US on Israeli Settlements: A Policy Without A Policy

This article originally appeared at LobeLog. There is an indispensable wealth of material there on recent events in Israel/Palestine, Iran, Egypt and others. I urge you to check it out.

Some days, it must be really difficult to be the State Department’s spokesperson. It doesn’t seem like a bad job to have at all, but on certain questions it’s impossible to not look like an idiot. A lot of those questions are connected to de facto policies which differ from de jure ones.

Look up the hill from the West Bank town of Tuwani and you see the Israeli settlement, Maon

Look up the hill from the West Bank town of Tuwani and you see the Israeli settlement, Maon

And there is no better example of that than US policy on Israeli settlements.

Back in the early years after the 1967 war, the United States made it clear that the settlements were illegal according to international law. As recently as 1978, the State Department legal adviser confirmed that all Israeli settlements beyond the Green Line are illegal, and through the Carter administration, this was explicit US policy. That policy has never been explicitly revoked, but beginning with the Reagan administration, de facto policy has been ambiguous. Reagan began the trend when he stated that while the settlements were ill-advised, provocative and that further settlement was not necessary for Israel’s security “I disagreed when, the previous Administration refereed to them as illegal, they’re not illegal.  Not under the U.N. resolution that leaves the West Bank open to all people—Arab and Israeli alike, Christian alike.”

The problematic nature of Reagan’s statement — implying that “Arab” equals “Muslim” and “Israeli” equals “Jew”, and more importantly, citing the “U.N. Resolution”, which is not the basis for the illegality of the settlements (the Fourth Geneva Convention is) — notwithstanding, this was the beginning of the US’ refusal to label settlements illegal, terming them instead, at most, “illegitimate.”

The problem for spokespeople arises when they have to parse what that means. Last Monday, in Colombia, Secretary of State John Kerry made what turned out to be an interesting statement. “As the world, I hope, knows, the United States of America views all the settlements as illegitimate,” Kerry said. The use of the word “all” might have worked in Reagan’s day, even in Bill Clinton’s. But today, when the US has allowed Israel to assert that certain settlements are essentially guaranteed (the so-called “settlement blocs” of Gush Etzion, Ariel and Ma’ale Adumim) that little word carries heavy implications.

Israel insists that it’s okay to build in the settlement blocs and the Palestinians should have no problem with that because they’re going to keep them anyway. Israel bases its case on the fact that they have repeatedly stated this publicly without being contradicted and on George W. Bush’s letter to Ariel Sharon in 2004. While that letter did not explicitly state that Israel should keep the blocs, it profoundly altered the diplomatic landscape by promising that the borders between Israel and the envisioned Palestinian state would not be the same as those that existed in 1967 and that alterations would reflect the changed demographics in those, at that time, 37 years. Israel took that to mean it would keep the blocs, and no one, other than some Palestinians (and not the lead spokespeople at the time) said otherwise.

So, when Kerry said all the settlements were illegitimate, it prompted AP reporter Matthew Lee to enter into the following exchange with spokeswoman Jen Psaki:

QUESTION: He said the United States doesn’t see all of the settlement activity as legitimate. Is it correct that – is that correct, that all settlement activity is illegitimate? And I don’t want to get into this illegitimate or illegal, because as far as I’m concerned it’s a distinction without a difference. Does the United States believe that all Israeli settlement activity along – and we can include in that East Jerusalem construction – is all of it illegitimate?

MS. PSAKI: Well, our position on Jerusalem has been clear and has been consistent for some time, which is that we believe it is a final status issue in terms of the discussion of that – of Jerusalem, right?

QUESTION: Mm-hmm.

MS. PSAKI: That is part of the discussion. We have, of course, expressed concerns about construction in East Jerusalem. That hasn’t changed. Our position on settlements we have stated a number of times, and I just stated, and that has not changed either.

QUESTION: Okay. So you do not regard the construction in East Jerusalem as illegitimate. Is that correct?

MS. PSAKI: Well, I think I just stated what we – what our longstanding position has been on construction.

QUESTION: But it’s not – hold on, Said. But it’s not that it’s illegitimate?

MS. PSAKI: I don’t have anything more than what I just stated.

QUESTION: Because it is a final status issue?

MS. PSAKI: It is a final status issue that we discussed and worked through.

