Trump Endorses Controversial, Unprecedented Policy on Settlements Held by Previous Administrations

Support for U.N. resolution calling Israeli settlements illegal made in final days of Obama presidency

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November 19, 2019

Secretary of State Mike Pompeo announced Monday that the United States had reversed a Carter administration-era State Department legal opinion calling Israeli settlements in the West Bank "inconsistent with international law." The decision, apparently long in the works, comes days after a ruling by an E.U. court requiring Israeli products made in disputed territories to carry special labels—a decision widely seen as creating a legal pretext for the E.U.'s eventual adoption of boycotts on Israeli goods.

In his remarks, Pompeo said international law is ambiguous on the question of whether settlements are illegal and added that "there will never be a judicial resolution to the conflict, and arguments about who is right and who is wrong as a matter of international law will not bring peace."

Liberal critics are condemning the announcement as unprecedented—but in fact the U.S. position that settlements are illegal under international law only dates to the final days of the Obama administration. The Trump administration is bringing U.S. policy in line with the positions held by successive Republican and Democratic administrations dating back to 1967, when Israel acquired the West Bank in the Six Day War.

It was only in late December 2016, after President Trump won the presidential election and weeks before Inauguration Day that the Obama administration supported a U.N. Security Council resolution declaring settlements a violation of international law. The move was widely condemned by pro-Israel groups and even many Democrats as a spiteful, abrupt, and illegitimate policy shift by an administration days before its departure from the White House.

In fact, during the Obama administration in 2011, U.N. ambassador Susan Rice vetoed a similar resolution declaring settlements illegal, consistent with longstanding U.S. policy to both reject their illegality and to block anti-Israel activism in the Security Council. Until the administration reversed itself in late 2016, it regularly referred to settlements as "illegitimate," but not illegal.

Before that, in 2004, the United States exchanged letters with the Israeli government explicitly endorsing Israel's retention of major West Bank settlement blocs in any peace deal with the Palestinians. As part of Israel's plan to withdraw from Gaza the next year, President Bush wrote to Prime Minister Ariel Sharon that:

In light of new realities on the ground, including already existing major Israeli population centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949, and all previous efforts to negotiate a two-state solution have reached the same conclusion. It is realistic to expect that any final status agreement will only be achieved on the basis of mutually agreed changes that reflect these realities.

And before this exchange of letters, successive administrations, including those of Ronald Reagan and Bill Clinton, refused to call settlements "illegal."

So the Trump administration's announcement broke no new ground, and in fact restored U.S. policy to a bipartisan status quo ante. Despite the howls of protest by progressives, including Sen. Bernie Sanders (I., Vt.), who accused Trump of "isolating the United States and undermining diplomacy by pandering to his extremist base," the announcement will actually promote diplomacy, such as it is possible with a Palestinian Authority that is currently boycotting the administration. U.S. ambassador to Israel David Friedman tweeted that the announcement "will advance the cause of peace by creating an appropriate level playing field for future talks."

By adopting the Palestinian position as its own, the Obama administration preemptively designated all of the West Bank—including half of Jerusalem, the Western Wall, and settlement blocs that will never be part of a Palestinian state—as Palestinian territory illegally controlled by Israel and therefore beyond compromise. The endorsement also promoted one of the worst tendencies in Palestinian politics—the fantasy of an eventual total victory over Israel, without the need for negotiation or compromise.

Like so many other moves, including recognizing Jerusalem as Israel's capital and recognizing Israeli sovereignty over the Golan Heights, Pompeo's announcement was far less an innovation than a recognition of obvious reality. And just as before, liberal Israel critics responded with predictions of violence, catastrophe, and isolation that have not materialized, and will not materialize.