US Position on Legality of Israeli Settlements Not Good for Peace

On November 18, US Secretary of State Mike Pompeo announced that the US would no longer view Israeli settlements in the West Bank as illegal. The decision breaks with a 1978 State Department finding that settlements were “inconsistent with international law.” The new policy is also at odds with the view of nearly every other nation in the world.

Alan Baker, who currently directs the international law program at the Jerusalem Center for Public Affairs and served as the legal counsel of Israel’s foreign ministry and the Israeli ambassador to Canada, offers an excellent legal analysis of the history and substance of the legal issues surrounding the matter of Israel’s West Bank settlements. Reading his assessment, one comes away with an appreciation of the complexity and unusual nature of this specific issue. While one may disagree with his arguments, they are succinct and largely objective.

Is Legality the Real Question?

Legality is really not the question, though many may wish to argue otherwise. One question left unanswered, for example, in this decision is whether Palestinians have a right to their own state with designated borders — many today still would argue vociferously that they do. There is also the question of what the two parties (and the rest of the international community) are prepared to do about the dispute, among the Middle East’s longest and seemingly most enduring. Israelis seem willing to wait it out for the time being, while Palestinians wallow in hopelessness as fewer nations take an interest in their plight.

The cases for the “one-state” versus “two-state” solution to this dispute — in her recent book, “The Levant Express,” Professor Micheline Ishay of the University of Denver also makes the case for a confederation solution — are still in play. However, Israelis and Palestinians alike are more uncertain than ever about which is preferred.

Fewer than half of both populations now support two states. These historically low levels of support reflect in part the belief among many Palestinians that the rising number of Israeli settlements in the West Bank makes a contiguous Palestinian nation unlikely if not impossible.

In addition, these declining polling figures for the two-state approach is also a reflection of the lack of substantive negotiations between Israelis and Palestinians. The two sides haven’t spoken since former US Secretary of State John Kerry’s efforts came to naught in the spring of 2014. Not only are the two sides not talking, but the international community isn’t doing much either. The Trump administration’s “deal of the century” has yet to see the light of day. And the uncertainty around Israel’s next government makes it highly unlikely that it will be presented before the US presidential election in 2020. After considerable hoopla, it may be destined to join the many other deals now sitting on the shelves of the State Department that never saw grand signing ceremonies.

Beyond Legality

The legality question masks some fundamental issues. For example, are Palestinians (and Arabs more generally) prepared to accept Israel as the national homeland for Jews — i.e., a Jewish state? Are Israelis prepared to accept a Palestinian state with defined borders? And if so, what degree of genuine autonomy would that state have? Are Palestinians prepared to commit to genuine, democratic institution-building so as to increase Israeli confidence in a stable, non-threatening Arab neighbor? Would the Palestinian state be willing to make the necessary concessions to satisfy Israel’s security concerns?

But the overriding question may actually be whether the two sides are willing to acknowledge the other side’s narrative. Their competing narratives have been repeated throughout the dispute dating back at least as far as Israel’s statehood declaration in 1948, if not before. The respective competing histories, legal arguments and statistical data are known and documented. Yet they are still debated and the US decision on the legality of settlements is but the latest iteration.

Only after acknowledging — as opposed to accepting — the other side’s narrative can each party begin to fully appreciate the passions and emotions that fuel their respective motivations. Those duel acknowledgments have not occurred. Acknowledgment and the attendant understanding then allow for empathy, more honest — though not necessarily less heated — and frank discussion, a full assessment of critical needs and wants from a negotiation, and ultimately for the hard compromises vital to reaching a solution.

Washington Isn’t Helping

That is why the latest announcement from Washington isn’t helpful. It’s not that massive settlement expansions will now be the order of the day. They won’t. Nor does it necessarily mean Israeli Prime Minister Benjamin Netanyahu will follow through with prior threats to annex some or all of the settlements in the West Bank. Chances are that he may have other issues on his plate after the recent news of an indictment against him for bribery and other violations.

The US announcement instead further entrenches the two sides in their respective narratives. It makes discussion and negotiation all the more difficult. It is not conducive to solving the problem — it inflames it. However legally sound the American argument may be, it effectively has thrown gasoline on the fire.

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This is especially important because, outside the two parties, the US will be the most critical player in reaching a solution. Its recent decision further cements the belief among Palestinians and most other countries that the US cannot play any moderating role. In fact, however, only the US can play that role. Now, it has severely compromised its chances of doing so again. This was already practically the case after its recognition in 2017 of Jerusalem as Israel’s capital and subsequent relocation of its embassy to Jerusalem. If the United States cannot play that role, it will make solving this dispute ever more difficult. Its participation is virtually a sine qua non.

Israel may be delighted with Washington’s decision. But if it is interested in truly untying the Gordian knot of peace in the Middle East, it shouldn’t celebrate the announcement. Israel, too, needs the Americans.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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