Donald Trump as a Philo-Semite – Part I: Trump and Antisemitism

Donald Trump as a Philo-Semite – Part I: Trump and Antisemitism

by

Howard Adelman

Last evening, Donald Trump may have been the one to have secretly released the first two pages of his 2005 tax returns to Rachel Maddow, host of a liberal political U.S. TV show, by mailing Trump chronicler and investigative journalist David Cay Johnston in the proverbial brown envelope with no return address his simplified Alternative Minimum Tax form. Why? Because it shows The Donald in a relatively favourable light – he evidently earned $150 million that year and paid 25% in taxes – $38 million. He had done nothing either illegal or improper. No wonder the White House quickly confirmed the accuracy of the figures while insisting that the “illegal” disclosure be investigated. “You know you are desperate for ratings when are you are willing to violate the law to push a story about two pages of tax returns from over a decade ago.”

What a way for the master deflector and magician of all time to take the public’s eye off the scandal swirling around his head about his tweets accusing Barack Obama of taping him in the Trump Tower. “How low has President Obama gone to tapp [sic1] my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!” All efforts to deflect from that insane accusation by his surrogates – he did not mean his personal phone but the campaign phones; he did not literally even mean wiretapping; he did not literally mean Barack Obama – have been laughed out of the ball park.

The release of the 2005 tax returns may be a substitute for his failed early Saturday morning tweets to distract from the investigations launched from a myriad of directions into the possibility of Trump campaigners’ collusion with Putin’s KGB government. What a chance to steer the inquiries away from the possibility that Trump is in the process of setting up the first Western kleptocracy to compete with Putin’s. What a way for the scandal of firing all the Democratic Party-appointed prosecuting attorneys in one fell swoop – that was what was unprecedented – this past Friday, including one, Preet Bharara, whom he promised could stay on in the Southern District of New York, but who turned out to be the prime investigator into white-collar criminality, including dirty money laundering, swirling around Wall Street. Of the 46 prosecuting attorneys asked to resign immediately and without notice, Bharara was the only one who refused and was fired Saturday, but that gave him an extra day. To do what? – is the question.

The two cover pages of Donald Trump’s tax returns show him earning a very large annual income, reminding Americans of what an astute businessman he is and that he may be as rich as he claims to be. He is seen to be paying a considerable tax bill, but without disclosing his charitable contributions and, more importantly, without disclosing his possible indebtedness to the Deutsche Bank which became a clearing house for laundering billions in Russian money. Unlike the mid-nineties tax return that was leaked during the campaign that showed him not only paying no taxes, but declaring a write off that could have him paying no taxes for 18 years, this so-called explosive revelation displayed Trump as having paid taxes after only ten years, not 18. But why not all the tax returns before 2008 that had already been audited? Why not the full return?

Such speculations may only be the efforts of a liberal observer trying disrespectfully to throw more mud at a president attempting to model himself on President Andrew Jackson, an authentic rather than penthouse populist as the analysis by the Republican-led Congressional Budget Office of the new Ryan health bill reveals – cover far fewer people and allegedly save the government billions. On the other hand, Jackson was the master media manipulator of his time. Jackson, like Trump, did clear the swamp, but only to replace the occupants with his own much more mendacious crew of loyalists. Jackson also was the supreme ethnic cleanser, removing millions of aboriginal people from east of the Mississippi just as Trump now aims to remove those “bad hombres” back to Mexico and to prevent the “lawless savages” who believe in Islam from entering the U.S.

So why discuss Donald Trump’s connection with antisemitism now? The issue seems so tangential. If, in fact, there has been an upsurge in antisemitic incidents since Donald Trump took the reins of power in America. All one hundred U.S. senators signed an open letter addressed to Homeland Security Secretary John Kelly, Attorney General Jeff Sessions and FBI Director James B. Comey demanding swift action against the upsurge in antisemitic activity. “We are concerned that the number of incidents is accelerating and failure to address and deter these threats will place innocent people at risk and threaten the financial viability of JCCs, many of which are institutions in their communities.”

Is Donald Trump in any way responsible for the upsurge or for the allegedly inadequate response? Any accusation that Donald Trump himself is antisemitic appears far-fetched. However, in the current maelstrom swirling around Trump from so many directions, a step back into what appears to be a peripheral issue re Donald Trump, though not for Jews, may be instructive.

The question of whether Donald Trump is antisemitic is easier to answer than the question of whether he bears any responsibility for the upsurge in antisemitism. First, he is clearly not guilty of antisemitism Type C, that is anti-Zionist antisemitism. He has a history of close connections with the Jewish people and Israel. In 1983, the Jewish National Fund (JNF) awarded Donald Trump the Tree of Life Award, a “humanitarian award presented to individuals for their outstanding community involvement [and] their dedication to the cause of American-Israeli friendship.” He was honoured in 2004 by serving as the Grand Marshall in the 2004 Israel Day Parade. He has received many other awards and acknowledgements from the Jewish community, such as the Liberty Award in 2015 from the publication, Algemeiner.

Though in the campaign for the nomination just over a year ago in Charleston, South Carolina, he insisted that he would be “a sort of neutral guy” vis-à-vis the Israeli-Palestinian conflict, he has been anything but. He is unequivocally pro-Israel. Donald Trump does not know what it means to be impartial. In fact, he is the most pro-Israel president America has ever had, if pro-Israel is equated with support for the policies of the current coalition that John Kerry dubbed “the most right-wing in Israeli history, with an agenda driven by its most extreme element.”

Trump supports a united Jerusalem. He promised to move the U.S. embassy to Jerusalem in his presentation to the AIPAC conference when he was a candidate for the leadership of the Republican Party. “We will move the American embassy to the eternal capital of the Jewish people, Jerusalem.” He has not rejected the building of settlements across the Green Line. He was critical of Barack Obama for not using the veto to kill the UNSC Resolution this past 28 December 2016 condemning Israeli settlement activity, including the suburbs throughout Jerusalem, as illegal, the first successful UNSC resolution critical of settlements in forty years and one which declares the settlements not simply an obstacle to peace. The resolution even implied support for BDS. Donald Trump had intervened to try to sideline the vote by getting the mover of the resolution, Egypt, to withdraw as its mover one day earlier after Trump phoned Egyptian President Abdel Fattah el-Sisi, only to see the resolution reintroduced the next day by the other four non-permanent members of the Security Council.

Trump and Israel are linked in other ways. Instead of being critical of the “separation” wall dividing parts of the West Bank from Israel, Trump has lauded it and cited the “separation barrier” as an example of his planned wall along the border with Mexico. It would secure America against both drug smugglers and terrorists just as the separation barrier in Israel has been an effective tool for reducing terrorist attacks. He has favoured “defensible borders” rather than the green line as a reference point in peace negotiations. And he has insisted that the U.S. would support any deal arrived at between the Palestinian Authority and Israel, but “advised” the Palestinian Authority to recognize Israel as a Jewish state. He is an old and chummy friend of Bibi’s and once said in a video made for the 2013 Israeli elections, “You truly have a great prime minister in Benjamin Netanyahu. He’s a winner, he’s highly respected, he’s highly thought of by all. Vote for Benjamin – terrific guy, terrific leader, great for Israel.” In fact, he has said that he would go further than Bibi and not just demolish the homes of the families of terrorists, but “take out the families.”

He joined Bibi in denouncing the deal with Iran as the “worst deal ever.” Since achieving office, Trump has appointed two of his lawyers, one his bankruptcy lawyer, David Friedman and a financial supporter of West Bank settlement activity, as ambassador to Israel, and another real estate lawyer, Jason Greenblatt, as his special envoy to deal with the Israeli-Palestinian conflict. Trump appointed Nikki Haley (née Randhawa), in spite of her call for him to release his tax returns, as the American ambassador to the UN. Haley, when she was Governor of South Carolina for six years, initiated legislation in 2016 to prevent boycott, divest and sanctions (BDS) efforts in South Carolina, the first state-wide effort to do so.

No sooner was Nikki Haley appointed UN Ambassador than she excoriated the UN, justly, for its bias “in favour of the Palestinian Authority to the detriment of Israel.” She moved to block the appointment of former Palestinian Prime Minister, Salam Fayyad, who had an excellent reputation as an honest technocrat, from serving to lead the UN mission to Libya to stop the use of Libya as a launching pad for refugee claimants to reach Europe. Haley did not want the appointment of Fayyad to signal a willingness to recognize Palestine as a state.

Nor does Trump seem guilty of racist antisemitism Type B, since he has an observant Orthodox Jewish daughter and two gorgeous Jewish grandchildren and his son-in-law, David Kushner, is a chief political adviser. Tomorrow, I will inquire into the question of Trump‘s possible anti-Muslim, anti-Mexican and anti-Black American racism and its connection with antisemitism, but it seems absolutely clear that Trump is not a racist antisemite even though he occasionally engages in antisemitic Jewish stereotyping. The latter seems to be a problem that results from his sloppy thinking processes and terrible articulation rather than from any antisemitism.

Trump is also very clearly not an anti-Jewish antisemite, first because he does not seem to be imbued with any Christian values, including its negative history of Christian persecution of Jews. Nor is he an Enlightenment antisemite like Voltaire since he possesses even fewer traces of Enlightenment values, especially of tolerance, than of Christian values. Besides he is reason-challenged. Is he an antisemite in the original Type A along the lines depicted in the Book of Esther charging Jews with  suffering from dual loyalty and adhering to a set of rules at odds with the American government? Since no one in my memory or studies has been more at odds with the rules of political discourse in the U.S., that would certainly be like the pot calling the kettle black. Further, there seems virtually nothing in common between him and Haman. Donald Trump would never play second fiddle to King Ahasuerus.

But perhaps there are some similarities between himself and King Ahasuerus. For the latter allowed antisemitism to flourish under his watch and seemed oblivious. I will wait until tomorrow’s blog to explore this question when I try to discern the connection between Donald Trump and the upsurge of antisemitic incidents.

Israeli and Palestinian Role and Response: UNSC Resolution 2334

Israeli and Palestinian Role in and Response to UNSC Resolution 2334

by

Howard Adelman

The Palestinian reaction to Resolution 2334 seems obvious. Ever since the Fatah faction of the PLO decided that they could not win militarily on the ground, in contrast to Hamas, even as the battle shifted from direct warfare to guerilla warfare or terrorism, Fatah resorted to trying to win in international diplomatic and legal fora. On 4 August of 2009, at the sixth general conference of Fatah held after a hiatus of six years, and specifically convened symbolically in Bethlehem next to the Church of the Nativity within Occupied Palestine and not in a foreign Arab capital, with over 2,000 in attendance, Palestinian President Mahmoud Abbas sold his movement on the proposition that Palestinians had to adopt a different form of opposition to Israeli power and focus on increasing international support.

“We should introduce new forms of resistance to attract universal public opinion” to reinforce Palestinian rights within the context of international law. Peaceful methods, though not exactly Gandhi’s form of non-violent resistance, recommended earlier by Faisal Husseini before the first intifada, would supersede, but not exclude, military armed struggle to become the foundation stone for building a Palestinian state. It was an explicit rejection of the proposal of President Benjamin Netanyahu of Israel to achieve peace through economic cooperation and integration, a proposal Bibi put forth just after he assumed office in April of 2009.

There is, of course, a huge irony in all this. While Fatah pursued the backing of international law, Abbas consolidated his monopolization on domestic power at the expense of the rule of law. “He is the president of the Palestinian Authority, head of the Fatah movement, head of the PLO’s Executive Committee and the commander in chief of the Palestinian security forces. He neglects the law (my italics) and the movement’s statutes that govern its institutions. He monopolizes power and is abusive toward those who disagree with him.” These are not my words but those of Abdel-Hakim Awad, a member of the Fatah Revolutionary Council who nominated Abbas to his position, but recently was excluded from the movement’s seventh congress in Ramallah held in December because of his criticisms. This step, along with the monopoly of the control of media and lifting the parliamentary immunity of opponents, are sure signs that a leader had turned towards adopting totalitarian methods.

