The reaction was both peremptory and predictable: Critics of Israeli and U.S. policies firmly snapped back against Secretary of State Mike Pompeo’s declaration that the U.S. no longer views Israeli settlements in the West Bank as illegal.
“The European Union’s position on Israeli settlement policy in the occupied Palestinian territory is clear and remains unchanged,” European Union foreign policy chief Federica Mogherini said. “All settlement activity is illegal under international law and it erodes the viability of the two-state solution and the prospects for a lasting peace, as reaffirmed by U.N. Security Council resolution 2334.”
“Another blatantly ideological attempt by the Trump administration to distract from its failures in the region,” tweeted Senator Elizabeth Warren (D-Mass.), a leading Presidential candidate. “Not only do these settlements violate international law — they make peace harder to achieve.”
“Egypt is committed to the resolutions of international legitimacy on the status of Israeli settlements in the occupied West Bank, being illegal and inconsistent with the international law,” the Egyptian Foreign Ministry declared.
One hundred and seven House Democrats wrote a letter to Pompeo to express their “strong disagreement with the State Department’s decision to reverse decades of bipartisan U.S. policy on Israeli settlements in the occupied West Bank by repudiating the 1978 State Department legal opinion that civilian settlements in the occupied territories are ‘inconsistent with international law.’”
In many cases, critics of the shift in U.S. policy cited their support for a two-state solution as an alternative to the State Department’s new position. “As President, I will reverse this policy and pursue a two-state solution,” Warren said, while the German Foreign Office intoned, “The construction of settlements is in the federal government’s opinion illegal, undermines the peace process, and complicates talks on a two-state solution.”
What is the basis for presuming that Israeli settlements in some parts of the West Bank are antithetical to the peace process? It would seem that the stigmatization of the word “settlement” has much to do with this position, as “settlements” have come to be associated with dark notions of colonial occupation, perhaps even racism.
But Israeli communities in the West Bank and eastern Jerusalem are not illegal, as Secretary Pompeo has affirmed. According to Article 80 of the United Nations Charter, the U.N. cannot transfer any part of the former Mandate for Palestine, which was dedicated at the 1920 San Remo Peace Conference for the creation of a future Jewish state. Furthermore, Security Council Resolutions 242 and 338 and the Oslo agreement’s Declaration of Principles established that a land for peace deal must be based on direct negotiation between the parties – one that would determine territorial boundaries that might not strictly adhere to the 1967 lines.
The Ottoman Empire, which governed Palestine, dissolved after World War I. Since a Palestinian state has never existed and the Jordanian occupation of the West Bank and eastern Jerusalem ended with the Six Day War, the status of those territories is clearly disputed until negotiations have resolved outstanding questions about sovereignty.
But critics of the Pompeo announcement seemingly would prefer to prejudge the outcome of those negotiations. By declaring Israeli settlements illegal, these voices are stigmatizing any Israeli presence in disputed territories as somehow acquired through evil or at least improper means, as opposed to through a defensive war. This sinister characterization of Israel’s predicament, which would forever deem Israeli settlements illegitimate, underlies the suspect claim that the State Department’s new position is at odds with the two-state solution.
This argument does not hold up, though. Serious negotiations must take place in the realm of fact, not ideological fantasy. Israel has a credible legal and historical claim for inhabiting at least part of the territories.
Furthermore, the primary obstacle to Middle East peace is widespread rejection of Israel’s right to exist. When Israel’s critics accept the obvious reality that some settlements will remain in place in the wake of a final peace agreement and that those communities are not the main roadblock to peace, a two-state solution will become more likely, not less.
The rhetorical war on Israeli settlements has fueled anti-Semitic incidents and anti-Israel boycotts for years. Tragically, it has also become a major impediment to peace.
Eric Fusfield, Esq. has been B’nai B’rith International’s director of legislative affairs since 2003 and deputy director of the B’nai B’rith International Center for Human Rights and Public Policy since 2007. He holds a B.A. from Columbia University in history; an M.St. in modern Jewish studies from Oxford University; and a J.D./M.A. from American University in law and international affairs. Click here to read more from Eric Fusfield.
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