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Isi Leibler
Jerusalem Post, February 21, 2011


A strange euphoria seems to have blinded some Israelis and American Jews concerning the context of President Barack Obama’s veto of a UN resolution. In the past, blatantly one-sided anti- Israeli resolutions were vetoed as a matter of course. On this occasion, the issue was complicated because of the Obama administration’s disastrous, long-standing obsession with the settlements, which paved the way for the unprecedented Palestinian demand for a settlement freeze as a precondition to negotiations.

Desperate to avoid employing the veto, Obama extended extraordinary concessions to the Palestinians if they agreed to modify the language of the resolution. He offered a Security Council “presidential statement” expressing identical views to the resolution condemning the Jewish presence in the West Bank and Jerusalem. He was willing to endorse a Russian proposal for a Security Council fact-finding mission on settlements and a proposed expansion of the Quartet’s involvement to cover areas ranging from the 1967 borders to the political status of Jerusalem. According to The Wall Street Journal, at the last moment Obama phoned PA President Mahmoud Abbas offering to endorse or abstain on the resolution if the Palestinians agreed to replace the word “illegal” with “illegitimate” in relation to settlements.

Normal procedure after such a vote would have been a simple U.S. statement that the resolution was one-sided and that the Security Council was not the venue to engage in this issue. It could also have noted that Israel had frozen settlements for 10 months while the Palestinians still refused to negotiate. Instead, U.S. Ambassador Susan Rice made a supplementary statement condemning settlements, employing some of the most vehement language against the Jewish state ever used by a senior U.S. official.

That Abbas refused to accept Obama’s extraordinary offers reflects the fact that the Palestinians are now being hoisted by their own petard. [Palestinian] incitement has been so effective that following the Al Jazeera disclosures of [potential] concessions discussed [with Israeli officials] behind closed doors—which [the Palestinian Authority] had no intention of ever implementing or even revealing to their people—[the PA] cannot now contemplate the slightest compromise without being condemned as traitors.

With global anti-Israeli hostility combining with the seething cauldron of revolution in the Arab world, Abbas is confident that by avoiding negotiations, he will oblige the Obama administration to intensify pressure on Israel. He also appreciates the effectiveness of engaging in “lawfare” rather than terrorism, with a massive program of demonization, boycott and delegitimization in the UN pipeline where the most outrageously anti-Israeli resolutions are guaranteed an automatic majority. We can anticipate a cascade of resolutions seeking to transform Israel into a pariah state, accusing it of breaching international law, branding its leaders as war criminals and seeking to drag it into the International Court of Justice.

The U.S. relationship now assumes even greater importance to our security, both militarily and diplomatically.… It is likely that despite the disastrous consequences of Obama’s failed efforts to engage with rogue states, were he not facing re-election, he would not allow Israel’s security to stand in the way of his efforts to appease the Islamic world.…

It is chilling to contemplate how the administration may seek to “balance” its veto by imposing new pressures on Israel, which could soon be facing rejectionist states on most of its borders. We must now invest all our resources into strengthening U.S.-Israel ties…in light of uncertainties with the new Egypt, and Iran’s growing regional influence.… We must have a comprehensive plan if we are to persuade the American public and Congress to remain steadfast. Otherwise, the Obama administration might throw us to the wolves.


Anne Bayefsky & Benjamin Weinthal
National Review, February 21, 2011


It is no coincidence that the Hezbollah-dominated Lebanese government, a non-standing member of the UN Security Council and an Iranian subsidiary, sponsored a resolution last Friday condemning Israeli housing construction in the disputed territories. The anti-Israel-resolution activity diverted the UN Security Council from passing resolutions against such authoritarian regimes as Iran and Libya for shooting their citizens and suppressing pro-democracy efforts.

