The Lawfare Podcast: Joel Braunold on the State of the Gaza Crisis

[Audio Excerpt]

Joel Braunold: If you're Hamas, and you're looking at what's been going on, and you can see that Israel and the United States are fighting, and you can see that the region is gearing up to try and create an end to this conflict, an end to this war and a political horizon for the Palestinians, and you can see that the Israeli international credit is dipping so much, and you can see Ramadan coming, you can reach the conclusion, "Hey, why don't we slow play this?"

If the Israelis are fighting with everyone and there's internal divisions splitting them and the international community is getting fed up and now they're invading Rafah after they were told not to, if we play this out and we continually spool this out and ask for greater and greater demand that we know that the Israelis can't agree to, they'll dig their own grave.

[Main Podcast]

Scott Anderson: I'm Scott Anderson, and this is the Lawfare Podcast for February 20th, 2024. The conflict in Gaza is headed towards a critical juncture. Israeli political leaders have signaled their intent to assault Rafah, one of the final safe havens for displaced Gaza civilians, a move that U.S. and other international leaders fear could trigger a humanitarian crisis or even the long-term displacement of Palestinians from Gaza. Meanwhile, negotiations for both a ceasefire and a longer-term resolution of the crisis are ongoing, but have little to show thus far. To discuss the many moving pieces of the Gaza crisis, I recently sat down, once again, with Joel Braunold, Managing Director at the S. Daniel AbRafahm Center for Middle East Peace. It's someone who has long been involved in Middle East peace efforts. We discussed the current state of Israel's military operations, how it is impacting and being impacted by domestic politics in Israel and elsewhere, and the significance of recent events ranging from the International Court of Justice's grant of provisional measures to the Biden administration's efforts to sanction the perpetrators of West Bank settler violence. All with an eye for better understanding where this crisis may yet be headed.

It's the Lawfare Podcast for February 20th: Joel Braunold on the state of the Gaza crisis.

Joel, before we get into the bigger political context around the conflict in Gaza and some of the diplomatic negotiations that are ongoing, let's start with a little bit of a catch up on the state of play on the ground. We're recording about midday on the east coast on February 15th, that's Thursday. So right now we know there is a Rafah offensive that's underway by Israeli forces in Gaza. We've just seen a raid on the Nasser medical complex that's being justified as an effort to recover potentially the remains of hostages or find information about hostages that Israeli government says were located there. And of course, we're seeing a kind of a new wave as part of the Rafah offensive of displacement, people being encouraged to move out of Rafah in the vicinity. Many of them had fled there from other parts of Gaza during earlier stages of this conflict.

Catch us up a little bit, what are the dynamics around the pace of the conflict and the way it's unfolding? The tempo is certainly not what it was. at an earlier phases at the conflict. But, is there a chance of ramping back up? And what does the Israeli government seem to be focusing on in this late stage of of this military campaign?

Joel Braunold: Thanks, Scott. And it's a pleasure to be back with you. So as you mentioned, starting on Sunday night, where there was the first airstrikes and then a military operation to free two hostages, and then followed by the operation this morning that started indeed again focused, according to the Israelis on hostage recovery, this time potentially of remains, the Israelis and Prime Minister Netanyahu have been clear that in order to achieve total victory, that Israel must take Rafah, which is the southernmost city in Gaza that abuts the border with Egypt and the Rafah crossing, which is where the majority of humanitarian aid--all of humanitarian aid, currently--is entering into Gaza. And for the Israelis, if you remember at the beginning of the conflict, they started in the north of Gaza and took Gaza City and pushed people south of Wadi Gaza, which bisects the Gaza Strip. And then as they continued the military strategy in the south, more and more people were kettled really into the south, which has really been Rafah as they move through Khan Yunis, Deir al Balah, and down there. And given the fact that there's now around 1.4 million displaced individuals in Rafah, the international community, the Biden administration, have been very clear to the Israelis that there shouldn't be a military takeover of Rafah without a substantial plan about how you would secure the safety of the Gaza civilians there. Last week the prime minister's office put out a statement saying that they had ordered the IDF--which already is weird because the prime minister can't order the IDF in the Israeli constitutional order--but anyway, that the prime minister has ordered the IDF to clear, to find a way to get, to move the civilians and to take Rafah.

