U.S. must erase legal opinion condemning West Bank settlements, ZOA says

"Failure to rescind the opinion would allow future US administrations to use it as a basis to support anti-Israeli resolutions at the UN."

January 14, 2019 21:00
4 minute read.
The basic error is to treat all the settlements alike

The basic error is to treat all the settlements alike. (photo credit: AMMAR AWAD / REUTERS)


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The United States must rescind its famous 41-year old legal opinion that West Bank settlements are "inconsistent with international law," the Zionist Organization of America (ZOA) said as it embarked on a renewed campaign this week to pressure the Trump administration on the matter.

“Termination of this opinion is long overdue,” said Jeff Daube, the ZOA’s Israel Director, adding that it has been used to “fuel Israel bashing,” particularly at the United Nations.

Daube is in Washington this week to solicit support among US Congress members for the Trump administration to formally rescind a 1978 opinion by former State Department legal adviser Herbert J. Hansell, who worked for the Carter administration.

He authored the opinion in support of UN Security Council Resolution 465 against West Bank settlement activity and Jewish building in Jerusalem. All 15 UNSC members, including the US, supported the resolution.

Daube said he believes the Obama administration failed to veto the 2016 UNSC Resolution 2334 that condemned Israeli settlement activity and affirmed its illegality under international law because of the Hansel opinion. Former ambassador to the UN Samantha Power hinted as such in her remarks, he added.

Failure to rescind the opinion would allow future US administrations to use it as a basis to support anti-Israeli resolutions at the UN, Daube said.

In addition, he said, he is concerned that the document could be the basis of any potential war crimes suit in front of the International Criminal Court at The Hague with respect to settlement activity.

“It is important for the White House under the leadership of President Trump to take the simple step of rescinding this archaic legal opinion which is still being used both to accuse the Government of Israel of breaking the law and, by association, to smear the United States,” Daube said.

“Vacating a legal opinion against settlements is not the same as saying that settlements are a great idea,” he added.

The ZOA push also comes as the UN Human Rights Council is set to publish its blacklist of companies doing business with West Bank settlements, which presumes that settlement activity is illegal.

The US has historically stood apart from the international community on the issue of the legality of Israeli settlement activity.

The UN and the EU hold that any West Bank settlement activity is illegal; a stance that perpetually creates tension with Israel.

The International Court of Justice at The Hague in 2004 also stated that the settlement activity was illegal when it issued an advisory opinion on the Israel security barrier in the West Bank.

But past US administrations have not characterized such activity as illegal, and former US president Ronald Reagen once blatantly stated that settlement building was not illegal.

Some of the strongest language against settlements was under the Carter administration, but even Hansell’s opinion stopped short of declaring them illegal.

The Obama administration, which had a zero-tolerance view of the settlements, also did not use the phrase “illegal.”

Former US ambassador to Israel Daniel Shapiro, said the talking point under Obama was, “We do not accept the legitimacy of continued Israeli settlements.”

Hansell – in his legal opinion, published on April 21, 1979 for the House Committee on Foreign Affairs – wrote that Article 49 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War was applicable to the West Bank.

He focused in particular on Paragraph 6 of the convention, which stated that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

He explained that under “international law, Israel became a belligerent occupant of these territories.”

A belligerent occupier “is not entitled to treat the country as his own territory or its inhabitants as his own subjects,” Hansell explained.

Israel’s former ambassador to the UN Dore Gold took issue with Hansell’s interpretation of Paragraph 6, as do a significant number of US jurists. They hold that Paragraph 6 is applicable only to situations of forced transfer and does not apply to the voluntary decision by Israelis to move across the Green Line.

Gold is not part of the ZOA initiative, but often had to defend Israeli settlement activity at the UN.

The strongest among such jurists was Eugene Rostow, a former dean of the Yale Law School, who was also undersecretary of state during the Johnson administration.

He once told The New York Times that Israel has an unassailable right to establish settlements, Gold said.

In an article for the Jerusalem Center for Public Affairs, former Foreign Ministry legal adviser Alan Baker quoted Rostow as saying: “the Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War – the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example….The Jewish settlers in the West Bank are most emphatically volunteers. They have not been ‘deported’ or ‘transferred’ to the area by the Government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva Convention to prevent.”

Last year, MK Nissan Slomiansky wrote a letter to US Ambassador to Israel David Friedman asking for the Hansell opinion to be rescinded.

Friedman, according to Daube, has yet to respond.

The Trump administration has been more supportive of settlement activity than other governments, but has not publicly taken a position on their legality.

In light of the US government shut down, the State Department was not able to respond to queries from The Jerusalem Post with regard to the Trump administration’s stance on the legality of settlements.

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