Welcome to the Jungle

January 19, 2017 § Leave a comment

With tomorrow’s inauguration of Donald Trump as the 45th president of the United States, Israel is entering an era of uncertainty unseen to this extent since 1967. It is not only Trump’s ascent to the presidency – expertly broken down by my colleague Ilan Goldenberg – that is causing so much ambiguity for Israel’s future; the Trump presidency is coinciding with two other variables whose outcomes are unknown, and the combination of the three together makes predicting Israel’s path forward with regard to its relations with the U.S., with the Palestinians, and with the rest of the world very difficult.

Trump’s Israel Policy

While there has been no shortage of guessing – including by yours truly – as to what Trump’s policies toward Israel and in relation to the Israeli-Palestinian conflict will be, the truth of the matter is that nobody actually knows. While Trump has actually been consistent, if simplistic, on other foreign policy issues – protectionism, questioning NATO’s contribution to global and American security, a less antagonistic relationship with Russia, for example – on Israel he has sent conflicting signals.

On the one hand, he is quite obviously seduced by the idea of making what he calls “the ultimate deal” and solving the Israeli-Palestinian conflict, and has spoken about the need to be seen as a “neutral guy” on Israel in order to command the Palestinians’ trust as a mediator. He has announced his intention to appoint Jared Kushner as his Middle East peace envoy because he views Kushner as uniquely suited to get the two parties to an agreement. On the other, he has taken actions that will make his stated goal of reaching a deal harder and possibly call it into question entirely, from supporting relocating the American embassy from Tel Aviv to Jerusalem to removing any mention of the two-state solution from the GOP platform.

On the one hand, he has nominated Rex Tillerson and Jim Mattis to serve as his secretaries of state and defense, and neither of them is associated with rightwing policies on Israel. In particular, Mattis has talked about the damage the Israeli-Palestinian conflict does to American interests in the Middle East and has squarely cast the blame on settlements for the impasse between the two sides. On the other, David Friedman is as rightwing and hawkish on Israel issues as any nominee to serve as Trump’s ambassador to Israel could possibly be, and Jason Greenblatt – Trump’s new envoy for international negotiations – has stated that he does not view settlements as an obstacle to peace in any way, and looks askance at the two-state solution as unwise and impractical.

There is no way of knowing at this point which of these competing impulses will win out. The main takeaway, however, is that the Israeli government has no way of knowing either, making any sudden moves fraught with danger. If, for instance, the Israeli government moves ahead with Bezalel Smotrich’s plan to annex Ma’ale Adumim, it may meet with a green light from the Trump White House, or it may be met with opposition from the White House and the State and Defense Departments. This is the genesis of the disagreement between Naftali Bennett, who wants Israel to quickly move ahead with annexation plans and formally abandon the two-state solution, and Avigdor Lieberman, who wants Israel to work out an agreement with the U.S. that would allow building in the blocs while freezing construction outside of them, similar to the plan developed by the Commanders for Israel’s Security. Whichever direction Israel moves in, what is certain is that it cannot be sure what the consequences, if any, will be.

Netanyahu’s Future

The second uncertain variable is the investigations into Prime Minister Netanyahu and how they will be resolved. Either Case 1000 – the allegations that billionaires Arnon Milchan and James Packer supplied the Netanyahu family with hundreds of thousands of dollars worth of cigars, pink champagne, flights on private jets, luxury hotel stays, and the use of posh vacation residences in return for favors from the prime minister – or Case 2000 – the allegations that Netanyahu and Yedioth Ahronoth publisher Noni Mozes conspired to reduce rival newspaper Yisrael HaYom’s circulation in return for more favorable coverage of Netanyahu in Yedioth – have the potential to end in Netanyahu’s indictment. Whether or not they result in indictments or end with no charges filed, they are creating gridlock while they are ongoing. The talk of early elections that has sprung up overnight is partially because other politicians smell blood in the water, but partially because a prime minister under such serious investigation is limited in what he can carry out. Until the situation is resolved, Israel’s political system is in a state of limbo.

