U.S. Government Policy on Israeli Settlement in the Occupied Territories -- 1967-1996

Israel's responsibilities in the territories it occupied in June 1967 are defined by the international consensus embodied in The Hague Convention of 1907 and the Geneva Convention of 1949. Paragraph 6 of Article 49 of the Fourth Geneva Convention on Protection of Civilian Persons in Time of War states, "The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies."

Successive Israeli governments, however, have denied the applicability of such constraints to their right to settle their own population in the occupied territories. The U.S. position on the status of Israeli settlements has undergone numerous revisions since 1967. Highlights of the evolution follow.

The Johnson Administration

Israel's settlement program was in its infancy during the presidency of Lyndon B. Johnson. Shortly before leaving office, Johnson declared,

"Arab governments must convince Israel and the world community that they have abandoned the idea of destroying Israel. But equally, Israel must persuade its Arab neighbors and the world community that Israel has no expansionist designs on their territory."

The Nixon Administration

"The expropriation or confiscation of land, the construction of housing on such land, the demolition or confiscation of buildings, including those having historic or religious significance, and the application of Israeli law to occupied portions of the city are detrimental to our common interests in [Jerusalem]. The United States considers that the part of Jerusalem that came under the control of Israel in the June war, like other areas occupied by Israel, is governing the rights and obligations of an occupying Power. Among the provisions of international law which bind Israel, as they would bind any occupier, are the provisions that the occupier has no right to make changes in laws or in administration other than those which are temporarily necessitated by his security interests, and that an occupier may not confiscate or destroy private property. The pattern of behavior authorized under the Geneva Convention and international law is clear: the occupier must maintain the occupied area as intact and unaltered as possible, without interfering with the customary life of the area, and any changes must be necessitated by the immediate needs of the occupation. I regret to say that the actions of Israel in the occupied portion of Jerusalem present a different picture, one which gives rise to understandable concern that the eventual disposition of East Jerusalem may be prejudiced, and that the private rights and activities of the population are already being affected and altered.

"My Government regrets and deplores this pattern of activity, and it has so informed the Government of Israel on numerous occasions since June 1967. We have consistently refused to recognize those measures as having anything but a provisional character and do not accept them as affecting the ultimate status of Jerusalem. . . ."

"As a matter of policy, we do not provide assistance to the Israeli Government for projects in the occupied territories.

"On the general question of constructing housing and other permanent civilian facilities in the occupied zone, including Jerusalem, our policy is to call for strict observance of the Fourth Geneva Convention of 1949, to which Israel is a party. This Convention prohibits an occupying power from transferring parts of its own population into occupied territory. We interpret this to include undertaking construction of permanent facilities which have the intent of facilitating transfer of Israeli population into the occupied territories."

Except for opposition to Israel's decision to annex East Jerusalem, the Nixon administration did not make specific reference to Israeli settlement activities until the issue was debated at the UN in 1971:

"We regret Israel's failure to acknowledge its obligations under the Fourth Geneva Convention as well as its actions which are contrary to the letter and the spirit of this convention."

The State Department's deputy legal adviser, George H. Aldrich, reaffirmed this position, which applied as well to annexed East Jerusalem, when he noted in April 1973,

"Israel, as occupant of the territories seized during the fighting in 1967, is bound by the Fourth Geneva Convention--that for the protection of civilians--but Israel refuses to apply the convention."

The Ford administration upheld the interpretation formulated in the Nixon years. During a Security Council debate on the situation in the occupied territories occasioned by the establishment of the first Israeli settlement in the West Bank's northern hills, U.S. Ambassador to the United Nations William Scranton told the Security Council on March 23, 1976,

"[S]ubstantial resettlement of the Israeli civilian population in occupied territories, including East Jerusalem, is illegal under the convention and cannot be considered to have prejudged the outcome of future negotiations between the parties on the locations of the borders of states of the Middle East. Indeed, the presence of these settlements is seen by my government as an obstacle to the success of the negotiations for a just and final peace between Israel and its neighbors."

, talks with Prime Minister Menachem Begin in July 1977:

"I then explained to the Prime Minister how serious an obstacle to peace were the Israeli settlements being established within the occupied territories. . . . I reminded Begin that the position of the United States had always been that any settlements established on lands occupied by military force were in violation of international law."

At Camp David, President Carter thought he had won Israel's approval for a freeze on the construction of new settlements for the duration of post-summit negotiations. Israel claimed a moratorium of only three months had been agreed to, and that it did not cover the "expansion" and "strengthening" of existing settlements.

The State Department's legal adviser, Herbert Hansell, informed Congress that "the establishment of the civilian settlements in those [occupied] territories is inconsistent with international law."

