In the last few weeks, the Netanyahu government has introduces some new arguments for why it can’t freeze settlement, along with recycling the old confidence games. Among the new cons is the legal claim. As Ha’aretz reported:
A government source in Jerusalem said the Americans understood that even if Netanyahu agreed to a full freeze, the government did not have the legal authority to force private construction companies to stop building. The source said that if an attempt were made to order a halt to construction, contractors or homeowners would appeal to the High Court of Justice and probably win.
I’ve got an article in Saturday’s Washington Post explaining why this and other such claims are bunk:
…under Israeli Supreme Court precedents, the government’s authority to set policy in territory under “belligerent occupation” (the court’s terminology) trumps the interests of settlers and Israeli companies.
In 1992, the government of Yitzhak Rabin imposed a partial construction freeze in the West Bank. In two rulings, the Israeli Supreme Court rejected challenges to the freeze by developers and the municipal governments of settlements. The court eliminated any doubts left by those decisions with a far-reaching ruling in 2005, when it upheld the authority of the government and parliament to evacuate settlers from their homes in the Gaza Strip.
Achieving goals such as “peace, security, [and] international recognition” justified harming settlers’ property rights and civil rights as long as they received financial compensation, Israel’s highest court held. Let’s be logical. If, for reasons of state, the court allowed the government to remove settlers from homes where they had lived for years, it would allow the state to prevent Israelis from completing homes where they haven’t yet chosen the kitchen tiles. The only legal question would be how much compensation developers and buyers would receive. Netanyahu’s reported assertion that he’s hamstrung comes down to a hope that no one in Washington checks Israeli legal history.
Raising this argument may have boomeranged seriously. Prime Minister Netanyahu and Defense Minister Barak reportedly laid out the legal-restraint claim to American envoy George Mitchell in the first half of June. On June 15, at a press conference, President Obama said (hat tip to JTA’s Eric Fingerhut for reporting this):
“I’ve also made very clear that both sides are going to have to move in some politically difficult ways in order to achieve what is going to be in the long-term interests of the Israelis and the Palestinians and the international community,” he said. “On the Israeli side, that means a cessation of settlements. And there is a tendency to try to parse exactly what this means, but I think the parties on the ground understand that if you have a continuation of settlements that, in past agreements, have been categorized as illegal, that’s going to be an impediment to progress.” (my emphasis).
This is a very significant return to the original U.S. view of settlements, after a long hiatus.
From the Johnson administration through the Carter administration, the official US stance was that Israeli settlements were illegal – in all territory taken in 1967, including the West Bank, which in turn includes East Jerusalem. Ronald Reagan, taking a position that could be termed voodoo law, said settlements were “not illegal,” though they were ”unnecessarily provocative.” As the New York Times reported in 1983, that put the State Department’s legal office in a serious bind. The lawyers couldn’t disagree with their boss, their president. Professionally, they also couldn’t disagree with the obvious meaning of the law. When asked about the legality of settlements, they would diplomatically evade the question.
From then on, presidents did the same. International law was clear (as I’ve explained here, here and here). But as William Quandt, author of Peace Process: American Diplomacy and the Arab-Israeli Conflict Since 1967, once told me, after Reagan referred to settlement legal, “anyone who said it wasn’t…would be viewed as anti-Israeli” in the U.S. The State Department legal office, on the other hand, never revised its view, as the Washington Post reported two days after Obama’s press conference:
Despite the passage of time, the legal opinion, issued during the Carter administration, has never been revoked or revised. President Ronald Reagan said he disagreed with it — he called the settlements “not illegal” — but his State Department did not seek to issue a new opinion…
After the Post report, a former State Department lawyer wrote a letter to the paper with some important additional info. The article, said David Small,
…might be read to imply that the Carter administration broke new ground in finding Israeli settlements unlawful. It did not… Until President Ronald Reagan took office, our government shared the international consensus that this law prohibits changes such as civilian settlements. Mr. Reagan’s embrace of a distinctly minority contrary view was an unfortunate diversion.
The minority legal argument is that, because Egypt and Jordan — which Israel ousted from these territories in 1967 in lawful self-defense — were themselves illegal occupiers, Israel was not bound by international occupation law… The most important flaw in this argument is that it overlooks the rights of the people living there at the time…
Obama, it appears, has returned to the original stance, the one that accords with what’s distinctly the majority opinion. He has refused to bow to the political pressure of those who falsely equate “pro-Israel” with “pro-settlement.” It may be easier for him to do so because criticism of the settlements has become more widespread among Americans, including American Jews.
And it’s also possible that the timing has to do with the Netanyahu government’s claim that it legally can’t stop settlement. Nope, Obama replied, legally you can’t continue it.
That said, there is something a bit strange in Obama’s wording – “settlements that, in past agreements, have been categorized as illegal…” He doesn’t specify the agreements. The road map calls for a freeze in settlement but doesn’t refer to their legality. The agreement to which he’s referring is apparently the Fourth Geneva Convention itself.