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Settlement decision strengthens Israel’s bargaining position

  • Paula
Suddenly, it seems as if everyone is an expert in international law. After United States Secretary of State Mike Pompeo announced on Monday this week that Washington believes the settlements aren’t inherently illegal, everyone has been weighing in on the matter.
by PAULA SLIER | Nov 21, 2019

Most of the international community, including the United Nations (UN) and the International Court of Justice, consider the settlements illegal. Their arguments are based on the 1949 Fourth Geneva Convention that forbids an occupying power from transferring its people to occupied territory.

As recently as 2016, in the dying days of the former US administration of Barack Obama and in what is widely seen as a slap in the face to his successor, Donald Trump, the UN Security Council passed resolution 2334. It denounced the establishment of settlements in Palestinian territory occupied since 1967, including East Jerusalem, and said they had “no legal validity” but constituted “a flagrant violation under international law and a major obstacle to the vision of two states living side-by-side in peace and security, within internationally recognised borders”.

However, Jerusalem and many international jurists have long insisted that the Fourth Geneva Convention doesn’t apply to the West Bank because the territory was never technically occupied. Instead, they argue, Israel is legally there because of a defensive war in which it didn’t take control of the West Bank from a legitimate sovereign power. Proponents of this argument say the legal right of Jewish settlements in the West Bank is recognised by the 1922 League of Nations Mandate for Palestine, and is preserved under the UN’s charter.

After carefully studying all sides of the legal debate, Pompeo said the current American administration agreed with former US president Ronald Reagan that the settlements weren’t inherently illegal.

But the Palestinians are furious. Chief negotiator Saeb Erekat warned that international law would now be replaced with the “law of the jungle”. Other Palestinian leaders insist the new position, which reverses four decades of US foreign policy, “contradicts totally with international law”. The US was neither qualified nor authorised, they argued, “to negate international legitimacy resolutions, and it has no right to give any legitimacy to Israeli settlement”.

The European Union was quick to agree, reinforcing its position that, “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.”

The UN human-rights office also reaffirmed its position that the settlements were unlawful, saying the change “of one state does not modify existing international law nor its interpretation by the International Court of Justice and the [UN] Security Council”.

But, naturally, Benjamin Netanyahu and right-wing Israelis are delighted. The prime minister applauded the American president for a policy that now “reflects an historical truth – that the Jewish people are not foreign colonialists in Judea and Samaria. In fact, we are called Jews because we are the people of Judea,” he said.

The Israeli courts, he countered, are the appropriate place to decide the legality of the settlements, “not biased international forums that pay no attention to history or facts”.

The move is certainly a victory for Netanyahu, who is fighting for his political survival. No doubt he’ll use it to boost his diplomatic credentials and to stress to Israelis why he is still needed as premier.

At the time of writing (on Wednesday morning) he and Blue and White party leader, Benny Gantz, have still been unable to form a unity government, and another round of elections seems inevitable.

Netanyahu delighted his supporters back in September when, in the run-up to those polls, he promised to apply Israeli sovereignty over all the settlements, including the Jordan Valley and the northern Dead Sea. If the country is indeed headed for a third election, this time around, Trump is making sure Netanyahu can keep those promises. What many fail to realise, however, is that Blue and White has also recognised the Jordan Valley in its manifesto.

But more than helping Netanyahu, Pompeo’s announcement plays to a large proportion of Trump’s voter support base – evangelical Christians. As one of the most powerful groups in the US, Trump wants to be guaranteed their support next November during the US presidential elections.

For these Christians, Judea and Samaria has been the “bible land” for thousands of years, and were never illegal. They believe that one of the reasons America has been blessed over the years is because it has stood with Israel, as read in Genesis 12:3, “I will bless them that bless thee.”

But settlement construction is controversial and a major sticking point between the sides. The figures suggest that since Trump took office in 2017, it has spiked. Israel has built more than 120 settlements in the West Bank where about 600 000 Jews live. The Palestinians have long argued that their presence on this land, which they claim for a future independent Palestinian state, makes it almost impossible to make such a state a reality.

In his short speech, Pompeo said the shift in policy was meant to help advance peace. He stressed that Washington was not prejudging the ultimate status of the West Bank, and this would need to be worked out by the sides themselves. He conceded that his announcement didn’t refer to specific settlements, and there could still be legal questions regarding some of them. But he called on Israel and the Palestinian Authority to meet and begin negotiations to find a peace deal.

Perhaps he’s right, and it is time to think out of the box because long-held assumptions that have guided peace efforts so far have failed. But while emboldening the Israeli bargaining position, the announcement has left Palestinians more frustrated than ever. It certainly reinforces that the Americans are firmly in the Israeli camp.

Like the US recognition of Jerusalem as Israel’s capital and the Golan Heights as being under Israeli sovereignty, nothing is expected to change on the ground.

What exactly this means for the future of the settlements, and how it will work with Trump’s so-called “deal of the century” – the administration’s peace plan – remains to be seen. For now, the Americans, like the Israelis, are still waiting for a government to be formed in Jerusalem before they unveil their plan. And it’s still anyone’s guess how – and when – that will happen.

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