Now, when the first airstrikes were happening on Sunday, when the Americans were watching the Super Bowl, there was a feeling like this was another finger in the eye to the Biden administration and the Israelis were going forward anyway. After a few hours, it became clear that the Israelis were doing this as part of a hostage rescue, and they rescued two of their hostages, and it has emboldened them to do now another operation. Now, as the prime minister is threatening to take over the whole of Rafah and is signaling that's his intent there's a question about whether he's signaling that to put pressure on Hamas and on the hostage negotiations to say, "If you don't come closer to the Israeli demands on the hostage negotiations, we will take this over and we've already demonstrated we can." Or if this is him not just posturing, but promising they'll take it over.

And some military planners and analysts are a little bit perturbed because when the Gaza war started, it was very clear that unless you cut off the supply chain that Hamas was using through smuggling through Rafah where they had got the majority of their weapons and others, that you were always going to have to control that border. And why wouldn't the IDF start by taking over the Philadelphi Corridor and controlling that border and therefore could secure it and then facilitate aid if they wanted or anything else? Why would they push everyone south first and then try and get there when everyone's in the way? And some could say that was bad military planning. Others will say this has been the point the whole time, to put pressure and kettle, to eventually make it necessary to push Gaza civilians into the Sinai. And indeed, yesterday or the day before, there were pictures on the Egyptian side of large concrete walls being built, and it being suggested that this was to create a temporary holding location for Gaza civilians should they be pushed into the Sinai. I don't know if that's accurate, but it's lit up Palestinian online Twitter, and in some cases, was claimed that it caused Hamas to doubt or to aggressively change their policy towards the Egyptians, saying if this is what they're going to be doing to enable the displacement of Gaza civilians, then they won't participate in hostage negotiations there.

So I don't know if that's accurate, but some people claim that this kettling procedure is exactly what the Israelis wanted all along in order to push Gaza civilians into the Sinai. And the fact that we still have not heard from the prime minister of Israel that that is not the intent and that this will not happen gives life to the suspicion that some have and the fear that the Egyptians have that this is what the Israelis are aiming to do all along.

So at the moment, we've got that happening on the south and in the north, the skirmishes with Hezbollah have escalated over the past day and a half. Hezbollah's rockets hit Tzfat, a city in the north, and killed someone and injured seven others. Israel has shot back and and have injured and killed Lebanese civilians, and despite diplomatic efforts led by France and the U.S. and others to try and push Hezbollah back at least to 10 kilometers from the Israeli border, so far that hasn't been successful. And these skirmishes in the north have a real potential to escalate quite suddenly. The other thing that I'll note is that in Israel, a lot of the reservists who had been called up and were part of the battalions that were taking over parts of Gaza have now been sent home. And so the forces left in Gaza for Israel, the majority are professional forces or permanent soldiers, so they could be conscripts as well, but the reservists have been given some time off in the most part. And so, the amount of people who are doing this operation has reduced as well.

Scott Anderson: So I want to get into these negotiations happening in Cairo, being facilitated by the Egyptian government among others around a ceasefire possibility or some other arrangement in exchange for additional hostage release. Before I get there though, let me zoom in one aspect here that I think actually your comments brought out, which is the fact that we're seeing increasingly, perhaps some tension between Netanyahu and the war cabinet, or at least some confusion about their roles. We have Netanyahu making statements about policy goals and the military offensive and what is necessary, what is not, what objectives are, in some cases refusing to make statements about objectives, as in the case of this kind of kettling strategy. But nominally, he's not the person who's supposed to be in charge of this war effort, at least exclusively. It's being controlled by a bigger war cabinet. How are those dynamics playing out in regards to both the framing of these military operations and the actual chain of command directing them?

