The Legalization Bill Is Not Just About Settlements

December 8, 2016 § 4 Comments

The Regulation Bill, which aims to legalize thousands of homes in the West Bank built on private Palestinian land and that passed a preliminary reading in the Knesset on Monday and a first reading yesterday, is a disaster for more reasons than I can list in one place. But that’s no excuse not to try. So (deep breath):

To start with the glaringly obvious, legalizing thousands of homes inside existing recognized settlements and legalizing fifty-five illegal outposts makes a permanent status agreement resulting in a two-state solution farther away than it has been at any time since before Oslo. It hardens Israel’s presence in the West Bank to a degree that makes it impossible to envision a withdrawal of civilians that will not result in violence and bloodshed or exact a crushing emotional toll. Given the location of these outposts, it also enormously complicates what is the best way in the current environment to create a de facto two-state solution on the ground – namely, the plan from Commanders for Israel’s Security to freeze expansion east of the security barrier and renounce any claims to Israeli sovereignty in that territory. Should it pass and become law, the Regulation Bill not only makes negotiations down the road that much harder, it eviscerates Israel’s own unilateral options. It is self-binding in the worst sort of way, since it does not do anything productive in deterring an enemy or reassuring an ally – which is the purpose of the self-binding contained in the North Atlantic Treaty, for instance – but instead creates a self-fulfilling prophecy of doom for Israel’s future. You need to have zero regard for your political successors or for your own political independence to take an action that boxes you in like this to one and only one trajectory going forward.

The bill also puts the lie to long-standing Israeli claims about settlements. Prime Minister Netanyahu gives no quarter in claiming that settlements are in no way the issue in preventing Israeli-Palestinian peace. He instead argues that they are a smokescreen that the other side hides behind to mask its refusal to accept Israel’s legitimacy. Netanyahu has also gotten lots of mileage from his claim that Israel has not authorized any new settlements on his watch, relying on the fact that most outside observers do not know how illegal settlement activity has proliferated. But that rhetorical flight of fancy is now gone for good. Plenty of people, myself included, have never seen settlements as the core issue behind the conflict, but recognize that they are in fact an enormous obstacle and not anything that can be blithely dismissed as insignificant. When you throw any and all restraint to the wind, however, and let settlements swallow up everything else, they become a core issue. Imagine a Palestinian living in Area C whose home is one of the 11,000 structures under a demolition order for having been built without a permit, and he wakes up to see that with a stroke of a pen Israeli homes in the exact same situation are now deemed legal. If you think that his anger is motivated by a desire to drive Tel Avivians into the sea rather than the blatant discrimination and injustice to which he is being directly subjected, you are deluding yourself.

But it is more than just arguing about the role of settlements that is at stake here. I have enormous sympathy for settlers who moved to the West Bank because they were repeatedly encouraged to do so by the government and were provided all sorts of financial incentives to go. They cannot and should not be hung out to dry. Legalizing what was blatantly illegal activity, however, creates a completely different and perverse set of incentives, and accelerates a moral hazard problem that will become impossible to overcome. We are talking about Israelis who moved onto private Palestinian land without permits and without explicit or clear government approval, and even though the bill as drafted only retroactively legalizes the activity if they didn’t know they were building on private land, it now makes everything they did completely consequence-free. There is no reason from now on for anyone to heed the laws or directives of the Israeli government with regard to building in the West Bank, since the precedent has been set that it will be treated as perfectly fine and that someone else will bear the costs. This decimates the rule of law and encourages a wide range of bad behavior that cannot be put back in the box.

The Regulation Bill also reveals a fundamental misunderstanding of what it means to be democratic. A majoritarian theory of democracy, in which leaders and parties that win elections get to do anything they please with no checks and balances, is precisely what political philosophers and creators of longstanding democracies like Great Britain and the United States feared. It is why checks and balances and separation of powers exist. Supporters of this bill seem to think that its almost-certain rejection by the High Court is a sign that the High Court is undemocratic because it is thwarting the will of the people, or that Attorney General Avichai Mandelblit’s determination that the bill is unconstitutional does not matter because nobody elected him. This is precisely how democracies turn into populist non-democracies controlled by demagogues, and supporters of Israel who dismiss this attitude as irrelevant do so at their own peril.

