On November 18, U.S. Secretary of State Mike Pompeo announced that it was the view of the U.S. government that Israeli settlements in the West Bank were not necessarily illegal according to international law. Since the announcement a torrent of words has poured forth, the proper parsing of which must start with a basic truth: the politics of this issue—and, more specifically, the relative power of relevant parties to achieve their political goals—always takes precedence over the legal aspects, never the other way around.

It does so in the U.S. government, now as before; it does so in the court of international opinion, broadly construed; and most important, it does so as well inside Israel. Put another way, the problems the settlements pose are neither exhausted nor subsumed by their legal aspects. That, in turn, renders the verbal kerfuffle of recent days something of a misleading distraction.

The core of the political issue comes down to an elementary judgment about a basic question: Should there be a Palestinian state of limited but not trivial sovereignty established in territories that are today called the West Bank, the Gaza Strip, and, for some but not others, East Jerusalem? There are today three and only three explicit answers to this question.

The first answer is “yes,” such a state should be established (whether with or without the inclusion of East Jerusalem), and that state should be established as a result of direct negotiations between Palestinian authorities and authorities representing the State of Israel. This is the answer that yields what is commonly called “the two-state” solution to what is, again commonly, called the Israeli-Palestinian conflict, and which is, again commonly, taken widely if not universally to be the core or heart of the wider Arab-Israeli conflict. The premise is that if the Palestinians in some reasonably construable political majority become satisfied with a negotiated outcome, then the Arab states and presumably other Arab non-state actors will be satisfied, too, so that the conflict will come to an end for all practical purposes. It is also, again commonly, understood that the 1993 Oslo Accords represented a major first step to reaching a two-state solution because it finally, publicly and definitively, established the precondition for that solution: mutual recognition of the rights of both sides to sovereignty in the territory of the post-World War I Palestine Mandate.

Within the ambit of answer number 1 Israeli settlements, initially justified as a temporary goad to negotiations and peace, have become an impediment by threatening in their growing multitude to foreclose anything like a fair settlement.

The second answer is “no,” such a state should not be established, because it would or could not for political reasons ever reconcile itself to living in peace with Israel. Such a state could come to pose an existential threat to the State of Israel, and no one can realistically expect any sovereign political community to risk committing suicide, certainly not on the principle basis of an international legal argument or claim.

Within the ambit of answer number 2 settlements, permanent and not temporary, are good precisely because they make a negotiated settlement yielding any outcome short of de facto Palestinian surrender less likely.

The third answer is “yes,” a Palestinian state should arise, but it should encompass what is today all of Israel since the establishment of Israel constituted an imperialist imposition on the local inhabitants of the country against the will of the majority population at the time. Within the ambit of answer number 3 settlements include Tel-Aviv.

Advocates of these three answers have directed associated lawyers to find language that supports their objectives. If they are well enough paid, or in some cases credibly enough threatened, some lawyers can always be found for such purposes. If you doubt that, you are advised simply to look at the current state of both Israeli and U.S. domestic political distempers, which finds beleaguered heads of government and their supporters willing to trash legal and other, ethical norms in order to save their own political skins, and to do so without the least apparent concern for the decay of institutional integrity and civic order these behaviors cause. Notice that there is no shortage of lawyers to help them do it.

For the advocates of the first answer, the term “occupied territory” best suits the purpose, because that term links to a body of international law that constrains what the occupying power may do. For advocates of the second answer, the term “disputed” territory best suits the purpose, because it constrains much less. For advocates of the third answer, the lawyers circumnavigate current international law, for that law is believed an extrusion of Western political culture dripping with the stench of imperialism and colonialism.

The para-legal claim that Israel should be subsumed by a “greater” Palestinian state in most cases rests precariously on latter-day interpretations and extensions of human rights law, the legitimacy of whose entire corpus is disputed (not least by Mike Pompeo[1]). A good example, from 1975, is the UN General Assembly resolution that aimed to delegitimize Israel by claiming that Zionism was a form of racism.

