Circumcision, Zionism and a Global Legal Order

Circumcision, Zionism and a Global Legal Order

by

Howard Adelman

We are into anniversaries – the 50th year since the Argentinian Marxist revolutionary, Che Guevara, was captured in Bolivia and the signing of The Outer Space Treaty bringing modern law of the open seas into space law. This year is the 100th anniversary of the Balfour declaration, but also the Bolshevik Revolution and the defeat of German troops by the British in the Battle of Broodseinde signally the eventual defeat of Germany. It is the 150th anniversary since Charles Darwin published his theory of natural selection in On the Origin of the Species, and since Canada was created as a country. Finally, this is the 500th anniversary of Martin Luther nailing or gluing his 95 theses on a church door signalling the beginning of the Protestant Reformation.

But what did we study in our Torah study group last week – God’s covenant of the promised land with Abraham and the circumcision of Abraham and his entourage as a sign of that covenant. (Genesis 17: 1-14, the ending of the parsha, Lech-Lecha – see below) This week – Vayeira, Genesis 18-22 – begins with the controversy over who were the three individuals who appeared at the opening of Abraham’s tent and asked about the well-being of his wife, Sarah.

Strangely, all of the above events are connected. Let me begin with the most absurd claim, that the ritual of Jewish circumcision had any relationship to the above momentous historical events. In the Torah, circumcision is not recorded as an act of health to reduce the chances of venereal diseases and of AIDS and, in modern parlance, to ensure the survival of the fittest. Although Talmudists depict the act as removing a defect and the ritual an act of human intervention to advance the cause of perfection, circumcision is much more significant as a sign.

From the ancient Hellenistic-Roman world, when circumcision was regarded as a barbarous act, to the modern world when circumcision is seen to conflict with a reverence for “the natural” and inflicting pain on a child regarded as an abuse of rights, circumcision was connected with misanthropy. In response, circumcision has been defended by Jews as an improvement over a natural defect that, without correction, led to disease and sometimes even death. The link to a deficiency is reinforced when Moses referred to his stutter as “having uncircumcised lips.”

However, Ezekiel viewed circumcision, not as a minor flaw to correct an imperfection, but as a major transformation. “I will give you a new heart and put a new spirit into you: I will remove the heart of stone from your body and give you a heart of flesh.” (36:26) He was not talking about cleaning out the coronary arteries, performing a valve replacement or even using surgery to correct a thickening of the walls of the heart in hypertrophic cardiomyopathy, but a transplant operation wherein one obtains a new heart. Circumcision is a sign of a covenant between God and his people that will give them a new spirit. Circumcision is not, as it was for Philo, the excision of an unwanted and even evil presence, literally a catharsis, an excision of desire and vanity, but a process of being reborn with a new name and a new mission. Possessing a foreskin is not a mark of Cain; it is not a defilement. However, its removal is an opportunity.

Christians took the revolutionary transformational rather than reform version of circumcision a step further. One did not even have to imprint the revolution in one’s flesh, for faith in Jesus alone would bring about the transformation. One merely needed to surrender oneself to Christ. As Paul said, the “true” Israelites are “not children of the flesh…but the children of the promise.” What does such a debate have to do with the Cuban revolution and with Outer Space as a realm for the whole human race and not just for the powerful? What does it have to do with the Bolshevik Revolution, the British defeat of Germany in WWI and the instantiation of Zionism into international law with the Balfour declaration? More significantly, what does it have to do with Darwin’s theory of natural selection and with Martin Luther?

The Darwinian connection, ironically, is the easiest to answer, though only in a simplified form; natural selection is the scientific inversion of the theological doctrine of divine election. Circumcision certainly has a great deal to do with election and promise. For God promises Abraham, of which circumcision is a sign, two things – that he will be the forefather of many nations and that his direct descendants, the Israelites, will be a nation that will possess the land of Canaan. Christian Zionists, who preceded Jewish Zionists, married the two tracks of the Abraham covenant by viewing their own nation in the Enlightenment world as one of many nations chosen to fulfill the covenant, but that the Jews had a unique role for they had to be restored to their land for the covenant for all nations to be fulfilled. For some Christians, this also meant that all Jews had to be converted to a belief in Christ in order to bring about the Second Coming. For other Christians, these millenarian beliefs were independent and not linked to restorationism.

