Israel and the Middle East News Update

Thursday, February 9

Headlines:  Iron Dome Intercepts Three Rockets Fired at Eilat  Likud Effort to Disavow Two-State Solution  FM Attempting to Mitigate Damage from Legalization Law  Abbas Calls on World Nations to Recognize Palestine, Save 2SS  Trump's Israel Amb. Linked to Expansion of New WB Settlement  Turfed Out Amona Residents Choose New Outpost to Call Home  Russia Promises to Keep Weapons Out of Hezbollah’s Hands  Ignoring White House Warnings, Iran Test-Fires Another Missile

Commentary:  TOI: “The True Significance of Israel’s Settlement Legalization Law”  By Haviv Rettig Gur, Senior Analyst, Times of Israel  Al-Monitor: “Who Profits from Gaza Unrest?”  By Ben Caspit, Israel Pulse Columnist, Al-Monitor

S. Daniel Abraham Center for Middle East Peace 633 Pennsylvania Ave. NW, 5th Floor, Washington, DC 20004 www.centerpeace.org ● Yoni Komorov, Editor ● David Abreu, Associate Editor

News Excerpts February 9, 2017

BICOM Iron Dome Intercepts Three Rockets Fired at Eilat Rockets fired from Egypt’s Sinai Peninsula at the Israeli city of Eilat were intercepted last night by the Iron Dome anti-missile system. Early rocket warning sirens were sounded in Eilat, Israel’s southernmost city, just before 11pm local time. Three rockets were successfully intercepted by the Iron Dome, while a fourth landed in an open area, causing no damage. Nobody was injured in the attack, but several Eilat residents were taken to hospital suffering from shock or anxiety. Rocket fragments were later found scattered in the city. See also, “ISIS Claims Responsibility for Eilat Rockets” (Ynet News)

Ma’ariv Likud Effort to Disavow Two-State Solution Encouraged by their success in getting the legalization bill passed into law, some in the Likud have no intention of resting on their laurels. Likud members now want to “shackle” Prime Minister Binyamin Netanyahu from the right in advance of his scheduled meeting with US President Donald Trump and to demand that he refrain from voicing support for the two-state solution, in a departure from his past statements. A group of Likud members—heads of local authorities, branches and party activists—have scheduled an emergency meeting in the Knesset in which they will call on him to “disavow” the two-state solution. The conference was organized by two Likud Central Committee members from Judea and Samaria, Shevah Stern and Natan Engelsman. See also, “EU Envoy Complains: Israel Merely Paying Lip Service to Two-State Solution” (Times of Israel)

Ma’ariv FM Attempting to Mitigate Damage from Legalization Law An official document from the Foreign Ministry, authorized by Prime Minister Binyamin Netanyahu, attempts to rebuff global criticism of the legalization law by emphasizing that it is possible the law may be disqualified by the Supreme Court. The document was disseminated by the Foreign Ministry’s Media and Public Affairs Division to Israeli missions around the world to enable them to explain the law and its background. The document covers eight points. The last section states that every law passed by the Knesset can be re-examined by the Supreme Court.

Ha’aretz Abbas Calls on World Nations to Recognize Palestine, Save 2SS PA Mahmoud Abbas called on world nations to officially recognize the state of Palestinian as soon as possible to help save the two-state solution. Abbas, speaking from Paris, told members of the French parliament the two-state solution requires countries who recognize Israel to also recognize Palestine. Dozens of countries recognized Palestinian statehood years ago and recently Palestine was recognized by the Vatican. Most West European and North American countries never did do, albeit most of their lawmakers had supported recognizing Palestine within the 1967 borders. See also, “Israeli Ambassador Warns: Ireland Soon to Recognize Palestine” (Ha'aretz) 2

Ha’aretz Trump's Israel Amb. Linked to Expansion of New WB Settlement An organization headed by David Friedman, the U.S. ambassador-designate to Israel, is behind a new construction project in the West Bank settlement of Beit El recently approved by the government. The project includes a five-story building – part of which has already been constructed illegally on private Palestinian land and will be retroactively legalized – and 20 housing units, according to the Peace Now Settlement Watch project. It is being funding by American Friends of Beit El Institutions, which raises several million dollars a year for this particular settlement. See also, “Newly Approved Settler Homes Financed by Trump's Envoy Israel Pick” (Times of Israel)

