The 'Legal' Landmine on the Road to Israeli Sovereignty
It must be defused for Israel to secure its national interests.
There is a landmine on the road to Israeli sovereignty over parts of Judea and Samaria. It must be defused before it blows up Israel’s efforts to secure its national interests and takes President Donald Trump’s peace plan, and U.S.-Israel relations along with it.
The landmine is not an actual explosive charge but the clique of unelected lawyers at the top of Israel’s legal system. Member of the clique have arrogated to themselves the power of the government to advance their radical, legally unsupported political views about Judea and Samaria.
Since 1967, the State of Israel has carefully left its position on the legal status of Judea and Samaria ambiguous to avoid unnecessary confrontations. At the same time, Israel has assiduously refused to make any concessions about its actual sovereign rights to the areas.
Since 1967, Israel has administered the areas through a military government and even agreed to do so in accordance with the prescriptions of the Geneva Accords and Hague Convention. However, as the Military Advocate General during the 1967 Six Day War, and later Supreme Court President Meir Shamgar said at the time and throughout the intervening years, Israel has acted out of good will, not legal compulsion.
In other words, the State of Israel’s longstanding position is that its control of Judea and Samaria does not fit the international legal definition of “belligerent occupation.” Israel is not the “occupier” of the areas. Various Israeli jurists have presented various factual legal arguments over the years to back this position. Among them is the doctrine of uti possidetis juri which makes clear that as the heir to the British Mandate, Israel inherited the borders of the League of Nations Mandate, which included Judea and Samaria.
Israeli jurists have also explained that since the Jordanian occupation of the areas from 1949-1967 was illegal, Israel’s assertion of control over the areas in 1967 was not a belligerent occupation.
Then too, since the 1994 peace treaty between Israel and Jordan ended the state of belligerence between them, there is no state of belligerence in Judea and Samaria, which Jordan illegally took control over during its illegal war of aggression against the Jewish state in 1948-49.
Whatever, the legal argument put forward over the years, the unchanging position of every Israeli government has been that Israel is not a belligerent occupant of the areas.
But then along came then Supreme Court president Aharon Barak.
In a 2004 judgment on a petition asking the Court to reject Israel’s right to build the security fence in Judea and Samaria, with a wave of his pen Barak dismissed Israel’s position. Without explanation, and without legal basis, Barak wrote in the opening line of his judgment, “Since 1967, Israel holds the areas of Judea and Samaria in a belligerent occupation.”
The judgment where Barak made this outrageous assertion was one where he sided with the government against the petitioners and recognized the legality of Israel’s decision to build its security fence to protect its urban centers from Palestinian terrorists. Because his judgment was substantively support, Barak’s radical declaration passed without much notice.
But in the intervening years, without a shred of legal authority, and in defiance of the position of successive governments, the IDF’s Military Advocate General’s Unit and the state prosecution embraced and worked to advance Barak’s radical position.
One of the main officials involved in this effort has been Attorney General Avichai Mandelblit. In 2017, during Knesset debates regarding the passage of a law that normalizes the legal status of Israeli communities built on lands not formally designated as state lands, Mandelblit issued a short legal brief. In it, he wrongly claimed that the bill before the Knesset breached international law. Mandelblit added that if the Knesset went forward and passed the law it would open Israel to litigation from foreign actors like the European Union.
Mandelblit’s brief was quickly used by representatives of foreign governments and organizations to attack the Knesset and its right to legislate in accordance with Israel’s lawful rights in Judea and Samaria.
Last year, Mandelblit headed a working group that drafted a position paper regarding the International Criminal Court’s jurisdiction to prosecute Israeli nationals for alleged war crimes. Again, disregarding the government’s lawful position regarding Israel’s sovereign rights to Judea and Samaria, Mandelblit invented a new concept utterly untethered from international law. He claimed that “sovereignty is in abeyance,” in Judea and Samaria. Mandelblit’s legally ungrounded “legal” position has since been seized on by the ICC prosecutor to justify war crimes prosecution of Israeli nationals.
In other words, Mandelblit has repeatedly used specious legal argumentation in a manner that at a minimum, has already caused actual harm to Israel’s international position.
This brings us to the present moment, when Israel’s incoming Netanyahu-Gantz government moves towards applying the state’s legal rights to sovereignty over parts of Judea and Samaria in accordance with the Trump administration’s peace plan, and the potential harm Mandelblit may intend to cause Israel through his radical, ungrounded “legal” opinions.
Last November, U.S. Secretary of State Mike Pompeo announced that the U.S. government’s renunciation of the Obama administration’s position that the Israeli communities in Judea and Samaria are illegal.