When I was entering my teens, there was a storefront just north of Bloor Street on Markham Street in the City of Toronto that offered an outreach to Jews. I recall distinctly going into their small office and receiving a nickel (5 cents) if I promised to read the pamphlet they handed me. Much later in my life, I would host a television program for twelve years on a Christian evangelical station which, contrary to widespread belief in the Jewish community, did not expect or push Jewish conversion to Christianity, or even expect that mass Jewish conversion to happen as a precursor to the Second Coming, but instead believed in restorationism, in a resurrected Israel as the precursor to a resurrected Jesus. Further, the term Israel was also detached from its specific association with the Jewish people and linked to a self-definition of one’s own nation as one also descended spiritually from Abraham.

Between these two periods, in 1980 I undertook an investigation of the source of the promise of the Progressive Conservative Party in 1979 to move the Canadian embassy in Israel to Jerusalem, a promise that turned into a fiasco. My link began with a meeting in early spring of 1979 convened by the Canadian Jewish lobby group to solicit the advice of Irving Abella, Harry Crowe and myself, about whether the Canadian organization advancing the cause of Israel in Canada should act on Prime Minster Begin’s request that Canadian Jews lobby the Canadian government to make such a move. The three of us thought it was a bad idea, very unlikely to happen and likely would result in a terrible backlash.

In the 1979 Canadian election, the Tories adopted such a program and the Jewish lobby was riven with suspicion and divisions over whether the professionals in the Jewish organization had betrayed the board of directors by advancing such an effort even though the board had deliberately not adopted such a program. I knew the executive had not been responsible. But then why did the Tories adopt the platform? When I was in Israel that winter, I heard a bizarre explanation. Before the election, Joe Clark and his wife, Maureen McTeer, in the company of friends, a Jewish couple without a close connection to the organized Jewish community or Zionism, had visited Israel and Jordan. They were feted in Israel. While in Jordan, the king had made them wait for two hours before granting them an audience. Maureen was particularly stirred up by this insult that so contrasted with the way they had been treated in Israel; she pushed Joe to adopt the policy of Canada moving its embassy to Jerusalem.

I thought the Israeli explanation was far-fetched at the very least and ill-fitted my knowledge of the extraordinary norms of hospitality of Arabs in general and of the royal household in Jordan more particularly. In any case, how could such an intemperate fit, itself incredible, result in the Tories adopting the decision? When I returned, I determined to research the issue and publish my findings – which I did. The results of the scholarship had virtually no impact on the widespread belief in the Jewish community that the Tories had been influenced by some of the Jewish community’s professional staff, in spite of an absence of any authorization to lobby for such a move, and by the goal of winning ridings in which Jews were a significant presence.

The truth was both more mundane and far more fascinating. A 5-person Tory policy committee dominated by Christian Zionists and led by Lowell Murray, a policy advisor to Joe Clark, (Murray was named a senator after Joe Clark took power on 4 June 1979) had met prior to the election campaign and adopted as part of the Tory program the promise to move the Canadian embassy to Jerusalem. Thus, the Canadian Conservative policy in 1979 had a kinship with the Balfour declaration and the efforts of David Lloyd George to implement what he had learned in Sunday school.

This interpretation of the significance of Britain’s imminent defeat of Germany, creating political space for the realization of restorationism, was deeply entrenched in British history, not simply in the Christian Zionist writings of the Earl of Shaftesbury, but in the theology of John Calvin versus that of Martin Luther. Both Calvin and Luther were “literalists” opposed to the manifold treatment of the biblical texts via metaphor, allegory (as in preterism, the belief that prophecies were merely allegories for actual historical events that had already taken place) and analogy. Both believed in the necessity of a Jewish mass conversion preceding the Second Coming. However, Marin Luther became enraged by Jewish resistance and became openly and strongly anti-Semitic. Calvin never abandoned his belief in Jewish restoration.

In America, Calvinism became associated with an obsession with God’s chosen people, a national belief in American exceptionalism and the singular mission of the American nation as well as the Protestant ethic and a reverence for individualism. It was also rooted in hermeneutics. John Winthrop in his well-known “City upon a hill” speech in 1630 as the Puritan Governor of Massachusetts described the Puritans in America as persecuted refugees who had inherited a special covenant with God and a special mission in history. This Christian Zionism was also put forth by John Cotton and his disciple, Increase Mather, who became president of Harvard.