In that Fatah quest for the imprimatur of international law, Jerusalem was front and centre. Not East Jerusalem, but Jerusalem. Jerusalem was to be the capital of the new Palestinian state. The target became freezing settlement activities in the West Bank and in East Jerusalem. No freeze then no peace negotiations. The cessation of settlement activities became the sine qua non for resuming peace negotiations. Settlement activity anywhere in the West Bank and East Jerusalem had to be branded as illegal.

Resolution 2334 was a peak victory in that effort. The upcoming French Peace Summit on 15 January, just next week, may be another, especially if the representatives to that summit endorse a pace plan along most of the lines proposed by John Kerry. I would not expect them to agree to sharing Jerusalem as a joint capital, but if they also get that summit to declare all settlements across the old Green Line as not just an impediment to peace, not just as illegitimate, but as illegal, it would mean defining the Jewish Quarter in the Old City and twelve very large neighbourhoods in Jerusalem as illegal as well as the settlements in Area C and beyond the Separation Barrier, not to speak even of the outposts illegal even under Israeli law. The effort to relocate the Amona settlers to land owned by ‘absentee landlords’ to legalize the settlement in accordance with Israeli law and in contravention of past practice of not putting settlements on Palestinian privately owned property, will become irrelevant.

Further, from now on, as Italian journalist Giulio Meotti wrote, “any Israeli, civilian or military, involved in the ‘settlements,’ will be liable to judgment for violating the Geneva Convention. The Israeli army, which administers areas B and C, may be indicted if it demolishes the homes of terrorists, if it expropriates the land for reasons of ‘security’, if it plans new Israeli homes. The decision is now in the hands of the Hague prosecutor, Fatou Bensouda, who has already opened an investigation about the ‘Israeli settlements,’ believing they constitute a ‘war crime.’ Israeli military personnel and politicians could be subject to warrants if they land in London, as occurred with Tzipi Livni.” Further, Israeli banks operating even in the “illegal” Jerusalem neighbourhoods could be charged under international law. The European Council on Foreign Relations has already proposed sanction against some Israeli banks – Bank Hapoalim, Bank Leumi and the Mizrahi-Tefahot Bank.

Another nail will have been driven into the coffin of Resolution 242 which indirectly gave Israel permission to trade peace for territorial acquisitions. The old armistice lines would become once more a reference point for negotiations. Further, if the Summit follows the lead of Resolution 2334 and, on the issue of violence, ignores John Kerry’s speech, Palestinian incitement and celebration of terrorism could continue as a supplementary rather than prime form of resistance. Ostensibly committed to a non-violent path to peace, documents and proposals that emerge from the Summit will only be generalized condemnation of violence with no effort to pinpoint centres of responsibility.

Further, the PA can be expected to use the International Criminal Court to pursue Israeli individuals and charge Israel with more specific legal actions. In addition, the resources of the UN, now being used to prepare the organizational ground for a more comprehensive targeted boycott of Israeli goods, will get a further impetus. Finally, the U.S., Israel’s strongest defender, will be further sidelined and the Trump administration castrated in the world of international diplomacy and international law as much as Trump might shift American policy to a much stronger pro-settler position. The U.S. has been pushed from the centre to the margins in Israel-Palestinian negotiations, a position very unlikely to dent but possibly increasingly cement the close ties on military defence and intelligence issues as well as the huge economic exchange between the two countries.

At the same time, the Trump administration with Democratic Party support will likely fight back on behalf of Israel, threatening legal action against European banks if they begin to boycott Israeli banks, bar European institutions and pension funds from American-controlled systems of economic exchange if they proscribe Israel from investments and if Israeli companies are blacklisted. Instead of the regional economic cooperation that Bibi had proposed in 2009 as a pathway to peace, we will have international economic, legal and diplomatic warfare. How can one argue that Resolution 2334 enhances the prospect of peace?

There is one illusion that has accompanied Resolution 2334. Since it was passed under Article VI of the UN Convention instead of Article VII, many interpret the Resolution as non-binding. General Assembly resolutions are clearly only recommendations, but they also influence practices and budgets of the UN administration. Recommendations of the UN Security Council under Chapter VI have no enforcement mechanisms. However, though disputed by many international legal experts, the ruling of a majority of the International Court in The Hague in 1971 declared that all UN Security Council decisions are binding. There may be no coercive power attached to them, but they have a tremendous influence politically and diplomatically and help build a widespread world consensus on certain matters. In this sense, a resolution can be morally binding even if compliance is only voluntary. One should never underestimate the power of morality even in a dog-eat-dog world.

Of course, Israel’s challenge to Obama on his home turf over the Iran nuclear deal did not help Israel win friends among many Democrats. As Martin Sherman, Executive Director of the Israel Institute for Strategic Affairs put it in a relatively understated matter, the “appalling and infuriating outbursts of vindictive pique” of Israeli politicians led by Bibi Netanyahu probably damaged the Israeli position more than anything and, as Sherman predicted, prepared the ground for the UN Resolution. Then there was a total absence of preparation for the impending storm, either through diplomatic initiatives to propose putting the two-State solution and peace negotiations back on track or, on the other hand, using the stick to get the Palestinians to back off by tightening the economic screws through which Israel primarily controls Abbas. None of these entailed freezing settlement activities.

Former Defense Minister Moshe Ya’alon also criticized Bibi for not working to prevent the passage of Resolution 2334 much more assiduously. There is not a single bit of evidence that Israel intends to accept Resolution 2334 as a basis for negotiation, notwithstanding Bibi’s endorsement of a two-State solution in his famous 2009 Bar-Ilan speech. For Israel, while ostensibly holding up that goal, did virtually everything in its power to undermine it, often through means that appeared to any reasonable observer to be disingenuous and insincere, deceptive and deceitful. This became abundantly clear when Bibi vowed that there would never be a Palestinian state on his watch. It is the height of folly to endorse a two-State solution on the one hand and then promise it will never come into being while you are in office on the other hand. Will Israel seek to engage its old European democratic partners once again in dialogue, as extensive as the disagreements are, or will Bibi go on an all-out warpath against them? Merely to ask the question reveals the answer.

The debate in Israel will shift to whether the objective should be strengthening the control and demography of Area C, while also thickening the settlements on the other side of the Separation Barrier, versus those who want to go after all of the West Bank, perhaps sharing part in a condominium arrangement with Jordan, but, in that alternative, denying the possibility of a Palestinian state coming into existence side-by-side Israel. In the wider field, Israel will increasingly become an opponent of the expansion of international law and legal norms and will have surrendered the turf of international diplomacy and law to Palestinian machinations. As Palestine becomes more authoritarian and totalitarian, ironically it increases the number of democracies at the front line of its defence.

Thus, there are divisions within Israel, the majority favouring one or other form of two-State solution and a minority aiming for territorial maximalism. Whatever the divisions, most Jewish Israelis find themselves united in opposition to the premises of Resolution 2334. Given the right-wing character of the Israeli government, the Israeli polity will ensure that not only no transportation link between Gaza and the West Bank will be established, but that Gazan students pursuing higher education degrees will not be allowed direct access to the West Bank. If a man and woman from the West Bank and Gaza fall in love, they will only be permitted to live together in Gaza. Other mechanisms of depopulating Area C of Palestinians will continue.

While Palestinians are increasingly united on the diplomatic and legal strategy but divided on their military and security strategy, on the ground barriers, between Palestinian communities grow. Abdel-Hakim Awad, a member of the Fatah Revolutionary Council and the Palestinian National Council, has attacked Abbas even though he originally made the motion to make Abbas head of the PA. He accused Abbas of excessively cooperating with Israel to maintain security in Area B. The irony is that, while legally and politically, the international community has moved to legitimize Palestinian control over all territories outside the Green Line, on the ground, that line is increasingly totally irrelevant. If a peace agreement is by some far out chance agreed to, Palestinian communities will have to be linked together by a series of sunken and exclusive roads, provided they are part of the agreement and Israel implements those clauses.

What has also evaporated, Kerry’s rhetoric to the contrary, is the vision of two alternatives – an Israel that is Jewish but non-democratic or an Israel that is both Jewish and democratic because it lives within much more restrictive borders. Israel can leave out the major population of Palestinians, use various devices to ensure that Palestine does not become a full self-governing state, and remain both Jewish and democratic. The real choice is between different variations of a Jewish and democratic state.

In a very expansionist scenario, outposts will be “regularized.” In a middle range objective, only Area C will be viewed for incorporation into Israel. In a very modest and dovish proposal, but one which only a small minority of Jewish Israelis share, Israel will just keep the new neighbourhoods of Jerusalem across the Green Line and the Old City. The latter two alternatives allow for a Palestinian state alongside Israel occupying 22% of the territory of the original Mandate. The first does not. But none of these include the most extreme and aggressive Zionist option of a one state solution where there is no Palestinian state at all but where Jordan is expected to play a specific role, one to which it is very unlikely to agree.

In light of the passage of UNSC Res. 2334, what might the effect be of moving the American embassy to Jerusalem? For one, it would send a clear and unequivocal message that America is no longer bound by international law. Many others would be further alienated from both the U.S. and Israel. As Martin Indyk (no admirer of Trump) pointed out, Trump might so shake things up that the peace process could possibly be reconstituted. According to Indyk, it would start by resolving the thorniest issue of all first in contrast to my preference for bracketing Jerusalem as unresolvable. It depends on buying into Kerry’s vision of Jerusalem as a joint capital, which neither the Israelis, Trump and his supporters or even the Palestinians endorse. While Israel would run into this proposal like a bull, the Palestinians would try to bite their tongues and stay out of the fray to gain more diplomatic and legal points. The move of the American embassy will be a demonstration of even more impotence on the part of the international community and a reaction by both Netanyahu (or his successor) to install more footprints in the sand.

Indyk himself admits his proposal is far-fetched, but he felt he had to grasp for straws. I prefer to breathe the political air that is actually out there.

One of the great benefits of Kerry’s speech is that it agreed with and backed the Israeli position that no solution can be imposed from outside, but that the parties themselves would have to come to some compromise. There were other gains. Kerry specifically mentioned the need to endorse Israel as a Jewish state. He also explicitly said that the refugee issue would be resolved through compensation and not through return. However, as important as these gains are, they pale in significance compared to the diplomatic and legal costs of Resolution 2334.

The result will not only be very much increased diplomatic, legal and economic wrangling on the world stage, but greatly increased tensions within the Fatah movement and within Israeli political institutions, all likely to be at the cost of democratic practices. The tensions over democratic norms within Israel are nowhere comparable to those taking place on the West Bank. However, if the treatment of Deputy Attorney General, Dina Zilber, is any indication, democratic institutions in Israel will be roiled in conflict. Zilber’s report recommended that all settlement activities be made accountable to the government and not relegated to a non-accountable World Zionist Federation. This report was thrown in the trash heap. If this treatment is any indication, then the independent advice of professional mandarins is likely to be set aside and ignored. Highly qualified mandarins will be castrated because their professional activities frustrate the ambitions of the more extreme members of the right-wing Israeli cabinet. The civil service will become far less civil and much more partisan in exclusive service to the party then in power.

Instead of peace, Resolution 2334 has opened the floodgates to a huge expansion in the Israeli-Palestinian conflict on the world stage. As Miriam Na’or of the Supreme Court of Israel stated, “You cannot ignore international law.” Conflict will not only increase between Palestinians and Israelis, but also within both Palestine and Israeli governmental structures. In Israel, the efforts to bend Israeli law to serve partisan political purposes is bound to increase at the same time as the prospect of a peace deal between Israel and Palestinians becomes more remote each day.

