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Secretary Kerry, you’re mistaken and ill-advised

Alan Baker, Attorney, Ambassador (ret’)

P.O.B. 182, Har Adar, Israel 90836

Tel: +972-54-3322643

E-mail: ambassador.alan@gmail.com

The Hon. John Kerry, U.S. Secretary of State,

The State Department,

Washington D.C.

November 8, 2013

Dear Secretary Kerry,

 

After listening to you declare repeatedly over the past weeks that “Israel’s settlements are illegitimate”, I respectfully wish to state, unequivocally, that you are mistaken and ill advised, both in law and in fact.

Pursuant to the “Oslo Accords”, and specifically the Israel-Palestinian Interim Agreement (1995), the “issue of settlements” is one of subjects to be negotiated in the permanent status negotiations. President Bill Clinton on behalf of the US, is signatory as witness to that agreement, together with the leaders of the EU, Russia, Egypt, Jordan and Norway.

Your statements serve to not only to prejudge this negotiating issue, but also to undermine the integrity of that agreement, as well as the very negotiations that you so enthusiastically advocate.

Your determination that Israel’s settlements are illegitimate cannot be legally substantiated. The oft-quoted prohibition on transferring population into occupied territory (Art. 49 of the 4th Geneva Convention) was, according to the International Committee Red Cross’s own official commentary of that convention, drafted in 1949 to prevent the forced, mass transfer of populations carried out by the Nazis in the Second World War. It was never intended to apply to Israel’s settlement activity. Attempts by the international community to attribute this article to Israel emanate from clear partisan motives, with which you, and the US are now identifying.

The formal applicability of that convention to the disputed territories cannot be claimed since they were not occupied from a prior, legitimate sovereign power.

The territories cannot be defined as “Palestinian territories” or, as you yourself frequently state, as “Palestine”. No such entity exists, and the whole purpose of the permanent status negotiation is to determine, by agreement, the status of the territory, to which Israel has a legitimate claim, backed by international legal and historic rights. How can you presume to undermine this negotiation?

There is no requirement in any of the signed agreements between Israel and the Palestinians that Israel cease, or freeze settlement activity. The opposite is in fact the case. The above-noted 1995 interim agreement enables each party to plan, zone and build in the areas under its respective control.

Israel’s settlement policy neither prejudices the outcome of the negotiations nor does it involve displacement of local Palestinian residents from their private property.  Israel is indeed duly committed to negotiate the issue of settlements, and thus there is no room for any predetermination by you intended to prejudge the outcome of that negotiation.

By your repeating this ill-advised determination that Israel’s settlements are illegitimate, and by your threatening Israel with a “third Palestinian intifada” and international isolation and delegitimization, you are in fact buying into, and even fueling the Palestinian propaganda narrative, and exerting unfair pressure on Israel. This is equally the case with your insistence on a false and unrealistic time limit to the negotiation.

As such you are taking sides, thereby prejudicing your own personal credibility, as well as that of the US.

With a view to restoring your own and the US’s credibility, and to come with clean hands to the negotiation, you are respectfully requested to publicly and formally retract your determination as to the illegitimate nature of Israel’s settlements and to cease your pressure on Israel.

Respectfully,

Alan Baker, Attorney, Ambassador (ret’),

Former legal counsel of Israel’s Ministry for Foreign Affairs,

Former ambassador of Israel to Canada,

Director, Institute for Contemporary Affairs, Jerusalem Center for Public Affairs,

Director, International Action Division, The Legal Forum for Israel

Copy:

H.E. Daniel B. Shapiro, US Ambassador to Israel,

71 Hayarkon Street




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Congress – the co-equal and systematic ally of Israel

Presidents propose and Congress disposes

On September 23, 2021, the US House of Representatives voted 420:9 to replenish the Israeli-developed defensive “Iron Dome” missiles, which are increasingly manufactured – and eventually exported – by the US defense company Raytheon, that benefits from the battle-tested “Israeli laboratory.”

