On November 18, 2019, Secretary of State Mike Pompeo stated that the “establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.”Footnote ¹ This announcement contrasts with the approach taken by the State Department late in the Obama administration. Although embraced by Israel, the position announced by Pompeo was criticized by Palestinians, Security Council members and other states, who maintain that Israeli settlements in the West Bank violate international law. In January of 2020, the Trump administration released its proposed peace plan for the Israelis and Palestinians, which met with approval from Israeli leaders and rejection from Palestinian leaders.

Israeli citizens began moving to the West Bank after Israel captured the territory in the Six-Day War in 1967, and U.S. perspectives about the legality of the settlements have varied over the course of different administrations. The Carter administration declared the settlements to be illegal in a State Department letter, concluding that “[w]hile Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation … the civilian settlements in those territories is inconsistent with international law.”Footnote ² In 1981, President Reagan told reporters that he disagreed with his predecessor's position and did not consider the settlements to be illegal.Footnote ³ President George H.W. Bush called the settlements “counterproductive to peace,”Footnote ⁴ but his administration did not describe them as illegal.Footnote ⁵ The Clinton and George W. Bush administrations raised various criticisms related to settlements, but did not expressly declare them to be illegal.Footnote ⁶

In a 2009 speech, President Obama stated that the “United States does not accept the legitimacy of continued Israeli settlements” without speaking directly to their legality.Footnote ⁷ At the end of his administration, however, the United States declined to veto Security Council Resolution 2334, which “[r]eaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967 … has no legal validity and constitutes a flagrant violation under international law … . ”Footnote ⁸ In remarks explaining the decision to abstain, Secretary of State John Kerry stated that the settlements, in combination with other actions, “destroy hopes for peace on both sides and increasingly cement[] an irreversible one-state reality.”Footnote ⁹ He observed that in “1978, the State Department Legal Adviser advised the Congress on his conclusion that Israel's government, the Israeli Government's program of establishing civilian settlements in the occupied territory is inconsistent with international law, and we see no change since then to affect that fundamental conclusion.”Footnote ¹⁰

Since taking office in 2017, President Trump has made other changes to previous administrations’ policies relating to Israel. In December 2017, Trump recognized Jerusalem as Israel's capital and moved the U.S. embassy to Jerusalem a few months later.Footnote ¹¹ In response, Palestine initiated a lawsuit in the International Court of Justice arguing that the relocation of the U.S. embassy to Jerusalem violates the Vienna Convention on Diplomatic Relations.Footnote ¹² Then, in March 2019, the Trump administration recognized Israeli sovereignty over the Golan Heights, another disputed territory that Israel captured during the Six-Day War.Footnote ¹³ Pompeo said that the U.S. decision does not set a precedent allowing territory to be taken from another country by force, describing the occupation of the Golan Heights as a “unique situation” because “the Israelis ended up with the Golan Heights as the result of having been attacked. … They were at risk of their very nation being overrun … and they defended themselves, and they retained that terrain to continue to defend themselves from the murderous regimes in Syria.”Footnote ¹⁴

At a press conference on November 18, 2019, Pompeo stated that “the Trump administration is reversing the Obama administration approach towards Israeli settlements.”Footnote ¹⁵ He elaborated:

Israeli Prime Minister Benjamin Netanyahu celebrated this announcement, saying that it “reflects an historical truth—that the Jewish people are not foreign colonialists in Judea and Samaria.”Footnote ¹⁷ Palestinian leaders, in contrast, were angered. Palestinian negotiator Saeb Erekat criticized the Trump administration for “threatening the international system with its unceasing attempts to replace international law with the ‘law of the jungle.’”Footnote ¹⁸ Palestinians in the West Bank responded to the announcement with a “day of rage,” protesting throughout the West Bank.Footnote ¹⁹

