No – The U.S. is NOT “Reversing” U.S. Policy

The headlines are blaring all over the world today, including in the United States: Secretary of State Pompeo is “reversing” U.S. policy, reported to be decades old, on whether Israeli settlements in the West Bank are “illegal” – or, to be more precise, “inconsistent with international law.” Predictably, in addition to the usual reactions of the Palestinians and the EU, the current Democratic candidates for President, even the more supposedly “moderate” ones like Mr. Biden and Ms. Klobuchar, are hyperventilating about how this supposed change of long-standing policy somehow – they never quite say how – is a danger to the prospects of peace and a two-state solution. https://www.timesofisrael.com/leading-democratic-presidential-candidates-denounce-us-settlement-decision/

Except this is NOT A CHANGE IN POLICY. You don’t have to take my word for it – here is a link to the Congressional Research Service summary on Israel/U.S. relations:  https://fas.org/sgp/crs/mideast/RL33476.pdf. On p. 30-31, the CRS states:

U.S. policy on settlements has varied since 1967. Until the 1980s, multiple Administrations either stated or implied that settlements were “contrary to international law,” with President Carter’s Secretary of State Cyrus Vance stating explicitly that settlements were “illegal” in 1980. President Reagan later stated that settlements were “not illegal,” but “ill-advised” and “unnecessarily provocative.” Since then, the executive branch has generally refrained from pronouncements on the settlements’ legality. Rather, a common U.S. stance has been that settlements are an “obstacle to peace.” Additionally, loan guarantees to Israel currently authorized by U.S. law are subject to possible reduction by an amount equal to the amount Israel spends on settlements in the occupied territories.

The “change” announced by Mr. Pompeo relates to a memorandum written in 1978, during the Carter Administration, referred to as the “Hansell Memorandum.” Here is a link to a copy of that Memorandum, so you can read it for yourself to confirm my comments about it. https://www.hlrn.org/img/documents/USSDLegalAdvisorHansell_ltr.pdf. Mr. Hansell does indeed reach the conclusion that Israeli West Bank settlements are “inconsistent with international law” – but very, very importantly, he does this because he starts from the wrong place. His entire analysis is based on Israel’s rights, or lack thereof in his opinion, flowing solely from Israel’s taking control over that land in the 1967 war. He notes, in passing, that “Syria and Jordan later became independent,” without considering that the way they became independent (and had their borders determined under international law) is exactly the way that Israel became independent and had its borders determined: through the League of Nations Mandate, incorporated into the U.N. Charter, and the international legal principal of Uti Possidetis Juris. This is discussed in detail – with links to source materials – in my earlier article, so I’ll link that article here and not repeat the points made there. https://blogs.timesofisrael.com/language-matters-israel-and-the-language-of-the-international-community/.

The only U.S. administration, then, to refer to settlements as “illegal” under international law was the Carter Administration, the Hansell Memorandum was written during that Administration, and every subsequent Administration has not followed it. Even the Obama Administration did not go this far – and to the extent one might argue that it did, that Administration was also wrong in such an assertion.

Further, it is simply wrong to assert that settlements are an “obstacle to peace” – as the CRS highlights has been the position of some U.S. administrations and as stated by each of the current Democratic Presidential candidates in their statements yesterday. This is also discussed in my prior article, but to summarize: every two-state solution ever proposed, even by the most progressive advocates such as J-Street, recognizes that most current settlements will become part of Israel, with land swaps to the Palestinians, in any version of a two-state solution. As one who has repeated states his support for a two state solution, I nonetheless say that it is disingenuous for any U.S. politician to ever state or even hint that settlements are somehow an “obstacle to peace” or that the supposed “reversal” of the Hansell Memorandum somehow puts a two-state solution at risk.

Those who say so are demonstrating their ignorance and their unfitness for office. Please – I’m not saying that Mr. Trump is fit for office – he isn’t. But, whatever the motivations may be (pandering to Jewish votes, throwing a lifeline to Mr. Netanyahu, or any of the other speculations that have been published in the last day or two), at least his Administration is recognizing the truth under international law, and under the facts: settlements, whether wise or not, are not an obstacle to peace and are not inconsistent with international law.

Mr. Pompeo is not “reversing” anything, much less supposed decades of U.S. policy. Instead, he is recognizing the only viable interpretation of international law, and his actions bring us closer to a two-state solution, not further from it. For only by recognizing the truth, and encouraging the Palestinians and their enablers in the international community to abandon the pipe dream of eliminating Israel as a Jewish state, can the parties every hope to come together – unfortunately likely a generation from now – to their mutual benefit of two states for two peoples.

 

 

About the Author
David H. Levitt practices intellectual property and commercial litigation law in Chicago, and is a pro-Israel activist.
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