The November 18, 2019 announcement by US Secretary of State Mike Pompeo that Israeli “settlements” are not illegal reverses the conclusion of a lawyer advising President Jimmy Carter’s State Department in 1978. A First One Through (FOT) deconstruction of that opinion follows.
The letter was compiled by Herbet Hansell, a lawyer from Jones Day who provided occasional legal consulting services to the State Department. His letter of April 21, 1978 set the framework for Carter to label the settlements as “illegal,” an opinion not shared by any other U.S. president before or since.
“Dear Chairmen Fraser and Hamilton:
Secretary Vance has asked me to reply to your request for a statement of legal considerations underlying the United States view that the establishment of the Israeli civilian settlements in the territories occupied by Israel is inconsistent with international law. Accordingly, I am approving the following in response to that request:”
FOT COMMENT: It is important to note that the conclusion was already given to Hansell, that the “United States view that the establishment of the Israeli civilian settlements in the territories occupied by Israel is inconsistent with international law.” Any good lawyer trained at arguing either side of a case can find a rationale to give his employer the backup required. Hansell did his best in the letter.
“The Territories Involved
The Sinai Peninsula, Gaza, the West Bank and the Golan Heights were ruled by the Ottoman Empire before World War I. Following World War I, Sinai was part of Egypt; the Gaza strip and the West Bank (as well as the area east of the Jordan) were part of the British Mandate for Palestine; and the Golan Heights were part of the French Mandate for Syria. Syria and Jordan later became independent. The
West Bank and Gaza continued under British Mandate until May 1948.”
FOT: All of these statements are true to some extent. The issue is that these parcels of land like the “West Bank” were non-entities at the end of World War I. The definition of what they were to become were artifices of war and armistice lines.
Further, there is no discussion of the purpose of the British Mandate of Palestine. There was no mention that the Mandate specifically stated in Article 4 that it “shall facilitate Jewish immigration under suitable conditions and shall encourage… close settlement by Jews on the land,” nor Article 15 that “No person shall be excluded from Palestine on the sole ground of his religious belief.” The Mandate not only considered Jews living in Gaza and what would become the “West Bank” as legal, it ENCOURAGED Jews living throughout the land.
“In 1947, the United Nations recommended a plan of partition, never effectuated, that allocated some territory to a Jewish state and other territory (including the West Bank and Gaza) to an Arab state. On 14 May 1948, immediately prior to British termination of the Mandate, a provisional government of Israel proclaimed the establishment of a Jewish state in the areas allocated to it under the Jewish plan. The Arab League rejected partition and commenced hostilities. When the hostilities ceased, Egypt occupied Gaza, and Jordan occupied the West Bank. These territorial lines of demarcation were incorporated, with minor changes, in the armistice agreements concluded in 1949. The armistice agreements expressly denied political significance to the new lines, but they were de facto boundaries until June 1967.”
FOT: The summary of the 1947 partition plan leaves out the principle that Greater Jerusalem and Greater Bethlehem were designed to be a “corpus separatum” and internationally-administered. Its legal position is completely unique and distinct from the “West Bank,” a horrible omission by Hansell.
Another shortcoming is that Hansell’s observation that the UN “recommended a plan of partition, never effectuated,” never enters his calculus for the remainder of his letter. If the UN simply “recommended” the partition, it had no legal validity. Therefore, when Israel declared itself an independent state at the end of the British Mandate, its borders would be set as the FULL territory, including Gaza and what would become the “West Bank” under international law known as Uti possidetis juris.
The reason that partition was never effectuated, was that the Arabs rejected it completely, as they considered the entirety of the land to be Arab with no space for a Jewish state. This makes the issue one about a civil war over a single tract of land, not one between two autonomous countries. Therefore the only international laws which would pertain would be regarding rules of war and protecting civilians, not laws dealing with incursions into foreign territory.
Even if one were to look past these failures and try to see Hansell’s point of view, the historic background still falls flat. Jordan did not simply “occupy” the West Bank; it evicted all of the Jews in 1949, annexed the territory in 1950 and then granted all non-Jews citizenship in 1954. The Arabs ethnically cleansed Judea and Samaria and then renamed the area east of the 1949 Armistice Lines the “west bank of the Jordan River,” which, over time, was shortened to the commonly used term “West Bank.” Such racist and antisemitic behavior – coming just a few years after the Holocaust no less! – should never be embraced.