Arab despots—and Iran’s regime—have a tried-and-true method for deflecting attention from their profoundly anti-democratic and repressive political systems: Formulate a UN resolution to condemn the Jewish State and its vibrant democracy. The fact that EU countries—for example Germany, which asserts that Israel’s national security is integral to German interests—joined the diplomatic assault on Israel is nothing short of a major body blow to the Palestinian-Israeli peace process.…

[Furthermore], the explanation U.S. ambassador to the UN Susan Rice gave to the Security Council after casting her negative vote neatly captured the Obama administration’s Dr.-Jekyll-and-Mr.-Hyde approach to the Jewish State. Instead of taking the opportunity to mention the critical problems unfolding in the Middle East…she labeled Israel’s home-building “folly and illegitimacy” and castigated [Israel] as “devastat[ing] trust…and threaten[ing] the prospects for peace.” Make no mistake, Iran, Libya, Algeria, and the rest of the thugs brutalizing their populations took notice. After all, this took place in the UN body with ultimate responsibility for protecting international peace and security.

The UN’s pathological obsession with turning Israel into a diplomatic punching bag was well known before the vote. But there is no excuse for the United States, or Britain, France, and Germany, to legitimize the spectacle. The EU’s bizarre and flawed fixation on settlement construction as the linchpin of Mideast peace turned absurd in the British, German, and French statement advocating a one-sided resolution rebuking Israel. It stated: “A way must be found through negotiations to resolve the status of Jerusalem as the future capital of both states.” In short, while paying lip service to a negotiated resolution to the conflict, the EU unilaterally purported to settle one of the core elements to be negotiated.

The German move was an extension of its intemperate legislative language toward Israel. In 2010, the Merkel administration made no effort to convince members of its coalition government in the Bundestag not to agree to a resolution blaming the Jewish state for “violating the principle of proportionality” against the occupants of the Turkish vessel Mavi Marmara. The ship contained a hardcore group of jihadists whose only aim was to diminish Israel’s right to self-defense and create an Iranian port on the Mediterranean.

Israel’s ambassador to Berlin was apparently under the mistaken impression that the Merkel administration would likely reject the [latest] Security Council resolution. But the anti-Israeli writing was plainly on the wall. As a 2009 WikiLeaks cable from U.S. diplomats in Berlin reveals, Christoph Heusgen, a senior adviser to Merkel, urged the U.S to water down its opposition to the U.N.’s anti-Israel “Goldstone Report” in order to force Israel to freeze settlement construction. The dispatch from Heusgen, Merkel’s point man on the Middle East, ought to raise giant question marks over her oft-repeated declarations to the U.S. Congress and the Israeli Knesset that the Jewish state’s security is “non-negotiable” for Germany.…

British and French support for the resolution comes at a time when we are learning how deeply immersed both countries are with the dirty business of propping up unsavory regimes in Tunisia and Libya. WikiLeaks cables point directly to Britain’s role in releasing the Lockerbie bomber, Abdelbaset Ali al-Megrahi, in exchange for British energy giant BP’s right to access and develop Libyan oil. During the pro-democracy demonstrations in Tunisia, France’s foreign minister Michele Alliot-Marie offered a sophisticated French police-skills program to the security forces of now-deposed Tunisian despot Ben Ali.

It is long overdue for the EU and the U.S. to make good on their promise to leave the talks about all final-status issues, including settlements and territorial compromises, to the parties themselves. As of today, the EU has given the Palestinians no compelling reason to return to the bargaining table or get serious about living side-by-side with a Jewish state. Instead of obsessing over Israel, the time is now ripe to acquire a healthy obsession with democracy promotion in the Muslim and Arab worlds.


Evelyn Gordon
Jerusalem Post, February 21, 2011


Last week’s U.S. veto of a UN Security Council resolution condemning Israeli settlements once again highlighted the critical role Congress plays in the U.S.-Israel alliance. And it’s long past time for Israel to give Congress…thanks for its ongoing support. Granted, the veto decision was technically made by President Barack Obama, not by Congress. The question is why.

Obama agreed with every word of the resolution, as UN Ambassador Susan Rice told the council explicitly after the vote. He is ideologically opposed to the veto; this was the first he has cast in over two years in office. Administration officials worried openly that the vote would damage Washington’s status in the Arab world at a time when the upheavals there have already thrown its influence into question.