Joel Braunold: In terms of the chain of command, I don't think there's a challenge there. I think that it's all there, but the politics around it, as you mentioned, Scott, I think are extremely challenging. The prime minister has not had a positive relationship with his defense minister. During the judicial protests, he fired his defense minister for siding against the prime minister when it came to the speed of the judicial reforms. And then given the protests in the street, he reversed the firing of the defense minister. And so his relationship with the defense minister has not been positive. And then the war cabinet is also made up of his political opponents, namely Benny Gantz and Gadi Eisenkot. And polling shows that the public currently trusts Benny Gantz and Gadi Eisenkot far more than Benjamin Netanyahu to win the next election and to be the next prime minister. And so there are, of course, extreme political tensions. When Secretary of State Blinken was there, sometimes he briefs the whole war cabinet, sometimes he briefs just separate individuals. We can see in press conferences, sometimes it's all of them, sometimes it's one of them. And it's clear that there's differences both in terms of the politics of this and how this plays out mainly to the Israeli domestic audience.

And that's also bleeding over into the hostage negotiations and who's being sent and how they're being sent. So to get into your question about the hostage negotiations, it's clearly been a focus of the Americans. Bill Burns, the CIA director is actually in Israel today to really ensure that the hostage negotiations go well, as that is the critical piece in order to create a pause in the fighting. And the big time deadline that everyone's looking at is Ramadan that starts on March 10th, where people do not want there to be fighting during the holy month of Ramadan, given what that could mean regionally in terms of the focus, as well as the need for there to be calm on Ramadan so that the shopping that often takes place in East Jerusalem and the West Bank and other places can happen. And without a pause in the fighting, so much of the stuff won't be able to happen. So there's a big push to try and get this deal in by the next few weeks. Let alone, of course, the lifeline for the hostages. It was reported that of the 132 that are still there, or 130, potentially 32 have passed away. And so there's this big pressure.

So on this round of negotiations, the prime minister told the delegation that their job is to listen and not to talk. And because of that, the IDF General Alon, who is in charge of the hostages, decided to send his deputy, along with the head of the Shin Bet and the head of the Mossad, and the prime minister sent one of his political aides there. And then when there was supposed to be follow up meetings this week, the prime minister declined to send the delegation. And it's for those reasons that Bill Burns has come to Israel to speak directly to the prime minister in order to try and keep momentum going on the hostage negotiations. And there is a divide in Israel about whether the aims of this war should be the complete defeat of Hamas, total victory, or it should be the return of the hostages. And this is becoming an increasingly hot political issue in Israel that is reflecting, sadly, the political divides that we saw during the judicial protests.

So, as the hostage families continue to protest and try and push for a hostage deal to save their loved ones, when you look at the political dividing lines in Israel and who's sitting where, increasingly you can see that the people who prioritized the hostage release were seemingly the same coalition that opposed the judicial reforms. And the people who prioritized defeat of Hamas over the hostage release are increasingly the coalition who are pushing the judicial reforms. And you're now seeing that reflected in the security cabinet and the war cabinet. So Benny Gantz and Gadi Eisenkot, who are very much seen as anti-judicial reform, are being perceived as the more pro-hostage release crowd. Netanyahu is being perceived as less so. And we're seeing that Bezalel Smotrich, the finance minister, accused those who are protesting for the release of the hostages, of delaying a hostage deal and saying that it actually hurts the IDF efforts and that only IDF pressure can actually deliver the wins that they need in terms of against Hamas. And so there's been a lot of internal domestic politics playing into this push for a hostage deal and how it can get there. And that's been a difficult thing and very highly emotive for many Israelis and many of the hostage families who feel like now they're being attacked by parts of the political spectrum where they feel like they're the ones who have been sacrificing the most. And it's a very emotive and dividing issue within Israel. And there was relief when two hostages were released through military activity. And it's an ongoing debate in Israel in terms of what it is.

