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Old Legal Opinion Raises New Questions
1979 State Dept. Document Found Israeli Settlements 'Inconsistent' With the Law

By Glenn Kessler
Washington Post Staff Writer
Wednesday, June 17, 2009

Thirty years ago, the State Department legal adviser issued an opinion in response to an inquiry from Congress: The establishment of Israeli settlements in occupied Palestinian territories "is inconsistent with international law."

The opinion cited Article 49 of the Fourth Geneva Convention, which states that an occupying power "shall not deport or transfer parts of its own civilian population into the territory it occupies." Israel has insisted that the Geneva Convention does not apply to settlers and broadly contests assertions of the settlements' illegality.

Despite the passage of time, the legal opinion, issued during the Carter administration, has never been revoked or revised. President Ronald Reagan said he disagreed with it -- he called the settlements "not illegal" -- but his State Department did not seek to issue a new opinion.

But Secretary of State Hillary Rodham Clinton is unlikely to bring up the U.S. opinion when she meets today with Israeli Foreign Minister Avigdor Lieberman at the State Department. Lieberman lives in a West Bank settlement, Nokdim, that was established in 1982 as a tent encampment of six families and now has more than 800 residents.

Despite repeated inquiries over the past week, State Department spokesmen declined to say whether the 1979 legal opinion is still the policy of the U.S. government.

"The United States does not accept the legitimacy of continued settlements," said State Department spokesman Ian Kelly, echoing President Obama's speech this month in Cairo. Israel has an obligation "to freeze all settlement activity," he added, but he avoided questions about the 1979 legal opinion.

The Obama administration has also declined to answer questions about whether a letter that President George W. Bush issued in 2004 is still the policy of the United States. Bush stated that Israel could expect to keep large settlement blocks in any peace deal.

The administration has preferred to act as if the slate has been wiped clean, but the president's tough stance suggested that the 1979 legal opinion might have new relevance.

"As far as I know, I don't think it has ever been rescinded or challenged by any legal officer of the United States government," said Herbert J. Hansel, the former legal adviser who wrote the opinion. "Ronald Reagan expressed his opinion. But whatever you think of him, he was obviously not a lawyer. It still stands as the only definitive opinion of the U.S. government from a legal standpoint."

Israeli Embassy spokesman Jonathan Peled said the opinion has been overtaken by events. "There have been many developments in the region since the 1970s, including a series of agreements that have stipulated that the issue of settlements will be discussed and resolved in permanent status negotiations with the Palestinians," he said.

Israeli Prime Minister Binyamin Netanyahu, in a speech Sunday, declared the West Bank to be "the land of our forefathers" but noted that "within this homeland lives a large Palestinian community."

Aaron David Miller, a former peace negotiator, said successive U.S. administrations generally have chosen to dance around the question of the legality of settlements. President George H.W. Bush briefly considered declaring the settlements illegal in 1989 after he believed Israeli Prime Minister Yitzhak Shamir had lied to him about a settlement freeze, but he was talked out of doing so by Secretary of State James A. Baker III, according to Miller, at the time a Baker aide.

"Baker thought it was a diversion," and instead, he could pressure Israel on settlements more effectively with diplomatic tools, Miller said.

George J. Mitchell, U.S. special envoy for Middle East peace, said yesterday that the administration is sticking to its demands that Israel halt settlement activity. He dismissed as "highly inaccurate" media reports in Israel that the administration is close to a deal that would allow for "natural growth" of settlements within current boundaries.

Mitchell repeatedly ducked questions about the administration's definition of "natural growth." He said the most common definition he has heard is "babies," but then would not say whether that is the administration's definition. An administration official said later that Mitchell declined to offer a definition because the administration rejects the concept. "You don't define an exception because we are not offering any exceptions," he said.

In his speech Sunday, Netanyahu rejected the demands for a freeze. "We have no intention of building new settlements or of expropriating additional land for existing settlements," he said. "But there is a need to enable the residents to live normal lives, to allow mothers and fathers to raise their children like families elsewhere."

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