by Caroline B. Glick
True champions of law should demand the American president end his administration's contempt for the US's actual — rather than imaginary — legal obligations
US President Barack Obama consistently couches his demand that Israel prohibit Jewish people from constructing or expanding our homes and communities in Jerusalem, Judea and Samaria in legal-sounding language. Obama has called settlements "illegitimate." And he has said that Israel "has obligations under the road map," while referring disparagingly to "settlements that, in past agreements, have been categorized as illegal."
Secretary of State Hillary Clinton and Obama's Middle East envoy George Mitchell have repeatedly uttered similar statements.
By characterizing its demand that Israel prohibit Jews from building homes in Israel's capital city and its heartland as a legal requirement, the Obama administration portrays Israel as an international outlaw. After all, if building homes for Jews is a crime, and Israel is not prohibiting Jews from building homes, then Israel is at best guilty of enabling a crime to take place, and at worst, it is a criminal state.
It makes good political sense for the Obama administration to make its case against Israel in this fashion. According to a survey of US public opinion published in early 2006 by the Boston Review, whereas only seven percent of Democrats support going to war to spread democracy — versus 53 percent of Republicans; 71 percent of Democrats — versus 36 percent of Republicans — support going to war to help the United Nations "uphold international law."
What this poll shows is that for Obama supporters, the idea that Israel should be treated poorly because Israel is in breach of international law resonates deeply.
The problem with the Obama administration's characterization of a ban on Jewish building in Jerusalem, Judea and Samaria as an Israeli legal obligation is that Israel has never taken upon itself a legal obligation to prohibit such building activities. Israel has never signed an agreement that has characterized any Jewish communities as "illegal."
Moreover, both former prime minister Ariel Sharon's chief of staff Dov Weisglass and former president George W. Bush's deputy national security advisor for the Middle East Elliot Abrams have gone on record stating that Sharon's much vaunted decision to curtail Jewish building in Judea and Samaria, (never Jerusalem), in line with the road map negotiating framework was based on a series of explicit understandings with the Bush administration that spelled out the scope of Jewish building that Israel would maintain for the duration of the peace process. As Abrams wrote on Thursday in the Wall Street Journal, "Not only were there agreements, but the prime minister of Israel relied on them…"
Then too, since the road map was approved as a mere government decision — as opposed to an international agreement — the Netanyahu government has no legal obligation to actively advance it. Indeed, if it wishes, it can abrogate Israel's acceptance of the document at any time simply by calling for another vote.
More importantly perhaps from the Obama administration's perspective is that the road map itself lacks the force of international law. Although it was adopted by the UN Security Council, it was not adopted as an internationally binding document under Chapter VII of the UN Charter. Consequently, Israel has no international legal obligation to end Jewish construction in Judea and Samaria or Jerusalem. Like the US, Israel is a signatory to the 1976 International Convention for Civil and Political Rights, which among other things prohibits all forms of discrimination against people on the basis of religion and nationality. Consequently, Israel is barred from discriminating specifically against Jews who wish to build homes on legally controlled lands in Judea and Samaria. As a binding treaty, this convention takes precedence over the non-binding road map. Indeed, given the road map's prejudicial position on Jewish building it can be reasonably argued that the road map itself calls for a breach of international law.
Finally, there is always the claim made by Israel's critics that Jewish communities located beyond the 1949 armistice lines are illegal by dint of the Fourth Geneva Convention from 1949. That Convention prohibits an occupying power from transferring parts of its population to occupied territory. Legal authorities have long disputed whether this Convention is applicable to Judea and Samaria, but even if it is applicable, according to Prof. Avi Bell from Bar Ilan University Law School, it "only proscribes state actions."
Bell explains, "The Fourth Geneva Convention does not purport to limit in any way what individual Jews may or may not do on their legally held property or where they may or may not choose to live."
Whereas upon examination it is clear that the Obama administration is wrong in insinuating that Israel is in breach of its international legal commitments through its refusal to bar Jewish construction in Judea, Samaria and Jerusalem, the Obama administration's own policy towards the Palestinians places it in clear breach of both binding international law and domestic US law.
On September 28, 2001, the UN Security Council passed binding Resolution 1373. Resolution 1373, which was initiated by the US government, and was passed by authority of Chapter VII, committed all UN member states to "refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts."
Resolution 1373 further required UN member states to "deny safe haven to those who finance, plan, support, or commit terrorist acts or provide safe haven" to those that do.
