OBAMA WATCH: 12.2.16 - Obama's last licks / Is the Obama administration at a boiling point with Israel?

Obama's last licks - By Caroline B. Glick - http://jewishworldreview.com/1216/glick120216.php3

 

Israel's coalition crisis over the settlements regulation bill is not a normal power struggle between overweening politicians. It is not popularity contest between Finance Minister Moshe Kahlon and his Kulanu Party and Education Minister Naftali Bennett and his Bayit Yehudi Party.

 

It is also not about contenders for the helm challenging Prime Minister Benjamin Netanyahu's political primacy.

 

The settlement regulation bill proposes to extend the authority of the Military Government in Judea and Samaria to seize privately owned land. That authority is now limited to seizure for military purposes. The bill would allow the Military Government to seize land for the purpose of private construction as well.

 

The political fight over the bill is not merely a fight over the community of Amona, which will be destroyed by order of the High Court if the law isn't passed before December 25.

 

The fight over the law is a fight about the character of Israel.

 

Opponents of the bill argue that the law undermines the power of the Supreme Court and endangers Israel's international standing. Proponents of the bill argue that Israel needs to ensure the primacy of the Knesset. They further argue that there is no point in bowing to the will of an international community that is constitutionally incapable of ever standing with Israel.

 

In case you were wondering, proponents of the bill have it right.

 

The settlement regulation bill is not a radical bill. It is a liberal reform of a legal regime that harms the civil rights of both Palestinians and Israelis.

 

Palestinians today are denied their full property rights. Shortly after its establishment in 2004, the Palestinian Authority made selling land to Jews and Christians a capital offense. Dozens of Palestinians have been murdered over the past two decades in extrajudicial executions by both Palestinian security forces and by terrorist militias working hand in glove with Palestinian security forces for the "crime" of selling their land to Jews.

 

Earlier this year, the Israeli group Ad Kan documented employees of the European-financed far-left groups Ta'ayush and B'Tselem conspiring to hand over to Palestinian forces a Palestinian landowner who expressed interest in selling his land to Jews. During surreptitiously recorded exchanges, they acknowledged that the PA would likely execute him.

 

The settlement regulation bill empowers the military commander to seize privately owned land and compensate the owners. In other words, it provides a means for willing Palestinian sellers to sell their property to willing Jewish purchasers without risking the lives of the owners.

 

As I noted in a column on the subject of the bill last week, the legal opinion published by Attorney- General Avichai Mandelblit opposing the settlement regulation bill included four arguments.

 

Prof. Avi Bell from the Bar-Ilan University School of Law rebutted all of Mandelblit's claims in an article published two weeks ago in Yisrael Hayom.

 

As Bell showed, Mandelblit's claim that the proposed law breaches international law is both irrelevant - since Knesset laws supersede international law, and at best arguable.

 

Mandelblit further argued that the Knesset has no right to pass laws that supersede international laws pertaining to the belligerent occupation of land seized in war. But Bell demonstrated that the opposite is true. For instance, Israel's Golan Heights Law from 1981 canceled the military government on the Golan Heights and applied Israeli law to the area.

 

Mandelblit claimed that eminent domain cannot be used to seize land for private construction projects. But as Bell showed, there are dozens of decisions by US courts permitting eminent domain to be used in just such cases.

 

Finally, Mandelblit argued that the Knesset doesn't have the authority to pass laws that contradict High Court decisions. Here too, Bell showed that the opposite is the case.

 

Israel's constitutional order is based on its Basic Laws. Basic Law: Knesset defines the Knesset as the highest legislative authority. In line with this, the Knesset has passed numerous laws over the years that have overturned High Court decisions.

 

On the basis of Mandelblit's last argument, on Monday, Kahlon announced that Kulanu would not support the settlement regulation law.

 

Kahlon insisted that his party would not support any law that undermines the court's authority and since the court ruled that Amona must be destroyed and its residents rendered homeless by December 25, Kahlon will take no action to save the community.

 

Kahlon insists that he is motivated by a desire to protect the court's prerogatives. But when assessed in the context of actual laws, it is clear that his position doesn't primarily defend the court. Rather it undermines the Knesset, and through it, Israeli democracy.

 

If the Knesset doesn't have the right to pass laws that run counter to Supreme Court decisions, then the public that elected the Knesset is effectively disenfranchised. Far from securing Israel's democracy and constitutional order, opposition to the settlement regulation bill undermines both.

