Content from the Brookings Doha Center is now archived. In September 2021, after 14 years of impactful partnership, Brookings and the Brookings Doha Center announced that they were ending their affiliation. The Brookings Doha Center is now the Middle East Council on Global Affairs, a separate public policy institution based in Qatar.
When Secretary of State Mike Pompeo recently announced an official change to U.S. policy regarding Israel’s settlements in the West Bank, saying the U.S. no longer finds them to be “inconsistent with international law,” it was unclear if he — or whoever else was behind the policy — thought through its full implications.
If the Trump administration endorses annexation, a position in line with recognizing the legality of settlements, then the framework of the Israeli-Palestinian conflict changes and the issues of sovereignty and political rights will become front and center.
The issue of the law
Certainly, the policy change is in keeping with three years of Trump administration actions in regard to Israel-Palestine, including recognizing Jerusalem as Israel’s capital and moving the U.S. embassy to the city, endorsing Israel’s 1981 annexation of the Golan Heights, and implementing multiple punitive measures against the Palestinians — a veritable wish list of the rightwing proponents of a Greater Israel.
While on the surface the objective of the announcement appeared to be eliminating the legal reference point on settlements, particularly in terms of future negotiations, in the absence of any peace process the purpose is more likely to set the stage for endorsing Israeli annexation of settlements, which Prime Minister Benjamin Netanyahu has promised to do. Yet the implications go much further. In particular, if the U.S. no longer views the settlements as illegal under international law, then one might conclude that it views them as legitimate or even rightly under Israeli sovereignty. And that has meaning well beyond the settlements themselves.
Since the announcement was made, most observers have limited their attention and concern to the implications on international law in general, and on the two-state solution in particular. While both are important factors, neither is as far-reaching for this conflict as the issue of sovereignty.
Without question, the new U.S. stance on settlements undermines international law, which is clear on the illegality of an occupying power transferring its population into occupied territory. The applicability of this tenet of the Fourth Geneva Convention to Israel-Palestine has been upheld by near-universal international consensus since the occupation began in 1967, including by the U.N. Security Council and the International Court of Justice.
Despite Pompeo’s rather tepid attempt to limit the scope of the policy change to Israel alone, and the fact that Israeli settlements have persisted in contravention of international law for decades, this decision will likely reverberate widely. Laws cannot be applied selectively and arbitrarily without undermining the system of law as a whole. And while international law is not underpinned by a concrete mechanism of enforcement, there is a marked difference between not enforcing the law and choosing to interpret it as one sees fit, especially at a time when Russia will look to justify its hold on Crimea, India on Kashmir, and so on.
Nonetheless, the opinion of a single state — even the most powerful one — does not alter the law itself. As Rupert Colville, the spokesman for the U.N. Commissioner on Human Rights, responded to the Trump administration announcement, “a change in the policy of one state does not modify existing international law nor its interpretation by the International Court of Justice and Security Council.”
If the rest of the world continues to adhere to the principle that the settlements are illegal, the decision will likely do more to undermine U.S. standing and leadership than the Geneva Convention or the law itself.
The issue of the two-state solution
The other focus of concern is for the two-state solution, especially among the Democratic political establishment, which responded to Pompeo’s announcement by directing outrage at the Trump administration for further eroding the opportunity of partition. Yet chances for dividing the land into two states have already been undermined tremendously during administrations of both parties, to the point that the two-state solution may no longer be viable.
And while settlements certainly represent the largest physical obstacle to the establishment of a Palestinian state, the Trump decision hardly changes anything on this front. The U.S. has consistently failed to take action against settlements in order to protect the prospect for the establishment of a Palestinian state. Even at the height of the peace process in the 1990s, the Clinton administration permitted continued settlement-building to the point that the settler population tripled despite ongoing negotiations. While various administrations, such as those of George H.W. Bush and Barack Obama, pushed back against settlements, their efforts were never sustained and settlement-building ultimately carried on.
Indeed, Trump’s recognition of the settlements means little compared to allowing Israel to build those settlements over a 52-year period. Likewise, the U.S. has continued to provide aid to Israel to the tune of more than $3 billion annually, as well as unflinching military and diplomatic support — including from official sanctions over the settlements at the U.N. (The exception — the Obama administration’s abstention on U.N. Security Council Resolution 2334 in December 2016 — was too little, too late in my view.) The U.S. has also allowed its private citizens to give tax-free donations to charities and organizations that support the settlements. So, while the Trump administration has gone a step further, it is not as drastic a departure from past administrations as it would seem.
The issue of sovereignty
What does change in a significant way, however, is what the recognition of settlements means for the status of the territory and of the government that administers it. While the new U.S. policy does not alter the legal status of the Palestinian territories, Israel’s prime minister welcomed the change and said that it “reflects an historical truth — that the Jewish people are not foreign colonialists” in the West Bank. Yet if Israeli settlements are not illegal, and Israelis are able to rightfully settle the land under Israel’s political and military control, then what does that mean for the stateless Palestinians who also live there and for Israel’s 52-year rule over them? In other words, if it is not military occupation, which undoubtedly prohibits the type of settlement that Israel has engaged in, then it is something else and the world should demand that Israel clarify its position and intentions over the territory.
It is, in part, the limbo of endless occupation that has doomed the Palestinians to political purgatory.
It is, in part, the limbo of endless occupation that has doomed the Palestinians to political purgatory, without a state of their own but without citizenship in any other state. It is what differentiates Palestinians from so many other ethnic groups that live as minorities in the ethnic-national states of others. Take the Kurds, for example, who lack a state of their own but who are at the very least citizens of Turkey, Syria, Iraq, Iran, and elsewhere.
This murkiness has also allowed Israel to gradually take physical possession of the land through a colonial process under the cover of temporary occupation, without having to offer political rights to the native inhabitants of the land who live side by side with Israeli settlers. Yet if Israel is the recognized sovereign, then it can’t take legal possession of the land without all of the inhabitants. If it doesn’t want the Palestinians, then the land needed to create a viable alternative political entity for them to fulfill their rights is needed. Israel simply cannot have it both ways.
The territory conceived of for a Palestinian state, the West Bank, and Gaza Strip was already going to be a mini-state that would struggle to support the full Palestinian population. Nonetheless, Israel has systematically chipped away at that territory, and in the process eliminated the possibility for two states.
This puts the onus for fulfilling the political rights of the Palestinians back on Israel. Of course, the Palestinian desire for self-determination in an independent state is also a factor, and Palestinian agency must be considered. But this appears to be changing as the possibility of statehood becomes increasingly remote. While the Palestinian political leadership still fully embraces a two-state solution, the majority of public opinion has shifted away from it. That could be a game changer, especially as the Netanyahu-led government in Israel looks ready to begin annexing the settlements, at the very minimum.
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