…President Obama’s challenge in Cairo in June 2009 that the “United States does not accept the legitimacy of continued Israeli settlements” laid down a strong marker. But it has seemed designed to continue the flimsy distinction between the “illegitimacy” of settlements and their “illegality” under the Fourth Geneva Convention and the practice of all U.S. presidents for the past 30 years of avoiding condemnation of Israeli settlements as “illegal” in the U.N. and elsewhere under international law.
It was not always this way. After the 1967 war and until 1981, all U.S. administrations condemned settlements as a violation of the Fourth Geneva Convention. In 1978, an opinion by the State Department’s Legal Advisor formalized this, echoing an opinion in 1967 by Theodor Meron, legal counsel to the Ministry of Foreign Affairs, which all Israeli governments have rejected, that “settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention” — which Israel had signed.
But in 1981 President Reagan disagreed with his predecessors, saying in a press conference that settlements were “not illegal,” and the former U.S. policy lapsed. Reagan was influenced by advisors who supported Israel’s right to the Occupied Territories and others who thought IDF-defended settlements would protect Israel’s security. Nevertheless, neither the Reagan administration nor any successor adopted a new legal analysis supporting the legality of settlements, and the 1978 State opinion remains on the books.
The U.S. policy since 1981 of finessing the legal issue, blocking U.N. action, and, with rare exceptions, soft-pedaling U.S. opposition to settlements until President Obama’s strenuous effort to win a freeze, has been very costly. At the time of Reagan’s about-face, there were only 16,000 settlers in the West Bank, compared to over 300,000 today, and 59,000 in East Jerusalem compared to over 200,000 today. This huge growth makes an Israeli-Palestinian peace vastly more difficult, even as Egypt and Jordan have made peace, the Palestinian leadership has opted for a two state formula, and the Arab League has offered normal relations to Israel in return for a negotiated peace.
The traditional U.S. policy of blocking the U.N. and application of international law, thus protecting Israel from its own dangerous policies of occupation, is a dysfunctional anachronism. It does no favor to Israel, whose future as a Jewish, democratic state is at risk. It contradicts the Obama administration’s own opposition to settlements, and it forfeits a useful lever in persuading Israel to change its policy. Rather than bowing to domestic political pressures, and clinging to the view that the U.N. and international law have no role to play, the U.S. should rejoin the virtual international consensus on these issues, stand up for its own declared interests, and vote for the proposed Security Council resolution.