In 1995 the US State Department acknowledged that Hamas fits the legal definition of a terrorist organization. Today, due to its policies towards Hamas, the Obama administration is in breach of both Resolution 1373 — that is, of international law — and of US domestic law barring the provision of support and financing to foreign terrorist organizations. According to an internal State Department document cited Wednesday by the Atlas Shrugs website, the US has already transferred or is in the process of allocating $300 million dollars to Gaza through USAID and the International Committee for the Red Cross. Since Hamas controls "humanitarian" organizations in Gaza, and Hamas has openly and repeatedly stolen "humanitarian aid," there is little doubt the transfer of funds to Gaza constitutes indirect assistance to Hamas and is therefore prohibited by Resolution 1373 as well as by domestic US statute.
The Obama administration is further in breach of international and domestic US law due to its attempts to coerce Israel into opening international passages between Israel and Gaza to enable trade and commerce with Hamas-controlled Gaza and to end or curtail travel restrictions for people between Gaza and Israel. Resolution 1373 stipulates that all states must "Prevent the movement of terrorists or terrorist groups by effective border controls." Given the fact that the Gaza side of the border is controlled by a terrorist organization, any significant relaxation of Israeli border controls puts Israel at risk of facilitating the movement of terrorists and permitting direct and indirect support to terrorists.
So too, Resolution 1373 requires all states to "Ensure that any person who participates in the financing, planning, preparation or perpetuation of terrorist acts or in supporting terrorist acts is brought to justice." Yet rather than calling on Israel to arrest all persons working with Hamas and operating in its territory, the US itself pledged $900 million to rebuilding Gaza. Moreover, it is demanding that Israel allow the importation of dual use materials like cement into Gaza which will enable Hamas to rebuild its infrastructures that were destroyed during Operation Cast Lead. It is also attempting to coerce Israel into transferring cash to Hamas-controlled banks in Gaza.
Then too, as Dan Diker reported in a study published by the Jerusalem Center for Public Affairs, US-supported Palestinian Authority Prime Minister Salam Fayyad recently acknowledged that the US-financed PA continues to pay the salaries of Hamas terrorists.
Multiple news reports in recent days have indicated that the Obama administration is working to facilitate the establishment of a Palestinian government that will include Hamas. US efforts to legitimize the incorporation of a terrorist group in a Palestinian government are a severe violation of US and international law. This is the case since it would clearly involve aiding a designated terrorist organization and helping to provide it with a safe haven.
Hamas itself is not the only terrorist organization to which the Obama administration is providing assistance — again, in apparent breach of international and US law. The administration is also aiding Hizbullah in various ways. Ahead of his June 4 address in Cairo, Obama met with members of the Egyptian Muslim Brotherhood at the White House. He also invited members of the Muslim Brotherhood to be present at his speech.
Shortly before the White House meeting, Egyptian legal authorities alleged that the Muslim Brotherhood provided material support to Hizbullah terrorists in Egypt. These Hizbullah operatives — and their Muslim Brotherhood partners — were allegedly engaged in a plot to commit massive terrorist attacks in Egypt whose goal was the illegal overthrow of the government. That is, the Muslim Brotherhood was allegedly involved in a terrorist conspiracy led by Hizbullah -- a designated foreign terrorist organization. Furthermore, the plot was apparently hatched by Iran — which the US State Department has designated as state sponsor of terrorism.
By meeting with representatives of the Muslim Brotherhood suspected of providing material support to a designated terrorist organization, Obama was arguably illegally providing indirect assistance to Hizbullah — again in breach of Resolution 1373 and US domestic law.
Then there is the US's direct assistance to the Lebanese military. During the 2006 war between Israel and Hizbullah, the Lebanese military provided direct assistance to Hizbullah operatives in carrying out their illegal war against Israel. Since then, continued and expanding Hizbullah influence over the Lebanese military has been copiously documented. Consequently, by providing direct US military assistance — including weapons — to the Lebanese military, the US government is arguably in breach of Resolution 1373 and domestic US law.
Going back for a moment to the Palestinians, Hamas of course is not the only terrorist organization that is materially assisted by the Obama administration's policies. As Itamar Marcus and Barbara Crook wrote in the Jerusalem Post last month, the US is financing the construction of a Palestinian computer center named for arch Fatah terrorist Dalal Mughrabi who led the 1978 bus bombing on Israel's coastal highway in which 37 civilians including 12 children and US citizen Gail Rubin were murdered.
As Marcus and Crook note, the 2008 US Foreign Operations Bill bars US assistance to the Palestinians from being used "for the purpose of recognizing or otherwise honoring individuals who commit or have committed acts of terrorism."
Obama, the former law professor, never tires of invoking international law. And yet, when one considers his policies towards Israel on the one hand, and his policies towards illegal terrorist organizations on the other, it is clear that Obama's respect for international law is mere rhetoric. True champions of law in both Israel and the US should demand an end to his administration's contempt for the US's actual — rather than imaginary — legal obligations.
Caroline B. Glick is the senior Middle East Fellow at the Center for Security Policy in Washington, DC and the deputy managing editor of The Jerusalem Post.
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