Times of Israel Turfed Out Amona Residents Choose New Outpost to Call Home The residents of the Amona settlement outpost in the West Bank, who were recently evacuated from their homes in compliance with a court-ordered demolition of the site, have chosen another similarly unauthorized outpost as the location where they want to reestablish their new community. During a Wednesday night meeting, the residents decided by a majority vote that they will move to the Geulat Tzion unauthorized outpost, located in the Shiloh settlement bloc. While Amona was built on privately owned Palestinian land, Geulat Tzion lies on a state-owned tract.

Ynet News Russia Promises to Keep Weapons Out of Hezbollah’s Hands Russian Ambassador to Israel, Alexander Shane, said that his country is working to prevent the transfer of Russian weapons to Hezbollah. During an interview with the Interfax news agency, Shane noted that Israel presented Moscow with its "red lines" and shared concerns about Russia's cooperation with Iran and Syria. According to Shane, Israel presented red lines to the Russians about events in Syria, the most important of which were the transfer of modern, advanced weapons to Hezbollah and the establishment of an anti-Israel base with Iran in the Syrian Golan. Shane added that Israel understands was his country is doing in Syria, "but for them, the best thing that can happen is cooperation between Russia and the United States—and not Russia and Iran—to solve the crisis in Syria and the fight against terrorism in the Middle East."

Jerusalem Post Ignoring White House Warnings, Iran Test-Fires Another Missile Iran test-fired another surface to air missile Wednesday. The test, just as the last, occurred outside Semnan, about 140 miles east of Tehran. The test comes the same day the White House announced it is considering a proposal that could lead to potentially designating Iran's Islamic Revolutionary Guard Corps (IRGC) as a terrorist organization, according to US officials familiar with the matter. The officials said that several US government agencies have been consulted about such a proposal, which if implemented would add to measures the United States has already imposed on individuals and entities linked to the IRGC. The Trump administration sent a stark message to Tehran last week over their continued missile tests and support for proxy militia groups battling Saudi Arabian forces. See also, “Iran Defies Trump’s Warnings, Conducts Missile Test” (Arutz Sheva)

Times of Israel – February 7, 2017 The True Significance of Israel’s Settlement Legalization Law

The flurry of hand-wringing over the Regulation Law has largely missed what may be its most dramatic consequence — that it makes it harder for Israel to stick to its longstanding policy of permanent indecision in the West Bank.

By Haviv Rettig Gur, Senior Analyst for the Times of Israel  Criticism of the Regulation Law that passed Monday in the Knesset has been visceral and widespread. It comes from Israeli politicians on the right, as well as on the deepest left; from pro-Israel advocates, and from Palestinian officials; from Israel’s own attorney general, as well as European and Muslim-world governments; and even from some Knesset members who actually voted for it.  All seem to believe the law, which authorizes retroactively Israeli settlement homes built illegally on privately owned Palestinian land, is a watershed moment in the Israeli-Palestinian conflict. But with so many voices vying to explain precisely why it is so bad, it can be easy to miss, or to misunderstand, the indigenous Israeli political impulses that forged it, and thus to misrepresent what it means for Israel’s presence in the West Bank.  In an important sense, the Regulation Law changes very little. Under Jordanian land law that still applies in the West Bank – Israel never applied its own civil law, and so the territory is run under a combination of various legal systems imposed by past rulers and IDF orders issued since 1967 – the governing authority in the territory is already permitted to seize privately owned land for public benefit. The Jordanian law is far more expansive and permissive as to what constitutes “public benefit” than is Israeli civil law within Israel’s borders, and more even than what Israel’s military administration has actually done in the West Bank.  And so the new Regulation Law does not, as often claimed, suddenly allow the Civil Administration, the Israeli agency administering the West Bank under the army’s auspices, to seize private property for Israeli settlements. The Civil Administration is already allowed to do so, at least on paper (and leaving out for the moment the rather significant question of international law and its obligations). Rather, the Regulation Law requires that it do so. In places where Israelis built settlements on privately held Palestinian property in good faith – i.e., without knowing it was privately owned – or received the government’s de facto consent for squatting there, the Civil Administration is now forced to carry out the seizure in the squatters’ name in exchange for state compensation to the owners equal to 20 years’ rent or 125 percent of the assessed value of the land.  Here lies the most important fact of the law from the perspective of the internal Israeli debate: that it is not actually directed against the Palestinian owners (though, of course, it affects them most of all), but against the Israeli state. For decades, the Israeli left accused state agencies of coddling and abetting the settlement movement. In 2005, the government of Ariel Sharon published the Sasson Report that detailed these agencies’ collusion in illegal building in the West Bank. As one right-wing supporter of the Regulation Law noted this week, the first few hundred homes built in the Ofra settlement in the northern West Bank during the 1980s and 1990s were constructed without appropriate zoning or approval of any kind. 4

