With Homesh yeshiva students beginning a permanent building for the West Bank yeshiva on Sunday night, Israel could be back on the hot seat with the Biden administration and the International Criminal Court.
If the move were made only by Finance Minister Bezalel Smotrich or National Security Minister Itamar Ben-Gvir, both already persona non grata among US and European officials, that would be less surprising. But the move had the clear backing of Defense Minister Yoav Gallant.
Whenever Smotrich, Ben-Gvir or some other member of the coalition has provoked either US or top IDF officials’ ire, Gallant has presented himself as the “grownup in the room” who lectures them about acting responsibly and about how crucial are relations with the US.
Over and over again, he has repeated that the issues Smotrich or Ben-Gvir were fighting about were small beans, and what really matters is keeping the US happy with Israel, so that Jerusalem will have Washington’s full support on a potential D-Day against Iran or in some other serious conflict with Hezbollah or Hamas.
Gallant warned repeatedly against risking US cooperation
Repeatedly, Gallant has said other officials in the coalition have needlessly risked future American cooperation on the big issues and harmed the IDF’s unity, suggesting that he is focused solely on big-picture Israeli war-and-peace national interests.
If that is true, how will Gallant explain himself to US Secretary of Defense Lloyd Austin, when he gets a telephone call complaining about Homesh?
Homesh was a yeshiva in a Northern Samaria town that Israel withdrew from in 2005 in parallel to the Gaza Strip disengagement under then-prime minister Ariel Sharon.
The idea was that Homesh and a few other minor West Bank withdrawals were to be a down payment on potential later withdrawals from the West Bank, while delaying those later larger withdrawals until the Palestinians were ready to cut a deal on better terms.
By withdrawing from even some small parts of the West Bank, Sharon messaged to the US and Europe that he was not leaving Gaza in an effort to keep all of Judea and Samaria.
But there have not been any major similar withdrawals since, and Israel’s political scene has shifted far more rightward, such that the Knesset passed the Disengagement Repeal Law in March, legalizing a return to some areas of Northern Samaria.
International condemnation of disengagement repeal
Last week, US State Department spokesman Matthew Miller said: “We are deeply troubled by the Israeli government’s order that allows its citizens to establish a permanent presence in the Homesh outpost in the northern West Bank, which according to Israeli law was illegally built on private Palestinian land.”
The order was inconsistent with understandings between Sharon and former US president George W. Bush in an exchange of letters in 2004, he added.
The French Foreign Ministry also spoke out against rebuilding Homesh, saying doing so would violate international law.
Even under Israeli law, the new Homesh move has only been approved at the planning stage, so it could be viewed as illegal for the yeshiva to have been set up before final approval.
How will this not jeopardize US relations, and how could one small yeshiva be worth butting heads with the Jewish state’s big brother, when there are bigger war-and-peace issues for which Israel needs the Biden administration’s support?
The Jerusalem Post has learned that Gallant has some ammunition to explain his actions to Washington.
First of all, there is a parallel case against the Homesh yeshiva before the High Court of Justice. However, that case may go sideways, because the location of the new Homesh yeshiva is now on state land and not private Palestinian land. In other words, the Homesh yeshiva was rebuilt near its old location but in a different spot, which transformed its legal status.
If the High Court cannot block the settlers from building on the new location, which is state land, then the procedural issues about planning versus final approval seems less important, and it becomes harder for Gallant to explain to the settlers why they cannot be there.
Of course, the US can say, regardless of the letter of the law, the spirit of US-Israel relations right now is to uphold the status quo in the West Bank, which means no new building. It can say Gallant is associating himself too much with Smotrich and Ben-Gvir by endorsing this new move in the West Bank, and he could lose being seen as the responsible Israeli leader who can be relied on.
Furthermore, some IDF officers privately said they thought Gallant’s decision was irresponsible and could lead to greater West Bank tensions or issues with the US.
Gallant's defense against criticism
However, Gallant can respond that centrist National Unity chairman Benny Gantz, when he was defense minister, had endorsed a legal strategy for doing exactly what Gallant is doing now. If restoring certain settlements and outposts where it could be done on state land was good enough for Gantz, then Gallant is merely associating himself with Israeli centrist and consensus principles.
More importantly, Gallant can still point out that the new Homesh yeshiva and some other possible small moves really are small and symbolic. They will not really change the status quo of the much larger West Bank issue.
This does not mean that the US will not necessarily be upset with Gallant, but it could lessen the blow, and taking into account that he is just one minister who is part of a government that agreed to certain coalition deals, it could allow him to still be viewed as a preferred interlocutor for that government.
That leaves the International Criminal Court as a serious issue. One of Israel’s defenses against the ICC’s alleged war-crimes allegations regarding settlements has been that there has been little to no completely new settlement activity (as opposed to growth within existing settlements) since the ICC’s 2014 timeline kicked into effect.
Might restoring Homesh in a new location be considered a greater violation? This issue is harder to judge, since this would require the ICC to frame settlements as a criminal-law issue, as opposed to a fundamentally political-diplomatic border dispute, and it is also less on Gallant’s radar screen than US relations.
It is far from clear whether the Homesh move will have wider repercussions, but Gallant at least thinks he can come out of the episode with his positive personal relations with US officials intact.