Analysis from Israel
There’s a straight line connecting leftists’ rejection of the settlements’ legality with rightists’ rejection of the indictments against Israeli Prime Minister Benjamin Netanyahu.

One of the modern era’s most dangerous problems is the conflation of politics with law. Political questions are increasingly treated as legal ones, which inevitably results in the law becoming politicized. Last week provided two salient examples.

One was the response to the U.S. State Department’s announcement that Israeli settlements don’t violate international law. What was striking was that many opponents didn’t actually challenge the department’s (correct) legal conclusions. Instead, they objected on policy grounds.

Democratic presidential candidate and former vice president Joe Biden, for instance, complained, “This decision harms the cause of diplomacy, takes us further away from the hope of a two-state solution, and will only further inflame tensions in the region.” Another leading Democratic candidate, South Bend Mayor Pete Buttigieg, termed the announcement “a significant step backward in our efforts to achieve a two-state solution.”

Rabbi Rick Jacobs, president of the Union for Reform Judaism, was particularly blatant. While acknowledging that the decision focused solely on international law, he worried that it “will be widely read as a broader change to the U.S. position on Israeli settlements,” which “would place serious and critical obstacles to a viable two-state solution.” Consequently, he urged the administration “to reverse its position.”

Essentially, all three want the settlements declared illegal simply because they think settlements are bad policy, regardless of what international law actually says. In other words, they’re incapable of distinguishing policy from law.

People who understand this difference have no problem with settlements being recognized as legal because they understand that something can be bad policy even if it’s legal. Indeed, that’s precisely what all administrations, both Republican and Democratic, did for roughly three decades between Jimmy Carter and Barack Obama: They vehemently opposed settlements on policy grounds while simultaneously acknowledging that they weren’t illegal.

Yet the concept of “it’s legal, but it stinks” has evidently gone out of style, especially on the left. When leftists think something stinks, they want it declared illegal, even if it’s not.

The advantages of this tactic are obvious. Policy questions, by definition, are disputable; indeed, many people disagree that settlements are bad policy. But law ostensibly eliminates controversy because once the courts rule something illegal, then everyone is supposed to accept that it must stop. Thus branding any policy one opposes as illegal is meant to make it politically illegitimate. If settlements are illegal, they mustn’t be built, even if they’re actually good policy.

Granted, this ploy has an inherent problem when it comes to international law since there are no recognized courts whose authority to make such judgments is universally accepted. Neither America nor Israel, for instance, ever agreed to accept the legal interpretations of the International Criminal Court, U.N. agencies or any other such body. And without an accepted arbiter, whether or not something violates international law is endlessly debatable.

But the bigger problem is this tactic’s enormous cost, which far outweighs any possible benefit: When people start branding anything they object to as “illegal,” they turn the law into just another player on the political battlefield. And once that happens, legal decisions will be treated with no more respect than any other political pronouncement.

Thus Americans who object to recognizing the settlements’ legality on policy grounds are destroying any pretensions that international law might have to objectivity and impartiality, just as the European Union did by insisting that international law requires labeling products from Israeli settlements, but not from Turkish settlements in northern Cyprus or Moroccan settlements in Western Sahara. In both cases, international law is being treated not as an objective, universally applied standard, but as a selective political tool to punish disfavored countries or policies. And as such, it deserves no more deference than any other political decision.

Given how amorphous international law actually is, that may be no great loss. But when the same tactics are applied to domestic legal systems, the consequences become devastating. Once a significant portion of the citizenry starts to view legal decisions as politics in another guise, the consensus on which democracy’s survival depends—that legal decisions must be honored—will rapidly erode.

As I’ve noted before, this is already happening in Israel. But last week’s indictment of Israeli Prime Minister Benjamin Netanyahu provides a particularly worrying example of the costs.

I’m the rare Netanyahu supporter who thinks that one of the three cases against him is actually serious. But for two understandable reasons, many supporters believe that he’s simply being persecuted by a leftist legal establishment frustrated by repeated failures to oust him through democratic elections.

The first is that the Attorney General’s Office and the courts have intervened in literally thousands of policy decisions over the past three decades, frequently in defiance of actual written law and almost always in the left’s favor. In short, both bodies have routinely behaved like political activists rather than impartial jurists. So rightists have no reason to trust their impartiality now.

Second, Netanyahu has been targeted by frivolous investigations—including, in my view, two of the three now going to trial—ever since he first became prime minister in 1996. All involved genuinely repulsive conduct on Netanyahu’s part. But rather than treating such conduct as a problem on which the public, rather than the courts, must render judgment, the legal establishment repeatedly opened cases against him, to which they devoted countless man-hours before finally closing them.

Now, the legal establishment says it has finally found a real crime. But like the boy who cried wolf, Netanyahu’s supporters no longer believe it.

The combination of these two factors means that many Israelis genuinely feel that their prime minister has been ousted by a corrupt legal establishment solely because it opposes his policies. And that will inevitably foster even greater distrust of the legal system.

Leftists spend a lot of time these days fretting about democracy’s possible collapse. But if they really want to avert such a collapse, the first step is to stop politicizing the law, so that legal institutions can regain public trust. For without a legal system whose decisions are widely respected, democracies will be left with no way of resolving disputes but the one shared by dictatorships and anarchies—plain old-fashioned brute force.

This article was originally syndicated by JNS.org (www.jns.org) on November 27, 2019. © 2019 JNS.org

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Finally, a peace plan that takes Resolution 242 seriously

Ever since the Trump administration published its Mideast peace plan, critics have vociferously claimed that it “violates U.N. resolutions” and “challenges many of the internationally agreed parameters” guiding peacemaking since 1967. Nothing could be further from the truth. In fact, this is the first plan that actually relates seriously to the document every plan cites as the basis for those parameters: U.N. Security Council Resolution 242.

The resolution was adopted in November 1967, five months after Israel captured the West Bank, Gaza Strip, Golan Heights, eastern Jerusalem and Sinai Peninsula in the Six-Day War. But contrary to popular belief, it was carefully crafted to let Israel keep some of this territory by demanding a withdrawal only from “territories occupied in the recent conflict,” rather than “the territories” or “all the territories.”

As America’s then U.N. ambassador, Arthur Goldberg, later said, the omitted words “were not accidental … the resolution speaks of withdrawal from occupied territories without defining the extent of withdrawal.” Lord Caradon, the British ambassador to the United Nations who drafted the resolution, explained, “It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial.”

The reason was that, in the resolution’s own words, a “just and lasting peace” would require “secure and recognized boundaries” for all states in the region. But the 1967 lines (aka the 1949 armistice lines) did not and could not provide secure boundaries for Israel. As Goldberg explained, the resolution called for “less than a complete withdrawal of Israeli forces” precisely because “Israel’s prior frontiers had proved to be notably insecure.” And since Israel had captured these territories in a defensive rather than offensive war, the drafters considered such territorial changes fully compatible with the resolution’s preamble “emphasizing the inadmissibility of the acquisition of territory by war.”

But then, having successfully defeated the Arab/Soviet demand that Israel be required to cede “all the territories,” America abandoned its hard-won achievement just two years later, when it proposed the Rogers Plan. That plan called for an Israeli withdrawal to the 1967 lines with only minor adjustments (since nobody back then envisioned a Palestinian state, the West Bank would have returned to Jordan, even though Jordan had illegally occupied it in 1948).

This formula made a mockery of Resolution 242 because it failed to provide Israel with “secure boundaries.” Yet almost every subsequent proposal retained the idea of the 1967 lines with minor adjustments, even as all of them continued paying lip service to 242.

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