With the help of Alex Zisman

A Critique of John Kerry’s Analysis Resolution 2334

Resolution 2334: Why America Abstained
Part B: A Critique of John Kerry’s Analysis

by

Howard Adelman

On 28 December 2016, in the aftermath of the passsge of UN Security Council Resolution 2334, John Kerry shared his candid thoughts on the Israeli-Palestinian conflict. Did Kerry offer any analysis of this complicated and truly dialectical history in his speech? None at all! Simplistic and misleading dichotomous thinking framed his talk. There were also factual errors. The opinion polls in Palestine now indicate minority support for a two-State solution, contrary to Kerry’s claims, though his interpretation was valid in a poll conducted at the end of 2013, four years ago. Even in Israel, support for a two-State solution had slipped to a bare majority, 51%, by mid-year of 2015. Now support for a two-State solution has also fallen to a minority there as well. Though most Israelis still believe in a two-State solution as a desirable goal, most have given up believing in such a solution as a realistic one. I think this is what Kerry was really trying to get at, but which he never articulated adequately so crowded was his text with clichés about beliefs that held little correspondence with reality.

But the basic error of Kerry’s analysis is that Kerry believes the “status quo is leading towards one state and perpetual occupation.” I do not believe this is accurate. The status quo is probably leading to the prospect of Israel consolidating its control over the Old City of Jerusalem and integrating Area C unilaterally into Israel without unilaterally transferring equivalent territory to the Palestinians. As an alternative, what chance is there that either side would accept Kerry’s Principle four, making Jerusalem “the internationally recognized capital of the two states, and protect and assure freedom of access to the holy sites consistent with the established status quo”?

This is now the crunch point of the dispute. Is it better to propose a solution which both sides oppose? Or is it better to sidestep that issue and consolidate a peace in all other areas of dispute? Kerry believes that, “It is essential for both sides that the final status agreement resolves all [my italics] the outstanding issues and finally brings closure to this conflict.” I am not so sure. I am inclined to believe that since the Jerusalem issue appears to be the one insoluble one, it may be better to sidestep it. In any case, Kerry gave no arguments to justify why all issues had to be resolved. They rarely are in peace agreements.

Kerry may be correct on another point. “The U.S. and our partners have encouraged Israel to resume the transfer of greater civil authority to the Palestinians in Area C, “but has that been “consistent with the transition that was called for by Oslo?” Only in one interpretation. And even if that is accepted, it may now be obsolete given the new facts on the ground that are indeed now irreversible. Israel will continue to exercise protective military control over the settlements not in Area C, but integrating them within quasi-Israeli borders still seems decades away. In the meanwhile, there is no sign of any diminution of Palestinian governance over Gaza and over the rest of the West Bank. That is a terrible scenario as far as I can evaluate. But it is far more realistic than the picture Kerry paints of the present and immanent danger and one that has allowed him to opt for mistaken policies and very weak defences of those policies.

While Kerry went into far greater detail in depicting the violence perpetrated by Palestinians than Samantha Powers did in her UN speech on 23 December 2016, a speech directly lauded by the Palestinian Authority, Kerry’s speech, which was indirectly praised by the PA, did not explain why the Palestinian violence alone that he described, and that was not depicted in the Resolution, did not offer sufficient reason for the U.S. vetoing that Resolution. After all, the Resolution deliberately avoided pointing out an agent behind Palestinian violence. The PA, as Kerry himself noted, only paid lip service to non-violence and cooperating with the Israeli authorities in repressing political organizations behind that violence, while they feted and honoured terrorists.

Kerry in his speech said that, “Israel has increasingly consolidated control over much of the West Bank for its own purposes, effectively reversing the transitions to greater Palestinian civil authority that were called for by the Oslo Accords.” The first part of this assertion is accurate. The second part is not. The transition to greater Palestinian authority in Areas A and B, not to speak of Gaza, has not been reversed.

The Oslo Accords, as we have said, divided the West Bank into three areas, A, B and C. “Land in populated areas (Areas A and B), including government and Al Waqf land, will come under the jurisdiction of the Council during the first phase of redeployment” and was referred to as the “populated areas.” Area C consisting of the areas of the West Bank outside Areas A and B. In Area A, the PA was responsible for both administration and internal security. It originally made up 3% of the whole area and now makes up 18% of the area under complete PA control. Area B consists of about 22% of the West Bank and is under Palestinian administrative jurisdiction, but joint Israeli-Palestinian internal security. There are NO Israeli settlements in Area B. Palestinian authority has been strengthened in Areas A and B, discounting the loss of legitimacy resulting from its own ineptness in governance.

Area C is the problem. It consists of just over 60% of the land area of the West Bank, but only 100,000-150,000 of the 2.75 million Palestinians living in the West Bank live there. The lower figure is closer to the number of Palestinians who now actually live there. The latter figure in the range refers to the number that lived there at the time the Accords were signed. Israeli policies have encouraged an out-movement. Israelis are notorious for NOT granting building permits to Palestinians in Area C. In contrast, the 110,000 Israelis who lived in Area C in 1993 has grown to almost 400,000. Demographics have been at odds with the requirement of Oslo that Area C “will be gradually transferred to Palestinian jurisdiction in accordance with this Agreement.”

Thus, the numbers cited by Kerry re settlements are more or less accurate and correspond to the figures for settlements that I cited. Does the strengthening of the settlements east of the security barrier point to a trend to eliminate Palestinian control over that territory? How can one expect 80,000 or 90,000 or even double that number, 150,000 settlers in that territory ever offset the huge disproportion of a Palestinian population of 2.75 million? Whatever Israel does to thicken those settlements, the likelihood of their being incorporated into Israel is remote. The most that can be realistically expected is that they will remain in a sovereign Palestinian authority just as there are Palestinian towns, villages and neighborhoods within Israel. I simply disagree that these settlements make it “that much harder to separate,” that much harder to transfer sovereignty let alone to imagine such a transfer. It is quite easy to imagine and not that much more difficult to realize the transfer. Unless, of course, one accepts the principle that Palestine as a state should remain Judenrein.

There is a distinction between referring to the intentions of the Oslo Accords and the realization or failure in their realization. When we factor in two other elements, context, such as what followed the transfer of Gaza, and consequences, the huge increase in the number of settlers and the decline in the population of Palestinians, the explanation for what has happened over almost a quarter of a century can be attributed to either or both Palestinian malfeasance and Israeli bad faith in its failure to live up to its commitments, in different proportions depending on your information, point of view and ideology. But if we focus on consequences rather than argue about causes or commitments, we enter a reality whereby Israel will never transfer all of Area C and evacuate 400,000 Israelis. It was barely able to succeed in transferring 9,000 from Gaza. The most that can be realistically envisioned is a transfer of some of the territory in Area C along with land now in Israel to make up an equivalent total land previously in Area C.

Kerry stated that, “Now, you may hear from advocates that the settlements are not an obstacle to peace because the settlers who don’t want to leave can just stay in Palestine, like the Arab Israelis who live in Israel. But that misses a critical point, my friends. The Arab Israelis are citizens of Israel, subject to Israel’s law. Does anyone here really believe that the settlers will agree to submit to Palestinian law in Palestine?” Well you may also hear it from critics of settlements such as myself and, as I have heard directly from a Fatah leader, we believe that some settlers would agree to submit to Palestinian law rather than return to Israel proper. In any case, the choice would be for them to make. As it should be, rather than a forced evacuation of those settlements.

Kerry is absolutely correct that those settlements cannot remain either as enclaves of Israel or as enclaves within a sovereign Palestine protected directly by the IDF. Kerry is wrong, however, that Palestinians do not have equivalent rights to build in the territories they control administratively, as all the cranes in cities such as Ramallah indicate. The problem is I Area C. Kerry is also correct that the land on the other side of the barrier cannot be broken up further if a viable Palestinian state is to be created. But does Kerry believe that this can only be accomplished by dismantling those settlements? How does he believe that this would be politically possible? At one time, it could have been. But it is far too late for such a possibility. There is no question that the settlements on the other side of the barrier pose a challenge in a peace agreement. But not an insurmountable one. Not a problem close to that of the Old City.

Further, Kerry is correct that Israel has openly discriminated against Palestinians building in Area C. Demolitions of Palestinian structures have increased. The only way this will be settled is through some kind of a peace agreement, but there is little prospect of that if the dismantling of settlements are made part of the equation. To repeat, it is just too late for that now.

There is the other matter of the illegal outposts under Israeli law, sometimes located on Palestinian owned land. Would the enforcement problem towards these outposts shift if there was international recognition that the main bulk of the settlements would be integrated into Israel in exchange for a land swap and that the other settlements on the other side of the barrier would be permitted to continue, but only if the settlers there recognized sovereign authority held by the Palestinians? If Israel domestic law is extended to the settlements in Area C inside the separation barrier, just as it has been to the Jerusalem neighbourhoods built on the other side of the Green line, why would that threaten the possibility of peace if that peace agreement as thus far articulated includes those areas within Israel?
If one focuses on the extremist one-state advocates who decry a Palestinian state and the Hamas extremists who deny the legitimacy of Israel, then is Kerry not parroting the same distortions that Samantha Powers lambasted the UN for? But if Kerry were truly both honest and fair,t, he would have to oppose the Resolution. But the Obama administration clearly supported it with qualifications about the wording around violence and the U.N.’s past positions on behalf of Israel.

Kerry argues that the danger is a unitary undemocratic Jewish state of Israel permanently ruling over an unequally-treated Palestinian population. Why is this suddenly an immanent danger? Surely the trends in 2007 when Obama first took office were almost as great then or greater. There has been a degree of quantitative difference since then, but nothing qualitative. Kerry is correct. There are no answers if Israel becomes a fascist apartheid state ruling over almost 3 million Palestinians. But does the de facto support for Resolution 2334 undercut that possibility or is it more likely to increase its probability, even if still improbable at this time?

Why does Kerry not plug for a realistic two-State solution based on previous agreements between Israelis and Palestinians? Why provide de facto support for a Resolution that makes the armistice lines prior to the 1967 Six Day War as the reference point for resolving the problem and does so without referring to “the mutually agreed swaps” referred to as a basic principle in Kerry’s principles at the end of his speech and even in the Arab Peace Initiative? Admittedly, the U.S. sits between a rock and a hard place. Did its defence of Israel in the past without the current pressure of Resolution 2334 possibly encourage and/or facilitate the growth of extremism? This is a possibility. But Kerry’s analysis does not answer that question or even ask it.

Instead, Kerry insisted that the Obama switch to allowing a de facto Resolution so one-sided criticism of Israel to pass was a last ditch effort to preserve a two-State solution. If he had analyzed the various possible two-State solutions and indicated which forces are in play reinforcing one rather than another and then concluding how such an analysis affected American policy, one might give him greater credit. But when he holds out the fear of an undemocratic Israelis state ruling over 2.75 million Palestinians in perpetuity instead of considering what elements need to be put in place to ensure this remote possibility never becomes an immanent one, then it s very difficult to take Kerry’s position as serious. Is it possible that all of the impotent efforts of the UN to put pressure on Israel on dismantling ALL the settlements has strengthened the right and the resistance to Palestinians having their own state?

I have opposed settlements for five decades. So has the U.S. So have the Europeans. John Kerry offers an alternative solution as if he has suddenly discovered that the settlements have reached the stage where the two-State solution has been undermined. But U.S. administrations have always opposed settlements as obstacles to peace. And, in my estimation, they were correct to do so. But just when the time has come to forge a realistic solution that takes account of both the settlements and Palestinian aspirations, a pile up on Israel takes place. Does anyone believe that this will encourage such a stubborn and stiff-backed people to back down, especially when Donald Trump is soon to assume power and the right controls the government of Israel?