In other cases, advocates of the third answer rely not on any form of international law, but on two other forms of legal authority. One is shari’a: the Hamas Charter, for example, considers all of Palestine an inalienable Islamic endowment (waqf).[2] The second relies on a supposed higher law of “revolutionary justice”–think Ché Guevara, a terrorist who justified his many para- and extra-judicial murders on revolutionary Marxist-Leninist political grounds but that elide into deeper motives that any reader of Georges Sorel would immediately recognize.[3] The fact that the main schools of thought nowadays that deny Israel’s right to exist come from these very different points of view is more than interesting. It has bearing on the collision of those holding with answers one and two, of which more in a moment.

The Historical Backdrop

Clear so far? Good, because things are about to get complicated. In the more than half a century that has passed since June 1967, some unpredictably odd things have happened.

After the initial dust of the June 1967 war had settled, most Israelis believed that the territories taken from three Arab states—Egypt, Syria, and Jordan—should and would be returned in exchange for peace treaties. Israel would hold those territories in escrow as negotiating leverage until the Arab parties came to the same conclusion mainly for want of any viable and preferable alternatives.

In the case of Egypt, that expectation was redeemed in March 1979 by the Israeli-Egyptian peace treaty. Israel’s final evacuation from the occupied territory in question, Sinai, was completed in April 1982. Egypt occupied Gaza from 1948 to June 1967 but never annexed it; Israel did not return it with Sinai mainly because the Egyptians did not ask for or want it back.

In the case of Syria, that expectation has not yet been redeemed. The case is more complicated than was the Egyptian case because between Israel and Egypt there was a non-controversial international border, and the extent of Israeli settlements in Sinai was very minor. The Syria case involved discrepancies between the formal border designation between British mandatory Palestine and French mandatory Syria, fixed by the Newcombe-Paulet Commission in March 1923, and the armistice lines of 1949. Israeli-Syrian negotiations ever since have accepted the Newcombe-Paulet line as a relevant starting point (not the only one, however) for negotiations. The negotiations did not result in a peace treaty, but the reason bears little on strictly legal issues and only marginally on the problem of agreeing to the border.

There are Israeli settlements on Golan—indeed, entire towns, such as Katzrin—but no private land has been confiscated for the purpose, so fewer issues regarding the law of occupation have arisen. Roughly 100,000 Arabs fled the area during or just after the June 1967 War; about 7,000, nearly all Druze, remained. In that context Labor governments focused security-based settlement activity on Golan as a higher priority than the West Bank in the first half dozen or so years after the war.

Back in 1981 the first Israeli Likud government formally annexed the Golan Heights. The Trump Administration recognized the annexation nearly 28 years later, on March 25, 2019, and is the only state ever to have done so. This made no sense as a policy expression, so its actual purpose was clear: it was a political gift from President Trump to Prime Minister Netanyahu, from one politician in a pickle to another ideologically kindred “conservative nationalist” politician in a pickle. It was couched in terms of law and may have legal implications one day, but at base it had nothing to do with law. Keep this in mind, because it pertains directly to Pompeo’s November 18 statement.

The Jordanian case is the pertinent case at hand because the vast majority of Israeli settlements and settlers to which the Pompeo statement pertains are located in former Jordanian territory, and it is in the West Bank where contentions over the law of occupation are weightest. The basic history here, actual and legal, is well known. Here are the bare-bones facts.

In November 1947 the United Nations Special Commission on Palestine voted to partition the territory of the British Mandate for Palestine into a Jewish and an Arab state. (N.B.: The idea that the Balfour Declaration of November 1917 came with a map of the future Mandate, and the argument that the severing of the eastern part in 1922 to create the Emirate of Transjordan was a first and illegal partition, are composite revisionist bullshistory.[4]) Jerusalem was supposed to become an international zone. UNSCOP did not designate names for these two states.[5]

The Zionist Executive accepted partition. The Arab Higher Committee rejected it, as did publicly the Arab states of the recently formed Arab League.  War broke out; Israel prevailed; armistice agreements were signed in 1949 on the island of Rhodes.

