Trump, Israel, and the Security Council: Fiasco

I’ve cross-posted this from Blogatory| Politics.

The fiasco of the Security Council’s resolution on Israeli settlements in the West Bank was a fitting end to 2016. It featured lots of what’s wrong with the world today. Here is my take.

It’s not a legal take. I have tentative thoughts about the consensus view—and it is a consensus—that the Israeli settlements on the West Bank are illegal, but Blogatory | Politics is an annex to my international law blog and I am a lawyer. I don’t think it’s right to give non-standard views on a legal question without being prepared to argue them, and I’m not really prepared to do that at the level that I think my readers would expect, especially because I know that some folks who write frequently and polemically about the topic are occasional readers!

Signing of the agreement on the annexation of Crimea
Signing the agreement on the annexation of Crimea

My first reaction is a reaction to the hypocrisy of the Security Council and the UN in general when it comes to Israel. Hypocrisy is the name of the game in great power politics, and there’s no use bemoaning it, but can we pause to marvel that in 2016 Russia (a permanent member) and Ukraine (a non-permanent member) could join hands and vote yes on a resolution that focuses on the importance of the territorial sovereignty of states? China annexed Tibet not too long before the Six Days War and is accused of transferring ethnic Chinese populations to Tibet. Even the United States has some territories acquired in war whose people do not have full political rights (though I am not claiming that the situation in Guam, for instance, or Puerto Rico is analogous in any particular respect with the situation in the West Bank). Did anyone bat an eye? Is no one even a little embarrassed? The new resolution calls out Israel by name, of course, but doesn’t mention any of the state- or non-state parties that are responsible for inciting or supporting anti-Israeli and anti-Jewish terrorism. The United States did not oppose the resolution despite what I thought was its commitment to oppose such unbalanced resolutions. Resolutions on Israel make up an absurdly large part of the business of the Security Council, the General Assembly, and the Human Rights Council, even though it is easy to think of much more serious threats to world peace than the Israeli/Palestinian conflict and much more serious human rights concerns than land disputes on the West Bank. For whatever reason, it’s easy for big states and small states, powerful states and weak states, to vote early and often against the Jewish state without any reservation or hesitation. Indeed, taking these votes is a kind of perverse virtue signaling for the anti-Zionist set, which is, unfortunately, most of the world—the equivalent of BDS resolutions in student governments everywhere.

The Western Wall at sunset
The Western Wall. Credit: Daniel Majewski

Second: the resolution treats Jerusalem just like it treats the West Bank. From a purely technical perspective (I know I said I wouldn’t do any legal analysis): as I understand what has until now been US policy, the US does not recognize the sovereignty of any state over any part of Jerusalem and takes the position that the status of Jerusalem is to be determined in the peace process. But the new resolution, which the United States allowed to pass, characterizes East Jerusalem as occupied Palestinian territory. What has changed? Did I miss something? The issue of Jerusalem is a useful lens for understanding much of what motivates the broader conflict. There’s no point in trying to outline the centrality of Jerusalem for Jews—quoting the daily prayers for rebuilding Jerusalem or the Haggadah’s conclusion, “Next year in Jerusalem!” is no more meaningful for a Gentile than quoting the Nicene Creed is for a Jew—but no one really doubted the city’s historical and religious connection with Judaism until the relatively recent past. The holiest Jewish sites, the Western Wall and the Temple Mount, are in East Jerusalem. From the time of Israel’s independence to the Six Days War, Jews were forbidden to go there by the Jordanian administration. When the Israeli army retook the city in 1967, almost the very first thing it did was to return control of the Temple Mount itself to the Muslim waqf, maintaining the status quo that forbade Jewish prayer there (to be sure, Jewish law forbids Jews to go up to the Temple Mount itself, for fear of stepping in the places where the holiest parts of the ancient Temple stood, but the Jordanians’ motives for excluding Jews from the area was hardly sensitivity to Jewish law!) Today the dispute over the holy sites in Jerusalem is as tense as ever, and the bizzare phenomenon of “Temple Denial”—the denial that a Jewish temple ever stood in Jerusalem—is widespread. The UN itself contributes to the problem when its cultural organ, UNESCO, continues to pass resolutions that refer to the holy sites by their Islamic names only, implicitly denying the Jewish connection to the city. It’s distressing that the United States should pile on by permitting a resolution that treats Jerusalem like the rest of the West Bank to pass.