Kerry argued that if the U.S. had not abstained but had vetoed the resolution, the U.S. would have given Israel “license to further unfettered settlement construction that we fundamentally oppose.” Did the Obama administration give unfettered licence for Israel to expand settlements over the last eight years when it did not allow a U.N resolution selectively critical of Israeli settlements? U.S. Policy, as Kerry repeatedly said, always opposed settlements. Why would licenced be given now to support the growth of settlements but not before? Perhaps Kerry, without admitting it, wants to say that in vetoing and resisting previous UN resolutions in the past zeroing in on Israel and its settlement polices, the U.S. inadvertently gave a licence to expand settlement.

Obama has been a great president and a strong friend to Israel. John Kerry has been an excellent Secretary of State and one truly devoted to resolving the Israeli-Palestinian impasse. But his position recently has been ridden with inner contradictions. And his defence of his de facto support of the Resolution is weak and contradictory. If Resolution 2334 “simply reaffirms statements made by the Security Council on the legality of settlements over several decades,” why is so much emphasis given to the 1949 armistice lines as a reference point? Why has the U.S. shifted from calling the settlements an impediment to peace to calling them illegitimate and then shifted once again to calling them illegal?

I believe they are illegal according to most interpretations of international law. But why this shift so late in the Obama presidency and with so one-sided a resolution? Further, there was not just the reference to Eastern Jerusalem that includes the Old City that was problematic, it was the reference to eastern Jerusalem including the Old City as Palestinian territory. Does not this prejudge an outcome if the premise is self-determination of the largest community in an area? Why is that not the premise for Area C?

Further, Kerry’s second principle for a peace agreement required withdrawal for territory occupied in the Six Day War. He did not say “all” territory. But he also did not say that that clause of Resolution 242 also deliberately omitted the reference to ALL the territory. Why did John Kerry not make that clarification in his speech?

Kerry, to his credit, did spell out the terms now generally acknowledged by both sides to deal with the refugee issue that at one time appeared to be the most intractable problem. Return was omitted. “As part of a comprehensive resolution, they [the refugees] must be provided with compensation, their suffering must be acknowledged, and there will be a need to have options and assistance in finding permanent homes.”

Of course, the U.S. was not the manipulator behind the scenes in drafting the Resolution and pushing support for it. Such an interpretation is but part of a post-fact world. But this does not require an assertion, also made by Samantha Power, that “we [the U.S.] could not in good conscience veto a resolution that condemns violence and incitement and reiterates what has been for a long time the overwhelming consensus and international view on settlements and calls for the parties to start taking constructive steps to advance the two-state solution on the ground.” As I have written, the condemnation of violence was pro tem and had none of the specificity re agency or persistence contained in Kerry’s speech. The Resolution was not “about actions that Israelis and Palestinians are taking that are increasingly rendering a two-state solution impossible.” It was barely about Palestinian actions. And it never adequately demonstrated why those actions – by Israel or the Palestinians – made a solution not just difficult, but impossible.
“Further, to reiterate, if that Resolution was reasonable enough to allow de facto passage, why were not numerous other previous ones that differed very little from this one? The problem is that Kerry’s defence of the new American position rested on quicksand.

The real reason for the switch, I believe, emerges in one paragraph in reference to “the unusually heated attacks that Israeli officials have directed towards this Administration.” This was quid pro quo for an irrational Netanyahu and partisan treatment of the Obama administration that destroyed bipartisanship in the policy towards Israel and had given every ground for America to desert its ally.
But more on that in the next blog on Israeli policy in dealing with the Resolution.

With the help of Alex Zisman

Resolution 2334 and a Two-State Solution: Part C: Analyzing the Resolution Itself and Its Effects on Negotiations

Resolution 2334 and a Two-State Solution:
Part C: Analyzing the Resolution Itself and Its Effects on Negotiations

by

Howard Adelman

Following the war in 1948, the borders recommended by UNSCOP, the United Nations Special Committee on Palestine, shifted. Beginning with the United States, many countries recognized the new state of Israel. This was before the war broke out. After the war, these states, and the numbers increased, which recognized Israel, did not differentiate between the borders approved by the UN and the territory between those borders and the new armistice line. The latter was not referred to as “occupied territory” within the enlarged borders of the armistice agreement. It is more than noteworthy that the Fourth Geneva Convention (Geneva Convention relative to the Protection of Civilian Persons in Time of War) which defined the rights of a victor over territory and the treatment of local inhabitants, as well as the right to move or give permission to move its own population into those territories captured in that war, was not adopted until August 1949.

The inclusion of Jerusalem and the West Bank within Jordan was not generally recognized. Nevertheless, Jordan’s control and administration of Jerusalem and the West Bank and its subsequent annexation into Jordan became the de facto reality until 1967. In that year, UNSC Res. 242 set up a new framework for recognition. Israel was required to withdraw from occupied territories, and explicitly not the occupied territories. The drafters of that resolution explicitly did not recognize the 1948 armistice lines as borders. The big change was that Israel was now the occupying power of the West Bank, the Old City, East Jerusalem and Gaza. According to the generally established, but not universally accepted, interpretations of the Fourth Geneva Convention, a power that exercises military occupation of a territory following a war – and it does not matter whether that territory was the sovereign territory of another state or territory occupied by another power or legal state or whether the territory was captured in a defensive or an aggressive war – that power was not allowed to alter the demography of that territory by moving its population into that territory or even allowing its citizens to move in to occupy parts of that territory.

The left in Israel took advantage of the clauses that allowed changes “for military purposes.” The right in Israel claimed, that under the Balfour Declaration and its international endorsement, that territory was to be a homeland where Jewish people could settle. Others claimed that the Fourth Geneva Convention trumped those allowances of the 1920s. But the point became moot because international treaties between the parties in contention would trump both the Geneva Convention and the exercise of de facto coercive power and administrative control on the ground.
Which brings us to Resolution 2334. Resolution 2334 alters previous arrangements and does so in fundamental ways. It reaffirms, as I have previously explained, a general principle, but one only applied to Israel after 1967, the inadmissibility of the acquisition of territory by military force. It reaffirms the Fourth Geneva Convention about the transfer of populations and defines the creation of the barrier/wall/fence as a breach of that Convention and not justified by military or security needs, at least where it is located on territory administered by Israel. Israel’s actions were once again determined to be in contravention of the Fourth Geneva Convention. Resolution 2334 explicitly condemns altering the demographic makeup of the territory, more significantly, biases any negotiations by calling the occupied territory Palestinian territory and not simply the West Bank, and specifically includes East Jerusalem which encompasses the Old City in its nomenclature.

Resolution 2334 adds to these old assertions, now somewhat modified in language, a “grave concern” that the continuous construction of settlements threatens the two-State solution. The Resolution explicitly adds, “based on the 1967 lines,” and leaves out any reference to land swaps. In this Resolution, the 1967 lines now acquire a status as a border reference. The Resolution goes even further to point to the settlements as THE obstacle, that is the major, though not exclusive, barrier to concluding a peace agreement between Israel and the Palestinians. And it is, if you accept the Old City, East Jerusalem and all of the West Bank as Palestinian territory. And that is what the UN Security Council did in passing that Resolution. It effectively trumped Resolution 242 which had only required withdrawal from some territory and not all territory. Resolution 2334 effectively trumped OSLO by setting the 1967 armistice borders as the reference point rather than any swap of territories already agreed to between the Palestinian Authority and Israel.

In effect, the weight of international recognition of what was Palestinian territory was added to the weight of the dominant interpretation of international law to offset the weight of coercive power and administrative Israeli authority over parts of that territory. In the near term, the Resolution seems to have had a stimulant effect, spurring the formalization of settlements and outposts underway or in the planning stage, as occurred at the beginning of the twenty-first century when another UN Security Council Resolution was passed. UNSC Resolution 1515 adopted unanimously on 19 November 2003, endorsed the Road Map proposed by the Quartet envisaging an exchange of territories to satisfy Israeli security concerns and the creation of a Palestinian state alongside Israel. The threat of terrorism featured prominently. In that phase, the establishment of new settlements, at least legally, by and large effectively ceased.

The focus of Israel became “natural” expansion. This is precisely and explicitly what Resolution 2334 mentioned. Did Resolution 1515 passed in 2003 indirectly accept the settlements built before 31 March 2001? Was their legality reinforced in distinguishing between settlements after 2002 from those authorized before 2001? Resolution 2334 seemed to state that this was not the case. The only changes to the 1967 lines that will be recognized are those made between the two parties. Does that mean that Resolution 2334 recognizes the lines between areas A, B and C? Quite the reverse. By not mentioning them, they are given no international imprimatur. Does that mean Resolution 2334 recognizes the tentative agreement on the territorial swap? Quite the reverse. By not mentioning that swap agreement, it is given no international imprimatur. These may be incorporated into a final negotiated agreement, but the diplomatic trading hand of the Palestinians has been greatly strengthened.

In the last eight years under the Obama administration, the number of Israeli settlers in the West Bank, excluding Jerusalem neighbourhoods, has grown to about 400,000, a gain of more than 100,000 largely through the “thickening” of existing settlements. The number of “settlers” in East Jerusalem has grown to roughly 208,000, only 15,000 more than when Obama took office. The emphasis in policy of Israel has been on strengthening the West Bank settlements. Almost 13,000 new settlement units were initiated or completed in the West Bank. What Israel has lost in diplomatic leverage in the international arena it has tried to offset by facts on the ground and de facto coercive and administrative control.

Unlike the efforts at the beginning of the twenty-first century, the 2016 Resolution called on reversing the situation. Further, contrary to the contention of that Resolution, there is little evidence suggesting that efforts to grow and expand existing settlements entrench a one-State reality as claimed in Resolution 2334. But the clinkers come in the clauses much more than in the preamble. Those clauses reiterate that the settlements established anywhere in the occupied territories after 1967 are illegal., a flagrant violation of international law and impediment to a two-State solution and a just and lasting solution to the conflict. Resolution 2334 demands cessation of all settlement activities.

And what is a settlement activity. Expanding buildings? Repairing buildings, Working? Eating? Driving? Or is it just the collective initiatives such as providing for infrastructure and administration? The real substantive elements are the repeated references to the 1967 borders as the fundamental reference, the repeated reference to East Jerusalem, including the Old City, as falling within that reference point as not only occupied territory but occupied Palestinian territory, the call for reversal of trends that have significantly fallen off since the beginning of the twenty-first century, and the call for other states to differentiate, not only in trade, but in all dealings between what happens in the occupied territories and what happens within the 1967 lines recognized as sovereign Israel. The supplementary clauses denouncing violence on all sides appear pro tem, especially because the resolution explicitly excludes reference to activities which reinforce or encourage terrorism (such as treating terrorists as heroes and martyrs) while the targeting of demolitions is spelled out and focused solely on Israel.

In August of 2016, following a denunciation of settlement thickening expansion plans by 200 American rabbis, the U.S. sent Israel an unequivocal message that if demolitions proceeded in the Palestinian village of Sussia, a red line would be crossed. This echoed protests made by EU foreign ministers on 20 July 2016 following warnings General Mordechai delivered to the Bedouins. 340 of them live in the village. The fact that these disputes, so badly handled by Israel, may have virtually nothing to do with Israeli settlement activities and everything to do with Bedouin resistance to Israeli urban development strictures, whether in Israel proper or the West bank, seem to have had no influence on the wording of the resolution.
Quamar Mishirqi-Assad, a lawyer dealing with this issue on behalf of the villagers, claimed that Israel simply wanted to move the village to or near Area B and out of Area C, an area in which 400,000 Israeli live and only 100,0000 Palestinians do. The fact that the villagers were forced to move in 1986 and the homes they built on their agricultural land were demolished in 2001, rebuilt and demolished again in 2011, was not considered as part of the analysis. This demolition would be the third time since the village was built thirty years ago. Nor did the fact that the Israeli Supreme Court ruled in favour of the government in 2015 seem to count. Nor, finally, did it seem to matter that this was a new village built during occupation.