Finally, the legalism being used to justify the Regulation Bill is reaching Orwellian heights, and should not be viewed as anything positive. One of the ironies of the three Soviet constitutions was that they guaranteed a wider range of rights than Western constitutions; if an alien landed on Earth and read the Soviet Union’s constitutional and legal documents, it would assume that the Soviet Union was the most free and liberal country on the planet. For similar reasons, countries in which elections do not matter to the transfer of political power almost all go to great lengths to hold elections and make big shows of how they are respecting the will of the people. A patina of legality is used to legitimize that which is illegitimate. I am not suggesting that Israel is an authoritarian country, and it shares no resemblance to the totalitarian Soviet Union. But the focus on what is narrowly legal – the structures being legalized must have been built with no direct knowledge that they were built on private land, there had to have been implicit or explicit government or municipal support – is designed to make what happens appear as if it is above board. It is not. To seize private land without authorization and pay the landowners compensation whether they are willing to cede their land or not is not legal, full stop. The Israeli High Court does not view it as legal. The Israeli attorney general does not view it as legal. No source of international law views it as legal. Tying it up with a phony legal bow almost makes the entire thing worse.

Make no mistake about what this is. It is not an attempt to right wrongs. It is not an attempt to administer fair and impartial justice. Naftali Bennett, to his credit, has not been cagey but has said what this is proudly and clearly: “The Israeli Knesset shifted from a path to establish a Palestinian state, to a path of extending sovereignty to Judea and Samaria. Let there be no doubt, the Regulation Bill is what will spearhead the extension of [Israeli] sovereignty.” The bill will not pass the High Court and will not become law, but what it says about the current state of political affairs in Israel is as disturbing as anything that has happened since Yitzhak Rabin’s assassination. It is an attempt to radically overhaul Israel’s system of democracy, and that it is playing out in the Knesset does not make it any more democratic.

Paying the Piper

December 1, 2016 § Leave a comment

The Israeli government this week is debating making two sets of extraordinary payments to different groups. Both payments are in some part necessary, but the story they tell about Israel is not a hopeful one. Indeed, they are an encapsulation of why so many, both inside Israel and out, harbor immense frustration with Israel’s political leadership.

The first set of payments is in response to the fires that ravaged Haifa, Zichron Yaakov, and other pockets of Israel over the past week. The initial suspicion was that the primary cause of the fires was arson, and the Israeli government arrested thirty five suspects, a majority of whom were Arab citizens of Israel. Deliberately torching homes and forests for nationalist motives can certainly be considered terrorism, and the government moved quickly to treat it as such, with Public Security Minister Gilad Erdan calling to demolish perpetrators’ homes and Interior Minister Aryeh Deri floating the idea that arsonists’ Israeli citizenship should be revoked. Of more immediate consequence, a number of ministers and MKs called for the government to compensate everyone whose homes and belongings were damaged by the fires, and the Israel Tax Authority on Tuesday ruled that the fires were universally the result of arson. The reason this is important is that the state only has to compensate citizens who suffered financial losses as a result of terrorism; if you lost your home due to wildfires, such as the ones that ravaged the Carmel forest in 2010, then you are covered by private insurance and not entitled to complete restitution from the state. In this case, despite the fact that the Fire and Rescue Authority deemed only 25 of the 1,773 fires to be arson and the Israeli police initially believe that the fires in Haifa – where the most damage occurred – were not arson-related, by moving to cover all losses the government is creating a narrative of Israel under assault from a terrorist fire intifada.

My objection to this is not because I have any desire to see Israelis who lost their homes in a terrible fire be abandoned by the state. It is also not because I think criminal arsonists acting out of nationalist motives are in any way justified or are anything but terrorists. It is because there is another and far more accurate story to tell here, and it is one that does not paint a picture of Israeli society breaking apart because Jews cannot trust Arabs not to burn their country to the ground. Leaving aside the fact that it now appears that deliberate arson was a drop in the bucket compared to weather and environmental factors, the real story of these fires is the cooperation that ensued between Israel and its neighbors and between different segments of Israeli society. The dominant theme is Jews and Arabs helping each other out, rather than Jews and Arabs at each other’s throats. The Palestinian Authority sent eight fire trucks and forty four firefighters to help bring the fires under control, prompting a thank you call from Prime Minister Netanyahu to President Abbas. Even more encouragingly, firefighters from Ramallah helped put out the fires in the West Bank settlement of Halamish, rather than limiting their assistance to fires inside the Green Line. Egypt, Jordan, and Turkey all sent personnel or equipment. Israeli Jews and Israeli Arabs crossed community lines to host their fellow citizens in their homes, regardless of religion or politics. Yes, there was deliberate arson. Yes, many people on social media were celebrating Jews being burned. These things should not be papered over as if they are irrelevant. But by rushing to declare the entirety of the fires as a terrorist attack that requires the state to compensate every effected Israeli, the government is elevating the smallest and most unsavory part of the story and making sure that it subsumes the far larger and more important part. Rather than seizing on hope, the government is seizing on fear, and guaranteeing that the 2016 fires will be remembered as the latest example of terrorism rather than as an encouraging example of true partnership and cooperation.

