The Trump administration removed another major obstacle to Israel’s annexation of the West Bank by reversing Washington’s long-held view that Israel’s creation of settlements in the occupied territories was a violation of international law.
US Secretary of State Mike Pompeo announced the new policy on November 18, 102 years after publication of the historic Balfour Declaration signalled British support for a Jewish state in Palestine.
In his announcement, Pompeo employed the same logic underlying the Trump administration’s decisions on Jerusalem and the Golan Heights. He explained that “what we’ve done today is we have recognised the reality on the ground. We’ve now declared that settlements are not per se illegal under international law,” he said.
“We think, in fact, we’ve increased the likelihood that the vision for peace that this administration has, we think we’ve created space for that to be successful. I’m hopeful that we’ll be able to move forward on that before too terribly long.”
A US policy based upon a recognition of “facts on the ground” signifies a ringing endorsement of an Israeli strategy pursued since the first settlement was established in areas conquered in June 1967 and, indeed, since the Balfour era a century ago.
Trump’s decision signifies “a huge achievement” in the words of Israeli Prime Minister Binyamin Netanyahu, for whom the Trump presidency has been a gift that keeps on giving. Like its previous departures from the international consensus on the Golan and Jerusalem, US recognition of the legality of settlements marks a complete and irreversible victory for Israeli efforts aimed at undermining the ability of Palestinians to establish a sovereign presence anywhere in the Palestinian territories.
The centrepiece of the move by Washington is a long quiescent legal opinion provided by the US State Department two generations ago.
In the spring of 1978, the Carter administration was deep in discussions before the historic Camp David summit between Israeli Prime Minister Menachem Begin and Egyptian President Anwar Sadat that would lead to a peace agreement between Egypt and Israel and efforts — realised with the Oslo Accords in 1993 — to establish Palestinian “autonomy” in the West Bank and Gaza Strip.
In anticipation of the negotiations, the State Department addressed the US view of the applicability of the Fourth Geneva Convention to Israel’s occupation of areas conquered in the June 1967 war. Were Israeli civilian settlements in East Jerusalem, Sinai, the Golan Heights and West Bank and Gaza violations of international legal restrictions governing the transfer of civilians into areas under hostile military occupation?
The State Department legal adviser obliged in April 1978 with a three-page analysis of “the legality of Israeli settlements in the occupied territories.”
Herbert Hansell wrote that “the civilian settlements in the territories occupied by Israel do not appear to be consistent with these limits on Israel’s authority as belligerent occupant in that they do not seem intended to be of limited duration or established to provide orderly government of the territories and though some may serve incidental security purposes they do not appear to be required to meet military needs during the occupation.”
“The establishment of civilian settlements in those territories,” Hansell concluded, “is inconsistent with international law.”
The Hansell opinion did not excite much interest when it was issued. This was the era of what the New York Times described at the time as Israel’s “benevolent occupation.” Although more than 50,000 Israelis had settled in East Jerusalem, when Begin travelled to Camp David in September 1978 there were only 10,000 settlers in what were then isolated and primitive West Bank outposts.
Even before Hansell’s analysis, Washington had left little doubt about the view that settlements were both temporary and illegal. A succession of Israeli prime ministers — Levi Eshkol, Golda Meir and Yitzhak Rabin — well understood US policy.
It was also clear that US opposition had no discernible effect on limiting Israel’s strategy of creating conditions on the ground through settlement and other means that would anchor Israel permanently in the areas conquered in June 1967 and preclude any Palestinian effort to establish sovereign control there.
Carter would unsuccessfully try to oblige Begin at Camp David to agree to a permanent freeze in settlement expansion. Begin was prepared only to keep the bulldozers quiet for three months.
With or without the Hansell opinion, over the next four decades, Washington, under Republican and Democrat leadership, proved unequal to the task of enforcing its view that international law prohibited the settlement effort — establishing a consistent record of failure to cajole, oblige or force Israel to stop the policy of creating facts. Today more than 600,000 Israelis live in the West Bank and East Jerusalem.
Pompeo has cited this failure as justification for the change in policy. He recalled that the Reagan administration had turned US policy on its head when US President Ronald Reagan declared that settlements were not illegal. Unlike Trump, however, Reagan never formally repudiated the Hansell opinion and policy under Reagan continued the ritual opposition to Israel’s settlement expansion.
Israel, which ignored with impunity previous warnings from Washington, welcomed Reagan’s change in US policy. On the ground, however, Washington policy gyrations were all but ignored. No matter the declarations from Washington, Israel continued to follow its own settlement blueprint and its insatiable desire to create facts on the ground.
The Obama administration made no secret of its view that settlements were at the heart of the dispute between Israel and the Palestinians and the principal obstacle to the US national security interest in realising the creation of a Palestinian state at peace with Israel.
US Secretary of State Hillary Clinton famously declared: “[The president] wants to see a stop to settlements — not some settlements, not outposts, not ‘natural growth’ exceptions. That is our position. That is what we have communicated very clearly.”
Netanyahu was stunned by Obama’s demand but, like his predecessors, he rebuffed Washington without suffering any real consequence. Indeed, he defied the wishes of the US president and lived not only to tell the tale but to prosper.
The intensity of Clinton’s demand for a settlement freeze only made Obama’s failure to bring Israel to heel that much more significant.
Trump is right to decry this failure. However, his remedy, which is intended to encourage outright annexation, is worse than the disease.
Geoffrey Aronson is a non-resident scholar at the Middle East Institute in Washington.
Copyright ©2019 The Arab Monthly — distributed by Agence Global
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Released: 27 November 2019
Word Count: 1,044
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