Many of my friends were appalled when, on Nov. 18, Secretary of State Mike Pompeo announced that the United States was changing its position on Israel’s settlement policy in the area known as the West Bank.
It is not generally known that the old policy, now abandoned, was based upon the conclusions of a 1978 legal opinion by Herbert Hansel, the legal adviser to the State Department in the Carter administration. The Hansel opinion asserted that Israel’s settlement policy in the West Bank, on land captured during the 1967 war, was inconsistent with international law.
The Hansel opinion was wrong, and Secretary Pompeo was justified in rejecting it.
First, it is important to note that the new policy neither condones nor advocates for Jewish settlements in the West Bank. Instead, it simply concludes that the settlements do not violate international law. Second, as a lawyer and a student of international law, and having examined this issue for many years, I can state unequivocally that the old policy was based on faulty legal reasoning.
To be sure, reasonable people may differ on the separate issue of whether these settlements advance the cause of peace. We also know, sadly, that the international community uncritically condemns almost everything Israel does, especially the settlements. But the fact remains that, as a matter of law, the settlements are not illegal.
The Hansel opinion was only four pages. It first asserted that Israel was an “occupying power” in the West Bank. It then contended that settlements violate the prohibition in Article 49 of the 1949 Fourth Geneva Convention against “deporting or transferring” parts of an occupying power’s civilian population into occupied territory. Both of these assertions were then – and now – incorrect as a matter of law.
Under international law, occupation occurs when a country takes over the sovereign territory of another country. That is not what happened in 1967. Israel seized the West Bank from the Kingdom of Jordan after King Hussein joined Egypt and Syria in the Six-Day War. Critically, Jordan never had sovereignty over that West Bank land. Instead, Jordan illegally occupied it beginning in 1949, during Israel’s War for Independence, expelling all of its Jewish inhabitants.
The West Bank was an integral part of the land that was legally designated by the international community for Jewish settlement pursuant to the 1917 Balfour Declaration, the 1920 San Remo Declaration, and the 1922 League of Nations Mandate for Palestine – all of which were reaffirmed by Article 80 of the United Nations Charter when that organization was founded in 1945. Moreover, Jordan renounced any claim of sovereignty over the West Bank in 1988 and entered into a peace treaty with Israel in 1994. Both of these events nullified any earlier suggestion that the West Bank was Israeli-occupied territory.
It is true, of course, that the Palestinians, like the Jews, claim entitlement to the West Bank. But neither they, nor any Arab government, have ever had sovereignty over the territory – so it cannot, as a matter of law, be occupied by Israel. Instead, the land is disputed, with both Palestinians and Israel laying claim to it.
Israel and the Jewish people have historic claims to the land going back millennia, and legal claims based on international law going back over 100 years. Israel’s policies on West Bank settlements are founded on Article 55 of the 1907 Hague Convention Respecting the Laws and Customs of War on Land. Under that treaty, public lands captured in war may be used for settlement provided that local residents’ private rights of ownership are respected.
Israel’s Supreme Court carefully monitors settlements and acknowledges that use of public land and property is subject to the outcome of negotiations on the permanent status of the land. Yes, there are some Jews who create illegal settlements, which might adversely impact Arab property rights, but those situations are adequately resolved by Israel’s judicial system. The major Jewish settlement blocks in the West Bank are legal.
In addition, the assertion in the Hansel opinion that Jews who have settled on disputed lands have somehow been deported or transferred there by Israel is patently absurd. Jews choose to live in the West Bank of their own accord, often for economic reasons.
Palestinians may someday have their own state, but everyone understands that the major Jewish settlement blocks will be incorporated into Israel and that the Palestinians will be compensated by an exchange of Israeli land.
As to smaller settlements, it is possible that the residents may have to make a choice about whether they stay or leave after a negotiated resolution of the conflict. But the idea that the Palestinians are entitled to a state that is “Judenfrei” or “Judenrein” is offensive. Almost 21% of Israel’s population identify themselves as Palestinian or Arab. Why can’t Jews similarly live in some future Palestinian state?
STEVEN E. SNOW, ESQ. is founding partner of the law firm of Partridge, Snow & Hahn, LLP, with offices in Providence, Boston and Southcoast Massachusetts. He is also a graduate of the Johns Hopkins School of Advanced International Studies in Washington, D.C.