February 2, 2017 | House Committee on Foreign Affairs
Israel, the Palestinians and the United Nations: Challenges for the New Administration
Chairman Ros-Lehtinen, Chairman Smith, Ranking Member Deutch, Ranking Member Bass, and distinguished members of these subcommittees, on behalf of the Foundation for Defense of Democracies, thank you for the opportunity to testify. My testimony will address the policy options for the Palestinian-Israeli conflict that former president Barack Obama was considering at the end of his term. From there, I will discuss the deleterious impact of United Nations Security Council Resolution 2334. I will also present new FDD research that raises troubling questions about the role of the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) in the ongoing campaign to delegitimize Israel. Finally, I present a number of recommendations for Congress and the new administration to consider.
Obama’s Policy Options on the Palestinian-Israeli Conflict
In the months leading up to his departure, outgoing president Barack Obama tasked various officials within the U.S. bureaucracy to prepare policy options for ways he could, as one U.S. official put it to me, “level the playing field” between the Palestinians and Israelis, with the assumption that US policy was too supportive of Israel. This official noted, “all options [were] on the table” for the President to either punish Israel for its policies in the disputed territories or to increase Palestinian leverage in its effort to gain international recognition.
Of course, it is not unheard of for a president to engage in last minute maneuvers to further the cause of Palestinian-Israeli peace. President Ronald Reagan initiated a dialogue with the PLO in the waning days of his Administration in an effort to give the Bush Administration cover to launch a process that brought both sides to the table. The Clinton Administration fought until its last days to bring both sides together. What is notable about both of these examples is that these were efforts to cajole both sides to engage in diplomacy. Neither was designed to be a punitive measure against Israel. By contrast, Obama’s menu of options appeared to be largely punitive in nature, and seemed to be designed to influence the next president’s relationship with Israel.
Below are the major options that were under consideration:
1.A U.N. Security Council Resolution to guide the final outcome of negotiations. The Administration was considering a binding measure before the UN Security Council. The resolution, as envisioned, would lay out new parameters for diplomacy and replace UNSCR 242 in future negotiations. FDD assessed that this was not likely because the administration had promised publicly that it would not do this. Second, the White House understood that a process of this magnitude at the United Nations might begin with one set of parameters, but could become very unwieldy and ultimately yield a very different resolution than the U.S. had in mind. Third, the President had already stated in 2011, “it is up to Israelis and Palestinians to take action. No peace can be imposed upon them.” Finally, in handing this file to the U.N., the White House would effectively be ceding its role as primary mediator in the Israeli-Palestinian conflict to the international community.
2.Abstaining or Voting for Recognition of a Palestinian State at the U.N. In 2011, the Palestinian Authority sought to declare statehood at the UN Security Council. The United States declared its intention to veto the move, and the Palestinian Authority ultimately took the vote the following year to the General Assembly where the vote, even while overwhelmingly approved, was nonbinding. The Palestinians continued to voice their intention to declare statehood again at the UN Security Council. And while Obama might have been inclined to pave the way for this, he understood that Congress had leverage. If the U.N. recognized a Palestinian state, certain members of Congress warned they would cut U.S. aid to the United Nations. That is more than 22% of the U.N.’s total budget. This is pursuant to the prohibition on U.S. funding of U.N. agencies that recognize a Palestinian state as stipulated in two pieces of legislation that were signed into law by President George H.W. Bush in 1990 and President Bill Clinton in 1994.
3.Executive Order Against Settlement Activity. The Administration was apparently briefed on a possible executive order sanctioning Israeli officials or entities for engaging in further settlement activity, even natural growth within existing communities in the West Bank. The executive order could extend to other foreign nationals or even American citizens. One official ceded to me that such an effort would raise “legal issues.” With no similar executive order against countries involved in similar territorial disputes in Turkey, Morocco, or China, for example, the door would be open for legal challenges from Congress. A measure of this severity this late in a presidential term would have elicited a severe backlash at home.
4.Internal Revenue Service Regulations on Settlement Supporters. Obama reportedly weighed the idea of revoking the tax-exempt status of U.S. nonprofits that provide material support to organizations facilitating settlements in the West Bank. With his measure, the White House could have also instructed the IRS to begin investigations into nonprofit activities. This could have disrupted as many as 50 known U.S.-based organizations supporting communities in Israel. One alternative, according to a Congressional tax expert, was to encourage the IRS to issue informal guidance. One official noted in September that this approach would have been “legally challenging.” In addition to creating an unprecedented backlash from Congress and the pro-Israel community in America, it would likely have prompted dozens of lawsuits.
