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Why West Bank Settlements' Status Triggers Legal Controversies & How US Shift May Affect the Debate

© REUTERS / Ammar AwadGeneral view of houses of the Israeli settlement of Givat Ze'ev, in the occupied West Bank February 7, 2017
General view of houses of the Israeli settlement of Givat Ze'ev, in the occupied West Bank February 7, 2017 - Sputnik International
Following the recognition of Jerusalem and the Golan Heights, the Trump administration reconsidered its stance with regard to the legal status of the Israeli settlements in the West Bank. Israeli publicists have shed light on the history of the region and legal contradictions concerning the settlements.

On 18 November, US Secretary of State Mike Pompeo announced a shift in America's longstanding policy on Israeli settlements in the West Bank emphasising that Washington no longer views them as "inconsistent with international law". The decision prompted a wave of criticism from the EU which reaffirmed its commitment to UN Security Council Resolution 2334 but failed to issue a joint statement that was reportedly blocked by Hungary. The UN, Russia, Jordan, and Turkey issued separate statements denouncing the US decision.

Historic & Legal Controversies Surrounding West Bank

While the position of the countries opposing Washington's reversal of a stance sealed in a 1978 State Department legal opinion is clear, the question arises as to what is the legal basis of the proponents of Israeli settlements in Judea and Samaria - the biblical names of the two regions that make up the West Bank.

"The whole issue of the settlements is about the right of the Jewish people to live in the historical land of the people of Israel", says Israeli publicist and political analyst Avigdor Eskin. "One can advocate whatever political solution one wants, but the basic right of the people to live in their historic land seems to be unquestionable. Moreover, there are nine hundred thousand Israelis living today in East Jerusalem and the West Bank (Judea and Samaria)".

The controversy surrounding the settlements in the West Bank stems from the fact that the region repeatedly changed hands in the 20th century.

Eskin draws attention to the 24 July and 16 September 1922 resolutions of the League of Nations determining the borders of the area of Palestine designated for the "Jewish national home" between the Jordan River and the Mediterranean Sea. This area included the territory of the modern Israeli settlements in question.

He further argues that on 29 November 1947, when the UN General Assembly voted to divide Palestine into a Jewish and an Arab state, the Jews accepted the decision while the Arab community rejected it. The plan was not implemented and no Palestinian Arab state was founded.

In 1948, Jordan occupied the West Bank in the course the 1947–49 Palestine War launched by a coalition of Arab countries. However, after the Six-Day Way in 1967 it changed hands again being ceded to Israel and has since then remained a military-occupied territory in the eyes of the UN. Amman renounced its claims to the West Bank in 1988. Since 1999 the territory has largely been referred to as an "Occupied Palestinian Territory" (OPT) by the UN and other international entities.

Eskin argues that given the West Banks's complicated history it's not accurate to define it as OPT since it wasn't captured from a Palestinian state, which has never existed, but from Jordan who illegally occupied it in 1948; on the other hand, the Israeli settlements in the region fully comply with the 16 September 1922 resolution, the publicist opines.

"The US reversal of the State Department's previous position will change the whole attitude in the world towards the Israeli cities and villages in Judea and Samaria", he presumes. "They will continue to grow and prosper".

© AP Photo / Tara Todras-WhitehillJewish settler schoolboys play soccer at a school in the West Bank Jewish settlement of Kedumim, near Nablus, Monday, Nov. 8, 2010
Why West Bank Settlements' Status Triggers Legal Controversies & How US Shift May Affect the Debate - Sputnik International
Jewish settler schoolboys play soccer at a school in the West Bank Jewish settlement of Kedumim, near Nablus, Monday, Nov. 8, 2010

Israel "Lags Behind" the US When It Comes to West Bank

Nelly Gutina, an Israeli author and political commentator, says that the legal status of the West Bank settlements deserves special scrutiny, bemoaning the fact that only in 2012 did the Israeli government appoint a special commission, headed by former Israeli Supreme Court Justice Edmund Levy, a specialist in international law, to sort things out.

Levy's 89-page Report on the Legal Status of Building in Judea and Samaria concluded that Israel's presence in the West Bank is not an "occupation" and the Israeli settlements are legal under international law.

"The government initiated a committee aimed at implementing the report, but due to bureaucratic and possibly political obstacles, the Levy Report has not yet been formally approved", Gutina highlights.

By recognising the West Bank settlements as "not inconsistent with international law" the Trump administration has de facto outpaced the Israeli government, she notes.

According to the political commentator, President Trump once again proved "that the dogmas of traditional diplomacy and politics do not oblige him".

Why EU Not Following Trump With Regard to Israel

"Brussels’ reaction was predictable because the EU has always taken a tougher stance on the issue of settlements than the United States, even in Obama’s time", Gutina says. "For Brussels, the Middle East is the platform where the EU is actively seeking interference based on its post-colonial impulses and emerging from its liberal agenda".

She points out that not all EU member states share Brussel' stance: Gutina refers to Hungary's decisions to block a recent EU resolution on the West Bank and statement condemning the recognition of Jerusalem.

According to Eskin, the EU's criticism of the Trump administration's policies is largely dictated by their longstanding ties with the oil-producing Arab states.

"Remember the seventies and the oil prices hike after the 1973 war", he says. "But now Israel is starting to export natural gas to Europe. You will see the changes very soon".

Will Trump Successors Reverse His Pro-Israeli Policies?

While Israelis, especially on the right side of the country's political spectrum, received the Trump administration's decision to reverse the US attitude towards the West Bank settlements with enthusiasm, the question arises as to whether the following administrations will change their stance on the matter. One cannot rule this out given that Trump managed to tear apart a number of deals concluded by his predecessors.

"Given the new tendencies in the Democratic Party and its new demographic components, in Israel no one has any illusions about the continuity of American policy in the Middle East in general and in relation to Israel in particular", Gutina says referring to the Democratic Party's criticism of Trump's Israeli strategy.

Eskin, however, is more optimistic about the prospects for US-Israeli relations.

"The reason for the State Department's harsh position on the settlements was all about oil and had nothing to do with any non-existing international law", he opines. "Now the US is one of the biggest energy producers in the world and is totally independent from Arab oil. Therefore, the trend does not appear to be negative for Israel anymore".
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