When did the Jewish return to Palestine, restorationism, get divorced from the belief in mass Jewish conversion as a prerequisite for the Second Coming, with millenarian hopes? I believe it came about by the creation of what my colleague, Sanford Levinson, depicted as the Constitutional Faith that underpins the American view of the world and their place in it. For unlike Winthrop, who resisted the expansion of civil and political rights and refused to codify the laws governing the colony, the Constitutional Faith emerged as a belief in a civic religion rooted in the rule of law that can be established without any requisite preconditions, least among them, mass conversion of the Jews. It was this civic religion that painted King George III as the anti-Christ and provided the theological foundation for the Revolutionary War even though Cromwell a century earlier had believed in restorationism and had allowed the Jews to once again reside in Britain. Bringing freedom and democracy to the world had been adopted as the American vision.

However, Christian Zionism, globalization and the rights of free passage across the seas and through space had even earlier roots in Hugo Grotius’ On the Law of War and PeaceDe Jure Belli ac Pacis Libri Tres as long as one does not rely on Louise Loomis’ 1949 translation which leaves out most of the Jewish references. Grotius was a seventeenth century Dutch Arminian. He read Hebrew and Jewish exegetes rather than relying on the Latin text of the Bible. He was a follower of the Dutch Reformed theologian, Jacobus Arminus, who grew up immersed in Calvinist theology but, along with his Remonstrant colleagues, emphasized election and the role of grace in freeing men as well as the freedom of the individual to receive or deny that grace. They believed in biblical scriptural interpretation as the mode of determining who can be saved. Grotius as a Remonstrant opposed the Calvinism of the Gomarists.

Grotius was a nationalist who opposed Spanish domination, but a nationalist who believed that nations could live in peace and prosperity if they all abided by a universal law binding all humanity. Hence, the Just Theory of War. He, along with Thomas Goodwin and John Wycliffe, viewed the Jewish restoration to their covenantal land as a sine qua non for the full flowering of international law.

Grotius, along with John Owen and Joseph Mede, Oliver Cromwell and John Milton, were restorationists rather than revolutionaries, and realists rather than millenarists. America, as its national belief system evolved, had a special mission. Under Abraham Lincoln, Americans fought a war for the universal rights of man rather that the particularist rights of slave holders. When Abraham Lincoln met the Canadian, Henry Wentworth Monk, in 1863, they discussed the unique role of each of their nations, one in gestation and the other engaged in a bitter fight between twins.

Lincoln had joked about his Jewish podiatrist who had been the source of his ability to stand without pain on his own two feet and joined with Monk in lauding a new moral order, with Monk stressing the prerequisite condition of restoring Jews to their own land in Palestine which, for Monk, was a precondition for Christ’s second advent. Lincoln, though he admired Monk, signed the Emancipation Proclamation and expressed sympathy for the ideal of restoring the Jews to Palestine, but was never allowed time to implement that dream. In light of the controversies this past week over John Kelly’s remarks on the secessionist, General Robert E. Lee, and the issue of compromise or no compromise with advocates of slavery, Monk took up both positions and impossibly urged compromise on secession, but only if the South agreed to free its slaves and abolish slavery.

Monk advocated a world government based in Jerusalem and globalization rooted in the age of railways and steamships, telegraphs and newspapers. Unlike Hugo Grotius, who died as a result of the injuries and ill heath resulting from his shipwreck, Monk was restored to health in spite of coming close to death in the wreck of his ship off the cost of Massachusetts. He survived for several decades living on his family farm in the Ottawa Valley and promoting not only restoration of the Jews to Palestine, but the creation of an international court to ensure world peace, a vision adopted by the Conservative leader, George Moffat, and eventually developed by the Dutch heirs of Hugo Grotius that led to the founding of the international court in The Hague.

Thus are great international innovations and nationalist visions a by-product of debates over circumcision.

 

With the help of Alex Zisman

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Reflections on the Trump Overseas Tour

Reflections on the Trump Overseas Tour

by

Howard Adelman

My overall impression of Donald Trump’s first excursion overseas as President is the low standard American commentators have set for their President. Further, Trump has surrendered American leadership in the world, although the focus has been on whether his visits to Saudi Arabia, Israel, the Vatican and the G7 were far less damaging than expected.  I examine the trip thus far one stop at a time.

Saudi Arabia

The glitz was familiar. Friendships were forged and solidified. The dancing at the ardha ceremony on the part of the Americans was awkward, and that may have been the metaphor for the whole visit. At the same time, a number of issues came into sharper focus.