In addition, because of this necessity to get to the pause in the fighting and the pressure that is being put on, there is a feeling, I would say, amongst some Israeli decision-makers that should there be an agreement to a hostage deal that pauses the fighting, the pressure that will be put upon it to try and move this temporary pause into a longer pause than potentially into an end of the war will not happen on their terms. And they're worried about it And so knowing that this might be their last chance in order to complete as many military objectives as possible, there's this feeling that the prime minister has been pushing out that we need to finish the four Hamas battalions left in Rafah, we need to make sure that we secure the border, and then we can talk about hostages and everything else because the majority of our military operation will be complete. How they can do that with 1.4 million Palestinian civilians there is unclear. And also, what the state of the Egyptian-Israeli relationship will look like at the end is also a question mark. So everything is being pushed into this potential for a deal and what can come next.

Scott Anderson: Let me drill a little bit more into these hostage dynamics. You already mentioned the pretty shocking statistic that I think Israeli, if I recall correctly, Israeli officials came out public with maybe a week or two ago that a third to a quarter of the hostages that are still outstanding may be deceased. And this is, of course, coming on the back of a period where we have seen at least one incident in which several hostages were killed by Israeli soldiers in a friendly fire incident of some sort, after emerging and waving white flags. And of course, there are military operations ongoing that a critique of them that may or may not be right founded, but I think even the Israeli military acknowledges to some extent, that there are substantial civilian casualties and substantial collateral damage from a lot of its military operations. It seems like there's definitely a possibility that a number of those hostages were killed as a result of Israeli military operations, and more may yet be if the current pace of fighting continues. How is the Israeli public, how are Israeli political officials, wrestling with that tension the tension between putting hostages potentially at risk and pursuing these military objectives? Is this something that we've seen this big shift on? Or is it just the settling into these existing political lines that we've seen emerge in the last few elections, the last few years, around a variety of kind of touchstone issues? Is that just recreating that, is it just slotting down onto the existing Israeli politics that have been so closely split and frankly a source of so much political instability the last several years?

Joel Braunold: I don't think it was destined to go down that line. At the beginning, I don't think that that's where it was destined to go. I think that at the beginning of the war, there was always the question of what were the objectives. It started with the destruction of Hamas, and then it moved to Hamas cannot have the ability to govern or threaten Israel again, which is different from the destruction of Hamas. And then it was a question of what was the priority that hostage rescue was given, especially after the previous pause where dozens of hostages were released alive. The feeling in Israel is that if everyone else comes back in a body bag, will it ever be considered a success, even if Hamas is still there? And the region doesn't believe that Hamas will be fully defeated, that there will still be remnants of Hamas that will have to be dealt with and whatever else. And so if you have remnants of Hamas and you've got just no more hostage releases, it's difficult to sell that as a victory picture. And I think for the Israeli decision-makers, their biggest hope is that they can find and kill Sinwar because if they can find and kill Sinwar, that's their victory picture. They've got the guy, they've got their bin Laden in this case. And by doing that, they can try and find a political way to close the war on their terms, rather than on Hamas's terms. And it gets into the degree of hostage negotiations. If Hamas succeeds in releasing Marwan Barghouti, the head of the PFLP, of all of the critical prisoners and empties Israeli jails, then you've basically given them the rewards and the victories that they need.

And so Israeli decision-makers are really struggling to how can you win in Gaza on the terms that you need to, especially as the region and increasingly the U.S. is turning against what your objectives are, given that the Israeli government is still unable to articulate what an end goal politically looks like for Gaza. As we discussed a few weeks ago, Scott, the inability to dictate what an end goal can look like is the critical Achilles heel in Israel's regional and international support. As long as people think, and cannot be assuaded from the fact that it could be that Israel is trying to empty voluntarily or otherwise Gaza of its civilian population, it will not enjoy the international legitimacy and support and space and time it needs in order to complete what it believes is its way to end the war.