QUESTION: So one of the questions – okay. So one of the questions that I had that Marie said she would take yesterday –

MS. PSAKI: Mm-hmm.

QUESTION: – was about the 900 homes that were announced for construction in East Jerusalem. Is it fair to say you do not regard those as illegitimate?

MS. PSAKI: Well, we – in terms of those specific – that specific announcement –

QUESTION: Right.

MS. PSAKI: – you know we oppose any unilateral action. Certainly we would include this, that attempt to prejudge final status issues, including the status of Jerusalem. That’s where that building is taking place. That’s our view on it.

QUESTION: Okay. So you’re opposed to it, but you don’t say that it’s illegitimate?

MS. PSAKI: I think you know our position.

QUESTION: Okay. So in terms of illegitimacy then, this legitimacy issue, are existing settlements illegitimate in the eyes of the Administration in the West Bank? Settlements in the West Bank that currently exist now, are they illegitimate, meaning that they should not be part of Israel once there is a peace agreement?

MS. PSAKI: Well, obviously, the question of borders will be worked through and is part of the discussion that will take place and will be ongoing in the weeks and months ahead.

QUESTION: So are existing settlements illegitimate?

MS. PSAKI: Well, we have concerns about ongoing continued settlement activity.

QUESTION: Okay. Do you understand that there’s a serious problem here? Because if you talk about – if all you’re prepared to say is that you don’t accept the legitimacy of continued settlement activity, you are only calling illegitimate settlements that have not been announced, settlements that are, say, a twinkle in the Housing Minister or whoever’s eye. Once they are actually announced or built, you stop calling them illegitimate, and they – and you start saying that that’s a – that’s something to be decided between the parties. Okay?

MS. PSAKI: Well, this has been our position for a number of years.

QUESTION: That’s – well, right. But –

MS. PSAKI: So –

QUESTION: And I’m surprised that no one, and especially me, has picked up on this before, because you have essentially – you don’t oppose settlements at all, because once they’re built or once they’re announced, once plans for them – plans to build them are announced, you’re not opposed to them anymore, because it’s something for the parties to decide whether they’re legitimate or not.

MS. PSAKI: Well, certainly it will be – a big part of the discussion will be that process moving forward.

QUESTION: Right. Do you understand the problem? Do you understand the –

MS. PSAKI: I understand what you’re conveying, Matt. I’m happy to talk back with our team and see if there’s any more clarification we can provide.

QUESTION: Okay. So tell me, am I wrong in thinking that the United States has no position at all except that it is to be decided by the parties on the legitimacy or illegitimacy of settlements that exist in the West Bank today?

MS. PSAKI: I believe you are wrong, Matt. We’ll get you some more clarification.

QUESTION: You believe I’m wrong? Okay.

MS. PSAKI: We’ll get you some more clarification.

QUESTION: Jen –

MS. PSAKI: Mm-hmm.

QUESTION: – in fact, your longstanding position, going back all the way to 1967, and through George Herbert Walker Bush when he was representative at the United Nations, and on to Andrew Young, and on and on and on, that the settlement, that Jerusalem – East Jerusalem, the West Bank, all territory occupied is contrary to the Fourth Geneva Convention, and any alteration stands contrary to that, that you will not support. That is your position, not to reconcile yourself to the facts on the ground, as has been suggested.

Earlier, Lee said to Psaki “Back in 1978, President Carter said that, quote, ‘We don’t see these settlements as being legal.’ Why can’t you say that they aren’t legal?” Psaki, of course, had no answer.

Ultimately, the only people making the argument that the settlements are legal are the Israelis and a handful of apologists who try to bend and twist international law into an interpretation that fits their needs. Otherwise, there is virtually universal agreement that all settlements beyond the Green Line are illegal. Technically, that is also the US position, since there has never been any official statement from a government representative charged with understanding and interpreting international law to reverse the conclusion reached in 1978. But in reality, the political upheaval that would ensue from re-stating that position makes it impossible to do so.

This was made even more interesting when, on August 12, the Washington Post’s internet edition apparently misquoted Kerry saying that the settlements were illegal, rather than illegitimate. When I saw the original version I almost fell over. Had that occurred, it would have been a major game-changer. Quickly, however, the Post corrected the error. I’m sure it was, indeed, an error, because I cannot imagine Kerry actually saying that.

