Photo Credit: flash 90
The Flag of Israel flying in Jerusalem with the Temple Mount in the distance

{Reposted from the MEF website}

Secretary of State Mike Pompeo announced on Monday that the United States will no longer consider Israel’s settlements in the West Bank an inherent violation of international law. This policy shift comes in the wake of last week’s ruling by the European Court of Justice (ECJ), laudably criticized by the Trump administration, holding that labels for Israeli food produced in settlements must adequately inform EU consumers of their origin in “occupied territory.”

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The legality of the settlements, in fact, largely hinges on whether the disputed territories are occupied. Article 49(6) of the Fourth Geneva Convention prohibits an occupying power from deporting or transferring its population into occupied territory. While there are compelling arguments that this does not even cover the kind of voluntary relocation undertaken by Israelis moving over the Green Line, the prohibition is outright inapplicable if no occupation exists. There is good reason to believe this is the case here.

There are several points of reference for understanding the territories’ legal status. Security Council Resolution 242, passed in the aftermath of the Six Day War, suggests that Israel’s territorial gains resulting from war are invalid. This rule, however, is not absolute.

The English version of the resolution calls for the “withdrawal of Israel armed forces from territories occupied” rather than “the territories” or “all the territories” occupied. This point may seem like pedantic pandering, but as made clear by former Secretary of State Dean Rusk, the resolution was carefully written as to leave open the possibility that Israel would in fact keep some of the land.

Admittedly, the United States intended that these acquisitions occur through a negotiated framework, not unilateral Israeli action. Previously, however, the United States, joined by much of the rest of the world, recognized Israel’s forceful acquisition of territory.

Left: Israeli soldiers in Beersheba, October 1948. Right: Negev Brigade soldiers raise an improvised Israeli flag in Eilat, March 1949.

When Israel declared independence on May 14, 1948, its borders looked far different than those accepted by the international community today. Beersheba, Israel’s most populous city in the south, was not captured from the Egyptian army until October 1948. Eilat, which became Israel’s Red Sea port and resort town, was acquired in March 1949.

These places have never been considered occupied nor has their acquisition through war been deemed illegitimate (unless one holds Israel’s existence itself as illegitimate). No one calls Eilat a settlement. Why, then, is the opposite true for adjacent territories captured in 1967, which if captured in 1949 would unquestionably be part of Israel?

For this disparate treatment to make sense, those maintaining that the disputed territories are occupied should be able to identify a substantial change in international law, or legal status of the territories, during the intervening years. When one looks closely, however, none can be found.

International law derives from treaty and custom, and many scholars look to the Fourth Geneva Convention in making the case that the territories are occupied. This was the path taken in the International Court of Justice’s (ICJ) advisory opinion on Israel’s security wall. Curiously, however, the treaty neither defines occupation nor expands the scope of which territories qualify for such designation. The ICJ’s reading of the treaty is therefore beyond creative. It’s outright dishonest.

Perhaps sensing the deficiencies in the court’s reasoning, Judge Awn Al-Khasawneh issued a concurring opinion grounded in customary international law. Such laws emerge when a sufficient number of states continuously adhere to an unwritten norm because they deem adherence legally obligatory. Noting the longstanding international consensus, as seen through a multitude of UN resolutions against Israel, Judge Al-Khasawneh deemed the disputed territories occupied.

But there’s a problem with this line of reasoning: it only tells us what customary norms emerged after Israel acquired the territory. It does not inform us as to the law at the time of Israel’s acquisition. In other words, Judge Al-Khasawneh seemingly imposed an ex post facto law on Israel, something unconscionable in modern jurisprudence.

Besides, changes in customary international law cannot be imposed on states against their will. Even if custom now deems places like the disputed territory eligible for occupation, Israel is a persistent objector, a state that has opted out of a customary obligation.

While an argument could be made that Israel might have initially considered otherwise, as it briefly issued a military proclamation applying the humanitarian laws of occupation to the disputed territories, its position ultimately solidified that the territories were not occupied.

As last week’s ECJ decision exemplifies, the idea that the disputed territories are occupied is still taken as gospel. A closer look at the region’s history and relevant international law, however, casts significant doubt on this dogma. Without an occupation, the legal case against the settlements collapses.

Previously, the Trump Administration stopped referring to the territories as occupied in State Department documents, but leading official Michael Kozak indicated that there was no official shift in policy. With Secretary Pompeo’s Monday announcement, it’s time to make things official.

Matthew Mainen is a Washington-resident fellow at the Middle East Forum and graduate of Stanford Law School. Follow him on Twitter”

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