5.A Statement of “Obama Parameters.” Obama was contemplating a public speech outlining his vision for a peace agreement to form the basis of United States policy, and perhaps inform new multilateral initiatives. The move would be nonbinding, but perhaps influence the next round of diplomacy between the Palestinians and Israelis. Of course, it was ultimately former Secretary of State John Kerry who issued his parameters on December 28, 2016, in a 70-minute speech that placed the blame for the lack of diplomatic progress at the feet of the Israelis.
6.A U.N. Security Council Resolution on Settlements. Finally, Obama was mulling a UN resolution against settlement activity by Israel. Such a measure would not be described as a new initiative designed to isolate Israel, but rather as an extension of UNSCR 446 from March 1979, with updates. The goal was not to initiate the resolution, but rather abstain or even vote for a measure that another country introduced. And while it was never articulated, it was widely understood that the move would energize the Boycott, Divestment and Sanctions (BDS) campaign against Israel. Obama understood the damage that such a resolution could cause. This is why the Administration used its veto power in 2011 when a resolution on settlements was brought to the Security Council. But as we now know, Obama instructed his UN ambassador, Samantha Power, to abstain on the measure followed by a speech in which she, rather remarkably, excoriated the UN for singling out Israel.
As we all know, Obama chose two of the six options noted above. He also made a surprising and unforeseen move in the waning hours of his presidency when he attempted to send $221 million to the Palestinian Authority. The money was held up by legislators on both sides of the aisle.
 Interview with U.S. officials, September 14, 2016.
 Robert Pear, “U.S. Agrees to Talks with PLO, Saying Arafat Accepts Israel and Renounces All Terrorism,” The New York Times, December 15, 1988. (http://www.nytimes.com/1988/12/15/world/us-agrees-talks-with-plo-saying-arafat-accepts-israel-renounces-all-terrorism.html?pagewanted=all)
 “Remarks of President Barack Obama – As Prepared for Delivery – ‘A Moment of Opportunity’,” The White House, May 19, 2011. (https://www.whitehouse.gov/the-press-office/2011/05/19/remarks-president-barack-obama-prepared-delivery-moment-opportunity)
 Mahmoud Abbas, “The Long Overdue Palestinian State,” The New York Times, May 16, 2011. (http://www.nytimes.com/2011/05/17/opinion/17abbas.html)
 Ethan Bronner & Christine Hauser, “U.N. Assembly, in Blow to U.S., Elevates Status of Palestine,” The New York Times, November 29, 2012. (http://www.nytimes.com/2012/11/30/world/middleeast/Palestinian-Authority-United-Nations-Israel.html)
 “Abbas Seeks to Re-Submit Statehood Bid to U.N. Security Council,” Reuters, January 4, 2015. (http://www.reuters.com/article/us-mideast-palestinians-idUSKBN0KD0K120150104)
 “Assessment of Member States’ Contributions to the United Nations Regular Budget for the Year 2015,” United Nations Secretariat, December 29, 2014. (http://www.un.org/ga/search/view_doc.asp?symbol=ST/ADM/SER.B/910)
 Limitation on Contributions to the United Nations and Affiliated Organizations, Pub. L. 103-236, 108 Stat. 454, codified as amended at 103 U.S.C. §410. (http://graphics8.nytimes.com/packages/pdf/world/PLO-UN-legislation.pdf) & Membership of the Palestine Liberation Organization in United Nations Agencies, Pub. L. 101-246, 104 Stat. 70, codified as amended at 101 US.C. §414. (http://graphics8.nytimes.com/packages/pdf/world/PLO-UN-legislation.pdf)
 Interview with U.S. officials, September 14, 2016.
 Eugene Kontorovich, “The Problem with Using the Tax Code to Punish Israeli Settlements,” Tablet, October 6, 2016. (http://www.tabletmag.com/scroll/215286/the-problem-with-using-the-tax-code-to-punish-israeli-settlements)
 Mark Landler, “Obama Seeks to Pave Way to Mideast Deal After He Leaves Office,” The New York Times, March 8, 2016. (http://www.nytimes.com/2016/03/09/world/middleeast/obama-seeks-a-way-to-save-israeli-palestinian-gains.html)
 “Resolution 446 (1979),” U.N. Security Council, March 22, 1979. (https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/370/60/IMG/NR037060.pdf?OpenElement)
 Ed Pilkington, “U.S. Vetoes UN Condemnation of Israeli Settlements,” The Guardian, February 18, 2011. (https://www.theguardian.com/world/2011/feb/19/us-veto-israel-settlement)
 Alexander Lockie, “Why Obama sent the Palestinians $221 million during his last hours in office,” Business Insider, January 24, 2017. http://www.businessinsider.com/obama-queitly-sends-221-million-to-palestine-2017-1