Monday, April 26, 2010

Their weapons are the lawsuit (900 and counting against the IDF alone)



by William Mehlman


Their weapons are the lawsuit (900 and counting

against the IDF alone): the "fact-finding" mission,

the international arrest warrant, the academic

boycott, the apartheid charge.


Even were one to accept Prime Minister Netanyahu's "bottom-line" assurance that his shutdown of Jewish housing construction in Judea and Samaria is a "one-time step for a limited time period," or that now "hooked," the Israeli fish is ever going to be let off the hook by Obama & Global Associates, the bedrock damage done to the Jewish State's most fundamental legal cover by this act could well be irreparable.


The first and most immediate casualty of the "freeze" is the July 1950 "Law of Return," characterized by then- Prime Minister David Ben-Gurion as "the unchanging law of Jewish history, reflecting the principle whereby the State of Israel was established." At the heart of Israel's raison d'etre, it cast in concrete the universal Jewish right of citizenship and settlement in Israel. The language of the law, moreover, is quite specific. In prescient anticipation of changes in the contours of Israel, it deliberately does not confine the right of Jewish settlement to "Medinat Yisrael," the "State of Israel" as it existed in the summer of 1950, but. rather extends it to "Erez Yisrael," the "Land of Israel," wherever and however future events might define the parameters of the "National Jewish Home."


Given that the exercise of the right of settlement in "Eretz Yisrael" is contingent on the availability of places to live, the government's ban on housing construction (however "limited") in Judea and Samaria, the heartland of "Eretz Yisrael," renders that right and the law underlying it essentially meaningless. Beyond that, the government's action widens the shadow over the status of 120 Jewish communities in Judea and Samaria, all of which draw their legitimacy from the same legal wellspring.


Even more ominous than its marginalization of the Law of Return is the can of worms the government may have opened in its outright snub of the 1948 "Area of Jurisdiction and Powers Ordinance." It would be a grave error to let its cumbersome title obscure the impact of this ruling on Israeli history, avers Howard Grief, attorney, constitutional scholar and legal adviser to the late Professor Yuval Ne'eman, Minister of Energy in the Shamir government. Embodied in the September, 1948, "Land of Israel Proclamation," the Jurisdiction and Powers Ordinance officially recognized all laws applicable to the State of Israel as applicable with equal force to "any area of Palestine" that came under the authority of the Israel Defense Forces. It was under that umbrella that Israel settled and populated major portions of the Negev and the Galilee-not allocated to the Jewish State in the 1947 UN Partition- that came into its possession in the 1948-49 War of Independence.


The Israeli Left needs occasional reminding that those lands are part and parcel of what it anctimoniously refers to as "Israel proper." It was also in part as a result of the Jurisdiction and Powers


Ordinance that Israel saw itself within legal bounds in creating 142 Jewish communities in Judea, Samaria and Gaza and additional communities on the Golan Heights, territories that fell to the IDF in the Six-Day War. None of them, needless to say, were allocated to Israel under the Partition. Israel may consider itself fortunate if new challenges to its territorial status do not ensue from the fresh openings it has provided its worldwide legion of enemies and ill-wishers.


If amidst concerns over Ahmadinejad's centrifuges, Hezbollah's rockets and the mass murderers being set free in exchange for Gilad Schalit, Israel needs to worry about the deference it pays to 60 year old laws, it's because it is in the courts, the agencies of the UN and other international bodies and among a phalanx of well funded, intensely hostile NGOs that the battle for the survival of the Jewish State is being played out. The suicide bombers have been replaced by lawyers and lobbyists. Their weapons are the lawsuit (900 and counting against the IDF alone): the "fact-finding" mission (UN and ad hoc); the international arrest warrant and "universal jurisdiction statute" (arrests and trials of Israeli military and public figures anywhere, any time); the petition, the initiative, the academic boycott, the apartheid charge-all directed toward the single aim of delegitimizing the Jewish State. The targets are no longer buses and coffee shops, but the legality of Israel's presence on its land and its sovereign right to defend that land and its people.