 But in the wake of the report, and in keeping with the policies of various governments since the late 1990s, enforcement of zoning and planning requirements has grown much more stringent. It is no longer easy to build without permission in places like Ofra or Beit El. Critics of the settlements talk constantly about their unrelenting growth, but actual residents of the more ideologically rooted settlements nestled deep within the West Bank feel the opposite, that their growth is being choked by a state that even under right-wing rule views them as an enemy.  Ironically, nowhere is this tension between the settlement movement and the state clearer than in the way the law justifies the seizure of land. To authorize the seizure, article 3 of the law requires that either of two conditions be met: the aforementioned “good faith” requirement, “or that the state gave its agreement to the [settlement’s] establishment.”  This is an important “or,” as it means seizure is possible even in bad faith, where the land was explicitly settled in the full knowledge that it was privately owned by Palestinians, as long as state support can be demonstrated. And article 2 of the law ensures that it won’t be hard to demonstrate such support. It defines “agreement of the state” thus: “Explicitly or implicitly, beforehand or after the fact, including assistance in laying infrastructures, granting incentives, planning, publicity intended to encourage building or development, or financial or in-kind participation” in the settlement’s establishment.  If any state agency paved a road, provided electricity or, arguably, merely sent security or law enforcement forces to protect a settlement, the squatters may be able to claim “agreement of the state.” The Sasson Report put the question of unacknowledged government assistance to illegal settlement construction on the national agenda as an explicit first step to stopping that assistance. The Regulation Law flips that intention on its head, turning that governmental support into the legal reasoning for retroactively authorizing the very construction the report was intended to help freeze.  It is hard to imagine that this perfect inversion of the Sasson Report is accidental. The Regulation Law’s earliest drafts were written by advisers to Jewish Home MK Betzalel Smotrich, the former head of Regavim, an Israeli right-wing advocacy group that works on issues of land rights and settlements. That is, it was formulated by lawyers deeply familiar with the issues and questions raised by the Sasson Report, and with Israeli settlement policy since its publication.  ‘Occupied’  For Attorney General Avichai Mandelblit, however, the problems posed by the law go deeper than this cantankerous shot across the bow of the left-right culture war. In its very first sentence, the law proclaims: “The purpose of this law is to bring order to the settlement in Judea and Samaria and to allow its continued establishment and development.” For 50 years, Israel has officially argued that the West Bank is not “occupied” as the term is understood in the Fourth Geneva Convention, but merely “disputed.” The legal reason – that the Convention defines as “occupied” only tracts of land taken by a state in wartime from another state that had sovereignty there; the West Bank was not sovereign Jordanian territory when Israel captured it from Jordan in 1967 – may be convincing to many Israelis, but sways almost no one else on Earth.