  1. Donald’s supreme ignorance concerning terrorism

Though Trump declared that the war against terror was not a war of one civilization against another or one religion against another, but a war against evil, Iran alone was blamed as the heinous source of terrorism, as “the tip of the spear of global terrorism.” To some extent, in the Middle East, the country is a prime source. However, most radical Islamicist terrorism in Europe, in North America and even in the Middle East, is a product of Sunni, not Shiite, background. Wahhabism, rooted in Saudi Arabia, is both a source of proselytizing as well as repression, though both merge together in terrorism in only a small proportion of adherents to this fundamentalism. ISIS in its theology and jurisprudence is far closer to Saudi Arabia than to Iran.

  1. Donald proved he could be diplomatic

He learned to follow Barack Obama’s lead, a lead at which he once aimed withering criticism, and avoided the phrase “Islamic terrorism.” He also deliberately ignored his anti-Islamic rhetoric in addressing Muslim leaders and conveniently forgot that he had once declared that Muslims hate us.

  1. Donald’s Respect for Democracy

Saudi Arabia is a dynasty and theocracy, permitting only male descendants of the founder, King Abdulaziz bin Abdulrahman al-Saud, to rule. Further, the Basic Law that dictates a dictatorship is rooted in sharia law; punishment can be severe for apostasy, sorcery and adultery. Trump could have offered indirect criticisms of the Saudi democratic deficit by applauding the honesty of its December 2016 elections and the innovation in allowing women to both vote and run as candidates, while urging moves towards further reform. If he had a deeper sense of diplomacy than he exhibited, this need not have emerged as a scolding, but as encouragement towards judicial independence and due process in opposition to rampant use of arbitrary arrest, particularly targeting human rights activists. However, Donald Trump’s “principled realism” unveiled an absence of any principles.

  1. Donald’s Ethos

Donald seems to have no sense of human rights – freedom of speech, freedom of assembly – and universal values; he expresses a positive disdain for them in the leaders he admires. He never once brought up the issue of human rights or confronted the repressive government of the Saudis. Instead, a member of his executive, Secretary Wilbur Ross, lauded his visit to Saudi Arabia by noting there were no protesters. “There was not a single hint of a protester anywhere there during the whole time we were there. Not one guy with a bad placard.” When Ross was offered an option to amend or qualify the statement, he abjured and, instead, doubled down on the plaudits he awarded Saudi Arabia without reference to the authoritarian reasons.

(See the U.S. Government Report: https://www.state.gov/documents/organization/253157.pdf)

This State Department Report explicitly notes that, “the [Saudi] government categorically forbids participation in political protests or unauthorized public assemblies.” Two protesters currently sit on death row sentenced to be beheaded.

  1. Donald’s Economic Interests

While the billions in trade deals (selling billions of dollars in arms to the Saudis whom he once charged with masterminding 9/11) were being celebrated, so was Saudi investments in America – $55 billion in defence, manufacturing and resource companies. Sales and investments also promised to bring more jobs to America. Less apparent was the fact that a close associate of Donald Trump, Hussain Sajwani, whose DAMAC Properties built the Trump International Golf Course Dubai, might be a big beneficiary.

  1. Saudi Middle East Peace Plan

Though the fifteen-year-old Saudi-led plan for peace between Israel and the Palestinians had previously led nowhere, there were hints that the Saudis had modified their approach by offering Israeli recognition as well as trade and investment cooperation if Israel took positive steps towards peace – freezing settlements, releasing prisoners. The increasing surreptitious cooperation between Israel and Saudi Arabia in trade, security and even diplomacy has, in fact, provided the possibility of making the current period propitious for an advance toward peace, however unlikely that seems to be.

Israel and the Palestinians

At this time, virtually no one with any in-depth knowledge of the Israeli-Palestinian conflict expects any breakthrough on the conflict. This is especially true of the Palestinians. Some still believe that Palestinian stubbornness on the “right of return” is a, if not the, major impediment. In fact, there is a deal in the backdrop which allows Israel to ensure its demographic Jewish majority while giving a nod to Palestinian honour. Since there are agreements in place for trading territory and various resolutions are thrown about in dealing with the 80,000 Jewish settlers outside Area C in the West Bank, the problem of Jerusalem as the undivided capital of Israel versus East Jerusalem serving as a capital of a Palestinian state still seems insurmountable. Could that problem be bracketed and a peace deal agreed upon on the other issues?

