December 25, 2016

UN Security Council Vote– Yet Another Obama Foreign-Policy Debacle

by Hal Gershowitz

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Of Thee I Sing Heading Authors“So there should not be a shred of doubt by now — when the chips are down, I have Israel’s back.” (President Barack Obama, Washington, D.C., 3/4/12)

Well, that seems rather questionable.  Certainly, when the chips were down this past Friday, President Obama certainly didn’t have Israel’s back. Indeed, the long-rumored December surprise, turned out not to be rumor after all. Obama would have his petulant parting shot at Israeli Prime Minister Netanyahu with barely three weeks left in his Presidency. And while the UN vote condemning Israel’s settlement policy will have no practical effect on the ground, it is a major blow to the mid-section of America’s strongest and only reliable ally in the Middle East, and it gives enormous cover, even a degree of sanction, to the growing wave of anti-Semitism across Europe and the odious, equally, anti-Semitic campaign known as BDS (Boycott, Divest, and Sanction) movement roiling college campuses, public forums, churches and even some corporate boardrooms.

Equally troubling—it was a flat-out wrong and poorly conceived exercise in foreign policy. But then again, flat-out wrong and poorly conceived public policy has been rather endemic to the Obama Administration. We’ll discuss why we believe the UN vote was flat-out wrong a little further down in this essay. But first we’ll focus on the poorly conceived foreign policy decisions that have been endemic to this Administration.  First, there was the Arab Spring that offered a brief moment of hope for the Middle East that was squandered by feckless policy in Washington. Our hasty departure from Iraq, the mind-boggling, red-line bluff in Syria and the lead-from-behind, air-power, meddling in Libya with absolutely no ground game to deal with the aftermath led to one disaster after another and a leadership vacuum that the Obama anointed JV team, ISIS, has been only too happy to fill. Even in Afghanistan, where the Obama Administration committed 30,000 troops, President Obama simultaneously announced the date by which the troops would be withdrawn.

Then there was the Russian grab of Crimea, perhaps the greatest take-over of another sovereign’s territory since the Nazi’s marched into the Sudetenland in October 1938.  We did absolutely nothing meaningful about that, which probably signaled to Vladimir Putin that Russia could move back into the Middle East with impunity, which they wasted no time in doing…with impunity.

We won’t belabor the Iran Nuclear pact, other than to say the Obama Administration deep-sixed every positon we and the international community had previously taken forbidding Iran to develop Nuclear weapon capability. Iran now has a legal, ten-year glide path to joining the Nuclear Club, and they make no bones about their right and determination to do just that.  We even released the previously sequestered funds to help them do just that.

The Obama Administration’s publicly acknowledged policy has been to pivot away from the Middle East and to refocus America’s priorities on Asia. How’s that working out? China has been rapidly building military outposts including missile launch sites on disputed islands in the South China Sea, significantly boosting its presence in the already tense region, according to a Pentagon report released six months ago. Since announcing our “pivot,” China has invested in military programs and weapons designed to project power, and has begun shipping missiles to the recently constructed island military bases.

Now, let’s examine a bit more closely the Obama Administration’s decision to cast an abstaining vote at the Security Council last Friday which, of course, was the same as voting in favor of the resolution to condemn Israel.  The primary justification is that Israeli settlement construction (largely increasing housing units in existing settlements) hinders an eventual two-state solution to the Israeli-Palestinian dispute. Hog Wash!

Keep in mind, Israel did agree to a moratorium on any new construction while peace negotiations were on-going back in 2014, but those talks ended when the Palestinian Authority announced that it had concluded a secret agreement to form a unity government with Hamas, which has vowed never to agree to peace with Israel. The Palestinian Authority was pursuing its deal with Hamas unbeknownst to the Israeli negotiating team.

So, it is the existence of Israeli settlements, that cover about one percent of the West Bank, and which would require an equivalent transfer of Israeli land to a new Palestinian State if a peace agreement was ever concluded that the Obama Administration considers a hindrance to an eventual two-state solution.  One wonders what has really changed since Yasser Arafat walked out of the Clinton-sponsored Camp David talks in 2000 when Israeli Prime Minister Ehud Barak, essentially, agreed to all of the Palestinian Authority’s demands.  His reason? “I would be returning to my own funeral if I agreed to end the dispute with Israel.”

Israel faces Hamas to the South, Hezbollah to the North, and ISIS just across the Golan Heights and President Obama chooses this as the time to toss an ill-advised and unwarranted political grenade at the Israelis.

“Occupied” or “Disputed” territory?

