WASHINGTON, DC - U.S. President Donald Trump has bowed to pressure by Israel to up-end a decades-long policy of regarding Israeli settlements as illegal.
Secretary of State Mike Pompeo announced the new policy of accepting the settlements as legal, interestingly in his announcing of the change describing it as a reversal of a decision by the Obama decision. The policy in fact has been supported by all U.S. presidents.
There has been a spirited campaign by supporters of Israel and advocacy groups to change U.S. policy, recognising the unique advantage of having an American president in power that will go to any lengths to garner support from the Jewish state. With the possibility that Trump may only be around for a little over a year, unless he is re-elected, it seems that now is the time to to get pro-Israel policies to the fore.
The Jewish Voice, considered one of the most influential weekly newspapers in New York Jewish circles, just six days ago began calling for a change to the American policy on the question of the legality of settlements. Unsurprisingly, it has been framed as reversing the Obama 'decision.'
This is what The Jewish Voice said six days ago (in full and unedited):
Next month will mark the third anniversary of the Obama Administration's parting shot at Israel in the U.N. This was when Obama and company first failed to vote against the U.N. Security Council resolution demanding an end to Israeli settlement-building and followed up that slap in the face against Israel by sending Secretary of State John Kerry to give an anti-settlements tirade of a speech at the Dean Acheson Auditorium at the State Department headquarters in Foggy Bottom on December 28, 2016.
The Trump Administration has the opportunity to neutralize the nonsense that was at the foundation of Kerry's attack on Israeli settlements just as it did the question of Israel's rights to Jerusalem and the Golan Heights. The Administration seems unaware of the ease with which it can remove the stick that was used to hit Israel.
While the December 28 Obama Administration attack came from Secretary of State John Kerry, the ammunition came from Jimmy Carter's State Department.
Here is what Kerry said "virtually every country in the world other than Israel opposes settlements. () In fact, this resolution simply reaffirms statements made by the Security Council on the legality of settlements over several decades. It does not break new ground. In 1978, the State Department Legal Adviser advised the Congress on his conclusion that Israel's government, the Israeli Government's program of establishing civilian settlements in the occupied territory is inconsistent with international law, and we see no change since then to affect that fundamental conclusion."
The Trump Administration can make that "change."
What happened in 1978 was that an attorney named Herbert Hansell, at the specific request of the Carter Administration, authored a memorandum stating that the Israeli settlements violate international law.
This memorandum has not yet been rescinded or updated, it is therefore still valid and this "Hansell Memorandum" was what Kerry was referring to in his 2016 speech.
Now is an ideal time for pro-Israel activists in the United States to work on this issue and put the U.S. State Department on the side of truth. President Trump can simply order the Memorandum to be rescinded and thus the U.S. government will reject the erroneous claims that the settlements are illegal.
It is really just that simple.
And it is the correct thing to do as well.
The settlements are not illegal according to any international law. That they are is only an opinion and not a fact. And that this opinion against the settlements has been allowed to stand is, in itself, morally wrong. As Hansell related to The Washington Post in 2009: "I don't think it has ever been rescinded or challenged by any legal officer of the United States Government. It still stands as the only definitive opinion of the U.S. government from a legal standpoint."
It is worth noting that President Ronald Reagan disagreed with Hansell's memorandum and opinion as Hansell himself also explained to The Washington Post in 2009. "Ronald Reagan expressed his opinion buthe was obviously not a lawyer".
Rescinding this one opinion will mean the U.S. will see Israeli settlements as legal. This cannot be overemphasized.
Harvard Law School's Professor Alan Dershowitz in a notable op-ed that appeared in the January 26, 2011 edition of the Wall Street Journal and was titled "The U.N. gangs up on Israel again" stated that "I have opposed Israel's civilian settlements in the West Bank since 1973, (but)[t]here is a big difference between a government action being unwise, which the Israeli policy is, and being illegal, which it is not."
President Reagan and Professor Dershowitz were not alone in this position that Israeli settlements are legal.
The late Prof. Eugene Rostow, a longtime dean of Yale Law School and Under Secretary of State for Political Affairs under President Lyndon Johnson also criticized the Hansell Memorandum saying "it is impossible seriously to contend, as the United States government doesthat Israeli settlements in the West Bank are illegal." [Source: Yale Journal of International Law, Volume 5 Issue 2; 1980]
So much time and effort is spent in defensive and reactive positions by U.S. Zionist organizations and this stance not only allows Israel's critics the advantage of controlling the discussion and grounding it in the terms they choose, but perhaps more importantly, this weak posture doesn't change minds. The enemies of Israel were rendered impotent when the Trump Administration acted on Jerusalem and the Golan Heights. Critics of Israel could only react and their reaction had no effect on the situation whatsoever. Rescinding the "Hansell Memorandum" is another opportunity to strike a blow against the siege machinery that Israel's enemies utilize. Contact the White House comment line today at 202-456-1111 and ask that "Hansell Memorandum" be rescinded. Do it today!
At the time of the anti-Israeli settlements vote at the U.N. an unnamed senior Israeli government official was quoted by Reuters as saying "President Obama and Secretary Kerry are behind this shameful move against Israel at the U.N." It's time to remove this shame.
And on Monday President Trump obliged.
Secretary of State Pompeo at a press briefing at the State Department announced that after a review of the legalities, the Trump administration is reversing the Obama 'approach' and agrees with President Ronald Reagan, who in 1983 put forward a plan for Middle East peace which ruled out a Palestinian state, and questioned the legality of Israeli settlements. Although questioning, Reagan also wanted Israel to stop building and freeze settlement activity until the end of a transition period of five years that he was proposing. Reagan also wanted Palestinians to have self-rule but to align with Jordan rather than establish their own state.
The Trump doctrine now ignores all the other aspects of the Reagan approach and have picked out one sentence made 36-years ago as the basis for a legal interpretation in 2019.
"Turning now to Israel, the Trump administration is reversing the Obama administration's approach towards Israeli settlements," Pompeo said Monday.
"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," Pompeo claimed of one of his predecessors.
"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."
Pompeo did however con cede that legal conclusions relating to individual settlements must depend on an assessment of specific facts and circumstances on the ground. "Therefore, the United States Government is expressing no view on the legal status of any individual settlement," he said.
The U.S. secretary of state also said the U.S. was not addressing or prejudging the ultimate status of the West Bank. "This is for the Israelis and the Palestinians to negotiate. International law does not compel a particular outcome, nor create any legal obstacle to a negotiated resolution," Pompeo said.
Ironically, the secretary went on to say that the decision relating to settlements in Israel is unique to that country. He said the decision is based on the unique facts concerning the civilian settlements in the West Bank. He said the decision "does not prejudice or decide legal conclusions regarding situations in any other parts of the world."
Mr Pompeo said referring to the settlements as illegal has not advanced the cause of peace.
Asked if the new policy is going to increase the isolation of the U.S., particularly in the UN and around the world. "Because pretty much everyone else has held the position that, if not illegal, they are at least inconsistent with international law?"
"Well, I must say, sadly, there hasn't been much support for Israel in the years leading up to this. It's hard to imagine more isolation, unfortunately, at the UN as a result of this decision. We've been challenged to convince nations all across the world to stand up for the people of Israel and their nation's right to exist. So no, I don't think this increases that," he said.