In 1978, Herbert Hansell, then the legal adviser to Jimmy Carter’s State Department, composed a memorandum arguing that any Israeli civilian settlement in lands taken during the Six-Day War was a violation of international law and the Geneva Convention. U.S. policy on the settlements changed under subsequent administrations, but recently Secretary of State Mike Pompeo has gone so far as to reject the Hansell memo explicitly. While this decision is undoubtedly for the best, writes Vivian Bercovici, its significance should not be overstated:
In his November statement, Pompeo noted that the settlements are not “per-se” illegal; meaning that they are not in themselves intrinsically illegal. Last Wednesday, the secretary of state said that the settlements were not “inherently” illegal—meaning in a permanent, immutable, or fundamental way.
As I understand [it], the language remains somewhat equivocal, leaving Pompeo some wiggle room for future negotiations, interpretations, and so forth. . . . Pompeo explicitly rejects the Hansell memo. But he stops short of an unequivocal declaration on the legality of all settlement activity by qualifying them as not being inherently illegal. Otherwise, why split hairs? Why not just omit “inherently”?
I know from direct experience that there are many Hansell-like memos and “opinions” yellowing in the off-site archives of numerous foreign services. Diplomatic thinking on the issue [of the settlements] has been frozen for 40 years, reflecting a blind commitment to the falsehood of chronic Israeli breaches of the Geneva Convention. The fact that Israel defended its eastern border from an unprovoked attack by Jordan, and subsequently trounced the kingdom’s forces, made the Six-Day War a defensive war, which is treated very differently under international law. But that doesn’t fit the upside-down narrative that has captured the imaginations of generations of leaders and foreign-policy influencers: that Israel is the aggressor and chief violator of international decency.
Pompeo should be commended for exposing the Hansell sham, but he has by no means slain the beast.