All was not, however, as it seemed. The Zionist Executive had negotiated a secret deal with Emir Abdallah of the Hashemite Kingdom of Jordan in which the sides agreed to disagree about Jerusalem to the point that discussion of it was short and sour, but otherwise agreed to the Hashemite absorption of the territory set aside by the partition for the Arab state. Things did not work out as exactly as planned; fighting occurred over Jerusalem, the Latrun salient and elsewhere, and the 1949 armistice lines were not those of the 1947 partition lines. The two sides divided Jerusalem with a wall. But the basic deal came to pass: Abdallah annexed what remained of Arab Palestine, extirpating the name “Palestine” from the map by calling the land the West Bank. Only Britain and Pakistan recognized the annexation. No country formally recognized either Israeli or Jordanian sovereignty in any part of Jerusalem.

From June 1967 to the Rabat Summit of 1974 the general assumption was that a land-for-peace deal involving the West Bank would be between Israel and Jordan. The few settlements built during this early period, nearly all close to the Green Line, were justified on security grounds and on grounds that they would pressure the Arabs to agree to recognize Israel and negotiate peace. But the Rabat Summit designated the PLO as the interlocutor for Arab Palestine. Had secret Israeli-Jordanian negotiations in 1972 come to fruition, the Rabat verdict might have been pre-empted by new facts on the ground; but King Hussein hesitated.

The Jordanians straddled the inter-Arab politics of the issue until June 1988, when the King renounced Jordanian interests, para-legal and otherwise, in the West Bank (but not Jordanian control over the waqf on the Haram al-Sharaf in Jerusalem). The legal renunciation involved more than words: Arabs in the West Bank retained their Jordanian passports if they had one, but their citizenship rights were curtailed in practice and renewing passports became selectively problematic. More important here, since the Israeli-Jordanian peace treaty was negotiated after Jordan’s renunciation of responsibility and rights in the West Bank, it obviously did not deal with the task of turning the 1949 armistice lines into recognized international boundaries. There are to this day no such boundaries, a fact that casts a long legal shadow over prospective tussles concerning annexation. Between June 1988 and the Oslo Interim Agreement that set up of the Palestine Authority in 1995, no Arab party had clear legal standing in the West Bank. Arab residents there were stranded in limbo between the afterglow of ambiguous Jordanian citizenship and the equally ambiguous future of Palestinian citizenship. They were not technically stateless as were Gazans, but they were mighty close to it.

The U.S. Record

Given this situation, what was the position of the U.S. government? From the Johnson Administration through to the Carter Administration in 1978, the legal position was that the territories were occupied by Israel, and that therefore the law of occupation, which for practical purposes refers to the 1949 Geneva Conventions, was in effect. From June 1967 until late 1977, the Israeli government agreed. At that time no one expected the occupations to last for more than half a century. Alas, as Adam Ulam once said, “In international politics nothing endures like the provisional.” No Secretary of State ever held a press conference to make a big deal over the policy.

But in May 1977 a revisionist Zionist, Menachem Begin, became Prime Minister. Before long, Israeli authorities began referring to the West Bank by its biblical names, Judea and Samaria, and refused to refer to the areas as “occupied”; they were rather “disputed.” Terminology in Hebrew soon settled into a pattern, with most referring generically to “the territories”—ha-shtakhim, in Hebrew (transliteration)—not occupied, not disputed, just “the territories.”

Given that only Britain and Pakistan had ever recognized Jordanian sovereignty in the area, that no Arab state ever did, that the last broadly accepted legal title to the land was that of the defunct Ottoman Empire (the Republic of Turkey never tendered any successor claims), and that never in history before Ottoman times had there been a sovereignty in that place called Palestine, Israel’s stated intention to stake its own claim based on an earlier history was not, therefore, legally outrageous. But as far the U.S. Government was concerned it was politically mischievous under the circumstances, about as pregnant with trouble as any such prospective claim could be. So very quickly as these things go, the Carter Administration pushed back, stating loudly that, yes, the settlements were illegal. Before Begin, nothing was to be gained politically by the U.S. government making a high-profile statement about the matter and, as noted, it never did; but thanks to Begin’s public shift in the Israeli attitude, soon entangled with the then-intense effort to mediate peace between Israel and Egypt following Anwar es-Sadat’s trip to Israel in November 1977, now there was reason to make a noise.

