(CNSNews.com) – Secretary of State Mike Pompeo’s announcement last week that the U.S. does not view Israeli settlements in disputed territory as inherently illegal under international law is sparking some partisan ill feeling, after almost half of the House Democratic caucus signed a letter urging Pompeo to reverse course.
The letter sent Friday was signed by 107 of the 233 Democrats in the House. They included nine of the party’s 25 Jewish members, among then Rep. Andy Levin of Michigan, who organized the initiative.
The signatories charged that the Trump administration policy shift – rejecting a 1978 Carter administration legal opinion that the settlements were “inconsistent with international law” – amounted to a reversal of “decades of bipartisan U.S. policy.”
The letter also claimed that, until Pompeo’s announcement, “U.S. administrations from both parties have followed the 1978 guidance.”
But as CNSNews.com reported last week, administrations since Carter, while sharply critical of the settlements, did not in fact publicly declare them to be illegal.
The outgoing Obama administration effectively changed that approach in late 2016, first by not vetoing a U.N. Security Council resolution that called the settlements “a flagrant violation under international law,” and then in a speech that sought to defend that controversial decision.
Strong support for Israel has historically been bipartisan in the House of Representatives, but after 46 percent of the Democratic members signed the letter, Republican Jewish Coalition executive director Matt Brooks provocatively tweeted on Sunday, “There is only 1 pro-Israel party and it’s the GOP.”
That prompted a response from Democratic Majority for Israel, which said Brooks’ statement was both “Factually untrue” and “Harmful to Israel by suggesting to its enemies that there is division when there is actually unity.”
Last week, Jewish Democratic Council of America executive director Halie Soifer criticized Pompeo’s statement, tweeting that President Trump “doesn’t understand what it means to be pro-Israel.”
(Politicians across Israel’s mainstream political spectrum praised the Trump administration decision.)
Leading Democratic 2020 presidential hopefuls were also quick to condemn the announcement, with Sen. Bernie Sander (I-Vt.) accusing President Trump of “pandering to his extremist base, Sen. Elizabeth Warren (D-Mass.) vowing to reverse it, and South Bend mayor Pete Buttigieg calling it “the latest in a pattern of destructive decisions that harm our national interests.
Sen. Amy Klobuchar (D-Minn.) accused Trump of “playing politics and taking us further away from a path to a two-state solution,” and former Vice President Joe Biden said the decision was “about undercutting Israel’s future in service of Trump’s personal politics.”
In recent weeks Sanders, Warren and Buttigieg have voiced a willingness to link U.S. aid to Israel to Israeli policies including settlement building.
The basis for the charge that Israelis living in cities, towns and villages in the disputed West Bank violates international law is one paragraph in article 49 of the Fourth Geneva Convention,
which reads, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
That paragraph is invoked time and again when settlement building is condemned – including in the Carter administration’s 1978 legal opinion, in multiple U.N. documents and resolutions, and in Friday’s Democratic House members’ letter to Pompeo.
Some legal experts challenge the validity of that assessment, however.
The West Bank, claimed by the Palestinians for an independent state, was captured by Israel in 1967. Less than 19 years earlier, Jordan had seized the territory during the Arab war to destroy the newly-declared state of Israel. (Jordan’s occupation was recognized as legal only by Britain and Pakistan.)
Prior to 1949, the West Bank – known more accurately as Judea and Samaria – was part of the territory mandated by the League of Nations to Britain after the end of the World War I (in a mandate that guaranteed the right of Jewish settlement throughout the territory.) And before that, it was a tiny sliver of the Ottoman Empire.
“Under international law, occupation occurs when a country takes over the sovereign territory of another country,” Eugene Kontorovich, professor of law at George Mason University, wrote after Pompeo’s announcement.
“But the West Bank was never part of Jordan, which seized it in 1949 and ethnically cleansed its entire Jewish population. Nor was it ever the site of an Arab Palestinian state.”
“Moreover, a country cannot occupy territory to which it has sovereign title, and Israel has the strongest claim to the land,” added Kontorovich, who is also head of international law at the Kohelet Policy Forum in Jerusalem.
He also noted that the author of the 1978 Carter administration memo himself opined that the relevant Geneva Convention article would stop being applicable to Israel in the West Bank if and when Israel and Jordan entered into a peace treaty.
Kontorovich recalled that Israel and Jordan signed a full peace agreement in 1994, “but the State Department neglected to update the memo.”
Kontorovich has researched and written extensively on the policies of occupation in other situations around the world. Only in the case of Israel., he says, has the international community insisted on the applicability of the Geneva Convention provision.
“Almost every prolonged occupation since 1949 – from the Allies’ 40-year administration of West Berlin to Turkey’s 2016 occupation of northern Syria – has seen population movement into the occupied territory. In none of these cases has the U.S., or the United Nations, ever claimed a violation of this Geneva Convention provision,” he argued.
“Mr. Pompeo’s action shows the U.S. understands that we can’t have one international law for one country and another for the rest of the world.”