Israeli settlements: Trump administration engages in mind-boggling legal acrobatics to justify the unjustifiable

Given the fecklessness of US policy toward Israeli settlements, many observers could rightfully be excused for not even realising that the United States officially considered Israel's colonisation of Palestinian land to be illegal until yesterday.

After all, every administration since Johnson has issued desultory rhetorical opposition to ever-expanding Israeli settlement activity even as the United States continued to lavish on Israel nearly unconditional diplomatic and military support. One could reasonably expect a more robust policy response to combat illegal conduct.

Nevertheless, a 1978 legal opinion written by the State Department's legal advisor stated definitively that "the establishment of the civilian settlements in those territories [occupied by Israel in 1967] is inconsistent with international law."

Until yesterday, this legal opinion formed the basis of the United States' official legal approach to Israeli settlements, despite successive administrations politically acquiescing to their expansion. 

Pompeo's statement was significant because it formally invalidated this legal opinion. He noted that President Reagan disagreed with this legal opinion. He stated in 1981 that "as to the West Bank, I believe the settlements there - I disagreed when the previous Administration referred to them as illegal, they're not illegal. Not under the UN resolution that leaves the West Bank open to all people - Arab and Israeli alike, Christian alike."

Neither Reagan's policy statement nor Pompeo's remarks contained one shred of legal analysis

Out of the thousands of possible policy statements made by various administrations from which to choose, the Trump administration cherry-picked this one off-the-cuff, and profoundly factually wrong, remark to the press as a pretext to justify its new policy. 

"After carefully studying all sides of the legal debate, this administration agrees with President Reagan," Pompeo declared. "The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law."

It is noteworthy that neither Reagan's policy statement nor Pompeo's remarks contained one shred of legal analysis to back up these positions.

Israeli settlements clearly are illegal under international law notwithstanding the Trump administration's flight of fancy.

Article 49(6) of the Fourth Geneva Convention, which regulates military occupation and to which both the United States and Israel are signatories, states clearly that "the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." And the charter of the International Criminal Court defines the colonisation of occupied territory as a "war crime".

	[Click to enlarge]

In addition to overturning a four-decade-old legal opinion on Israeli settlements, Pompeo's statement was also alarming for at least two further reasons.

First, it seeks to codify a deference to Israeli unilateralism on final status issues that all previous administrations agreed needed to be negotiated directly between Israel and the Palestinians. 

Now, however, the Trump administration has made clear that the Israeli judicial system will be the only determinant of the scale of Israel's colonisation of Palestinian land. "The Israeli legal system affords an opportunity to challenge settlement activity and assess humanitarian considerations connected to it," Pompeo claimed. "Israeli courts have confirmed the legality of certain settlement activities and has concluded that others cannot be legally sustained."

Israeli settlements clearly are illegal under international law

True, in a few instances Israeli courts have ruled in favour of removing settlement outposts established without the government's authorisation and have rerouted segments of Israel's illegal West Bank wall. However, these are exceptions that prove the rule: Israeli courts have overwhelmingly supplied a judicial veneer of "legality" to Israel's illegal colonization of Palestinian land.

Second, and perhaps even more disturbing not only for Israeli-Palestinian issues but for US foreign policy in general, was Pompeo's wholesale disregard for and repudiation of international law as a paradigm for conflict resolution.

"Calling the establishment of civilian settlements inconsistent with international law hasn't worked. It hasn't advanced the cause of peace. The hard truth is there will never be a judicial resolution to the conflict, and arguments about who is right and wrong as a matter of international law will not bring peace," Pompeo argued.

To the extent that the Trump administration's erratic, Twitter-driven foreign policy can be said to have any coherence, this extraordinary statement by Pompeo may go down in history as the Trump Doctrine: international law is inimical to advancing peace and right and wrong is determined by power, not principle. 

Now, the Israeli judicial system will be the only determinant of the scale of Israel's colonisation of Palestinian land

Despite the radical legal implications of Pompeo's statement, he had the audacity to claim that the Trump administration is not "prejudging the ultimate status of the West Bank." This farce is similar to the claim made by the administration that moving the US embassy to Jerusalem did not prejudge the status of that contested city. 

In fact, the raison d'être of all Trump administration moves on Israeli-Palestinian policy is to prejudice and attempt to predetermine final status issues in Israel's favour. This was the Trump administration's motive in cutting off US funding to UNRWA as well: to try to make Palestine refugees disappear by taking away their life-sustaining services.

Now that the Trump administration has weighed in on Israel's behalf on the final status issues of refugees, Jerusalem, and settlements, only one major issue remains: borders.

Read more: Dangerous, immoral, but predictable: Palestinians react to US endorsement of Israeli settlements

With its new position on settlements, the Trump administration has now set the stage for backing Israel's unilateral annexation of large portions of the West Bank.

Such a move would attempt to permanently confine Palestinians to disconnected Bantustans under Israeli domination, which Israel and the United States would then recognise as a Palestinian "state", thereby seeking to resolve all issues to Israel's advantage and to the detriment of Palestinian rights.

Josh Ruebner is senior principal at Progress Up Consulting and author of Israel: Democracy or Apartheid State? and Shattered Hopes: Obama’s Failure to Broker Israeli-Palestinian Peace.

Follow him on Twitter: @joshruebner

Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.