And [Obama] certainly wasn’t motivated by a sudden attack of pro-Israel sentiment: According to media reports, he was prepared to sell out Israel’s most vital negotiating interests to avoid having to cast this veto. To tempt the Palestinians into withdrawing the resolution, he reportedly offered various perks, including a pledge of support for a Quartet statement that, for the first time, would back their demand for a state with borders based on the 1967 lines. That would deal a double blow to Israel’s security: by undermining its quest for defensible borders (which the 1967 lines emphatically are not), and by showing that American promises can’t be trusted. After all, such a statement would nullify the pledges former President George W. Bush gave Israel…a “steadfast commitment” to “secure, defensible borders” and acknowledgment that a “full and complete return” to the 1967 lines is “unrealistic.”

So given all this, why did Obama nevertheless veto the resolution? Because Congress sent an unequivocal bipartisan message that it wouldn’t tolerate anything else. And while technically, Congress has no say over America’s UN votes, Obama wasn’t prepared to pick a fight with Congress on this matter when he will need its support on numerous vital domestic issues.

Too many Israeli prime ministers forget that Congress wields such power. They view their personal relationship with the president as the be all and end all of U.S.-Israel relations, and are therefore prepared to concede on important issues for the sake of retaining the president’s support. Last week’s vote thus provides a timely reminder that the president and America are not synonymous: Israel can stand up to the president without sacrificing American support, because this support is based on shared interests and values rather than any specific policy.…


Alan Baker

Jerusalem Center for Public Affairs, January 5, 2011


Palestinian representatives at the UN have prepared a draft resolution…that will seek to declare that Israeli settlements are “illegal and constitute a major obstacle to the achievement of peace.” The claim is not new. The issue of the legality of Israel’s settlements and the rationale of Israel’s settlements policy have for years dominated the attention of the international community. This has been evident in countless reports of different UN bodies, rapporteurs, and resolutions, as well as in political declarations and statements by governments and leaders. In varying degrees, they consider Israel’s settlements to be in violation of international law, specifically Article 49 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of August 12, 1949.

But apart from the almost standardized, oft-repeated, and commonly accepted clichés as to the “illegality of Israel’s settlements,” or the “flagrant violation” of the Geneva Convention…there has been little genuine attempt to elaborate and consider the substantive legal reasoning behind this view. Yet there are a number of very relevant factors that inevitably must be considered when making such a serious accusation against Israel. These factors include: i. the text of the sixth paragraph of Article 49 of the Fourth Geneva Convention and the circumstances of, and reasons for, its inclusion in the Convention in December 1949; ii. the unique circumstances of the territory and the context of the Israeli-Palestinian relationship that has developed since 1993 through a series of agreements between them. These agreements have created a sui generis framework that, of necessity, influences and even overrides any general determinations unrelated to that framework.

What Does Article 49 of the Fourth Geneva Convention Say?

Immediately after the Second World War, the need arose to draft an international convention to protect civilians in times of armed conflict in light of the massive numbers of civilians forced to leave their homes during the war, and the glaring lack of effective protection for civilians under any of the then valid conventions or treaties. In this context, the sixth paragraph of Article 49 of the Fourth Geneva Convention states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

The authoritative and official commentary by the…International Committee of the Red Cross, published in 1958 in order to assist “Governments and armed forces…called upon to assume responsibility in applying the Geneva Conventions,” clarifies this provision as follows: “It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.…”

There is nothing to link such circumstances to Israel’s settlement policy. The circumstances in which Article 49(6) of the Geneva Convention was drafted, and specifically the meaning attached by the International Committee of the Red Cross itself to that article, raise a serious question as to the relevance of linkage to and reliance on the article by the international community as the basis and criterion for determining Israel’s settlements as illegal. One may further ask if this is not a misreading, misunderstanding, or even distortion of that article and its context.

