Commentator and author Caroline Glick wrote “U.S. Secretary of State Mike Pompeo’s statement Monday that Israeli settlements are not illegal per se is the most significant shift in U.S. Middle East policy in the past generation. Jerusalem’s status as Israel’s capital has been a matter of U.S. law since 1996.” And Glick is right.
We at The Jewish Voice are proud that just days before the Secretary of State’s announcement we published the first Jewish community newspaper editorial on the legality of Israel’s settlements in memory. We are overjoyed that our stance on this vitally important issue was published just as the Trump Administration was making its final decisions about its announcement. At this time we wish to thank the team at Herut North America and World Herut under the leadership of Karma Feinstein Cohen and Moshe Phillips for sharing their research on the so-called Hansell Memorandum (more on this below) and the legal status of the settlements that was utilized for our editorial.
Secretary Pompeo’s announcement is both a triumph for common sense and a much needed reminder that Jews must not be barred from living wherever they wish. The dark days when Jews are told where they can and cannot live must be thrown into the dustbin of history forevermore.
The Jewish Voice was not alone in our call for the Trump Administration act quickly. Before the Secretary’s statement the Israel National News / Arutz Sheva website published an op-ed on November 15 titled “Opinion: Critics Doubt Legal Character of ECJ” by Yardena Cohen that also brought attention to the fact that Israel’s Deputy Foreign Minister. Tzipi Hotovely, herself a legal scholar, stated “The State of Israel regards Jewish settlement of Judea-Samaria as legal under international law” on Twitter. Bezalel Smotrich, Minister of Transportation, also identified the same Carter Administration era memorandum that The Jewish Voice did as something that must be rescinded. The Jewish Voice editorial was quoted extensively throughout the Arutz Sheva op-ed.
The Trump Administration has neutralized the nonsense that was at the foundation of Secretary John Kerry’s attack on Israeli settlements that he infamously made in December 2016. Just as the question of Israel’s rights to Jerusalem and the Golan Heights has now been established by the US government so has the legality of the settlements.
Let’s recall what Kerry said in 2016“virtually every country in the world other than Israel opposes settlements. (…) In fact, this resolution simply reaffirms statements made by the Security Council on the legality of settlements over several decades. It does not break new ground. In 1978, the State Department Legal Adviser advised the Congress on his conclusion that Israel’s government, the Israeli Government’s program of establishing civilian settlements in the occupied territory is inconsistent with international law, and we see no change since then to affect that fundamental conclusion.”
What happened in 1978 was that a State Department attorney named Herbert Hansell, at the specific request of the Carter Administration, authored a memorandum stating that the Israeli settlements violated international law.
This memorandum had not yet been rescinded or updated, it was therefore still valid up until Secretary Pompeo and the Trump Administration corrected that historical injustice.
The settlements are not illegal according to any international law. That they are was only one opinion among many and not a fact. And that this U.S. State Dept. opinion against the settlements was allowed to stand was, in itself, morally wrong. As Hansell related to The Washington Post in 2009: “I don’t think it has ever been rescinded or challenged by any legal officer of the United States Government. It still stands as the only definitive opinion of the U.S. government from a legal standpoint.”
What Kerry ignored in 2016, and what many commentators and critics of Israel like J Street are right now ignoring, is the fact that President Ronald Reagan disagreed with Hansell’s memorandum and opinion as Hansell himself also explained to The Washington Post in 2009. “Ronald Reagan expressed his opinion but…he was obviously not a lawyer”.
This is not a sudden shift in U.S. policy. This is a continuation of what President Reagan saw as what should be U.S. policy.
Harvard Law School’s Professor Alan Dershowitz in a notable op-ed that appeared in the January 26, 2011 edition of the Wall Street Journal and was titled “The U.N. gangs up on Israel – again” stated that “I have opposed Israel’s civilian settlements in the West Bank since 1973, (but)…[t]here is a big difference between a government action being unwise, which the Israeli policy is, and being illegal, which it is not.”
President Reagan and Professor Dershowitz were never alone in their position that Israeli settlements are legal.
The late Prof. Eugene Rostow, a longtime dean of Yale Law School and Under Secretary of State for Political Affairs under President Lyndon Johnson also criticized the Hansell Memorandum in 1980 writing “it is impossible seriously to contend, as the United States government does…that Israeli settlements in the West Bank are illegal.” [Source: Yale Journal of International Law, Volume 5 Issue 2; 1980]
Our task now is to stand on the side of right and double-down. We must be louder than J Street on the legal right of Jews to settle in Judea and Samaria. We must work harder on Capitol Hill than J Street does. And we must start now.
To read the previous JV editorial on the legality of settlements, please click on this link: https://thejewishvoice.com/2019/11/13/the-legality-of-israels-settlements/