The second set of payments being debated this week involves another group that has been deliberately wronged, and in this case as well the government is rushing to pay compensation to people who should never have to be compensated. Despite the fact that Moshe Kahlon’s opposition temporarily derailed it yesterday, the bill to retroactively legalize settlements built on private Palestinian land and pay compensation to the Palestinian landowners is still moving forward, and will only be stopped by a High Court ruling or Netanyahu suddenly developing some political and moral courage on this issue. There is no question that if the government manages to legalize what is blatantly and indisputably illegal that the Palestinians affected need to be fairly compensated. But nobody should celebrate not stiffing the landowners outright as an example of Israeli justice or fair play. The juxtaposition of Israeli MKs who think that it is fine to take revenge on Palestinians who have rendered land uninhabitable for Jews – such as Oren Hazan, who actually held up a lighter in the Knesset and demanded “an eye for an eye” – against the majority of MKs who think that it is fine to render land uninhabitable for Palestinians by illegally taking it and then just paying for it afterwards is particularly jarring.

If the government is so intent on paying people to vacate land in the West Bank, it should move the settlers in places like Amona – who were encouraged by the government to go there and were led to believe that they would never have to pick up and leave – and compensate them for their detrimental reliance on explicit and implicit promises made by successive Israeli governments. Much like the compensation for people who lost everything to wildfires and arson, the government thinks that compensating Palestinians who lost their land puts Israel in a positive light when in fact it does the opposite. Rather than instill faith that the Israeli government will do the right thing, it instills faith that the Israeli government will take a bad situation and somehow make it even worse.

Bibi’s Trump Dilemma

November 18, 2016 § 1 Comment

Natan Sachs and I argue today in Foreign Affairs that despite the jubilation on the Israeli right at Trump’s election, it actually creates some real political problems for Bibi Netanyahu.

On November 9, Israeli Prime Minister Benjamin Netanyahu congratulated President-elect Donald Trump through a video message, in which the Israeli leader could barely contain his giddiness at the prospect of a friendlier White House. The ruling Israeli right-wing coalition, which sees Trump as a potential champion of Greater Israel, believes that the United States’ next president will finally remove any outside constraints on settlement construction in the West Bank or the legalization of already existing settlements built without governmental approval. Settlement-friendly politicians in Israel are already working hard on such moves; on Wednesday, a bill legalizing settlements built on private Palestinian land passed its first reading in the Knesset, despite the objections of the attorney general and a near certain rejection by Israel’s High Court of Justice. Some in Israel even view the next four years as an opportunity to annex the West Bank outright. This is a “tremendous opportunity to announce a renunciation of the idea of founding a Palestinian state in the heart of the land,” Naftali Bennett, leader of the Jewish Home party, stated. “The era of the Palestinian state is over.”

It’s not clear what Trump will do, of course, nor whether he even knows his position on the Israeli-Palestinian conflict. During the campaign, he initially said that he would like to remain a “neutral guy”—a contrast to decades of U.S. policy that his tilted toward Israel—but he later shifted to a more traditional pro-Israel stance. To the delight of the Israeli right, the Republican platform omitted any mention of a two-state solution. And since the election, the co-chairs of Trump’s Israel advisory committee have reiterated controversial statements about Trump moving the U.S. embassy from Tel Aviv to West Jerusalem. They’ve also said that Trump does not view settlements as an obstacle to peace. At the same time, Trump himself told The Wall Street Journal of his desire to close the “ultimate deal” between Israelis and Palestinians. “As a dealmaker, I’d like to do … the deal that can’t be made,” he said. “And do it for humanity’s sake.”