That said, top officials in the Carter Administration understood fairly quickly, after some initial mental meanderings, how critically important an Egyptian-Israeli peace would be to U.S. geopolitical interests in the Middle East and beyond. They were not about to allow definitional disputes over settlements or even the West Bank as such to take these larger interests hostage. Thus, while the Carter Administration declared the settlements illegal, it proceeded to do almost nothing about them. Carter tried at Camp David to get Begin to agree to a lengthy settlement freeze, and failed. But Carter did not stop the show as a result, and Begin knew he wouldn’t. No attempt was made to link U.S. economic or military aid to the settlements. In the end a legal declaration was made, and that was that.

In 1981, as Pompeo noted in his November 18 statement, the Reagan Administration changed the U.S. tune and tone about the settlements. It said that the settlements were not inherently illegal, which made some sense because in Israel itself there were disputes about the legal status of some of the settlements. Some were built in Gush Etzion, for example, which had been Jewish-owned land in part before 1948. Some small settlements were unauthorized wildcat outposts that functioned without government money or security support. Pompeo noted further than Secretary John Kerry in December 2016 reverted U.S. policy to the 1978 Carter statement, and all he was doing was reverting the reversion before the reversion, going back to 1981.

In between, during the Bush 41, Clinton, Bush 43, and Obama Administrations, the problematics of the settlements took on various rhetorical guises as policy tactics shifted about, but none of these Administrations—except the Obama Administration at its very end via the tactic of abstaining on a UN Security Council resolution—issued a blanket statement about the legality of the settlements because they all judged that doing so would cause more practical problems than it would solve. There were always bigger fish to fry involving greater stakes that counseled U.S. officials not to so deeply alienate Israeli leaders as to frustrate other policy objectives. It’s fair to say that a political price for pressuring the Israelis over settlements was always present as a deterrent to one degree or another, emanating mainly from Congress and beneath it pro-Israeli opinion and lobbying; it is not accurate to claim that the raw politics of the thing was ever more important than the policy judgments at the core of Executive Branch management of the relationship. Policy judgments overrode both politics and legal posturing, and rightly so.[6]

When Pompeo took U.S. declaratory policy back to the Reagan era, he carefully echoed the “not inherently” point. He did not say that all the settlements were legal, as was widely misreported, but that the “establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.” He added that because situations differ the U.S. Government was “expressing no view on the legal status of any individual settlement.” And he emphasized that the new policy “does not prejudice or decide legal conclusions regarding situations in other parts of the world.” A good idea, since some people might want to carry the precedent to, say, Crimea.

But basically, the reason for the Reagan shift in 1981, and the Trump/Pompeo shift now, is the same. Many Reagan Administration officials sympathized with the then-new Israeli interpretation of the territories as “disputed” based on the rationale outlined above, and most Trump Administration political appointees share that view today. A lot has changed since 1981, however, so that the issuance of roughly comparable legal language about the settlements now means for practical purposes something very different than it did in 1981. The essence of the U.S. viewpoint is arguably, if barely about policy; but the timing is obviously about politics. That, too, marks a major difference, and a distressing one.

Oslo and the New Reality

What has really changed the situation qualitatively since 1981 has little to do with legal pushing and shoving as such, whether within Israel or between Israeli coalition governments and U.S. administrations. What really changed things was Oslo.

The Oslo Accords symbolized to most observers a benign breakthrough toward a two-state final solution to the conflict. But to a minority of Israelis it threatened to facilitate the rise of an internationally guaranteed Palestinian state, viewed as the beginning of the end of the State of Israel.

That minority consisted, on the one hand, of nationalists who thought such a state would come into being through a big lie on the Palestinian side, as part of a stage-by-stage “salami strategy.” A Palestinian state’s birth would not end the conflict but launch it anew from an advantageous Palestinian forward base. These people to the right of the Likud had been around for years: In 1981-82, for example, they plastered “Stop the withdrawal from Sinai” posters all over Tel Aviv and Jerusalem, making basically the same argument: giving Sinai back to Egypt would spell doom for Israel.

The anti-Oslo minority consisted on the other hand of religious nationalists who feared that Oslo would forfeit recovery of the complete land of Israel (“Eretz Yisrael shlaymah”). That recovery was, to them, a task that bore the sanctity of a Torah commandment.

