Why the conclusions of a 1978 US State Department memorandum have been repudiated.
By Eugene Kontorovich - JANUARY 4, 2020
A full century after the international community met in Paris and San Remo to establish a post-imperial world order founded on independent nation states, the international community has, under the leadership of US President Donald Trump, begun to fully implement the promises and undertakings they made then.
At San Remo, the Jews were promised a “national home” in Palestine, and an explicit right to “settle” throughout the territory, which included Judea and Samaria. The international community did nothing to implement this promise, or ensure its fulfillment in the face of reluctance by the Mandatory government and growing anti-immigrant xenophobia by local Arabs. It was left entirely up to the Jews to translate the international promises into facts on the ground, and in 1948 they partially did so, though with much of the territory, including the holy sites, falling to the Jordanians.
After Israel retook these territories in 1967, much of the international community pretended its earlier guarantees did not exist. Far from allowing Jewish “settlement,” they claim that the areas Jordan ethnically cleansed of Jews in 1948 must indefinitely remain Jew-free zones, policed by Israel to prevent any Hebraic infiltration.
Yet 100 years after the Paris Conference, a leader emerged who was prepared to actualize the commitments the League of Nations had then made. President Trump’s recognition of a united Jerusalem, and Secretary of State Mike Pompeo’s conclusion that Jewish communities in Judea and Samaria are not war crimes represent a proper understanding of the legal significance of the League of Nations Mandate. More importantly, they are perhaps the first leaders who refuse to subordinate Israel’s legal rights to political blackmail from Arab states.
The post-World War I peace arrangements, begun in Paris in 1919 and culminating in San Remo the following year, gave rise to the states of Syria, Lebanon, Iraq, Jordan and Israel, as well as the borders of those countries and all of their neighbors.
It is easy to criticize the artificiality of the countries established by the League of Nations. But in a world, and particularly a region, where ethnic and religious groups live intermixed and not separated into grid-like boxes, some arbitrariness of borders is inevitable. Every League of Nations-mandated territory lumped an unhappy minority in with a majority: the Muslims in with Lebanon’s Christians, the Kurds with Iraq’s Arabs, everyone with everyone in Syria. The process was imperfect, but the known alternatives are what existed before – a vast pan-ethnic empire – or every group trying to carve out its own sliver of territory, which ends up looking like Syria over the past eight years.
This is why the post-World War I borders are overwhelmingly accepted as the binding sovereign borders of the countries that arose in the British Mandatory territories. Both Kurdish secession and Syrian annexation of Lebanon get no international support because they would call into question Mandatory borders.
There is one place in the Middle East where the international community takes the entirely opposite position about Mandatory borders. And that, of course, is Israel.
While the Pompeo statement did not say anything about borders, it did reclaim the San Remo principle that Jewish settlement is not illegal. The legal basis for this deserves some discussion.
Pompeo repudiated the conclusions of a 1978 memorandum by the State Department legal advisor Herbert Hansell. The memo’s conclusions had already been rejected by then-president Ronald Reagan, but it had never been formally retracted.
The four-page memo jumped in broad strokes across major issues, and cited no precedent for its major conclusions. Indeed, in the decades since, its legal analysis of occupation and settlements has consistently not been applied by the US, or other nations, to any other comparable geopolitical facts. It was always what lawyers call a “one-ride ticket” applicable just for Israel.
Hansell’s memo had two analytic steps. First, he concluded that Israel was an “occupying power” in the West Bank. That triggers the application of the Geneva Conventions. He then invoked an obscure provision of the Fourth Geneva Convention that had never been applied to any other situation before (or since). It says the “occupying power shall not deport or transfer its civilian population” into the territory it occupies.
Hansell, without much discussion, concluded that Jews who move just over the Green Line have somehow been “deported or transferred” there by the State of Israel. In short, he read a prohibition on Turkish-style population transfer schemes as requirement that Israel permanently prevent its Jews from living in those areas that Jordan had ethnically cleansed during its administration.
Under international law, occupation occurs when a country takes over territory that is under the sovereignty of another country. This is why borders of countries arising in former Mandatory territories are those of the relevant Mandate. That, for example, is why Russia is considered an occupying power in Crimea, even though most of its population is Russian and it has historically been part of Russia. Yet due to internal Soviet reallocations, when Ukraine became independent, Crimea was incorporated into the borders of its predecessor, the Ukrainian Soviet Socialist Republic. For international law, this establishes clear Ukrainian sovereignty, even over the self-determination objections of a local ethnic majority.
But the West Bank was never part of Jordan. To the contrary, it was territory that Jordan itself had seized in 1949.
Moreover, a country cannot occupy territory to which it has sovereign title. Israel has the strongest sovereign claim to the territory. In international law, a new country inherits the borders of the prior geopolitical unit in that territory. In this case, that unit was the League of Nations Mandate for Palestine. Hansell’s memo fails to even discuss this globally-applied principle for determining borders. The Hansell memo also failed the test of history and of generalizability. The State Department has not applied its definition of “occupation” to Moroccan-controlled Western Sahara, Dutch New Guinea, or any other situation where territory that changed hands in war did not have a clear prior sovereign.
But even by its own terms, the memo’s conclusions no longer apply. Hansell specifically stated that the state of occupation would no longer exist if Israel entered into a peace treaty with Jordan. That is because the law of occupation is part of the law of war; it has no applicability in time of peace. Jordan signed a full and unconditional peace treaty with Israel in 1994, making the memo moot.
The separate notion that an occupation creates an impermeable demographic bubble around the territory has no basis in the history or subsequent application of the Fourth Geneva Convention. In an academic study, I have shown that almost all prolonged occupations of territory since 1949 – including America’s 40-year administration of West Berlin – have seen population movement into the occupied territory. In some of these cases, like Western Sahara and Northern Cyprus, the demographic effect has been huge. In none of these cases has the US, or the UN, claimed a violation of the Geneva Conventions.
The writer is a professor at George Mason University Antonin Scalia Law School, and the director of its Center for International Law in the Middle East, and a scholar at the Kohelet Policy Forum in Jerusalem.
This article was originally published by The Jerusalem Post and can be viewed on their site by clicking here.