U.S.: Israeli Settlements Not Illegal

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With Lionel Messi’s visit to Israel, the indictment of Prime Minister Binyamin Netanyahu, and the reversal of the United States’ policy on settlements, we were stuck with really tough questions. Should we steer clear of politics this week and focus on Israel’s favorite soccer (futbol) player finally coming to town? Should we break down the story behind the first indictment of a sitting Israeli prime minister? Ultimately, we decided to unpack the decision by the U.S. government to reverse a 41-year-old legal opinion that claimed settlements in the West Bank were inconsistent with international law. 

Why? Judea and Samaria is part and parcel of the Jewish people’s national identity. Riffing off of Ze’ev Jabotinsky, Micah Goodman says, “If a nation’s homeland is part of its identity, then to cede a part of the Jewish homeland is to cede a part of Jewish identity.” For Israelis and many Jews around the world, I believe this is what makes them celebrate this current administration’s decisions about the land of Israel. 

And, for others in the Jewish community, they recognize the Jewish historic connection to the land, but they might not think it propels peace forward for the American government to unilaterally declare this change in policy.

With regard to Israel, President Trump has been consistent about recognizing land Israel won in the Six Day War in 1967. He moved the American embassy from Tel Aviv to Jerusalem. Then, President Trump decided to recognize Israeli sovereignty over the Golan Heights. And, now, the United States has continued along these lines by insisting that Israeli presence in the West Bank is not illegal. 

This is not just land. For many, this is identity. And, as a Jewish education media company, our goal is not to engage in political polemics or litigate each decision. Our goal is to help illustrate why decisions like these matter, how Israelis and Jews around the world view them, and anticipate the questions all of us have about these profound moments while ensuring we each have a seat at the table to explore, investigate, and inquire without forcing the next generation of Jews to have one interpretation of events.

So, let’s unpack this all. As always, I would love to hear your feedback!

Warmly,

Noam

What Happened?

Last Monday, November 18, U.S. Secretary of State Mike Pompeo announced that the U.S. no longer views Israeli settlements as illegal, thus reversing a 41-year-old position that the settlements are “inconsistent with international law.” The UN and the EU have condemned this reversal.

To provide context, this announcement came one week after the European Court of Justice (ECJ) ruled that EU States must label products from Israeli settlements, so as to indicate that Israel “is present in the territories concerned as an occupying power and not as a sovereign entity.”

Background

A. Last week, we wrote the cover story for the Jewish Journal about the need for cultural literacy. The topic of Israeli settlements is complex and can be confusing. So, before diving into this piece, we recommend watching our settlements miniseries for all the background information you and your students need.

  1. What are the Israeli Settlements? – This helps answer when and how the Israeli settlements started.
  2. The Jewish Connection to the Land – This explores why the Jewish people care so much about this land in the first place.
  3. Israeli Settlers – This video asks and answers who these settlers are and touches on the diversity of settlements and settlers. 
  4. Palestinians of the West Bank – This episode inquires about the Palestinian experiences in the West Bank under split Israeli and Palestinian control (Areas A, B, and C).
  5. The Israeli-Palestinian Peace Process – This concludes the series and imagines what a peace process can look like. 

Before providing passionate opinions on this current American decision, let’s make sure we all know the history and context. 

B. Why is the status of the Israeli settlements disputed? Aren’t they just legal or illegal? Article 49 of the 1949 Geneva Convention, drafted after WWII, states: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” So, according to the UN and other international bodies, Israel (the “occupying power”), acts illegally by its citizens living in the “occupied territories.” Israel, and now the U.S., maintains that the original intent of the Geneva law was to prohibit Nazi-like crimes of “forcible evictions of Jewish populations for purposes of mass extermination in death camps,” which is of course not what was going on in Israel. Plus, Israeli citizens voluntarily move to these areas without being forced to, and these areas did not officially belong to any country as of 1949, when the law was written. 

In a footnote, Daniel Gordis notes that many high-profile Israelis “oppose the occupation,” but he then cites Supreme Court Justice Edmund Levy who argued that due to Jordan’s renouncement of claims to the land and because there was never a sovereign entity in the area before Israel won the war in 1967, “Israel had a legal basis as the rightful sovereign of these lands.” 

For more information on the legality of Israel’s presence in the West Bank, former Ambassador Alan Baker at JCPA explains the legal basis for Israel’s legal rights to the land.

Why Does This Matter?

Peace process – a help or hindrance? While many Israelis, and Americans, celebrate this U.S. announcement, there is a question looming: does the U.S.’s new position that Israeli settlements are legal according to international law, which goes against most of the international community’s opinion, help or hurt Israel’s peace prospects? The U.S. position, as expressed by Pompeo, is that “calling the establishment of civilian settlements inconsistent with international law hasn’t worked. It hasn’t advanced the cause of peace.” On the flipside, Vice President of the European Commission Federica Mogherini stated, “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.” (There have been many op-eds written on the subject; here is one in favor of the decision and one opposed to it.) 

