U.S. Reversal on Israeli Settlements Will Have Grave Consequences

(Bloomberg Opinion) -- Secretary of State Mike Pompeo’s recent announcement that the U.S. no longer views Israeli settlements in the occupied West Bank and East Jerusalem as illegal isn’t just a disaster for peace. It’s an all-out assault on international law and human rights.

What usually gets forgotten is when and why the international community outlawed settling occupied territories in the first place.

The prohibition comes from the Fourth Geneva Convention, adopted in the aftermath of World War II, which for the first time outlined the rights of civilians during war. According to Article 49, paragraph six of the convention, an occupying power “shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Subsequent UN Security Council resolutions and international court rulings leave no doubt that Israel is the occupying power in the territories that came under its control in 1967. Indeed, when justifying its military activities in East Jerusalem, the West Bank and Gaza, Israel frequently cites the rights of occupying forces, especially as defined by Article 43 of the Hague Regulations.

But the introduction over decades of more than 700,000 Israeli settlers in East Jerusalem and the West Bank is a clear-cut and massive violation of Article 49.

Some Israelis have tried to argue that Article 49 only prohibits the forced transfer of civilians into such settlements. However, as the definitive 1958 commentary on the convention by the International Committee of the Red Cross makes clear, the Article does not refer to compulsory transfers but any transfers at all. According to the ICRC:

It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.

In other words, people living under military occupation have individual and collective human rights not to be colonized, not to have their land taken away from them, and not to have civilian settlers from the occupying power impose themselves by force.

This is precisely what Israel has done in the occupied territories, and it is not primarily a political problem or a peace-process conundrum. It’s a serious human rights abuse.

The Israeli government has understood this all along. In March 1968, Theodor Meron, then the legal adviser to the Israeli foreign ministry, authored an internal memo on the legality of settlements. He noted that, because the “prohibition” on settling occupied territories “is categorical and not conditional upon the motives,” settlement could only be “carried out by military and not civilian entities” and must be “temporary.”

Despite this clear understanding, Israel began settling the occupied territories in the late 1960s and continues to expand its military and civilian matrix of control. Even the era of the peace process didn’t slow down this inexorable colonization.

Since 1978 at the very latest, the U.S. government has been clear that Israeli settlement is inconsistent with international law. Pompeo’s claim to be overturning a last-minute decision made at the end of Barack Obama’s second term is disingenuous. And while the State Department claims to have a 40-page legal opinion justifying this policy shift, it hasn’t been made public and couldn’t possibly be persuasive.

As usual with the Trump administration, the motivations here are nakedly political. They are trying to help save the political fortunes of their ally Israeli Prime Minister Benjamin Netanyahu and help keep him out of prison. And it’s another sop to Donald Trump’s most ardent domestic fan base: the pro-occupation and pro-settlement Christian evangelical right.

Pompeo, for his part, insists he has only “recognized the reality on the ground,” since he believes Israel shouldn’t have to withdraw from settlements or other parts of the occupied territories if it doesn’t want to.

But his announcement will have consequences far beyond the Israeli-Palestinian conflict, the fate of the seemingly doomed two-state solution, or prospects for wide-scale Israeli annexations. It even goes beyond the question of Palestinian human rights.

Its message to the world is clear: colonizing occupied territories is no longer forbidden. By inviting predatory powers to create new “realities” to be "recognized,” this blunder guts another key aspect of international law: the prohibition against acquiring territory by war.

Apparently, now all you need do is seize an area, hold it for long enough, colonize it thoroughly, and then demand international endorsement. The last obstacles to predatory territorial expansion and conquest have just been jettisoned in favor of “realities on the ground.”

Welcome to the jungle.

To contact the editor responsible for this story: Tracy Walsh at twalsh67@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Hussein Ibish is a senior resident scholar at the Arab Gulf States Institute in Washington.

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