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Yoram Ettinger: Are US international agreements carved in stone? (e.g., The “Deal of the Century”)

By Ambassador (ret.) Yoram Ettinger, “Second Thought: a US-Israel Initiative”
June 19, 2020, https://bit.ly/37PDd2r

Yoram Ettinger

Do commitments made by a US president bind his successors? History proves that these commitments do not even bind the president who signed them.

Even when the US commitments are driven by the purest of intentions, one should recognize certain features – a derivative of the US Constitution and the power struggle between the Legislature and the Executive – which have characterized all US international agreements, pacts, memoranda of understandings and guarantees since 1776 (thoroughly researched by Hebrew University Prof. Michla Pomerance).  These inherent features are designed to subordinate the implementation (or non-implementation) of all US international commitments to the overriding US interests, as defined by the implementing president, not necessarily the president who signed the commitments.

Take for example, the feature of vagueness and non-specificity, as demonstrated by “the Deal of the Century.”  The Deal stipulates Israeli security control in the entire area from the Jordan River to the Mediterranean. But, who defines “control?”  Will it be President Trump and his team, or the more pro-Palestinian team of President Biden? Obviously, each team will have a different interpretation, reflecting their different worldviews and ideology, minimizing or maximizing the scope of “control,” which could render Israeli “control” highly-constrained and quite ineffective.

What constitutes “interpretation” for the promisor (USA), may be perceived as “breach” and “evasion” by the promisee (Israel).

Moreover, the list of preconditions for the establishment of a Palestinian state is subject to contradictory, subjective interpretations of the preconditions and related-compliance set by President Trump or President Biden?  The strict school of thought may insist that the Palestinians will have to become Canadians in order to comply with the preconditions (Trump), while the lenient school of thoughts may be satisfied with Palestinians remaining Palestinians (Biden).  Thus, in 1993, Arafat and Mahmoud Abbas, supposedly, accepted a list of preconditions, in order to establish the Palestinian Authority in Judea, Samaria and Gaza. Notwithstanding their systematic and egregious violation of the preconditions, Arafat became the most-frequent-visitor to President Clinton’s White House and was awarded the 1994 Nobel Prize for Peace. Furthermore, President Clinton, President Obama, and all Israeli Prime Ministers since 1993, vouched for the good behavior (compliance) of Arafat and Mahmoud Abbas. This facilitated the handover of Hebron to the Palestinian Authority (1997), and the transfer of the $400MN annual US foreign aid to the Palestinian Authority, notwithstanding the unprecedented wave of Palestinian hate-education and terrorism.

Then, there is the feature of non-automaticity, which stipulates that the implementation of all US agreements and guarantees is in the hands of a sitting US president, depending on the president’s worldview and assessment of US interests.

The bottom line – and the third feature of US international commitments – is that they are deliberately open-ended, in order to preserve US interests, irrespective of other interpretations and reservations by the other parties to the agreement.

Anyone who assumes that a US international commitment is carved in stone should examine the very important, yet non-specific, non-automatic and open-ended NATO treaty (article 5): “…The Parties agree than an armed attack against one or more of them shall be considered an attack against them all….Each of them… will assist the Party of Parties so attacked by taking…such action as it deems necessary, including the use of armed force….”

Another feature of US international commitments involves the balance of power between the US Legislature and the US Executive. Thus, the ratification of an agreement requires a 2/3 Senate majority (at least 67 Senators), which is currently an impossibility under the political climate on Capitol Hill: a 52:48 Republican Senate majority and a vehemently anti-Trump Democratic party.

As an example, in 1999 and 2000, President Clinton signed the Comprehensive Test Ban Treaty, prohibiting international nuclear testing, and the Rome Statute, which established the International Criminal Court in the Hague. However, he did not submit the Rome Statute for Senate ratification (realizing that there was no support for ratification), and the Test Ban Treaty was also not ratified – it was defeated 48:51 in the Senate.

The open-ended nature of US international commitments, and the paramount role of US interests during the implementation phase, were demonstrated in the US defense treaty signed with New Zealand (in 1951), which was suspended in 1986 due to US considerations.  Likewise with the 1955 US-Taiwan Defense Pact, which was terminated in 1979, when President Carter decided that enhancing ties with China was much more important than abiding by a prior treaty with Taiwan.

The power of the President to suspend international treaties was reaffirmed in a November 15, 2001 Memorandum submitted by the US Justice Department: “The President has broad constitutional powers with respect to treaties, including the powers to terminate and suspend them…”

When it comes to Israel:

*In 2000, President Clinton pledged to Prime Minister Barak $800MN in emergency aid to fund Israel’s withdrawal from Lebanon. However, it was never delivered, since Congress – which possesses the Power of the Purse – did not agree to fund the self-defeating withdrawal (which triggered an unprecedented wave of Palestinian terrorism).

*In 1967 – on the eve of the Six Day War – Israel became increasingly besieged by Egyptian violations of the demilitarization of the Sinai Peninsula, blockading the port of Eilat and forming the joint Egypt-Syria-Jordan anti-Israel military command.  Therefore, Prime Minister Eshkol submitted to President Johnson the assurance (Aide Memoir) from President Eisenhower, which was issued in 1957, in order to entice Israel to withdraw from the Sinai Peninsula. The Eisenhower assurance implied – but did not specify – a US willingness to deploy its military in face of Egyptian violations.  The pro-Israel President Johnson invoked constitutional and congressional non-compliance, stating that Eisenhower’s Executive Commitment did not bind Eisenhower’s successors, and “it ain’t worth a solitary dime.” He added that “Israel will not be alone unless it decides to go alone,” and concluded by stating:  “I am a tall Texan, but a short president in the face of a Congress that opposes overseas military deployment.”

*In 1979 – during the final stages of the Israel-Egypt peace talks, when President Carter attempted to insert a reference to a future Israeli withdrawal from the Golan Heights – the Israeli team shared with Carter the September 1, 1975 assurance of President Ford’s to Prime Minister Rabin, geared to induce an Israeli withdraw from the Gulf of Suez to the Mitla’ Pass in mid-Sinai: “… [The US] will give great weight to Israel’s position that any peace agreement with Syria must be predicated on Israel remaining on the Golan Heights.”  President Carter’s correct response was that President Ford’s executive commitment did not bind any of Ford’s successors in the White House.

The aforementioned comments do not constitute a criticism of the US, but is advice to Israeli policy-makers to study precedents, and to realize the substantial vagueness and other limitations of any US presidential commitment, guarantee or assurance, and avoid – rather than repeat – past critical mistakes.

Moreover, Israel’s national security must be based on the worst – not the best – case scenario, especially in the increasingly unpredictable, turbulent political climate in the Middle East and the world at-large, including the USA.

Finally, Israel must retain the independence of national security action, including the application of its laws to the Jordan Valley, Judea and Samaria, rather than await a “green light” from Washington, DC.  This critical feature of leadership was demonstrated – in defiance of brutal US and international pressure – by Prime Ministers Ben Gurion (expanding Israel’s area by some 30% during the 1948/49 War), Eshkol (preempting an Arab war on Israel, reuniting Jerusalem and establishing the initial Israeli neighborhoods beyond the “Green Line”), Golda Meir (expanding Jewish presence beyond the “Green Line”), Begin (applying Israel’s law to the Golan Heights and destroying Iraq’s nuclear reactor) and Shamir (bolstering Israel’s presence in Judea and Samaria).

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