Tuesday, December 17, 2019

Dear Secretary of State; Dear Congressman - Settlements on the Hill

The Congressmen's letter:

The Honorable Mike Pompeo
U.S. Department of State
2201 C Street NW
Washington, D.C., 20520

Dear Mr. Secretary:

We write to express our strong disagreement with the State Department's decision to
reverse decades of bipartisan U.S. policy on Israeli settlements in the occupied West Bank by repudiating the 1978 State Department legal opinion that civilian settlements in the occupied territories are "inconsistent with international law." This announcement, following the administration's decision to move the U.S. Embassy to Jerusalem outside of a negotiated agreement; its closure of the Palestinian mission in Washington, D.C. and U.S. Consulate in Jerusalem; and its halting of aid Congress appropriated to the West Bank and Gaza, has discredited the United States as an honest broker between Israel and the Palestinian Authority, severely damaged prospects for peace, and endangered the security of America, Israel, and the Palestinian people.

U.S. administrations from both parties have followed the 1978 guidance because
settlement expansion into the occupied West Bank makes a contiguous Palestinian state inviable, jeopardizing Israel's future as a secure, democratic homeland for the Jewish people. The State Department's unilateral reversal on the status of settlements, without any clear legal justification, therefore has offered a tacit endorsement of settlements, their expansion, and associated demolitions of Palestinian homes. In addition, one day after the Department's decision, Prime Minister Benjamin Netanyahu moved to advance a bill to annex the Jordan Valley. As annexation and the United States' approval thereof would destroy prospects for a two-state solution and lead to a more entrenched and possibly deadlier conflict, this decision erodes the security of both Israel and the United States.

This State Department decision blatantly disregards Article 49 of the Fourth Geneva
Convention, which affirms that any occupying power shall not "deport or transfer parts of its
own civilian population into the territory it occupies." In ignoring international law, this
administration has undermined America's moral standing and sent a dangerous message to those who do not share our values: human rights and international law, which have governed the international order and protected U.S. troops and civilians since 1949, no longer apply. If the U.S. unilaterally abandons international and human rights law, we can only expect a more chaotic and brutal twenty-first century for Americans and our allies, including the Israeli people.

Given these serious implications, we strongly urge you to reverse this policy decision

The response:

The Honorable
Andy Levin
House of Representatives
Washington, DC 20515

Dear Mr. Levin:

I am in receipt of your letter of November 21 in which you criticize the State Department's determination that the establishment of Israeli civilian settlements in the West Bank is not categorically inconsistent with international law - a decision which you contend reverses “decades of bipartisan US policy on Israeli settlements.” You further argue. in conclusory fashion, that this determination “blatantly disregards Article 49 of the Fourth Geneva Convention.”

While  I appreciate your interest in this important issue, I could not disagree more with those two foolish positions. I will briefly respond to your principal points.

First, the State Department's determination did not reverse any policy with regard to Israeli settlements. Rather, the State Department reversed a legal determination by Secretary Kerry. made during the waning days of the Obama Administration, that the establishment of settlements was categorically inconsistent with international law. That determination was made in a failed attempt to justify the Obama Administration's betrayal of Israel in allowing UNSCR 2334 — whose foundation was the purported illegality of the settlements and which referred to them as “a flagrant violation” of international law — to pass the Security Council on December 23, 2016.

Second, Secretary Kerry's determination did not enjoy bipartisan consensus. Rather, it received bipartisan condemnation, including from leading Democrats in both chambers of Congress. Indeed, an overwhelming number of Senators and House Members, on both sides of the aisle, supported resolutions objecting to the passage of UNSCR 2334. Secretary Kerry's statement departed from decades of bipartisan consensus, reverting to an approach last advanced by the Administration of President Carter in 1978 whose position was reversed by the next succeeding president, Ronald Reagan.

While you are free to fixate on settlements as a barrier to peace. you are simply wrong in referring to that view as being subject to bipartisan agreement. No less a Democratic spokesman than the Senate Minority Leader publicly stated at his AIPAC address on March 5, 2018, that “it's sure not the settlements that are the blockage to peace.”

Third, you assert that we have “blatantly disregarded” the Fourth Geneva Convention. The Trump Administration has thoroughly reviewed and analyzed this issue and we respectfully disagree. Among the numerous sources and authorities supporting our view. I commend to you the writings of Eugene Rostow, who left his position as Dean of the Yale Law School to become Under Secretary of State for Political Affairs in the Johnson Administration. Dean Rostow represented the United States in the peace talks that followed the 1967 Six Day War and was responsible for the drafting of UNSCR 242, which even today remains the primary architecture for the Israeli-Palestinian peace process. Dean Rostow stated in 1983 that “Israel has an unassailable legal right to establish settlements in the West Bank.”

Fourth. US policy with regard to the Israeli-Palestinian conflict largely has been consistent for decades and remains so: we support and seek to facilitate direct negotiations between the parties towards the goal of a just and lasting peace agreement. Regrettably. as many experts concur, UNSCR 2334 and the related self-justifying remarks by Secretary Kerry have saddled the Trump Administration with a significant handicap in advancing the cause of peace by erroneously injecting into the conflict an incorrect and largely irrelevant legal component. This in turn has led to the hardening of positions. especially on the Palestinian side. By way of example. the closing of the Office of the General Delegation of the Palestine Liberation Organization in Washington D.C.. which you criticize, was mandated by Federal statute following President Abbas’ announcement before the United Nations General Assembly on September 20, 2017, that the Palestinian Authority “called on the International Criminal Court . . . to prosecute Israeli officials for their involvement in settlement activities . . . I doubt that President Abbas. with apparent animus towards Israel. would have taken such an inappropriate and unlawful position absent the cover mistakenly granted under UNSCR 2334 and Secretary Kerry's unfortunate speech.

The Trump Administration is committed to working tirelessly to advance the cause of peace between Israelis and Palestinians. We approach the issue pragmatically and diplomatically, but we eschew the erroneous positions of international law that have gained favor in the past decades. The Obama-Kerry departure from America’s historic support of Israel has done nothing to make peace more attainable. The State Department's recent determination that the establishment of Israeli civilian settlements in the West Bank is not per se illegal is an important step in the peace process and we are confident that it creates the right platform for further Progress.

We hope this information is helpful to you. Please let us know if we may be of further

Michael R. Pompeo
Secretary of State



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