The settlements are neither, 'illegitimate' nor 'illegal'

Secretary Clinton delivered a speech at the Brookings Institution in December 2010 in which she said, "We do not accept the legitimacy of continued settlement activity." 

In her recent interview with Christine Amanpour, she said, "I think it is absolutely clear to say, number one, that it's been American policy for many years that settlements were illegitimate."

So America's position has progressed from considering "continued settlement activity" as illegitimate to considering the settlements themselves as illegitimate.  Is this a change in US policy?  Time will tell.

One must ask whether there is a distinction to be made between settlements and settlement activity and between illegal and illegitimate.

The Oslo Accords were silent on the settlements other than to say they were a final status issue. No mention was made of "settlement activity."

The Roadmap  provides, "GOI immediately dismantles settlement outposts erected since March 2001." and "Consistent with the Mitchell Report, GOI freezes all settlement activity (including natural growth of settlements)". Clearly here the settlements themselves are not illegal or even illegitimate.

But what about, "settlement activity"?  To be "consistent with the Mitchell Report" for this recommendation to be adhered to, the Palestinians would have to adhere to Mitchell's' recommendations for them, namely,

- "The PA and GOI should resume their efforts to identify, condemn and discourage incitement in all its forms.

- "The PA should make clear through concrete action to Palestinians and Israelis alike that terrorism is reprehensible and unacceptable, and that the PA will make a 100 percent effort to prevent terrorist operations and to punish perpetrators. This effort should include immediate steps to apprehend and incarcerate terrorists operating within the PA's jurisdiction."

Clearly the PA, which includes Hamas, has not in any way complied. Thus Israel has no obligation to comply.

Dictionaries do not make a distinction between "illegal" and ‘illegitimate" and in fact define ‘illegitimate' as ‘illegal' or ‘unlawful'. To be so, there must be a law that makes such activity unlawful or illegal or illegitimate. But there is no such law. And why is Obama and everyone else placing so much significance on a non existing difference? Clearly the rest of the UN including Europe has no such qualms.

The Road Map describes itself as a process, a roadmap if you will.  Even if acceptance of it amounts to a contract, which it doesn't, the failure to perform or the violation of any obligation would never be anything more than a breach of contract. It would never be called unlawful of illegitimate.

Nor are the settlements or settlement activity, illegal or illegitimate by international law. (See:  The Truth about ‘the Occupation' and ‘the Settlements' and Alan Baker and the Government of Israel Concede too much.)

Both the Oslo Accords and the roadmap required a negotiated solution

Ambassador Susan Rice agrees. In defense of the veto, she did not take a stand on whether the settlements were illegal, but did say,

"It is the Israelis' and Palestinians' conflict, and even the best-intentioned outsiders cannot resolve it for them....

"Therefore, every potential action must be measured against one overriding standard: Will it move the parties closer to negotiations and an agreement?

"Unfortunately, this draft resolution risks hardening the positions of both sides. It could encourage the parties to stay out of negotiations and, if and when they did resume, to return to the Security Council whenever they reach an impasse."

This is bottom line.  So why doesn't Obama take her advice and leave it to the parties. Instead he has inserted himself into the negotiations and has predetermined the outcome save for minutia to be negotiated,  Borders, settlements and Jerusalem are all final status issues to be negotiated.

The problem has been that the Quartet keeps supporting the demands of the PA and financing it, and thereby removes any incentive the PA might have to compromise. In effect, they make it possible for the PA harden its demands.

The Quartet used to argue against any steps by Israel which would predetermine the issues. But they are continually doing so by calling the settlements "illegal" and supporting the armistice lines as the borders and requiring Jerusalem to be divided. Is not the act of bringing this matter to the Security Council such a step by the PA? And they voted for it making them complicit.

The truth of the matter is that the Arab world, supported by the Quartet, wants no part of a negotiated settlement. They want Israel to accept the Arab Initiative, otherwise known as the Saudi Plan.

Although Obama vetoed this resolution, he also doesn't really want to leave it to Israel to decide what to hold out for in negotiations.  He wants to pressure Israel to make concessions in its negotiations to make an agreement more likely. Its just like an imposed solution, only better. It certainly isn't what is meant by a ‘negotiated settlement".

Ted Belman is a retired lawyer and editor of He made aliya two years ago and is now living in Jerusalem.
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