 

Then there is the issue of Israel's international standing.

 

On Monday the security cabinet convened to discuss the settlement regulation bill. According to leaked accounts of the six-hour meeting, Prime Minister Benjamin Netanyahu warned Bennett that passage of the bill is liable to cause the International Criminal Court's Prosecutor Fatou Bensouda to indict Netanyahu as a war criminal.

 

He also warned that passage of the bill is liable to induce US President Barack Obama to enable an anti-Israel resolution to be adopted by the UN Security Council.

 

Netanyahu's claims are deeply problematic.

 

Insofar as the ICC is concerned, three points counter Netanyahu's argument. First, Bensouda is already conducting an investigation of Israel.

 

She opened her investigation shortly after she wrongly admitted "Palestine" as a state member of the ICC.

 

The ICC will continue to investigate Israel whether or not the Knesset passes the settlement regulation law. And the merits of the bill will have no impact on the ICC's decision to prosecute or close the investigation.

 

The second problem with Netanyahu's claim is that just by making it - and leaking it to the media - he empowered the ICC.

 

The ICC is becoming weaker by the day. Angry over the political nature of its prosecutions, African states are abandoning it. Russia also has announced it is walking away.

 

Israel should welcome this development.

 

The Treaty of Rome which established the ICC made clear that one of the court's purposes is to criminalize Israel.

 

By arguing that the ICC will respond to the passage of the regulation bill by indicting Israel, Netanyahu is lending credence to the false claims that there is something unlawful about the bill on the one hand, and that the ICC's politically motivated investigation of Israel is legally defensible on the other hand. Indeed, by claiming wrongly that passing the bill will expose Israel to ICC investigation, Netanyahu is effectively inviting the ICC to persecute him.

 

The ICC, like its comrades in the lawfare campaigns worldwide, always target those perceived as vulnerable to pressure. This is why leftists like former justice minister Tzipi Livni are targeted for war crimes complaints while current Justice Minister Ayelet Shaked is left alone.

 

The most extraordinary example of this sort of political targeting came on Monday. The same day Netanyahu was making the case for the ICC and Obama in the cabinet, word came that Palestinian immigrants in Chile have filed a war crimes claim against three High Court justices. Former Palestinians from Beit Jala, south of Jerusalem, filed war crimes charges against retired Supreme Court president Asher Grunis and sitting justices Uzi Vogelman and Neal Hendel, all being accused of committing war crimes for their decision last year regarding the route of the security barrier around Jerusalem.

 

There is no governing institution in Israel more sensitive to war crimes accusations than the Supreme Court. To avoid just such charges, justices routinely second-guess military commanders and the government and deny them the right to use their best professional judgment to defend the country.

 

In the decision for which they are accused of war crimes, the three justices gave qualified approval to the IDF to complete the security barrier around Jerusalem on land owned by the petitioners in Beit Jala. In their ruling, the justices actually sided with the petitioners' claim that the proposed routes harmed their rights and insisted that the IDF prove that it had no means of defending the capital without building the barrier along the proposed routes.

 

And for their efforts, the justices are now being accused of war crimes.

 

The same flawed premise at the heart of Netanyahu's claim that approving the bill will cause Israel to be prosecuted for war crimes stands at the heart of his claim that passing the law will increase the possibility that Obama will allow an anti-Israel resolution to pass in the UN Security Council.

 

The problem with this argument is that it ignores the basic fact that Obama's desire to stick it to Israel at the UN Security Council has been a consistent feature of his presidency for eight years. Obama has wielded this threat against Israel without regard for its actual policies. He has threatened us when the government froze Jewish building rights. He has threatened us when the government respected Jewish building rights. If Obama decides to enable an anti-Israel resolution to pass through the UN Security Council during his remaining seven weeks in office, he will do so regardless of whether the Knesset passes or scuppers the settlement regulation bill.

 

The only thing likely to prevent Obama from harming Israel at the Security Council at this point is a clear message to the UN from the incoming Trump administration.

 

For instance, if President-elect Donald Trump announces directly or through an intermediary that Security Council action against Israel over the next seven weeks will induce the Trump administration to withhold US funding from the UN, UN officials will likely stuff draft resolutions to this effect into a drawer.

