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Kerry’s Swan Song Hits Sour Note

Binyamin Rose

Israel mulls Judea and Samaria options

Wednesday, January 04, 2017

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John Kerry’s one-hour and 13-minute rant on Israeli settlements might have ranked as a filibuster had Israeli annexation of Judea and Samaria been on the secretary of state’s — and former senator’s — agenda.

While Israel need not worry about Kerry after high noon on January 20th, Israel is facing a tipping point in 2017, the 50th anniversary of the recapture of its Biblical heartland.

How does a responsible Israeli government proceed, lacking both a credible Palestinian negotiating partner and the capacity to defy the international community, especially in the wake of UN Security Council Resolution 2334?

One proposal under Knesset consideration would extend Israel’s sovereignty to 60% of Judea and Samaria where 90% of the Jewish settlements are located and where Jews outnumber Arabs by a four-to-one margin. The other 40% would remain under military control.

Whatever formula lawmakers create, Israel should avoid the temptation of a one-sided decision, and should seek an internal consensus, says Dr. Mordechai Nisan, a retired lecturer in Middle East studies at Hebrew University. Speaking at an event Motzaei Shabbos before Ribonut, a grassroots group that advocates applying Israeli sovereignty to Judea and Samaria, Dr. Nisan said many intellectuals on the left have already accepted that Israel is in firm control of Judea and Samaria, despite the left’s decades-long campaign for withdrawal to the pre-June 1967 lines. “So what’s required now is for the political leadership and opinion makers on the right to convince the center-left to draw the conclusions that we have already drawn, and that we should now move a step forward,” Dr. Nisan said.

That’s not going to be easy, considering the recalcitrant and unrepentant left exercise sovereignty over most major media outlets. Also, any Israeli move toward sovereignty could provide a pretext for the UN to level sanctions against Israel.

However, if history is any guide, Israel once took a similar gamble, and won.

In December 1949, the UN was ready to pass a resolution confirming a clause in the partition resolution of November 1947 to internationalize Jerusalem under UN trusteeship. Prime Minister David Ben-Gurion preempted that step by declaring Jerusalem as Israel’s capital.

Dr. Nisan warns that today’s international climate is far more complex. In those days, US aid to Israel was not a factor. Today, Israel is dependent on the US for military aid. Back then, Europe needed the Marshall Plan to revitalize it from the ravages of World War II. Today, the European Union marshals its political power to take an antagonistic stance toward any continuing Israeli presence, military or civilian, across the green line.

Even Donald Trump’s strong expressions of support for Israel, his appointment of a pro-settlement ambassador, and the EU's political decay may not be enough to embolden Netanyahu to follow Ben-Gurion’s path. “Ben-Gurion’s decision on Jerusalem took an act of courage, but beyond any ideological commitment, the Netanyahu government obviously has to consider the complications and ramifications of such a move,” said Dr. Nisan, in a follow-up interview the morning after his presentation.

Many of those ramifications are domestic, including a potentially explosive reaction among the Palestinians, Jordanians and Egyptians.

“I’m not suggesting they have a veto on what Israel should decide, but if they would react with violence and terrorism, this is something Israel would have to take into account,” Dr. Nisan said.

Much will also depend on how Israel spins any decision it makes. Currently, most media reports, even in the right-wing press, are talking annexation.

Eugene Kontorovich, a professor at Northwestern University School of Law, and head of the international law department at the Kohelet Policy Forum in Jerusalem, says neither annexation, nor the application of sovereignty, are precise concepts. Annexation means enlarging a country’s borders, and does not necessitate applying its laws to the new territory. Sovereignty means governing that territory under existing laws without expanding borders.

“You can do one without the other, or you can do both,” Dr. Kontorovich says. “The term annexation is inappropriate for Judea and Samaria. You can’t annex something that you already own. And we already have sovereignty. We’ve been governing it under military law and what’s being talked about here is ending military law.”


That being the case, wouldn’t it also be more politically correct for Israel to tell the world it wants to end its military rule over the West Bank?

“Of course,” Dr. Kontorovich says. “It sounds nicer, it’s descriptive and doesn’t involve making claims about the sovereign status of the territory one way or another.”

Utilizing such terminology might spare Israel the consequences of a poorly-devised declaration of sovereignty, which could also backfire demographically. The left is still politically shrewd. In return for its acquiescence to annexation, liberal Israel might demand that the state grant citizenship to the more than one million West Bank Arabs, thus fulfilling their vision of equality for both Jews and Arabs. “That we can’t allow,” Dr. Nisan says.

There are a few ways around that thorny dilemma, he says, including an offer of resident status to the Arabs of Yehuda and Shomron (much like the Arabs of East Jerusalem); permit some applications for citizenship under rigorous terms while encouraging their migration east of the Jordan River.

“We want to save Yehuda and the Shomron for the Jewish people to secure the Jewish homeland,” Dr. Nisan says.

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