Secretary of State Mike Pompeo announced on Monday that the United States is abandoning a Carter-era bureaucratic decision that Israeli settlements – the homes of Jews living in Judea and Samaria – are illegal under international law. Pompeo’s statement represents a dramatic reversal from the Obama administration, which under the auspices of then-Secretary of State John Kerry, publicly held that Israeli settlements constituted a violation of international law.
Pompeo’s action is particularly notable coming shortly after the European Court of Justice ruled the EU was required by international law to label Israeli products from the West Bank as made in “settlements” in “occupied” territory. That decision, like the Carter-era policy Pompeo rejected, applied a unique rule, crafted solely for Israel, and masquerading as international law. Pompeo’s latest statement serves as a reminder that the Trump administration does not bow to anti-Israel sentiment positing itself as “international law,” no matter what shape it arrives in.
In challenging the international law consensus, Pompeo noted that the labeling of Israeli civilian settlements as “inconsistent with international law” has not actually forwarded the objective of long-term peace. Pompeo’s declaration is also an affirmative nod to what a host of others in the international community, particularly Professor Eugene Kontorovich of the Antonin Scalia Law School at George Mason University, have been asserting in opposition for decades—the inhabitance of Jews in territories recaptured in the Six-Day War in 1967 does not violate international law.
The outrage over Israeli Prime Minister Benjamin Netanyahu’s September announcement regarding the potential application of Israeli civil law in the Jordan Valley mirrors the current outrage being lodged at Pompeo’s declaration. Both Netanyahu and Pompeo’s assertions, however, find solid grounding in international law.
A nation cannot annex land over which it already has sovereign claims, and Israel has valid territorial claims to Judea and Samaria – or to what the international community refers to as the “West Bank,” a name given to the region after Jordan claimed to have annexed it in the 1950’s.
Furthermore, under international law occupation occurs when a country assumes control over a territory currently under the sovereignty of another country. But Judea and Samaria were never part of Jordan. To the contrary, they were territories that Jordan itself had seized in 1949 and whose entire Jewish population Jordan then ethnically cleansed.
Judea and Samaria, the lands currently in dispute, were part of the initial borders of the Jewish state created by the League of Nations Mandate partition in 1922. Jordan conquered Judea and Samaria from Israel in Israel’s War of Independence, a war of aggression launched by Jordan and aimed at annihilating the Jewish state. At the close of the war, it was nearly unanimously held that neither Jordan nor Egypt harbored any legitimate claim of sovereignty over their newly captured lands. Given other countries refused to recognize Egypt and Jordan’s claims as legitimate, Israel’s claims of sovereignty over the land stayed intact.
So when Israel recaptured Judea and Samaria in the defensive Six-Day War in 1967, its reassertion of control marked a liberation of the territories, given Israel’s original title to the land had never actually been broken. The recapture of Judea and Samaria was under the auspices of Article 51 of the UN Charter, which allows a nation state to defend itself and, among a host of scholars, has also been recognized as asserting that self-defense may necessitate the non-aggressor assume control over territory previously held by the aggressor.
The dispute over Judea and Samaria, unlike any other territorial dispute, has persisted for over half a century, largely because of multiple Arab rejections of a deal that would have included Israeli withdrawal and Palestinian statehood west of the Jordan River. It would be unjust–nay, bizarre– to then argue that this intransigence on the part of Arab powers imposes on Israel an obligation to maintain the area as Judenrein as the Jordanians left it. Rejectionism has consequences.
Not only did Pompeo’s decision delineate an understanding of the legal realities of the conflict, but it also recognized the autonomy of the Jewish state and the capacity of its courts to adjudicate territorial issues for itself. When it comes to discussing Israel, there’s a strong hubris within both political and academic circles that manifests itself as baseless moral outrage, followed by an assertion that the international community—steeped in anti-Zionism, if not outright anti-Semitism—knows what is best for the state of Israel.
As the anti-Israel army assembles its blogs, op-eds, and tweets, blindly condemning the Jewish state, ask these righteous individuals why the international law they cite is never applied to to the occupation of Western Sahara or Cyprus or Abkhazia and South Ossetia. This is not just a matter of double standards or hypocrisy. If the “international” rule of law that is said to apply to Israel never applies anywhere else, how do we know it is international law?