Despite the myriad conflicting signals, it is reasonable to assume that Netanyahu will now have a freer hand to implement the policies he desires with regard to settlements and negotiations with the Palestinians. Politically speaking, he may no longer have to run the gauntlet between a coalition that demands more building in the West Bank and a White House that insists on less.

But Netanyahu may soon find out that he needs to be careful with what he wishes for. Freedom from U.S. pressure would be a mixed blessing. Rather than solving his problems, it could cost him his political leverage, his ability to play two-level games.

Head over to Foreign Affairs to read the rest of the piece.

Trump and the Virtues of Israeli Caution

November 17, 2016 § 2 Comments

The Israeli right has embraced Donald Trump’s election as if the country has been granted a new lease on life. Naftali Bennett has declared the end of the era of the Palestinian state and shared his view that Trump’s election is an opportunity to restructure the entire region. Ofir Akunis has called for a new round of settlement construction. Yoav Kish has said that it is time to stop talking about two states. In general, there is a mood of exhilaration on the right driven by a sense that come January 20, President Trump will give Israel leeway to anything it pleases.

For a government that has been frustrated by President Obama for eight years, it is easy to understand the temptation to throw caution to the wind and move full steam ahead on settlement building and creating a new paradigm vis-à-vis the Palestinians. If yesterday’s preliminary approval of the bill legalizing settlements built on private Palestinian land is an indication of what’s to come, Israel is about to embark on a path that eliminates any ambiguity about its intentions. The government of Israel has every right to do what it pleases, of course. But doing so would be an enormous mistake. Taking a myopic approach and racking up as many short term wins as possible before the winds shift will only harm Israel in the long term, and would be a continuation of allowing tactics to win out over strategy.

For starters, assuming that Trump does indeed give Israel an unencumbered hand to deal with the West Bank and the Palestinians (more on this assumption in a moment), the United States is not the only relevant actor in this drama. Israel has spent years fending off sanctions from Europe over settlement activity, and the labeling controversy of earlier this year will seem like child’s play compared to what will come if Israel does indeed annex part of the West Bank. Israel has touted its improving ties with Sunni Arab states, but as tenuous as these relationships already are, they will disappear completely if Israel is viewed as destroying any chances of Palestinian sovereignty once and for all. Russia, which has enormous leverage over Israel at the moment given its role in Syria and its willingness to look the other way when Israel targets Hizballah weapons shipments, is also unlikely to respond well to Israel formally ending a two-state policy. In short, while any American administration will always be Israel’s top concern, it is never the only one.

And even if it were, the fact is that nobody – neither in Israel nor here – actually has any concrete idea what a Trump administration’s Israel policy will be. The panoply of conflicting signals and statements from Trump and his advisers on topics such as the wisdom of pursuing an Israeli-Palestinian peace deal, whether the American embassy will be moved to Jerusalem, or if Israel is at fault for the current impasse or if it is only the Palestinians, means that predictions about what Trump will support or tolerate are speculative at best. While I’d say that he will take more rightwing positions on Israel were I forced to bet, I also think it is safe to say that he does not have deeply held ideological beliefs on the subject. If, for instance, Trump wants to get Sunni buy-in on a Syria policy that effectively strengthens Iran and the price in return is cracking down on Israeli building over the Green Line (an unlikely but not impossible scenario), is anyone confident that he won’t sacrifice his Israel policy for a more pressing regional priority? If Israel commits itself to a policy in the West Bank that is even more encouraging of building anywhere and everywhere – or moves toward outright annexation – on the assumption that Trump will not pose an obstacle, it may find itself in a deep hole with no way out. Avigdor Lieberman seems to recognize the potential danger, urging his government to strike a deal with Trump that allows building inside the blocs while freezing it everywhere else rather than build everywhere with abandon, but there is no indication that any other coalition members have the same presence of mind.

Just as there is no way of knowing what comes with Trump, there is no way of knowing what comes after Trump. Given the radical departure that President Obama represented from the Bush era, and the radical departure that President-elect Trump represents from the Obama era, and the seemingly permanent hunger of the American electorate for change from whatever currently reigns in Washington, it is reasonable to assume that the 46th president will have very different views from the 45th. If Israel builds so much in the West Bank over the next four – or possibly eight – years to destroy any possibility of a contiguous Palestinian state, it might find itself under fire from the next president from day one. Shutting off the possibility of changing course when there is a new administration is foolhardy.

