United States Policy on Palestine: 2021 and Beyond

Date: 16 February 2021

The United States’ (US) historical support for Israel has served to condone and facilitate Israel’s abuses against Palestinians since 1948. Although the administration of US President Donald Trump is perhaps the most explicit in furthering Israel’s colonization-agenda, the US has never been an unbiased peace broker. Instead, the US has provided billions of dollars of aid to Israel annually, has failed to take substantive actions in order to ensure that Israel abide by its duties under international law, including as an Occupying Power, and has blocked international efforts to hold Israel accountable.  Accordingly, as Israel persists in blatantly discriminating against its Palestinian citizens, and in holding Palestinians in the Occupied Palestinian Territory (OPT) under occupation, US officials provide cover for and continue to present Israel as the “only democracy in the Middle East.” 

For four years, the Trump administration has sought to further marginalize Palestinians while targeting their basic rights. This culminated in the Trump administration’s ‘Deal of the Century’ (hereafter “plan”), which seeks to reward Israel for its continued violations of international law and green light its colonization of Palestine. The administration started laying the groundwork for the plan immediately following Trump’s election, including by: ending funding to the UN Relief and Works Agency for Palestine Refugees (UNRWA), recognizing Israel’s unlawful annexation of Jerusalem and relocating the US embassy there, closing the Palestinian diplomatic mission in Washington, D.C., denying entry into the US for Palestinian human rights defenders, and threatening and withdrawing from international institutions in order to safeguard Israeli impunity. 

Importantly, many members of Congress have increasingly condemned these actions, and have taken steps to hold Israel accountable for its violations of international law. Most notably, House Resolution 2407 seeks to ensure that US funds “do not support military detention, interrogation, abuse, or ill-treatment of Palestinian children.”[1]

The change in administration provides an opportunity for the US to reevaluate its past blanket support of Israel, and implement policies in line with its obligations under international law. This policy paper highlights select issues related to Israel’s prolonged belligerent occupation of Palestinian territory, Israel’s unlawful administration of the territory, and associated violations of the rights of Palestinians,[2] and calls on the US to take action in line with its duties under international law. As President Trump has instituted policies in flagrant disregard of the international legal order, US officials must move beyond mere condemnations to taking measures that uphold Palestinian rights and end the decades long environment of impunity that it has enabled for Israel to entrench its settler colonization and apartheid in the Palestinian territory. 

Jerusalem

On 6 December 2017, President Trump announced the United States’ recognition of Jerusalem as Israel’s capital, and subsequently moved its embassy to the city in May 2018. The announcement and move not only contradicted international law, under which Israel has no sovereign right to Jerusalem, but also decades of US policy on Jerusalem. US actions were met with widespread condemnation, including a UN General Assembly resolution which reaffirmed that “any decisions and actions which purport to have altered, the character, status or demographic composition of the Holy City of Jerusalem have no legal effect, are null and void and must be rescinded in compliance with relevant resolutions of the Security Council.”^[3]

As the international community failed to take substantive actions, and with US support, Israel continued its 71-year project to fully annex and establish Jerusalem as its “united capital.” The heavy-handedness in which Israel has moved over the past two years is illustrated by its widespread demolition of Palestinian homes and structures. For example, on 29 April 2019 alone, 31 Palestinian structures were demolished by Israel in the Silwan neighborhood of Jerusalem. UN OCHA noted this as “the highest number of structures demolished in a single day in East Jerusalem since OCHA began systematically monitoring demolitions in 2009.”^[4] In continuing to ignore such human rights abuses, US Ambassador David Friedman and US Middle East Envoy Jason Greenblatt celebrated the opening of a tunnel in Silwan with Israeli settler group Elad, which controls the settlement site City of David.  

