(December 22, 2019 / JNS) I want to heartily congratulate you on your bold statement of policy declaring that “the Trump administration is reversing the Obama administration’s approach towards Israeli settlements” and firmly stating that “the establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.” This, along with other positive steps taken by this administration with regard to Israel, helps clarify U.S. policy and further strengthens the special relationship between Israel and the United States.
I am concerned, however, that some may take your statement as a mere change of policy and not an explicit reversal of previous legal positions taken by other administrations on this sensitive issue. Most important, the statement did not expressly reverse or revoke the “Hansell Memorandum” of 1978, in which the State Department’s legal adviser at that time opined that Israeli settlements in the occupied territories violate international law. See “Letter of the State Department Legal Adviser Concerning the Legality of Israeli settlements in the Occupied Territories,” April 21, 1978. I call upon you to expressly revoke this outdated legal opinion at your earliest convenience.
Aside from aligning the State Department’s policy position with its legal views, rescission of the Hansell Memorandum is well-warranted on legal grounds. It was, and remains, incorrect as a matter of international law. The legal arguments undermining the memorandum have been widely stated. See, e.g., “The Israeli Settlements Were Never Illegal,” Richard Cravatts, The Times of Israel, Nov. 20, 2019; “Pompeo Busts the Occupation Myth,” Eugene Kontorovich, Wall Street Journal, Nov. 19, 2019.
In his article, Cravatts emphasizes that “U.S. Secretary of State Mike Pompeo finally stated what was obvious to many legal scholars and others who have assessed the facts on the ground.”
Hansell’s memo took two analytic missteps. First, it concluded that Israel was an “occupying power” in the West Bank. Next, it invoked an obscure provision of the Fourth Geneva Convention, which says the “Occupying Power shall not deport or transfer parts of its civilian population into the territory it occupies.” Neither conclusion is correct or applicable to the present circumstances.
Israel is not an “occupying power” under international law. As professor Kontorovich explains: “Under international law, occupation occurs when a country takes over the sovereign territory of another country. But the West Bank was never part of Jordan, which seized it in 1949 and ethnically cleansed its entire Jewish population. Nor was it ever the site of an Arab Palestinian State.”
In short, Israel did not take over the disputed territory from a lawful holder of the property in question. Rather, it acquired the territory during the course of a defensive war waged by Jordan which had itself illegally occupied the disputed lands in Israel’s 1948 War of Independence. Under these circumstances, the following principle of internal law is applicable: “[W]here the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.” (“What Weight to Conquest,” American Journal of International Law, Vol. 64.)
Even on its own terms, the 1978 Memorandum’s conclusions no longer apply. Because occupation is part of the law of war, Hansell wrote, the state of occupation would end if Israel entered into a peace treaty with Jordan. In 1994 Jerusalem and Amman signed a full and unconditional peace treaty, but the State Department neglected to update the Hansell memo in light of that event.
Moreover, any question of legal validity under international law cannot overlook developments since the 1978 memorandum, especially the fact that, in 1993, the Palestinian-Authority, under Yasser Arafat, signed the Oslo Accords with Israel. This was an internationally recognized agreement to divide jurisdiction of the territory between Israel and the newly created Palestinian Authority. Under this agreement, Israelis have full jurisdiction to live and build on the designated 60 percent of the territory. Therefore, any building in this territory is completely legitimate under international law through the Oslo Agreement.
Further, the Hansell Memorandum chiefly relies upon Article 49 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, which states: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the occupying power or to that of any other country … are prohibited,” and in the sixth paragraph: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
As we have seen, Israel is not an “occupying power” under international law. In addition, Article 49 was intended to outlaw the Nazi practice of forcibly transporting populations into or out of occupied territories to death and work camps and thus cannot be applied to Israel because Arab residents were neither forcibly transferred, nor were Israelis intended to (nor do they) displace Arab residents of the territories. Arabs continue to live in these territories and their population continues to grow. Thus, in no way can it be said that Israel “transferred” part of its civilian population to the West Bank. The case of Jews voluntarily establishing homes and communities in their ancient homeland, and alongside Palestinian communities, does not match the kind of forced population transfers contemplated by Article 49(6).
In sum, in addition to your recent laudatory proclamation of a change of policy on this matter, I urge you to expressly revoke pertinent previous legal positions of the Department, including the Hansell Memorandum, which might be referenced in an attempt to undermine your significant policy change. Thank you for taking this last step to clarify the administration’s position.
Steve Frank is an attorney, retired after a 30-year career as an appellate lawyer with the U.S. Department of Justice in Washington, D.C. His writings on Israel, the law and architecture have appeared in publications including “The Washington Post,” “The Chicago Tribune,” “The Jerusalem Post,” “The Times of Israel” and “Moment” magazine.
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