Dear Secretary Kerry,

After listening to you declare repeatedly over the past weeks that “Israel’s settlements are illegitimate”, I respectfully wish to state, unequivocally, that you are mistaken and ill advised, both in law and in fact.

Pursuant to the “Oslo Accords”, and specifically the Israel-Palestinian Interim Agreement (1995), the “issue of settlements” is one the of subjects to be negotiated in the permanent status negotiations. President Bill Clinton, on behalf of the US, is signatory as witness to that agreement, together with the leaders of the EU, Russia, Egypt, Jordan and Norway.

Your statements serve not only to prejudge this negotiating issue, but also to undermine the integrity of that agreement, as well as the very negotiations that you so enthusiastically advocate.

Your determination that Israel’s settlements are illegitimate cannot be legally substantiated. The oft-quoted prohibition on transferring population into occupied territory (Art. 49 of the 4th Geneva Convention) was, according to the International Committee of the Red Cross’s own official commentary of that convention, drafted in 1949 to prevent the forced, mass transfer of populations carried out by the Nazis in the Second World War. It was never intended to apply to Israel’s settlement activity. Attempts by the international community to attribute this article to Israel emanate from clear partisan motives, with which you, and the U.S. are now identifying.

The formal applicability of that convention to the disputed territories cannot be claimed since they were not occupied from a prior, legitimate sovereign power.

The territories cannot be defined as “Palestinian territories” or, as you yourself frequently state, as “Palestine”. No such entity exists, and the whole purpose of the permanent status negotiation is to determine, by agreement, the status of the territory, to which Israel has a legitimate claim, backed by international legal and historic rights. How can you presume to undermine this negotiation?

Alan Baker

Attorney, Ambassador (ret’), former legal counsel of Israel’s Ministry for Foreign Affairs, former ambassador of Israel to Canada, director, Institute for Contemporary Affairs, Jerusalem Center for Public Affairs, director, International Action Division, The Legal Forum for Israel