  1. Orthodox Jews were already suspicious when an unknown rabbi purportedly gave permission to Ivanka Trump and Jared Kushner landing in Saudi Arabia after the sun had set for the beginning of shabat.
  2. Donald Trump arrived in Israel against a background in Washington where he let the Russians know that intelligence had come from Israel.
  3. Former MK Moshe Feiglin, former leader of Zehut, criticized the $110 billion dollar-weapons-deal signed by Donald with Saudi Arabia.
  4. Netanyahu had to order his ministers to meet Trump at the airport; extreme right wing members recognized that they could not win Trump’s endorsement for a one-state solution based on Israeli victory.
  5. Netanyahu welcomed Trump to the “united capital of the Jewish state.”
  6. Donald Trump, whatever the huge range of his ignorance and inadequacies, does have a keen ear for identity politics and an ability to appeal to that side of Palestinian political concerns. In the past, efforts to strike a deal based on Palestinian self interest have failed. Would Donald be able appeal to their identity concerns?
  7. Recall that in February, Trump suggested that he, and the U.S., were no longer wedded to a two-state solution, even as the State Department reaffirmed that the U.S. still supported a two-state solution. Only a bare majority of Israelis continued to support a two-state solution and the support among Palestinians had dropped to 44%. However, it was not clear whether Trump had dumped the two-state solution or whether he was holding out that possibility if the Palestinians refused to bend and compromise. In his dealings with Israel, he was much clearer that he continued, for the present, to support a two-state solution, but it was also clear that it would not be based on a return to the Green Armistice Line, though Trump disdained the use of a label to characterize the solution without clarification of any content.
  8. When Donald Trump went to Bethlehem to meet Mahmud Abbas, he was greeted with a banner declaring Trump to be a man of peace: “the city of peace welcomes the man of peace.”
  9. Donald Trump did urge Palestinians to refrain from inciting violence.
  10. Trump broke a taboo and flew directly from Riyadh to Tel Aviv.
  11. Trump broke another taboo and, as U.S. President, visited the Western Wall in the Old City of Jerusalem, but without any Israeli politicians.
  12. He also reinforced Netanyahu’s propensity to demonize Iran as Trump insisted that Iran would never be allowed to make nuclear arms in the same week that a relative moderate, Hassan Rouhani, had just been re-elected as President of Iran.
  13. On the other hand, Trump did not announce moving the U.S. embassy to Jerusalem as he had promised.
  14. Further, Trump asked Netanyahu to “curb” settlement expansion, but did not ask for a freeze on building housing units in existing settlements.

The Vatican

  1. Instead of building bridges, as Pope Francis favoured, the Pope had criticized Trump’s promise to build a wall on the Mexican border during his campaign.
  2. Trump in return had called Francis “disgraceful.”
  3. Pope Francis, a critic of climate change sceptics, openly advocated adopting policies to deal with climate change. (Francis gave Trump a copy of his encyclical on preserving the environment – of course, there is little possibility that Trump will read it).
  4. Francis is also perhaps the best-known world figure who identifies with giving a helping hand to the poor, with compassion for refugees and, in a Ted talk, he had urged the powerful to put the needs of the people ahead of profits and products.
  5. Francis and Trump did not end up in fisticuffs, but the half-hour visit appeared to be a downer for the Donald and certainly for Sean Spicer, a Catholic, who never got to meet the Pope; the background of the Manchester terror attack did not help, though Trump is all sentiment when children are killed and riled up when terrorists do the killing.

Brussels

  1. The visit to the heartland of globalism was bound to depress the Donald, especially when the UK placed a curb on sharing intelligence with the U.S. since Washington leaks could have compromised the investigation of the Manchester terror attack.
  2. The release of the CPO discussed yesterday did not help.
  3. Donald lectured other members of NATO – totally ignoring the progress made towards the 2% of GDP to be dedicated to the military; he claimed other members owed “massive amounts”; “23 of the 28 member nations are still not paying what they should be paying and what they are supposed to be paying.”
  4. The combination of ignorance and bravado earned some open sniggers from a few European leaders but more frowns.
  5. Donald did not say that NATO was obsolete or dysfunctional, but neither did he pledge America’s unconditional fealty to NATO as required under Article 5 dealing with collective defence and the requirement that each member come to the defence of another.
  6. Donald was mostly left to wallow in his depressed isolation.