In line with these actions, Trump’s plan aims to consolidate Israel’s annexation of the city, and contemptuously calls for Palestinians to essentially name any other area “Al Quds” and establish it as the capital.  The plan, and the US administration in general, ignores Israel’s use of home demolitions, alongside other policies, such as residency revocations and collective punishment measures, in order to put pressure on and transfer Palestinians from Jerusalem in order to attain their unabashedly racist and unlawful objective of a 70:30 (Israeli Jewish to Palestinian) majority in the city.[5]

Policy asks on Jerusalem:

• Rescind recognition of Israel’s unilaterally claimed sovereignty and unlawful annexation of Jerusalem. In doing so, the US should remove its embassy from the city.
• The US, as a High Contracting Party of the Fourth Geneva Convention, should seek to bolster and support the Palestinian presence in Jerusalem, and hold Israel accountable for its policies of unlawful transfer and all other grave breaches of the Convention. Such actions may include the reinstatement of aid to East Jerusalem hospitals that the US cut in 2018, and ensuring that businesses or organizations based in the US do not contribute to Israel’s settlement of Jerusalem.

Palestine Refugees

UNRWA estimates that approximately 750,000 Palestinians became refugees as a result of the Nakba in 1948 and the establishment of the State of Israel, with the total number of registered Palestinian refugees approximated to be around 5.6 million.[6] While all refugees have the right of return under international law, and the United Nations General Assembly and Security Council have affirmed this right in relation to Palestinian return via numerous resolutions,^[7]Israel has prohibited Palestinians from returning to their homes for over seven decades while entrenching a right of Jewish return, settlement of territory and exclusive rights to self-determination under the discriminatory Nation State Law.

The Trump administration has bolstered Israel’s position through targeting Palestine refugees. This has included seeking to limit who was defined as a Palestine refugee. However, as noted by the UN:

“Under international law and the principle of family unity, the children of refugees and their descendants are also considered refugees until a durable solution is found… Palestine refugees are not distinct from other protracted refugee situations such as those from Afghanistan or Somalia, where there are multiple generations of refugees, considered by UNHCR as refugees and supported as such. Protracted refugee situations are the result of the failure to find political solutions to their underlying political crises.”^[8]

In 2017, the United States provided more than a quarter of UNRWA’s budget, which provides basic services including education, healthcare, relief and social services for Palestinian refugees, however, by 2018, the US moved to end all funding to the agency.^[9]  Although the UN General Assembly overwhelmingly voted to renew UNRWA’s mandate in 2019, in a show of support for the organization (only the US and Israel voted against the resolution),^[10] By November 2020, the Commissioner General of UNRWA, stressed that the needs of Palestine refugees had increased significantly as a result of conflicts and multiple socio-economic crises, as well as Covid-19, announcing that the agency was facing an existential threat since UNRWA’s core budget had run out of cash and did not have the cash flow needed to pay its workers’ salaries.[11]

Meanwhile, the Trump administration continued to target Palestine refugees in its plan. It proposes that Palestinians have no right of return in Israel, with only a limited number of Palestinian refugees being resettled into the Plan’s conception of a State of Palestine, comparable to a South African Bantustan.^[12] The plan accordingly dismisses the area of origin in Palestine for refugees when considering possible resettlement.  

Policy asks on Palestine refugees:

• Support the right of return for all Palestine refugees to their area of origin.
• Immediately reinstate funding for UNRWA and the critical services that it provides. 

Gaza

The Gaza Strip is an integral part of the OPT, and a primary target of Israel’s strategy of fragmenting Palestinian people and land. This has been exemplified through Israel’s closure of Gaza for over 12 years, a policy that amounts to unlawful collective punishment in violation of international humanitarian law^[13] and has led to the rapid de-development of the Gaza Strip. The closure, coupled with numerous Israeli wars, offensives, and continued assault campaigns targeting civilian infrastructure, have created a humanitarian crisis. 