If Netanyahu is ultimately charged, it is difficult to see how he will manage to stay in power rather than being forced to resign as the Likud and coalition MKs abandon him. Should Netanyahu step down – voluntarily or otherwise – it will not, however, mean the end of the political chaos. Netanyahu has purposely cultivated a leadership vacuum underneath him, from chasing away serious challengers to his primacy on top of Likud – Moshe Ya’alon, Gidon Sa’ar, and Moshe Kahlon being the most prominent recent examples – to not appointing a deputy prime minister underneath him. Should Netanyahu suddenly be whisked away from the scene, who will replace him is entirely unclear. New elections will not resolve the uncertainty either; the current polls indicate that Yair Lapid and Yesh Atid would receive the most seats in Knesset, but would be unable to put together a coalition unless the Haredi parties and Lapid are able to bridge their seemingly unbridgeable differences. This would mean a repeat of 2009, when Kadima and Tzipi Livni won the elections, but after weeks of futile attempts at creating a government, Netanyahu was left standing as prime minister instead. While this makes for great news for political junkies, it does not make for stability in Israel’s policymaking.

Palestinian Leadership Transition

The third uncertain variable surrounds Mahmoud Abbas and the Palestinian leadership. While Abbas’s actions make clear that he is going to serve as the Palestinian president and head of the PLO until he dies, that could happen at any moment given his age and proclivity for chain smoking, and who will replace him is a complete black box. The recent Fatah Central Committee elections and conference sidelined Muhammad Dahlan and all of his allies while empowering Jibril Rajoub and Marwan Barghouti. Rajoub is well placed in terms of controlling the relevant institutions and organs of power but does not have much popularity or legitimacy with the Palestinian public, while Barghouti is enormously popular with the public but is sitting in HaSharon prison serving out multiple life terms for orchestrating the terrorist murders of Israelis. Furthermore, it is possible that when Abbas is gone, no single person will hold the reins of power but that it will be more of a politburo, or that the roles of Palestinian Authority president, PLO chief, and Fatah leader will be separated.

The stakes involved for how this gets resolved are enormous for a number of reasons, not least of which is that the single biggest factor preventing the resumption of mass organized Palestinian terrorism from assaulting the streets of Israeli cities is the robust cooperation between Israel and the Palestinian security forces. The PA security cooperation with Israel is immensely unpopular, and to Abbas’s credit, he has not wavered in his commitment to continuing it, even if his reasons for doing so are not entirely altruistic. But there is no guarantee that whomever comes after Abbas will evince the same commitment; in fact, in a protracted leadership fight, one of the easiest ways to win public support will be to pledge to end security coordination with Israel. The negative consequences should this happen cannot be overstated, and thus Israeli officials are watching with bated breath to see how the post-Abbas period will play out. Unfortunately, the answer to that question is as unclear as can be.

The irony of all this is that Israel is entering this era of uncertainty on so many political fronts when its security has never been more certain. The conventional threats from neighboring states has evaporated; the Iranian nuclear threat has been deferred – though certainly not eliminated – in the estimation of Israel’s military and intelligence brass; the borders with Gaza and Lebanon have been unprecedentedly quiet for a variety of reasons from effective Israeli deterrence to the Syrian civil war; and organized terrorism (as opposed to lone wolf attacks) is at its lowest point since before the Second Intifada. Yet on the political and diplomatic fronts, the status Israel’s relationships with the U.S., the wider international community, the Palestinians, and Diaspora Jewry have rarely been so murky. While all may turn out fine in the end, Israel should be prepared for a period of potential upheaval.

Elor Azaria and the System

January 4, 2017 § 2 Comments

There are two common responses to Elor Azaria’s manslaughter conviction by the military court today for fatally shooting an incapacitated terrorist in Hebron. One common response is that Azaria is a victim of the system; if you place 18 year old soldiers in a crucible where they must make split-second life and death decisions while facing down terrorists, you should not hold them responsible when things go wrong. Another common response is that Azaria is representative of the system; if you have militarily occupied a territory for five decades while suppressing the occupied population’s nationalist aspirations, then criminal abuses are a feature rather than a bug. There are elements of truth to both of these positions, but the obvious feature that they both share is that they fall back on “the system” to explain what has happened and to argue for their preferred outcome. The focus on the system is important, but it cannot and should not be the sum total of the story in the Azaria saga.