Additionally, Israel secured additional land in the 1948-9 war beyond what was proposed for the Jewish State in the 1947 Partition Plan. The world accepted this additional territory both because Israel acquired the land in a defensive battle and that the Armistice Lines were expressly viewed as subject to change by both parties (the Arabs assumed Israel would shrink and the Zionists believed Israel sovereignty would expand). The principle of acquiring more land in a defensive battle in 1967 similarly applies.
Lastly, not only did the Palestinians not declare an independent Arab state, there was no more land to even consider as independent, as Egypt assumed control of Gaza and Jordan annexed the West Bank. When Hansell considers the Israeli counter-party in 1978, is he thinking about the Jordanians? Palestinians (who had accepted Jordanian citizenship)?
“During the June 1967 war, Israeli forces occupied Gaza, the Sinai Peninsula, the West Bank and the Golan Heights. Egypt regained some territory in Sinai during the October 1973 war and in subsequent disengagement agreements, but Israeli control of the other occupied territories was not affected, except for minor changes on the Golan Heights through a disengagement agreement with Syria.”
FOT: Completely absent from the narrative is the not-inconsequential point that Israel was the DEFENSIVE PARTY during the June 1967 war. While it is a matter of debate whether Israel’s preemptive attack on Syria and Egypt which had threatened to attack Israel and amassed troops on the border was defensive, there is no question that Jordan attacked Israel first. Just as Israel acquired additional land in a defensive battle in 1949 which was endorsed by the world, so too was Israel’s acquisition of the West Bank.
Some seventy-five Israeli settlements have been established in the above territories (excluding military camps on the West Bank into which small groups of civilians have recently moved). Israel established its first settlements in the occupied territories in 1967 as para-military ‘nahals’. A number of ‘nahals’ have
become civilian settlements as they have become economically viable.
“Israel began establishing civilian settlements in 1968. Civilian settlements are supported by the government, and also by non-governmental settlement movements affiliated in most cases with political parties. Most are reportedly built on public lands outside the boundaries of any municipality, but some are built on private or municipal lands expropriated for the purpose.”
FOT: Stating that settlements are “supported” by the Israeli government is misleading. Israel “supports” all civilians in the West Bank – including Arab towns – with various services ranging from protection to electricity and water. Hansell’s caveat that most settlements are “reportedly” built on public lands seems peculiar, as though he doubted the veracity of the report to add that “some are built on private or municipal lands.”
1. As noted above, the Israeli armed forces entered Gaza, the West Bank, Sinai and the Golan Heights in June 1967, in the course of an armed conflict. Those areas had not previously been part of Israel’s sovereign territory nor otherwise under its administration. By reason of such entry of its armed forces, Israel established control and began to exercise authority over these territories; and under international law, Israel became a belligerent occupant of these territories.”
FOT: Hansell now delves into the legal analysis of the settlements, but his omissions in the background now become toxic to the analysis.
- There is no factual mention that Israel was without question the defensive party regarding Jordan in the West Bank, yet Hansell declares that Israel was the “belligerent” party.
- Hansell noted that the 1949 Armistice Lines had no “political significance.” Therefore, the area one foot to the right or left of the the armistice lines was only theoretically Israel and Jordan. While the world recognized the sovereignty of Israel to the west of the line, the entirety of the UN (except Pakistan and the UK) did not acknowledge Jordan’s annexation of the West Bank. These Arabs also never declared an independent state as noted above.
- In short, Israel entered into a disputed territory which was an integral part of the Palestine Mandate from which Jews were expelled in a defensive war 18 years earlier in a defensive maneuver.
“Territory coming under the control of a belligerent occupant does not thereby become its sovereign territory. International law confers upon the occupying State authority to undertake interim military administration over the territory and its inhabitants; that authority is not unlimited. The governing rules are designed to permit pursuit of its military needs by the occupying power, to protect the security of the occupying forces, to provide for orderly government, to protect the rights and interests of the inhabitants, and to reserve questions of territorial change and sovereignty to a later stage when the war is ended. See L. Oppenheim, 2 International Law 432-438 (7th ed., H. Lauterpacht ed., 1952); E. Feilchenfield, The International Economic Law of Belligerent Occupation 4-5, 11-12, 15-17, 87 (1942); M. McDougal & F. Feliciano, Law and Minimum World Public Order 734-46, 751-7 (1961); Regulations annexed to the 1907 Hague Convention on the Laws and Customs of War on Land, Articles 42-56, 1 Bevans 643; Department of the Army, The Law of Land Warfare, Chapter 6 (1956) (FM-27-10).