The situation in Gaza has been so dire and foreseeably unsustainable for so long that in 2012, UNRWA predicted that Gaza would be uninhabitable by 2020. This is confirmed by the reality on the ground where 53 percent of it’s population live in poverty,^[14] 80 percent are dependent on aid,^[15] and 69 percent of it’s youth are unemployed.^[16]Gaza’s hospitals now face unprecedented shortages of essential medicines and medical supplies.^[17] Rather than recognize Israel’s role as Occupying Power in ensuring public order and the safety of the occupied population, as well as Israeli policies that have purposely created the man-made emergency, Trump’s plan blames the crisis in Gaza, including unemployment and shortages of electricity and water, on Palestinians.^[18]

Such irrational positions with regards to Israel’s targeting of Gaza have been characteristic of the Trump administration. For example, on 14 May 2018, coinciding with the opening of the US Embassy in Jerusalem, Israel killed 60 Palestinian demonstrators during the Great March of Return in Gaza. Immediately after, the UN Security Council held an emergency meeting during which then US Ambassador Nikki Haley claimed that Israel had acted with ‘restraint’; Haley then walked out when the Palestinian ambassador addressed the Council.[19] The position of the United States stands in stark contrast to the 2019 UN Commission of Inquiry that found that there were “reasonable grounds to believe that during the Great March of Return, Israeli soldiers committed violations of international human rights and humanitarian law. Some of those violations may constitute war crimes or crimes against humanity, and must be immediately investigated by Israel.”^[20]

Policy asks on Gaza:

• Take effective measures, including through the United Nations, to end the closure of Gaza and address the dire humanitarian situation.
• As affirmed in the UN Commission of Inquiry report, the US should:
  • “consider imposing individual sanctions, such as a travel ban or an assets freeze, on those identified as responsible by the commission.”[21]
  • and as a High Contracting Party to the Geneva Conventions should carry out its “duty to exercise criminal jurisdiction and arrest persons alleged to have committed, or who ordered to have committed, the international crimes described in the present report, and either to try or to extradite them.”[22]

Settlements

Israeli settlements in the occupied West Bank include residential, industrial, and agricultural settlements and tourism sites. Israel has established these settlements across the OPT in order to create an artificial and false representation of the “facts on the ground” and entrench its control over Palestinian land. While Israel has established a situation of de facto annexation in the occupied West Bank, its leaders continue to threaten - and promise to the Israeli public - full annexation. This has been largely condoned by the Trump administration, with US Ambassador to Israel David Friedman alleging that Israel has a “right to retain some, but unlikely all, of the West Bank;”^[23] Similarly, in November 2019, US Secretary of State Mike Pompeo falsely asserted that illegal Israeli settlements are “not per se inconsistent with international law.” Both annexation and the transfer of Israeli settlers into the OPT, which currently number at least 600,000, are in violation of Israel’s duties as Occupying Power under international law. 

The presence of illegal Israeli settlements is part of a broader coercive environment imposed by Israel that aims at the unlawful transfer of the Palestinian population. This includes: settler violence, a discriminatory planning regime, which leads to the destruction of Palestinian property, restrictions on freedom of movement, obstructed access to land and natural resources, and a discriminatory dual legal system, amongst others.

The United States has facilitated the growth and maintenance of Israel’s unlawful settlement enterprise through the facilitation of donations to settlements via tax-exempt nonprofit organizations, a figure estimated at $220 million between 2009-2013 alone.^[24] Notably, key figures of the Trump administration, including the architect of the plan, Jared Kushner, have also funded pro-settlement organizations.^[25] The United States also permits: the import of goods produced in Israeli settlements, US companies to operate in and have activities linked to Israeli settlements, and US tourism operators to advertise and/or include settlement sites, including accommodation, as part of itineraries sold to US consumers. 

In line with its duties under international law, as well as the US National Action Plan, which calls on businesses to treat the UN Guiding Principles on Business and Human Rights “as a floor rather than a ceiling for implementing responsible business practices,”^[26] the US should ban the import of all Israeli settlement products. However, on 19 November 2020, Secretary of State Mike Pompeo against the backdrop of his visits to illegal Israeli settlements in the OPT, released a statement announcing a National Action Plan that equates the accurate labelling of settlement produce, and the publication of the UN database on companies involved in illegal Israeli settlements, with anti-Semitism.[27]

Policy asks on Israeli settlements:

• The US should condemn and take action to counter Israel’s settlement enterprise in compliance with UN Security Council and General Assembly Resolutions. Should Israel annex, de jure or de facto, part or all of the Occupied Palestinian Territory, the US should immediately implement relevant sanctions.
• Action should be taken to ensure the revocation of the tax-exempt status for organizations based in the US that provide funding for settlements.
• The US should also ensure that American companies that operate in Israel and the OPT conduct enhanced human rights due diligence to ensure that their business activities and relationships do not have adverse human rights impacts; given the immitigable legal violations related to Israeli settlements, US businesses should terminate activities, including presence and/or relationships, linked to Israeli settlements. 
• The US should ban the import of all Israeli settlement products and services.

Accountability

Over 70 years since the Nakba, and 52 years since the start of the occupation of the OPT, the State of Israel has continued to operate with impunity. Rather than hold Israel accountable for its colonization and unlawful takeover of Palestinian land and persistent violations of the human rights of Palestinians, the international community, including the United States, have failed to take concrete measures to protect Palestinians. Instead, third States are increasingly attempting to punish civil society and other actors, including businesses, for taking peaceful measures in order to end cooperation with and/or protest Israel’s abuses. This has included the implementation of anti-BDS legislation, and attempts at obstructing international justice mechanisms, such as the International Criminal Court (ICC). 

In the US, twenty-seven states have adopted legislation that targets the boycott, divestment, and sanctions (BDS) movement, while the House of Representatives passed a non-binding resolution condemning BDS. Although US federal courts have ruled to protect the right to boycott in cases that have been brought before them, (as has the European Court of Human Rights[28]) US officials widely continue to support anti-BDS measures. For example, on 11 December 2019, Trump issued the Executive Order on Combating Anti-Semitism, which called for consideration of the International Holocaust Remembrance Alliance’s (IHRA) definition on anti-Semitism, and shared the IHRA’s “contemporary examples of anti-Semitism.” Many of the identified examples are broad in scope and could include legitimate criticism of Israel for its systematic violations of international human rights law and international humanitarian law. 

The US has also been active in obstructing access to justice and criticism of Israel’s human rights abuses in international forums. For example, the US pulled out of the UN Human Rights Council and UNESCO in support of Israel. Further, during the Office of the Prosecutor of the ICC’s preliminary examination over alleged crimes committed in the OPT, US officials ramped up threats against the Court and its employees. On March 15, 2019, Secretary of State Mike Pompeo announced visa “restrictions on those individuals directly responsible for any ICC investigation of US personnel,” which “may also be used to deter ICC efforts to pursue allied personnel including Israelis, without ally’s consent.”^[29] Similarly, the Trump plan specifically called on the PLO and Palestinian Authority to “take no action, and…dismiss all pending actions, against the State of Israel, the United States and any of their citizens before the International Criminal Court, the International Court of Justice, and all other tribunals.”

During his time as US National Security Adviser, John Bolton also threatened prosecution of ICC judges and prosecutors. UN experts expressed concern over these efforts of intimidation by the US,^[30] efforts which manifested most recently through the imposition of sanctions against individual staff members of the ICC under Executive Order 13928 of 11 June 2020.

Policy asks on accountability:

• Refrain from threats to and obstruction of the work of the International Criminal Court, and return to a constructive relationship of cooperation with the Court.
• Positively contribute to international organizations and bodies that support human rights, justice, and accountability, including those that are being accessed by the Palestinian people, such as the UN Human Rights Council.
• Ensure that individuals that have been victims of international crimes have access to justice, including through domestic courts. 
• End all military aid to Israel.
• Leverage its position as a UN Security Council member to support the application and enforcement of international law and the breaches thereof by the State of Israel.

Prisoners

Since Israel’s occupation of the Palestinian territory in 1967, over 900,000 Palestinians have been detained under a myriad of 1,600 Israeli military orders that control and criminalize every aspect of Palestinian life. The number of those arrested constitutes approximately 20 percent of the entire Palestinian population in the OPT and as much as 40 percent of the total male Palestinian population. It also includes approximately 13,000 women jailed since 1967, as well as 15,000 Palestinian children arrested since 2000. Within the first three months of 2020, Addameer and other human rights organizations have documented 967 arrests of Palestinians. 