Since Oslo there have been Labor-led governments (Rabin, Peres, Barak) that did not share these assessments and fears, but increasingly Israeli governments have been dominated by coalitions that reflect some confluence of these secular nationalist/religious nationalist views. This attitude likely represents a minority of Israeli voters, if consistent polls are to be believed, but it is a minority that is well organized, determined and vocal, and good at raising funds from American Jews of similar views. Israeli Likud-led governments have regularly given lip service to the two-state solution to mollify relations with other countries, notably in Europe and North America. They don’t really mean it any more than Donald Trump means it when he says that U.S. aims vis-à-vis Iran do not include regime change.

Oslo created a series of occupation zones—A, B, and C—that foreordained a complex administrative apparatus, and it created a Palestinian Authority with limited power but obligated interactions with the Israeli Civil Authority that by title and law replaced the prior military government. The combination of the turn in the attitude of the Israeli government away from answer number 1 toward answer number 2, the development over the 25 years since Oslo of increasingly sophisticated monitoring and “big data”-capable information technology, and the Israeli Civil Administration assiduously using that technology to prevent a third intifada in the interest of Israeli public safety, has resulted in a situation dramatically different from that which existed in 1981—when most observers thought the Likud government was an aberration and that Labor would return before long to its dominant political position. The Israeli administrative bureaucracy in the West Bank, apolitical and professional for the most part, has abetted the sharp shift in Israel’s political valence via the banal functioning of standard operating procedures. This is largely why the ebb and flow of settlement building and expansion has been so little affected even during interludes of non-Likud-led government. The result is that while Israeli public opinion remains divided and fluid depending on the perception of circumstances, the country’s underlying day-to-day administrative/legal apparatus has been steadily warped to support the objectives of the answer-number-2 minority.

In only one area was there ever really a pitched battle between the political and legal/administrative arms of Israeli policy in the territories over the years, and that battle has long been over. At the time the Likud came to power in May 1977 the Israeli Foreign Ministry officially insisted that, “Israel’s actions related to the use and allocation of land under its administration are all taken with strict regard to the rules and norms of international law—Israel does not requisition private land for the establishment of settlements.” And at the time it was overwhelmingly true. But it became untrue, the first tipping point occurring in 1979 with the complex Elon Moreh case. Since then, more than thirty major Israeli settlements in the West Bank have been built on private Palestinian land that Israeli political authorities have arbitrarily designated state land for ostensible security purposes.[7]

The complex permit and monitoring system that exists today, as far as most Israeli officials are concerned, has rendered the Palestinians fairly harmless—very far from an existential threat. What needs to be understood is that the merging of the political agenda of the answer-number-2 right with the mostly reasonable techno-bureaucratic security protocols in the territories has resulted in an outcome no one anticipated when the ground-level implementation of the Oslo process began two and half decades ago.[8] But however it came about, this has made the oft-stated contention of the chatterati that the status quo is untenable very questionable. It is tenable even if it isn’t exactly static as status quos go; whether it is wise is a different question.

In short, Oslo touched off a race. Would the process lead to a Palestinian state of some sort, its ultimate ambit of sovereignty to be determined over time, or would efforts to prevent that state prevail? The race isn’t over yet, but one side is way far ahead. Consider that since Oslo the Israeli settler population in the West Bank has increased by nearly 300 percent. On the other lane of the track, the Palestinian leadership, during the Arafat era in particular, managed to convey to the Israeli public an impression of deep insincerity about its desire for peace—by fudging recognition of Israel, by subsidizing the families of terrorists, by starting small wars as pressure tactics, and by refusing even to respond to Israeli negotiating proposals in 2000 and again in 2007 that offered the Palestinians a state. It is often claimed that Israeli policy in recent years has stymied efforts to advance the peace process, and that is true. But the answer-number-2-minority could hardly have hoped for more help from the Palestinian side than what it got.