The G7

  1. At the G7, Trump lost the control he had exhibited in the Middle East and even Rome.
  2. It is difficult to say whether this was because of events back in Washington – John Brennan’s testimony that there definitely was Russian interference in the election and “possible” collusion because of Trump campaign officials contacts with the Russians, the breaking news of Trump possible obstruction of a criminal probe when he urged his intelligence chiefs to announce that there was no evidence of collusion, and the continuing parade of information that the Trump budget would be disastrous for Trump’s working class white supporters, or whether it was a result of events at the G7, or some combination thereof.
  3. First, while Trump refused to commit to the Paris Accord on the environment, he bragged that he won two environmental awards. And he did – for soil erosion control and preserving a bird sanctuary on one of his golf courses and for donating park land to New York State. Donald did not add that the first on the golf course complemented his self interest and the second was a way to get a charitable donation for land on which he was refused permission to build a golf course. Further, as one drives on the Taconic State Parkway through Westchester, you are greeted with large signs advertising the approach to Donald J. Trump State Park, but one finds the park is small (436 acres of woods and wetlands) relative to the signs, lacks any amenities – trails, parking, washrooms and picnic areas – and is uncared for (overgrown pathways and buildings deteriorated and covered with graffiti) since Trump never donated the money needed for its maintenance.
  4. President Xi of China told Trump that the U.S. withdrawal from the Paris Accord would be irresponsible.
  5. Was America’s pledge to commit $2 billion to the Green Climate Fund alive or would Trump issue an executive order this week cancelling the American commitment?
  6. In turn, European leaders lectured Trump on the fallout for the U.S. withdrawing from the Paris Accord – a wave of international anger that would lead to retribution, declining trade with the U.S. and destroy the last shred of trust in Washington; withdrawal would be treated by the world as “diplomatic malpractice” and characterized as betrayal; Trump had delayed an announcement before he arrived at the G7 and, perhaps, might allow U.S. state interests to take precedence over fulfilling his wild and destructive promises.
  7. Europeans tried to educate Trump on globalization and trade policy, but there was little indication that they had made a dint in his thinking. However, a private meeting with Justin Trudeau seemed to indicate that Trump would not scrap NAFTA, but would work to iron out wrinkles. On the other hand, the Europeans rejected out of hand his plea for bilateral trade deals instead of multilateral ones.
  8. The Donald was sabotaged in his effort to deliver French President Emmanuel Macron his traditional macho pull and handshake. Macron, instead of greeting Trump first, let him stand there, as he planted cheek kisses on Angela Merkel, greeted several others and then, having been briefed, subverted Trump’s effort and even pressed his hand harder and longer and would not let Trump pull away.
  9. When all other leaders are seen chatting informally with one another as they look over an iron fence at the spectacular view, Trump is nowhere in sight. Instead of walking there with the others, he went in a golf cart. When he arrived, he was surrounded by a phalanx of security men and only then joined the group and appeared to dominate the conversation.
  10. When Italian Prime Minister, Matteo Renzi, as host of the conference, addressed his fellow leaders, all leaders had on headphones and listened – except Donald Trump, sitting two seats away, Donald without headphones sat looking vacantly at the table. Perhaps no one can understand Italian as well as he can.
  11. Trump had been gone too long from living in what he owned and projected his possessive individualism. Was it the requirement of collegiality that made him slip from his vacuous demeanour at the Vatican to his glumness in Taormina, Sicily?
  12. There was a media dustup over whether he referred to Germany as evil or bad, and, if “bad,” as seems to be the case, did he mean the situation in which Germany finds itself, specifically with respect to refugees, or did he mean German political policies were bad?
  13. The meetings confirmed what Angela Merkel had come to believe: a) that the U.S. was no longer a reliable ally on which Germany could depend; b) American current policies on trade and climate change were disastrous.
  14. Trump had gone from dancing with swords in Riyadh to dodging darts at the G7.

The trip overseas marked the U.S. loss of leadership in the Western world and threatened America with negative repercussions because the Europeans had linked action on climate change with trade policy. Trump managed to keep his head above water in this overseas trip as he escaped the domestic closing in on the administration in its fourth month in office, but only by moving America towards disastrous policies that would be economically and politically detrimental to the U.S.

 

With the help of Alex Zisman

Yom Ha’atzmaut – Israel’s Independence Day

Yom Ha’atzmaut – Israel’s Independence Day

by

Howard Adelman

It is Memorial Day for Israel’s fallen. Tonight, the celebration of Israel’s independence begins. In yesterday’s blog, I referred to three sources of discussion of Israel – one by Emanuel Adler on the drift in Israel towards illiberalism, one on the Torah justification for an independent Jewish polity in Israel and a third, the sermon in my synagogue by the Israeli Consul in Toronto. Today I will concentrate on the most basic one, the justification in the Torah, the one considered irrelevant to most Canadian Jews and most others, except for evangelical Christians. The reference to archeology, history, political realities, what Israel has accomplished in Eretz Israel, the Land of Israel, need based on security and humanitarianism as justification for the State of Israel and its domination by Am Israel (the Jewish people) awaits another discussion.