This week U.S. Ambassador David Friedman published an article in the New York Post restating Pompeo’s position. In defending the legality of the Trump plan under international law, Friedman also argued implicitly – and rightly — that under international law, it is legal for Israel to apply its law to areas of Judea and Samaria.
In an interview with Israel Hayom this week, Friedman said that the U.S. is willing to recognize Israeli sovereignty in Judea and Samaria in accordance with the Trump vision for peace. Friedman’s interview with Israel Hayom, like his article in the New York Post indicated that the administration views Israel’s plan to apply its laws to areas of Judea and Samaria in accordance with the guidelines of the Trump peace plan as a matter of some urgency. A glance at the political environment in America shows that they are right to view the issue as urgent.
Friedman wrote his article in response to an article senior Obama administration officials Phillip Gordon and Robert Malley wrote two weeks ago in Foreign Policy. In their article the two called for presumptive Democratic nominee former vice president Joe Biden to openly threaten Israel with a cut-off of military aid and with future U.S. support for condemnation of Israel at the UN Security Council if the government dares to apply Israeli sovereignty to the Jordan Valley and Israeli communities in Judea and Samaria in accordance with the Trump plan.
In other words, the two called for Biden to use Israel as a campaign weapon. If Israel supports Trump’s peace plan and implements its plan to apply its law to the Jordan Valley and the Israeli communities in Judea and Samaria as specified in the Trump plan, the Biden campaign, they said, should demonize Israel as an appendage of the Trump administration rather than a nation state determined to secure its national interests.
Then again, if Israel caves to Biden’s threats and rejects Trump’s vision for Middle East peace, then Biden will present Israel’s self-destructive behavior as proof that Trump is a failed statesman.
It is important to recognize just how groundbreaking Trump’s position on the legal status of Judea and Samaria is on the one hand and just how devastating the Gordon-Malley position, (since embraced openly by dozens of senior Democratic operatives) is on the other hand.
When Israel unified Jerusalem immediately after the Six Day War and applied Israeli law to the areas of the capital that had been occupied by Jordan, the Johnson administration opposed the move and supported a non-binding condemnation of Israel at the UN Security Council.
When Israel applied its law to the Golan Heights in 1981, the Reagan administration opposed the move and supported a non-binding condemnation of Israel at the UN Security Council.
Both the Johnson and Reagan administrations are rightly remembered as pro-Israel administrations.
Today, not only will the Trump administration not reject Israel’s move to secure its long-term interests and rights in Judea and Samaria by applying its laws to parts of the areas. It will support the move and recognize its legality under international law.
As for the Democrats, they are openly advocating extorting Israel with threats to force it to embrace policies that endanger it strategically.
Having recognized the stakes involved in the Trump plan, we return to Mandelblit and his comrades at the top of Israel’s legal establishment. If they try to block the government and the Knesset from applying Israeli law to the Israeli communities in Judea and Samaria and to the Jordan Valley, their actions will be devastating for the country in two ways. First, they will undermine Israel’s ability to secure its sovereign rights and strategic interests in its heartland.
Second, they will cause massive strategic damage to Israel’s relations to U.S.-Israel relations.
If the legal establishment scuttles the government’s intention – backed by a Knesset majority – to apply Israeli law to these areas, they will capsize Israel’s ties with the Trump administration and the Republican Party as a whole. Both the Trump administration and Republicans will view Israel as an unreliable ally that betrays its supporters.
As for the Democrats, an Israeli decision to reject Trump’s plan by failing to apply its laws to the Jordan Valley and the Israeli communities in Judea and Samaria will convince the Democrats that Israel will reward them for abusing it and opposing its interests and rights. This will ensure that the Democrats will escalate their malicious assaults on the Jewish state.
More generally, if the Mandelblit-led legal establishment thwarts the government’s plan to apply Israeli law to the Israeli communities in Judea and Samaria and the Jordan Valley in furtherance of the Trump peace plan, it will massively undermine Israel’s international posture. The Europeans, the Sunni Arab states, the Russians and the Chinese will reasonably conclude that standing with Israel is a losing proposition. The avalanche of hatred and isolation Israel will experience in the wake of such a realization will be like nothing we have ever experienced.
Under the circumstances, it is obvious what the incoming Netanyahu-Gantz government must do. To secure Israel’s interests and legal rights to sovereignty in Judea and Samaria, and protect its international relations, the government must publicly reject Mandelblit’s absurd claim that sovereignty in Judea and Samaria is “in abeyance” and forthrightly assert Israel’s sovereign rights to the areas under international law. So too, the incoming government must instruct the State Prosecution and the IDF Military Advocate Unit to properly represent Israel’s longstanding position that Israel does not administer Judea and Samaria as a belligerent occupation but as the holder of sovereign rights to the areas in accordance with international law. In the event a lawyer in an official position presents a different position in any forum, they do not represent the State of Israel.