 

Netanyahu's actions do more to harm his future relations with Trump than advance his current relations with Obama. If Netanyahu blocks passage of the settlement regulation bill, he is likely to enter the Trump era as the head of a government on the verge of collapse. Rather than be in a position to reshape and rebuild Israel's alliance with the US after eight years of Obama's hostility, Netanyahu may limp to his first meeting with the new president, the head of dysfunctional government beyond his control, and at the mercy of a legal fraternity and an international judicial lynch mob that he will have just empowered.

 

Is the Obama administration at a boiling point with Israel? - http://www.jpost.com/Jerusalem-Report/At-boiling-point-with-Israel-472488

 

Speculation has been rife for some time that President Barack Obama will use the presidential interregnum to make a legacy statement on Israel-Palestine. On the cards are a presidential speech that would lay out a suggested framework for a two-state solution, or, in what would be a diplomatic bombshell: using the UN Security Council to push a resolution that would either condemn settlements or even lay down guidelines and a timetable for a final-status agreement between Israel and the Palestinians.

 

Over the past year the Obama administration has ratcheted up the pressure with increasingly harsh criticism of settlement construction and comments questioning the future of Israel as a democratic and Jewish state.

 

Things came to a head in early October with a series of stinging statements following the approval of 98 new homes in the West Bank settlement of Shiloh. The construction was announced a month after Obama signed off on a ten-year $38 billion military aid package, two weeks after Obama and Prime Minister Benjamin Netanyahu had met on the sidelines of the United Nations General Assembly in New York and just days after the American president had made a lightning trip to Israel for the funeral of Shimon Peres.

 

"It is deeply troubling, in the wake of Israel and the US concluding an unprecedented agreement on military assistance designed to further strengthen Israel's security, that Israel would take a decision so contrary to its long-term security interest in a peaceful resolution of its conflict with the Palestinians," said State Department spokesman Mark Toner.

 

"Furthermore, it is disheartening that while Israel and the world mourned the passing of President Shimon Peres, and leaders from the US and other nations prepared to honor one of the great champions of peace, plans were advanced that would seriously undermine the prospects for a two-state solution that he so passionately supported."

 

The White House too issued a notably caustic response. "We did receive public assurances from the Israeli government that contradict this announcement," said White House press secretary Josh Earnst. "I guess when we're talking about how good friends treat one another, that's a source of serious concern."

 

Martin Indyk, Obama's former special envoy to negotiations between Israel and the Palestinians told The New York Times in the wake of those statements that the administration has been escalating its rhetoric in opposition to West Bank settlement activity for more than a year, but Israel isn't listening.

 

"At a certain point," he said, "the administration may well decide that there need to be consequences for what it now sees as an effort to close off the two-state solution."

 

A clue as to what those consequences may look like came in an October 6 editorial in The Times titled 'At the Boiling Point with Israel.' "The best idea under discussion now would be to have the United Nations Security Council, in an official resolution, lay down guidelines for a peace agreement covering such issues as Israel's security, the future of Jerusalem, the fate of Palestinian refugees and borders for both states," the editorial stated, adding that "another, though weaker, option is for Mr. Obama to act unilaterally and articulate this framework for the two parties."

 

Netanyahu is clearly feeling the heat. In a meeting with settlers in mid-October he reportedly described the presidential interregnum - the period between the US elections on November 8 and the presidential switch-over on January 20, 2017 - as a sensitive period. Warning that Obama could "endanger the settlement enterprise," Netanyahu, according to a report in Haaretz, said, "We need to act wisely, and you, of all people, ought to understand that."

 

While Netanyahu denied those comments, his office later issued a statement in which it said the prime minister had warned the settlers that: "In the past, there were presidents who at the end of their term in office advanced initiatives that were not in line with Israel's interests."

 

"The prime minister added that he hopes this won't happen again, and he expects the US not to change its traditional policy of the last several decades and to prevent anti-Israel resolutions at the UN Security Council," the Prime Minister's Office's statement read.

 

"Netanyahu is worried," Prof. Eytan Gilboa, an expert on US policy in the Middle East, tells The Jerusalem Report. "I'm sure he has all kinds of signals from Washington suggesting that this will happen. I would be worried as well."

 

Gilboa notes the personality clash between Obama and Netanyahu, saying there is strong motivation in the administration to settle the account with the prime minister.

 

That account is one created by years of abrasive relations between the two leaders and turbocharged by Netanyahu's March 2015 speech to Congress against the Iran nuclear deal.