Torah study began with Rashi’s well known question of why the Torah, if it is the constitution of the Jewish people, begins with cosmology. Why does the text not start with Genesis 17:1 when God initially forges a covenant with Abram, renames him Abraham and promises that he will be “a father of a multitude of nations,” not just the Israelites or the Jewish people, but many nations. (17:4) Further, in chapter 8, Abraham is promised that, “I will give the land you sojourn in to you and your offspring to come, all the land of Canaan, as an everlasting possession.”

The answer usually given for starting at Genesis 1 rather than Genesis 17 is that it was necessary to establish that the whole earth was made by and belonged to God and that God was totally free to distribute the land to whomever He chose. Nations are not owners of the land, only trustees. Further, if the Torah is to be followed, there is no prior right to a land by people long settled there before another group of people arrived.

But there is a prior question – why refer to the Bible as a source of authority for establishing a state? Rashi comments on the first Psalm, “But his delight is in the teaching (in Hebrew, the Torah) of the Lord, and, in his teaching, he studies day and night.” Psalm 1 reads:

Psalm 1
1 Happy is the man that hath not walked in the counsel of the wicked, nor stood in the way of sinners, nor sat in the seat of the scornful.
2 But his delight is in the law of the LORD; and in His law doth he meditate day and night.
3 And he shall be like a tree planted by streams of water, that bringeth forth its fruit in its season, and whose leaf doth not wither; and in whatsoever he doeth he shall prosper.
4 Not so the wicked; but they are like the chaff which the wind driveth away.
5 Therefore, the wicked shall not stand in the judgment, nor sinners in the congregation of the righteous.
6 For the LORD regardeth the way of the righteous; but the way of the wicked shall perish.

Verse 2 makes it clear that the function of studying Torah is critical to forging an ethical life. Verse 3 declares that an ethical life is sustained by planting oneself in a land where one can be fruitful and creative, implying possibly both a physical land and a land of learning. Whatever else it will be, the land will be one based on the rule of law that must serve the development of an ethical life.

The principle of Judaism, as distinct from the reference points of other nations, including other nations descended from Abraham, is that the Torah, which initially is a possession of (not necessarily written by) God, becomes a possession of Jews when they study Torah. Jews may infer that they have rights to live in the land from their studies, but not (thus far) that they are entitled to a state of their own. Further, there is no suggestion that other nations should not live in accordance with the rule of law for the sake of forging an ethical life and do so in the land of Israel. There is no guarantee that the land of Canaan should be the exclusive territory for Jews or that it is a land on which a Jewish state should be constituted and developed.

Genesis 12:1-7 says:

1 Now the LORD said unto Abram: ‘Get thee out of thy country, and from thy kindred, and from thy father’s house, unto the land that I will show thee. 2 And I will make of thee a great nation, and I will bless thee, and make thy name great; and be thou a blessing. 3 And I will bless them that bless thee, and him that curseth thee will I curse; and in thee shall all the families of the earth be blessed.’ 4 So Abram went, as the LORD had spoken unto him; and Lot went with him; and Abram was seventy and five years old when he departed out of Haran. 5 And Abram took Sarai his wife, and Lot his brother’s son, and all their substance that they had gathered, and the souls that they had gotten in Haran; and they went forth to go into the land of Canaan; and into the land of Canaan they came. 6 And Abram passed through the land unto the place of Shechem, unto the terebinth of Moreh. And the Canaanite was then in the land. 7 And the LORD appeared unto Abram, and said: ‘Unto thy seed will I give this land’; and he built there an altar unto the LORD, who appeared unto him.

In Genesis 13:14-17, the Bible says: “The Lord said to Abram, “Lift up now your eyes, and look from the place where you are northward, southward, eastward and westward: for all the land which you see, to you will I give it, and to your seed forever… Arise, walk through the land in the length of it and in the breadth of it; for I will give it to thee.” In Genesis 15:18, the land promised becomes very extensive. “18 In that day the LORD made a covenant with Abram, saying: ‘Unto thy seed have I given this land, from the river of Egypt unto the great river, the river Euphrates.”

