The announcement last month by U.S. Secretary Mike Pompeo that Israeli settlements are not illegal was either warmly welcomed or hotly rejected, depending on how you interpret international law.
Indeed, recently 107 Democratic lawmakers sent a letter to Pompeo expressing “strong disagreement” with the State Department’s new policy and urged Pompeo to “reverse this policy decision immediately.”
Dore Gold, president of the Jerusalem Center for Public Affairs, told JNS that Pompeo did a great service for Israel and for truth by stating that Israeli settlements in the West Bank are not illegal.”
“And it is unfortunate,” he added, “that there are some members of Congress who want to second-guess him,” referring to the Democratic lawmaker’s letter. For his part, Gold sent a letter to each of those lawmakers explaining why Pompeo’s decision was correct.
The change in policy was allegedly timed to counter the European Union’s decision to label goods made in Judea and Samaria, as well as to reverse the previous administration’s stance, which viewed the settlements not only as an obstacle to peace but actually illegal.
As such, how subjective is international law and could the decision be reversed by a future president, especially a Democrat?
Gold said that the Trump administration’s view of settlements helped to provide a different interpretation of international law.
“I thought it was very important to put on the table the issue of the improper application of the Fourth Geneva Convention in the case of Israel,” Gold said. “International law is a subject where people do interpret way of norms differently. That is simply the way it works.”
He added that the decision made during President Jimmy Carter’s administration to declare the settlements a violation of international law “was wrong-headed.”
Taking it a few steps further, Gold said the basis of claiming that the settlements are illegal came from the Geneva Conventions of 1949, which said that a state occupying territory in war cannot move the population out of the occupied territory, and, secondly, that it cannot move its own population into the territory in question.
“In Israel’s case,” he said, “both statements are irrelevant.”
What has bothered him in particular was that the idea that an occupying power cannot move its population into occupied territory came from the actions of Nazi Germany, which moved its Jewish population into places like Poland for purposes of extermination.
“So somebody has the nerve to say that Israelis who have voluntarily moved into the West Bank are violating an international law that was based on a completely different situation?” he asked incredulously. “Comparing what Israel does in the West Bank to what Nazi Germany did in Poland to the Jews of Germany is something I find repulsive.”
Gold said he felt it was important to send the letters because “if you don’t say anything, it will continue.”
‘A solution on how to move forward’
Pnina Sharvit-Baruch, senior research associate and head of the Law and National Security program at the Institute for National Security Studies, told JNS that it is necessary to move away from the arguments over who is right or wrong, and instead to “find a solution on how to move forward.”
She said she fears that a future U.S. Democrat administration might not just to go back to the Reagan-Bush-Clinton-Bush kind of ambiguity when they said settlements are “an obstacle to peace.” Instead, it might return to the Obama policy of saying settlements are illegal.
Since international law is often interpreted differently, are people simply propagating their own subjective views?
“Almost any legal question is often the issue of different interpretations,” said Sharvit-Baruch, “and settlements are no different than any other legal question, especially with regard to international law.”
“An argument can be made—and it is not baseless to say—that the settlements are not necessarily illegal,” she said. “The case of why Palestinians have a right to this territory is not a clear-cut question. Even if they have the right of determination, there is still no clear-cut legal answer as to what territory this right applies to because the Green Line of 1967 is not a border.”
She said the main point is that the two sides, and even the wider Arab world, previously agreed that the topic of settlements and borders is an issue that needs to be negotiated, and that it is not supposed to be determined in court.
Sharvit-Baruch said that by declaring the settlements a violation of international law, the Obama and Carter administrations were “very unhelpful.”
“Those who insist on discussing it in legal terms,” she emphasized, “are doing a disservice to any kind of peaceful settlement to the conflict.”