Yes, I cannot imagine the US’ Secretary of State stating what remains the official legal interpretation as set forth by the State Department’s legal adviser and which, outside the US and Israel, is nearly an absolute consensus view. Interestingly, even the most pro-Israel of Presidents, be it Reagan, George W. Bush, Bill Clinton or Barack Obama, has seen the settlements as a serious problem. They would all have liked to see Israel put a halt to them. But when George H.W. Bush, who, during his time as Ambassador to the UN, explicitly stated the settlements were illegal, acted during his presidency to slow them, he was called anti-Israel. And we can all recall what happened when Obama asked Benjamin Netanyahu to freeze settlements so peace talks could continue (and, no, despite Bibi’s statements, the freeze never really happened — as Lara Friedman of Americans for Peace Now explains here).

These are the results of a schizophrenic policy, where the policy as enacted nearly opposes official statements of it. Good luck to Jen Psaki trying to explain it.

4 thoughts on “US on Israeli Settlements: A Policy Without A Policy

  1. I would wish to suggest that this you wrote -“today, when the US has allowed Israel to assert” – is a bit generous. Hillary Clinton as Sec’y of State and Obama as President have reneged on the GWBush policy commitment to recognize a different reality, one described by Elliott Abrams so:

    “On April 14, 2004, Mr. Bush handed Mr. Sharon a letter saying that there would be no “right of return” for Palestinian refugees…On the major settlement blocs, Mr. Bush said, “In light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949.” Several previous administrations had declared all Israeli settlements beyond the “1967 borders” to be illegal. Here Mr. Bush dropped such language, referring to the 1967 borders — correctly — as merely the lines where the fighting stopped in 1949, and saying that in any realistic peace agreement Israel would be able to negotiate keeping those major settlements.

    On settlements we also agreed on principles that would permit some continuing growth. Mr. Sharon stated these clearly in a major policy speech in December 2003: “Israel will meet all its obligations with regard to construction in the settlements. There will be no construction beyond the existing construction line, no expropriation of land for construction, no special economic incentives and no construction of new settlements.”

    Ariel Sharon did not invent those four principles. They emerged from discussions with American officials and were discussed by Messrs. Sharon and Bush at their Aqaba meeting in June 2003.”

    Clinton tongue-lashed Bibi for hours in an overnight phone call and the US Administration has been quite strident regarding the so-called “East Jerusalem neighborhoods”, too, in addition to the other Jewish communities beyond the Green Line.

  2. The settlements are, indeed, formally illegal (or violations of Fourth Geneva Convention). read the very shourt UNSC 465 (1980). read the very long ICJ (International Court of Justice) decision on the (illegality of) the WALL where it is within occupied trrritory. This is a purely “formal” “illegality” since no court has power to enforce this “law” and the USA firmly rejects the notion of such illegality.

    THAT SAID — one could argue (probably speciously) that the USA overlooked the illegality of the settlements originally because they were said to be “negotiating chips” which would speed up a successful UNSC 242-based peace negotiation. However, now — as 46 yesars have gone by and 10% of Israeli Jews now live within occupied territories in a blatant two-laws-for-two-peoples apartheid system, it is clear that such a USA scheme to ignore the law in order to promote a “just and lasting peace” was either misguided originally or became misguided as it was progressively seen not to work. After 46 years peace is farther away that it could have been in 1967 or 1980. Or 1990 or 2000.

    So the USA should CLAIM the fig-leaf of an original intent to overlook the law in favor of peace and say that, as matters now stand, it didn’t work, and now it is tile to ENFORCE THE LAW (by requiring removal of all settlers and destroction of all settlement buildings, includng both residences and all other buildings built for settler use) and to do so BOTH in se3rvice of international law and also of peace, because looking “down the barrel” of a required removal of all settlers and destrucion of all settlement buildings, Israe3l could be expected to negotate in good earnest.

    • Pabelmont – you have one problem: in a decision of the League of Nations, itself with the status of int’l law, itself based on previous international legal decisions, it is explicitly written that:

      “The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.”

      In other words, “settlement”, i.e., Jewish presence, residency, construction, land development, etc., is a guaranteed right specifically for Jews.

      You can argue all you want, but that right was never formally withdraw, as if it could.

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