On this battlefield, no mistake can prove more costly than ignoring the law of unintended consequences, as Netanyahu appears to be doing with this "freeze." Nothing more painfully illustrates that fact than Israel's 2000 middle of the night abandonment of its anti-terrorist stronghold in south Lebanon (along with its South Lebanese Army ally of 18 years) and its unilateral evacuation and destruction of 22 Jewish communities in Gaza. The first gave sinew to the then fledgling Iranian terrorist proxy Hezbollah, for which

the Jewish State was repaid six years later with 4,000 Katyusha rockets over Haifa and the Galilee.


Today, as a well equipped army with 15 times that number of rockets, it threatens a major retaliatory response to any Israeli strike at Iran's nuclear installations. The unintended consequences of Ariel Sharon's handover of Gaza to Hamas continue to wind themselves like a steel daisy-chain around Israel's throat. From this single most irrational act by any government in the state's 61-year history ensued a four year rocket bombardment of the western Negev, the termination of which required a full-scale IDF air and ground offensive into Gaza, causing minimal but inevitable casualties (lovingly documented by a hostile media) among the civilians behind whom the Hamas terrorists shielded their dirty work. This resulted in near universal condemnation of Israel as a heartless human rights violator, a charge underwritten and codified in the damning Goldstone Report, soon to be featured at the UN Security Council. The campaign to strip Israel of its right of self-defense against a terrorist organization pledged to its destruction has exceeded the wildest imaginings of its planners.


What have the legal potholes Netanyahu has dug for himself with the freeze availed him? Precious little at this counting. They have no more taken Barack Obama "off his back" than has his embrace of the "two-state solution." "The Americans drove me nuts," he was quoted by Ynet to have confessed to a meeting of Likud branch members. "They wanted more, also in Jerusalem." In addition to concessions on Jerusalem, moreover, the White House, according to Jerusalem Post columnist Caroline Glick, is demanding that Israel allow the Palestinian "Security Forces," equipped and trained by U.S. General Keith Dayton, to set up shop in Judean and Samarian areas currently under full IDF control and that Israel "surrender land to Fatah in the strategically crucial Jordan Valley."


The Hebrew daily Yediot Aharonot further reports that as a precondition to talks with the Palestinians, President Obama will be asking Israel to formally declare its acceptance of a Palestinian state in Judea, Samaria, Gaza and eastern Jerusalem and agree to cleanse those areas of all Jews. "So far from winning American support, or at least causing the White House to ease its bullying," Glick concludes, Obama regards Netanyahu's "decision to implement a militarily irrational, bigoted policy of prohibiting Jews from building in Israel's heartland as a drop in the bucket."


From Mahmoud Abbas, the prime minister has gotten a complete brushoff. Yet, his flat rejection of "peace talks" unless the construction freeze is extended to include Jerusalem, is raising few eyebrows. The "President" of the Palestinian Authority can hardly be seen as less demanding than Israel's selfappointed masters in Washington. Former Mossad chief Ephraim Halevy, for one, is not surprised. Like all of America's past promises of "reciprocity" from Abbas in return for Israeli concessions and "gestures," he asserts this one also runs aground on the thorny fact that Abbas is "incapable of being a partner to peace negotiations." The guy Obama really needs to accomplish that purpose, Halevy submits, is someone Mahmoud Abbas is not and will never be - "a Palestinian leader acceptable to all the Palestinians."


International applause for the moratorium has also been notably absent. Secretary of State Hillary Clinton's hopes for a joint declaration of support from America's "Quartet" partners, Russia, the European Union and the UN, were dashed by Moscow's reservations to two items in the text proposed by Washington: an acknowledgement of the "Jewish identity" of the State of Israel and that the dividing line between Israel and a future Palestine would be determined by developments on the ground, including the anticipated Israeli annexation of major settlement blocs.


What the prime minister's accession to the freeze certainly did achieve was almost uniform settler denunciation and a deep but at present not unbridgeable rift within the Likud sector of the cabinet. Ministers Silvan Shalom, Gilad Erdan, Moshe Kahalon. Yuli Edelstein and Limor Livnat were unanimous in their condemnation of the decision, with Livnat declaring that "we have fallen into the hands of a horrible U.S. administration" and Erdan refusing to provide inspectors from his Environmental Protection

Ministry to help enforce the freeze. Shalom, a late convert to the "Land of Israel" movement, declared that if the Likud was now abandoning its championing of the settlement enterprise, such a turnabout would have to be deliberated by the party's institutions.