 

Obama's main motivation will be to explain why he failed to achieve peace between Israel and the Palestinians, which along with the Iran deal was his main foreign policy agenda, explains Gilboa, and secondly to blame Netanyahu for the failure.

 

"There is a very strong personal element which I think will disappear regardless of who the next president is. I think the personal animosity and especially the poison that was created by Netanyahu's speech to Congress against the Iran deal created a very bad personal relationship. I don't think Obama will acknowledge that, but I think this is his main motivation.

 

What Obama chooses to do could very much depend on the outcome of the elections.

 

Hillary Clinton has already said she wants to reset relations with Israel. Any extreme action on the part of Obama would contradict that, and in the event Clinton wins, Obama would have to consult with his Democrat successor. If Trump, on the other hand, were to win the ballot on November 8, Obama wouldn't care less. Gilboa adds that it would even provide him with some "added motivation to come up with some kind of initiative."

 

Dennis Ross, a former Middle East adviser to both Obama and Clinton, while the latter served as Secretary of State, said in late September at a conference on the US-Israel relationship that "if Trump wins, the president would be more inclined to go for a Security Council resolution to try to do something that binds, creates standards for the future that the next president couldn't undo. If Clinton wins, I suspect he would be more sensitive to her concerns as to whether this helps or hurts her."

 

Regardless of who wins, any major speech or document would be perceived as a fundamental statement on how negotiations should take place - all the more so a Security Council resolution - and would leave the next president with less freedom.

 

Meanwhile, senior diplomatic sources in Jerusalem were only willing to say that there are concerns but would not specify what Israel feared could happen and what steps it is taking.

 

Israel can be expected to exert pressure via Congress and the Jewish lobby. A bipartisan letter submitted by 88 US Senators on September 20 before the prime minister's New York meeting with Obama called on the president to uphold US policy vetoing any "one-sided United Nations Security Council resolutions regarding the Israeli- Palestinian conflict."

 

The letter quoted Obama's speech to the UN General Assembly in 2011, in which he said, "Peace will not come through statements and resolutions at the United Nations."

 

Two days later, Netanyahu addressed the assembly and used almost identical language, praising America's consistent support for Israel at the United Nations as one of the pillars of the US-Israel relationship and clearly making a call for Obama not to take the Security Council route.

 

"I appreciate President Obama's commitment to that long-standing US policy," Netanyahu told the assembly. "In fact, the only time that the United States cast a UN Security Council veto during the Obama presidency was against an anti-Israel resolution in 2011. As President Obama rightly declared at this podium, peace will not come from statements and resolutions at the United Nations."

 

Netanyahu also reportedly raised the subject with Obama in New York and in subsequent phone calls with Secretary of State John Kerry, but failed to receive a commitment that the US would not allow a Security Council motion to pass.

 

But Netanyahu will also be gambling that even if Obama does opt to take the Security Council route, he won't, at the end of the day, allow a resolution that would divert from traditional American policy, namely, a resolution that would break the land for peace mold, redefine the vague withdrawal from territories of Resolution 242 replacing it with a reference to the 1967 lines, and explicitly state that settlements are illegal.

 

"I don't think there is cause for great concern," Netanyahu's former National Security Adviser, Ya'akovAmidror, tells The Report.

 

"I see no reason for Israel to be overly worried. It may be unpleasant, and it would be better if it didn't happen, but I don't see the Americans putting anything extreme on the table."

 

Amidror also points out that regional circumstances could also impede Obama's intent to go via the Security Council.

 

"I think it would be ridiculous if that is what the UN were to discuss at a time when the battle is ongoing for Mosul, when there are so many deaths in Syria, when refugees are pouring into Europe, and when Turkey doesn't recognize the Lausanne Treaty that delineates its borders," says Amidror.

 

"Either way," he adds, "what the Americans have put on the table until now hasn't brought the Palestinians to negotiations and whatever they bring to the table won't get them to negotiate.

 

All avenues point to a speech being the likely option, if Obama wants to build his peace-making legacy.

 

But even then, says Gilboa, that would be a violation of custom and there is no precedent for an American president to come out during the interregnum with a new initiative during that time period that would affect the policies of the next president.

 

If I were advising Obama," says Gilboa, "I would tell him, 'If you want to do it, do it in a speech after the next president is in place or write it in your memoirs.'"