On November 18, U.S. Secretary of State Mike Pompeo announced that “The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.” The statement was widely seen as a political gift from one politician mired in legal trouble to another, but it also caused an international furor as it marked a dramatic departure from previous U.S. statements on the legality of Israel’s West Bank settlements. The U.S. legal position was first publicly articulated in a State Department legal opinion from 1978, which concluded that the establishment of civilian settlements in the territories occupied by Israel in June 1967, which included East Jerusalem, was “inconsistent with international law.”
The conclusion of that legal opinion was subsequently endorsed by the UN Security Council in a number of resolutions, which reaffirmed that Israel is the occupying power in East Jerusalem, the West Bank, and the Gaza Strip. Consistent with these Security Council resolutions, the International Court of Justice (ICJ), the principal judicial organ of the United Nations, concluded in paragraph 120 of its 2004 Wall opinion “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.”
Given the virtual unanimity of legal opinion on the illegality of Israel’s settlements in all the territories occupied by Israel in 1967, over many decades, it was not surprising that Pompeo’s statement was widely criticized, not only by the Palestinian leadership, but also by close allies of the United States, including Canada and the United Kingdom. An omnibus resolution recently adopted by an overwhelming majority of the UN General Assembly confirmed that Israel remains the occupying power in East Jerusalem, the West Bank, and the Gaza Strip.
Significantly, Pompeo’s statement only referred to Israeli civilian settlements in the West Bank. Given that no legal opinion has been published by the Trump administration justifying the change of policy, it is difficult to assess whether the reference to the West Bank includes East Jerusalem. Prior to President Trump’s statement on Jerusalem, the consistent U.S. position had been that East Jerusalem was part of the West Bank; that is, territory occupied by Israel in the 1967 war. As former U.S. Secretary of State John Kerry explained, “every U.S. administration since 1967, along with the entire international community, has recognized east Jerusalem as among the territories that Israel occupied in the Six-Day War.” Accordingly, Israeli settlement activity in East Jerusalem had been condemned in all previous UN resolutions concerning Jerusalem, which the U.S. either voted in favor of, or abstained from. These included resolution 298 adopted during the Nixon administration which criticized “transfer of populations” into the occupied section of the “City of Jerusalem” (the U.S. voted in favor of the resolution seven years before the State Department published its legal opinion on the settlements); resolution 465 adopted during the Carter administration, which determined that “Israel’s policies and practices of settling parts of its population and new immigrants” into the Palestinian territories, “including Jerusalem,” was a violation of the Fourth Geneva Convention (the U.S. voted in favor of the resolution); and resolution 2334, on which the Obama administration abstained, which reaffirmed that “the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity.”
One of the most intriguing aspects of Pompeo’s announcement on the settlements was its timing: the new policy was announced only three days after the U.S. deadline had passed for the submission of its counter-memorial to the International Court of Justice in Palestine v. United States of America, in which Palestine is challenging the legality of the Trump administration’s decision to move the U.S. embassy from Tel Aviv to Jerusalem. The case could be significant, as the ICJ might say something about the status of the territories occupied by Israel since 1967, and whether a Palestinian state exists where Israel has established over two hundred settlements in East Jerusalem and the West Bank.
The announcement by Pompeo also came a week after the European Court of Justice had decided that Israel’s presence in the West Bank was that of “an occupying power” and “not … a sovereign entity” in a case on the mislabeling of settlement products in the European Union. This followed an earlier decision by a Canadian Federal Court, which decided that wines from Jewish settlements in the West Bank should not carry labels that say they are from Israel as it would mislead consumers.
In other words, not only is there a near-consensus of legal opinion that the establishment of settlements in the West Bank is unlawful, Pompeo’s statement notwithstanding, but their illegality has now reached the courts whose decisions could have detrimental economic consequences for Israel’s settlement enterprise. This is especially significant as there are concerns in Israel that European and Canadian consumers may begin to exercise a measure of discretion on ethical grounds in deciding whether to purchase products labeled as originating from Israeli settlements in the West Bank.
There is a further, even more alarming, problem for the supporters of Israel’s settlement enterprise: the ongoing preliminary examination being undertaken by the Prosecutor of the International Criminal Court (ICC) into the situation in Palestine. In January of this year, The Jerusalem Post published an article on the efforts of the Zionist Organization of America (ZOA) to persuade Congress and the U.S. State Department “to rescind its famous 41-year old legal opinion that West Bank settlements are inconsistent with international law.” This was a reference to the State Department’s 1978 legal opinion. According to the Post, the head of the ZOA was concerned that the legal opinion “could be the basis of any potential war crimes suit in front of the International Criminal Court at The Hague with respect to settlement activity.”