‘In positive terms, and broadly stated, the Occupant’s powers are (1) to continue orderly government, (2) to exercise control over and utilize the resources of the country so far as necessary for that purpose and to meet his own military needs. He may thus, under the latter head, apply its resources to his own military objects, claim services from the inhabitants, use, requisition, seize or destroy their property, within the limits of what is required for the army of occupation and the needs of the local population.”
FOT: Even while Hansell labels Israel as a “belligerent occupant” as if Israel aggressively attacked and entered a sovereign nation’s territory, he comments that such party has the authority to manage the security of the territory and “provide for orderly government” and oversee the inhabitants until “the war is ended.” Has the war ended? It certainly had not by 1978 when this letter was drafted. Jordan only made peace with Israel in 1994, and abandoned all claim to the West Bank in 1988, ten years after this opinion letter was drafted. As such, according to Hansell, Israel’s role in the West Bank is undisputed.
“But beyond the limits of quality, quantum and duration thus implied, the Occupant’s acts will not have legal effect, although they may in fact be unchallengeable until the territory is liberated. He is not entitled to treat the country as his own territory or its inhabitants as his own subjects…, and over a wide range of public property, he can confer rights only as against himself, and within his own limited period of de facto rule. J. Stone, Legal Controls of International Conflict, 697 (1959).”
FOT: Hansell himself comments that the “Occupant” is in charge of orderly government and security until it is “liberated.” Was the West Bank to be “liberated” to the Jordanians who illegally annexed the land? Liberated to the British who ran the Mandate until the Jordanians invaded? Liberated to the Ottoman Empire who ruled the land until the end of World War I? In 1978, the “Palestinians” of the West Bank were all Jordanians, citizens of the invading army which had ethnically cleansed the region of its Jews. It is arguable that the land was liberated from Jordan back to Israel. Yet the fact that Israel did not immediately annex the land in 1967 and put it under its full sovereignty also suggests that Israel viewed the land as disputed.
Hansell stated that the Occupant must not treat the “inhabitants as his own subjects.” A curiosity, as today people complain that Palestinian Arabs have no right to vote in Israeli elections, but that’s the desired result according to Hansell.
“On the basis of the available information, the civilian settlements in the territories occupied by Israel do not appear to be consistent with these limits on Israel’s authority as belligerent occupant in that they do not seem intended to be of limited duration or established to provide orderly government of the territories and, though some may serve incidental security purposes, they do not appear to be required to meet military needs during the occupation.”
FOT: Hansell was very unsure of himself, using couched language throughout his conclusion. He noted that the civilian settlements do not “appear” consistent with the limits as the “belligerent occupant.” Of course, that also doesn’t mean that it is illegal. It just means that his first line of consideration did not touch upon Israeli civilians. However, it did make clear that Israel has security responsibility for the entire land and that the inhabitants should not be considered citizens of the Occupant, therefore only subject to military rule with no rights to vote.
“2. Article 49 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 UST 3516, provides, in paragraph 6: ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’.
Paragraph 6 appears to apply by its terms to any transfer by an occupying power of parts of its civilian population, whatever the objective and whether involuntary or voluntary. It seems clearly to reach such involvements of the occupying power as determining the location of the settlements, making land available and financing of settlements, as well as other kinds of assistance and participation in their creation. And the paragraph appears applicable whether or not harm is done by a particular transfer. The language and history of the provision lead to the conclusion that transfers of a belligerent occupant’s civilian population into occupied territory are broadly proscribed as beyond the scope of interim military administration.”
FOT: Hansell uses a very broad interpretation of the word “transfer,” well beyond its definition.
The law states that the government cannot “deport or transfer” its own citizens. The word “deport” means to expel, sort of the way Turkey has invaded Syria and is deporting thousands of its unwanted refugees into Syria (of course, there has been no UN Security Council resolution of Turkey’s slaughter of the Syrian Kurds and dumping unwanteds, but that’s another story). The deported people have no right to return to the original Occupant’s land. This is in contrast to “transfer” in which the civilians remain citizens of the Occupant’s country.
Because the transferred people maintain citizenship rights, Hansell seems to argue that it covers voluntary movement of civilians. However, that interpretation has nothing to do with the definition of “transfer.” Arguing that Israel is enticing its citizens to move to the West Bank because it plans the towns still does not mean the government is moving (“transferring”) anybody. It is simply providing an orderly government in the land which it is obligated to do as discussed above.