All of this must be understood also within the context of diplomacy conducted over the last six years. The Americans refused to declare the settlements illegal in 2011 when the Palestinians attempted to declare their status as a state at the United Nations in the Palestine 191 initiative. How did Israel respond? It doubled down and announced the building of additional settlement units in response to the Palestinian diplomatic initiative. The Europeans resisted. Germany moved to stop delivery of submarines capable of carrying nuclear weapons to Israel. The following year, if some European states previously abstained, they then supported Palestinian statehood. If they previously opposed, they abstained in 2012 voting. The diplomatic war was running against Israel and criticisms mounted against home demolitions, expropriation of land and the refusal to grant construction permits to Palestinians.
These countries and their diplomats contended that Israeli actions and initiatives in the West Bank were completely contradictory to the stated and agreed aim of arriving at a two-State solution. But as I tried to demonstrate in my previous analysis, that depends on what you define as the two-State solution since there are many variations. If the plan is simply to incorporate Area C along with the accepted Jerusalem neighbourhoods into Israel, and to transfer equivalent Israeli land to the new Palestinian state, such thickening activities do not undermine a two-State solution. But if the reference point is the 1967 armistice lines, then such activities do conflict with a very different two-State solution. More importantly, by making the 1967 lines the reference point and by defining the occupied territory as Palestinian territory, the diplomatic hand of the Palestinians is significantly strengthened.

The situation, to say the least, has not been helped by the way Bibi Netanyahu conducts diplomacy in terms of domestic politics. He has bragged that his government is more committed to settlements than any Israeli government in history, in spite of the evidence to the contrary when comparing the expansion of the number of settlements under Arik Sharon’s government compared to Bibi’s. Further, Naftali Bennett and others in Bibi’s cabinet openly declare the two-State solution in any form dead. Donald Trump has appointed an ambassador to Israel, David Friedman, who dubs the two-State solution in any form an illusion. All of these responses of the Israeli government stimulate an equal and powerful reaction from Western governments sympathetic to some kind of a Palestinian state being created side-by-side Israel.
As more Israeli politicians not only believe in but advocate implementing a one state solution unilaterally, increasing numbers of Palestinians have moved to advocate a bi-national state between the Jordan River and the Mediterranean attracting idealist support and that of many European nations. But those efforts are NOT identified as a threat to the two-State solution because they ostensibly emanate from idealist principles rather than what is perceived to be a crass power grab.
In one interpretation of Resolution 2334, the world is trying to save Israel from its worst propensities, propensities likely to be reinforced by the new Trump government. In a very different interpretation of the very same international diplomatic initiatives, a sustained effort has been mounted to strengthen the Palestinian hand in negotiations and to keep the threat of terrorism at bay. As Israeli settlers marched from Ma’aleh Adumim to the Jerusalem neighbourhoods built on territory captured in the Six Day War (February 2014), when in 2016 Bennett openly advocated formally annexing those territories, the counter-movement strengthened.

Those who argue that settling people to mark territory is illegal under the dominant interpretation of international law, and, further, that such efforts are unsustainable, in turn, strengthen the hands of Israeli extremists demanding total annexation. The extremes are enhanced and the most reasonable compromises are undermined from both sides. This is especially true when the idealists and opponents charge Israel with creating an apartheid state – which is not outside the realm of possibilities. Certainly, hatred of Jews has been increasing among Palestinians. Suspicion and fear of Arabs, reinforced by extremist Islamic actors in the Muslim world, has increased among Israelis.

In response to my last blog, one reader wrote and asked, “To whom does the land belong?” I quipped back as if I were writing a Donald Trump tweet, “To God. We are merely the custodians.” The reader wrote back, “Well, that may be theological, but I’d like a more practical answer.” I offered a more serious response as follows:
“You are right to do so [object to my terse response]. In part, but only in part, this was written tongue in cheek. The reality is that the borders of a territory and the country that controls that territory are products of coercive power, administrative legal authority, legal treaties between and among nations and recognition by others. Is Taiwan part of China? Is Tibet part of China? According to the first two criteria above, the answer in both cases is yes. Over the last seventy years, the answer to the 3rd and 4th criteria has also increasingly been “yes,” even though there is often a distinction made between de facto and de jure recognition.”

Are the settlements illegal and does that mean they should all be condemned and torn down? Illegal means unlawful, but does not entail that what took place is a criminal act. Civil disobedience is illegal in many countries. Trespassing is illegal but not a criminal offence. Further, some practices are illegal, but the laws against them are not enforced. Some acts are considered illegal but the requisite authority lacks any enforcement mechanism. Most international legal experts in humanitarian law deem it illegal to transfer a conqueror’s population into the territory under occupation. Many Israeli experts in humanitarian law argue that if the territory is taken in a defensive war AND if the territory was never the possession of a sovereign state, settling the population of the new occupier in the conquered territory is not illegal and many even regard the territory as not occupied.

Since the International Court in The Hague has sided with the first set of interpreters, and those interpreters are in the majority, I simply take it as a descriptive fact that, currently, international law deems the settlements in the West Bank to be illegal. However, I myself believe that law is not the only determinant and often not the main factor in international affairs. The removal of such a large number of people would be immoral and politically catastrophic and those ethical and political considerations far outweigh the considered legal opinions of most international humanitarian legal scholars and even the interpretations of The Hague court.

Further who gives the recognition is critical. If it is a major power, that is one thing. If it is Honduras, that is quite another. Sometimes occupied territory is recognized as part of a state passively – namely by muting criticism of that occupation. This happened with the territory Israel won in the 1948 war. It has not happened with the territory won in the 1967 war. In fact, the vocal and legal opposition to the ownership by Israel of the “occupied territories” has grown. At the same time, the control via power and demography of some of that territory has increased. The next two decades will set the direction of the resolution of the recognition of new borders based on an admixture of these factors, but the determination will not be unilateral determined by Israel’s coercive power or formal administrative authority alone.

Those other factors will be significantly affected by influence, the growing role of Israel in wealth and in the world economy and the other kind of influence that is non-material, the respect Israeli politicians and friends earn for Israel on the international stage. The latter is usually called diplomacy.

It is in this context that I want to move on and examine the American approach to Resolution 2334 compared to the Israeli one.

With the help of Alex Zisman

Resolution 2334 and a Two-State Solution: Part B Current Contentions and Historical Background

Resolution 2334 and a Two-State Solution:
Part B Current Contentions and Historical Background

by

Howard Adelman

What happens when an extreme dove like myself agrees with Israel’s current Deputy Minister for Regional Cooperation, Ayoob Kara, who reiterated the Netanyahu cabinet position that the key problem with respect to peace is not the settlements. Kara is also part of the faction that contends that, “There is no way to put a state between Jordan and Israel.” He and other extreme right-wingers oppose the creation of any Palestinian state whatsoever. It is very dangerous to share one point of agreement with such proponents because you risk being identified with their entire position.

What if you share two positions? Arutz Sheva published the following in an OpEd by Ted Belman on 1 January entitled, “Since when did Palestinians become entitled to a state?” “Another example of invoking a law that doesn’t exist is the clause which cites “the inadmissibility of the acquisition of territory by force”. Howard Adelman makes short shrift of this proposition. There is no such law.” The citation was based on my first blog in this series which was re-published and circulated on Israpundit. Though this is not quite the way I would have worded a summary of my position, it is not a distortion either.

I agree with the Israeli right that the principle of the inadmissibility of the acquisition of territory by force is peculiar when it seems to be applied to only one case. I also agree with the Israeli political right that the key issue preventing peace is not the settlements, as much as I opposed settlements for years. I used to think the biggest issue was and would remain the refugee return issue, but there is now an understanding on that problem. I contend that the central issue preventing a peace agreement is Jerusalem, particularly the Old City and its immediate surroundings. Though I agree with Kara that the settlements are not the main obstacle to peace, I disagree with both him and the general thrust of and increasing tendency of the current Israeli cabinet to declare that, “First and foremost, the Palestinian issue is not relevant. There is no government and no leadership that will accept this state. Most of the citizens in the PA do not want for (sic!) Israel to leave. They want to be under the regime of Israel. Only the extremists want this state. They are trying to pretend that they want a peace process but they are liars.” Again, part of the problem when you agree on one or two points with the opposition, there is a propensity to believe you have other agreements with them as well.

The Palestinian issue is extremely relevant, and to dismiss it is the height of irresponsibility. Though there is currently no government or Palestinian leadership that will accept the Palestinian state on offer from Israel, it is blatantly untrue that they will not accept a state. The core problem is that they will not accept a state on offer from the majority of Jewish Israelis regardless of the differences among them. Further, most Palestinians do not want to be under Israeli rule. To assert that only the extremists want a Palestinian state is to engage in either delusion, propaganda or both. Why Jewish Israelis overwhelmingly do not want to give up the Old City is not a matter of security. It is a matter of identity and ideology, the same reason that the Palestinians want control of the Temple Mount or al-Ḥaram al-Šarīf. This, and no longer security, is the main obstacle to a peaceful resolution of the conflict, though security for both sides is extremely important.

However, Resolution 2334 does not reiterate, but alters, the fundamental framework for negotiating a two-state solution. It certainly does nothing except undermine the reality of Israel as a democratic state and the possibility of Palestine becoming one. Rather than stabilizing the region, the Resolution will further destabilize it. There are certainly negative trends on the ground. The expansion of settlements is definitely one of them. But the resolution attempts to reverse the negative trends on one side while only paying lip service to negative trends on the other side. In so doing, the saboteurs on both sides are strengthened, not weakened. In any case, those trends do not entrench a one-State solution as much as some might wish they do, especially the right in Israel.

There has indeed been a very aggressive effort by the Netanyahu government to both thicken and normalize the settlements. In questing for the former, thickening the settlements, he has undermined their normalization in the predominant view in the international community. But he has also entrenched the settlements more firmly as a de facto and irreversible reality, creating a significant hurdle for peace, but not the insurmountable one portrayed in the Resolution.

Under any scenario, settlements will indeed grow, but no longer in significant numbers. As a result, the possibility of a two-state solution need not recede, except for those who want to use the settlements as a propaganda instrument to advance one side, including idealist international diplomats who refuse to take realities on the ground as important components in conducting diplomacy.

The failure to recognize the above and allowing oneself to get caught up in that illusion is part of the explanation for the terrible mishandling of the Israeli-Palestinian issue by the international community. Rather than creating conditions for successful final status negotiations, the Resolution ensures that no such negotiations will take place in my lifetime. The Resolution does even more to undermine a lifetime of work on behalf of a secure and democratic Israel living side-by-side a proud and respected Palestinian state than all the efforts of either Netanyahu or Bennett on one side or Abbas and his cohorts on the other. The Resolution was a travesty and a reward for the politics of illusion and delusion rather than a politics which analyzes power and tries to constrain and direct that power by lofty values.

Will the Resolution do anything for the 100,000 Palestinians living among 400,000 Jewish Israeli, Palestinians who live under martial law and are denied equal rights with the Jewish residents of the area? Since Israel is the occupying force in the area, will the Resolution enhance and strengthen Israel’s responsibility to protect Palestinians in Area C and prevent some extremist Israeli settlers from attacking Palestinians and targeting their lands and properties? The reality is that Israeli authorities are lenient towards violent settlers, rarely charging them and even more rarely meting out proportionate punishment. At the same time, the Abbas government, while discouraging terrorism, also lauds the perpetrators and gives them honours.
Most recently, the fight over the Old City has focused on the immediate surroundings, in particular, Batan al-Hawa in Silwan. There are 50 parcels of land in Batan al-Hawa. The Ateret Cohanim Asociation now has control over nine of them. 81 families have received eviction notices. It is one thing for Israel to seek to reinforce the Jewish presence in a contested area like the Old City and its immediate surroundings. It is quite another to treat Palestinians unjustly. It is absolutely unacceptable to use Border Police and private security firms against local residents simply because they are living in properties to which they are deemed not to have legal title. It is incumbent upon Israel as the occupying power to ensure that all residents are treated with respect and dignity.