 This argument also has the thorny disadvantage of leaving unanswered the rather fundamental question of what, exactly, is the status of millions of Palestinians living in this non-occupied territory who are not, and don’t want to be – and Israelis don’t want them to be – citizens of Israel.  Since 1967, Israel’s response, both in international forums and to its own High Court, has been to distinguish between the people and the land, applying to the Palestinian population, but not to the land, the protections of “occupation” granted by the Fourth Geneva Convention. (This distinction is not wholly innovative. The Convention’s own broad definition of “protected persons” is, simply, “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”)  Mandelblit’s complaint is a simple one. The Regulation Law charges into this delicate and, for Israel, indispensable legal construct like a bull in a china shop. It marks the first direct Knesset legislation of a civil law that applies directly to Palestinians in the West Bank, and it does so without even conferring on them, as Israel did in the past in East Jerusalem or the Golan Heights, the broader edifice and legal protections of Israeli civil law more generally. “A state can only legislate where it is sovereign,” Talia Sasson told The Times of Israel in an interview Tuesday. “The basic theory is that the people are sovereign, we choose representatives and they decide the way we behave within this [sovereign] territory.”  So, for example, the Israeli Knesset does not have the authority to legislate traffic laws in Paris or zoning rules in London. Law follows sovereignty. “So this law that claims to apply outside Israeli [sovereign] territory cannot be a constitutional law,” said Sasson, who now chairs the board of the left-wing New Israel Fund. And it is why the law is sure to be struck down by the High Court of Justice, she predicted. “If I’m a High Court justice, my first question to the state’s attorney [defending the law] would be, ‘Explain to me not what claims we have to the territory – that’s not the question here – but by what authority'” Israel is legislating a civil law there without first defining the territory as subject to Israeli civil law, with all the ramifications such a designation would carry.  The Regulation Law is a potential watershed moment not because of the powers it confers or the requirements it demands of state bodies, but for the simple fact that it appears to penetrate this carefully constructed legal membrane between democratic, sovereign Israel on the one hand, and the occupied – or at least, under the Fourth Geneva Convention to which Israel is a signatory, specially protected as though occupied – Palestinian population on the other.  Tear down this barrier, this legal balancing act that has endured for five decades, and Israel faces a stark question: Why are some of the people living under the civil control of the Israeli state enfranchised as full citizens, but others are not? Critics of Israel scoff at such legalisms. Fifty years after the Six Day War in 1967, they ask, isn’t that the de facto situation of the Palestinians in any case? Yet within the Israeli discourse, in Israeli law and judicial precedent, the West Bank’s liminalism is seen as a fundamental protection for Israeli democracy. The Palestinians have not been naturalized, Israeli governments and courts have been insisting for decades, only because we are holding out for peace and separation. Their condition is provisional, temporary, even if its resolution has been long in coming.

 If you rob me of that argument, if there is no longer a clear distinction between the legal status of sovereign Israeli territory and that of the West Bank, Mandelblit has told lawmakers in recent months during debates about the law, how will I continue to defend Israel’s current policy in the West Bank? If the Palestinians can now be subjected directly to Israeli civil law, how much longer will we be able to continue justifying the fact that they cannot vote for the body that creates that law?  ‘Inhabitants’  None of this is lost on the bill’s supporters. Nor are they unaware that the law is all but certain to be struck down by the High Court of Justice. Yet the campaign by the Jewish Home party and Likud’s rightist flank to advance the law, which was resisted even by Prime Minister Benjamin Netanyahu, was worth the trouble and potential fallout, they feel, because of the vital message it is meant to convey. International law requires that an “occupying power” care for the needs of the inhabitants of a captured or occupied area. Over the past 20 years, Israeli governments have assiduously avoided carrying out significant seizures of privately owned Palestinian land solely for the benefit of Israeli settlements, such as the construction of access roads to such settlements.  As Mandelblit himself has argued to any lawmaker who would listen, Israeli authorities in the West Bank have clung to a consistent policy of only seizing privately owned Palestinian land in cases where the land’s public use will also, or even primarily, benefit the local Palestinian population. One supporter of the Regulation Law familiar with its development told The Times of Israel this week that “the net result of this Israeli policy is that we accept a legal interpretation that sees the Israeli population [in the West Bank] as not part of its ‘inhabitants.’ That includes Israelis who have lived there for 40 years.” Here lies the deeper message, the statement of principle that makes palatable the legal risks and diplomatic fallout, even if the law is ultimately overturned by the High Court: that the Israeli population in the West Bank belongs there, that its presence is legitimate and just, that they are as much the “inhabitants” of Judea and Samaria as the Palestinians.  This is not a message intended for foreign audiences, but for Israelis, and especially for government officials who, in practice, and despite often extravagant proclamations otherwise, seem to doubt the point. This is the strange irony at the heart of the Regulation Law: that it is less a reliable signal of what the future holds for Israel’s policy in the West Bank – no one who voted for it expects it to survive the High Court challenge – and more a reflection of the deep sense of alienation and vulnerability that permeates the very settlements that, superficially at least, appear so empowered by its passage.