From one perspective, the Azaria conviction shows that the system works. When Azaria was first arrested after the shooting, there was widespread fear on the left that a whitewash would occur. Given the rush of nationalist politicians to defend his actions and visit his family to reassure them that he would not be abandoned – including Prime Minister Netanyahu, who famously called Azaria’s parents to promise them that their son would be treated fairly – the fear was not unfounded. This fear was magnified when Azaria was charged with manslaughter rather than murder despite plenty of evidence that his killing of Abdel Fattah al-Sharif was plotted as an act of revenge rather than an act of misperceived self-defense. Azaria’s lawyers mounted his defense by indicting Azaria’s commanders and the entire military apparatus as part of a conspiracy to cover up the fact that he actually acted properly, and they were bolstered by a public campaign to turn Azaria into a hero. While IDF Chief of Staff Gadi Eisenkot and former Defense Minister Moshe Ya’alon strongly cautioned against treating Azaria as a model soldier and decried viewing him as a scapegoat or martyr, the amount of pressure going the other way was overwhelming. Nonetheless, the court today not only unanimously convicted Azaria of the manslaughter charge, but also delivered a forceful statement in spending three hours reading out the verdict and emphasizing that this was not a close or borderline case. One cannot maintain in the face of the Azaria trial that the rule of law does not exist in Israel.

From another perspective, the Azaria conviction shows just how broken the system is. Azaria was captured on tape fatally shooting a wounded and unarmed Palestinian terrorist fifteen minutes after he was first taken down by another soldier – about as open and shut a case with documentary evidence that exists – and yet the outcry surrounding his arrest and trial was monumental. According to the Israeli NGO Yesh Din, there have been 262 investigations of Palestinian fatalities caused by the IDF in the West Bank and East Jerusalem since 2000, and only 17 of those have resulted indictments. It is easy to understand why after observing the uproar surrounding this particular case. More disturbingly, that Azaria has not only been defended so vigorously in the court of public (and ministerial) opinion but has been lionized as a symbol of what is right with Israel points to dark days ahead. Demonstrators on Wednesday outside of military headquarters where the verdict was delivered chanted, “Gadi be careful, Rabin is looking for a friend,” implying that Eisenkot would be deserving of assassination should Azaria be convicted. That a soldier in an emotionally tough situation who shoots and kills an unarmed assailant is worthy of praise – not sympathy, but praise – and that his supporters view him as a paragon of virtue is bad enough. That he is a vehicle by which the IDF chief of staff and the judges who tried him are threatened with death is reprehensible and a sign that part of Israel has seriously lost its way. Judge Maya Heller, who delivered the verdict today, appears more like someone with her finger in the dike unsuccessfully trying to hold back a tidal wave of overwhelming floodwaters than like Joseph Welch shocking a country back to its senses.

What the Azaria trial says about the system, however, cannot be the last word. Making this solely a story about the success or failure of a system of Israeli policy in the West Bank or a system of Israeli rule of law is a path to disaster. There is no doubt in my mind that what Israel asks of its 18 and 19 year olds is an impossible task. There is equally no doubt in my mind that a heavy Israeli military presence in a place like Hebron – and place that must be visited in person to understand just how soul-crushing the situation there is – guarantees that even the best 18 and 19 year olds will act in reprehensible ways. Neither of these observations should be used to absolve anyone of individual responsibility for his or her actions. Once you take this tack, then chaos and anarchy reign supreme. If every soldier who encounters a violent Palestinian knows that he can wrongfully shoot and claim being a victim of “the system,” it will unleash unspeakable violence while also rending Israeli society in two to an irreparable degree. If every incident of wrongful killing or abuse of Palestinians in the West Bank is met with a larger demand to investigate why Israel is in the West Bank at all, it will similarly create an environment in which there is no incentive for individuals to act with caution or compassion.

This is why the effort already underway to pardon Azaria, championed not only by the prime minister and other government ministers such as Naftali Bennett, Miri Regev, Aryeh Deri, and Yisrael Katz, but also by opposition figures such as Shelley Yachimovich, is a dangerous development. It sends the wrong message about the obligations of soldiers to act legally and humanely and creates a terrible set of incentives through institutionalizing moral hazard. It also validates those who have been treating Azaria as a soldier who acted appropriately but has been scapegoated by the system, while tarnishing the part of the system – the rule of law – that actually worked and has come out of this incident unscathed. But more importantly, it makes this all about the system itself. Do not discount what Elor Azaria did himself, no matter how bad or unfair the situation was in which he found himself. It turns Elor Azaria into a black and white proxy for whether Israel can do no right or Israel can do no wrong, when the reality is far grayer.

