On November 18, 2019, U.S. Secretary of State Mike Pompeo issued a statement indicating that after extensive legal review the current administration did not find Israel’s building of settlements in the West Bank “per se inconsistent with international law.” As expected, the usual cacophony ensued. Prime Minister Benjamin Netanyahu lauded the decision saying it “rights a historical wrong;” Palestinian negotiator Saeb Erekat issued a statement calling it evidence of the administration’s “attempts to replace international law with the ‘law of the jungle’;” Martin Indyk, former U.S. envoy for Israeli-Palestinian Negotiations, asked, “why slap the Palestinians in the face again?” The United Nations, United Kingdom and European Union issued their own statements reaffirming the illegality of the settlements under international law.
Although the Secretary’s statement was accessorized with legal nuance and qualification, it reflected a clear cold political choice: the United States was essentially giving Israel unfettered permission to build settlements in the West Bank, which, depending on how much more construction occurs, could result in de facto annexation. The equivocation seemed only to serve the purpose of giving the administration an “out” should the consequences not be pretty.
Particularly concerning was the secretary’s assertion that calling the settlements illegal had not advanced the cause of peace. His view rang hollow not only because it is unprovable, but also because it misunderstands the role of international law in the peace process. The relevant, though contested, law in this case being the binding Security Council resolutions that have declared the settlements as having no “legal validity” (SC Res. 446, 1979) and their building a “flagrant violation under international law” (SC Res. 2334, 2016) as well as Article 49 of the Fourth Geneva Convention (1949) which prohibits the forcible transfer of protected persons from occupied territory. These and other legal principles noted in the International Court of Justice’s 2004 Advisory Opinion on the construction of the wall have provided a rules-based framework (born of many years of hard diplomacy) designed to make the desired political, negotiated solution possible. The law is thus a part of the political process, serving the important purpose of constraining dangerous instincts and providing some semblance of stability in a volatile and complex situation.
Now, by effectively removing what remained of the legal pillar of the peace process, the decision has (1) confirmed the death of the two-state solution, leaving a morally-troubling and politically-questionable alternative in its stead and (2) sanctioned and given renewed moral legitimacy to the idea of rule by the powerful in a world that has slowly and painstakingly been trying to move beyond it. The decision tells our post-World War II world, in the words of Michael Doran in his latest piece in Foreign Affairs, “the strong do what they can, and the weak suffer what they must.” Had Secretary Pompeo added “get over it,” the message could not have been clearer.