Israelis have wavered over the years regarding the territories’ legal status. But most avoided Hansell’s sloppiest distortion – which Levin echoed blindly.
Jpost – Opinion
Gil Troy DECEMBER 3, 2019
Dear Congressman Andy Levin,
You recently recruited 105 congressional Democrats to sign your letter protesting Secretary of State Mike Pompeo’s reversing “decades of bipartisan US policy on Israeli settlements in the occupied West Bank by repudiating the 1978 State Department legal opinion that civilian settlements in the occupied territories are ‘inconsistent with international law.’” You claimed this decision “discredited the United States as an honest broker” and “severely damaged prospects for peace.” You charged that the decision “blatantly disregards Article 49 of the Fourth Geneva Convention, which affirms that any occupying power shall not ‘report or transfer parts of its own civilian population into the territory it occupies.’”
In fact, your categorical, ahistorical accusations damage peace prospects. Such demonization enrages Israel’s Right, discourages Israel’s pro-peace Center and encourages the biggest obstacles to peace: the Palestinians who still reject Israel’s existence.
Moreover, I’m guessing you dismissed Pompeo’s statement as mere grandstanding by a flailing administration. Beware. Similar arguments impeach the 1978 legal opinion against Israeli settlements, which some Democrats now revere like the Magna Carta itself.
When Herbert Hansell, the State Department legal adviser, issued his three-page letter on April 21, 1978, inflation was soaring, the Russians were strutting, and president Jimmy Carter’s popularity was sagging – at 48%.
Seeking a Middle East grand slam, Carter resented Israel’s prime minister, Menachem Begin, and Israel’s West Bank settlements, as obstacles blocking his redemption.
Begin wondered why Jews could live in Bethel or Shiloh in the United States, towns named after places in Judea and Samaria, but not “in the original” Beit El or Shiloh. Besides, Begin warned Carter that the issue is not “territorial” but “historical”: Arabs have to accept Israel’s right to exist and stop trying “to destroy us.”
Hansell’s timely opinion reinforced Carter’s demand to “negotiate without preconditions.”
This analysis was superficial – lawyers need three pages just to introduce most topics. And while too narrow historically, it was too broad legally. Even without returning with Begin to the Bible, Hansell should have quoted the 1922 Mandate for Palestine.
After recognizing “the historical connection of the Jewish people with Palestine,” Article 6 granted the right for “close settlement by Jews, on the land” of Palestine. Such provisions meant that Israel – the Jewish state – could not be a “belligerent occupant of these territories.”
In fairness, Israelis have wavered over the years regarding the territories’ legal status. But most avoided Hansell’s sloppiest distortion – which you echoed blindly.
Hansell misapplied the paragraph you quoted so angrily from the Geneva Convention about not transferring civilians into occupied territories.
Daniel Patrick Moynihan, the legendary Harvard professor turned Democratic senator, explained that the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War was “one of a series of treaties designed to outlaw specific Nazi behaviors. This particular convention applied to the Nazi practice of deporting or murdering vast numbers of persons in western Poland – as at Auschwitz – and plans for settling the territory with Germans.” Comparing the situation in the historically Jewish West Bank, which Israel won in a defensive war and to which it had legal claims, was, Moynihan wrote, “an Orwellian inversion of meaning.” The Soviets’ perverse propagandists – and their echo chamber – equated the Jews to their Nazi tormentors.
Moynihan understood that this Geneva Convention distortion treated Israel as “an outlaw state, guilty of war crimes.” Such sweeping language rejected Jews’ rights to the historical capital, Jerusalem, along with the rest of the West Bank, suddenly treating every inch Israel won from Jordan in 1967 as one organic entity “for the first time designated ‘Palestinian.’”
Nevertheless, on December 19, 1980, lashing out at Begin after losing his reelection bid, Jimmy Carter had the US approve Security Council Resolution 484 sanctifying this perverse reading of Geneva – as you just did.
Furious that the president was “Joining the Jackals,” the once-pro-Carter Washington Post called this move “the essential Carter,” a cheap attempt “to be at one with the virtuous souls of the Third World, notwithstanding the complexities of the larger issue.”
Moynihan called these claims “time bombs. Ticking.”
Dismayingly, Carter’s misreading of the Geneva Convention became mainstreamed – despite president Ronald Reagan deeming West Bank settlements legal. Douglas Feith, a Reagan-era National Security Council staffer, recalls that “seeing that Carter invoked the law simply as a stick for whacking Israel,” Reagan “rose to Israel’s defense.” Feith reinforced Reagan’s analysis, explaining: “The issue is properly a political question, not a legal question.”
SECRETARY POMPEO’S approval of Israeli settlements as “not per se inconsistent with international law” was less sweeping than the 1978 disapproval. It’s ironic that Donald Trump, America’s bull-in-a-china-shop president, this time demonstrated more sensitivity to history than many others.
Just as supporting this policy doesn’t mean supporting the policy-maker, accepting this legal analysis legitimizing Israel’s historic rights to the land doesn’t mean accepting Israel’s permanent presence throughout the territories. There are reasonable, demographic critiques of some settlements and valid arguments for Palestinian statehood – especially once Palestinians accept Israel’s right to exist. But this perverse reading of history, the map and the law is counterproductive. It’s the opposite of “honest” brokering. A solution founded on lies won’t work.
Moynihan was right. The ticking time bombs demonizing Israel keep exploding, triggering terrorism against Israelis in the Middle East – and hostility to Jews worldwide. An inaccurate opinion that has proved so toxic, against a people that has been so vulnerable to so much hatred, should no longer stand.
The writer is a distinguished scholar in North American history at McGill University. The author of 10 books on presidential history, his latest works include The Age of Clinton: America in the 1990s, and Moynihan’s Moment: America’s Fight Against Zionism as Racism.