UNSCR 2334

December 27, 2016 § 16 Comments

In the wake of United Nations Security Council Resolution 2334, there are two points that need to be emphasized. The first has to do with the resolution itself, the second with how we got here and where it will lead. Both are important, and it is impossible to completely understand either in isolation.

Point one is that UNSCR 2334 is a deeply flawed resolution that should not have passed and that will only make matters worse. This is not because Israel should get the benefit of an American veto no matter what it does, or because settlements are little more than a distraction from the real issues. It is because this particular resolution laid out a line regarding settlements that the overwhelming majority of Israelis do not and cannot accept, treating the Jewish Quarter of the Old City and Amona as one and the same. It is because it made absolutely no mention of the fact that one of the two territories that will make up a Palestinian state is controlled by a terrorist group that poses a far larger obstacle to a permanent solution than any single Israeli settlement. It is because it betrayed a complete and total misunderstanding of the state of Israeli politics and created an immediate incentive for this Israeli government to build anywhere it wants with total abandon. It is because it provided succor to the BDS movement, which is not interested in altering Israeli behavior but in altering Israel itself. It is because it offended Jews across the globe by treating Judaism’s holiest site as occupied territory. To put it bluntly, when expanding the Western Wall plaza is deemed an illegal and illegitimate act of an occupying power, something has gone way off the rails. That this resolution was more balanced than previous ones does not make it objectively balanced, and to assert that anyone who opposes it is ipso facto a shill for settlements misses the reasons why it is problematic.

Contrary to many people whom I respect who have argued that this will be the first step in halting Israeli settlement activity and putting the two-state solution on a firmer footing, I believe the opposite will be the case. By not adopting a policy that distinguishes between settlements, the incentives now run the wrong way. This is an Israeli government that is ideologically committed to building in the West Bank, but were the United States and the broader international community to institute a system by which Israel could build unfettered within the blocs – contingent upon Israel laying down hard borders defining the blocs absolutely – in return for a complete and total freeze outside of them, it would do more to enshrine two states than any UN resolution or sanction could possibly accomplish. The plan from Commanders for Israel’s Security to complete the security barrier and freeze all construction to its east is as wise a policy as exists. If such an understanding were reached and Israel violated it, I would be all for coming down on the Israeli government like a ton of bricks.

Instead, the net effect of what this resolution actually did is to convince Israelis that the world is out to get them no matter what they do, and provide a fresh tailwind to hardline efforts led by Habayit Hayehudi and much of Likud to annex Area C outright. After all, if Gilo and Alon Shvut are no different than Ofra, why bother to make any distinctions at all and suffer a domestic political cost? The countdown has now officially started not only toward a serious push to annex much of the West Bank, but also toward Israel building in previously untouchable places like E-1 and Givat Hamatos. Once that happens, we really will have crossed the Rubicon absent an enormous upheaval. The passage of this resolution makes that crossing a lot closer than it was before Friday.

Point two is that you can inveigh against President Obama all you want, but the one who actually owns this debacle is Prime Minister Netanyahu. If you truly want to be upset at someone, direct your ire at him. When he says that Israel had a commitment from the U.S. for diplomatic protection, he is right, but he entirely elides the reality that this is not a blank check that exists in perpetuity irrespective of changed circumstances. Let’s leave aside for a moment the terribly inconvenient fact that before Friday, Obama was the first post-1967 U.S. president to never allow a resolution targeting Israel to get through the Security Council, making the claims of this being unprecedented utter tripe. When Obama vetoed a similar resolution in 2011, it was before Netanyahu publicly said that there would be no Palestinian state on his watch; before Netanyahu created a governing coalition comprised of a majority of MKs who are on record as opposing two states; and before Netanyahu rhetorically supported and voted for a Knesset bill legalizing illegal West Bank construction that his own attorney-general denounced as violating both Israeli and international law. In Netanyahu’s estimation, is there any line at all that he could cross that would nullify an American commitment to wield its veto on Israel’s behalf? The extremely flawed resolution itself now allows Netanyahu to issue jeremiads against those who would try and remove a Jewish connection to the Western Wall, but it is not Israel’s presence in the Jewish Quarter that led to this move at the UN. Netanyahu brought his country to this point, either never believing the myriad warning signs he received or knowing that this was coming and thinking that it did not matter. Either way, it gives him the ignominious distinction of presiding over a disastrous diplomatic failure that was entirely predictable and entirely avoidable.

