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Forty Years?

Debunking the latest claptrap on American policy and Israeli settlements

Liel Leibovitz
November 21, 2019
A picture taken on November 19, 2019 from the Israeli settlement of Psagot shows a partial view of the Palestinian West Bank city of Ramallah.EMMANUEL DUNAND/AFP via Getty Images
A picture taken on November 19, 2019 from the Israeli settlement of Psagot shows a partial view of the Palestinian West Bank city of Ramallah.EMMANUEL DUNAND/AFP via Getty Images

Reacting to Secretary of State Mike Pompeo’s declaration earlier this week that “the establishment of Israeli civilian settlements in the West Bank is not, per se, inconsistent with international law,” pundits and politicians alike were swift to alight on a single talking point: By declaring the settlements legal, the Trump administration was undoing forty years of settled American policy. The Los Angeles Times, for example, left little room for nuance, titling its editorial “Trump Stupidly Erases 40 Years of U.S. Opposition to Israeli West Bank Settlements.”

The rest of the press was no less definitive. The quasi-Biblical “40 years” mantra was repeated by Reuters, the AP, The New York Times, and the Washington Post, and promptly echoed by pretty much every major Democratic presidential candidate.

Overturning 40 years of US policy should not be done lightly, even if that policy did little to bring about peace or, at least, an end to violence. But was the assertion that Israel settlements anywhere in the West Bank are “illegal” actually ever US policy? And, if so, for how long?

To begin answering that question, you’d have to go back to the Hansell Memorandum, a four-page document composed in 1978 by Herbert Hansell, a State Department legal adviser. You need only look at the memo’s page count to realize that it was never intended as a comprehensive analysis of a complicated legal situation; this, as law professor Eugene Kontorovich persuasively argued in The Wall Street Journal this week, might explain why the document’s “legal analysis of occupation and settlements has never been applied, by the U.S. or anyone else, to any other comparable situation.”

Still, let us, for the sake of argument, assume that Hansell’s 4-page advisory memo — which itself was notable for rejecting US policy from the Johnson, Nixon and Ford Administrations — somehow itself became official US government policy upon its publication. Did the Hansell memo then continue to sway the minds of presidents who followed Jimmy Carter, under whose administration the memo came to be? In short, no.

Hansell’s memo did little to move Ronald Reagan, who defeated Carter in 1980 and who, in 1981, made his opinion clearly and unequivocally known when he told an interviewer that the settlements were “not illegal.”

Reagan was followed in office by George H.W. Bush, whose Secretary of State, James Baker, was no big fan of the Jewish State. Yet Baker, too, confirmed that the administration he served also did not see the settlements as illegal. Speaking at a press conference in Saudi Arabia on July 20, 1991, Baker said, “Our particular opposition today to settlement activity is that it constitutes an obstacle to peace. In the past, the position of the United States has been that it was, in fact, illegal.” A reporter asked for a clarification, wondering if the Bush administration also believed the settlements were illegal. “That is not our policy,” Baker clarified, “no.”

Which brings us to the Clinton administration. When the 42nd president sauntered onto the White House lawn, flanked by Yitzhak Rabin and Yasser Arafat, to introduce the world to the Oslo Accords, he was, presumably, also endorsing the accords’ understanding that most Israeli settlements outside Area A, the area under Palestinian control, are 100 percent legal, pending final status negotiations between the two parties. The Oslo Accords make no mention of any present or future Palestinian state.

A year later, Israel’s peace-making efforts dealt another blow to the Hansell theorem; the Israeli occupation, Hansell wrote in 1978, will end if Israel ever made peace with Jordan, which previously occupied the West Bank, an occupation that was almost universally unaccepted by the international community. In 1994, Israel and Jordan made peace. “Even on its own terms,” Kontorovich noted in his piece, the Hansell memo’s conclusions “no longer apply.”

Still, let us be generous here and assume that somehow Hansell’s more than two decades-old memo still continued to resonate, despite being rejected by the three Presidents who followed Jimmy Carter’s single term in the White House—Ronald Reagan, George H.W. Bush, and Bill Clinton, who together served a combined five terms in office without ever referring to the settlements as illegal.

Maybe George W. Bush, who followed Clinton, fell under the Hansell memo’s spell? In 2004, Bush wrote Israel’s then prime minister, Ariel Sharon, a cautiously worded letter that set out his views on the settlements. “We welcome the disengagement plan you have prepared,” Bush wrote, “under which Israel would withdraw certain military installations and all settlements from Gaza, and withdraw certain military installations and settlements in the West Bank.” These steps, the letter continues, will “make a real contribution towards peace.”

Notably, the Bush letter was careful to state that only certain West Bank settlements would be dismantled; elsewhere, Bush speaks of Israel withdrawing from “parts” of the West Bank. To any reasonable reader, this sounds pretty close to stating outright that some, if not many, Israeli settlements in the West Bank were in fact regarded by the United States as future Israeli sovereign territory.

Which brings us to Obama. In December of 2016, after Donald Trump stunned Hillary Clinton and won the presidency, the 44th president instructed his ambassador to the United Nations to abstain on a Security Council resolution that stated that Israeli settlements had “no legal validity and constitutes a flagrant violation under international law.” The abstention stung; it was, ironically, the first time in—drumroll please—40 years that the Security Council was able to pass a resolution critical of the settlements, all previous attempts having been blocked by a succession of American presidents from both parties.

Let’s be generous here once again, and say that the Obama administration believed all Israeli settlements anywhere in the West Bank to be illegal but hid this belief from Israel, the Palestinians and the American public, and the UN Security Council for eight years—until the very month before he left the White House. It’s possible, right? But do some simple math, and you’ll see that even then, “Settlements are Illegal” was U.S. policy for, at best, ten years: Eight under Obama, and two under Carter. That’s not a monolithic stretch lasting four decades; that’s just two left-wing Democrats breaking with established bi-partisan consensus for, at most, ten out of the past 40 years.

You’re free to like President Trump or dislike him. You’re free to consider his latest Middle East policy move to be a welcome bit of truth-telling, or a political maneuver to help Bibi, or a rash and potentially ruinous bit of grandstanding aimed at evangelical voters in the US. But one thing is abundantly clear: By promoting the false narrative about the president reversing 40 years of American policy, it is Trump’s credulous critics who are using their ignorance of history to push a radical viewpoint that was widely and repeatedly rejected by actual US policy makers for the vast majority of the past four decades.

Liel Leibovitz is editor-at-large for Tablet Magazine and a host of its weekly culture podcast Unorthodox and daily Talmud podcast Take One. He is the editor of Zionism: The Tablet Guide.