Israeli Settlements Are a Political, Not a Legal Issue

A demonstrator holds a Palestinian flag during a protest against Jewish settlements in Kofr Qadom, in the Israeli-occupied West Bank, November 22, 2019. (Mohamad Torokman/Reuters)
It was not radical for Secretary of State Mike Pompeo to revive the Reagan policy.

Secretary of State Mike Pompeo has just upended longstanding, widely held opinion about the legality of Israel’s West Bank settlements. Critics say he is off on the law, has radically broken with U.S. policy, and is undermining the pursuit of peace. Those critics are wrong on all scores.

Pompeo made four main points. First, the settlements are not “inherently illegal.” Second, the West Bank’s fate should be determined through negotiations. Third, international law “does not compel a particular outcome” in favor of Israel or the Palestinians. And fourth, the issue is political in nature, not legal, and attacking the settlements’ legality “hasn’t advanced the cause of peace.”

For 35 years U.S. administrations refrained from repeating President Carter’s criticism of Israeli settlements as illegal, Pompeo recounted, but then President Obama broke with this policy by taking the Carter position at the United Nations. President Reagan had rejected Carter’s view. “This administration,” Pompeo said, “agrees with President Reagan.”

I advised President Reagan on the subject. Here’s some background.

President Carter had a famously strained relationship with Israeli prime minister Menachem Begin. Carter pressured him to make concessions to the Palestinians. This included condemnation of Israeli settlements as illegal, supported by a five-page letter dated April 21, 1978, and signed by State Department legal adviser Herbert Hansell.

That letter was a poor piece of work, dealing only with authority that Israel acquired as victor of the 1967 war. It ignored entirely the rights of Jews under the 1922 Palestine Mandate, which called for “close settlement by Jews on the land.” How could those rights have been extinguished by Jordan’s unlawful attack on Israel in 1948 or by Jordan’s purported West Bank annexation in April 1950, which the United States never recognized?

From ancient times until 1949, Jews could lawfully live in the West Bank. Mr. Hansell didn’t explain when that right was terminated, though he did admit that Jordan was not the legitimate sovereign of the West Bank between 1949 and 1967.

Seeing that Carter invoked law simply as a stick for whacking Israel, Reagan rose to Israel’s defense, declaring he disagreed with Carter. As one of the three Middle East specialists on the National Security Council staff, I was asked for a short note on the subject for the president.

Recalling Reagan’s February 1981 statement that the settlements are not illegal, I concurred and said, “The issue is properly a political question, notlegal question.” The U.S. government “has recognized no country’s sovereignty over the West Bank since Britain controlled the area under the Palestine Mandate.” The sovereignty issue “is open and will not be closed until the actual parties to the conflict formally consent to a peace agreement.” In the meantime, “there is no law that bars Jews from settling on the West Bank” and no one should be excluded from living there “simply on account of his nationality or religion.”

It was not radical for Pompeo to revive the Reagan policy. What was radical — and what impeded diplomatic progress — was the Obama administration’s return to Carter’s legalistic criticism of Israel.

Carter held the conventional view that the Arab–Israeli conflict is in some essential way about the settlements. Trump-administration officials see it differently. Their view evidently is that the conflict reflects the hopes of Israel’s enemies that they can weaken the Jewish state, separate it from its U.S. ally, and ultimately destroy it. What fuels the conflict is the notion that Israel is a vulnerable, alien presence that lacks roots, legitimacy, and moral confidence.

For years, anti-Israel propaganda concentrated so intensely on attacking the settlements as illegal because that line of argument was deeper than a criticism of policy: It called Israel’s legitimacy into question. As Israel’s chief enemies know, asserting that the Jews have no right to live in the West Bank — an important part of the ancient Jewish homeland — calls into question the Jews’ right to have created Israel in the first place. In both cases, the right relates to the Palestine Mandate, which linked Zionist legitimacy to the “the historical connection of the Jewish people with Palestine.” Israel’s first prime minister, David Ben-Gurion, invoked the Palestine Mandate in the state’s Declaration of Independence.

This question of rights is distinct from whether it is sensible policy for Israel to build or expand settlements in the West Bank. And that is a different question from whether and how Israel should divide the West Bank in a peace deal, if Palestinian leaders are ever truly willing to end the conflict through compromise.

Pompeo drew the line prudently. He repudiated the unconstructive Carter-Obama policy by rejecting the claim of illegality. He bolstered Israel’s legitimacy. And he kept open the issue of how the parties should divide the West Bank in a peace deal, except to say that they should do so through mutual agreement.

By moving the U.S. embassy in Israel to Jerusalem, recognizing Israeli sovereignty over the Golan Heights, and declaring the West Bank settlements legal, Trump administration officials are strengthening U.S. ties to Israel. They are systematically contradicting those who argue that Israel can be isolated and destroyed. In the despair of the eliminationists is the best hope for a negotiated peace.

Douglas J. Feith, a senior fellow at Hudson Institute, served as undersecretary of defense for policy from July 2001 to August 2005.


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