Published by The Lawfare Institute
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This past Monday, Nov. 18, Secretary of State Mike Pompeo announced that the United States would “no longer recognize Israeli settlements as per se inconsistent with international law,” a decision that he characterized as restoring a long-standing U.S. position that the Obama administration had unwisely abandoned. This marked the third major change in U.S. policy that the Trump administration has pursued toward the Israeli-Palestinian conflict in as many years, following its relocation of the U.S. Embassy to Jerusalem and recognition of Israeli sovereignty over the Golan Heights. As with these prior moves, Pompeo justified the Trump administration’s new policy as “recogniz[ing] the reality on the ground” and removing legal barriers in order to create “space for Israel and the Palestinians to find a political solution to this very, very vexing problem.” In reality, however, this latest policy shift represents a dramatic departure from prior U.S. practice. And it embraces a legal logic that has the potential to be immensely destabilizing to the broader Israeli-Palestinian peace process.
A Political Favor
Pompeo rolled out the new U.S. policy on Israeli settlements in a manner that was notably low-key compared to the Trump administration’s prior decisions on Jerusalem and the Golan Heights. While President Trump himself proclaimed his Jerusalem decision and Pompeo and a triumphant Israeli Prime Minister Benjamin Netanyahu jointly announced the Golan Heights decision from Jerusalem, Pompeo issued his announcement on West Bank settlements in the middle of a set of routine remarks to the press. Sandwiched between unrelated statements on Iraq and Hong Kong, he said:
U.S. public statements on settlement activities in the West Bank have been inconsistent over decades. In 1978, the Carter administration categorically concluded that Israel’s establishment of civilian settlements was inconsistent with international law. However, in 1981, President Reagan disagreed with that conclusion and stated that he didn’t believe that the settlements were inherently illegal.
Subsequent administrations recognized that unrestrained settlement activity could be an obstacle to peace, but they wisely and prudently recognized that dwelling on legal positions didn’t advance peace. However, in December 2016, at the very end of the previous administration, Secretary Kerry changed decades of this careful, bipartisan approach by publicly reaffirming the supposed illegality of settlements.
After carefully studying all sides of the legal debate, this administration agrees with President Reagan. The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.
The timing of this announcement immediately raised suspicions that the Trump administration was once again trying to boost the political fortunes of Netanyahu, an ally who is in the midst of a heated struggle for his political future. At the time of the announcement, Netanyahu’s main political rival, Benny Gantz, was in the final days of trying to form a coalition government, an effort that Netanyahu seemed intent on spoiling if he was not included in a substantial role. A major shift in U.S. policy toward Israeli settlements could certainly complicate Gantz’s efforts, particularly given Netanyahu’s heavy emphasis on his relationship with the Trump administration and his campaign promise to annex West Bank settlements. U.S. officials did confer with Gantz before making the announcement, but it’s unclear how politically viable it would have been for him to object or seek a delay.
Given this context, the Trump administration’s more muted announcement may have been intended to downplay the appearance that the United States was involving itself in Israeli elections. Or perhaps it simply reflects Trump’s own waning enthusiasm for the beleaguered Netanyahu. Regardless, the message was not lost in Jerusalem. “The historic decision by the American government yesterday gives a one-time opportunity to set Israel’s eastern border and annex the Jordan Valley [in the West Bank],” Netanyahu said in an online video posted Tuesday, as he called for his rivals to join him in a unity government to pursue exactly that policy. By Wednesday evening, it became clear that Gantz’s own coalition-building effort had failed, thrusting the decision as to who will be Israel’s next prime minister into the Israeli parliament and potentially back to the people for a third set of national elections.
Past Practice of the United States
In many ways, however, this political context is a distraction from the broader implications of the Trump administration’s policy change. Since taking control of the West Bank in 1967, Israel has helped construct hundreds of settler communities there, mostly as part of a broader ideological project to establish control over territories associated with biblical Israel. By early 2019, the population of Israeli settlers in the West Bank was believed to be approaching half a million—a substantial portion of the West Bank’s total population. The Israeli government has taken steps to incorporate these settlements into broader Israeli society, measures that are sometimes described as “de-facto annexation.” And Israeli security forces maintain a complex set of military controls throughout the West Bank, which has effectively fragmented areas of Palestinian control and severely hindered Palestinian economic and political development. More recently, Israel’s parliament has considered controversial legislation that would formally annex West Bank settlements over the objections of Palestinians and the broader international community—the very step that Netanyahu called for following Pompeo’s announcement.