And so you've got this tension about if Israelis also believe that it is now impossible, that you're not going to have the time and space to reconquer Gaza completely and spend months or years doing this, then at least let's get our hostages back. Let's at least do that. At least we can celebrate that. Celebrate and support life. And that's where some of these tensions are coming in. And this crazed day-by-day, are the hostages still alive? Are they not? I think it's important that the hostage families--when that terrible incident happened in Gaza, where the two hostages were killed when they were waving a white flag, one of the mothers of one of the hostages who was killed called the IDF soldiers and told them that she didn't blame them at all. It's not like the hostage families are blaming the soldiers or the IDF in any way shape or form. That's not what's happening. There's a real feeling, though, about putting pressure on the decision-makers to prioritize their family's plights more. And these hostage families that there's some traveling now with President Herzog to the Munich Security Conference, they've traveled to Doha, they've traveled to the United Nations, they've traveled to Washington, D.C. They are becoming their own advocates because they believe that they need to, and that that's been very important for them to be able to do so in order for their message to come across.

And in response, those who are backing the prime minister or those who think that the idea should be total victory are more critical of the hostage families. And we've seen that from different Likud ministers, and as I said, the finance minister, Mr. Smotrich, and others who are attacking the families or those supporting the families as playing into Hamas's hands or giving them more leverage. And that's a very difficult, intense moment in Israel and in the Jewish world. And it's tense and it's horrible and it's going down those political lines, as I explained, where really it's becoming the dividing line on the judicial reform and the identity crisis in Israel that the judicial protests created are now being reflected in this policy decision as well. And that creates a very hard dynamic. And I'll also add, the coalition itself is split on should there be a deal, who will agree to it, and who won't. So it seems that Ben-Gvir, the far-right national security minister, didn't agree to the previous hostage deal and probably won't agree to this one either. And if Smotrich agrees with him, is it enough for them to try and drop out of the coalition? And Lapid, who's still in the opposition, apparently met with the prime minister and said, "If you need my support in order to get a hostage deal through, and to prevent the collapse of the government, I'll lend you my support." Because for him, the hostages come first. Now, on the flip side, Gantz and Eisenkot is rumored to say that they've said, "If there's a deal on the table and we don't take it, we'll leave the government." Now if they leave, the government might not collapse, but losing the unity government at a time of political division while you are fighting a war is definitely not ideal. And what could happen? The protest, could it destabilize the country and the government at a time of war? How long could that possibly go on for? With the other contradictions of what would be needed to maintain international support, potentially collapse the government from the right. All of these things create a very unstable environment.

And I'll also say, if you're Hamas and you're looking at what's been going on, and you can see that Israel and the United States are fighting--and we'll get to that later in the podcast--and you can see that the region is gearing up to try and create an end to this conflict, an end to this war and a political horizon for the Palestinians, and you can see that the Israeli international credit is dipping so much, and you can see Ramadan coming, you can reach the conclusion, "Hey, why don't we slow play this? If the Israelis are fighting with everyone, and there's internal divisions splitting them, and the international community is getting fed up, and now they're invading Rafah after they were told not to. If we play this out and we continually spool this out and ask for greater and greater demands that we know that the Israelis can't agree to, they'll dig their own grave. And if Ramanan comes and people are uncomfortable and tension gets even more, it might benefit us even more." So the politics and how this affects each party of the conflict are incredibly complex. And there are external and internal games being played trying to get as much leverage because I think both parties realize that if a pause is agreed to for a hostage deal this time, it could be the last move before there's bigger questions about the future of Gaza. And so each wants to maximize their leverage at this moment.

Scott Anderson: So another big development we've seen in the past several weeks has been in the Hague before the International Court of Justice, where we've seen, of course, a case proceed focused on provisional measures, but under the context or the jurisdictional vehicle of the Genocide Convention and hinged in part on a claim by the country of South Africa that there is at least a credible basis for believing that acts covered by, prohibited by, the Genocide Convention, if not genocide itself, then incitement to genocide or certain genocide-related acts might well be being committed in Gaza. ICJ has reached no such conclusion. I think it's important to note that. They have simply concluded that the allegations provide some sort of thread with a little bit of a lack of clarity about the exact threshold. But essentially, it's created a prima facie case that there might be something happening within the jurisdiction of, or the scope of jurisdiction provided by the Genocide Convention. And they've now issued provisional measures of various sorts directing Israelis to increase or ensure access to humanitarian access to try and dissuade and punish genocidal statements and most notably, perhaps to check in essentially every 30 days on progress towards these goals, at which point the court might issue additional provisional measures.

