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The Prequel to the “Deal of the Century”

March 18, 2020

by: Joshua Spurlock, The Mideast Update

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How the Revised View on Judea and Samaria Set the Stage

On January 28, 2020, the United States under President Donald Trump formally announced a Middle East peace plan in which they acknowledged that the Israeli communities in Judea and Samaria—which some call “settlements”—would remain part of Israel. While some elements of President Trump’s “Deal of the Century” peace plan are controversial in Israel—the establishment of a Palestinian state, for example—this approach to the Israeli communities in the biblical heartland was met with applause. In his press conference with President Trump, Israeli Prime Minister Benjamin Netanyahu compared the plan to the US recognition of Israeli independence in 1948.

However, a crucial piece of the US recognition of Israeli sovereignty in Judea and Samaria occurred two months before the announcement. In November 2019, US Secretary of State Pompeo pronounced the Americans viewed the communities as “not per se inconsistent with international law.” While it did not appear as a resounding endorsement of Israeli homes in Judea and Samaria, it was actually critical to just such an approval, a prequel to the “Deal of the Century.”

Legitimate Standing

 

Ofra, a Jewish community in Samaria

Brig.–Gen. Yossi Kuperwasser, research fellow at the Jerusalem Center for Public Affairs, said that the legality determination enabled the Trump administration to declare that Judean and Samarian communities belong to Israel. “If they were illegal, how can you legalize them in the [peace] plan?” asked Kuperwasser. That the communities are “already the situation on the ground” is another consideration for the US, he noted. “It’s baseless to claim that the settlements are illegal. That was the legal logic, on top of the political logic, that led the Americans to adopt this plan…that the settlements are going to stay,” said Kuperwasser.

While President Trump has made this pronouncement on the future of the Israeli communities, it helped that history was on his side. Professor Avi Bell, a senior fellow at the Kohelet Policy Forum, explained that the Trump administration’s view on the communities, which Kohelet has termed “the Pompeo Doctrine,” is more in line with the Reagan administration in the 1980s.

“The anti-Jewish position on settlements has never been consensus in the United States, and it was only adopted by the Carter administration, and then, again, by the Obama administration,” wrote Bell, also a member of the Faculty of Law at Bar Ilan University and the University of San Diego School of Law. “The Pompeo Doctrine rejects this perversion of international law and returns US policy on the legality of settlements to its traditional, and correct, position.”

According to another expert, President Trump took that “not illegal” view a step further than Reagan. Robbie Sabel, professor of International Law at the Hebrew University of Jerusalem, explained the Reagan administration did not say the communities are illegal, but “almost always added that they think it’s inimical, it’s harmful to the peace process…The present Trump administration [has] omitted the second part. In other words, they don’t say it’s illegal, they don’t say it’s harmful to the peace process, and they envisage that in the final status the settlements will remain.” Sabel described the Trump administration’s position not as an ideological shift but as a “look at the reality. The reality is quite clear: Israeli settlements, hundreds of thousands of people, are not going to be removed from their houses…and they tried to build a plan on the basis of this reality.” 

Legal Standing

The Fourth Geneva Convention was established in 1949 with the intention to better define certain war crimes, including those involving territorial control and civilians. Some who claim Israel’s civilian communities in Judea and Samaria are a “war crime” point to the Fourth Geneva Convention as their legal basis. However, not only is Israel not violating the Fourth Geneva Convention—it doesn’t even apply.

“I think it’s quite clear that, whatever the issue here is, it’s not that Israel occupied the territory of another state, it’s an area in dispute. So legally the elements of the Fourth Geneva Convention that are there to make sure the rights of the previous sovereign are not harmed, are not relevant,” said Sabel.

Kupperwasser agrees, noting among other points that Israel also had claims on the territory prior to the Six Day War in 1967, which was a defensive conflict against aggressive Arab nations. Furthermore, that’s not the only clause from the Geneva guidelines that doesn’t fit the scenario. “The Fourth Geneva Convention does not say that ‘repopulating conquered territory’ is a war crime,” wrote Bell. “The Fourth Geneva Convention forbids states from transferring or deporting parts of their own population into territory that they belligerently occupy. It is evident that the US recognizes that Israel’s presence in Judea and Samaria is not subject to the rules of belligerently occupied territories, and that the US recognizes Jews residing in Judea and Samaria are not ‘transferred or deported’ by Israel.”

Long-term Standing

The “The Pompeo Doctrine” provided groundwork—the prequel—for the possibility of recognizing Israel’s sovereignty in Judea and Samaria, which became a diplomatic reality through President Trump’s Deal of the Century. Netanyahu, in comments in January to President Trump, recognized the gravity of the moment. “We remember May 14, 1948, because on that day President Truman became the first world leader to recognize the State of Israel. We will also remember January 28, 2020, because on this day, [President Trump] became the first world leader to recognize Israel’s sovereignty over areas in Judea and Samaria that are vital to our security and central to our heritage.”

Of course, before the peace plan could be announced, it was imperative that Secretary Pompeo unveil the US legal position on the communities in Judea and Samaria.

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