Further, Hansell’s concluding point is that the very essence of Article 49 of the Fourth Geneva Convention has to do with situations which are inherently short-term in nature. The Civil War between the Jews and Arabs for the holy land started in the 1920’s and began raging in full force in 1936 and is still going strong as evidenced by three wars, the Second Intifada and Stabbing Intifada, in just the last twenty years. The Article in question is not designed or equipped to deal with a civil war, let alone one which has been going on for decades.
“The view has been advanced that a transfer is prohibited under paragraph 6 only to the extent that it involves the displacement of the local population. Although one respected authority, Lauterpacht, evidently took this view, it is otherwise unsupported in the literature, in the rules of international law or in the language and negotiating history of the Convention, and it seems clearly not correct.
Displacement of protected persons is dealt with separately in the Convention and paragraph 6 would seem redundant if limited to cases of displacement. Another view of paragraph 6 is that it is directed against mass population transfers such as occurred in World War II for political, racial or colonization ends; but there is no apparent support or reason for limiting its application to such cases.
The Israeli civilian settlements thus appear to constitute a ‘transfer of parts of its own civilian population into the territory it occupies’ within the scope of paragraph 6.”
FOT: Having stretched the definition of “transfer” well beyond its intent, Hansell argues against a straw man whether the impact or quantity of people has any impact on his definition of “transfer.” It’s a foolish point and does not buttress his argument for reinterpreting the definition of “transfer.”
“3. Under Art. 6 of the Fourth Geneva Convention, paragraph 6 of Article 49 would cease to be applicable to Israel in the territories occupied by it if and when it discontinues the exercise of governmental functions in those territories. The laws of belligerent occupation generally would continue to apply with respect to particular occupied territory until Israel leaves it or the war ends between Israel and its neighbours concerned with the particular territory. The war can end in many ways, including by express agreement or by de facto acceptance of the status quo by the belligerent.”
FOT: Hansell’s argument is that Israel remains bound to the terms of the Fourth Geneva Convention as long as it remains in the territory or the war ends. While the parties were still fighting in 1978, Israel and Jordan subsequently signed a peace agreement in 1994 therefore implying an end to the applicability of this law. Some might note that Jordan gave up all claims to the West Bank in 1988 and effectively handed such claim to the Palestinians whom Jordan began to strip of Jordanian citizenship. But such arguments fall flat. Jordan had no rights to the West Bank in any form to relinquish them to the Palestinians; the West Bank was land being fought over in a civil war between the Zionists and the local Arabs.
“4. It has been suggested that the principles of belligerent occupation, including Article 49, paragraph 6, of the Fourth Geneva Convention, may not apply in the West Bank and Gaza because Jordan and Egypt were not the respective legitimate sovereigns of these territories. However, those principles appear applicable whether or not Jordan and Egypt possessed legitimate sovereign rights in respect of those territories. Protecting the reversionary interest of an ousted sovereign is not their sole or essential purpose; the paramount purposes are protecting the civilian population of an occupied territory and reserving permanent territorial changes, if any, until settlement of the conflict. The Fourth Geneva Convention, to which Israel, Egypt and Jordan are parties, binds signatories with respect to their territories and the territories of other contracting parties, and “in all circumstances” (Article 1), and in ‘all cases’ of armed conflict among them (Article 2) and with respect to all persons who ‘in any manner whatsoever’ find themselves under the control of a party of which they are not nationals (Article 4).”
FOT: Hansell continued to point out that the relevant parties regarding the Geneva Convention are not the Palestinians (which makes sense as those living in the West Bank were all Jordanian in 1978) but Israel, Egypt and Jordan. As Israel and Jordan signed a peace agreement in 1994, the Geneva Convention no longer applies so the Trump Administration can easily state that Israeli civilians living in the West Bank are not illegal.
While Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with international law.”
FOT: Hansell’s arguments were extremely weak and inherently flawed in 1978 and are not relevant today as Israel has peace agreements with both Egypt and Jordan. The Trump administration’s recognition of this fact is welcome and was overdue.
Jews and Arabs are coexisting in Israel and are building a thriving country together in the midst of mayhem all around them. While it is desirable for the stateless Arabs living in Gaza and the West Bank to have citizenship in some country, such goal has no relevance on the legality of Israeli Jews living in the West Bank.
Jewish homes in Psagot, Judea and Samaria/ the West Bank
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