It's an interesting case, not least because Israel actively participated in these proceedings, something it hasn't done in prior similar proceedings. How are these proceedings being, I guess, perceived by Israelis and other parties to this conflict? And how do these provisional measures enter into this equation? How seriously are they being taken? There was some disappointment they don't include a ceasefire themselves, although I think a lot of legal observers were skeptical that they ever, the court, would ever go that far, certainly at this stage. But nonetheless, they do have certain fairly concrete demands and a mechanism for seeing if the Israelis meet them. So I'm curious how this is entering into both the military strategy and the political scene.

Joel Braunold: So let's start from the political scene, and I think you're right, Scott. The first most interesting thing is that Israel took this very seriously. In previous moves to international accountability, Israel basically either ignored it or given it very short shrift, but on this one they could understand the potential threat and took it extremely seriously. And I was actually in Israel during the ICJ hearings. And on the Friday when Israel gave its case, it was live on every Israeli major news channel and the entire country watched as they heard, as was the previous day's hearings. And many Israelis found the testimony from South Africa and others extremely hard hearing and were extremely upset and angry by what they thought was a very unfair hearing and procedure.

 The fact that there was not a ceasefire ordered, whereas there was an order for the unconditional release of the hostages, I think politically and [inaudible] made them feel, look, it was a win in that way. And I didn't think they knew--they were not at all confident it would be dismissed. And when it wasn't dismissed, it then came to the public debate of would the ICJ order a ceasefire? And by the fact that they didn't, and at least in the public perception was that it could have, it was felt like it was a victory for Israel, that it could continue its military campaign, albeit with now the need to demonstrate that they're enabling humanitarian access and that they are taking account of people making genocidal statements.

Just on that second one, it's also democracy; like, they're not going to regulate their politician's speech. And one could argue whether a court internationally can tell a government to regulate its own politician's speech is a non sequitur, but I think an important one. But anyway, the important thing I think for many was, are you enabling and making sure that there's humanitarian access for civilians in Gaza? And by the way, on that genocidal statement stuff, I think two days ago, President Herzog published a piece in the Wall Street Journal pushing back against the quotes that South Africa had used, accusing him of genocidal statements, of taking them out of context, and providing the context for his statements that he felt were unfairly characterized. I would say that we did see straight after the provisional hearings were put down, the prime minister's office and the IDF at different points make sure to clarify that this was a war against Hamas and not Gaza civilians. And they say, "Look, we're working with the United Nations where we can in order to provide humanitarian access, not so much with UNRWA, we'll get to that later, but with the other UN and working with Sigrid, who's the UN humanitarian coordinator and other parts to try and facilitate access. Cogat is constantly--Cogat, which is the Israeli military unit in charge of the occupied territories--is constantly tweeting pictures from markets or how much aid they're facilitating going all the way through.

But the ICJ ruling definitely had an effect and there was a funny analogy going around as well to try and explain to Americans what the previous few months had felt like. They were like, "Look, imagine if 9/11 had happened and you lived in Manhattan and the terrorists came from Queens and that you were fighting this terrible war and you were accused of genocide and all of a sudden, Ruth Bader Ginsburg came back during the Trump administration to defend America at the Hague." That's how they felt. Aharon Barak, who had been this key liberal justice, came out of retirement at 89 years old or 88 and flew to the Hague to be Israel's representative at the Hague in order to defend Israel, despite the fact that he couldn't be more politically different and against this coalition. So there was, it felt like everyone in Israel was pushing against what what they felt was an unfair accusation. So I'd say on the politics, the Israelis were very focused on it, but felt that the fact that they weren't ordered to do a ceasefire was important.

