[Analysis] On July 30, 2008, Israeli Prime Minister Ehud Olmert resigned under the weight of multiple corruption scandals.
Three months later, Olmert is still holding the nation’s highest office, serving as caretaker prime minister in a transitional government. He will remain atop the state hierarchy until a new government is formed following parliamentary elections that are now scheduled for February 10, 2009.
[Note: Israelis vote for a party list rather than for a candidate. The head of the party that garners the greatest number of seats in the 120-seat parliament is given the mandate to form a government and serves as the prime minister. – Ed.]
During his term in office, Olmert navigated the political spectrum from his roots on the Right to a full embrace of sweeping concessions to the Palestinians normally associated with the Left.
Only weeks ago, he capped his migration by telling a mass-circulation Israeli daily that peace with the Arabs meant ceding east Jerusalem, the Golan Heights and returning to the pre-1967 borders – all heretofore red-lines for any government negotiator.
All this has prompted a debate in Israel over whether Olmert can – legally, politically and practically – spawn a dramatic diplomatic blockbuster so staggering that it would overshadow his legacy of corruption with one of statesmanship and throw in the added rush of providing U.S. President George W. Bush – whom Olmert sees as both close friend and political ally – with the ultimate gift: a boost to his own legacy in the form of a foreign policy success, from the Middle East, no less.
While many politicians and pundits are almost reflexively painting Israel as being mired in some form of political and diplomatic suspended animation as it waits for Olmert’s successor to take the reins, analysts at The Media Line (TML) suggest that Olmert remains legally able – and certainly willing – to complete a significant agreement with either the Palestinians or Syria during his remaining days in office.
Olmert has said repeatedly that as long as he remains in office he will do his best to sign a peace agreement with the Palestinians. And as TML reported a week ago, following Olmert’s revealing newspaper interview, his Palestinian counterpart Mahmoud ‘Abbas told reporters in Ramallah that he would continue to deal with Olmert "until his last minute in office," after which ‘Abbas reminded those present what Olmert stated in the interview.
While it is commonplace to hear public figures opine that Olmert, as head of a transitional government, is precluded from doing so, Israeli law stipulates that a transitional government enjoys the same authorities as a regular government. And even if there are certain restrictions, there are other permutations of possible deals that could have almost the same impact.
Palestinian sources, for instance, have told TML that one such idea being bandied about is a prisoner exchange deal that will include Israeli soldier Gilad Shalit, captured and held by Hamas since June 2006, in return for the jailed head of Fatah’s Tanzim faction, Marwan Barghouthi, who is serving five consecutive life sentences for involvement in murders carried out during the second intifada. Thousands of other Palestinian prisoners would be released in the version being cooked up behind closed doors in Ramallah and Jerusalem.
So, according to a not-unrealistic scenario, an Israeli premier who resigned in July 2008 could still leave his mark on history by signing a peace agreement with the Palestinians, in the process releasing from jail the man most preferred as the successor-head of the Palestinian Authority.
How is that possible?
TML asked Prof. Amnon Rubinstein, one of Israel’s leading experts on constitutional law, to clarify what the law allows and what might be prohibited by nothing more than custom.
According to Rubinstein, it is "customary practice" that a peace agreement or any agreement that involves concessions of territory under Israeli sovereignty must be brought to the Knesset (Israel’s parliament) for its approval.
"That’s what Begin and Rabin did before they signed the peace agreements with Egypt and Jordan," Rubinstein said. "It is also customary within legal circles that a transitional government cannot put facts on the ground for the next government when it comes to important issues."
Rubinstein added that according to law, any concession of territories under Israeli sovereignty has to be approved by a [public] referendum. But therein lies some of the wiggle-room available to Olmert: no law has yet been enacted that defines what such a referendum is and what percentage of the population must vote in favor in order for the referendum to pass.
The issue of sovereignty is key to the discussion. The Golan Heights and east Jerusalem have been formally annexed by acts of parliament and are therefore, according to Israeli law, under the sovereignty of the state of Israel. The entire West Bank – exclusive of east Jerusalem – however, is under military rule, and therefore not considered to be under the sovereignty of the state of Israel.
So while this leaves the all-important practical issue of whether a deal without east Jerusalem would even be considered by the Palestinians, it nevertheless removes a major legal impediment from Olmert’s path.
When former prime minister Menachem Begin signed the historic Camp David Accords with Egypt, he established the precedent of seeking ratification by the Knesset. Similarly, when former prime minister Yitzhak Rabin signed a peace agreement with Jordan, he followed the Begin precedent, even though he was not obliged to do so by law.
Previously, when prime minister Golda Meir signed cease-fire agreements with Egypt and Syria ending the 1973 Yom Kippur War, she did not seek parliamentary ratification even though she was, at the time, heading a transitional government.
Most recently, when then-premier Ariel Sharon decided to withdraw from the Gaza Strip, land that had been under Israeli control for decades, he did not wait for the Knesset’s approval.
Although diametrically opposed in direction, the actions of both prime ministers, Meir and Sharon, fell within legal parameters.
It remains to be seen whether Olmert considers himself bound by "customary practice" as well as by law. Whether he does – and to what degree he does, taking into account certain political [and perhaps his own legal] considerations – will determine the course he will set.
Contrary to the emerging conventional wisdom, a number of options remain available to Olmert. At the maximum, one course is to forge the broadest possible agreement, believing that no political or legal force will derail a comprehensive settlement that, arguably, Olmert alone is in a position to make.
An alternative might be slightly less comprehensive, omitting only those areas he believes to be outside of his reach.
And a third might be the rumored Shalit-Barghouthi deal.
But what is clear is that all is not clear at all. Whatever course of action Olmert chooses – if he does choose to act – will be hailed by some and scorned by others. The "others" will promptly seek judicial review.
And while the ultimate outcome might not resemble the starting point too closely, it will afford Olmert far more flexibility than some are willing to believe.