To read through recent news reports one could assume that the biggest obstacle to Palestinian Israeli peace are “settlements.”

To cement that impression the New York Times published an article, 1,500 Units to Be Added in Settlement, Israel Says. The caption of a photograph directly beneath the headline reads:
A Palestinian construction worker at a building site on Wednesday in the Ramat Shlomo settlement in East Jerusalem.
If there is an official “East Jerusalem,” I am unaware of it, but perhaps the paper meant “east Jerusalem.” However if you read down a few paragraphs you learn:

The 1,500 new apartments are to be added to Ramat Shlomo, a largely religious neighborhood of 20,000 on the city’s northern edge. They were originally announced during a 2010 visit to Jerusalem by Vice President Joseph R. Biden, causing a diplomatic crisis that dampened Israel’s relationship with the White House and Europe for months.
So actually, Ramat Shlomo isn’t in the city’s east but in its north (or northeast) and it’s not a settlement but a neighborhood.

And while the announcement led to a major diplomatic blowup, it was of the administration’s making. The Vice-President, Secretary of State and President could have remained silent. Everyone expects sections of Jerusalem, even those illegally occupied by Jordan from 1948 to 1967 to be part of Israel in any final agreement with the Palestinians.

The announcement had occurred during an Israeli ban on settlement building outside of Jerusalem. That settlement ban brought about no serious negotiations. (The PA returned to the table only a few weeks before the end of the freeze and, when the freeze expired, walked away.) If settlement freezes were so important to the Palestinians, why didn’t they negotiate then?

So “settlements” provide a convenient excuse for a Palestinian refusal to negotiate or concede anything to Israel. But should they?

At the beginning of the Obama administration, Glenn Kessler of the Washington Post wrote Old Legal Opinion Raises New Questions. The opinion in question was whether, according to the United States, Israeli communities outside of the 1949 armistice lines were illegal. This is how Kessler set things up.
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.
What Kessler doesn’t say is that the opinion was a departure. Not a single administration ever adopted it as a matter of policy. But that didn’t stop him from implying that the ruling of a single Carter administration official should have the force of law (because it was never contradicted) or could well become the policy of the Obama administration. In fact, unless you’re a reporter for the New York Times, the Obama administration never accepted the ruling.

The Carter-era ruling departed from established legal framework of viewing “settlements.” Instead of basing the legality of settlements on the language of 242, which implicitly understood that Israel would not withdraw from all territories captured in 1967, it was based on a dubious reading of the Fourth Geneva Protocol. Morris Abram, one of the drafters of the protocol said that it “was not designed to cover situations like Israeli settlements in the occupied territories.”

Resolution 242 stated that Israel should withdraw “… from territories occupied in the recent conflict.” Not specifically “all territories,” but “territories,” generally.

The reason 242 did not require an Israeli withdrawal from all territories, was articulated by President Johnson in the wake of the Six Day War:
There are some who have urged, as a single, simple solution, an immediate return to the situation as it was on June 4. As our distinguished and able Ambassador, Mr. Arthur Goldberg, has already said, this is not a prescription for peace but for renewed hostilities.
Eugene Rostow cited this speech in explaining why Resolution 242 did not require Israel to withdraw from all territories captured in 1967. The Johnson speech, which is cited by Rostow as the basis for 242, called first for “the recognized right of national life,” as necessary for peace, even before justice for the refugees or territorial integrity.

The precedent for Israel retaining at least some portions of Judea and Samaria goes back even further than the Carter era legal ruling. But those Palestinian state cheerleaders, in what Barry Rubin terms the “MUG complex,” conveniently ignore Johnson’s statement or the wording of 242. They just focus on Palestinian claims as if they are the only ones that are justified.

Johnson did not see any contradiction between Israel retaining some of the territories it captured and there still being “justice for the refugees.”

By accepting the Palestinian narrative as the primary grievance that needs to be addressed (rather than recognition of Israel’s right to exist or security) those critics of Israel aren’t just reversing American policy, they are also making the chances for peace more remote. As long as Palestinians know that their grievance is accepted in full and that failure of talks will be blamed on “settlements” they have no reason to compromise or to make a deal.

If there is to be peace between Israel and the Palestinians there needs to be a realization that “settlements” are not the obstacle to peace but that the removal of all of them might very well be a “prescription … for renewed hostilities.”

(Some of Johnson’s speech is seen below, starting at 13:57)

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