In November, Secretary of State Mike Pompeo issued a video statement in which he criticized the inconsistency in the way American presidential administrations since 1978 (with the exception of the Reagan years) have viewed the legal status of Israeli settlements in the West Bank.
At the time, Pompeo concluded that “the establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.”
On January 8, the Jerusalem-based think tank Kohelet Forum hosted a conference billed as “The Pompeo Doctrine.” The day kicked off with U.S. Ambassador to Israel David Friedman, followed by Prime Minister Benjamin Netanyahu and several other senior Israeli cabinet ministers and officials.
Just before Netanyahu’s speech, a newer video recorded specially for the conference was played to the packed house, again featuring Pompeo.
As Netanyahu kvelled in the front row, Pompeo stated: “It is important that we speak the truth when the facts lead us to it and that’s what we’ve done. We’re recognizing that these settlements don’t inherently violate international law . . . We’re disavowing the deeply flawed 1978 Hansell memo and returning to a balanced and sober Reagan-era approach.”
Among many Kohelet speakers and attendees, the Pompeo statements together were celebrated as a long overdue and unequivocal rejection of the foundational principle of the Western (and, indeed, international) treatment of Israeli settlements in the West Bank and East Jerusalem. That principle holds that those settlements represent a flagrant breach of the Geneva Convention and are, therefore, illegal. Criminal. As such, this perspective holds, settlements are the major—perhaps the only—obstacle to peace. Which, of course, is total balderdash but does drive the international discussion, such as it is, on the issue.
The “Hansell memo,” rejected outright by Pompeo, was a three-page treatment (possibly the briefest legal opinion ever) of a very complex issue, written by State Department legal adviser Herman Hansell during the Carter presidency. Its baseline conclusion was that, as a military occupier of the West Bank, Israeli settlement activity in that territory was in violation of the Geneva Convention, thereby criminal.
Subsequent administrations have bobbed and weaved around this “principle,” the adherence to which is clearly politically motivated.
The notion of a belligerent Israel occupying the West Bank in violation of every human-rights and international legal norm (aside from being deeply flawed, as well as legally and politically biased) has become orthodoxy in the West. It underlies the slavish diplomatic reverence for the “two-state solution.” Yes, the Oslo framework contemplated “two states,” but the scope of power and minor issues—like the continued presence of Israeli forces in the Jordan Valley for security purposes—have never been resolved.
Yet, in the intervening years, “two-state” has come to be shorthand in foreign policy and diplomatic circles for, well, two states. As in, two fully sovereign states. And, like it or not, the Palestinian interpretation of sovereignty—which is supported by most of the world—does not include Jewish or Israeli settlements outside of Area A, if at all. Oslo certainly contemplates some degree of Jewish settlement. But, given Palestinian Authority President Mahmoud Abbas’s comments over the years, which include endorsing the ethnic cleansing of Jews from the region, he clearly does not. Not to mention that it is a crime punishable by death in the West Bank for a Palestinian to sell real property to Jews. Not Israelis. Jews.
So, there’s that little hangnail.
Now, we return to the conference last Wednesday (where I both observed and participated in a panel). It seemed most in attendance were inclined to interpret the Pompeo statements—which were elevated to doctrinal status—as clarifying that settlements anywhere in the West Bank (which they refer to by its historical, biblical name of Judea and Samaria) are legal or, put differently, not in breach of the Geneva Convention.
International law scholar, speaker at (and organizer of) the Kohelet symposium, Eugene Kontorovich, declared the Hansell-based approach of criminalizing Jewish settlement in Judea and Samaria to be dead, slain by the Pompeo Doctrine.
But is it?
In his November statement, Pompeo noted that the settlements are not “per se” illegal; meaning that they are not in themselves intrinsically illegal. Last Wednesday, the Secretary of State said that the settlements were not “inherently” illegal; meaning in a permanent, immutable, or fundamental way. Kinda sounds like the same idea, different day.
Kontorovich further places great stock in the combined effect of Pompeo simultaneously “disavowing” any and all legal or other reasoning in the Hansell memo concluding that the settlements are, de facto (a third semantic variation to consider), illegal.
As I understand the combined effect, the language remains somewhat equivocal, leaving Pompeo some “wiggle room” for future negotiations, interpretations, whatevers. Per se/inherently a distinction without a difference.
Pompeo explicitly rejects the Hansell memo. But he stops short of an unequivocal declaration on the legality of all settlement activity by qualifying them as not being inherently illegal. Otherwise, why split hairs? Why not just omit “inherently”?
I know from direct experience that there are many Hansell-like memos and “opinions” yellowing in the off-site archives of numerous foreign services. Diplomatic thinking on the issue has been frozen for 40 years, reflecting a blind commitment to the falsehood of chronic Israeli breaches of the Geneva Convention. The fact that Israel defended its eastern border from an unprovoked attack by Jordan, and subsequently trounced the Kingdom’s forces, made the Six Day War a defensive war, which is treated very differently under international law. But that doesn’t fit the upside-down narrative that has captured the imaginations of generations of leaders and foreign policy influencers: that Israel is the aggressor and chief violator of international decency.
Pompeo should be commended for exposing the Hansell sham, but he has by no means slain the beast.