Zionists 4 Trump
One thousand percent? Credit: Zionists 4 Trump

Third: Trump. There has been some Jewish reaction in favor of Trump’s intervention in recent days (his conversation with the President of Egypt, which led to Egypt delaying presentation of the resolution to the Security Council; his recent attacks on the Obama Administration over the issue). This is unfortunate, and short-sighted. Disagreement with President Obama’s position on this issue does not make the manifestly unfit Mr. Trump any more fit to be president, nor does it justify an exception to the rule that the United States has only one administration at a time and should speak with one voice on matters of foreign affairs. Leave it to Donald Trump to give critics of Mr. Obama on this issue reason to rise to his defense. Israel contributed to the trouble here, too, since it seems Israel reached out to President-elect Trump and set him into motion, though you can’t blame Israel for trying, I suppose.

Fourth: the Obama administration. I get it, in part. Prime Minister Netanyahu is an arrogant figure who, outrageously, colluded with Republicans in Congress to embarrass the President at home. I don’t like him, and I get that President Obama doesn’t like him. And I get that the United States government, like most of the world’s governments, is not in favor of Israel’s settlement program in the West Bank. But what I don’t get is this: presumably the whole point of US diplomacy in the region is to try to bring a peace deal to fruition. The basic formula, which UN resolutions and US policy—and official Israeli policy—have long recognized is land for peace. Israel has offered this basic trade before: in 1948, when it accepted the UN partition plan and fought a war after the Arab state rejected it; in the late 1980s, when Israel returned the Sinai to Egypt as part of a peace deal (perhaps the one success in the history of Israeli territorial concessions); in 2005, when it withdrew from Gaza, which is now ruled by Hamas, a group that rejects the state of Israel altogether and from time to time rains rockets into Israel. As I understand things, Israel proposes negotiations towards a land-for-peace swap without preconditions, while the Palestinian view is that no negotiations are possible until Israel freezes settlements. The Palestinian position seems short-sighted (why let facts on the ground get worse?) until you take the idea of lawfare into account, and then it seems longsighted in the extreme. Here is a statement from Saeb Erekat, a Palestinian negotiator, from a few years ago, on the preconditions:

“These are not favors that Israel is doing for us. These are its obligations in accordance with international law,” Erekat said in a statement issued after he met in Jerusalem with representatives of the Mideast Quartet of international mediators, who began separate talks with both sides Wednesday in another effort to get peace talks going again.

It seems to me that by allowing the problem to be cast as a legal problem instead of a political and diplomatic problem, the administration is encouraging Palestinian resistance to direct negotiations by given the Palestinians reason to think that the outside world is going to impose a legal solution on the parties, which is contrary, as far as I can tell, to many years of thinking in the US and elsewhere. I just don’t get it.

The US view is also strangely naive about the Palestinians’ intentions. Here is Secretary Kerry today:

Recognition of Israel as a Jewish state has been the U.S. position for years, and based on my conversations, I am convinced many others are now are prepared to accept it as well—provided the need for a Palestinian state is also addressed.

Why would anyone think that? Here is the Palestinian foreign minister, Riad Malki, in 2014:

The foreign minister for the Palestinian Authority says Palestinians will “never accept under any circumstances” the idea that Israel is a Jewish state, negating the 3,000 year Jewish connection with the Holy Land.

Foreign Minister Riad Malki, in an interview with the London-based Arabic newspaper Asharq Al-Awsat characterized the Israeli government demand that the Palestinians recognize Israel as a Jewish state as the most intractable issue facing the current round of peace talks sponsored by Secretary of State John Kerry.
Palestinian Authority Foreign Minister Riad Malki (File Photo: United Nations)

“This is a sharply contentious issue. It would be dangerous to recognize this because this would mean our acceptance of the dissolution of our own history and ties and our historic right to Palestine,” Malki said.

Now, let me be clear, as the politicians like to say. Leaving Jerusalem aside, I think it is a big strategic mistake for Israel to establish new settlements or even to expand existing settlements in the West Bank. Why? First, it should have been obvious to the Israeli leadership that the US administration was not going to protect it forever on this issue. One thing the past few days have shown is that Israel needs the US much more than the US needs Israel, and the Israeli government was too arrogant or overconfident to see the diplomatic risks it was running, which led to the latest resolution. Second, and more fundamentally, you can think, as I do, that the Jewish people have a compelling moral and historical right to live in the historic land of Israel while also thinking, as I do, that for the sake of peace, the Jewish state should not do everything that it has a compelling moral and historical basis for doing—even if it were possible to increase the Jewish presence in the West Bank without decreasing the viability of the eventual Palestinian state, which, as far as I can tell, it is not. Peace means compromise. Under past Israeli governments, there has always been a willingness to compromise. I’ve given some examples above. Why I am basically on the Jewish center-left on these issues instead of the right? What separates the settler movement in Israel, and the right wing in Israel’s political class, from what I would call more mainstream Zionists? It’s the willingness or unwillingness to compromise. But as I’ve said, I think the US abstention on this resolution makes compromise harder on both sides, which is why it is such a fiasco.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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