The developing international dispute over settlements is not new, but itself is being used as the issue on which the Obama Administration thinks it can most easily gain concessions from Israel. Israeli and Palestinian negotiators have never realistically considered impeding or uprooting major settlements, especially the ones that continue to grow as suburbs of cities like Jerusalem and Tel Aviv.
Introduction to the Legal Arguments
The important thing the Obama Administration has not done is call any of the settlements illegal. Even Madeline Albright, Secretary of State for Bill Clinton, said explicitly that they were legal (This link will bring you to a right-wing Islamic website called radioislam.org, but it confirms the quote). The new administration is highlighting the Road Map for Peace as the precedent for ceasing new settlement construction, not any UN resolutions or aspect of the Geneva Convention.
This leaves open the idea that the US is either 1) implicitly acknowledging that the legal argument against the settlements is weak and easily countered by the Israeli argument, or 2) recognizes that emphasizing prevailing policy of many governments to the Israelis is not a rational ground to stand on for persuading the new Israeli government to undertake a policy favorable to the US.
The Israeli argument is partially based on its reading of the Fourth Geneva Convention, which argues effectively that Article 2 of the Fourth Geneva Convention undercuts Article 49. Article 2 states that “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party . . .” Article 49 states that there will be no transfer of citizens from an occupying power’s territory to the occupied territory (of the High Contracting Party). Article 49 lacks the terminology “High Contracting Party” because it is already explicitly mentioned as a qualifier to what type of occupied territory is being addressed in the convention. Several international court decisions have not accepted this argument, but ex post facto provide no practical grounds (if any) for dismantling the settlements.
Members of the Democratic party in Congress have been hesitant to oppose too strongly any policies stated by a powerful and popular personality like Barack Obama. But they still seem to be less in favor of placing the onus on Israel or even limiting natural growth in the settlements. Since these are political issues having to do with application of agreements Israel has entered into, they are issues of negotiation even more so than issues of interpretation. They are not law, as much as states always try to apply non-treaty agreements as law because it is convenient and good for political stability. The US implicitly follows this principle as it continues to escape past understandings between Israeli and American governments before the Netanyahu and Obama eras.
Natural growth in settlements has never been applied as an element of concern under the Road Map, and was never applied as such by Ariel Sharon, Ehud Olmert or George W Bush. Saying the Road Map does call for it is a very difficult argument to make, and requires the US to negotiate changes to the Road Map, rather than the Israelis.
Israeli Adherence? American Reluctance?
This brings up the issue the US has instigated and is being debated in Israel. The US is seeking to amend, or dismiss certain understandings between the US and Israeli governments made between the last two Israeli governments and the Bush Administration. These are agreements initiated by Kadima-led governments, not Likud, that the Obama Administration wants to change and is chastising the Likud-led government for not agreeing to.
How can Israelis take seriously a demand to follow mutually-agreed understandings to the letter between the Israeli government and Palestinian Authority if the United States government will not implement its understandings with the Israeli government to the letter?
This leaves two primary choices: 1) Declare as “non-binding” any agreements Israeli governments have made over the last several years with the Palestinian Authority and the United States, or 2) the United States continues implementing the understandings the Bush Administration made with the Sharon and Olmert governments that are themselves the basis of understandings between the Israeli government and Palestinian Authority. Otherwise, the US undermines the value of precedent in terms of past agreements and opens the door for amending the Oslo Accords, something the Obama Administration does not want to find itself responsible for enabling.
Conclusion, for Now
The Obama Administration is trying to pressure Israel on an issue that is not as important as other issues because it feels like the Netanyahu government will more easily make agreements on it than it would on security or on Jerusalem. The administration is right to think it. At the same time, the Obama Administration’s negotiating position on a mutually agreeable policy is awkward, bizarre and undervalues the human needs of settlers.
He can use this issue to get closer to Muslim countries and Muslim populations that view them as a colonialist enterprise, but refusing to advance an understanding of the Israeli position on them only undermines any chance Israel will have to enter into this new Middle Eastern order of peace and understanding. It benefits the Americans and hurts the Israelis. Even if politically disagreeable, settlers, who often have bought their properties and have the force of law behind their settlements should not have to arbitrarily restrict adding an extension to their house when they bring new children into their families.