US Secretary of State Mike Pompeo said 18 November that Washington “no longer considers Israeli settlements as inconsistent with international law”. The announcement came as no surprise, but still caused a tempest. After the Trump administration took several steps that contradict established US positions since the 1970s on the Palestinian-Israeli conflict, nothing can shock Arabs, Palestinians or even the world. President Trump recognised Jerusalem as the capital of Israel, and the legitimacy of Israeli annexing Syria’s Golan Heights. He also refused to recognise the numbers of Palestinian refugees recorded by UNRWA, and shut down the offices of the Palestinian Authority in Washington.
Trump took all these decisions in less than one year, and all contradict the positions of previous US administrations since at least 1978, as well as established international norms and UN resolutions. Thus, Pompeo’s announcement on the legitimacy of Israeli settlements on occupied Palestinian land stirred indignation but not astonishment, given Trump’s previous decisions on the rights of Palestinians.
Nonetheless, Trump’s insistence that his decisions on Jerusalem, the Golan and UNRWA do not negate or contradict calls for Palestinians and Israelis to sit at the negotiating table to reach peace is confusing. Pompeo also seemed to be talking out of both sides of his mouth when he noted the policy shift should not be viewed as the US “prejudging the ultimate status of the West Bank”.
The timing of Trump’s decisions coincides with a crisis within the administration due to its inability to present the political portion of the so-called “Deal of the Century” to settle the Palestinian-Israeli conflict, ostensibly because there has not been an elected government in power in Israel for seven months.
To unpack some of this confusion, one can look at decisions by Trump as an attempt to encourage Israel to begin talks with the Palestinians, since now Tel Aviv is reassured that any future negotiations will not be bound by international resolutions or laws, which Israelis claim champion the Palestinians and ignore Israeli “security concerns” (or what the Jewish state views as Jewish historic and religious rights in some areas in the West Bank and Jerusalem especially).
Trump and his administration believe Palestinians must understand that by refusing to negotiate with Israel but along the lines of established international principles is politically unsound. International, regional and Arab conditions that once helped Palestinians uphold international law and resolutions as the basis for negotiations with Israel no longer exist, and refusing talks will hurt their position on the ground due to expanding Israeli settlement building in the West Bank. Instead, they should be realistic and begin by recognising that to reach peace, create their own statelet and economic prosperity for their people, they must first recognise Israel’s security needs, and accept what is available or possible, not what is their legitimate and world-recognised right.
This explains why Trump talks about recognising Jerusalem as the capital of Israel, but at the same time insists that defining the city’s limits in the east and west is contingent on negotiations between the Palestinians and Israelis. The US’s decision recognised the status quo, but is open to supporting any outcome the two sides agree on during negotiations.
The same is true of Pompeo’s announcement since it recognised the legality of Israeli settlements at a time when Palestinians themselves resort to Israeli courts to halt settlement building on land owned by Palestinian citizens. This means Palestinians, too, recognise that the construction or removal of settlements is subject to Israeli law. At the same time, Pompeo said the decision does not influence the final status of the West Bank, which will be decided during negotiations between the two sides.
Pompeo also used the term “civilian settlements”, which is new and unusual, as if to make a distinction between settlements built for civilian purposes and others for military or security ones. Does that mean that Pompeo is saying the US will defend residential settlements, but not the aspirations of the head of the transitional government, Prime Minister Binyamin Netanyahu, to annex settlements and areas in the Jordan Valley under the pretext of military and security concerns?
Pompeo’s claim that the US State Department first confirmed that recognising the legitimacy of settlements did not violate international law, and his use of the term “civilian settlements”, could imply that any attempt by Israel to annex the Jordan Valley will be difficult for the US to defend since it is premised on security issues and strongly contradicts a founding principle of international law banning the annexing of territories by force.
As for settlements built on occupied land to shelter citizens of the aggressor state, it remains controversial since most of the land that Israeli settlements were constructed on in the West Bank were not private property, but government land subject to Ottoman laws until the start of the British Mandate, which adopted more laws on the state of land not owned by individuals.
Israel could protest that isolated settlements, and those built on land owned by Palestinian citizens, were stripped of their legal status by the Israeli Supreme Court and were contested by Palestinian owners who showed deeds and ownership documents that sometimes predated the creation of the State of Israel.
The dubious arguments that Pompeo used to justify his decision will remain controversial because international law and the peace process between the Palestinians and Israel since the Oslo Accords have viewed settlements as illegal. Condemnation of Israel and the US will continue, especially since the latter shifted its position on the legality of settlements. It is doubtful, however, that Palestinians, Arab and Islamic countries, distracted with their own domestic situations and facing serious security threats from terrorist groups, can change Washington’s mind.
All Palestinians can do now is rely on the EU upholding a decision by the European Court of Justice on 12 November to label all goods made in Israeli settlements as such, and not allow them to be marketed as Israeli products. If EU countries implement this ruling, it could seriously hurt the economies of Israeli settlements. It would also strengthen the EU’s established position that does not recognise any changes to Israel’s 1967 borders, except areas of agreement between Palestinians and Israelis. This could, to some extent, counterbalance the latest US decision.
*A version of this article appears in print in the 21 November, 2019 edition of Al-Ahram Weekly.