U.S. characterization of settlements as "illegal" was reaffirmed by Secretary of State Cyrus Vance in testimony before Congress on March 21, 1980:

"U.S. policy toward the establishment of Israeli settlements in the occupied territories is unequivocal and has long been a matter of public record. We consider it to be contrary to international law and an impediment to the successful conclusion of the Middle East peace process. . . .

"Article 49, paragraph 6, of the Fourth Geneva Convention is, in my judgment, and has been in the judgment of each of the legal advisors of the State Department for many, many years, to be . . . that [settlements] are illegal and that [the Convention] applies to the territories. . . ."

Carter confirmed in an April 1980 interview that "our position on the settlements is very clear. We do not think they are legal."

President Ronald Reagan was determined to forge a "strategic consensus" with Israel and was therefore less inclined to dispute continuing Israeli settlement. The writings of former Under Secretary of State Eugene V. Rostow offered legal cachet to Reagan's revision of U.S. policy, explained in a February 2, 1981, interview:

"As to the West Bank and the settlement there, I disagree with the previous administration as they referred to them as illegal. They're not illegal--not under U.N. resolutions that leave the West Bank open to all people, Arab and Israeli alike. . . ."

In Reagan's view, Israeli settlement was not illegal, but merely "ill-advised" and "unnecessarily provocative."

The State Department sought to reassert the customary U.S. policy. Nicholas Veliotes, assistant secretary of state for Near Eastern and South Asian Affairs told Congress in October 1981 that "the establishment of the civilian settlements in those territories is inconsistent with international law. . . ."

There was no clear articulation of U.S. policy on this issue. Secretary of State George Shultz merely added to the confusion when he told a news conference a few days before unveiling the Reagan Plan in September 1982 that ". . . the question isn't whether they [settlements] are legal or illegal; the question is are they constructive in the effort to arrange a situation that may, in the end, be a peaceful one. . . . [President Reagan's] answer to that is no, expansion of those settlements is not a constructive move."

The Reagan Plan states that "the United States will not support the use of any additional land for the purpose of settlements during the transition period (5 years after Palestinian election for a self-governing authority). Indeed, the immediate adoption of a settlements freeze by Israel, more than any other action, could create the confidence needed for wider participation in these talks. Further settlement activity is in no way necessary for the security of Israel and only diminishes the confidence of the Arabs that a final outcome can be freely and fairly negotiated."

President George Bush reiterated that East Jerusalem was considered occupied territory. The Bush administration did not revert to the pre-Reagan administration characterization of Israeli settlement activities as illegal, but Secretary of State James Baker characterized settlement as "de facto annexation." For the first time, however, the U.S. agreed to the natural growth of the settlement population at an August 1992 meeting between President Bush and Prime Minister Yitzhak Rabin.

Secretary Baker in testimony before the Foreign Operations Subcommittee of the House Appropriations Committee on May 22, 1991, said, "Every time I have gone to Israel in connection with the peace process on each of my four trips, I have been met with the announcement of new settlement activity. This does violate United States policy. It's the first thing that Arabs--Arab governments, the first thing the Palestinians in the territories--whose situation is really quite desperate--the first thing they raise with us when we talk to them. I don't think that there is any bigger obstacle to peace than the settlement activity that continues not only unabated but at an enhanced pace. And nothing has made my job of trying to find Arab and Palestinian partners for Israel more difficult than being greeted by a new settlement every time I arrive. . . . I have about decided that we're not going to get any movement on settlement activity before we--at least before we have an active peace process going, and it's going to be just that much more difficult to get a peace process going if we can't get any action on settlement activity. . . ."

When President Bush was asked about Baker's criticism of Israel's settlement policy, he told reporters, "Secretary Baker was speaking for this administration, and I strongly support what he said. . . . It would make a big contribution to peace if these settlements would stop. That's what the secretary was trying to say . . . and I'm one hundred percent for him."

During the term of Israel's Labor-led governments, the Clinton administration reiterated its defense of the policy supporting the "natural growth" of the settlement population. In the wake of the Oslo accords, U.S. opposition to settlements was muted:

"In the past, settlement activity has created a great deal of tension and it has been a complicating factor in the Middle East, and in relations between Israel and the Palestinians and others. We certainly believe that to be true.

"I think it's also true that Israel and the Palestinians have decided to resolve this question, if they can, in the context of the final status talks. . . . So it's up to them now to resolve that problem, but it has been a matter of tension and complication in the past, certainly.

The election of Benjamin Netanyahu in May 1996 raised questions about U.S. policy.

: ". . . I take it that we oppose settlements on the West Bank. Is that still U.S. policy?"

: "I think we'll have to adapt our policy to the current situation. That was our policy. There's been no change in that policy. But I would want to keep open the situation of adapting our policy to the situation as it develops, as this new [Israeli] administration forms its government and begins to develop its own policies."