The Unlawfulness of the Israeli Settlements Remains as Clear as Ever

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November 26, 2019

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By Richard Falk

The American Secretary of State, Mike Pompeo, made headlines around the world when announcing that the U.S. had shifted its positions and no longer viewed Israeli settlements as in violation of international law. In one of the stupider public statements of our time Pompeo explained that “..arguments about who is right and wrong as a matter of international law will not bring peace.” It is stupid, first, because there is no genuine argument about the unlawfulness of the settlements, as until the U.S. spoke out of turn, Israel was totally alone in defending settlement legality. And more definitively, the role of international law is to regulate the proper behavior of sovereign states, not to make peace by negating the relevance of international law, which truly seems a cheer for the law of the jungle. Pompeo removed any doubt about this when he justifyied the American shift by admitting that “[w]e recognized the reality on the ground.’ Or in plainer language, lawless behavior become lawful if sustained long enough by force, a logic that not only defies international law but is contrary to the core legal commitments of the UN Charter.

The Clarity of International Law with respect to Israeli Settlements in Occupied Palestine

On many issues of international law, particularly in the area of peace and security, international law is somewhat ambiguous. Opposed positions for and against legality can be reasonably maintained, and only resolved by either a tribunal with authority to do so or by

practice sustained over time. Most relevantly, the establishment of settlements on Occupied Palestinian Territory is an example of an issue of law upon which it is not possible to make a responsible argument in support of legality. The unlawfulness of the settler encroachment on Occupied Palestine has been pointed out over and over again by informed observers as the biggest single obstacle to peace and the arena of most vivid and unabashed Israeli defiance of relevant international law. The question presented by the Pompeo announcement is whether or not Trump has given Israel a legal leg worth standing on after more than fifty years of universally condemned settlement expansion. Phrased differently, has Washington given Israel its blessings for doing whatever it wants in the future regarding settlements, and for that matter, the West Bank. After all, if the White House endorses Israeli annexation of the Golan Heights, situated in Syrian sovereign territory, the West Bank can now be thought of as small potatoes.

Part of the clarity of international law on the issue of the settlements arises from the unusual

fact that the conclusion of unlawfulness has been formally declared by the most authoritative sources of international guidance when it comes to legal controversy. I give three illustrations of this international consensus: (1) Article 49(6) of the Fourth Geneva Convention governing what is called ‘belligerent occupation’ sets forth the applicable basic norm: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” All governments have accepted an interpretation of this important provision of international humanitarian law as prohibiting the establishment of Israeli settlements on any part of the Occupied Palestinian Territories. Even the International Committee of the Red Cross, the most cautious and politically aloof of nongovernmental organizations saw fit to weigh in, officially declaring “that international humanitarian law prohibits the establishment of settlements, as these are a form of transfer into occupied territory.” If Israel was complying with international law it should have ceased forthwith settlement activity and dismantled what had been built in the years after the 1967 War. Instead Israel continued building, even at an accelerated pace, advancing the lame rationale that Israelis should be able to live wherever they wish in Palestine. Additionally, Jerusalem and the West Bank where the settlements exist are not viewed by Israel as even ‘occupied’ in a legal sense (the West Band is referred to within Israel as ‘Judea and Samaria’ forming part of ‘promised land’ of the Jewish people, an annexationist sentiment expressed days ago by Netanyahu in his desperate effort to remain Prime Minister).

(2) The Advisory Opinion of the International Court of Justice (ICJ) in the Wall Separation case (2004) contained strong uncontested assertions reaffirming the unlawfulness of the settlements. Most impressive was the highly unusual degree of unity in this judicial body, the highest court on the planet, that rarely achieves a strong consensus, given the diverse jurisprudential, cultural, and political backgrounds of the 15 judges. Yet in Wall Opinion the vote was 14-1, with only the American judge dissenting, and even he made clear that he agreed on most matters of substance addressed in the majority opinion, and dissented only because he felt the Court had no basis for discounting the central Israeli claim that wall was built on occupied Palestinian territory because of security concerns. What the Court declared without even pausing to develop a careful analysis undoubtedly because the point seemed so legally self-evident, was that the wall was constructed so as to put on the Israeli side 80% of the settlement population, noting in passing that the settlements were established in violation of applicable law. Israel refused to comply with this conclusive judgment by the ICJ, emphasizing its supposedly ‘advisory’ character. It is unfortunate that such activity of the ICJ endures under this linguistic cloud, but more adequately considered, it is evident that an Advisory Opinion, especially one so strongly supported, expresses the carefully considered legal assessments of the most distinguished legal minds in the world, sitting on a tribunal with a preeminent standing within the UN System. Such an Advisory Opinion deserves respect, and provides a reliable sense of the relevance of international law to particular policy questions of this sort.

(3) The UN Security Council in December 2016 adopted Resolution 2334 reaching a similar assessment of unlawfulness to that of the ICJ by the vote of 14-0, with only the U.S. abstaining. This abstention was itself a remarkable departure from U.S. practice during the Obama presidency, which invariably relied on the veto to insulate Israel from any action in the Security Council that could be viewed as critical of Israel’s practices. The basic legal conclusion was set forth in unconditional language in the very first operative paragraph of the resolution: “1. Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace..” The resolution is also notable for stressing exactly the opposite point to that made by Pompeo. The Security Council makes clear that prospects for peace have been seriously diminished in past years by the persistence of Israel’s unlawful settlement activity.

The U.S. Shift on Legality has only Political Weight

No country can by its decree influence the legal status of Israeli settlement activity. What Pompeo declared was a shift in political position by the U.S. Government. It is legally insignificant, but geopolitically significant. The Trump spin room sought to minimize the shift by recalling that Reagan, while president, once indicated off the cuff that he didn’t think the settlements were illegal, but as not so often noted, he went on in the same comment to suggest that settlement expansion was ‘unnecessarily provocative.’ More relevant was the exchange of letters by George W. Bush and Ariel Sharon in 2004 in which it was agreed by the two leaders that any viable peace deal with the Palestinians would allow the settlement blocs along the border to be incorporated into Israel. Again, such a side agreement was without legal legs, representing nothing more than a geopolitical pat on Israel’s back, but it was a rather good indicator of what Israel and U.S. would demand in future peace negotiations, essentially declaring that international law was indeed irrelevant to any realistic diplomatic endeavor. What makes the Pompeo move different is its positioning in relation to other controversial Trump moves and its whitewashing language that gives Israel incentives to move ahead with annexation. I believe this is another instance of American overreaching. Palestinian resistance remains strong as the Great March of Return on the Gaza border illustrates, and global solidarity initiative are gathering strength that Israel seems to acknowledge by defaming its nonviolent opponents as anti-Semites.

This new settlements’ rhetoric continues the pattern established by the Trump presidency– repudiating the international consensus on key issues bearing on the rights and duties of states. The highlights of this pattern in the Palestinian context were the shift of the American Embassy to Jerusalem and the endorsement of Israeli annexation of the Golan Heights, and now the putting to one side as irrelevant the supposed unlawfulness of the settlements. This step has been condemned in diplomatic circles as a ‘final nail’ in the coffin of the two-state solution. This moves the political compass in the direction of one-state outcomes of the long struggle, with the likelihood being Jewish dominance and Palestinian subjugation in a state structure that increasingly looks and behaves as if it were an apartheid regime. Is this, then, the endgame of the Palestinian struggle? I think not. Palestinian resistance and the global solidarity movement will be telling the world a different story.

Richard Anderson Falk is an American professor emeritus of international law at Princeton University. He is also the International Advisory Panel (IAP) for JUST.

25 November 2019