Aug. 25, 1983
About the West Bank and the Emperor's Clothes
By Bernard Gwertzman
It happens so often in Washington that it could be called ''The Emperor's New Clothes Syndrome.'' A President makes a statement that his aides know is questionable, at best, or wrong, at worst. But because the remark is made by the President, his aides devote their energies not to correcting it, but to trying to find some way of substantiating it or glossing it over.
When the President is talking about some domestic political issue, it usually is soon forgotten. But often the remark concerns foreign policy, and creates a much more lasting problem. For instance, President Carter announced in 1977 that he was pulling all American combat troops out of South Korea. This made no sense to most of his advisers, but because the President had announced it they could not repudiate it.
Not until 2 1/2 years later when the Central Intelligence Agency produced a report saying that North Korean strength had risen was Mr. Carter prevailed upon to reverse himself, pending further review. The troops are still in South Korea.
The syndrome has struck the Reagan Administration several times. But the most persistent case came from Mr. Reagan's comment about Israeli settlements on the West Bank of the Jordan. On Feb 2, 1981, two weeks after being sworn in as President, Mr. Reagan met with five reporters in his office and in the course of the discussion, was asked about the settlements.
A Written Opinion in 1978
The Carter Administration had been at odds with the Israelis over their continued building of civilian settlements in the disputed territory, which is largely inhabited by Palestinian Arabs and was captured from Jordan in 1967. Prime Minister Menachem Begin of Israel regards the territory as historically part of Israel and, therefore, not occupied but liberated.
Mr. Carter was angry about the settlements because he felt they made it more difficult to engage Arabs in peace talks with Israel, and he had called them ''illegal.'' Hebert J. Hansell, the legal adviser to the State Department at the time, had written an opinion on April 21, 1978, stating that the settlements were ''inconsistent with international law.''
Mr. Reagan, in his remarks to the reporters, said: ''As to the West Bank, I believe the settlements there - I disagreed when the previous Administration referred to them as illegal - they're not illegal.'' He added, however, that the Israeli effort to continue to build new settlements was ''unnecessarily provocative.''
The President's declaration that the settlements were ''not illegal'' was welcomed by the Begin Government as an endorsement of its policy. Some Israelis immediately said that Mr. Reagan had called the settlements ''legal,'' carrying them further than they had actually gone. But the ''not illegal'' comment also brought forth a flood of criticism and inquiries from Arab states friendly to the United States, such as Jordan and Saudi Arabia.
Veto of a U.N. Resolution
According to Administration officials, the President's remarks remain a problem for them in trying to convince the Arabs of American determination to see overall peace in the Middle East. In his highly-publicized Middle East initiative of Sept. 1, 1982, Mr. Reagan called for a moratorium on new Israeli settlements, and officials have repeatedly said that such settlements were hindrances to peace negotiations. But the officials will not question their legality, for to do so would be to say that the emperor has no clothes.
Earlier this month, in fact, the United States vetoed a resolution in the United Nations Security Council because, in part, it said the settlements were ''illegal.'' That veto has been the subject of repeated critical editorials and comments in the Arab press, even as the new special American envoy, Robert C. McFarlane, is touring the area trying to convince leaders there of the Administration's good intentions.
When State Department officials are asked these days whether the United States believes the West Bank settlements are ''illegal'' or not, the answer, not surprisingly, is a kind of evasion. ''There is no point in getting caught up in legalities,'' said one official who asked not to be quoted by name. ''The settlements are an obstacle to peace, and we have told the Israelis that we would like them not to build any more of them.''
Lawyers Are Reluctant
But when the question is asked whether the State Department's legal office has an opinion on the matter, a reporter is told that the only document on the subject remains Mr. Hansell's three-page opinion, which was drafted and sent to Congress at the request of two subcommittees of the House. It was also published in the State Department's Digest of United States Practice in International Law 1978. Said one official: ''It has never been repudiated, because none of the lawyers wants to write a paper saying the settlements are 'not illegal' because they know they will have too much trouble proving it.''
Mr. Hansell, the Carter adviser, relied heavily in his document on an agreement signed on Aug. 12, 1949 and known as ''The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War.''
Paragraph six of article 49 states: ''The Occupying Power shall not deport or transfer parts of its own civilian popultion into the territory it occupies.''
In the conclusion of his opinion, Mr. Hansell said: ''While Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for the reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with interntional law.''
Mr. Hansell, who is now in private practice in Washington, stands by his opinion. He said it had been challenged in law journals, but contended that the Israeli Supreme Court had tended to side with it.