He declared that the settlements are not necessarily illegal, though he stressed that they are harmful to peace efforts.
According to Sabel, US officials continued after that, in private conversations, to say that settlements were indeed illegal, but refrained from admitting it in public.
“Rather, they said that they didn’t want to take a legal position on the matter,” Sabel said. In public statements, White House officials did not say settlements are legal or illegal but stressed that they’re harmful for peace, he added.
“The Reagan peace plan of 1982 even included a call to freeze settlements,” noted Lior Lehrs, who directs the program on Israeli-Palestinian peacemaking at Mitvim – The Israeli Institute for Regional Foreign Policies.
Bill Clinton and the two Bushes never officially changed the policy of not commenting on the settlement’s legality, though they all abstained on UN Security Council resolutions that called the settlements illegal, thus allowing them to pass, Sabel said.
Pompeo on Monday said that his statement was “reversing the Obama administration’s approach” toward settlements.
“Subsequent administrations recognized that unrestrained settlement activity could be an obstacle to peace, but they wisely and prudently recognized that dwelling on legal positions didn’t advance peace,” the US top diplomat said.
“However, in December 2016, at the very end of the previous administration, Secretary [of State John] Kerry changed decades of this careful, bipartisan approach by publicly reaffirming the supposed illegality of settlements.”
Pompeo was likely referring to Security Council Resolution 2334, which on December 23, 2016, determined that Israeli settlements have “no legal validity” and constitute “a flagrant violation under international law.” The US abstained on it, allowing it to pass.
In a speech five days later, Kerry argued that Resolution 2334 “simply reaffirms statements made by the Security Council on the legality of settlements over several decades.”
However, until late 2016, the Obama administration, while always critical of settlements, never publicly called them illegal. Rather, it used terms such as illegitimate or unhelpful.
“Israelis must recognize that continued settlement activity is counterproductive to the cause of peace,” Obama said during a speech in Jerusalem in March 2013.
The position delineated by Pompeo on Monday was more or less a return to the days of Reagan, Sabel said. The secretary rejected condemnations of settlements as illegal, but at the same time did not explicitly declare them to be legal.
“He was very careful in his speech. The one difference to Reagan is that Pompeo is not saying the settlements are harmful to the peace process,” Sabel said.
Indeed, Pompeo stressed that some individual settlements “cannot be legally sustained,” presumably referring to those built on privately owned Palestinian land. Furthermore, he said the US is not “prejudging the ultimate status of the West Bank,” as this was for Israelis and Palestinians to negotiate.
At the same time, US Ambassador to Israel David Friedman said Monday that Pompeo’s declaration “will advance the cause of peace by creating an appropriate level playing field for future talks.”
— David M. Friedman (@USAmbIsrael) November 18, 2019
Will Pompeo’s speech change anything on the ground?
Since several US administrations, under both Republican and Democratic presidents, have allowed the passage of UN resolutions condemning settlements as illegal, it was until this week fair to say that an overwhelming majority of the international community — in fact, every country but Israel — considered the settlement enterprise legally problematic and an obstacle to peace.
That statement is no longer entirely accurate. The United States is one of five permanent members of the UN Security Council, and as diplomatically isolated as it may be on the peace question, it is still a superpower and an important part of the international community. As of Monday, one can no longer generalize the international community’s position on the settlements.
And yet, in practical terms Pompeo’s speech will likely not change much, said Amichai Cohen, an expert on international law and the dean of the Ono Academic College’s law faculty.
“Most states and international institutions — actually everyone besides the US and Israel — claim that settlements are illegal. I don’t think their views will be affected by this decision,” he said. “Maybe a couple of states will follow suit, but I don’t see a significant change coming.”
The view that that settlements are illegal under international law is based on an interpretation of Article 49 of the Geneva Convention, which prohibits a country from moving its population into occupied territory.
There are of course counterarguments, for example that Article 49 doesn’t apply to Israel and the West Bank. But it is highly unlikely that many countries would change their longstanding position based on a speech by a politician, Cohen said.
“In his speech yesterday, Pompeo didn’t even make a legal argument. He simply said that claiming Israeli settlements are illegal is not useful in the quest for peace. I don’t see how this can affect a disagreement on how to interpret international law,” Cohen said.
The European Union on Monday night rushed to clarify that its position on settlements “remains unchanged: all settlement activity is illegal under international law.” Jordan, Turkey, Russia and others issued similar statements.
Israelis rejoiced when the Trump administration recognized Jerusalem as Israel’s capital. But so far, only a handful of countries have followed suit. As of today, only one other country — Guatemala — operates an embassy in the city.
The White House also recognized Israeli sovereignty over the Golan Heights — a territory that, according to the broad understanding of international law, still belongs to Syria — but not a single government in the world has taken a similar step.
A prelude to annexation and, possibly, violence?
In and of itself, Pompeo’s statement is “very limited,” Cohen said, as it merely signals a return to the Reagan-era ambiguity about the legal status of settlements. But, he added, it could well be “a prelude to American support for an Israeli annexation of the West Bank.”
Aaron David Miller, a former peace negotiator who served under Democratic and Republican administration, argued that Pompeo’s declaration must be seen “within the context of Trump’s seeming determination to reframe US policy toward the Israeli-Palestinian conflict.”
The secretary said that his statement won’t prejudge the ultimate status of the West Bank, but “it will,” Miller predicted. “It will also further alienate Palestinians, whose buy-in Israelis will need if any solution to the Israeli-Palestinian conflict will ever be possible; and could spark violence.”