Furthermore, this episode reveals the hollowness of Netanyahu’s arguments about Israel’s place in the world. After spending years touting lines about Israel never being less isolated, how the world cares about Israeli high tech to the exclusion of anything it does in the West Bank, and that mutual interests over countering Iran and fighting Islamist terrorism make the conflict with the Palestinians irrelevant, it turns out that the joke is on the prime minister. Look at the countries that voted in favor of this resolution – not abstained like the U.S. did, but actually voted in favor. Egypt, which is supposed to be Israel’s close regional ally and a country about which we are told that fighting ISIS and the Muslim Brotherhood together with Israel outweighs everything else. Great Britain, which under the Conservative leadership of Theresa May was supposed to be Israel’s great supporter in Europe. Russia, which allegedly cares more about purchasing Israeli drones than about anything Israel is doing with regard to two states. China, which also supposedly does not care about the Palestinians but only wants to increase trade ties with Israel and benefit from Israeli ingenuity. All 14 countries that cast votes on Friday cast them the same way. All of these countries, counted upon as some of Israel’s closest relations, stated loudly and clearly that they will not compartmentalize settlements and Palestinian issues from their larger dealings with Israel. That is a fact, and no amount of Netanyahu spin about Start-Up Nation and desalination plants can change that.

Netanyahu’s statement on Sunday calling the vote “the swan song of the old world” and heralding a new era in which a heavy price will be exacted by Israel against countries that oppose its policies could not possibly be more obtuse. You have to seriously lack a semblance of self-awareness to issue a statement like that. This is not a blip on the radar, and it will not be an isolated event should Israel continue down its current path. As rightly proud as Israelis and many American Jews are of Israel’s economic successes and military strength, it is not a world power and it cannot afford to behave like one. Threatening countries like Senegal and Ukraine while studiously avoiding eye contact with China and Russia is the hallmark of a paper tiger, and does not make Israel look any stronger coming out of this episode.

The Israeli government simply cannot have it both ways. Either you get to do what you like, the rest of the world be damned, but you accept the consequences of your actions, or you recognize that no action is taken in isolation and you change your behavior to avoid the consequences even if your principles dictate otherwise. Netanyahu has to choose which road he wants to tread. The choice seems like an obvious one to me, but even for those who disagree, do not make the mistake of thinking that Netanyahu and Israel do not have to choose. Be angry about the UN’s moral bankruptcy and be frustrated with the Obama administration’s myopic decision making; I share those sentiments. But no matter what, if you take one thing away from UNSCR 2334, it must be that the mantra of “settlements don’t matter” is an apocryphal myth. In the real world, actions have consequences.

Lessons From Israel on the Politics of Intelligence

December 15, 2016 § 1 Comment

The extraordinary battle that is currently unfolding between President-elect Donald Trump and the intelligence community is unprecedented in the United States. While undoubtedly presidents and the CIA are not always on the same page – and presidents have certainly come to regret relying on CIA assessments that turned out to be inaccurate – the outright dismissal of intelligence agencies by the soon-to-be commander in chief is a first. The ideal situation in democratic countries is for intelligence agencies to be divorced from politics so that political considerations do not interfere with intelligence assessments and intelligence agencies are not tempted to wield their significant power in the political sphere. In picking a very public feud with the CIA, Trump is playing a dangerous game, and looking to Israel yields some clues as to where this skirmish may go as Israel has more experience with the fusion of politics and intelligence than the U.S.

The first lesson from the Israeli experience is that intelligence agencies are able to constrain the policies of an elected leader with whom they do not agree. The infamous but not widely remembered Lavon affair of 1954 is a prime example. Prime Minister Moshe Sharett initiated peace talks with Egypt out of a desire to use it as a stepping stone to a wider regional peace, but in doing so he ran afoul not only of his predecessor David Ben Gurion, but also of hardliners within military intelligence. A large portion of both the military and intelligence establishments were skeptical that any deal could be struck with Egypt and were particularly wary of the surging Egyptian nationalism championed by Egyptian president Gamal Abdel Nasser. In the midst of the negotiations, Israeli military intelligence – possibly at the behest of Defense Minister Pinhas Lavon or possibly at the behest of the head of Israeli military intelligence – planned a false flag operation to set off bombs in Cairo in an attempt to sow chaos and convince the British to remain in Egypt, thereby delivering a blow to Egyptian nationalist aspirations. The plot was exposed, but the damage was already done; Sharett’s outreach to Nasser was successfully thwarted, his term as prime minister was short lived, and the renewed Israeli hardline policy toward Egypt later contributed in part to the 1956 Suez crisis. In this case, Israeli intelligence actively set a course different from that of the Israeli prime minister and won, which is a lesson that Trump may want to keep in mind as he appears determined to set a more conciliatory policy toward Russia while the intelligence community unanimously views Russia as harmfully meddling in American internal affairs.

