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US policy shift undermines Israel's legal rationale for military courts in the West Bank

[22 November 2019] – The recent statement by US Secretary of State, Mike Pompeo, that “the establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law” by implication rejects the application of the Fourth Geneva Convention (the Convention) to the West Bank. It is this Convention that forms the legal basis for the prohibition against settlements. That the Convention does apply to the West Bank is a position taken by, inter alia, over 40 UN Security Council resolutions adopted between 1967 and 2016; an advisory opinion of the International Court of Justice; and the stated position of the international community for the past 52 years.

Perhaps one unintended consequence arising from the Secretary of State’s announcement is that US policy now contradicts Israel’s own legal rationale for prosecuting Palestinian civilians, including children, in military courts in the West Bank. Following the occupation of the West Bank on 7 June 1967, Israel’s military commander imposed martial law over the territory and established military courts to prosecute violations. This action was lawful, on a temporary basis, pursuant to articles 64 and 66 of the Convention. In fact, the military order (No. 3) that established the courts expressly referenced the Convention as the legal basis upon which Israel was acting.
In the months following June 1967, Israel’s military lawyers were forced to fudge this reliance on the Convention after the political decision was taken to allow settlement construction in the newly occupied territory – something prohibited by article 49 of the Convention. And so the military lawyers drafted an amendment to Military Order No. 3 which simply deleted all references to the Convention – but still Palestinians were prosecuted in their tens of thousands in the military courts. 
Fifty-two years later and Palestinians in the West Bank continue to be prosecuted in Israeli military courts for offences ranging from traffic infringements, peaceful assembly, Facebook postings, rock throwing, weapons offences and killings. But while references to the Convention have long been erased from the official orders – the Convention is still the legal basis for prosecuting these civilians in military courts. Indeed, in somewhat contradictory fashion, the army unit responsible for the military courts continues to distribute information leaflets at Ofer military court near Jerusalem, referencing the Convention as the justification for the continued existence of these courts in 2019. 
Into this well-established legal framework has stumbled Mike Pompeo, who has now cast further doubt over the lawfulness of Israel’s military courts in the West Bank, which in 2017, issued over 10,000 indictments and raised 6 million US dollars in fines. Pompeo’s statement also casts doubt on the lawfulness of holding 4,792 Palestinians, including 188 children, currently in Israeli military custody. And all of this before one even considers how this latest gyration undermines the credibility of US policy towards Russian activity in Crimea and Chinese actions in the South China Sea.
US Secretary of State, Mike Pompeo’s full statement on settlements, 18 November 2019 - 
“Turning now to Israel, the Trump administration is reversing the Obama administration’s approach towards Israeli settlements.
US public statements on settlement activities in the West Bank have been inconsistent over decades. In 1978, the Carter administration categorically concluded that Israel’s establishment of civilian settlements was inconsistent with international law. However, in 1981, President Reagan disagreed with that conclusion and stated that he didn’t believe that the settlements were inherently illegal.
Subsequent administrations recognized that unrestrained settlement activity could be an obstacle to peace, but they wisely and prudently recognized that dwelling on legal positions didn’t advance peace. However, in December 2016, at the very end of the previous administration, Secretary Kerry changed decades of this careful, bipartisan approach by publicly reaffirming the supposed illegality of settlements.
After carefully studying all sides of the legal debate, this administration agrees with President Reagan. The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.
I want to emphasize several important considerations.
First, look, we recognize that, as Israeli courts have, the legal conclusions relating to individual settlements must depend on an assessment of specific facts and circumstances on the ground. Therefore, the United States Government is expressing no view on the legal status of any individual settlement.
The Israeli legal system affords an opportunity to challenge settlement activity and assess humanitarian considerations connected to it. Israeli courts have confirmed the legality of certain settlement activities and has concluded that others cannot be legally sustained.
Second, we are not addressing or prejudging the ultimate status of the West Bank. This is for the Israelis and the Palestinians to negotiate. International law does not compel a particular outcome, nor create any legal obstacle to a negotiated resolution.
Third, the conclusion that we will no longer recognize Israeli settlements as per se inconsistent with international law is based on the unique facts, history, and circumstances presented by the establishment of civilian settlements in the West Bank. Our decision today does not prejudice or decide legal conclusions regarding situations in any other parts of the world.
And finally, finally, calling the establishment of civilian settlements inconsistent with international law hasn’t worked. It hasn’t advanced the cause of peace.
The hard truth is there will never be a judicial resolution to the conflict, and arguments about who is right and wrong as a matter of international law will not bring peace. This is a complex political problem that can only be solved by negotiations between the Israelis and the Palestinians.
The United States remains deeply committed to helping facilitate peace, and I will do everything I can to help this cause. The United States encourages the Israelis and the Palestinians to resolve the status of Israeli settlements in the West Bank in any final status negotiations.
And further, we encourage both sides to find a solution that promotes, protects the security and welfare of Palestinians and Israelis alike.”