Settling the law

On December 28, 2016, just a week after the lame-duck Obama administration enabled the UN Security Council to pass a strongly worded anti-settlement resolution, then-secretary of state John Kerry gave a speech of more than an hour in the State Department in which he excoriated the settlements. This position reflected the attitudes of an administration that seemed obsessed with the settlements and viewed them as the primary obstacle to peace. As Kerry said, “It is the permanent policy of settlement construction that risks making peace impossible.” Defending the US abstention on UNSC 2334, a move that enabled it to pass, Kerry said, “In 1978, the State Department legal adviser advised the Congress on his conclusion that... the Israeli government's program of establishing civilian settlements in the occupied territory is inconsistent with international law, and we see no change since then to affect that fundamental conclusion.” In other words, the settlements are illegal under international law. On Monday, nearly three years to Kerry's speech, another secretary of state, Mike Pompeo, gave a much briefer speech in the State Department in which he made the exact opposite determination. “The Trump administration is reversing the Obama administration's approach towards Israeli settlements,” Pompeo said, noting that US public statements on the settlements have been “inconsistent over decades.” While the Carter administration concluded that the settlements were “inconsistent with international law,” president Ronald Reagan – who followed Jimmy Carter – said that he didn't believe they were inherently illegal, Pompeo noted. And while subsequent presidents – George H.W. Bush, Bill Clinton, and George W. Bush – held that unrestrained settlement activity could be an obstacle to peace, they “recognized that dwelling on legal positions didn't advance peace,” Pompeo noted. “However, in December 2016, at the very end of the previous administration, secretary Kerry changed decades of this careful, bipartisan approach by publicly reaffirming the supposed illegality of settlements,” Pompeo said. “After carefully studying all sides of the legal debate, this administration agrees with president Reagan. The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.” And there you have it. No longer could the Palestinians – or, for that matter, the Europeans – declare, as though it were a truth handed down from heaven, that the international community views settlements as illegal, because the United States, not some bit player in the international community, has now declared officially that it does not share that view. BUT DOES it really matter? Is there any significance in a declaration that, obviously, does not affect anything on the ground? Alan Baker, a former ambassador to Canada who served for years as the Foreign Ministry's legal adviser and who has written extensively on this issue, said that ranking the significance of Pompeo's declaration on a scale of one to 10, he would give it a six. “It's not vital, it's a perception of legality of Israel's settlements – it changes the perception that has existed up until now in the US administration, and it goes against the perception held by the EU and the UN, which is a political perception and not really a legal perception.” Baker, now the director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, said that those claiming the settlements are illegal under international law are not basing this on any clear legal determination or a genuine evaluation of the sources of international law, but rather on UN resolutions that he stressed were nonbinding, political – not legal – decisions. Baker argued that both the right wing, which saw Pompeo's statements as a green light to annexation of the West Bank, and the Palestinians, who reacted with histrionics to the secretary of state's words, were making much more out of the statement than they should. Nevertheless, he acknowledged that the declaration is helpful to Israel because it throws into question “assumptions that are held by the Palestinian leadership, and by the UN and EU, that constitute pressure in any negotiation process.” As a result of the Pompeo statement, Baker said, “the Palestinians cannot come and say, 'Look, it is widely accepted that Israeli settlements are illegal,' because there is a US opinion that Pompeo said is based on considerable research and evaluation of legal sources, and which says exactly the opposite.” Former ambassador to the US Michael Oren also sees the statement as significant, but for a completely different reason. “The significance is not here, the significance is there [in the US],” Oren said. “It deepens Israel as a political wedge issue and has forced all the leading Democratic candidates to come out against it.” While Oren said the declaration “clarifies America's position and sends a message to the world,” he added that there is a price to pay in terms of losing bipartisan support. “I think that politically in the US this has had a significant impact in the Republicans attempt to portray their party as more pro-Israel than the Democrats,” he asserted. Former ambassador to the UN Danny Ayalon saw the significance elsewhere: as an endorsement of George Bush's 2004 letter to then-prime minister Ariel Sharon saying that any future peace deal would have to take into consideration “new realities on the ground,” a letter interpreted by Israel as US recognition that the main settlement blocs would remain part of Israel. The Obama administration made clear that it did not feel bound by that letter. “What is significant here is what the Trump administration is saying: that the conflict is not a legal conflict, so you cannot solve it on legal foundations,” Ayalon said, adding that this declaration “neutralizes” the 2016 UN Security Council resolution that stated the settlements were a “flagrant violation under international law.” Ayalon said that while, at the end of the day, the declaration changes nothing on the ground – since it is neither the Americans nor anyone else except the Israelis and Palestinians who can solve the problems on the ground – the declaration will aid Israel in the sphere of public diplomacy. “Now when the Palestinians say the settlements are illegal, we can reply, 'No they are not illegal.' You are building a portfolio. You have Reagan's position, the Bush letter, and now Pompeo. And just as the Palestinians evoke EU and UN decisions, or Obama, we can use these. If you ask me whether Israel is better off with this statement, of course it is, because it counters Obama's approach and that of the Europeans and the UN.” Aryeh Mekel, a longtime spokesman at the Foreign Ministry and a former ambassador to Greece and consul-general in New York, had a different take, however, saying that the declaration lacks significance because of the Trump administration's weak standing around the world. This administration “is seen by the world as a passing phenomenon,” and as a result what it says on this matter will not be taken too seriously in other capitals, he argued. The problem, he said, is that the world does not see any “US seriousness” in the Middle East. “No one sees any consistency,” he said. “For three years they have talked about the 'Deal of the Century.' Where is it? This approach does not create confidence.” Mekel said he does not believe Israeli diplomats would put this declaration in their briefcases and pull it out to counter their European colleagues and Palestinian spokespeople railing against the settlements. “I have a feeling that Israeli diplomats won't use this,” he said. “If they use it in the US – half the public and the media thinks it is a mistake, and there the fault line is whether you are for or against Trump. “And if they use this in Europe, people will just laugh and say, 'You can't be serious; you don't see what is happening in Washington?'” According to Mekel, America's prestige in the world has taken a huge hit under the Trump presidency. Granted, he said, the US still has tremendous military and economic power and capabilities, “but I don't think many people are taking the administration seriously when it comes to their interpretation of international law.”

Settling the law

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