At least three of the "Security Cabinet" members who voted 11 to 1 to back Netanyahu on the freeze (Minister Uzi Landau of "Yisrael Beteinu" cast the lone dissenting vote) were experiencing varying degrees of buyer's remorse. Stung by an avalanche of "Stop Work" orders on the settlements, propelled by Defense Minister Ehud Barak within hours after the announcement of the moratorium, Minister of Strategic Affairs Moshe Yaalon told the Hebrew weekly Makor Rishon that he was particularly disturbed by the blanket manner in which the decision was being implemented. "It was not intended to be an overall freeze of all construction," he said. "This is not what we meant. Whatever was already being built and approved should have continued to be built." He vowed to quit the government if the moratorium was not lifted after 10 months. Joining Yaalon in a request to Netanyahu that he rein in an overly zealous Barak, Minister Without Portfolio Benny Begin promised that the end of the moratorium would see a resumption of housing construction in Judea and Samaria "at a faster pace than before the freeze." Likud Central Committee Chairman and Communications Minister Moshe Kahalon caustically noted that "the U.S. did not send us flowers," while the Europeans were "unilaterally declaring east Jerusalem to be the Palestinian capital."


As for the settlers, a column in the Hebrew daily Ha'aretz by the paper's chief political correspondent Yossi Verder entitled "Worst of All Worlds," seemed to say it all: "If Tsipi Livni were in power today," Verder opined, "she would not have had the courage to freeze construction. And if she had, she would have been left without a government because Shas and Yisrael Beitenu (her prospective coalition partners) would have walked. Netanyahu, however, can do what he wants." Verder touches on a key point in that last sentence, because for all the grousing among the Likud cabinet members and the Likud Knesset caucus as a whole, not one of the senior members has risen to lead a revolt, nor have any of them attacked the prime minister directly. They are not ready to bring this government down-at least not yet.. Virtually all of their anger has been vented at Barak, the leader of a fractured, diminishing, unpopular Labor party. However emotionally satisfying, that expedient may have limited shelf-life. All of which raises an intriguing question: When push comes to shove, as it inevitably will when Obama demands that he acquiesce to the division of Jerusalem ("One Capital for Two Nations"), in order to lure or keep Mahmoud Abbas at the bargaining table, will Netanyahu, faced with a revolt that must bring his premiership crashing to earth, finally stand his ground, or might he do something else? The "something else" scenario initially posed by Verder and now gaining increasing traction, is that the Prime Minister, flushed with the momentum of a perceived  diplomatic "breakthrough" on the Palestinian or Syrian "track," might-a la Ariel Sharon in 2005-split the Likud, taking a required one-third (but probably more) of the faction with him, and join forces with

Barak and his nine "loyalists" (none of whom would presumably cavil at deserting a drowning Labor party $40 million in debt) and, with a bunch of Tsipi Livnihating Kadima defectors in tow, cobble together a new "centrist" Likud. Verder believes Barak has been banking on just such a turn of events "from the moment he entered the government. A government of 'B's'-Bibi and Barak-may be his last opportunity to succeed Netanyahu as prime minister," Verder argues. As for Netanyahu, Verder says nothing about the man would surprise him: "Since taking office less than a year ago, Netanyahu's principles and declarations of the past have been put to the test repeatedly and each time a new reality emerges victorious."


Is such a scenario within the realm of possibility? If we are to credit MK Ophir Pines-Paz, one of the four Labor "rebels" who have fought the party's entry into the Likud coalition from the outset, a variation of it could be in the making. Pines-Paz related to Verder the details of a meeting he recently had with an unidentified Likud cabinet minister. In the course of the conversation, Pines-Paz says, he was "suddenly asked" what he thought about Likud and Labor running on a joint list in the next election, but with each party retaining an autonomous existence. Queried as to the genesis of the idea, the Likud minister said it was put to him by Netanyahu. He said he told Netanyahu he could live with it. Knowing Netanyahu, he added, he didn't think the prime minister would have broached the subject "if something wasn't cooking." Pines-Paz tossed the idea around with several of his colleagues and "not one of them fell off his chair."


Be that as it may, it could be a signal for the rest of the country to fasten its seat belt.


William Mehlman is AFSI's representative in Israel..

Copyright - Original materials copyright (c) by the authors.


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