settlements are illegal because the entire international community agrees they are illegal. As with Jerusalem and the Golan Heights, the Trump administration has refused to be cowed by a hollow consensus. By dissenting, the U.S. has destroyed both the consensus and the frail arguments that relied on it.<\/p>\n\n\n\n
The four-page 1978 memo, written by legal adviser Herbert Hansell, was hardly a thorough study. It painted with broad strokes across several issues and cited no precedent for its key conclusions. Most important, its legal analysis of occupation and settlements has never been applied, by the U.S. or anyone else, to any other comparable situation.<\/p>\n\n\n\n
Hansell\u2019s memo took two analytic steps. First, it concluded that Israel was an \u201coccupying power\u201d in the West Bank. Next, it invoked an obscure provision of the Fourth Geneva Convention, which says the \u201cOccupying Power shall not deport or transfer parts of its civilian population into the territory it occupies.\u201d Hansell concluded that Jews who have moved past the Green Line into disputed territory have somehow been \u201cdeported or transferred\u201d there by the state of Israel.<\/p>\n\n\n\n
Under international law, occupation occurs when a country takes over the sovereign territory of another country. But the West Bank was never part of Jordan, which seized it in 1949 and ethnically cleansed its entire Jewish population. Nor was it ever the site of an Arab Palestinian state.<\/p>\n\n\n\n
Moreover, a country cannot occupy territory to which it has sovereign title, and Israel has the strongest claim to the land. International law holds that a new country inherits the borders of the prior geopolitical unit in that territory. Israel was preceded by the League of Nations Mandate for Palestine, whose borders included the West Bank. Hansell\u2019s memo fails to discuss this principle for determining borders, which has been applied everywhere from Syria and Lebanon to post-Soviet Russia and Ukraine.<\/p>\n\n\n\n
Even on its own terms, the memo\u2019s conclusions no longer apply. Because occupation is part of the law of war, Hansell wrote, the state of occupation would end if Israel entered into a peace treaty with Jordan. In 1994 Jerusalem and Amman signed a full and unconditional peace treaty, but the State Department neglected to update the memo.<\/p>\n\n\n\n
Even if there were an occupation, the notion that it creates an impermeable demographic bubble around the territory\u2014no Jew can move in\u2014has no basis in the history or application of the Fourth Geneva Convention. Almost every prolonged occupation since 1949\u2014from the Allies\u2019 40-year administration of West Berlin to Turkey\u2019s 2016 occupation of northern Syria\u2014has seen population movement into the occupied territory. In none of these cases has the U.S., or the United Nations, ever claimed a violation of this Geneva Convention provision.<\/p>\n\n\n\n
Mr. Pompeo\u2019s action shows the U.S. understands that we can\u2019t have one international law for one country and another for the rest of the world.<\/p>\n\n\n\n