On Oct. 26, 2021, the Biden administration issued what one news report called the “sharpest rebuke yet to Israel over settlements.” Ned Price, a U.S. State Department spokesperson, said that the United States “strongly opposes” the “expansion of settlements,” labeling it “inconsistent with efforts to lower tensions” and damaging to “the prospects of a two state solution.” Some press outlets and policymakers have claimed that Israeli settlements are illegal. But this claim, while commonly made, is false.
Indeed, it is worse than misleading; it is a distraction from the crux of the problem: Palestinian leaders consider all of Israel to be a “settlement”—a fact that has been amply documented, but which many media outlets and self-styled “human rights” defenders ignore.
The United Nations and many European countries, among others, have long said that Israeli “settlements” are “illegal.” Indeed, no fewer than thirteen European governments have recently called on Israel to halt its plans to construct 1300 homes in Judea and Samaria, commonly known for the last half-century as the West Bank.
The Biden administration’s remarks seem to be a reversion to the positions of the Obama administration.
After leaving office, former President Barack Obama went one step further, asserting in 2018 that Israeli settlements have “no legal validity,” violate “international law” and are a “major obstacle” to achieving a two-state solution in the Israeli-Palestinian conflict.
In fact, there is a strong legal basis for the construction of “settlements,” which are simply Jewish homes being built in the Jewish people’s ancestral homeland.
The League of Nations Palestine Mandate, Article 6, calls for “close Jewish settlement” on the land west of the Jordan River. The mandate, including Article 6, is upheld by the U.N. Charter, Chapter XII, Article 80. The 1920 San Remo Conference and the 1924 Anglo-American Convention also enshrined Jewish territorial claims in international law.
As for the West Bank itself, a sovereign Palestinian Arab state has never existed. Rather, the status of the territory is at best disputed. Its status is to be resolved by negotiations anticipated by UN Security Council Resolutions 242 (1967) and 338 (1973), the 1995 Israeli-Palestinian interim accords, the 2003 international “road map,” and related diplomatic efforts.
Indeed, the co-authors of Resolution 242, US Under Secretary of State Eugene Rostow, US Ambassador to the United Nations Arthur Goldberg, and British ambassador Lord Caradon made clear, both then and later, that Jews and Arabs both had claims in the territories and that no national sovereignty over them had been recognized since the end of Ottoman rule.
Put simply: there are strong legal arguments, often ignored by the State Department and overlooked by the press, for Israel to build homes in the West Bank. The Washington Post, for example, omitted this relevant history in an Oct. 28, 2021, report by Jerusalem bureau chief Steve Hendrix and correspondent Shira Rubin.
In November 2019, the Trump administration cited these precedents when it declared that it would “no longer recognize Israeli settlements as per se inconsistent with international law.” This had been the consistent bipartisan position of every administration since Ronald Reagan—until December 2016 when the Obama administration acquiesced to a U.N. Security Council resolution condemning settlements as “illegal.”
There is, however, a larger problem with fixating on “settlements”—it ignores the real roots of the Israeli-Palestinian conflict. Contrary to Price’s assertion, there is little evidence that it “damages the prospects for a two-state solution.” Palestinian leaders, not Jewish home construction, have prevented a Palestinian state.
Indeed, the entire issue of “settlements” would be moot if Palestinian leaders merely accepted one of the numerous proposals for a two-state solution.
Since the 1930s, a host of entities, from the British government to the United Nations to the United States and Israel, have offered the Palestinians a state. In all instances, they have declined. The reason? As their own statements and official media make clear, Palestinian leaders consider all of Israel to be a settlement. They deny the Jewish people’s historical and religious links to the land.
By failing to highlight this history, press and policymakers are not only rewarding the intransigence of Palestinian leadership; they are, if unintentionally, serving their propaganda aims. And in doing so, they’re making peace less likely.
(Note: A slightly different version of this article appeared as an op-ed in JNS on Nov. 4, 2021)