And as you mentioned, though, many political activists and advocates are accusing Israel of genocide. The court did not find that Israel is committing acts of genocide. It said that the case can continue in order to clarify if that's happening. I'll also say that hostage families and others are now going to the ICC to accuse Hamas of international war crimes. And so we're seeing a continued internationalization of this stuff in the background as this moves on. It has had a military impact, I'd argue, in terms of last week or early this week in Holland, the Dutch government were prevented by a court from sending F-35 parts to Israel because they could be committing human rights violations. We saw a court in the States say that you can't sue the government, but they should take the ICJ court very seriously. And so I think we are going to see increasingly legal action in different Western states and states who are subject, who have signed the Genocide Convention, to try and prevent them cooperating with Israel, especially militarily, in order to make sure they're not breaching the Genocide Convention. That's where things lay on that side of things and the ICJ is in the background and for many activists and advocates of accountability and human rights, they see the ICJ is really the place where ultimately this should be decided, even if it's in a few years. And that's where the focus of the majority of the effort should be.

Scott Anderson: In addition to the ICJ cases, we've seen some serious developments relating to the conflict arising here in the United States on a number of different fronts that are worth talking about. The big one is that we are beginning to see maybe some momentum towards a supplemental funding bill for national security issues that includes substantial security assistance for Israel as well as some humanitarian assistance that is designated for Palestinians, although notably not kind of firmly earmarked in a particular way. That's not final yet. I think its odds of the overall bill, which also includes funding for Ukraine most notably, that its current format are slim in the House, but nonetheless might--this is the closest we've gotten yet in that the Senate has passed this proposal. But it does a number of other things, including essentially barring U.S. funds from going to UNRWA. That is a point of concern and contention. Tell us a little bit about what this legislative action has meant, might mean, if it goes forward for the conflict and for Israelis, Palestinians that are going to be affected by it.

Joel Braunold: Sure. Let's start backwards and go up your list. So let's start with UNRWA, go to aid to the Palestinians, then let's go to Israeli military assistance, because we can then move into the administration. So with UNRWA, I think we've really seen an Overton window shift in Congress. Before October 7th, there'd been a push by Republicans and a few centrist Democrats to defund UNRWA. And the reason being they feel like UNRWA is really the agency that upholds the Palestinian right of return and UNRWA considers refugees generational. And the feeling is if you collapse UNRWA, then you'll collapse the right of return. I mean, you don't, but that's the feeling. And that this refugee agency that's under the UN really is just another pseudo-Palestinian state. UNRWA works in Gaza, the West Bank, East Jerusalem, by the way, under Israeli jurisdiction, [inaudible], and then, of course in Lebanon and Jordan. And it's a very important stabilizer within the region. People have had many different issues with UNRWA over the years, from education to, as I said, the political issues, and it's been a bugbear for a very long time.

Just before the hearings in Congress now, and before the supplement was put down, the Israelis delivered a dossier accusing 12 UNRWA employees of participating in the October 7th attacks. And UNRWA quickly moved to suspend or fire these employees, despite the fact that I don't think anyone's publicly seen the dossier. I think it's been given to certain governments. The U.S. has said it's very, very credible, and there's been an internal oversight investigation ordered into UNRWA. The U.S. at that point before the supplemental suspended its support of UNRWA--and that was followed by countries all around the world. UNRWA lost hundreds upon hundreds of millions overnight, and defenders of UNRWA said, "This is ridiculous. This is 0.02% of UNRWA's staff. They were dealt with very quickly and UNRWA right now is providing vital humanitarian services to Gaza. And so if you want to follow the ICJ ruling, you can't cut off funding for UNRWA at this point." Interestingly, reports also came out that the IDF was not looking to get rid of UNRWA right now, that they needed them for their urgent humanitarian mission. And long term we can talk about it, but right now it doesn't help stabilize the situation.

Anyway, Congress, as they were putting together the supplemental, needed to figure out how it could pass the Senate and the House. And they landed on not only banning funds for UNRWA in the supplemental.