There are two narratives about the so-called occupied territory, or, essentially, the land that has been in Israel’s hands since the 1967 six-day war. One narrative holds that the West Bank, the biblical Judea and Samaria, is occupied territory. The other narrative holds that the land is not “occupied territory”, but rather, “disputed territory” and, therefore, not subject to the Fourth Geneva Convention. The first narrative is widely embraced, and accepted by nearly all the world community. It is the convenient narrative. It shoehorns the territory into a legal definition that serves the interests of the current international milieu even if it doesn’t serve the interests of truth or justice.

The inconvenient reality is that the second narrative, the one that states the West Bank is “disputed territory” rather than “occupied territory” is, by any reasonable and emotionally detached reading, the far more applicable definition.

The Geneva Convention Relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians in a war zone. A reading of the history of this Convention makes clear that the thinking and the writing was informed by Nazi aggression during World War Two and the Nazi practice of forcibly transferring populations into and out of territory it controlled because of its conquests.  The Forth Geneva Convention is also directed at what the treaty refers to as “High Contracting Authorities” or, more plainly the representatives of states who have signed the treaty.

Here, in our opinion, the embrace of the Fourth Geneva Convention utterly fails. There simply is no “High Contracting Authority” that is a party to this dispute other than Israel.  There is not now, nor has there ever been a state called Palestine. This is territory that has been administered by the Crusaders, the Ottoman Empire, the British, the Jordanians, the Israelis, and the Israelis in conjunction with the Palestinian Authority. West Bank cities most sacred to Jews, such as Hebron and Jerusalem have been home to Jews throughout history and into the twenty-first century. In fact, Jews lived continuously in Hebron for thousands of years until they were banished, temporarily, by the Crusaders and massacred by local Arabs in 1929.  History is strongly on the side of the Israelis.

Arab opposition to Jewish settlements is based on the last paragraph of Article 49 of the Forth Geneva Convention. The “Occupying Power” may not “Deport or transfer parts of its own civilian population into the territory it occupies.”  It beggars the imagination to suggest that Israel, the only free and democratic country in the Middle East, used “deportation” and “forced transfer” of its own population into any territories, and no local Arabs have been forced from their communities since the six-day war.

The term “occupied territory,” which appears in the Fourth Geneva Convention, originated because of the Nazi occupation of Europe. Though it has become common parlance to describe the West Bank and Gaza as “occupied territories,” there is no legal basis for using this term in connection to the Arab-Israeli conflict.

Professor Julius Stone, a leading authority on the Law of Nations, categorically rejected the use of the term “occupied territory” to describe the territories controlled by Israel on the following counts:

(1) Article 49 relates to the invasion of sovereign states and is inapplicable because the West Bank did not and does not belong to any other state.

(2) The drafting history of Article 49 [Protection of Civilian Persons in Time of War] – that is, preventing “genocidal objectives” must be taken into account. Those conditions do not exist in Israel’s case.

(3) Settlement of Jews in the West Bank is voluntary and does not displace local inhabitants. Moreover, Professor Stone asserted: that “no serious dilution (much less extinction) of native populations” [exists]; rather “a dramatic improvement in the economic situation of the [local Palestinian] inhabitants since 1967 [has occurred].”

Professor Eugene Rostow, past Dean of Yale Law School, and US under Secretary of State for Political Affairs, and a key draftee of UN Security Council Resolution 242, concluded that the Fourth Geneva Convention is not applicable to Israel’s legal position and notes:

“The opposition to Jewish settlements in the West Bank also relied on a legal argument – that such settlements violated the Fourth Geneva Convention forbidding the occupying power from transferring its own citizens into the occupied territories. How that Convention could apply to Jews who already had a legal right, protected by Article 80 of the United Nations Charter, to live in the West Bank, East Jerusalem, and the Gaza Strip, was never explained.” It seems that the International Court of Justice never explained it either.

UN Security Council Resolution 242 recognized that Israel would not be expected to withdraw from all territory it controlled after Israel successfully defended itself in 1967. The entire concept of land for peace was at the heart of resolution 242. President Obama successfully killed the concept of land for peace with his abstention at the UN last Friday. Now, according to the Security Council resolution Israel, legally, has no land with which to bargain.

It seems this Obama raspberry may be one of the last and one of the most memorable things we’ll hear from this White House.

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2 responses to “UN Security Council Vote– Yet Another Obama Foreign-Policy Debacle”

  1. Judy says:

    His administration of which Hillary played a major roll is leaving us little to no negotiating power/leverage…. didn’t we all see this coming?

  2. Robert borns says:

    Excellent article. Thankfully trump not Hillary will be our next president. To bad so many American jews are so ignorant and will continue to oppose trump.

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