The stalemate has in turn advanced the fortunes of those arguing answer number 3. Strange bedfellows do salafi Muslims and leftwing “progressives” make, but there they lie in sin, especially in the European context, when it comes to Israel. A mash-up of anti-Semitism and anti-Zionism constitutes a prodigious unifying force. Non-Arabs are prominently behind today’s boycott movement and campus virtue-signaling designed to delegitimize and demonize Israel. It is easy to dismiss the splenetic hysteria of such advocacy, but it represents a growing barrier for Arab moderates to climb and it does not necessarily appear feckless in the eyes of history-scarred Jews. It helps drive Arabs away from answer number 1 and drive Jews toward answer number 2.

Politics Uber Alles

Secretary Pompeo’s statement is the latest in a long list of punishments and deliberate indignities visited upon the Palestinians during the Trump Administration. Aside from the aforementioned recognition of Israel’s annexation of Golan this past March, the Administration has defunded UNRWA. It not only moved the U.S. Embassy to Jerusalem, it also shut down its Consulate in East Jerusalem, which for decades connected the U.S. Government to Palestinians and Palestinian civil society groups in the city. The so-called Trump “deal-of-the-century” peace plan amounted to a stillborn functionalist insult. Did Jared Kushner really expect the Palestinians to sell their national birthright for a pot of lentils? As a transactionalist businessman with no experience in diplomacy he may have really expected that, but he surely saw the public relations value in getting the Palestinians to reject peremptorily a U.S. offer, allowing Trump to pin the ingratitude label on the Arabs. Fair? No. Useful politically? Yes, and that’s what really matters to this White House.

As many have pointed out, the November 18 statement ends any possibility that the U.S. Government can play a useful mediation role in the conflict as long as Trump is President, but that wasn’t going to happen anyway. If ever an outcome were over-determined, this is it; so the practical impact of the statement does not lie there. Neither does it lie in catalyzing a Palestinian “day of rage” or two. Nor does another episode of U.S. diplomatic isolation at the United Nations mean much.

The statement may facilitate annexationist energies in Israel, however, for that is the ultimate guarantee for advocates of answer number 2 that no Palestinian state will ever arise. That is what the pairing of the March Golan announcement and the recent announcement implies: If nothing illegal is going on, then another annexation may not be illegal either. Besides, remember that Jordan acted as sovereign in the West Bank for 19 years on the basis of recognition by only two countries, and it affected most practical matters not one whit.

As for the legal aspects: as before, a future administration can rescind the rescindment of the rescindment. Nor does the statement in and of itself “kill” the possibility of a two-state solution. The prospect of such a solution will be determined by the politics of the thing, not by legal declarations. If the political will could be summoned on all sides, that solution could still come to pass. Remember: If you will it, it is not a dream.

It seems increasingly unlikely, however. The sides are stuck in a trans-chess equivalent of a mutual zugswang.[9] The Palestinians cannot take “yes” for an answer in their present weak and divided condition. They need to get themselves into a situation in which they have one voice and one gun; they need, in short, the equivalent of their own Altalena incident.[10] But they are too weak to arrange it.

Israel could do it for them; no one doubts Israel’s ability to crush Hamas and Islamic Jihad in Gaza and turn the place over to the PA.[11] The reason, we hear, that Israel does not do this is that it doesn’t want to create a humanitarian disaster for which it would be blamed and which it would then itself have to cope with and fix. Yes, true; but the prior and actual reason is that a unified Palestinian political voice would put Israel’s own true intentions on public display, and the current condition of Israeli politics is such that no right-of-center coalition could face such a test and survive. A new left-of-center coalition that could respond to a Palestinian peace tender has yet to figure out how to be born.

Thus, PA fecklessness justifies the “no partner for peace” alibi of the Israeli right, and Labor alignment fecklessness, which allows answer number 2 advocates to dominate policy, justifies the Palestinian conviction that Israel would rather stand pat than deal. Neither side can move without making its situation worse: zugswang. At this point, only a powerful outside actor could break open the frozen status quo, but none willing and able can be found.

Hope and Sadness

We all choose our foci of political devotion, and our choices inevitably come to shape the ranking of our disappointments. It is sad that the United States today is governed by an Administration that has made common cause with virtually every authoritarian oligarchy on the planet, and done so at the expense of its closest democratic allies and partners. It is sad that Israel has become, at least temporarily, part of the current illiberal conservative “nationalist internationale,” the July 2018 nation-state law being the most vivid example of its membership credentials. And it is sad that both Israeli and U.S. leaders have connived separately and together to put personal interests ahead of politics, and to put politics ahead of policy in the national interest.