As of February 2020, there are 5,000 Palestinian political prisoners and detainees incarcerated across seventeen prisons, four interrogation centers and four detention centers. All but one of the prisons are located inside Israel, in direct contravention of Article 76 of the Fourth Geneva Convention which states that an Occupying Power must detain residents of occupied territory in prisons inside the occupied territory. The practical consequence of this system is that many prisoners are barred from their right to their legal representation and do not receive family visits as their relatives are denied permits to enter Israel on “security grounds”. Out of the total number of political prisoners detained in Israeli occupation prisons, 43 are female and 180 are children as of March 2020. This figure also includes 8 Palestinian Legislative Council members, 430 administrative detainees held without charge or trial, and 296 prisoners from the Gaza Strip.

Palestinian prisoners and their families suffer a number of human rights violations from the moment of their arrest. Moreover, the majority of Palestinian prisoners are subjected to some form of physical and psychological torture and ill-treatment throughout the process of their arrest and detention, including various forms of beatings, insults, threats, body cavity searches, and sexually explicit harassment. In addition to this, they suffer from continually deteriorating detention conditions which do not meet the international standards of the treatment of prisoners. 

Policy asks on Palestinian prisoners:

• Pressure Israel to release all Palestinian political prisoners without stipulation - including those arrested before Oslo - before any return to negotiations. 
• End all US aid to Israel that is used for the torture, interrogation and detention of all Palestinians.
• End the policy of administrative detention. 

Covid-19 Response

During 2020, and continuing into 2021, the discrimination to which Palestinians are subjected to under Israeli occupation has been intensified during the Covid-19 pandemic. As of 18 January 2021, the WHO reports a total of 171,000 confirmed cases in the OPT including 48,000 in Gaza.  Throughout the OPT, Israel is not only violating its legal responsibilities by failing to provide the necessary healthcare for the occupied population as required by the Geneva Conventions, but is restricting, on a discriminatory and unlawful basis, the rollout of the vaccine to the Jewish-Israeli population of illegal settlements, and denying the rollout to the Palestinian population of the same territory.[31]  

Systematic neglect and de-development of Palestinian healthcare has left Palestinian communities in East Jerusalem extremely vulnerable to the COVID-19 (coronavirus) pandemic. Further the pandemic, is spreading through the Gaza Strip, an area stagnated by Israel’s crippling “13-year-old blockade, serious water and electricity shortages, and endemic poverty and unemployment” and where Israel denies it’s humanitarian and human rights obligations to the civilian population under its effective control. 

As affirmed by the Committee on the Elimination for Racial Discrimination (CERD) in August 2020, States have international law obligations to “ensure, in their own actions as well as through international cooperation, that the development of vaccines as well as access to an eventual vaccine against COVID-19 occur in a non-discriminatory manner, taking into account the situation and needs of groups which are marginalized and subjected to discrimination”.[32]

Israel, as Occupying Power of the Palestinian territory, i.e. the West Bank, including East Jerusalem and the Gaza Strip, has clear obligations to ensure the protection and respect of the right to health of the protected population. In particular, Article 55(1) of the Fourth Geneva Convention establishes Israel’s duty, as Occupying Power, to ensure the provision of medical supplies to the civilian population in the OPT to the fullest extent of the means available to it. Further, Article 14(1) of Additional Protocol I to the Geneva Conventions, reflective of customary international humanitarian law, provides that the Occupying Power has the duty to ensure that the medical needs of the civilian population continue to be satisfied, while Article 69(1) requires the Occupying Power to ensure, without adverse distinction, the provision of supplies essential to the survival of the civilian population. 

These critical provisions are to be read in conjunction with Article 56 of the Fourth Geneva Convention, which provides that: “To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and maintaining, with the co-operation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics.”

