Tripping in Jerusalem: The Biden-Israel "Flap"

Conventional wisdom has it - if you aggregate the views of pundits, columnists, and State Department pronouncements - that the current downward spiral in Israel-U.S. relations, which seems to be snuffing out any chance of Middle-East peace, was the inevitable result of the surprise announcement by Israel's Minister of Interior approving new Israeli housing units in East Jerusalem. In this view, Vice President Biden had no choice but to unleash an unprecedented display of American anger, followed-up by Secretary of State Clinton's dressing-down of Prime Minister Netanyahu.

After all, Biden was there on a peace mission to jump-start the moribund Israeli-Palestinian talks. He could ill afford to see an Israeli show of discourtesy in revealing an embarrassing truth - that Israel had no intention of curbing housing starts in East Jerusalem which it considers its sovereign territory and free to do with it as it pleases.

The Biden rebuke took no less than 90 minutes to formulate and orchestrate, keeping Israeli Prime Minister Netanyahu cooling his heels while bureaucrats and political appointees in Washington (if not President Obama directly) spent the time finding the right phrase. In the end the decision was made to bring on the heavy cannon of the diplomatic lexicon: the word "condemn."

"I condemn the decision by the government of Israel to advance planning for the new housing units in East Jerusalem", Biden railed. Never was American displeasure of Israeli action displayed in starker terms since the U.S. joined (in a decision it has come to regret) in the 1981 U.N. Security Council condemnation of Israel's air attack on the Iraqi nuclear reactor at Osyrak. To be sure, the stakes were different. In 1981, the Reagan Administration feared - rightly or wrongly - that the bombing could ignite a free-for-all in preemptive military strikes. Now the Obama Administration is rebuking the Israeli government because the "substance and timing of the announcement....undermines the trust we need right now and runs counter to the constructive discussions that I've had here in Israel".

Surely, the Obama Administration knew there were softer ways to make its point. For example, as one veteran U.S. Middle-East observer, Robert Malley, wrote, they could have merely thanked the Israeli Minister of Interior for clarifying the issues. Clearly, Israel had never pledged to change its policy to treat East Jerusalem (as opposed to the West Bank) as sovereign Israeli territory, placing issues of housing off-limits for purposes of negotiation or Israeli-American dialogue. It had pledged to keep its true intentions under wraps (as if the Palestinians were not fully aware of them) in order to provide a fig leaf for American efforts at jump-starting "proximity" talks.

Seen in this light, was the Obama Administration's idea of a resounding American rebuke of Israeli housing in East Jerusalem pre-planned, if not pre-packaged, waiting for a misstep by the Israelis as an occasion for its activation? Phrased differently, had the Obama Administration already embarked, before Biden's foray, on a radically different approach to U.S. foreign policy toward the Israel-Palestine dispute? True, no one in the Obama Administration explicitly said that new Israeli housing units in East Jerusalem were unlawful, but that was the conclusion others (even those unacquainted with the diplomatic usage of "condemn" as reserved for acts of aggression, torture, and the like) were left to draw by the strong language and follow-up punch by Secretary of State Clinton's publicized dressing-down of Netanyahu. Make no mistake about it: if that were the intention, it signifies a fundamental change in U.S. foreign policy.

Israel's official position remains, as it has for the last forty years, that East Jerusalem's status is not negotiable. Of course, in actual negotiations hard and fast positions are prone to change, even those characterized as nonnegotiable. And, Israel's position on Jerusalem may well change during negotiations. But it seems delusional to believe that Israel can be forced to change its position on Jerusalem in advance of actual negotiations. To the extent that this is the ambition of the Obama Administration, as it seems to be, it marks a radical departure from the long-held U.S. policy towards Israel.

For the last forty plus years Washington's position has been that: (a) the status of Jerusalem is distinct and wholly different from that of the West Bank; and (b) that while the United States considers Israeli settlement activity in both Jerusalem and the West Bank to be ill advised, it does not deem West Bank, let alone East Jerusalem settlements, to be unlawful.

To be sure, U.S. presidents are free to announce new doctrines and policies, and do not need Congressional approval or even that of the American public. But it is generally accepted, nevertheless, that this is done openly with an opportunity for an airing of costs and benefits. Here, to the extent U.S. foreign policy was changed, it was changed by stealth, although undoubtedly in response to an ill-timed Israeli announcement in violation of its assurance to maintain the charade that Jerusalem was negotiable.

Now we are left to reap the whirlwind. Having had the United States condemn Israel for the substance as well as timing of its decision, Palestinians can hardly with any sense of self-dignity come to the negotiating table. And Israel's foes, who have been deterred by the strength of the U.S.-Israel alliance, would like nothing more than to further exploit the rift.

Undoubtedly, Biden was put in a tough position, although he should not have been totally surprised by the development. Could his response have expressed disappointment while not igniting a show-down with Israel on Jerusalem in which it is unclear whether the Unites States will prevail? History will have to judge. But, at the moment it looks like personal pique and the determination to forge a new policy regardless of costs may have forged the decision in Washington.

*Allan Gerson is Chairman of AG International Law, a Washington, D.C. law firm. He served as Senior Counsel to the U.S. Delegation to the United Nations during the Reagan Administration, and is the author of "Israel, the West Bank, and International Law" (1978).