At the same time, will the Resolution do anything for the 80,000 Jews who live on the other side of the separation barrier among well over a million Palestinians, Jews who are subject to attacks by terrorists? Does it foster good will between and among those Jews as well as among the large majority of Muslims with whom Jewish Israelis live in the larger region and among whom they will likely continue to live even if and when Palestine becomes a state? Or will the resolution help perpetuate a belief that the Palestinian state should and must be Judenrein and cleansed of all Jews?

Is there any gain for passing the Resolution in advancing peace in the region? Or is the purpose of the Resolution to assuage the guilt of idealists who have proven so impotent in the past and have become even more determined than ever to reaffirm that impotence? Those so-called idealists, those pretenders to the throne of advancing Palestinian rights, never face up to the repeated question of why Israel is cited as the main villain in repeated resolution after repeated resolution while heinous crimes all over the world are relatively ignored? Will those movers and shakers face the possibility that efforts on behalf of the Palestinians have done more to harm the development of democracy within that proud and estimable community than the cumulative wrongs imposed on Palestine by the settler movement?

North Korea with its mad leader will become an effective nuclear power next year. There were twenty resolutions put before the UN denouncing Israel in 2016. One, Resolution 2270, imposed fresh sanctions on the Democratic People’s Republic of Korea (North Korea) as the UN denounced in the most vigorous terms nuclear testing by North Korea. The UN has done nothing really and deeply effective to stop North Korea’s march, “in violation and flagrant disregard” of a succession of UN impotent measures, towards becoming an actual real nuclear power.

The Israeli right, joined on this issue by the centre and even the moderate left, are never given an answer for the query of why Israel is isolated for such focused attention and given such a persistent priority and such negative treatment in the UN. Have the idealists defending the just cause of a Palestinian state living side-by-side Israel ever asked themselves the question why such efforts have rarely worked? Demonstrating outrage is a poor substitute for a demonstrable lack of political acumen, especially when it is expressed in such a one-sided and distorted way. Is it not at least understandable why many Jewish Israelis and many other Jews around the world have come to believe that this form of criticism of Israeli politics is but a new form of anti-Semitism?

Why is the UN prone to demonstrate repeatedly that it is unable to wed lofty ideals with effective action? In the waning days of the Obama administration, why has the U.S. joined in this chorus of false moralizing? As the Oslo peace talks showed, the settlements are not the major barrier to peace between Israel and a nascent Palestine. The disposition of Jerusalem, particularly of the Old City, is, and its problematic status has little to do with the issue of settlements. Yet the resolution conflates the two issues and does so on such a weak historical foundation that it would be laughable if it were not so troublesome.

The Resolution went out of its way to explicitly condemn Israeli settlements in East Jerusalem and failed to distinguish between the Jewish Quarter in the Old City from the West Bank or even the rest of Eastern Jerusalem. Instead, the Jewish Quarter of Jerusalem’s Old City and the Western Wall, the holiest place where Jews pray, are treated and referred to as occupied territory. The failure of distinction in the Resolution is a travesty.

Is that not the most provocative claim that one could throw at the Jewish orthodox community such that it undermines any possibility of sympathy for the other side emerging? This mindblindness undermines any sincere effort to decrease the momentum in Israel for refusing to accept the idea of a Palestinian state. The Jewish quarter of Jerusalem goes back much more than two millennia. Making it part of an Arab Palestine free of Jews is such a flagrant betrayal of history. Resolution 2334 is an important landmark in promoting Jewish ethnic cleansing.

The Resolution does designate every home in the Old City as well as every home on French Hill and in Gilo and the other neighbourhoods of West Jerusalem as violations of international law. The Resolution predetermines the basis for negotiations by designating those populations as living on “occupied Palestinian territory,” not just occupied territory. But today, fifty years later, the effort to continue to condemn those settlements already built and occupied as not only the major obstacle to peace, but also illegal and even further, that they were built on Palestinian territory, prejudges the results of negotiating a peace agreement and favours the Palestinian cause, however just that cause of creating a Palestinian state may be. This step is as foolhardy as the initiative to build many of the settlements originally.

For the unmistakable fact is that they have been built. Hundreds of thousands of Jews live in them. The vast majority of those Jews will only be removed if Israel is destroyed as a predominantly Jewish state. Further, Palestinians in their negotiations understand that. They have negotiated land swaps for those settlements becoming part of Israeli territory. What the Palestinians have not agreed to, what, as far as I can see after following the negotiations over decades, they will not agree to is recognizing not only East Jerusalem but the Old City as part of Israel. It is a perfectly understandable position. But it is also a position which remains as the one obstacle to a final peace agreement, not all the settlements.

Right wing Israelis and Jews worldwide are fond of going back to the Balfour Declaration of 1917 as promising that the mandatory area of Palestine would be a “homeland” for Jews, though not a Jewish state. They leave out the latter. The Balfour Declaration was endorsed by the League of Nations in 1922. But that document did not designate Israel and the West Bank as a “Jewish national home” in the sense of a state, but as a home where Jewish nationals could live. In fact, the League of Nations document almost one hundred years ago created a recognized single legal territory of Mandatory Palestine out of the sanjak of Nablus, the sanjak of Acre, a segment of southern Syria and the southern portion of the Beirut Vilayet as well as Jerusalem. Until 1917, and until the recognition given to the British 1917 document by the international community, there was no Palestine. Following the Treaty of Lausanne, Palestine came into existence on 29 September 1923 and with it Palestine Arabs and Palestine Jews.

At the same time, Jordan also came into existence as a recognized international state in which the promise of its use for settlement of Jews was explicitly removed. The principle of all of Mandatory Palestine as a homeland for Jews had a very short lifespan and that authorization was now restricted to Mandatory Palestine West of the Jordan River. The territory east of the Jordan was ruled out for resettling Jews. Originally also a mandatory territory, it became recognized as an independent state in 1946.

Authorizing Mandatory Palestine as a homeland for the Jewish people explicitly did not entail Jewish sovereignty over the territory as either an aspirational goal and certainly not as a reality. The relevant and much repeated Balfour Declaration affirmed in the 1919 Peace Agreement provided: “Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.” Usually omitted by the heirs of Jabotinsky and the right in Israel is that the British and French together rejected drafts that recognized, “the historical connection of the Jewish people with Palestine and the claim which this gives them to reconstitute it their national home.” The Jews were not given the right to create a sovereign Jewish state. Nor was the Jewish historical connection with the land ever recognized. All that was recognized is that Jews had grounds and a claim for reconstituting a national home.

With the creation of the United Nations, the Mandate of Palestine from the Jordan River to the Mediterranean Sea came under the auspices of the UN as a trusteeship of Great Britain, a trusteeship Britain “threatened” to abandon. The abandonment was endorsed by the United Nations Special Committee on Palestine, UNSCOP, in 1947 and affirmed in a UN General Assembly Resolution. That committee recommended dividing the Mandate into three entities, one as a national home for the Jewish people, one as an independent Arab state, and the city of Jerusalem was to become an international city administered by the United Nations. In fact, those three territories became three very different territories with the cease fire lines of the 1949 armistice agreement serving as a de facto border between what was declared as the independent state of Israel, Jordan which occupied and annexed what became known as the West Bank and East Jerusalem, and Gaza occupied by Egypt, not because all of them were able to “stand alone,” as the previous colonial language had provided, but because new rulers were in place which were the de facto governing powers.

The territory governed by Israel after the 1949 Armistice Agreement became a sovereign state and was no longer occupied territory. The West Bank and Jerusalem continued to be occupied territory, occupied by Jordan, while Gaza was occupied by Egypt. When Egypt and Jordan were defeated by Israel in 1967, those territories were then occupied by Israel. What must be recognized is that throughout the one hundred years since 1917 and the defeat of the Ottoman Empire, there has always been a disjunct between legal instruments recognizing administrative authority,
geographical references and sovereignty claims. Only the territory occupied by Israel in 1949 has been recognized as a sovereign territory, one governed by the State of Israel. The governing and administration of the other territory in former Mandatory Palestine has changed de facto over the years, but without de jure sanction since 1948. De jure sanctions are influenced by usage, but treaties or accession agreements are needed to determine the final internationally recognized areas under sovereign control. Unilateral annexation, whether of the Golan or an enlarged Jerusalem, does not change that, though sufferance of the governance of a territory over years does tend to shift towards legal legitimation as decade after decade passes.

The League of Nations document did authorize Jewish settlements in all of the Mandatory territory. The partition agreement changed that, but the outcome of the 1948 war, rather than UN Resolutions, effectively brought into being three territories, an Israeli State occupying a much larger territory than the one recommended in the partition resolution. West Bank and Jerusalem had been annexed by Jordan. Gaza was administered by Egypt. The West Bank and Gaza had been made Judenrein in that war. At the same time, 720,000 residents of Palestine, including 35,000 Jews, fled or were forced to flee and become so-called refugees, though most were internally displaced persons who continued to live in what used to be called Mandatory Palestine. A minority lived outside the borders of these three new entities.

With the help of Alex Zisman

Resolution 2334 and a Two-State Solution: Part A

Resolution 2334 and a Two-State Solution: Part A

by

Howard Adelman

Thus far, I have published two blogs in this series, one on the Fourth Geneva Convention and the Wall and a second on Demography, Settlements and Jerusalem. The point was to document both the legal issues and the facts on the ground. This blog, in its several parts, has more to do with policy and addresses the question of the two-State solution; namely, to what degree and why does Resolution 2334 depict the settlements as a threat to that solution. Usually, I indicate future installments of a series at the end of a blog. But this time I will do it up-front to assure readers that I intend to go into some matters more thoroughly in subsequent blogs. They will be, in order:
The American Approach to the Resolution;
The Israeli Approach to the Resolution;
The Consequences of the Resolution.

In defence of America’s abstention on UNSC Resolution 2334, John Kerry said that the Resolution reiterated the “vision of a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders.” He argued that the Resolution was a last ditch effort to “stabilize the situation and to reverse negative trends on the ground, which are steadily eroding the two-State solution and entrenching a one-State reality.” Further, he insisted that the resolution would help “create the conditions for successful final status negotiations and for advancing the two-State solution through those negotiations and on the ground.” All of this was said against a background in which John Kerry has clearly stated that, although he supports Israel and although the U.S. remains totally committed to Israeli security and legitimacy, the building of settlements was identified by Kerry as the main threat to the two-State solution. Further, and perhaps more importantly, he had concluded that Netanyahu was only paying lip service to the two-State solution, and was supporting settlement policies that threatened that solution.

Key elements in the current right-wing Israeli cabinet, the most right-wing in Israeli history, are absolutely opposed to the creation of a Palestinian state living side-by-side in peace with Israel. Naftali Bennett, one of Netanyahu’s coalition partners, recently announced that, “the era of the two-state solution is over.” On the other side of the barrier, increasing numbers of Palestinians have come to the same conclusion, and did so when Bennett was merely promoting the idea and not yet declaring it a fait accompli.