The United States has expressed legal concerns with these settlement activities since shortly after Israel assumed control of the West Bank in 1967. As explained in the 1978 legal opinion Pompeo references in his remarks, these concerns were rooted in Israel’s international legal obligations as an occupying power—a status confirmed in several U.S.-backed U.N. Security Council resolutions, including Resolutions 242 and 338. Israel’s founders originally announced their intent to establish a state in the areas designated by a U.N.-backed partition plan as Jewish regions of a post-mandatory Palestine, which did not include the West Bank. The subsequent 1948-1949 war, however, left the West Bank in Jordan’s control and resulted in a set of armistice lines that came to function as de facto boundaries between the new state of Israel and its neighbors.
When Israel wrested control of the West Bank from Jordan in the 1967 war, the Israeli government thus became an occupying power as a matter of international law. Occupiers may temporarily exercise substantial control over occupied territory where necessary for reasons of military necessity. But they are not allowed to permanently claim property, reallocate populations or otherwise act in a manner that might hinder a territory’s eventual return. “[T]he civilian settlements in the territories occupied by Israel do not appear to be consistent with these limits on Israel's authority as belligerent occupant[,]” the 1978 memorandum explains, “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.” This same basic legal analysis was later incorporated into U.N. Security Council Resolution 446 in 1979, which labeled settlements “a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East” and called upon Israel to comply with its international legal obligations as an occupier and was adopted through a U.S. abstention.
As Pompeo suggests, President Reagan did assert that Israeli settlements were “not illegal” in a 1981 interview. But this ultimately proved to be more a change in emphasis than legal opinion. Later, the Reagan administration expressly adopted “the broad guidelines laid down by [his] predecessors” in forging its policy toward the Israeli-Palestinian conflict and continued to criticize settlement activity as unhelpful and counterproductive—just not as expressly illegal. Subsequent administrations adopted a similar tack of avoiding direct legal criticism of settlements even as it opposed them on policy grounds. Several acknowledged that a full return to the 1949 armistice lines was likely unworkable, but this was framed as a pragmatic concession, not an acknowledgment of their legality. More importantly, subsequent presidential administrations generally continued to view the West Bank as being under Israeli occupation as a matter of international law. This view was incorporated into several U.N. Security Council resolutions, either with U.S. support or, more often, through a U.S. abstention. Indeed, until the Trump administration ended the practice, the U.S. government routinely referred to Gaza and the West Bank together as the “Occupied Territories.” The application of this legal regime invariably put the legality of Israeli settlement activities in serious doubt, even if U.S. officials did not routinely address the issue explicitly.
Pompeo contends that the Obama administration abandoned this approach in a December 2016 speech by then-Secretary of State John Kerry. Yet the Kerry speech was far less of a departure from past U.S. policy than Pompeo contends. In attempting to explain the Obama administration’s decision to abstain from blocking a U.N. Security Council resolution critical of Israeli settlement activity, Kerry cited the 1978 legal opinion and noted, “[W]e see no change since then to affect [its] fundamental conclusion.” Admittedly, this is the sort of direct statement on legality that U.S. officials had generally avoided. But the remainder of his extended remarks focused on familiar policy objections to the settlement activities. Kerry even acknowledged that, “in a final status agreement, certain settlements would become part of Israel to account for the changes that have taken place over the last 49 years[,] ... including the new [demographic] realities that exist on the ground,” making clear that the Obama administration’s willingness to express a clearer view on the illegality of settlements did not mean a substantive change in U.S. policy.
