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Taking the ‘illegal’ out of ‘settlements’ - analysis

Originally Published at: Jerusalem Post / HERB KEINON

It alters the parameters of the conversation.

The phrase “illegal Israeli settlement,” said so often, for so long, by so many has turned into an axiom.

Almost any time you read an article in the international media about the settlements, somewhere the terms “illegal settlement” or the “settlements are illegal” will appear. One European diplomat after the next will say “illegal West Bank settlement” without stopping to wonder who determined their illegality.

For instance, the Wikipedia entry on “International law and Israeli settlements” opens with the following: “The international community considers the establishment of Israeli settlements in the Israeli-occupied territories illegal under international law.”

Or consider this from the Independent last week, reporting on the EU court decision that products made in the settlements must be duly labeled. The EU, The Independent wrote, “regularly notes that Israel’s settlements in the West Bank are illegal under international law.”
Look at the EU court decision itself: “ should be noted that the settlements established in some of the territories occupied by the State of Israel are characterized by the fact that they give concrete expression to a policy of population transfer conducted by that State outside its territory, in violation of the rules of general international humanitarian law, as codified in the sixth paragraph of Article 49 of the Convention relative to the Protection of Civilian Persons in Time of War, signed in Geneva on 12 August 1949.”
Forget that Israel, as well as various noted jurists from around the world, dispute that particular interpretation of the Geneva Convention. For many in the world, it is simple fact – not interpretation – that the settlements are illegal.

On Monday, in a highly significant speech, US Secretary of State Mike Pompeo said that this is not the case, that the United States does not believe that the settlements per se are illegal. And what this means, for instance, is that the Wikipedia entry about the international community considering the settlements illegal is no longer accurate, because the US – a rather significant member of the international community – does not share that view.

And why is that important? Because it alters the parameters of the conversation. Now when some European diplomat says matter-of-factly that “the settlements are illegal,” Israel can reply, “says who?” and then point to the US as one country that disputes that characterization.

In other words, what has long been a given – the illegality of the settlements – is suddenly no longer so.
The Trump administration feels it was ambushed in December 2016 when president Barack Obama and secretary of state John Kerry went against the Trump transition team’s express wishes, and as a lame duck administration in the waning days of its term, allowed the passage of UN Security Council Resolution 2334 that slammed the settlements and labeled them a “flagrant violation under international law.”
But when the Trump administration took power a month later, there was no way it could reverse that decision inside the UN Security Council, since France and even Britain, who are both vociferously opposed to the settlements, let alone Russia, could conceivably veto a counter resolution.
Pompeo’s statement, therefore, is the next best thing. Decoupling the words “illegal” from “Israeli settlements” is now formal US policy.
Some will argue that Pompeo’s declaration is insignificant, because the next president could come in and easily reverse this policy.

While true, it will take political will and capital – as well as a good reason – to reverse a stated policy of the US government. And in the meantime, the Trump administration has shown – just as it did with the decision to recognize Jerusalem as Israel’s capital – that some of the long-held assumptions that have guided efforts to reach peace in the Middle East, efforts that failed, ought to be reconsidered.