The lesson from Israel regarding intelligence agencies thwarting an elected politician’s priorities is sharpened if intelligence officials believe that they are being marginalized or mistreated, which is where the comparison to what Trump is doing is particularly germane. Rather than reaching back into the history of the mid-20th century, there is a contemporary Israeli case upon which to draw. The debate in Israel during Prime Minister Netanyahu’s first term of his current tenure about whether the IDF should attack Iranian nuclear facilities was conducted under the enormous shadow of the well-known and unsettlingly public dispute between Netanyahu and his military and intelligence chiefs. IDF chief of staff Gabi Ashkenazi, Shin Bet head Yuval Diskin, and Mossad director Meir Dagan were all vigorously opposed to a strike on Iran while Netanyahu and Defense Minister Ehud Barak argued in favor. That there would be a dispute between the elected political leadership and the appointed security leadership is not an uncommon or unreasonable phenomenon. However, when Dagan felt that Netanyahu was ignoring the Mossad’s conclusions about the prospects of an Iranian bomb – the Mossad believed that it was not imminent while Netanyahu was insisting in speeches that Iran was about to go nuclear – he took his concerns public in a way that was meant to paint Netanyahu into a corner. On Dagan’s last day on the job, he briefed a group of Israeli senior journalists to hammer home how big of a mistake he believed Netanyahu was making in forcing a confrontation with Iran, and then upon retiring made a series of speeches in which he dubbed a strike on Iran “the stupidest idea” he had ever heard. Dagan’s successor, Tamir Pardo, continued Dagan’s legacy of constraining Netanyahu on Iran, publicly declaring that Iran was not an existential threat and that people used that term too loosely; this was the thinnest of thinly veiled barbs directed at Netanyahu, who was describing Iran in precisely such a way.

But there is a corollary to this, which is that intelligence agencies that try to impose their will on political leaders may find themselves undermined at the first opportunity. This can take the form of micromanaging intelligence officials themselves, but it can also take the form of casting aspersions on the entire intelligence apparatus as biased or suffering from misguided views. Netanyahu and his political allies have done this with regard to the Shin Bet over its alleged blind spot with regard to the Palestinians, disparaging former Shin Bet chiefs who warn of the dangers of a continuing Israeli presence in the West Bank as delusional leftists. In this case, it is not a set of analytical conclusions that have been challenged, but the competence of Shin Bet heads more broadly. As the current coalition chair David Bitan said this past summer about Dagan and a host of former Mossad and Shin Bet chiefs, “Something happens to you over the years in these positions…over the years the heads of Shin Bet and Mossad become leftists.” This quote will sound familiar to those who have been listening to Trump dismiss the CIA wholesale and insist that because it was mistaken about Iraq’s weapons of mass destruction it must be mistaken about Russia over a decade later. In addition, as a result of his past clashes with Dagan, Pardo, Diskin, and others, Netanyahu has made sure that the current intelligence chiefs are people with whom he had close ties prior to their appointments and who are less likely to challenge him. This is one of the reasons that the ever-present friction between Netanyahu and the IDF brass no longer seems to invade the intelligence sphere. It is a reminder that intelligence agencies may win battles with their political overseers, but oftentimes the politicians will make those agencies pay for it down the road.

The upshot of all this is that keeping a country and its citizens safe and formulating successful national security policies is far harder when the politicians and the intelligence professionals are waging a war not against a common external enemy but against each other. In Israel’s case, the perception that Netanyahu and the intelligence community are in opposition undermines confidence in both, and will likely lead to greater and potentially disastrous interventions of the political arena in the intelligence arena and vice versa. Let’s hope that Trump and those in his circle realize the dangers associated with confronting the U.S. intelligence apparatus so that the same mistakes born out of the Israeli experience can be avoided.

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.

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