Summary: Here lies the most important fact of the law from the perspective of the internal Israeli debate: that it is not actually directed against the Palestinian owners (though, of course, it affects them most of all), but against the Israeli state…. It is no longer easy to build without permission in places like Ofra or Beit El. Critics of the settlements talk constantly about their unrelenting growth, but actual residents of the more ideologically rooted settlements nestled deep within the West Bank feel the opposite, that their growth is being choked by a state that even under right-wing rule views them as an enemy.

Al-Monitor – February 8, 2017 Who Profits from Gaza Unrest? By Ben Caspit  On Feb. 7, at least two members of the Israeli Cabinet announced that a new round of fighting between Israel and Hamas can be expected very soon, perhaps even as early as spring. The first was retired Maj. Gen. Yoav Galant (Kulanu), former commander of the Southern Command, who now serves as the minister of housing. The second was the chairman of HaBayit HaYehudi, Minister of Education Naftali Bennett.  These statements followed several large-scale attacks on Hamas targets, launched in response to a single rocket fired by a Salafi group, which landed in an open field in southern Israel on Feb. 6. While it is true that Israel has a "no containment" policy in response to every shot fired at it from Gaza, it seems as if Israel's aggressive responses have been taken up a notch ever since the appointment of current Defense Minister Avigdor Liberman, and they are now disproportional. Israel no longer makes do with sporadic fire at empty positions. It now collects a steep price from Hamas for every rocket that some ephemeral group or other manages to fire at it. These attacks are aimed at strategic targets such as tunnels, special weapons depots and various security infrastructures. However, the resulting paradox is that Salafi groups, which challenge the Hamas leadership, have found a way to cause Hamas harm. All they have to do is fire at Israel and wait for the outcome.  The Israeli approach is understandable. It is intended to prevent the renewal of the phenomenon of "dribbling," or in other words, steady but irregular rocket fire against Israel, which, for years, has introduced terror into the day-to-day lives of hundreds of thousands of Israelis living in the south. This time, however, it seems that these last developments are hiding other processes, strategic ones, which could lead the parties to yet another round of fighting, some three years after the end of the last round (Operation Protective Edge, 2014).  The underpinning of this equation is the dire state of the population in Gaza. A United Nations report concluded that Gaza will be unfit for human habitation by 2020. The electric power supply is completely disrupted, the water is very close to being declared undrinkable, unemployment is sky high and efforts at renovation and rehabilitation have been delayed. All of this has resulted in assessments by Israeli intelligence that Hamas could be compelled to take the same steps it took three years ago and attempt to break through this dead end by setting off a major explosion.  Unlike 2014, however, this new flare-up could be especially big. Israel has identified in Hamas, and particularly in its military wing, certain factors that it describes as "self-destructive." These people would consider an Israel Defense Forces (IDF) occupation of the entire Gaza Strip as a Palestinian achievement, claiming that it would trap Israel in the Gaza quagmire and cause it enormous strategic damage in the long run. Given this approach, Israel is concerned that Hamas is planning a major strategic attack on the Israeli homefront, which would force the IDF to invade Gaza, instigating the necessary explosion that would result in a strategic shift in the situation. It is a contemporary Gazan version of "And Samson said: Let me die with the Philistines" (Judges 16:30).