As the representative arm of the World Zionist Organization (WZO) in the United States, the ZOA appeared to have been acting at the behest of the Israeli government in seeking to overturn U.S. policy towards the settlements. According to an official Israeli government report dated March 8, 2005 (and another government report dated July 9, 2012), the authorities involved in the settlement’s planning and construction include “the Settlement Division of the World Zionist Organization.” A report published by B’tselem explains that the WZO’s Settlement Division is comprised of “an equal number of ministers from the relevant government ministries and members of the WZO Executive.” In 2013, the report of the Human Rights Council’s independent international factfinding mission to investigate Israeli settlements, described the WZO as a “Quasi-governmental organization, funded by the Government’, which was also responsible for providing “funds to the settlements.” Accordingly, the close connections between the Israeli Government and the WZO Settlement Division, which are both involved in the West Bank settlement enterprise, could expose them to investigation at the ICC.
Although the ICC only has jurisdiction to examine settlement activities undertaken in Palestine’s territory since April 1, 2015 (when Palestine’s accession to the Rome Statute entered into force), the Prosecutor could still consider Israel’s settlement activities before that date if she concludes that it amounts to a continuing crime. But even if the Prosecutor were to take a restrictive view, and only look at Israel’s settlement activities after 2015, it is well documented that the Israeli government has accelerated its settlement activities in the last five years. Indeed, in the last year alone, data showed the highest first-quarter spending on settlements in a decade.
In 2017 the Netanyahu government even supported the adoption of the Settlement Regulation Law, whose objective is to “legalize” Israeli settlements built on private Palestinian land, by way of retroactive expropriation, planning and zoning regulations. Article 1 of the Regulation Law makes it clear that its primary objective is “to regulate Israeli settlement in Judea and Samaria [the West Bank] and to allow its continued establishment and development” (emphasis added). The law appears to have endorsed the controversial findings of the 2012 Levy report, which recommended, inter alia, that security legislation be amended to enable Israelis to purchase West Bank land directly, rather than through a corporation registered in the territory. Prior to making this recommendation, the report concluded that “the provisions of the 1949 Fourth Geneva Convention, regarding transfer of populations, cannot be considered applicable, and were never intended to apply to the type of settlement activity carried out by Israel in Judea and Samaria.”
The Settlement Regulation Law aims to facilitate the annexation of occupied territory and would therefore appear to fall squarely within Article 8.2(b) of the Rome Statute, which defines war crimes as serious violations of the laws and customs applicable in international armed conflict when committed as part of a plan or policy, and which extend to “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies …”
When the Settlement Regulation Law was being debated by the security cabinet before it was debated in the Knesset, Netanyahu and Defense Minister Avigdor Lieberman were specifically warned by the Attorney General Avichai Mendelblit and his deputy that the passage of the bill might lead to claims against Israel at the ICC. Apparently, Netanyahu and Lieberman agreed with their advisers, and said that if the “Regularization Bill” was passed, “the ICC prosecutor could decide to accept the Palestinian complaint at the end of her preliminary inquiry, and open a full investigation against Israeli leaders for their involvement in decisions concerning settlement construction.” Despite knowing that the Prosecutor was looking into the potential of criminal liability regarding the settlements, a few days later, Netanyahu supported the first vote in favor of the bill, which became law on February 6, 2017.
The realization that the illegality of the settlements could have serious consequences for the Israeli government, following the adoption of Security Council resolution 2334, and for its affiliated agencies and organs involved in their planning and construction, appears to have spurred the Israeli government into action. This is especially as the Israel Supreme Court has never ruled on the legality under international law of settlements built on public land in the West Bank, for justiciability reasons, as Israeli law and jurisprudence do not prohibit them. (With regard to the establishment of settlements on private Palestinian land, the Supreme Court only ruled in the Elon Moreh case (1979) that they were unlawful if their establishment could not be justified for a military purpose). Therefore, for the vast majority of the settlements, there can be no question of “complementarity” in the ICC’s consideration of whether Palestine’s case is admissible under Article 17 of the Rome Statute, as Israel’s courts do not appear to be willing or able to prosecute the crime. The reference to the hundreds of settlements and unauthorized “outposts” established by Israel in East Jerusalem and the West Bank since 1967 in the report on preliminary examination activities for 2019, published by the Office of the Prosecutor, might indicate that it is leaning towards classifying the settlements as a continuing crime.
Given the close relationship between U.S. Ambassador to Israel David Friedman and the settler lobby, which has explicitly called for applying Israeli building and construction laws to the West Bank without needing approval from Israel’s Civil Administration, the “repudiation” of the State Department’s 1978 legal opinion by the Secretary of State should be understood in the light of the very real concern in Israel that the Prosecutor might open an investigation into the activities of the Israeli government, as well as its affiliated agencies and organs involved in the settlement enterprise. Perhaps the settler lobby hopes that the public articulation of this revised legal opinion, combined with the aggressive stance of the Trump administration towards the ICC in general, and Trump’s robust support for Netanyahu, will deter the Prosecutor from taking further steps.
If this is the case, they are likely to have been disappointed by the Prosecutor’s latest warning to the Israeli government about annexing the Jordan Valley. In the words of Roy Schondorf, Israel’s Deputy Attorney General for International Affairs, Netanyahu’s call to annex the Jordan Valley “would expose all Israeli officials who work in the West Bank to prosecution [at the ICC], including local and regional council heads.”