Biden administration restores Trump-rescinded policy on illegitimacy of Israeli settlements

The Biden administration on Friday restored a U.S. legal finding dating back nearly 50 years that Israeli settlements in the occupied Palestinian territories are “illegitimate” under international law.

Secretary of State Antony Blinken said the U.S. believes settlements are inconsistent with Israel’s obligations, reversing a determination made by his predecessor, Mike Pompeo, in the Biden administration’s latest shift away from the pro-Israel policies pursued by former President Donald Trump.

Blinken’s comments came in response to a reporter’s question about an announcement that Israel would build more than 3,300 new homes in West Bank settlements as a riposte to a fatal Palestinian shooting attack, were later echoed by a White House spokesman.

It wasn’t clear why Blinken chose this moment, more than three years into his tenure, to reverse Pompeo’s decision. But it came at a time of growing U.S.-Israeli tensions over the war in Gaza, with the latest settlement announcement only adding to the strain. It also comes as the United Nations’ highest Court, the International Court of Justice, is holding hearings into the legality of the Israeli occupation.

Biden administration officials did not cast Blinken’s comments as a reversal – but only because they claim Pompeo’s determination was never issued formally. Biden administration lawyers concluded Pompeo’s determination was merely his opinion and not legally binding, according to two administration officials who spoke on condition of anonymity to discuss private discussions.

But formally issued or not, Pompeo’s announcement in November 2019 was widely accepted as U.S. policy and had not been publicly repudiated until Blinken spoke on Friday.

Speaking in the Argentine capital of Buenos Aires, Blinken said the U.S. was “disappointed” to learn of the new settlement plan announced by Israel’s far-right firebrand finance minister Bezalel Smotrich after three Palestinian gunmen opened fire on cars near the Maale Adumim settlement, killing one Israeli and wounding five.

Blinken condemned the attack but said the U.S. is opposed to settlement expansion and made clear that Washington would once again abide by the Carter administration-era legal finding that determined settlements were not consistent with international law.

“It’s been longstanding U.S. policy under Republican and Democratic administrations alike that new settlements are counter-productive to reaching an enduring peace,” he said in his news conference with Argentine Foreign Minister Diana Mondino.

“They’re also inconsistent with international law. Our administration maintains a firm opposition to settlement expansion and in our judgment this only weakens, it doesn’t strengthen, Israel’s security,” Blinken said.

For decades, U.S. policy on settlements was guided by the 1978 determination known as the “Hansell Memorandum,” which was penned by the State Department’s then-legal adviser Herbert Hansell. Hansell’s finding did not say that settlements were “illegal” but rather “illegitimate.” Nonetheless, that memorandum shaped decades of U.S. policy on the issue.

Pompeo repudiated that policy in November 2019. The Biden administration had long considered re-implementing it as it sought to adjust its Middle East strategy. Those deliberations had picked up steam as Israel’s response to the Oct. 7 Hamas attacks drew increasingly intense international criticism.

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