In the dying days of Bush’s America, when the culture war was a light skirmish over gays getting hitched in Massachusetts, ABC aired a primetime drama called Brothers and Sisters. Sally Field was the liberal matriarch of a glossy family divided by politics but united by the struggles of being rich, white and trapped in a soapy remake of the West Wing. It was simpering. It was derivative. It was camp-as-all-get-out. I never missed a single episode.
In one episode, Calista Flockhart, who played an Ann Coulterish talking-head, returns home from flaming a Democrat on TV and is greeted by her lefty Uncle Saul: ‘Great show last night. As usual, you were right about Israel and wrong about everything else.’ That’s how I feel about the Trump administration: it’s horrific on everything that doesn’t involve the words ‘the only true democracy in the Middle East’.
Trump has come through for Israel yet again – something, in the interests of full disclosure, I repeatedly warned he wouldn’t. Following a year-long legal review, Secretary of State Mike Pompeo announced that the United States government does not consider Israeli settlements in Judea and Samaria (the so-called ‘West Bank’) to be illegal. Pompeo remarked:
“‘After carefully studying all sides of the legal debate, this administration agrees with President Reagan. The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.’
Anyone wishing to gauge the wisdom of this decision need only look at who has lined up to condemn it: Jeremy Corbyn, the New Israel Fund, and the EU. Much of the hysteria centres on the misconception that Pompeo reversed long-standing US policy.
But while the Carter administration adopted the position that settlements were illegal in 1978, this was reversed by Ronald Reagan in 1981. Thereafter the US maintained a balanced position of discouraging settlements without branding them illegal. That was until the dying days of the Obama administration when John Kerry reverted to the Carter stance. Far from ‘reversing 41 years of US policy’ as is being claimed, Pompeo has restored the stance maintained for at least 35 of the last 41 years.
The assertion that Israeli settlements ‘violate international law’ – when the same legal instruments are not applied to other territorial disputes – is an attempt to judicialise political preference (which, come to think of it, is a useful definition for a fair old whack of ‘international law’). Consult Eugene Kontorovich, Eugene V Rostow and Julius Stone for scholarly analysis but the basic points are as follows:
In 1922, the League of Nations created a mandate for ‘the establishment in Palestine of a national home for the Jewish people’ in recognition of ‘the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country’. The borders of Mandate Palestine broadly encompassed contemporary Israel, as well as Judea, Samaria and Gaza.
The Arabs’ refusal to accept the UN Partition Plan for Palestine meant those borders didn’t change, a situation that was similarly unaltered by the temporary armistice line agreed at the conclusion of the Israeli War of Independence. UN Security Council Resolution 242, adopted after the 1967 Six-Day War, refers to ‘inadmissibility of the acquisition of territory by war’ but the territories in question had been acquired by Egypt and Jordan by means of war 18 years earlier. The rightful sovereign within the borders established by the Mandate remained - and remains – Israel.
This interpretation, which draws on Kontorovich and others, is in the minority among legal scholars only insofar as it applies the same doctrines and conventions of international law to Israel as are applied to other territorial disputes. Kontorovich has documented this in relation to disputes ranging from Northern Cyprus to Nagorno-Karabakh.
Rather than assert a new principle of international law, the United States has restored a lifeline to a marginalised but rigorous interpretation. Those who oppose it should note that, in its previous existence, this lifeline barely managed to keep the Kontorovich/Rostow/Stone position afloat, let alone pull it into shore. That is why the hysteria is so misplaced. This announcement doesn’t immediately change a whole lot: Israel already considered settlements legal, the international community and the legal professoriate aren’t going to alter their views, the Israeli Supreme Court will continue determining which settlements are consistent with Israeli law and which are not, and nothing will be determined about the final status of Judea and Samaria. The absence of a Palestinian state remains a matter of the Palestinian leadership refusing to accept one.
Israel will feel it is being treated more fairly but the US has inadvertently created a problem, too. In saying settlements are not illegal – though perhaps unhelpful – it is tacitly acknowledging that Israel has some legal rights in Judea and Samaria.
Israeli right-wingers should stop to think through what this means. If the United States says the settlements are not illegal, why aren’t they under Israeli sovereignty? Netanyahu has promised to do just this, including in the Jordan Valley and Pompeo’s announcement will place him under renewed pressure to keep his word. He is too weak these days to resist internal foes and should he remain in office much longer, he will have to deliver. In doing so, he will be making a Palestinian state less and less viable while implicitly hingeing Israel’s sovereignty on the permission of the United States, rather than the Mandate and subsequent instruments.
This is more than a philosophical predicament. The United States, on whose warrant Israel implicitly bases its actions in Judea and Samaria, is a United States that could soon be presided over by Elizabeth Warren or Bernie Sanders and, thereafter, by leaders more hostile still.
The danger is not that this United States revokes its stance on settlements or demands Israel vacate, but that it concludes a two-state solution is no longer feasible and accepts Israeli sovereignty from the Jordan to the Mediterranean. The Israeli right’s dream would have been willed into being but at a fatal price, for the US would expect – would demand – equal citizenship for all residents within this newly expanded state.
Democracy is hard-wired into the American national soul and not even the evangelicals who adore Israel would tolerate denial of the vote to its three million new Arab residents (five million if you include Gaza). Thus could the modern Jewish homeland disappear before reaching the centenary of its re-establishment.
Donald Trump may be right about Israel but he’s not necessarily good for it.