Nonetheless, Kerry’s speech appears to have placed the 1978 legal opinion in the crosshairs of settlement supporters, who began to advocate for its repudiation. They soon found an ally in the incoming U.S. ambassador to Israel, David Friedman, who reportedly started pushing the issue shortly after taking office. Friedman’s request kicked off an extended reevaluation process that reportedly resulted in a 40-page legal memorandum. That analysis, however, has not yet been released, leaving Pompeo’s statement as the best expression to date of the Trump administration’s legal reasoning.
The New U.S. Position
Pompeo is careful to frame the administration’s new position as one that eschews legal positions instead of endorsing them. “The hard truth,” according to Pompeo, “is [that] there will never be a judicial resolution to the conflict, and arguments about who is right and wrong as a matter of international law will not bring peace.” For this reason, he suggests, “[t]he United States Government is expressing no view on the legal status of any individual settlement[,]” which instead “must depend on an assessment of specific facts and circumstances on the ground.” Similarly, the United States “[is] not addressing or prejudging the ultimate status of the West Bank,” which is “for the Israelis and the Palestinians to negotiate.” In this sense, Pompeo argues, the Trump administration is not going as far as to declare the West Bank settlements categorically legal, as some coverage has implied. Instead, it is simply refusing to decide one way or the other outside of a more specific set of facts.
Whether this neutral position is simply prudential or the result of a principled evaluation of relevant legal arguments is not entirely clear. To be certain, legal experts have occasionally advanced arguments as to why Israeli claims in the West Bank are consistent with international law. Some have contended that the absence of an established sovereign in the West Bank prior to 1967 makes the law of occupation inapplicable there. Others have argued that Resolution 242’s call for the “[w]ithdrawal of Israel armed forces from territories occupied in ” should be read as permitting some residual Israeli presence. Still others maintain that the occupation law permits voluntary transfers into occupied territories. And Israeli officials have asserted regularly that Israel has historical ties to the West Bank that should sound in international law. Of course, the vast majority of legal scholars and practitioners have rejected these arguments, as has the International Court of Justice. But the Trump administration does not necessarily need to accept these arguments wholeheartedly in order to reach the noncommittal position Pompeo articulates. Instead, it need only conclude that they are credible enough to raise serious questions about the applicability of occupation law to at least some of the settlements and thereby warrant withholding any categorical judgment on what legal framework should apply absent a more specific set of facts.
Whatever legal logic may be behind this move, no longer viewing Israeli settlements in the West Bank through the lens of occupation law is a major departure from past U.S. practice—and a decision with practical consequences for the peace process. Nearly all recent peace negotiations have treated the 1949 armistice borders as the baseline for evaluating land swaps and other relevant exchanges and concessions. Israel and the Palestinians agreed to this basic premise in signing on to the Oslo Accords, whose stated aim is a “permanent settlement based on [U.N.] Security Council resolutions 242 (1967) and 338 (1973),” which call for an Israeli withdrawal from territories occupied in 1967. Substantial uncertainty regarding what territory is under occupation makes this baseline unworkable and threatens to undermine the Palestinians’ primary remaining source of leverage, namely their international legal rights.
Moreover, if no international legal regime is seen as capable of resolving territorial claims in the West Bank, the eventual status of the disputed territories is likely to be resolved by whoever exercises de facto control and whatever domestic legal standards that entity chooses to apply. Pompeo suggests that this may in fact be the correct approach when he indicates that “[t]he Israeli legal system affords an opportunity to challenge settlement activity and assess humanitarian considerations connected to it.” And Pompeo is not wrong that the Israeli courts have invalidated certain settlements on legal and humanitarian grounds, though their overall record is mixed at best. Nonetheless, the Israeli legal system is undoubtedly an arena in which Israeli claims have a comparative advantage, both practically and as a matter of law. And looking to it as the primary forum for resolving disputes over settlement activities only gives legitimacy to Israeli efforts to continue to expand its territorial control through expanded settlements and annexation—two policies that the United States has long opposed. No doubt this is why Netanyahu saw Pompeo’s announcement as a green light for both.