Then there’s the inconvenient fact that the majority of American Jews are rigidly opposed to Trump, and it creates an awkward situation if the Israeli government treats Trump as its long-awaited savior when most American Jews view him with extreme distaste. This is not to say that Israel should exhibit any disdain for Trump; it must have the best relationship with any U.S. president that it can. But there is a difference between staying on Trump’s good side and anointing him as the second coming of Cyrus the Great. If Israel cares a lick about the opinions of the 76% of American Jews who did not vote for Trump and views American Jews as an important national security asset for Israel, it will not embrace Trump in a bear hug.

Were I the Israeli prime minister, I would use Trump’s ascent to the presidency as an opportunity to reset the foundation of the relationship with my most important and only irreplaceable ally. The Netanyahu government should make the most out of the fact that there will certainly be less public conflict and disagreement with Trump than there has been with Obama to reinforce how valuable Israel is as an intelligence and military partner, and to reinforce to American Jews that the U.S.-Israel alliance rests on democratic values and ideological affinity above all else. Seizing on Trump’s willingness to look the other way on settlements and thus plowing ahead with a narrow domestic political agenda will be squandering a larger space to think strategically about Israel’s geostrategic position, and will inevitably lead to negative consequences down the road.

Nobody should be naïve about what is likely to happen next. Talking about two states, the peace process, and a resumption of negotiations as remotely imminent given the two governments about to be in place borders on delusion. It is also important to note that this is not solely a Trump-related phenomenon; measures such as the Amona-related settlement legalization bill, despite the Washington Post’s strange framing of it as being spurred directly by the election, have been in the works for months. This does not mean giving up making the case again and again for why two states are necessary, but expectations have to be properly calibrated. Nevertheless, the Israeli government should think long and hard before taking the plunge toward using a Trump presidency to kill two states for good. Things that seem too good to be true almost always are.

Anatomy of a Dispute

October 7, 2016 § Leave a comment

The American and Israeli governments are in the midst of the latest chapter of their ongoing dispute over West Bank settlements, with the spark this time being Israel’s announcement of its solution to the problem of Amona, an issue about which I wrote last month. The solution, such as it is, is to build a new neighborhood in the settlement of Shilo consisting of 98 new houses for the residents of Amona, which the Israeli government insists is simply building on empty land within the current municipal boundary of an existing settlement, and the U.S. government insists is the creation of a brand new settlement and runs contrary to assurances from the Netanyahu government that it would not build new settlements in the West Bank. Consequently, the Obama administration issued an unusually harsh condemnation on Wednesday, while the Israeli Foreign Ministry and various ministers fired right back on Thursday. All of this comes on the heels of the recently concluded $38 billion ten year military assistance MOU between the two countries, and in the middle of rampant speculation as to what the White House will do (or not do) regarding the peace process or settlements on its way out the door.

The tragedy here is that this dust up could have and should have been easily avoided with some more measured moves on both sides. The Israeli government has a problem, which is that it needs to evacuate these settlers who are living in a settlement that was illegally built on private Palestinian land, but it is constrained by a coalition that cannot countenance any policies that appear to be selling out the settlers or limit Jewish settlement in the West Bank. The U.S. government also has a problem, which is that it has taken a tough line with regard to Israeli settlement activity and cannot sit silently by as Israel announces new settlement construction in a place that is outside any conceivable boundaries of what Israel will annex under a permanent status agreement, but also does not want a high profile fight with Jerusalem in the midst of a presidential election and so soon after the successful MOU negotiation.

The solution to this lies in the plans that have been developed by the Commanders for Israel’s Security, and in measures for which I have previously argued. Shilo is a clear example of a settlement that is beyond the security barrier, has not been proposed by Israel to be retained under any round of peace negotiations, and will eventually be evacuated. There is no earthly sensible reason to move the Amona settlers there, since it only complicates the situation down the road and is guaranteed to raise hell from the U.S., the E.U., and nearly every international observer. But if the Israeli government were to take the commanders’ advice and complete the security barrier while renouncing all territorial claims to land beyond it, then it could move the Amona settlers to one of the bloc settlements on the west side of the fence. This would abrogate the need to build new housing in a place that is literally closer to Jordan than it is to the Green Line, make it clear that Israel’s intentions are not to gobble up as much of the West Bank as possible, and still mollify coalition partners by keeping the settlers in a settlement. Concurrently, the U.S. government could recognize that not all settlements are equal, that saving its fire for settlement construction exclusively in places like Shilo rather than equally condemning construction in places like Ramat Shlomo inside the Jerusalem municipality might actually lead to better outcomes through creating a different set of incentives, and ensure that a contiguous Palestinian state in the West Bank remains a possible outcome.

