Legality vs. Legitimacy: America's Ambiguous Umbrella Protecting Israeli Settlements

The response by the Netanyahu government to the gruesome murder of 5 settlers in the settlement of Itamar was typical; they announced they'd build even more settlements. The American response to the Israeli announcement was perhaps even more typical. This story summarizes what has become a near-automated and ambiguous response(emphasis in this and all excerpts is mine):

In the first U.S. reaction to the Israeli decision, the State Department said in a statement Sunday that Washington was deeply concerned by continuing Israeli actions with respect to settlements in the West Bank."

"Continued Israeli settlements are illegitimate and run counter to efforts to resume direct negotiations," the statement said, adding that "through good faith direct negotiations, the parties should mutually agree on an outcome that realizes the aspirations of both parties."

If anyone else is wondering what this means, you are not alone. The terminology of "legitimacy' entered the discourse of official US policy after President Obama delivered his speech to the Muslim world in Cairo. At the time, President Obama said "The United States does not accept the legitimacy of continued Israeli settlements." This line was greeted by applause from the crowd in the auditorium where he was speaking, as well as from onlookers around the Arab and Muslim world. Many welcomed the fact that the new American President was directly criticizing Israel's settlement enterprise. The reaction to this line came because he said it, but not necessarily because the meaning and gravity of the language used was fully appreciated and fully understood.

What does it mean for the US to consider settlements "illegitimate"? And more importantly, how does this concept of legitimacy differ from the more important concept of legality. After delivering that crowd-pleasing line in Cairo, the President followed it up with language that may offer insight into what is really meant by "legitimacy":

This construction violates previous agreements and undermines efforts to achieve peace. It is time for these settlements to stop.

Note that the President deliberately chose not to say that the construction violates international law. So from what the President said, it seems that to the United States, settlement construction is illegitimate in so far as it violates agreements (not laws) and undermines (American led) peace efforts. By speaking about settlements in this context and completely sidestepping the context of legality, an open question arises about US policy on settlements: Does the United States consider the building of Israeli settlements in occupied Palestinian territory illegal under international law? And if so, why is it so hard to just say it?

An recent episode at the UN Security Council may shed light on an ambiguous US policy. The Palestinians sought to bring a draft resolution to the UN Security Council condemning illegal Israeli settlements. The resolution included the following language:

Reaffirming the applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, to the Palestinian Territory, including East Jerusalem, and the other Arab territories occupied since 1967,

Reaffirming that all Israeli settlement activities in the Occupied Palestinian Territory, including East Jerusalem, are illegal and constitute a major obstacle to the achievement of peace on the basis of the two-State solution,

Condemning the continuation of settlement activities by Israel, the occupying Power, in the Occupied Palestinian Territory, including East Jerusalem, and of all other measures aimed at altering the demographic composition, character and status of the Territory, in violation of international humanitarian law and relevant resolutions,

The United States wanted to avoid a UNSC vote on this issue but when the Palestinians continued to push for the resolution to come up for a vote, the Obama Administration would be forced to lift the veil on the sneaky language they introduced in Cairo and had been using ever since. In a effort to avoid a vote, the US informed Arab governments that it would support a UNSC Presidential Statement (which doesn't carry the weight of a UNSC Resolution) that used language Washington was more comfortable with. It stated:

The Security Council reiterates its previous resolutions and the obligations under the Quarter Roadmap, endorsed by its resolution 1515 (2003), expresses its strong opposition to any unilateral actions by any party, which cannot prejudge the outcome of negotiations and will not be recognized by the international community, and reaffirms that it does not accept the legitimacy of continued Israeli settlement activity, which is a serious obstacle to the peace process.

No mention of legality, which made the statement useless to those supporting the resolution. Ultimately, the US ambassador to the United Nations, Susan Rice, was instructed to veto the resolution and she did. Of the 15 members of the UN Security Council, 14 voted for the resolution and 1, the United States, voted against. In her statement after the vote, Ambassador Rice attempted to explain the reasoning behind the American veto she had just cast. In doing so, she said this in her statement:

Our opposition to the resolution before this Council today should therefore not be misunderstood to mean we support settlement activity. On the contrary, we reject in the strongest terms the legitimacy of continued Israeli settlement activity.

So we know now, perhaps, what wasn't clear in Cairo when President Obama introduced this statement of policy. In Washington's lexicon, legitimacy and legality seem completely unrelated and do not overlap. Some maybe wondering whether or not this matters or if this is just a question of semantics . It matters greatly, of course, because there are clear consequences and actions which must be taken against violators of international law. By insisting on "opposing" Israeli settlements by calling them "illegitimate", the United States simply protects Israel and its settlement enterprise by shielding them from legal obligations. Not surprisingly, Israel has continued with settlement expansion under an American umbrella of intentional ambiguity.

The entire world (except for the Obama Administration and Israel) including anyone with a basic understanding of International Law can state unequivocally that the building of Israeli settlements in occupied Palestinian territory is 100% illegal.

In the past, I wrote about Matthew Lee, an AP reporter covering the State Department who did a fantastic job posing straightforward questions consistently until he got an answer (or lack of one) about the detention of the non-violent Palestinian activist Abdallah Abu Rahmah.

Incidentally, Abu Rahmah was released today after serving 16-months in prison. Maybe it's time for State Department reporters to try to get spokesman on the record about the US government's official position on the legality of Israeli settlements - and not take "illegitimate" for an answer.

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