The overwhelming vote reflects Congressional realization that the “Iron Dome”:

*Enhances Israel’s posture of deterrence, which is critical to the survival of all pro-US Arab regimes and minimization of regional instability;
*Reduces the need for full-scale Israeli wars on Palestinian and Islamic terrorism;
*Provides an alternative to Israeli military ground-operations against Palestinian terrorists, which would entail substantial Israeli and Palestinian fatalities;
*Represents joint US-Israel interests, militarily and technologically, in the face of mutual threats (e.g., Islamic terrorism) and mutual challenges (e.g., developing world-class, game-changing technologies).

*Constitutes another example of the systematic support by Congress of enhanced US-Israel cooperation.

The decisive role played by Congress in the replenishment of the “Iron Dome” underscores the cardinal rule of the US political system: The President proposes, but Congress disposes.

The involvement of Senators and House Representatives in foreign policy and national security-related issues has surged since the Vietnam War, Watergate and Iran Gate scandals, the dismantling of the USSR (which transformed the world from a bi-polar to a multi-polar) and rapidly-expanding globalization.

In fact, former Secretary of State, Jim Baker, complained about the growing congressional assertiveness in the area of foreign policy: “You can’t conduct foreign policy with 535 Secretaries of State….”  Former Secretary of Defense, Dick Cheney, criticized Congress for micromanaging the defense budget: dictating how much to spend on particular weapons, imposing detailed requirements and programmatic restrictions, venturing into policy-setting and requesting that the Department of Defense submits mountains of reports.

Congressional muscles 

The US Congress is the most powerful legislature in the world, and it has demonstrated its co-equal, co-determining muscle in the areas of foreign and defense policies on many occasions, such as:

*Imposing sanctions against foreign countries in defiance of Presidents Clinton, Obama and Trump (e.g., Egypt – 2012, Iran – 1996-97 and 2013, Russia – 2017);
*Non-ratification of the 2015 JCPOA, which enabled withdrawal by the US;
*The 2009 non-closure of the Guantanamo Detention Camp was led by Senate Majority Leader, Harry Reid (NV-D), in defiance of President Obama.
*The 2009 non-confirmation of Charles Freeman to the Director of National Intelligence was led by Senator Chuck Schumer (NY-D);
*The 1999 non-ratification of the Comprehensive Test Ban Treaty in defiance of President Clinton and the international community;
*The unprecedented expansion of US-Israel strategic cooperation took place despite stiff opposition by President Bush and Secretary of State Baker;
*The Comprehensive Anti-Apartheid Act overrode President Reagan’s veto;
*The 1984 Boland Amendment aborted President Reagan’s financial and military aid to anti-Communist elements in Nicaragua;
*The 1983 blocking of President Reagan’s attempted coup against the Surinam pro-Soviet regime;
*The 1978 Foreign Intelligence Surveillance Act mandated congressional authorization of surveillance of persons and organizations, which may threaten national security;
*The 1975/76 Tunney (CA-D) and Clark Amendments stopped financial and military covert support of the opposition to the pro-Soviet regime in Angola;
*The 1973 Church-Case Amendment ended funding of military involvement in Southeast Asia;
*The 1973 War Powers Act overrode President Nixon’s veto;
*The Jackson-Vanik Amendment preconditioned aid to Moscow upon free immigration.

Congress empowered by the Constitution

As documented in the aforementioned paragraphs, one is advised to note that while Congress is preoccupied with District and State issues, it has the power to both propose and dispose in the areas of foreign and defense policies.

The US Constitution aspires for a limited government and a non-monarchical president, and therefore does not limit Congress to overseeing the budget. It provides the Senate and the House of Representatives with the power to act on strategic issues and policy-setting.

The Constitution accords Congress ”the power of the purse,” oversight of government operations, ratification of treaties, confirmation of key appointments, declaration of war, funding of military operations and cooperation with foreign entities, creation and elimination of government agencies, imposing sanctions on foreign governments, etc.

In other words, the President is the “commander in-chief” within constraints, which are set by Congress.




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