Israeli settlements in the West Bank do not violate international law. That is now America’s official view, repudiating the conclusions of a 1978 State Department memorandum. The four-page 1978 memo written by legal adviser Herbert Hansell was hardly a thorough study and cited no precedent for its key conclusions. Hansell concluded that Jews who had moved past the Green Line into disputed territory had somehow been “deported or transferred” there by the State of Israel.
A country cannot occupy territory to which it has sovereign title, and Israel has the strongest claim to the land. International law holds that a new country inherits the borders of the prior geopolitical unit in that territory. Israel was preceded by the League of Nations Mandate for Palestine, whose borders included the West Bank. Hansell’s memo fails to discuss this.
Moreover, Hansell wrote that the state of occupation would end if Israel entered into a peace treaty with Jordan, which it did in 1994, but the State Department neglected to update the memo.
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 UN ever claimed this was a violation of the Fourth Geneva Convention.
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.
The writer is a professor at George Mason University Law School.
See also Hansell’s 1978 Legal Opinion – Ricki Hollander
The 1978 legal opinion of Herbert J. Hansell, the State Department’s legal advisor, was reversed by President Reagan less than three years later. Hansell’s opinion was based, at least in part, on an arguably faulty interpretation of an earlier “finding” by Julius Stone. To support his opinion on settlements, Hansell cited Stone’s 1959 analysis, Legal Controls of International Conflict.
Yet the same Professor Stone – considered one of the premier legal theorists – subsequently wrote a book, Israel and Palestine: An Assault on the Law of Nations, that dealt with the specific legal aspects of the Arab-Israeli conflict. In it, he maintained that the effort to designate Israeli settlements as illegal was a “subversion…of basic international law principles.” (CAMERA)