Since the outbreak of COVID-19, Israel has rejected these responsibilities, by failing to protect Palestinian workers in Israel, Palestinian prisoners and detainees in Israeli detention centres, denying Palestinians in the Gaza Strip access to healthcare, and systematically neglecting the healthcare in occupied East Jerusalem. 

With respect the discriminatory roll out of the vaccine, manufactured by Pfizer, a corporation domiciled in the United States, Pfizer has been requested to provide information as to whether it sought assurances from Israel that the Pfier-BioNtech vaccine would be used in accordance with international legal standards, including those under international human rights and humanitarian law, and called on the company to issue a public statement in support of the principle of non-discrimination in public health, stressing that all peoples under Israel’s effective control must have their inalienable right to health respected and vindicated.

Policy asks on Covid-19:

• Publicly call on Israel to immediately comply with its IHL and IHRL obligations to the protected occupied population in the Gaza Strip and West Bank, including East Jerusalem and ensure the non-discriminatory provision of vaccines to all persons in the territory under its control;
• Reassert the need for third States to respect and ensure respect for the Geneva Conventions, including by ensuring that Israel, the Occupying Power, supplies lifesaving COVID-19 vaccinations to the Palestinian Authority for distribution to the protected occupied Palestinian population;
• Publicly call on Israel to ensure the provision of life saving COVID-19 vaccinations to Palestinian prisoners and detainees incarcerated in Israeli prisons and detention centres;
• Demand that Pfizer, as a leading international pharmaceutical company, comply with its responsibilities under the UNGPs to act with due diligence to ensure that its supply of vaccines is not used in the service of illegal settlement activity or to entrench apartheid policies and practices, and to seek assurances that its vaccine is not intended for use in a discriminatory, racist and xenophobic manner;
• Call upon the international community to hold Israel to account for denial of health care amounting to the wilful causing of great suffering and injury to the health of the Palestinian population, where this amounts to grave breaches of the Fourth Geneva Convention; and 
• Support the Palestinian Authority to enhance its active role in ensuring the protection of Palestinian protected population during a global pandemic, including by continuously reminding Israel of its legal obligations, as Occupying Power, and urging the international community to take effective measures to halt Israel’s discriminatory policies and practices. 

Select Letters by members of Congress that challenge Trump’s polices:

• 1 December 2017 letter by Senator Dianne Feinstein urging President Trump to reject calls to recognize Jerusalem as the capital of Israel, available at:

https://www.feinstein.senate.gov/public/_cache/files/a/6/a658a8db-ed7e-4918-b5ae-5958b8e5cb30/AC76AD06899DB3B65602289881BE5169.2017.12.01-jerusalem-letter.pdf

• 8 February 2018 letter by 100 members of the House of Representatives urging Trump to continue funding UNRWA, available at:

https://welch.house.gov/sites/welch.house.gov/files/FINAL%20Ltr%20to%20Trump%20re.%20Palestinian%20Aid.pdf

• 30 July 2018 letter by 70 House Democrats calling on Trump to address humanitarian crisis in Gaza, available at:

https://pocan.house.gov/sites/pocan.house.gov/files/Gaza-Humanitarian-Aid-Letter-7-30-18.pdf

• 21 November 2019 letter by 107 House Democrats expressing disagreement with reversal of State Department policy on Israeli settlements, available at:

https://andylevin.house.gov/sites/andylevin.house.gov/files/191122_Pompeo%20Letter.pdf

• January 2020 letter on ongoing home demolitions in the West Bank, available at:

http://dearcolleague.us/2020/01/join-letter-to-sec-pompeo-opposing-home-demolitions-in-the-west-bank-3/

• 7 February 2020 letter signed by 107 House Democrats opposing ‘Peace Plan’, available at:

https://andylevin.house.gov/sites/andylevin.house.gov/files/020620%20House%20letter%20to%20POTUS%20on%20Israeli-Palestinian%20conflict.pdf

• 20 February 2020 letter by US Representatives Mark Pocan and Debbie Dingell to restore humanitarian aid for Gaza, available at:

https://pocan.house.gov/media-center/press-releases/pocan-dingell-call-to-restore-humanitarian-aid-to-gaza