Practical or symbolic? Another question that arises from this announcement is whether it has any practical ramifications. Does it change anything immediately? Is it symbolic? Haaretz asked the U.S. Embassy for some clarity on this point, to which it responded: “We are simply stating our position that the establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law, and that legal conclusions relating to individual cases of settlement activity must depend on an assessment of specific facts and circumstances surrounding the activity in question.” Although this is somewhat vague, it seems that the U.S. did not have immediate plans in mind. Which brings us to the next point… 

Why now? Why did the U.S. make this statement now, of all times? It seems no coincidence that just a week prior the ECJ announced that Israeli products made in the West Bank must be labeled as such. Israel had responded as follows: “The ruling’s entire objective is to single out and apply a double standard against Israel. There are over 200 ongoing territorial disputes across the world, yet the ECJ has not rendered a single ruling related to the labeling of products originating from these territories.” The U.S. State Department had responded at the time that it was “deeply concerned” about the decision and saw it as anti-Israel bias. Pompeo’s statement regarding the legal status of Israeli settlements is likely a further response to the ECJ’s ruling. Some have argued that Trump is looking to bolster support from the American Evangelical and Jewish communities, both of which are largely pro-Israel, ahead of the 2020 elections. This move is also consistent with his previous decisions to recognize Israeli sovereignty over the Golan Heights, cut UNRWA funding, and move the U.S. Embassy to Jerusalem. Israel Policy Forum’s Policy Director Michael Koplow maintains that Israeli/U.S. opposition to labeling is indicative of both countries’ calling the territories “disputed,” but in actuality viewing them as part of Israel proper (see the full article for more).

Diversity of Perspectives

On the whole, Israeli Jews have welcomed the U.S. announcement. PM Benjamin Netanyahu tweeted: “I spoke on the phone with US President Donald Trump and told him that he had corrected a historic injustice. Somebody needed to say a simple truth, and President Trump did this.” In a similar vein, Kahol Lavan leader Benny Gantz tweeted: “I applaud the US government for its important statement, once again demonstrating its firm stance with Israel and its commitment to the security of the Middle East.” From a religious perspective, many leading Zionist rabbis in Israel were ecstatic about this decision. 

The announcement has drawn the ire of most Palestinians. Palestinian presidential spokesman Nabil Abu Rudeinah stated that Washington is “not qualified or authorised to cancel the resolutions of international law, and has no right to grant legality to any Israeli settlement.”

In the U.S., the Trump administration of course endorses the new position on settlements. U.S. Ambassador to Israel David Friedman tweeted: “My thanks to @POTUS and @SecPompeo for their important work which will advance the cause of peace…” Many leading Democrats have voiced their condemnation of this position, including former vice president and contender for the Democratic nomination Joe Biden, who stated, “This decision harms the cause of diplomacy, takes us further away from the hope of a two-state solution, and will only further inflame tensions in the region.”

AIPAC, a bipartisan organization that typically supports the policies of the Israeli government, stated that it would “not take a position on settlements.” This angered the Zionist Organization of America, who admonished AIPAC for their statement and railed at the Union for Reform Judaism for saying that this “unilateral move” would “damage the prospect of renewing the negotiations between Israel and the Palestinian authority.”

Discussion Questions

  1. Do you think this U.S. announcement, which works in tandem with Israeli policy and is at odds with most of the international community, is helpful or detrimental to Israel? Explain.
  2. How much should Israel care about international opinion? Should it operate based on its own moral compass or take international opinion into consideration?
  3. Many argue that Israeli settlements in the West Bank are the primary “obstacle to peace,” some feel that settlements are an obstacle to peace, and others view the settlement concern merely as a red herring. What is your opinion, and why?
  4. Put on your educational glasses and remove the political lens. Micah Goodman writes: “Israel imposes military rule on a Palestinian population that has no say over the state’s decisions, so the Palestinians are a nation that lives under occupation. The conclusion is that the territories are not occupied, but the Palestinian people are.” Suppose everyone agrees that Israel and Israelis have the legal right to be in Judea and Samaria. What should be done about the Palestinian population living in the West Bank, specifically Area C? Status quo? Give citizenship?

Practical Classroom Tips

  1. As mentioned above, watch our settlements miniseries and use the accompanying educational resources to delve deeply into this topic with your students. Cultural literacy is the key to understanding current events! 
  2. To gain a broader understanding of President Donald Trump’s recent Israel policy, read our past articles about recognizing Israeli sovereignty over the Golan Heights and cutting UNRWA funding, and video about moving the U.S. Embassy to Jerusalem. Do you see a consistent theme with Trump’s decisions? 
  3. Have your students compare and contrast these two articles with different takes on the decision:

In Other News…

  1. After Israel’s second round of national elections in September, PM Netanyahu failed to form a new coalition. Kahol Lavan leader Benny Gantz was given the next chance, and he, too, failed to form a coalition. The floor is now open to any Knesset member who can form a coalition of 61 seats (the first time this clause has been enacted in Israeli history). If this doesn’t pan out, the country will head to elections for a third time.
  2. To complicate matters politically, Israeli Attorney General Avichai Mandelblit announced that Netanyahu will be charged with bribery, fraud, and breach of trust. This is the first time in Israel’s history that a sitting prime minister is facing criminal charges. Netanyahu does not intend to resign.
  3. A student union at University of Toronto refused to support a Hillel campaign to make kosher food available on campus, claiming that this would be “pro-Israel.” Ron Robin, chairman of the Committee of University Heads of Israel, responded: “The classification of kosher food as ‘pro-Israel’ illustrates just how far the BDS movement has come in terms of zeroing in on its actual objective — suppressing the freedom of speech and freedom of religion of Jews, not merely leveling criticism at the State of Israel and its policies.”
  4. On a lighter note, 17-year-old Israeli Alon Leviev won a gold medal in the junior category at the Ju-jitsu World Championship in Abu Dhabi. Hatikvah was played as he received the award, marking a year-old change in UAE policy that had previously banned Israel’s flag and anthem. 
  5. Argentinian soccer superstar Lionel Messi and his teammates visited Israel for a friendly match against Uruguay, amidst much excitement. Last year the team canceled at the last minute after facing pressure from Palestinian activists.

Noam Weissman

Dr. Noam Weissman is the Senior Vice President of Education at Jerusalem U. Noam holds a doctorate in educational psychology from USC with a focus on curriculum design. Before joining Jerusalem U, he was the principal of Shalhevet High School in Los Angeles, where he spent 9 years actively engaging and empowering students to find meaning in their Jewish learning.

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