Nor are the potential legal consequences limited to the Israeli-Palestinian context. Underlying the international law on occupation is a more fundamental principle: the prohibition on acquiring territory through the use of force incorporated into Article 2(4) of the U.N. Charter. This is the same legal principle that prohibits Chinese claims in the South China Sea, Russian attempts to annex Crimea and countless other international acts to which the United States rightly objects. Pompeo seems to grasp that his position on the West Bank settlements may be in tension with U.S. objections in these other circumstances, as he tries to portray the West Bank as a unique exception. “[This decision] is based on the unique facts, history, and circumstances presented by the establishment of civilian settlements in the West Bank,” Pompeo explains, echoing similar words he issued about the recognition of Israeli sovereignty over the Golan Heights. “Our decision today does not prejudice or decide legal conclusions regarding situations in any other parts of the world.”
Simply declaring something a unique exception without making a credible effort to distinguish it, however, is at best unpersuasive. And it does little to preserve the underlying principle in the face of what otherwise appears to be a willful and knowing violation.
Implications and Consequences
For better or worse, few members of the international community are likely to follow the Trump administration’s lead in changing their views on the West Bank settlements. The conventional view that settlements are inconsistent with Israel’s obligations as an occupying power is widely accepted and has been reinforced repeatedly by various U.N. Security Council resolutions, the International Court of Justice and other relevant authorities. While the United States has been able to lead international legal change in certain other circumstances, few states have followed its prior moves on Jerusalem and the Golan Heights, and fewer still seem likely to do so here. The more likely outcome is the further international isolation of Israel and the United States, whose frequent—and not always unwarranted—complaints about anti-Israel bias often obscure the extent to which they have adopted international legal positions well outside the norms of the international community. Strong U.S. support for these positions may help insulate Israel from international criticism in the short term, but they also promise to make the United States a less effective interlocutor with the international community as time goes on.
The same is true of the U.S. role in Israeli-Palestinian peace negotiations. Pompeo’s announcement has already drawn a strong rebuke from Palestinian officials and will likely prove disastrous for the U.S.-Palestinian relationship—or at least it would if there were any relationship left to save. As it is, the Trump administration’s deliberate antagonism of Palestinian interests—from undermining their international legal claims to withholding U.S. foreign assistance—seems to have pushed the relationship past the point of no return, at least so long as Trump remains in office. From Israel’s perspective, an accommodating United States may raise fewer objections to controversial Israeli actions like the settlements. But it is also substantially less capable of bringing Palestinians to the table or facilitating any meaningful negotiations with them—including those presumably required by the Trump administration’s own long-awaited peace plan.
Future presidential administrations will need to move away from the Trump administration’s permissive new policy stance if they hope to advance the Israeli-Palestinian peace process (or merely prevent its collapse). Even if they do not wish to suffer the political backlash of publicly reverting to the 1978 analysis, Pompeo’s vague and noncommittal stance leaves ample space for maneuvering, especially if the United States were to drill down further into the fact-specific details that even Pompeo concedes may bear on the lawfulness of specific settlement activities. And because the Trump administration’s close embrace of Netanyahu has become an increasingly partisan issue, future U.S. political leaders may be less inclined to soften their critiques of Israeli policies than their predecessors. In this sense, the Trump administration’s new, apparently permissive policy is likely to be a temporary one. This may explain why Netanyahu himself described it as a “one-time opportunity” and called for efforts to capitalize on it quickly through annexation—even if doing so makes a permanent negotiated resolution of the Israeli-Palestinian conflict more difficult, if not impossible. And for their part, relevant officials in the Trump administration seem more or less onboard with this approach, or at least unwilling to take meaningful steps to oppose it.
What this perspective neglects, however, is the fact that the prospect of peace negotiations continues to play a central role in legitimating the status quo in the West Bank. Israel’s dominant position there is predicated on the understanding that it is working toward enhanced Palestinian autonomy and an eventual two-state solution, at however slow a pace. Allowing this prospect to die—a process that many argue is already underway—will eventually lead to an unprecedented new level of international criticism, one whose effects U.S. support may not be able to mitigate. And it will also delegitimize a system that, for all its imperfections and injustice, has brought a substantial degree of security and stability. What follows may in turn resemble far more dangerous periods in the region’s history to which all parties, domestic or international, would prefer not to return.