Worst of all, Israeli settlement policy in recent years breaks Israeli law, never mind international law. Specifically, as a January 1, 2009 Ha’aretz report put it, “[I]n the vast majority of the settlements—about 75%—construction, sometimes on a large scale, has been carried out without the proper permits or contrary to the permits that were issued. That database also shows that . . . .extensive construction of building and infrastructure. . . has been carried out on private land belonging to West Bank Palestinian residents.”[12] In recent years, in other words, it has been generally disingenuous if not plainly illegal to re-classify private land as security sensitive, yet despite some continued use of that tack, other construction has gone on on un-reclassified private land due to ignoring or misusing permit designations. That breaks the law.

In this light, Secretary Pompeo’s statement is thus not nearly as troubling as the behavior it is designed to disguise and defend, which even now is eroding the pillars of Israeli democracy. It cheers some in Israel but it devastates others, and as such has to be seen as knowing if not fully deliberate interference in the domestic affairs of another sovereign state.

Finally, to come around full circle on what is really at issue here, do advocates of answer number 1, for whom Pompeo’s statement is a toxin masquerading as a gift, or advocates of answer number 2 make the better argument?

Both sides are sure they do, but the truth is that both arguments are stuffed with questionable assumptions that cannot be proven one way or another before the fact. A related truth is that answers of this sort are prone to become self-fulfilling or self-denying prophecies. Those who conclude that peace is impossible on acceptable terms will tend to act in ways that make it impossible. Those who conclude that peace might be possible on acceptable terms will tend to act in ways that at least give peace a chance. Secretary Pompeo’s statement does not foreclose the parties one day taking that chance, any more than President Reagan’s 1981 statement did. These days it is the least of the obstacles on the road ahead. It just adds a nasty pothole near the on-ramp.

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[1] See my “Is the Pompeo Commission More or Less Than Meets the Eye?” The American Interest Online, September 9, 2019.

[2] Not all shari’a authorities agree largely because the Quran itself specifically allocates territory to the Children of Israel (Sura Al-Mai’da 5:20-21).

[3] I confess to wondering sometimes if the ubiquity of t-shirts bearing Guevara’s image bears any relationship at all to the historical awareness of those who choose to wear them. I hope not. Ignorance may not be bliss in this case, but it is preferable to the alternative assumption.

[4] For details, even legal ones, see my “History and Peace: Revisiting Zionist Mythology,” Israel Affairs 5:1 (Autumn 1998).

[5] Note that provisional postage stamps prepared for what became Israel did not bear the word “Israel.” They were inscribed עברי דאר, in transliteration “doar ivri,” meaning Hebrew post.

[6] For more analysis of this point, see my “An Underdog’s Plaint and the Limits of Romantic Geopolitics in the Middle East,” The American Review (FPRI), July 18, 2019.

[7] See for some details Aaron David Miller and Daniel Kurtzer, “Let’s Not Pretend Washington Ever Really Tried to Stop Israeli Settlements,” Washington Post, November 22, 2019.

[8] For details, see Yael Berda, Living Emergency: Israel’s Permit Regime in the West Bank (Stanford University Press, 2017).

[9] Zugswang is a term denoting a situation in chess where any move a player can make worsens his situation, often fatally.

[10] In June 1948, shortly after the Zionist Executive declared Israel’s independence, the Irgun tried to take delivery of arms and fighters from a ship called the Altalena. The provisional IDF, formed from the Yishuv’s Haganah, forcibly interdicted the landing; a fight ensued in which 18 people were killed. The matter was complex but the symbolic meaning of the incident was not: No state can forfeit its monopoly of violence and still be a state. There could not be more than “one gun” in the State of Israel.

[11] I lay out the scenario in “Shock the Casbah,” The American Interest Online, November 20, 2012.

[12] Ha’aretz quoted in Daniel Kurtzer, “Why Pompeo’s Announcement is Bad News,” New York Daily News, November 19, 2019.