The covenantal promise is repeated in Genesis 17:4-8:

My covenant is with thee, and thou shalt be the father of a multitude of nations. 5 Neither shall thy name any more be called Abram, but thy name shall be Abraham; for the father of a multitude of nations have I made thee. 6 And I will make thee exceedingly fruitful, and I will make nations of thee, and kings shall come out of thee. 7 And I will establish My covenant between Me and thee and thy seed after thee throughout their generations for an everlasting covenant, to be a God unto thee and to thy seed after thee. 8 And I will give unto thee, and to thy seed after thee, the land of thy sojournings, all the land of Canaan, for an everlasting possession; and I will be their God.

There are many promises in these quotes. First, the land is promised to all the nations that spring from the seed of Abraham and not just Jews. Second, the extent of the land promised varies, sometimes extending well into Iraq and through the Sinai desert right up to the Nile River. Since various tribes of Canaanites lived on both sides of the Jordan River, the promise can even be seen to include Jordan. This is confirmed in Deuteronomy 9:1-4:

“Hear, O Israel: You are to cross over the Jordan today, and go in to dispossess nations greater and mightier than yourself, cities great and fortified up to heaven, a people great and tall, the descendants of the Anakim, whom you know, and of whom you heard it said: ‘Who can stand before the descendants of Anak?’ Therefore, understand today that the LORD your God is He who goes over before you as a consuming fire. He will destroy them and bring them down before you; so you shall drive them out and destroy them quickly, as the LORD has said to you.” (Deuteronomy, 9:1-4)

On the other hand, with respect to specific parts of that territory, there is no promise in the Torah that the seed of Judah will reside in Jerusalem, for Jerusalem is not even mentioned once in the Torah though it is referred to approximately 600 times in the rest of the Bible.

There is a more disturbing part of the covenant stated above and repeated elsewhere in the Torah: the settlement of the nations that stem from the seed of Abraham will occupy the land by means of war and not simply ethnic cleansing, but genocide, for the existing nations of Canaan will be expunged from the land: the Hittites and the Girgashites and the Amorites and the Canaanites and the Perizzites and the Hivites and the Jebusites, seven nations greater and mightier than you, and when the LORD your God delivers them over to you, you shall conquer them and utterly destroy them. You shall make no covenant with them nor show mercy to them.” (Deuteronomy, 7:1-2)

Quite aside from the extent of the land promised and those to whom it is promised, in addition to the land of Canaan, quite aside from the means of acquisition, the land of Israel is promised, not just as a place to live, as a place to thrive, but as a place to study Torah and as a place to raise ethical individuals. Further, Israel is a land where the bones of the seeds of Israel that flow through Isaac and Jacob are to be buried. In Genesis 50:4-14, Joseph keeps the promise made that the bones of his father will be returned to Canaan to be buried next to his first wife, Leah, who bore him his eldest four sons. Even, Joseph, who lived most of his life in Egypt, has his bones disinterred and brought back to the land of Canaan to be buried in Shechem (Hebron). (Exodus 13:15)

In Genesis 50:24-26, just after Joseph had ensured that his father Jacob’s bones would be buried in Israel, Joseph told his brothers and made the sons of Israel swear that, like Jacob, “you shall carry my bones up from here.” This suggests that even more importantly than living an ethical life in accordance with the rule of law on a land promised by God is the promise of burial in that land even if one is raised and achieved success in the diaspora. The fight over burial rights is not exclusive to Israel. In Canada, we recently went through the Oka crisis, a land dispute instigated by Mohawk aboriginal peoples over an allegedly sacred burial site. Near my cottage on Georgian Bay in Ontario, there was a fight over Grave Island claimed by some Ojibway as a sacred burial ground. One reason we fight over land, in addition to the right to live on it, is to die and, more importantly, be buried in that soil.

Israel, therefore, is a land where the “ghosts of the past meet the ghosts of the future,” where one’s deep seated longings are satisfied, where “my father’s store was burned there and he is buried here.” In the “port on the shore of eternity” in “the Venice of God.” (Yehuda Amichai, “Jerusalem 1967”), there shall I be buried insists the ardent Zionist.

But none of the citations of sacred text justifies a Jewish state in Israel or Jerusalem as its capital or Israel as an exclusive state for the Jewish people. Israel is a place for Jews to live, a place for Jews to die and be buried. What else justifies the independence of Israel in a specific boundaried territory? Whatever it is, the state must be governed by the rule of law and dedicated to raising an ethical people if the Torah is to be a guide.

 

To be continued: Historical and Political Justifications

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