Is this a perfect solution? Not at all. I would much rather see the Amona residents move to Jerusalem or Tel Aviv. But clearly what’s happening now is not working, and the politics both in the U.S. and Israel make more drastic measures from both sides impossible. Amona should never have been built in the first place, and this entire mess should never have gone this far. But even so, if Israel were to act a bit smarter and not kowtow so far to the right, and the U.S. were to keep an eye on the long game rather than sweat the relatively small stuff – even when the small stuff is legitimately infuriating, as it is in this case – then everyone would be a lot better off.

Your Guide to Settlements and Ethnic Cleansing

September 13, 2016 § 6 Comments

Prime Minister Netanyahu stirred up a cocktail of controversy on Friday when his latest attempt at creating a viral video did not get the reception he anticipated. In the two minute clip, Netanyahu opened by saying he was perplexed by the charge that “Jewish communities” in the West Bank are an obstacle to peace since it is clear that Arabs living inside Israel are not an obstacle to peace. He then alleged that the sole precondition the Palestinian leadership has demanded for a future state is that it be free of Jews, which he said is an example of ethnic cleansing. He went on to criticize this demand as outrageous, criticize the world community for not finding this outrage to be outrageous, and firmly state that those who say that Jews cannot live somewhere should think through the implications. Since the video has provoked responses all over the map from the right, the left, the Israeli opposition, and the U.S. government, here is your concise and handy guide to Jews in the West Bank, ethnic cleansing, and what Netanyahu is up to.

Netanyahu is right. It is outrageous that a future Palestinian state won’t allow any Jews to live in the West Bank! Yes, it would be if that were the case. If an independent Palestine forced out all of its Jews and barred any Jews from living there, it would certainly be a textbook case of ethnic cleansing, and there is no defensible argument to construct such a policy.

What do you mean, “if that were the case” – haven’t Palestinian leaders said there will be no Jews allowed? Nope. Netanyahu was in all likelihood referring to Mahmoud Abbas’s statement in 2013 that he would not accept the “the presence of a single Israeli – civilian or soldier – on our lands” in the aftermath of an Israeli-Palestinian final status agreement. As Matt Duss helpfully points out, PLO leaders have explicitly said that Jews are welcome to live in a Palestinian state while categorically ruling out Israelis living in settlements where they maintain their Israeli citizenship. To put this into some perspective, this would be like a presidential candidate saying that Syrian Muslims are welcome to come and live in the U.S. so long as they are not living in extra-territorial enclaves that are sovereign Syrian territory and they are subject to the laws and authority of the U.S. Makes sense, right? A presidential candidate would be on much shakier and more discriminatory ground if he, say, I don’t know, ruled out all Syrian Muslims entirely just because they are Syrian Muslims. Now, it is certainly possible – and even likely – that there are members of the Palestinian leadership who have said they would bar all Jews, Israeli citizens or not. Given the way that the Old City of Jerusalem was administered while under Jordanian control between 1948 and 1967, or the calls from various quarters to ban Jews from the Temple Mount entirely today, there is certainly some precedent that warrants suspicion. But given the public record of Abbas’s comments, it is clear that he was referring to Israelis living in Palestine as Israeli citizens under Israeli sovereignty. So much like Netanyahu’s rhetorical excess back in October regarding Haj Amin al-Husseini and the Holocaust, once again his imprecision with pesky little details has cost him some credibility.

