Illegitimate but untouchable: Israeli settlements and American foreign policy

Obama promises change, but his refusal to challenge Israeli settlement building shows where American priorities lie

“We reject in the strongest terms the legitimacy of continued Israeli settlement activity.” So argued Susan Rice, the US Permanent Representative to the United Nations, at a meeting of the Security Council on 18 February 2011. She had been called upon to explain why the USA had exercised its vetoing powers to block a resolution that condemned Israeli settlement building in Palestinian territory, a measure that was supported by every other Security Council member and had received the sponsorship of 130 members of the UN General Assembly.
Rice argued that although the US acknowledged “the folly and illegitimacy of continued Israeli settlement activity”, the resolution risked damaging prospects for peace by encouraging parties to withdraw from negotiations. This seemingly confused muddle of statements which condemn settlements and actions which seek to prevent any measures being taken on the issue actually represents a continuation of typical US tactics on this controversial issue.
The USA and Israel are close strategic allies and the USA has regularly used its power of veto to block resolutions perceived to be harmful to Israeli interests. What struck commentators in February was not simply the incongruity of Rice's statements on the illegitimacy of settlement-building with the brazen use of the veto to strike down the resolution that argued this; rather it was the shock of finding that under the Obama administration, nothing had changed in the USA's approach to this issue.
There had been expectations, and in the Arab world, hopes, that the Obama administration might make a substantive break with previous US policy and allow the resolution to pass. These expectations were not the product of wishful thinking; they have been fuelled by a deliberate outreach policy on behalf of the administration. In Obama's famous Cairo speech in June 2009, the president argued that it was time for the construction of Israeli settlements to stop.
The use of the veto – the first veto since Obama came to power – also followed two democratic revolutions in the Arab world and countless other uprisings demanding political change. The expectation was that the USA would now be willing to listen to and take into account the authentic concerns and desires of the peoples of the Middle East. Instead, the American government adopted a policy of ambivalence and obfuscation, labeling the settlements illegitimate but preventing the international community from taking action to freeze or dismantle them.
Outlining US policy on settlements
During the period 1967-1977, the Israeli political scene was dominated by the Labor party. Israeli governments used settlements in the West Bank as a negotiating card, rather than as an attempt to annex territory. Settlements were therefore not extensive, and only 4,000 settlers lived in the West Bank and Gaza – a figure of around 1 settler per day moving to the occupied territories. Accordingly, the US government under various administrations remained relatively quiet in their criticism of these settlements. Diplomatic language was used so that settlement-building was not described as legal, but was not subject to strong condemnation which would have created tension with a strategic ally.
In May 1977, the Likud party came to power for the first time. According to Likud's rightwing ideological approach, the Palestinian territories occupied in 1967 constitute something more than a negotiating card. Thus, settlement-building was encouraged and the number of settlers swelled; between 1977 and 1987, 116,000 settlers moved to the West Bank and Gaza – an average of 30 per day.
In response to this shift, the US Department of State issued a statement in April 1978 saying that establishment of settlements is “inconsistent with international law," and against Article 49 of the Fourth Geneva Convention. A few months later, the US voted in favour of UNSC Resolution 465 which condemned Israeli settlements in all lands occupied in 1967 as a flagrant violation of the Fourth Geneva Convention.
However, the Reagan administration took a different approach to the settlement issue, whereby US foreign policy on this issue became a reflection of the strategic alliance between the two countries and not a reaction to the settlement pace in the occupied territories. Accordingly, Israeli settlements were labelled“not illegal”, a carefully-worded compromise that avoided making the drastic and controversial claim that the settlements were actually legal.
Caught between two agendas – the needs of a close ally and the realities of international law – American foreign policy has for the last thirty yearsadopted a policy of obscuring the question of the legality of settlements and keeping the matter a grey area. The USA has refused to make it clear whether it considers the building of settlements to be legal or illegal, and has instead chosen to use ambiguous language about “not extending legitimacy” to the settlements, and allowing their “natural growth” only. This language of ambiguity enables Israel to create new realities on the ground, which will necessarily affect the outcome of any peace process. There are now 350,000 settlers in the West Bank alone; including Golan Heights and East Jerusalem, the number reaches half a million.
This approach has survived changes in administration and changes in governing party, and under President Obama the policy continues.
Explaining the American approach
What are the reasons behind the longevity of this policy? One important element is the presence of an “Israel lobby” in the USA - organized campaigning and lobbying groups which attempt to influence the views and voting habits of American politicians towards broad support for Israel and its government's policies. Typically, these groups exert influence in various key areas; during the vetting process of the two major parties, by preventing anti-Israeli candidates from being selected; by providing pro-Israeli arguments and talking points to candidates who have been selected, and convincing them that supporting Israel is in line with American interests in this key region; by supporting candidates with funds and favourable media coverage; and by punishing candidates who are considered to be unsupportive of Israel by reducing their opportunities to raise funds and to lobby. There are numerous examples of American politicians who have fallen by the wayside when their voices strayed from the script authorized by these pro-Israeli lobbying groups.
There is also a small but vocal and politically-active minority of Jewish-Americans who are clustered in certain key states such as California, Florida and New York. Broadly speaking, these groups actively support Israel and the policies of its government, and lobby effectively to ensure that their voices are heard in key elections.
In addition, the existence of hostility towards, and suspicion of, Arabs and Muslims has increased in American society and political discourse since the terrorist attacks in September 2001. This kind of negative stereotyping has clouded debates about the Middle East and reinforces negative attitudes to Palestinians and their rights.
Furthermore, some experts in the US State Department and in Congress believe that the settlements are not really illegal under international law. According to the Fourth Geneva Convention, it is illegal to settle populations on occupied lands. The West Bank, according to this argument, was first annexed by Jordan before being taken by Israel; so the state of Israel does not constitute an occupying power. Israel has instead captured disputed land for reasons of self-defence rather than aggression, and the Geneva Conventions do not therefore apply. These voices also stress that settling activities are voluntary, not forced. For these experts, the USA's foreign policy is therefore firmly grounded in international law.
There is also a religious issue; some American churches support settlement-building as part of their interpretation of Biblical scripture. Under American law, donations that support settlement-building are tax free, and some churches are able to raise significant funds for this purpose. In contrast, donations by Israeli citizens to these causes are not tax-deductible.
Prospects for peace
The American policy of deliberate ambiguity on settlements is not a product of a confusion or lack of clarity. Rather, by refusing to explicitly condemn and challenge settlement-building in occupied territories, the USA is in effect allowing the Israeli government to reshape the realities of the situation in its favour.
In a famous letter to Prime Minister Sharon in 2004, President Bush wrote that “in light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949.”
As settlements grow and flourish, the prospects of any peace agreement are altered. Land swaps become increasingly inevitable for Israel, as settled areas will be exchanged for territory in the Negev desert. It is impossible, therefore, to disengage the settlement issue from the question of the peace process itself, and debates about the shape a future Palestinian state will take – what size will it be, will it have contiguous borders or will it be fractured, will it be able to accommodate Palestinian refugees, and will it, in effect, be a viable state? These are the challenges the US is helping to create when adopting an ambiguous approach towards the settlement issue.
Alaa Abdalaziz is an Egyptian scholar and currently the coordinator of the Cairo Regional Center for Training on Conflict Resolution and Peacekeeping in Africa (CCCPA).
Hazel Haddon is a graduate student at the American University in Cairo.