The Legality Of Israel’s Settlements

ATLANTA, GA - SEPTEMBER 30: Former president Jimmy Carter prior to the game between the Atlanta Falcons and the Cincinnati Bengals at Mercedes-Benz Stadium on September 30, 2018 in Atlanta, Georgia. (Photo by Scott Cunningham/Getty Images)

Next month will mark the third anniversary of the Obama Administration’s parting shot at Israel in the U.N. This was when Obama and company first failed to vote against the U.N. Security Council resolution demanding an end to Israeli settlement-building and followed up that slap in the face against Israel by sending Secretary of State John Kerry to give an anti-settlements tirade of a speech at the Dean Acheson Auditorium at the State Department headquarters in Foggy Bottom on December 28, 2016.

The Trump Administration has the opportunity to neutralize the nonsense that was at the foundation of Kerry’s attack on Israeli settlements just as it did the question of Israel’s rights to Jerusalem and the Golan Heights. The Administration seems unaware of the ease with which it can remove the stick that was used to hit Israel.

While the December 28 Obama Administration attack came from Secretary of State John Kerry, the ammunition came from Jimmy Carter’s State Department.

Here is what Kerry said “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.”

The Trump Administration can make that “change.”

What happened in 1978 was that an attorney named Herbert Hansell, at the specific request of the Carter Administration, authored a memorandum stating that the Israeli settlements violate international law.

This memorandum has not yet been rescinded or updated, it is therefore still valid and this “Hansell Memorandum” was what Kerry was referring to in his 2016 speech.

Now is an ideal time for pro-Israel activists in the United States to work on this issue and put the U.S. State Department on the side of truth. President Trump can simply order the Memorandum to be rescinded and thus the U.S. government will reject the erroneous claims that the settlements are illegal.

It is really just that simple.

And it is the correct thing to do as well.

The settlements are not illegal according to any international law. That they are is only an opinion and not a fact. And that this opinion against the settlements has been allowed to stand is, 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.”

It is worth noting 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”.

Rescinding this one opinion will mean the U.S. will see Israeli settlements as legal. This cannot be overemphasized.

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 not alone in this 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 saying “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]

So much time and effort is spent in defensive and reactive positions by U.S. Zionist organizations and this stance not only allows Israel’s critics the advantage of controlling the discussion and grounding it in the terms they choose, but perhaps more importantly, this weak posture doesn’t change minds. The enemies of Israel were rendered impotent when the Trump Administration acted on Jerusalem and the Golan Heights. Critics of Israel could only react and their reaction had no effect on the situation whatsoever. Rescinding the “Hansell Memorandum” is another opportunity to strike a blow against the siege machinery that Israel’s enemies utilize. Contact the White House comment line today at 202-456-1111 and ask that “Hansell Memorandum” be rescinded. Do it today!

At the time of the anti-Israeli settlements vote at the U.N. an unnamed senior Israeli government official was quoted by Reuters as saying “President Obama and Secretary Kerry are behind this shameful move against Israel at the U.N.” It’s time to remove this shame.


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