The international lawyer Prof. Eugene V. Rostow, a former dean of Yale Law School and Undersecretary of State, stated in 1990: “[T]he Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War—the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example.… The Jewish settlers in the West Bank are most emphatically volunteers. They have not been ‘deported’ or ‘transferred’ to the area by the Government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva Convention to prevent.”

Ambassador Morris Abram, a member of the U.S. staff at the Nuremburg Tribunal and later involved in the drafting of the Fourth Geneva Convention, is on record as stating that the convention: “was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people.…”

Article 49(6) uses terminology that is indicative of governmental action in coercing its citizens to move. Yet Israel has not forcibly deported or mass-transferred its citizens into the territories. It has consistently maintained a policy enabling people to reside voluntarily on land that is not privately owned.… Israel has never expressed any intention to colonize the territories, to confiscate land, nor to displace the local population for political or racial reasons, nor to alter the demographic nature of the area.

The series of agreements signed with the Palestinian leadership has in fact placed the entire issue of the status of the territory, as well as Israel’s settlements, on the negotiating table—a factor that proves the lack of any intention to colonize or displace. The fact that Israel chose unilaterally to dismantle its settlements and remove its citizens from the Gaza Strip in 2005 is further evidence of this.

The status of the territory, including the rights of the parties therein and the Israeli settlements, are the central negotiating issues between the two sides. In this context, and pursuant to its obligations in Article XXXI (7) of the Israeli-Palestinian Interim Agreement of 1993, Israel has not taken any step to alter the status of the territory, which is open for determination in the Permanent Status negotiations.…

Unique Circumstances of Territory and Special Nature of the Israel-Palestinian Relationship

There is a further and no less important reason why the Geneva Convention provisions regarding transfer of populations cannot be considered relevant in any event to the Israeli-Palestinian context. The entirely unique and sui generis situation, history, and circumstances of the Israeli-Palestinian conflict regarding the territories, as well as the series of agreements and memoranda that have been signed between the Palestinian leadership and the Government of Israel, have produced a special independent regime—a lex specialis—that governs all aspects of the relationship between them, including the settlements issue.…

The special regime governing the relationship between Israel and the Palestinians is set out in the series of agreements and memoranda negotiated between 1993 and 1999 and still valid. These documents cover all the central issues between them including issues of governance, security, elections, jurisdiction, human rights, legal issues, and the like. In this framework there is no specific provision either restricting planning, zoning and continued construction by either party, of towns and villages, or freezing such construction.

Furthermore, the two sides agreed in the 1995 Interim Agreement, signed and witnessed by the U.S., the EU, Egypt, Jordan, Russia, and Norway, on a division of their respective jurisdictions in the West Bank into areas A and B (Palestinian jurisdiction) and area C (Israeli jurisdiction). They defined the respective powers and responsibilities of each side in the areas they control. Israel’s powers and responsibilities in Area C include all aspects regarding its settlements—all this pending the outcome of the Permanent Status negotiations. This division was accepted and agreed upon by the Palestinians, who cannot now invoke the Geneva Convention regime in order to bypass their acceptance of the Interim Agreement or their and the international community’s acknowledgement of that agreement’s relevance and continued validity.…


The main proponent orchestrating the settlement issue over the years has been the Palestinian leadership, which has decided to isolate and take up the issue of settlements as an independent “cause célèbre,” despite the fact that it is among the agreed-upon items to be negotiated between Israel and the Palestinians in the Permanent Status negotiations. The Palestinians chose to proceed with this policy in full awareness of the fact that in their agreements, Israel had not obligated itself in any way to refrain from, halt, or freeze construction in the settlements.

The Palestinians preferred to take the settlement issue outside the framework of the agreements with a view to opening a concerted international campaign to isolate Israel on this issue and turn it into the international issue that we are witnessing today. Furthermore, raising the settlement issue has succeeded in blocking any progress in the negotiating process, so much so that the Palestinian leadership is now holding any return to a negotiation mode as a hostage to a settlement freeze.… The international community cannot seriously ignore the factors set out above, as well as the implications that any such new resolution or decision might have on the already agreed-upon, delicate structure of the peace process.

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