Analysis from Israel

Bipartisanship was the watchword at last week’s AIPAC conference, but it’s no secret that pro-Israel Democrats have trouble swallowing Israelis’ enthusiasm for President Donald Trump, whose approval rating in Israel hit 67 percent even before he decided to move the U.S. Embassy from Tel Aviv to Jerusalem. They can understand Israel’s joy over that decision. But they can’t understand its seeming disregard of Trump actions that harm Israel, like abandoning Syria to Iran and Russia or divulging classified Israeli intelligence to Russia’s president.

The explanation is simple, but unfortunately, Democrats won’t like it: Barack Obama set the bar for U.S-Israeli relations so low that there’s literally no Israel-related issue on which Trump has been worse than his predecessor. And there are many on which he’s been not just modestly better, but spectacularly so.

In Trump’s negative column, Syria is “Exhibit A.” Anyone who has heard Israeli Prime Minister Benjamin Netanyahu lately knows that Iran’s growing presence there is a top security concern. Moreover, thanks to Russia’s presence in Syria, Israel can’t handle this problem alone; Russia is way out of its weight class. Consequently, it needs America’s help, which hasn’t always been so forthcoming.

Nevertheless, it’s not Trump who abandoned Syria to Iran and Russia; that was Obama’s decision. When Syria’s civil war first began, America could have prevented Tehran and Moscow from moving in at relatively low cost. But by the time Trump took office, both were well-entrenched; ousting them now would be far more difficult and costly.

Granted, there are still things America could do—and Israelis wish America would do them. But thanks to Obama’s choices, low-cost solutions no longer exist. In this situation, many U.S. presidents would have opted for inaction. Certainly, Trump’s Democratic rival would have; as Obama’s secretary of state, Hillary Clinton was party to his decisions. So despite their dismay about the current situation, Israelis can’t blame Trump for this.

Leaking Israeli intelligence to Vladimir Putin, in contrast, isn’t something Obama ever did (as far as anyone knows). But his administration did regularly leak classified Israeli information to major media outlets. And judged by the all-important standard of how likely the information is to reach Israel’s enemies, that’s considered even worse.

With Putin, there’s at least a reasonable chance that Israeli secrets won’t be shared with enemy countries, as proven by Israel’s hundreds of airstrikes in Syria in recent years. To avoid conflict with Russia, it gives Russia prior notice of all such strikes. Yet there’s no indication that Russia ever shared this information with Syria and Iran; if it had, one would have expected Syria’s aerial defenses to be ready and waiting. Instead, most Israeli strikes encountered no Syrian resistance at all. (In the one major exception—Syria’s downing of an Israeli plane last month—the warning almost certainly came from Iran; it would have alerted Syria to expect retaliation after an Iranian drone launched from Syria was downed over Israel.)

In contrast, information leaked to the media goes straight to enemy intelligence agencies, which routinely scan open-source material. And some of that information was potentially deadly. For instance, when Israel first began airstrikes in Syria, it deliberately refrained from claiming responsibility; that let the Assad regime save face by blaming Syrian rebels rather than Israel, thereby reducing the risk that it would feel compelled to retaliate. Yet the Obama administration repeatedly told the media Israel was behind those strikes, raising the risk of a Syrian retaliation that could spiral into war. Trump’s leaks haven’t been anywhere near that dangerous.

Now consider the positive side of the equation. The embassy move stands out by any standard; it’s something many presidents promised, but none before Trump ever delivered. And many pro-Israel Democrats seem to underestimate just how important this is. The global refusal to recognize Jerusalem as Israel’s capital is the starkest form of delegitimization. Not only is no other country in the world denied the right to choose its own capital, but if Jews have no right to their holiest city—to which they prayed to return for 2,000 years—what do they have a right to? For putting an end to this outrageous discrimination, and thereby encouraging other countries to follow suit, Trump would deserve the gratitude of Israelis even if he never did another thing.

His financial sanctions against the P.A. (for funding terrorists) and United Nations Relief and Works Agency (for perpetuating the conflict) are similarly unprecedented and welcome.

