U.S. counters BDS, UN, with claim Israeli settlements legal - analysis

Former US president Barack Obama and his administration referred to the settlements as illegitimate.

A general view shows the Israeli settlement of Beitar Illit in the West Bank April 7, 2019 (photo credit: RONEN ZVULUN / REUTERS)
A general view shows the Israeli settlement of Beitar Illit in the West Bank April 7, 2019
(photo credit: RONEN ZVULUN / REUTERS)
It’s easy to chalk up the US declaration of the legality of Judea and Samaria communities to Israeli politics, a make-up gift by President Donald Trump to an old but favored diplomatic best bud.
How better to increase Prime Minister Benjamin Netanyahu’s chances of a last-minute renewed bid to retain his prime ministerial post than to take a step in the direction of normalizing the settlements?
It’s effectively a right-wingers pot of political gold, particularly for a prime minister 10 years on the job, without any public display of enthusiasm for West Bank annexation until the election cycles of the last year, and even then he was late to the table.
Trump of course also has his own domestic agenda, in which the declaration plays well to his Evangelical base in advance of his 2020 reelection bid. Support for Israel is most assuredly one of Trump’s stump speeches at many of his campaign rallies.
But it is more likely that Trump chose a maximal moment to announce a policy change that was months in the making. Those who pushed for the Trump administration to take this measure wanted to bolster its ability to push back at the international community’s deep-seated belief that the illegality of West Bank settlements is set in stone.
Pompeo’s declaration comes as Israel is waging a rising tide of legal and legislative global battles over the BDS movement, product labeling, and a possible war crimes lawsuit at the International Criminal Court.
It was feared that anti-settlement advocates could add fuel to those fires by arguing that the US also believed settlement activity was illegal, based on a 1978 opinion written by former State Department legal adviser Herbert J. Hansell during the Carter administration, which claimed Israel had broken international law.
Without another legal opinion, it was possible that an argument could have been made that this document represented US legal opinion.
At the time, Hansell stated that “civilian settlements” in Israel’s “occupied territories” were “inconsistent with international law.”
Hansell’s brief memo implied that Israeli settlement activity was a war crime, comparable to population transfer prohibited by the Fourth Geneva Convention that sets out the rules of war. Article 49 of that convention states: “The Occupying Power shall not deport or transfer part of its own civilian population into the territory that it occupies.”
The Hansell memorandum was a very narrow document that failed to consider the legal opinions of serious international lawyers, the special circumstances, and the history of the situation, said former Foreign Ministry legal adviser Alan Baker.
Hansell’s legal understanding is consistent with statements made by US officials in the former Johnson, Nixon and Ford administrations regarding settlement building on territory Israel acquired during the 1967 Six Day War. But none of those administrations adopted those legal arguments.
Former US negotiator Dennis Ross described how during the last year of the Ford administration, the US ambassador to the UN at the time, William Scranton, delivered a speech in which he described West Bank settlements as illegal. Then the Carter administration found them to be illegal by adopting the Hansell memo, Ross explained.
“[Jimmy] Carter is the first president to say it” and to adopt a legal opinion supporting that stance, Ross said.
Former US president Ronald Reagan softened the US stance, transforming the question of settlements from a legal issue to a diplomatic policy one, Ross said. He did this even though he opposed the settlement movement and called for a freeze.
“Every administration after maintained the same posture,” Ross said, and spoke of settlements as an obstacle to peace. George H. W. Bush was tough on settlements, but also dealt with them as a policy issue, he said.
Former US president Bill Clinton further softened the language referring to them as a problem. “Pretty much the language was the same from Reagan to George W. Bush,” Ross said, but that former US president Barack Obama and his administration referred to the settlements as illegitimate.
“Settlements were a permanent status issue and the view was you are not going to resolve this in a legal way, you will resolve it as a political conflict that has to be negotiated,” Ross said.
But Baker said Pompeo’s statement would help clarify the US position for any upcoming negotiation. In addition, he said, it weakens the perception that the settlements are illegal, and it assists the US in international arenas like the UN or the EU.
Pompeo issued his statement just one week after the Court of Justice of the European Union ruled that the word “settlement” must be placed on consumer labels for all Israelis products produced over the pre-1967 lines. If implemented, it is a move that is likely to create trade problems between the EU and the US.
His words come also as the United Nations Human Rights Council has warned that those with commercial ties to areas of Israel over the pre-1967 lines could be liable to criminal sanctions at the ICC. The UNHRC is preparing a black list of businesses that engage with entities in the West Bank, east Jerusalem and the Golan Heights.
The ICC’s prosecutor’s office is weighing opening an investigation into West Bank settlements, and Ireland’s parliament is weighing a bill to criminalize West Bank settlement activity.
In Israel, Pompeo’s statement immediately embolden supporters of West Bank annexation. Globally, it is unlikely to sway BDS supporters and pro-Palestinian advocates who believe that Israel must evacuate all the settlements.
But it gives Israel a public relations boost by providing the appearance of a legal shield by which to argue back, at a time when the international community is hardening its stance on the settlements.