So it comes back to settlements? Indeed it does. Note Netanyahu’s rhetorical sleight of hand in the video, where he begins by talking about Jewish communities in the West Bank, and then pivots to talking about Jews writ large. It is one thing for Israel to absorb the large settlements blocs into Israel proper once an agreement is signed, but it is quite another for Israel to maintain settlements that are in Palestinian state territory, that are only open to residents who are Jewish, and that are Israeli sovereign territory guarded by Israeli soldiers. That is what Netanyahu was actually arguing for in the video and positing that there is no reason that such an arrangement should be an obstacle to peace, when the reality is that describing it for what it actually is, as I have above, demonstrates precisely what an enormous problem it is. If Palestinians who before 1948 lived in territory that is now part of Israel wanted to come back and live in their old houses but as Palestinian citizens subject to the law and authority of the government of Palestine, they’d be dismissed out of hand, and rightly so. Once a permanent status agreement is signed, the Israeli government should make every conceivable effort to persuade settlers to relocate to Israel and provide compensation for them to do so, which will likely result in the evacuation of the overwhelming majority of settlers. Any settler who greets the IDF with violent resistance should be arrested and immediately moved out of the West Bank. But any peaceful, law-abiding settler who is willing to renounce Israeli citizenship and wants to remain in his or her home should absolutely be allowed to do so, but only as citizens of Palestine under the jurisdiction of the Palestinian government. In other words, settlers are fine; settlements are not.

So why would Netanyahu put out a video like that? This brings us to the essence of Netanyahu, which is that he subsumes all policy goals to political ones. There is a reason that Netanyahu has provoked the wrath and scorn of nearly every general and intelligence chief who has served under him. Why negotiate a new defense package when you have maximum leverage when you can instead shore up your rightwing base at home by giving a speech before Congress instead? Why keep an extremely competent and respected and supremely qualified defense minister during the midst of a wave of violence – and following an Iran deal that you say has put Israel at greater risk – when you can enlarge your coalition and neutralize an ultranationalist foe by making him defense minister despite a pitiful lack of qualifications? In this case, Netanyahu was coming off the debacle of shutting down train repairs on Shabbat in order to mollify his Haredi coalition partners and then having the public squarely blame him for putting politics ahead of soldiers trying to get home for the weekend, and then facing down polls that show Yair Lapid’s Yesh Atid party besting Netanyahu and Likud were an election to be held now. On top of that, the polls show Likud losing ground to its farther right coalition partner Habayit Hayehudi. In this instance, the obvious move for Netanyahu was to say something controversial that would fire up the rightwing base, provoke rebukes abroad, and thus benefit Netanyahu even further as he rails against foreign interference and vows to stand up to those who would smear Israel and try to discriminate against Jews. I’d be surprised if Netanyahu anticipated quite the depth of the pushback that he would face, but this is all part of his domestic political calculations.

So in conclusion, I agree 100% with the principle that Netanyahu espoused, namely that it is outrageous bigotry to prevent Jews from living in the West Bank. Unfortunately, in this instance Netanyahu was not speaking theoretically, and everyone should see through the smokescreen that he constructed in order to use anti-Semitism as a cover in defending settlements.

Opining On Outposts

September 8, 2016 § 2 Comments

In 2011, the Israeli High Court ruled that Migron, an outpost in the West Bank built without government approval on private Palestinian land, had to be dismantled. After the government ignored the court order and instead worked out an agreement with Migron’s residents that delayed the evacuation, the court stepped in again and ordered Migron evacuated before the deadline that had been agreed upon with the settlers. The Israeli government complied, but rather than end the Migron experiment entirely, it simply moved Migron slightly to the south, where it would now sit on state land, and retroactively legalized its status.

Were Migron an isolated incident, it would be bad enough. But as the current fights over Amona and Netiv Ha’avot – two other unauthorized outposts ordered to be demolished by the High Court – make clear, the story of Migron is the rule rather than the exception. Just like with Migron, Amona is slated to be torn down at the end of the year but the government is planning on relocating it a few hundred yards away and retroactively approving it as an authorized settlement. The fight over Netiv Ha’avot is only just beginning as the High Court ruled last week that it had to be demolished and could not be retroactively legalized, but given the parade of ministers who vowed to prevent its destruction, there is no doubt Netiv Ha’avot will live on. It is critical to understand what is taking place in these unauthorized outposts and to recognize the “solutions” for just how damaging they are, since they are critical to a key talking point that Prime Minister Netanyahu uses when speaking to foreign audiences and point to just how malleable rule of law is within Israel.