Other Trump moves, like Nikki Haley’s appointment as U.S. Ambassador to the United Nations, shine brighter due to the contrast with Obama. Though Israelis would always have adored Haley, in 2008 she would have been just the latest in a long bipartisan tradition of outstanding pro-Israel U.N. ambassadors (think Daniel Patrick Moynihan or Jeanne Kirkpatrick). But Obama’s ambassadors were a different breed. Even when opposing anti-Israel resolutions, they lambasted Israel in harsh terms, rather than actually defending it. And though it hurt Israelis deeply to have America join the world body’s round-the-clock “Two Minutes Hate Against Israel,” this isn’t primarily about hurt feelings.

Such speeches signaled to other countries that America would be fine with any anti-Israel action they chose to take as long as Washington didn’t have to be complicit in it. And that encouraged both the European Union and the United Nations to take steps towards anti-Israel boycotts (product labeling and compiling a corporate blacklist, respectively). Haley’s pro-Israel speeches send the opposite message: America has Israel’s back, and anti-Israel actions will rouse America’s wrath.

The same goes for Trump’s scrupulous avoidance of public spats with Israel. That, too, might have seemed unremarkable in 2008. But after eight years of Obama’s nonstop public feuding with Israel, which insinuated to other countries that Israel was fair game, Trump’s reversal of this behavioral message simply elates Israelis.

For most American Jews, Trump’s domestic policies are obviously more important than his Israel ones, and that’s legitimate; his domestic policies more directly affect their lives. But Jewish Democrats ought to grant Israelis the same courtesy. Accept that they judge Trump on his Israel policies rather than his domestic ones, as the former are what directly affect their lives. And after eight years of Obama, Trump’s Israel policies have so far been a welcome relief.

This article was originally syndicated by JNS.org (www.jns.org) on March 14, 2018. © 2018 JNS.org

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The International Criminal Court’s fundamental flaw

In my last column, I noted in passing that the International Criminal Court’s blatant anti-Israel bias is merely a symptom of a more fundamental flaw. That isn’t self-evident; court supporters would doubtless argue, just as many people do about the United Nations, that while the court’s anti-Israel bias is regrettable, it’s an isolated flaw that doesn’t outweigh the benefit of ending impunity for atrocities.

What convinced me both that the ICC is unredeemable and that the impunity problem has a better solution was actually a book by one of the court’s ardent supporters—Philippe Sands, a law professor and international lawyer who has worked on ICC cases. In East West Street, Sands traces the development of two key concepts in international law—crimes against humanity and genocide—to their respective culminations in the Nuremberg Trials of 1945 and the Genocide Convention of 1948. But for me, the real eye-opener was his description of the international wrangling that preceded the Nuremberg Trials.

Nuremberg is sometimes derided as victor’s justice. And in one sense, it obviously was: Four of the victors of World War II—America, Britain, Russia and France—decided to put senior officials of their vanquished foe on trial. But what was striking about Nuremberg was the massive degree of international concord required to hold those trials. Lawyers representing several very different legal systems and several very different systems of government nevertheless had to agree on every word and even every comma in the indictments. And since those lawyers were acting on their governments’ behalf, political approval by all four governments was also needed.

In contrast, the ICC needs no international buy-in at all to pursue a case. Granted, its prosecutors and judges come from many different countries, but they represent neither their home governments nor their home legal systems. Politically, they represent nobody but themselves. Legally, they represent one particular interpretation of international law—an interpretation popular with academics and “human rights” organizations, but less so with national governments.

At first glance, both of the above may sound like pluses. Prosecutorial and judicial independence are generally good things, whereas many governments and legal systems leave much to be desired when it comes to protecting human rights.

But the ICC’s version of prosecutorial and judicial independence is very different from the version found in most democracies because the latter is not completely unconstrained. In democracies, prosecutors and judges are constrained first of all by democratically enacted legislation, and usually by democratically enacted constitutions as well. They’re also constrained by the fact that they, too, are citizens of their country, and therefore share concerns important to most of their countrymen—for instance, national self-defense—but unimportant to judges and prosecutors from other countries (which those at the ICC almost always will be).

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