In his remarks, Pompeo did not explain the U.S. reasoning with respect to international law. The Fourth Geneva Convention (Convention) applies to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them” and “all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”Footnote ²⁰ Article 49 of the Convention provides that “[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”Footnote ²¹ The widely prevailing view is that—either directly, as reflective of customary international law, or both—the Convention applies to the occupation of the West Bank, and that Israeli settlements violate the Convention's prohibition on civilian population transfers.Footnote ²²

Many nations responded to Pompeo's announcement by reaffirming concerns about Israeli activity in the West Bank or by reiterating the conclusion that all Israeli settlements in the West Bank are illegal. On the day after Pompeo's announcement, the Third Committee of the General Assembly advanced a resolution on “The right of the Palestinian people to self-determination,” which calls for “an end to the Israeli occupation that began in 1967,” by a vote of 164 to five with nine abstentions.Footnote ²³ The votes in favor included Canada, which had voted “no” or abstained on similar resolutions for the past fourteen years.Footnote ²⁴ At a Security Council meeting two days after Pompeo's statement, most members of the Security Council called the settlements illegal and many criticized the United States for issuing a unilateral declaration of international law that contravenes the UN's position.Footnote ²⁵ UN Special Coordinator for the Middle East Peace Process Nickolay Mladenov called Israeli settlements “a flagrant violation of international law” and an obstacle to a peaceful solution at the meeting.Footnote ²⁶ The United Kingdom issued a statement reiterating its position that the settlements are illegal and urging Israel to “halt its counterproductive settlement expansion.”Footnote ²⁷ In December 2019, Fatou Bensouda, the prosecutor of the International Criminal Court, stated, in submitting a request for a jurisdictional ruling to the Court, that “Palestine's viability as a State (and the exercise of the Palestinian people's right to self-determination) has been obstructed by the expansion of settlements and the construction of the barrier and its associated regime in the West Bank, including East Jerusalem, in violation of international law.”Footnote ²⁸

The Trump administration's West Bank policy gained renewed international attention in late January of 2020, when Trump announced his Middle East peace plan. On the issue of West Bank settlements, the plan would “incorporate the vast majority of Israeli settlements into contiguous Israeli territory,” while calling on Israel to refrain during negotiations from building any new settlements or expanding existing settlements outside of the territory proposed for incorporation.Footnote ²⁹ The plan endorses a two-state solution, but makes the recognition of a Palestinian state contingent on Palestinian leaders “recognizing Israel as the Jewish state, rejecting terrorism in all its forms, allowing for special arrangements that address Israel's and the region's vital security needs, building effective institutions and choosing pragmatic solutions.”Footnote ³⁰ The capital of the Palestinian state would be East Jerusalem, while Jerusalem would be the undivided capital of Israel.Footnote ³¹

Netanyahu praised the plan as “a great plan for Israel” and “a great plan for peace.”Footnote ³² Meanwhile, Palestinian leaders rejected the plan as “nonsense.”Footnote ³³ Erekat said that the plan “specifies the elements of apartheid,”Footnote ³⁴ and Palestinian President Abbas said “[w]e say 1,000 no's” to the proposal.Footnote ³⁵ Some other countries in the region, including the United Arab Emirates,Footnote ³⁶ Saudi Arabia,Footnote ³⁷ and EgyptFootnote ³⁸ expressed appreciation for Trump's efforts to develop a comprehensive peace plan and expressed hope that it would launch negotiations between Israel and Palestine. UK Foreign Secretary Dominic Raab also called the plan “a serious proposal, reflecting extensive time and effort,” but noted that “[o]nly the leaders of Israel and the Palestinian territories can determine whether these proposals can meet the needs and aspirations of the people they represent.”Footnote ³⁹ Other countries strongly criticized the plan. Turkey described the plan as “an annexation plan aiming to destroy the two-state solution and seize the Palestinian territories” and said that “[t]here will be not be any peace in the Middle East without ending Israel's occupation policies.”Footnote ⁴⁰ German Foreign Minister Heiko Maas expressed concern about the plan's compliance with international law, saying that it raises questions concerning “how the proposal related to internationally agreed parameters and legal positions.”Footnote ⁴¹