U.S. Policy on Settlements, Pre-Trump – Illegal or Not?


I often get questions about U.S. policy on settlements (pre-Trump), and specifically, whether any U.S. president  ever referred to settlements as “illegal.” This Q&A summarizes my research on this question.

Did the Carter Administration consider settlements illegal?

As best as I can tell, claims that President Carter called settlements “illegal” derive from this exchange between President Carter and a journalist on June 13, 1980. In it, the questioner asked, “why do you call these settlements illegal, and what court or international body made this ruling on which you base your statement?” Carter responded,

We consider these settlements to be contrary to the Geneva Convention [emphasis added], that occupied territories should not be changed by the establishment of permanent settlements by the occupying power. The ultimate status of the West Bank and Gaza area will be determined in accordance with the agreement reached at Camp David, through negotiations, after the self government is installed in the West Bank and Gaza.”

So in effect, Carter was agreeing with the assertion that he viewed settlements as illegal (contrary to the Geneva Convention = illegal) without using that word himself.

Bolstering that analysis is the fact that in 1976, the United States Representative to the UN, William Scranton, said in a remarks to the UNSC:

The Fourth Geneva Convention speaks directly to the issue, of population transfer in Article 49: “The occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies. Clearly then substantial resettlement of the Israeli civilian population in occupied territories, including in East Jerusalem, is illegal [emphasis added] under the Convention and cannot be considered to have prejudged the outcome of future negotiations between the parties on the location of the borders of states of the Middle East.”

Likewise, in the Carter Library there is the group of memos written in 1978 to President Carter by his chief of staff Hamilton Jordan related to “a UN RESOLUTION ON ILLEGAL SETTLEMENTS” and noting that “Our position on illegal settlements is well know.” Those memos use the term “illegal” 16 times.

Finally, there was an opinion of the State Dept legal advisor in 1978 holding that settlements are illegal (you can read an analysis of what that does and doesn’t mean here).

In sum, the use of “illegal” was clearly an official expression of Carter Admin policy, even if Carter didn’t shout out the word in a speech.

Have other administrations used “illegal” to describe settlements?

As far as I can find (searching presidential archives, speeches, etc), the Carter examples (above) are the furthest any president has gone in using the word “illegal” to describe settlements. There could well be cables and memos lurking in the White House and State Department archives in which the term is used, but as far as a public statement of position, I have not seen anything else.

What was the policy under other presidents?

Broadly speaking, U.S. policy on settlements was remarkably consistent from 1967 until the Trump Administration. The precise wording/framing evolved (mostly as US policy leaned into the idea of a negotiated solution to the Israeli-Palestinian conflict), but the policy, in substance, was constant, remaining consistently opposed to them.

Notably, while President Carter’s may have taken a tougher (or to be fair, let’s say “more direct”) rhetorical line about the legal status of settlements, it was subsequent presidents who adopted polices that sought to put some actual meat on the bones of the United States’ anti-settlement policy. For example:

  • it was Reagan who first called for a settlement freeze;
  • it was George H.W. Bush who imposed conditions on loan guarantees tied to Israel’s settlements policy;
  • it was under Clinton and George W. Bush (and then Obama) that the U.S. again called for a settlement freeze.

Indeed, how various Administrations’ views on settlements have been recorded in popular memory seems to have less to do with their actual policies or the precise wording of their positions on settlements, and more to do with whether at the time or in retrospect, they are seen as having been friendly to Israel.

Indeed, Obama actually went easier on Israel, when it came to criticism of settlements, than any of his predecessors. Until his abstention on UN Security Council Resolution 2334 at the very end of his second term in office – for which he was excoriated by Israel and many Israel defenders in the U.S., including from his own party – Obama had adopted the unprecedented policy of blocking all UNSC resolutions critical of Israel, including on settlements. Yet, for this single abstention – on a resolution that broke no new ground in U.S. policy – he is remembered by most people as having been tougher on Israel than any of his predecessors.

Aside from Obama’s abstention on UNSCR 2334, what has the UN said about settlements, with U.S. support or U.S. abstention?

If one goes through the various Israel-related UNSCRs which presidents other than Obama and Carter either voted for or abstained on — from 1967 through the end of the Obama era — one finds that the U.S. has consistently supported language critical of settlements, including language citing the Geneva Convention (according to which settlements are illegal).

My analysis of this, published by the New York Times, is here. All my data (on which I based that analysis) is published here.

Is there more information about other presidents’ positions on settlement?

Below are some highlights of various presidents’ policies on settlements:

Ronald Reagam in 1982: “The United States will not support the use of any additional land for the purpose of settlements during the transition period. Indeed, the immediate adoption of a settlement 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 and a final outcome can be freely and fairly negotiated.”

Ronald Reagan in 1983: Reagan still talked tough on settlements, though increasingly in terms of negotiations: “The establishment of new Israeli settlements in the occupied territories is an obstacle to peace, and we’re concerned over the negative effect that this activity has on Arab confidence in Israel’s willingness to return territory in exchange for security and a freely and fairly negotiated peace treaty. The future of these settlements can only be dealt with through direct negotiations between the parties to the conflict. The sooner these negotiations begin, the greater the chance for a solution.”

George H.W. Bush in 1990 stated:The United States policy on settlement in the occupied territories is unchanged and is clear, and that is, we oppose new settlements in territories beyond the 1967 lines. It is a stated, reaffirmed policy over and over again.”

George H.W. Bush in 1992: In 1992 he was branded as an enemy because he insisted on conditions on loan guarantees for Israel, related to Israel’s policy on settlements (the Israeli government seemed to establish new settlements every time Baker came to visit, leading Baker to launch what remains the sharpest criticism of Israel on settlements in history).

Bill Clinton: President Clinton’s language vacillated between calling settlements an “obstacle to peace (1996)” and language framing settlements of commitments to the peace process, e.g.: “the settlement enterprise and building bypass roads in the heart of what they already know will one day be part of a Palestinian state is inconsistent with the Oslo commitment that both sides negotiate a compromise” (2001). The Mitchell Report was also commissioned under Clinton (issued Apr 2001), which among other things called on Israel to “freeze all settlement activity, including the ‘natural growth’ of existing settlements” (a demand folks subsequently acted as if Obama invented).

George W. Bush: The George W. Bush Administration put forward its “Roadmap” (April 2003), which conspicuously required removal of settlement outposts as well as a settlement freeze (a demand most people now believe Obama invented).