While there is controversy over any and all Israeli settlement activity in the West Bank, Israel has attempted to deal with the contested legality of settlements in general by establishing rules and processes for determining when Israeli law deems a settlement legal or not. The two main components that a settlement requires to be legal in Israel’s eyes are government approval in a formal planning and authorization process, and being built on land that is not privately owned by Palestinians. The outposts, which number in the hundreds, violate both of these requirements, which is why the High Court continues to order their demolition. Yet, either because the orders are ignored, the state retroactively legalizes the construction,  or the outposts are relocated to the closest parcel of state land, once an outpost goes up it almost never disappears. Even though outposts do not, by definition, have formal government approval, they are often supported by government officials and ministries.

Migron, for instance, was funded by the Housing Ministry at the behest of then-Minister Yair Rafaeli despite never having been formally approved or planned. The best way to understand how outposts get built, evade government efforts to tear them down, and manage to leverage political support and connections to tie up the bureaucracy and keep expanding, is not by reading the news but by reading Assaf Gavron’s 2014 novel The Hilltop, which is an engrossing work of fiction but also a cutting analysis of the dynamics that allow illegal outposts to thrive.

And as Isabel Kershner’s recent New York Times article on illegal outposts makes clear, they are indeed thriving, as the Israeli government retroactively legalizes them and does everything in its power under Israel’s legal system to let them stay. I am not someone who thinks that the presence of a few caravans on isolated hilltops makes it impossible to create a fair and contiguous Palestinian state, but I still think that the largest spotlight possible needs to be shined on this process for a variety of reasons.

First, one of Netanyahu’s favorite rhetorical devices is to note that Israel has not built any new settlements during his current run in the prime minister’s office. He uses this fact to shut down criticism of Israeli settlement activity and as proof that it is only the Palestinians, and not he, who are the real obstacles to achieving a two-state agreement, and when he trots it out before sympathetic or uninformed audiences, it is an effective trick. The trick is that while it is technically and narrowly correct, it ignores the fact that Israel under Netanyahu’s – and his predecessors’ – watch may not be authorizing brand new settlements, but the government doesn’t have to when it can just take the illegal ones that exist and make them legal. The more that interested observers get the sleight of hand at work, the less Netanyahu will be able to make unsubstantiated claims that muddy the waters.

Second, and more substantively important, the process of making illegal outposts legal is devastating to a two-state solution, not because the outposts themselves are such an obstacle but because they point to just how hard it will be for Israel to undertake the big moves that will be necessary down the road. If the government cannot commit to evacuating tens of settlers living in caravans and tents, what will happen when it agrees to evacuate thousands of settlers living in stone structures, like in Kdumim or Shilo or even Ariel? These outposts are a test of the government’s will, and it almost always fails the test miserably. If settlers can establish a community in contravention of Israeli law, clash with the IDF, repel government efforts to make them evacuate, refer to politicians and IDF commanders as Nazis, dictators, and enemies of Jews (all of which routinely happens), and still draw support from ministers and face little worse than having their homes picked up and relocated just yards away, then I wish the government good luck in working up the courage to move tens of thousands of settlers out of the West Bank who actually followed the rules.

Third, the process of dealing with illegal outposts shows how the rule of law in Israel can be more dependent on whom you are than on what you do. When Israeli Jews build illegally in the West Bank, the government has to be dragged kicking and screaming by NGOs who file lawsuits before it takes an action, and that action more often than not is to legalize what was illegal. When Palestinians build illegally in the West Bank – something that they are often forced into by circumstance as Israel issued only one building permit for Palestinians in Area C in 2014 and issued zero in 2015 – their homes are not retroactively legalized or relocated to Area B on the state’s dime, but are torn down. When Defense Minister Avigdor Lieberman announced that he was going to comply with the order to tear down Amona, he made sure to add that he was going to comply with the order to tear down the Palestinian village of Susya as well, which seems defensible on its face since the same rules should apply to everyone until you consider that Israel is going to rebuild Amona right next door while the residents of Susya are more likely going to have to fend for themselves.

In the greater scope of things, a tiny illegal outpost deep in the West Bank is irrelevant compared to the problems presented by places like Givat Hamatos or Givat Ze’ev, neighborhoods that do indeed make a contiguous Palestinian state with access to East Jerusalem overwhelmingly difficult. But these outposts matter because of what they say about the Israeli government and its willingness to give in to extremists and small interest groups at the slightest hint of political pressure. In many ways, as the fate of these outposts go, so goes the fate of the two-state solution.

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