US Secretary of State Mike Pompeo stated on 18 November that “the establishment of Israeli civilian settlements in the West Bank is not, per se, inconsistent with international law”.
Mr Pompeo stated that the Trump Administration’s position did not seek to pre-determine the fate of the settlements or the status of the West Bank and Jerusalem. According to media reports, Mr Pompeo emphasised that these issues should be subject to direct Israeli–Palestinian negotiations.
President of the Zionist Federation of Australia (ZFA) Jeremy Leibler said “the issue of settlements is a political issue that should be negotiated between the parties in good faith. We hope that the revised US position will encourage the Palestinians to return to the negotiating table without preconditions and to cease using its interpretation of international law to predetermine the outcome of negotiations”.
“In 1993, Israelis and Palestinians agreed that the settlements were to be negotiated as part of the final status talks”, said Mr Leibler. “This means that Israel long ago placed the matter of settlements on the negotiating agenda.”
While acknowledging that some are concerned about the impact settlement growth might have on the viability of a future Palestinian state, Mr Leibler said that every peace proposal has contemplated land swaps as a mechanism to deal with the issue of settlements. It is clear that, while the issue of settlements will need to be resolved as part of a negotiated peace agreement, the settlements are not the reason for the lack of Israeli–Palestinian peace.
Whether settlements are illegal essentially depends on the interpretation of one sentence in the 1949 Fourth Geneva Convention. Article 49(6) prohibits the transfer of civilians into occupied territories. (“The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”) Article 49 concerns the forced transfer of civilians into and out of occupied territories, and was written in the context of the mass forced transfers by parties—principally Germany—during the Second World War. The UN and various governments interpret ‘transfer’ to mean permitted, voluntary movement, as well as forced transfer notwithstanding the fact that Israel has never forced any of its civilians into the West Bank or, before 2005, Gaza
The 1993 Declaration of Principles of Interim Self-Government Arrangements (or ‘Oslo I’) deferred the negotiation of numerous issues, including settlements, to final status talks. Israeli and Palestinian officials have attempted such final status negotiations on numerous occasions since 2000. On multiple occasions since that time, Israel has offered to withdraw from over 90 per cent of the West Bank, with land swaps to compensate for retained West Bank land. On every occasion, these proposals were either rejected without counter-proposal or not responded to by the Palestinian negotiating team. Palestinians are currently refusing to enter into negotiations with Israel.