By Caroline Glick
US President Barack Obama consistently couches his demand that Israel prohibit Jewish people from constructing or expanding our homes and communities in Jerusalem, Judea and Samaria in legal-sounding language.
Obama has called settlements "illegitimate." And he has said that Israel "has obligations under the road map," while referring disparagingly to "settlements that, in past agreements, have been categorized as illegal."
Secretary of State Hillary Clinton and Obama's Middle East envoy George Mitchell have repeatedly uttered similar statements.
By characterizing its demand that Israel prohibit Jews from building homes in Israel's capital city and its heartland as a legal requirement, the Obama administration portrays Israel as an international outlaw. After all, if building homes for Jews is a crime, and Israel is not prohibiting Jews from building homes, then Israel is at best guilty of enabling a crime to take place, and at worst, it is a criminal state.
It makes good political sense for the Obama administration to make its case against Israel in this fashion. According to a survey of US public opinion published in early 2006 by the Boston Review, whereas only 7 percent of Democrats support going to war to spread democracy - versus 53% of Republicans; 71% of Democrats - versus 36% of Republicans - support going to war to help the United Nations "uphold international law." What this poll shows is that for Obama supporters, the idea that Israel should be treated poorly because it is in breach of international law resonates deeply.
The problem with the Obama administration's characterization of a ban on Jewish building in Jerusalem, Judea and Samaria as an Israeli legal obligation is that Israel has never taken upon itself a legal obligation to prohibit such building activities. Israel has never signed an agreement that has characterized any Jewish communities as "illegal."
Moreover, both former prime minister Ariel Sharon's chief of staff Dov Weisglass and former president George W. Bush's deputy national security adviser for the Middle East Elliott Abrams have gone on record stating that Sharon's much vaunted decision to curtail Jewish building in Judea and Samaria (never Jerusalem), in line with the road map negotiating framework, was based on a series of explicit understandings with the Bush administration that spelled out the scope of Jewish building that Israel would maintain for the duration of the peace process. As Abrams wrote on Thursday in The Wall Street Journal, "Not only were there agreements, but the prime minister of Israel relied on them..."
Then, too, since the road map was approved as a mere cabinet decision - as opposed to an international agreement - the Netanyahu government has no legal obligation to actively advance it. Indeed, if it wishes, it can abrogate Israel's acceptance of the document at any time simply by calling for another vote.
More importantly perhaps from the Obama administration's perspective is that the road map itself lacks the force of international law. Although it was adopted by the Security Council, it was not adopted as an internationally binding document under Chapter VII of the UN Charter. Consequently, Israel has no international legal obligation to end Jewish construction in Judea and Samaria or Jerusalem.
Like the US, Israel is a signatory to the 1976 International Convention for Civil and Political Rights, which among other things prohibits all forms of discrimination against people on the basis of religion and nationality.
Consequently, Israel is barred from discriminating specifically against Jews who wish to build homes on legally controlled lands in Judea and Samaria. As a binding treaty, this convention takes precedence over the nonbinding road map. Indeed, given the road map's prejudicial position on Jewish building it can be reasonably argued that the road map itself calls for a breach of international law.
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