Israeli Settlements, U.S. Foreign Policy, and International Law.

• Author: Kattan, Victor
• Position: COMMENTARY - Report

Introduction

On November 18, 2019, U.S. Secretary of State Mike Pompeo announced that "The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law." (1) The statement caused international outrage as it marked a dramatic departure from previous U.S. statements on the legality of Israel's West Bank settlements going back decades, and was widely seen as a political gift from one politician mired in legal trouble to another. (2) Israel's settlements have long been considered contrary to international law as they violate Article 49, paragraph 6, of the Fourth Geneva (Civilians) Convention (1949), according to which "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." (3)

The U.S. legal position on the legality of Israel's settlement was publicly articulated in a State Department legal opinion from 1978, which concluded that the settlements established in the territories occupied by Israel in June 1967, which included East Jerusalem, (4) were "inconsistent with international law." (5) However, this was not the first time the U.S. condemned Israel's settlements publicly. United Nations Security Council (UNSC) Resolution 298, adopted during the Nixon Administration, (6) criticized the "transfer of populations" into the occupied section of the "City of Jerusalem," as early as 1971. This is important to emphasize, given that the Trump Administration has presented the issue of Israeli settlements as a "partisan" issue associated with the Democratic Party, when in fact both Republican and Democratic administrations had consistently opposed them. (7) The legal position outlined by the State Department in 1978 was subsequently endorsed by the UNSC in a number of resolutions which reaffirmed that Israel is the occupying power in East Jerusalem, the West Bank, and the Gaza Strip. (8) Consistent with these UNSC resolutions, the International Court of Justice (ICJ), the principal judicial organ of the United Nations (UN), concluded in paragraph 120 of its 2004 Wall opinion that "the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law." (9)

Given the virtual unanimity of legal opinion on the illegality of Israel's settlements in all of the territories occupied by Israel over many decades, it is not surprising that Pompeo's statement was widely criticized, not only by the Palestinian leadership, (10) but also by close allies of the United States including Canada (11) and the United Kingdom. (12) An omnibus resolution adopted in December by an overwhelming majority of members of the UN General Assembly affirmed that Israel remains the occupying power in East Jerusalem, the West Bank, and the Gaza Strip. (13)

What about East Jerusalem?

Pompeo's statement only referred to Israeli settlements in the West Bank. Since no legal opinion has been published by the Trump Administration justifying the change of policy, it is difficult to assess whether the reference to the West Bank included East Jerusalem in the U.S. view. (14) Prior to President Trump's statement on Jerusalem in December 2017, (15) the U.S. position was that East Jerusalem was part of the West Bank; that is, territory occupied by Israel in the 1967 war. (16) As former U.S. Secretary of State John Kerry explained, "every U.S. administration since 1967, along with the entire international community, has recognized East Jerusalem as among the territories that Israel occupied in the Six-Day War." (17) However, this no longer appears to be U.S. policy. Notably, the so-called "Deal of the Century" proposed establishing a Palestinian capital in Abu Dis, which is a Palestinian town located outside the Old City of Jerusalem. (18)

The Significance of the Timing of Pompeo's Announcement

The timing of Pompeo's announcement on the settlements was intriguing: the new policy was announced three days after the U.S. deadline for the submission of its counter-memorial to the ICJ in Palestine v. United States of America, in which Palestine is challenging the legality of the Trump Administration's decision to move the U.S. embassy from Tel Aviv to Jerusalem. (19) The case could be significant, as the Court might say something about the status of the territories occupied by Israel since 1967 and whether a Palestinian state exists where Israel has established over two hundred settlements in East Jerusalem and the West Bank. (20)

The announcement by Pompeo also came a week after the European Court of Justice decided that Israel's presence in the West Bank was that of "an occupying power" and "not... a sovereign entity" in a case on the mislabeling of settlement products in the European Union. (21)

In other words, not only is there a near-consensus of legal opinion that the establishment of settlements in the West Bank is unlawful, Pompeo's statement notwithstanding, but their illegality has reached the courts whose decisions could have detrimental economic consequences for Israel's settlement enterprise. This is especially significant as there are concerns in Israel that consumers may begin to exercise a measure of discretion on ethical grounds in deciding whether to purchase products labeled as originating from Israeli settlements in the West Bank.

Israel's Settlement Policy Is a Crime Under the Rome Statute

There is a further, even more alarming problem for supporters of Israel's settlement enterprise: the preliminary examination being undertaken by the Prosecutor of the International Criminal Court (ICC) into the situation in Palestine. (22) This is because Israel's settlement's policy is considered a crime under Article 8(2)(b)(viii) of the Rome Statute of the ICC.

In January 2019, The Jerusalem Post published an article on the efforts of the Zionist Organization of America (ZOA) to persuade Congress and the U.S. State Department "to rescind its famous 41-year old legal opinion that West Bank settlements are inconsistent with international law." (23) This was a reference to the State Department's 1978 legal opinion. According to the Post, the head of the ZOA was concerned that the legal opinion "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." (24)

As the representative arm of the World...