Many past UN resolutions targeted settlements as a threat to a peace agreement and a two-State solution. If the United States belatedly came to this recognition, why did the Obama administration not support UNSC Resolution 2334? Why did the U.S. abstain? United Nations Security Council Resolution 242 adopted unanimously on 22 November 1967 established the principles for framing an Arab-Israeli peace agreement. It affirmed the “inadmissibility of the acquisition of territories by force” that I discussed in an earlier blog. Israeli interpreters argued the inadmissibility clause was irrelevant to Israel because the territory was acquired in a defensive war and, in any case, was not taken from a sovereign power. Most international legal experts dispute this interpretation.

According to the drafters of Resolution 242, however, the Resolution not only required direct negotiations between the disputing parties, but also required withdrawal from captured territories. But not ALL the territories. The term “all” was deliberately excluded from the draft against the opposition of the Arab states. The drafters, and those who supported Resolution 242 at the time expected that, in the negotiations, there would be some exchange of territory in a peace agreement. This may be one case in which diplomatic equivocation and the use of ambiguity – central to the art of diplomacy – may have caused more trouble in the long run compared to the short term benefit of gaining a consensus in support of Resolution 242.

Meanwhile, Israel began its program of settlements, initially for military defensive purposes, allowed under international humanitarian law, but also to make claims for territory, initially in some of the areas captured near Jerusalem. In great prescience, Jacob Talmon, the late great Israeli historian, in 1967 raged and warned about the threat expanding settlements would pose for a peace agreement, then with Jordan. Ten years after the end of the Six Day War and four years after the disastrous Yom Kippur War, Menachem Begin became Prime Minister on 21 June 1977. During his period as head of government, he made a peace agreement with Egypt and gave the Sinai in its entirety back. For that, he and Egyptian President Anwar el-Sādāt won the Nobel Peace Prize in 1978.

In the shadow and the glory of that agreement, Begin’s government passed the Jerusalem Law on 30 July 1980 which declared Jerusalem to be the united capital of Israel, but without specifying its boundaries and without formal annexation. Nevertheless, that was sufficient to stimulate an enormous international backlash. The UN Security Council passed Resolution 478 declaring Israel’s 1980 Jerusalem Law, which de facto but not de jure annexed East Jerusalem, as illegal. The vote was 14-0 with the U.S. abstaining. Further, UN legal experts contended that, even though the Resolution was passed under Chapter VI, it was still binding on all states based on a 1971 ruling of the International Court of Justice. Consequently, there are no longer any foreign embassies whatsoever in Jerusalem.

The period from 1980 to the Oslo Accords marked a new phase of settlement activity under the leadership of a party that claimed all of the West Bank as rightfully belonging to Israel. Begin’s government began an aggressive program of expansion of settlements that clearly lacked even the pretence of any defensive military function. But the greatest fiery storm was set off, not by the settlements, but by what happened on the Temple Mount or what the Arabs call al-Ḥaram al-Šarīf, or the “Noble Sanctuary.” On 8 October 1990, when Bibi Netanyahu was Deputy Minister for Foreign Affairs, Israeli Border Police killed 17 Palestinians and wounded many more in a so-called riot on that site. They were killed because, according to Netanyahu who treated truth with as much reverence as Donald Trump, the Palestinians were throwing stones down on worshipers at the Wall in a deliberate attempt to deflect attention away from Saddam Hussein’s invasion of Kuwait two months earlier on 2 August 1990.

It so happened that there were no worshipers at the Wall that day. They had been removed for their own safety. Instead, the Temple Mount Faithful, a group of Jewish Zealots promoting the reconstruction of the Temple on its original site, announced a plan to march on the Temple Mount in contravention of an explicit Israeli court order not to do so. To confront the Zealots, an extreme group of Palestinians gathered on the Temple Mount with rocks to confront the Jewish Zealots. In confusion, set off by an explosion of unknown origin among the gathered Palestinians, the Palestinians began throwing the rocks at the Border Police. The Border Police retaliated with live ammunition, initially killing one Palestinian.

That instigated a full-scale riot. With reinforcements, the Israeli Border Police launched an assault on the Temple Mount killing 17 and wounding many more. The uproar was not caused by the Temple Mount Faithful, even though their initial announcement had been an instigating factor. Nor had it been caused by Palestinian Zealots resisting them or raining rocks down on innocent worshipers at the Western Wall as Bibi then contended, though the Palestinians had indeed prepared themselves with rocks to protect the grounds of the Noble Sanctuary. The prime cause was the use of excessive military force in a volatile situation. (For a very recent recounting of the incident, read Barry Lantos’ blog published on 3 November 2016. He was one of the investigative reporters who had covered the story.)

James Baker, head of the State Department in the President George H.W. Bush administration, in 1990 banned Netanyahu from the State Department, not as rumoured because of disputes with American officials over policy or over the West Bank or the Temple Mount, but because of the same type of lies and distortions Netanyahu repeatedly made, especially in reference to American diplomatic efforts.

The situation changed with the election of Rabin and the conclusion of the Oslo Accord in 1993 and the 1995 extensions. In Oslo, settlements were recognized as matters for negotiation. Further, the territory of the West Bank was divided into three different areas, Area A under the administrative and security authority of the Palestinian Authority, Area B under the administrative authority of the Palestinian Authority and Area C under both the administrative and security authority of Israel. The situations of Gaza and East Jerusalem were left unchanged. The establishment and growth of settlements, as recognized in the Oslo Accords, did not indicate where the lines would be drawn between the Israeli and Palestinian states.

After a burst of expansion of settlements before Oslo and under the initial Netanyahu administration, by far the greatest expansion of settlements in the West Bank took place under the early years of Arik Sharon, who was Prime Minister from February 2001 to 2006 until he suffered a stroke. Resolution 2334 repeats resolution 1515 endorsing the 2003 Quartet Roadmap that required a freeze on settlement growth, including so-called “natural” growth, and dismemberment of all settlements constructed since 2001.

Why 2001? 22 settlements were established in 2001 and 19 in 2002 – Alt 468, Ancient Susiya Synagogue, Asa’el, Bat Ayin West, Elmatan, Gal Outpost, Gilad Farm, Gival Assaf, Givat Sal’it, Hakaron, Harro’eh, Kochav Ya’akov West, Migron, Mitzpe Lach, Mitzpe Yitzhar, Neve Danile North, Nofei Nehemia, Ramat Gilad, and T’koa D. In contrast, there were only two in 2003 (Kochav Ya’akov East and Mitzpe Eshtamoa), three in 2004 (Bnei Adam, Mishpatei Eretz and Ofra Zion Mizrah, and only one in 2005 – Omer Farm. The period of enormous expansion of numbers of settlements was over, but not the expansion of the size of Israeli settlements recognized as legal by Israel.

That period afterwards and before made the Oslo years seem an exception to the expansionist phases of settlements from 1980 to 1992 and then again after Rabin was assassinated. What changed from 12 or 13 years ago to suddenly make settlements the threat to a two-State solution for the United States at this time, but did not back then? Why not 2007 when Obama first came to power? Why not in 2014 following Bibi Netanyahu’s announcement that 1,260 new housing units would be built in East Jerusalem, 600 units to be constructed in Ramat Shlomo in north-eastern Jerusalem, a settlement founded in 1995 adjacent to Shuafat and Beit Hanina in the same year when the extensions to the Oslo Accords were agreed upon. Another 660 units were to be built in Har Homa established in 1997 in south-eastern Jerusalem near Beit Sahour with a view of nearby Bethlehem.

In 2015, Netanyahu responded angrily when the Jerusalem municipality froze the planned expansion of Har Homa by 1,500 homes. There was certainly a fight in 2014 over settlements. One Obama administration official called Netanyahu a “chickenshit,” echoing an insult directed at Netanyahu by an official in the Clinton administration. Why did the U.S. not officially declare settlements illegal then? Why did the U.S. at that time not depict settlements as an imminent and existential explicit threat to a two-State solution? Instead settlements were then called obstacles to peace and were sometimes dubbed illegitimate. But they had not been labeled illegal by the U.S.

Part of the difficulty in understanding the problem is that there are at least four two-State solutions. Settlements impact on each differently. But let me mention the various one-State solutions first. There is the vision held by a few right-wing Israeli extremists in Netanyahu’s cabinet who believe in incorporating all of the West Bank as Israeli sovereign territory. In one variation, many Palestinians who refused to pledge loyalty to Israel would be expelled. In another variation, Palestinians would be given permanent residency status, but not citizenship, but would be expelled if they proved to threaten Israeli security.

In a second version, there would be one sovereign state encompassing Israel, Area C and East Jerusalem. Areas A and B would have an independent internal self-governing authority as a satrap of Israel. In a third version, there would be a single state in all of the old mandate territory, including the Gaza Strip. Jews and Palestinians would have equal citizenship and equal rights in a single state. This is a vision that went back to idealists like Martin Buber and is still upheld today by current idealists. In a fourth version, Israel-Palestine would be a federated state with two provinces – Palestine and Israel with Jerusalem operated as a federal district. The federal authority would have responsibility for security, foreign relations, trade and monetary policy. Clearly, there could be many variations of all of these versions. Perhaps there are even one or two more versions, but the likelihood of anyone of them coming about is slim to none.

I could, of course, be wrong. After all, I was wrong about the extent that settlements would develop. I never believed that the settlement activities would take place to the extent that they did. But, in spite of the extent of the settlements, I still believe that a two-State solution is the only realistic option, though some of the versions of this option are as unrealistic as any of the one-State solutions. There is the vision of two states based on the 1967 cease- fire lines. Secondly, there is the vision of two states in which the settlements around Jerusalem are incorporated into West Jerusalem as the capital of an Israeli state but East Jerusalem, including the Old City, would become part of a Palestinian state. There is a version in which Israel assumes control of the Old City with religious rights guaranteed to Palestinians and, indeed, all Muslims. In a version John Kerry seems to favour, Jerusalem would remain united, but as a capital of both states. All of these versions, I believe, are unrealistic, but John Kerry’s is, I believe, the most unrealistic.

A more likely version would be that Area C would be transferred to Israeli jurisdiction with some deletions while an equivalent amount of Israeli territory would be transferred to the Palestinian state so that state would have approximately 22% of the Mandate territory, the amount under Arab control before the Six Day War. Though this option, given Oslo, is the one most likely, that likelihood is undercut by the argument over Jerusalem. In one variation, the Israelis in the settlements being transferred to the Palestinians would become dual citizens of both Palestine and Israel. In another scenario, the settlers would be offered an economic benefit in exchange for returning to Israel. In a quite different variation, everything would be settled except for the Old City; it would remain under Israeli jurisdiction until an agreement could be made about it. This seems the most likely outcome. The thickening of the existing settlements in the suburbs of Jerusalem and in Area C does nothing to threaten this version of the two-State solution.

The threat to the two-State solution now comes primarily from the issue of Jerusalem, not the settlements. The Palestinians see East Jerusalem, including the Old City, as the capital of their future state. Most Israelis support an undivided Jerusalem as the capital of Israel, though some of them would exclude East Jerusalem but not the Old City. The reality is that settlements have always threatened a two-State solution. They did in 1967 when they were created to assert claims on Jerusalem and to establish military defense positions in the West Bank – and then under a Labour government. Establishing new settlements reached a peak threat in the first years of this century. There is little reason to declare that the last few years, with the main focus on “thickening” the existing settlements, poses any greater threat than ever before. In fact, the pattern of settlements suggests that de facto borders are being made on the ground between an Israeli and a Palestinian state. That may not have been the scenario I defended for years, but it does take the reality into account that Israel will not be willing or able to resettle 400,000 of its citizens. It barely managed to resettle 9,000 from Gaza.

With the help of Alex Zisman

To be continued.

Demography, Settlements and Jerusalem

Demography, Settlements and Jerusalem

by

Howard Adelman

Thus far, I have attended only to the framing of United Nations Security Council Resolution 2334. I now want to turn to the nub. There are four issues, not just one. I deal with three in this blog: demography and Jerusalem as well as settlements. In the next blog, I will take up the impact of the resolution on the two-state solution and the issue of borders.

