The Obama Administration is sending strong signals that once the election is over it may make a major push to resolve the Israeli-Palestinian conflict at the United Nations. Despite repeated invitations by Israeli Prime Minister Benjamin Netanyahu to Palestinian Authority President Abbas to meet without preconditions, the stalemate persists. Some blame it on Palestinian unwillingness to recognize Israel as the nation state of the Jewish People and to compromise to the so-called "right of return." Others — including the current U.S. Administration — lay the blame largely at the feet of the Netanyahu government for continuing to build in the West Bank, most recently approval of between 98 and 300 new homes in Shiloh. Whatever the reasons – and they are complex and multifaceted — President Obama should resist any temptation, during his final weeks in office, to change longstanding American policy — that only direct negotiations between the parties will achieve a lasting peace.
In particular, Obama should veto an expected French resolution in the Security Council establishing an international peace conference under the auspices of the U.N. The general parameters of the French resolution would likely call for:
"Borders based on the 1967 Lines with agreed equivalent land swaps; security arrangements preserving the sovereignty of the Palestinian State and guaranteeing the security of Israel; a fair, equitable, and negotiated solution to the refugee problem; an arrangement making Jerusalem the capital of both states."
These guidelines may sound reasonable. Indeed, they are strikingly similar to the offers made to and reject by the Palestinian leadership in 2000-2001 from former Israeli Prime Minister Ehud Barak and former U.S. President Bill Clinton, and in 2008 by former Israeli Prime Minister Ehud Olmert. The U.N., however, has disqualified itself from playing any constructive role in the peace process. Recent attempts by the U.N. to intervene in the Israeli-Palestinian conflict have produced unmitigated disasters. The so-called Goldstone Report, which sought to investigate allegations of war crimes committed during the 2009 Israeli intervention in Gaza, was so blatantly biased against Israel that Richard Goldstone himself had to retract some of its key findings in 2011.
Since then, the U.N. has done nothing to reassure Israel that it is capable of offering an unbiased forum for negotiations. In the past year alone, the U.N. has singled out Israel for special criticism on issues like health rights, and most laughably, women's rights, while failing even to mention regimes whose record on these issues is truly abominable. Last year alone, at least twenty separate resolutions were adopted by the U.N. General Assembly, which singled out Israel for special criticism. Most recently UNESCO attempted to erase millennia of Jewish history with regard to the Temple Mount in Jerusalem. In light of such behavior, the U.S. should not trust that Israel would receive a fair hearing at any U.N. sponsored peace conference.
As Netanyahu said in his most recent speech to the U.N. General Assembly, "The road to peace runs through Jerusalem and Ramallah, not through New York." In other words, the only way forward for the Israeli-Palestinian peace process is bilateral negotiations between the two parties. Netanyahu and Abbas must sit down and agree to necessary but painful compromises aimed at establishing a Palestinian state, while addressing Israel's security concerns, and the realities on the ground. Resolutions such as the proposed French resolution undermine such efforts by encouraging the Palestinians to believe that direct negotiations — and the mutual sacrifices they would entail — are unnecessary, and that a Palestinian state can be achieved on the basis of U.N. resolutions alone. It would also make it more difficult, if not impossible, for the Palestinian Authority to accept anything less than that already given them by the U.N. — which would in turn guarantee the failure of any realistic negotiations.
It is for these and other reasons that American policy has long been to veto or otherwise derail U.N. attempts to interfere with the Israeli-Palestinian peace process even when it is stalled. As President Obama said in 2013:
"We seek an independent, viable and contiguous Palestinian state as the homeland of the Palestinian people. The only way to achieve that goal is through direct negotiations between Israelis and Palestinians themselves."
Hillary Clinton, too, has stated in the past, that she supports bilateral negotiations between the Israelis and Palestinians, and her campaign has said that she "believes that a solution to this conflict cannot be imposed from without." So, too, has Donald Trump.
Recently, however, several past and present Obama officials have apparently advised the president to support, or at least not veto the French resolution, as well as a one-sided Palestinian push to have the U.N. declare Israeli settlements illegal. It would be wrong — and undemocratic — for Obama to unilaterally reverse decades of U.S. foreign policy during the lame duck period. After all, in 2011 his administration vetoed an almost identical Palestinian proposal that called for Israel to "immediately and completely cease all settlement activities in occupied Palestinian territory, including East Jerusalem". Similarly, until now, Obama has repeatedly pressured the French and other European nations not to put forward any proposal related to the Israeli-Palestinian conflict, on the grounds that such initiatives discourage bilateral negotiations. This is surely the view of the majority of the Senate, which has its own constitutional authority to participate in foreign policy decisions. In fact, 88 senators signed an open letter to Obama in which they called on the President to veto any Security Council resolutions regarding the Israeli-Palestinian conflict.
The period between the election and the inauguration is the only time a president can act without the checks and balances of American democracy. He should not take action that would tie the hands of his successor.
U.S. President Barack Obama addresses the UN General Assembly's seventy-first session, September 20, 2016. (Image source: United Nations)
Obama must realize that no lasting peace can be achieved in the remaining months of his presidency: there are a multitude of complex and contentious issues — most notably the status of Jerusalem, the rights of so-called Palestinian refugees, and the situation in Gaza — that must be thoroughly addressed in order to achieve a lasting peace. Our next president will undoubtedly have to wade into the Israeli-Palestinian peace process again. The new administration — with the agreement of the Senate — should have full latitude to do what it deems most appropriate. It should not be stuck with parameters bequeathed to it by a President desperate to secure a short-term foreign policy "victory" that in the long term will make a resolution of the conflict more difficult to achieve.
If Obama feels that he must intrude in an effort to break the logjam before he leaves office, he should suggest that the current Israeli government offer proposals similar to those offered in 2000- 2001 and 2008 and that this time the Palestinian leadership should accept them in face-to face negotiations. But he should take no action (or inaction) that invites U.N. involvement in the peace process — involvement that would guarantee failure for any future president's efforts to encourage a negotiated peace.
We should hear the views of both candidates on whether the U.S. should support or veto a Security Council resolution that would tie their hands were they to be elected president. It is not too late to stop President Obama from destroying any realistic prospects for peace.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, and author of Taking the Stand: My Life in the Law and Electile Dysfunction. An earlier version of this article appeared in the Jerusalem Post.