 Several other factors should be added to this sensitive equation being formulated between Israel and the Gaza Strip. Hamas is worried that Israel is close to developing a strategic solution to the tunnels, which Hamas continues to dig vigorously. While it is not at all certain this is true, if that does happen, Israel will have denied Hamas the one military advantage that it currently enjoys. The fact that Israel has recently uncovered several Hamas tunnels has led the movement's military wing to worry that the barrier that Israel is currently constructing along the Gaza border will neutralize the military wing's ability to infiltrate Israel from underground. This concern could encourage Hamas to launch its "big operation" now, before this window of opportunity closes.  Furthermore, the parties are engaged in clandestine, indirect contact to come up with a formula that would allow for a prisoner exchange. Hamas holds the bodies of two Israeli soldiers, Lt. Hadar Goldin and 1st Sgt. Oron Shaul, as well as two civilians, who crossed to the Palestinian side of the border fence of their own initiative. Both these civilians apparently suffer from mental illness. For its part, Israel has arrested a large number of prisoners released in the Gilad Shalit deal in June 2014, who, according to intelligence assessments, reverted to terrorist activities. According to various reports, it also holds a mentally unstable family member of a senior Hamas official in Gaza.  The assessment is that Israel will agree that the prisoner exchange will include the easing of many significant but onerous economic restrictions on Gaza. Previous articles in Al-Monitor disclosed that the Israeli defense establishment supports greater easing of the closure. Defense Minister Liberman himself supports this initiative, which was first conceived in the offices of Chief of Staff Gadi Eizenkot. So far, it has been delayed by the Shin Bet, which considers such a move to be a high security risk, as well as by many powerful ministers in the government and Cabinet. Prime Minister Benjamin Netanyahu has yet to articulate a fully formulated position on the issue. It is believed that the prisoner exchange could open Israel up to thousands of Palestinian laborers. Maj. Gen. Yoav Mordechai, the coordinator of government activities in the territories, is the driving force behind these ideas. Some 30,000 Palestinian laborers now working in Israel could sustain about one-quarter of a million people in the Gaza Strip.  "Israel could withstand such a risk, which is intended to provide an income and sustenance to hundreds of thousands of people in the Gaza Strip and instill in them a sense of hope," one senior Israeli security official told Al-Monitor on condition of anonymity. "Our goal is to postpone the next round of violence for as long as possible. There can be no doubt that such a move would be a dominant factor in postponing the violence, as we are hoping to do."  There is no answer to the question of who will win in this race between the two competing vectors linking Israel and the Gaza Strip: the violent path, which will take this rivalry to yet another explosion by late this summer, or mollifying alleviation, which would ease the pressure on Gaza.  On Feb. 8, senior figures in the military wing of Hamas confirmed that Israel has sent them a new proposal for a hostage deal, but they also say that this proposal was rejected. What this shows is that contacts between Israel and Hamas stew slowly, sometimes over years. On the other hand, it is not at all clear that such a timeframe is possible, given the current circumstances. 9

 The question is whether the Israeli leadership has the energy to speed up the process, or whether it will be dominated by forces who would welcome another conflagration in the Gaza Strip, since this would shift the public agenda from a debate over government corruption and police investigations of the prime minister to one focused on security issues. Ben Caspit is a columnist for Al-Monitor's Israel Pulse. He is also a senior columnist and political analyst for Israeli newspapers and has a daily radio show and regular TV shows on politics and Israel.

Summary: Unlike 2014, however, this new flare-up could be especially big. Israel has identified in Hamas, and particularly in its military wing, certain factors that it describes as "self- destructive." These people would consider an Israel Defense Forces (IDF) occupation of the entire Gaza Strip as a Palestinian achievement, claiming that it would trap Israel in the Gaza quagmire and cause it enormous strategic damage in the long run. Given this approach, Israel is concerned that Hamas is planning a major strategic attack on the Israeli homefront, which would force the IDF to invade Gaza, instigating the necessary explosion that would result in a strategic shift in the situation.