The resolution condemned “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem.” Secondly, the resolution reaffirmed “that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.” That is a mouthful. Demography and Jerusalem bracket the core thesis of settlements. The resolution demanded “that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem.” UNSC Res. 2334 required the freezing “by Israel of all settlement activity, including “natural growth,” and the dismantlement of all settlement outposts erected since March 2001.

As I stated, in my next blog on Resolution 2334, I will discuss whether and to what extent the settlements “dangerously imperil the viability of the two-State solution, particularly in light of the claim of that resolution that the two-state solution must be “based on the 1967 lines.” It is certainly a key repeated theme of the resolution which insisted on non-recognition of “any changes to the 4 June 1967 lines other than those agreed by the parties through negotiations.” But then why is there no reference made to the distinctions between Areas A, B and C that was arrived at through negotiations? As I stated above, a follow-up blog will focus on border issues and the impact of the resolution on the two-state solution.

Excluding Nahal settlements established by the IDF for security purposes and outposts created by Israeli settler groups that are not legally recognized by Israel, I focus only on so-called “legal” settlements, that is, settlements authorized by the Israeli government, though they may be considered illegal by most of the international community and, in a few cases (Ofra), even illegal under Israeli law because much of the settlement was built on privately held land. Further, it is important to distinguish between and among settlements in different areas.

I already wrote about the Resolution’s reference to the wall. Many settlements are on the eastern side of the wall. Excluding the 28 Jewish settlements in the Jordan Valley (population 15,000), there are less than 50,000 Israelis living in 10 different settlements that can be considered exurbs of Jerusalem as follows:

Kiryat Arba just outside of Hebron where the patriarchs and matriarchs
of Judaism are said to be buried and where Jews continuously lived
until the Hebron massacre of 1929. 7,100
Since the settlement was re-established in 1970, 16 settlers have
been killed in 8 different incidents, just over half the number
killed by Baruch Goldstein (29) in a single massacre.
Kokhav Ya’akov about 12 miles equidistant from both the Qalandiya
Checkpoint and Ramallah. 7,300
Beit El north of Jerusalem and just east of al-Bireh & Ramallah 6,500
Site of Jacob’s dream of angels going up and down a ladder
Geva Binyamin 5 km north-east of Jerusalem 5,200
Eli, Mateh Binyamin, north of Jerusalem and Ramallah 4,100
Ofra, northern West Bank between Jerusalem and Nablus 3,500
20 km. north of the old Green Line
Most built on expropriated privately owned land, hence illegal
under Israeli law; adjacent to Silwad and Deir Dibwan
Talmon, 18 km. north of Modin 3,700
Shilo, Mateh Binyamin 45 km. north of Jerusalem 3,400
Tekoa, Gush Etzion, 15 km. south of Jerusalem & 20 km. northeast of
Hebron; 5 killed in 3 separate incidents 3,500
Mitzpe Yeriho, 20 km. east of Jerusalem; 10 km. east of Ma’ale Adumim 2,300

Total 46,600

There are also over 90 settlements west of the wall or separation barrier with a total population of almost 400,000. In addition, there are almost 180,000 living in different very familiar Jewish neighbourhoods of Jerusalem on land captured in the Six Day War in 1967 – East Talpiot, French Hill, Gilo, Giv’at Hamivtar, Har Homa, Ma’alot Dafna, Neve Yaakov, Pisgat Ze’ev, Ramat Eshkol, Ramat Shlomo, Ramot and Sanhedria Murhevet. Further, there are about 3,000 residents and 1,500 Yeshiva students living in the Old City, overwhelmingly in the Old Jewish Quarter with a very few scattered Jewish families in East Jerusalem. This can be compared to a non-Jewish population of 30,000 in the Old City and just under 500,000 non-Jews in East Jerusalem.

As I indicated in my last two blogs, ALL of these areas are considered illegal under the Fourth Geneva Convention, including the re-establishment of the Jewish Quarter in the Old City that was totally ethnically cleansed of Jews when the Jordanian government captured the Old City in 1948 and expelled all its Jewish inhabitants. Jews had continuously resided in the city for centuries. Under that Convention, it does not matter whether the case is one of a returned population or of voluntary movements as opposed to forced relocation of Israelis, these areas are all considered illegal since the population moved there after Israel occupied and annexed some of these areas after the Six Day War. Right wing defenders of Israeli actions insist they are legal under international law because a) they were captured in a defensive war; b) the territory did not previously legitimately belong to a recognized state. But most interpreters of international law simply make occupancy of a territory held by a belligerent following the cessation of a conflict as the relevant marker.

Currently, about 1 out of every 10 Jewish Israelis live in areas considered illegal under international law. International law may be an ass in not making any of these distinctions. It also may be totally ineffective. One need only recall the effort to evacuate 9,000 Jews from Gaza and the political storm that caused within Israel in the forced removal of a population living in an area lacking all the deep religious attachments of the sites under consideration. Can you imagine the effort it would take to move over 600,000? That would certainly tear the country apart. Anyone who opposed settlements all these years has to at least recognize this.

Well, what about the 65,000 living east of the separation barrier in the Jordan Valley and in the 10 neighbourhoods listed above? Many of the latter areas have deep religious significance for Orthodox Jews. Why do they have to be evacuated? Why could the population there not continue to live in a Palestinian state? After all, almost 1.5 million Arabs live within the Jewish state. This was precisely the question asked courageously by a Palestinian law student who was head of the youth wing of Fatah at a conference at al-Qds University that I attended. But then, what about all the settlements west of the separation barrier? If they stayed in Israeli hands, then Israel would be acquiring territory by force even if subsequently ratified by negotiations. After all, in the Oslo talks, the Palestinians had agreed to a land swap of an almost equal amount of territory in exchange for the territory on which these settlements were located.

Recall that the resolution condemned “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem.” It did not call for a swap. It did not call for returning the settlements east of the separation barrier to a nascent Palestinian state, but leaving the settlers in place. The resolution condemned the whole effort to settle Jews on land cleansed of Jews between 1948 and 1967 whether or not they lived on that land prior to 1967. Why 1967? Why not include the territory captured by the new state of Israel in the 1948 war?

The answer is simple. If you go back to 1948 for the Jews, you have to go back to 1948 for the Arabs and the territory was not sovereign Arab land then. In particular, in the 1947 division of territory recommended by UNSCOP, Jerusalem was to remain an international city under UN auspices. But the two principles pushing the members of the Security Council last week were: 1) no acquisition of territory by force and then by movements of people into a territory; and 2) the principle of self-determination, namely that a territory should become the sovereign land of the national group constituting the largest majority in a territory. But then in the areas of settlement west of the separation barrier excluding Jerusalem proper, there are about 400,000 Jews and only 100,000 Palestinians. Does not a land swap already agreed to make sense and be worthy of endorsement by the international community? The supporters of the resolution were not being puritans about the issue. They did not condemn the occupation and seizure of different parts of Jerusalem in 1948.

The real answer is that using 1967 rather than 1948 is already a compromise, but one which allows control of both the Old City as well as Eastern Jerusalem to go to a Palestinian state. And though the two sides eventually agreed on water sharing and on refugees, they could not agree on Jerusalem. Hence, John Kerry yesterday rehashing an old condominium proposal on Jerusalem that had been consistently rejected by both sides.

Further, there had been two separate thrusts to the settler movement. One was the establishment of secure borders for the Jewish state. Second there had been the claims made by the Israeli right for sovereignty over the whole of the Mandate territory. The current right wing government in Israel includes heirs to that belief. They repeat the mantra and make most members of the international community believe that this is the ultimate goal of the settlements and not a two-state solution.

In the Oslo Accords, the territory of the West Bank had been divided into three zones. In zone A, the Palestinians had exclusive administrative and security responsibility. In Zone B, the Palestinians exercised administrative responsibility but security was a matter of joint responsibility. In area C, where most of the populated settlements are located, Israel retained both administrative and security control. The jurisdiction of the Israeli municipal regional councils cover almost two-thirds of Area C. Palestinians are forbidden according to their agreement to engage in construction and development in area C. Therefore, some could with some legitimacy claim that the settlements could now be said to have taken place in this area by agreement.

The resolution did not condemn settlement activity only in areas outside those in which Israel had been given the right to control and settle by previous agreements. Rather, 1967 and the old green armistice line became the dividing line. Why? Because by allowing the Fourth Geneva Convention to trump agreements already entered into by the parties, the status of the settlements west of the separation barrier were left in question. So, certainly, was the status of East Jerusalem and especially the Old City.

There are other issues. Some parts of a few settlements, specifically Ofra, were built on land expropriated from private Arab citizens, contrary to the legalization of those settlements by Israel. There were issues of division over water supplies, the provision of access roads and the provision of equality of water and sanitary sewers available to Palestinian towns in comparison to the Israeli settlements. Often, this was not because of intent but because of the difficulty of getting the two sources of authority to agree, especially when one authority disputed the legitimacy of the other. As a result, Israeli settlements enjoy advanced infrastructure; the nearby Palestinian towns do not. Further, Jewish settlers in the West Bank remain and retain full Israeli citizenship while Palestinians in Area C live under martial law.

I have concluded that the resolution is not really about the settlements, but about the status of East Jerusalem and the Old City and about using the humanitarian laws of war as leverage on behalf of the Palestinians who are in the much weaker position. Unable to defeat the Israelis militarily with or without the help of the Arab states, the Palestinians have enlisted the international community using international humanitarian law, diplomacy and economic pressure to confront the Israeli settlement policy.

There is, of course, for many Israeli Jews, and now perhaps most, the issue of the right to settle and live in the West Bank. Eugene Rostow wrote resolution 242 which ended the 1967 war. He has always claimed that it gave Jews the right to settle anywhere in the old Mandate territory since the resolution did not obligate Israel to return ALL occupied land, but only occupied land in anticipation that there would be a future further division. Further, resolutions calling for withdrawal of Israeli forces from ‘all’ the territories were defeated, not only in the Security Council but in the General Assembly as well. The 1993 Oslo Accord and the 1995 Israel-Palestinian Authority Interim Status Agreement specify that the issue of settlements was to be negotiated and neither accord prohibited Jewish settlements in the West Bank. However, the international community has come to the conclusion that in the over two decades since, it is Israel that has been the obstacle to concluding a final two-state solution. It is Israel that has been using the interim period to predetermine the results of the permanent status negotiations.

The mantra at the time and continuously preserved, but with a seriously diminished status, has been the refrain, “secure and defensible borders” when Israeli settlements and the wall were intended to put facts on the ground that would help predetermine the outcome instead of waiting for “secure and recognized borders” to be determined in negotiations. The number of applications for new homes in the West Bank continues to grow with almost 4,500 applications in 2015. The equivocation of diplomatic linguistic compromises allowed others to interpret the requirements of Resolution 232 in very different ways, and in a way that seems to have displaced its previous emphasis on security. Israelis have always contended that the old Green Line, the armistice line determined by the ceasefire agreement in 1948, was NOT a border and should not be used as a reference for applying international humanitarian law. Israeli courts have upheld that opinion, but the international court in The Hague did not in its advisory and non-binding opinion.

The situation had now been radically changed by the resolution at the same time as Donald Trump is coming into office and the Israeli right wing government is reacting to the passage of the resolution with very aggressive diplomatic and economic moves putting, as I will argue in my next blog, the prospect of a two-state solution in never-never land. The debate may be conducted over the rhetorical issue of whether Israel is an occupying power when the territory occupied did not legitimately belong to another state and, therefore, was not foreign territory, but the debate will be won, not in the diplomatic halls or through international and domestic courts of law, however useful they have been, but in power games which Netanyahu and the new Trump administration seem ready and eager to play.

With the help of Alex Zisman