The letter 107 Democratic representatives sent to US Secretary of State Mike Pompeo calling for him to reverse his declaration that Jewish communities in Judea and Samaria are not illegal “contains serious flaws,” and implies that Israel’s moral standing is in question and does not share America’s values, Dore Gold wrote on Wednesday to each of those who signed the letter. “Let’s be clear: Israel adheres to international law,” wrote Gold, a former director-general of the Foreign Ministry. “We do not view our settlements in the West Bank, many of which date back some 50 years, as a violation of international law.” He said that “the fact of the matter is that international law has many times been subject to multiple interpretations, particularly regarding the issue of settlements.” Gold enclosed an opinion on the legality of settlements written by former Foreign Ministry legal adviser Alan Baker, who is now a colleague at the Jerusalem Center for Public Affairs that Gold heads. The Democrats letter to Pompeo on Friday cited a 1978 State Department legal opinion stating that “civilian settlements in the occupied territories are ‘inconsistent with international law.’” The letter said that Pompeo’s declaration blatantly disregards Article 49 of the 1949 Fourth Geneva Convention, which affirms that any occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Baker argues that this opinion, written by State Department legal counsel Herbert Hansell, contains serious flaws that undermine its professional credibility. While Hansell cites the Fourth Geneva Convention, Baker said that “deliberately or not,” it did not cite Article 55 of the 1907 Hague Regulations, which enables a state that is occupying or otherwise exercising authority over territory following a war to administer and derive benefit from public lands, real estate, public buildings, forests and agricultural estates belonging to the hostile state and situated in the territory. “Israel’s settlement policy is based on this premise, enabling use of public lands and properties for settlement while strictly respecting private rights of ownership of local residents of the territories,” Baker wrote. “Residents of settlements are not given ownership rights to the land, which is provisionally leased to them, pending a solution to the territorial dispute. The land is held by a government custodian.” Furthermore, Baker argued, Hansell ignored expert legal opinions regarding the Fourth Geneva Convention, which contended that “the prohibition on transfer, drafted in the post-World War II years, was intended to prevent the mass, forced transfer of populations carried out by the Nazis in Europe, in order to change the demographic structure of the country. The provision was never intended to be applied to voluntary movement by individuals into the area and their use of public land and property.” Furthermore, wrote Baker – one of the drafters of the Oslo Accords – Hansell’s opinion has been “overtaken by circumstances.” Hansell’s opinion, he wrote, treated Israel’s presence in the territories as a “classical, routine, and standard situation of belligerent occupation, in which Israel was only entitled to belligerent rights of an interim military administration over foreign territory and its inhabitants.” This, he argued, “totally disregarded the unique and extensive historic and legal status and characteristics of the territory,” as well as the “legal, historic and indigenous claims of Israel and the Jewish people” that were encapsulated in the Balfour Declaration and later transformed into “international legal instruments.” Furthermore, he wrote, the Oslo Accords instituted a new “legal regime” in the territories that “overrides any other legal framework,” including the Fourth Geneva Convention. “The two parties agreed, pending the completion of negotiations on the permanent status of the territories, that the control and governance will be divided between them such that the Palestinians would have powers and responsibilities in the major municipal and village Areas A and B, and Israel in the less-populated Area C, in which Israel’s settlements and military installations are located,” he wrote. Baker wrote that any evaluation of the legality of the settlements that “pretends to be serious and professional, but ignores the above central factors, lose its credibility and professional standing.”
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