From the Johnson administration through the Carter administration, the official US stance was that Israeli settlements were illegal – in all territory taken in 1967, including the West Bank, which in turn includes East Jerusalem. Ronald Reagan, taking a position that could be termed voodoo law, said settlements were “not illegal,” though they were ”unnecessarily provocative.” As the New York Times reported in 1983, that put the State Department’s legal office in a serious bind. The lawyers couldn’t disagree with their boss, their president. Professionally, they also couldn’t disagree with the obvious meaning of the law. When asked about the legality of settlements, they would diplomatically evade the question.
From then on, presidents did the same. International law was clear (as I’ve explained here, here and here). But as William Quandt, author of Peace Process: American Diplomacy and the Arab-Israeli Conflict Since 1967, once told me, after Reagan referred to settlement legal, “anyone who said it wasn’t…would be viewed as anti-Israeli” in the U.S. The State Department legal office, on the other hand, never revised its view, as the Washington Post reported two days after Obama’s press conference:
Despite the passage of time, the legal opinion, issued during the Carter administration, has never been revoked or revised. President Ronald Reagan said he disagreed with it — he called the settlements “not illegal” — but his State Department did not seek to issue a new opinion…
After the Post report, a former State Department lawyer wrote a letter to the paper with some important additional info. The article, said David Small,
…might be read to imply that the Carter administration broke new ground in finding Israeli settlements unlawful. It did not… Until President Ronald Reagan took office, our government shared the international consensus that this law prohibits changes such as civilian settlements. Mr. Reagan’s embrace of a distinctly minority contrary view was an unfortunate diversion.
The minority legal argument is that, because Egypt and Jordan — which Israel ousted from these territories in 1967 in lawful self-defense — were themselves illegal occupiers, Israel was not bound by international occupation law… The most important flaw in this argument is that it overlooks the rights of the people living there at the time…
Obama, it appears, has returned to the original stance, the one that accords with what’s distinctly the majority opinion. He has refused to bow to the political pressure of those who falsely equate “pro-Israel” with “pro-settlement.” It may be easier for him to do so because criticism of the settlements has become more widespread among Americans, including American Jews.
via Yes, a Settlement Freeze is Legally Possible. Settlement Itself Isn’t
I did not know that the original American policy was the call the settlements illegal. Growing up on the Zionist myth of Israeli infallibility that appears to have very common in American Jews until recently, I am constantly surprised by new facts brought to my attention. I only recently learned that they violate the Geneva Convention to which Israel is a signatory. (link for the below)
- A particularly significant change in international law was the Fourth Geneva Convention of August 1949. Article 49 bars an occupying power from transferring “parts of its own civilian population into the territory it occupies.” As the official commentary explains, this is to prevent the occupier from colonizing the occupied territory to the detriment of the population living there.
- The West Bank is occupied territory, as it was occupied in an armed conflict and lies outside territory over which Israel has recognized sovereignty. It does not matter that no other country is recognized as sovereign there. As its name – “Convention relative to the Protection of Civilian Persons in Time of War” – testifies, the Geneva Convention wasn’t written to protect the rights of states, but of civilians. In our case, it protects the people who were living in the West Bank and found themselves under occupation, and who are harmed by the steady expansion of Israeli settlement..
So, the issue of a God-given historical claim to the territories is moot in the face of Israel’s having signed the Convention.
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