But banning any money that was in the pipeline still for UNRWA. So UNRWA is funded generally through the Migration and Refugee Assistance Account, MRA, which is a no year money account. So any money that's in there can be spent. And one of the main places MRA gets spent is on UNRWA. And the bill prohibits money from this bill and any prior acts from going to UNRWA. So it's not looking forward, so it doesn't ban forever, but it clears out the pipeline. So a very significant, big deal. And that is the bill that passed the Senate just recently. And if the House picked up any bill that would include any Palestinian aid, it would include this prohibition, which is a big deal. The House is trying to advance additional legislation to ban UNRWA permanently. Chris Smith from New Jersey is really leading the charge, along with Brian Mast from Florida. Interestingly Brad Schneider, a pro-Israel Democrat from Illinois, in the markup on some of these bills said that it is not our interest or the interest of the pro-Israel community, which often is code for AIPAC, for UNRWA to be defunded, but rather let's give it a one year term of life and then figure out what happens next in order to figure out what goes on. I don't know where the House is going to go, but look carefully, should there be regular order for a state and foreign ops bill, the big debate is going to be about whether UNRWA is banned permanently or not, and that will have a big implication.

Moving one stage back in the supplemental, when it comes to general Palestinian aid, as you mentioned, Scott, there's no particular earmarked amount of Palestinian aid, but aid in general, in the bill, there's around 9.1 billion split between two accounts. One is the international disaster account, international disaster assistance around 5.65 billion and there's 3.4 billion in the migration refugee assistance. The bill actually is pretty flexible and enables the administration to bounce between these accounts. So they want to give more bilaterally through IDA or World Food Programme, they can. If they want to give more multilaterally, they can. So it gives them that flexibility. And according to activists and advocates on the ground, roughly 1.7 to 2 billion dollars of that 9.1 is expected to go to Gaza. So even though it's not earmarked, that's generally--and that's around a third of what the United Nations is looking for, which is generally in line with the amount that the U.S. provides when the UN asks. So that's roughly around in line with it.

Going back one stage further to Israeli military assistance, the bill is very generous. It gives 10.6 billion in DoD funding for Israel, 800 million in ammunition, 5.2 billion for Iron Dome and David's Sling and Iron Beam. Iron Beam's the laser one. There's also 3.5 billion in FMF funding which is what Israel uses for foreign military finance. It enables Israel to spend around 770 million in Israel, rather than in the U.S. But, if Congress agrees, they can spend the whole thing in Israel. It also enables Israel to use U.S. weapons stockpiles that are used in Israel, so it's a very generous bill, and it enables the administration to waive Export Controls Act stuff.

However, what was interesting is Chris Van Hollen, the senator from Maryland, had an amendment to basically ensure that any recipient of foreign military assistance has to follow international humanitarian law, and enable U.S. humanitarian assistance or U.S.-supported humanitarian assistance to come in to the area of conflict, or they'd be in breach of an agreement and the aid can be suspended. The administration struck a deal with Chris Van Hollen, and rather than put it in the bill and force a contentious vote, instead created a new national security memo, which basically is the text of the Van Hollen amendment, where they now have insisted starting, I think the memo was issued on February 1st, so by March 25th, so 45 days after, Israel needs to sign a commitment that it is following international law and international humanitarian law, and it is enabling U.S.-provided humanitarian assistance or U.S.-supported humanitarian assistance into the area of conflict. Should it not sign this, it will no longer get weapons. Should they sign this and there is reason for State or DOD to doubt that it is following this agreement, another 45-day period is created where, if they can't clarify and it's not sorted, then decisions can be made up to suspending defense articles. So this is actually the first time it's been explicit through administration policy that there could be conditionality on aid to Israel and Israeli assistance, should they not follow these existing laws. And I think that's important, especially in the context that earlier this week, the finance minister, Minister Smotrich, who's in charge of Israel's custom agency, blocked hundreds of tons of flour that had come to Ashdod from going to UNRWA. And this flour had been promised by the prime minister to both the secretary of state and the president of the United States. And the fact that Smotrich is blocking it means that if this flour isn't released by March 25th, there's no way that Israel could sign the required national security memo that it now needs to. So my assumption is this will be solved before then. But this is one instance and another is an executive order, I'm sure we'll discuss, where the president is creating leverage in his dialogue and debates with the Israelis with different triggers that they can see very clearly that if they breach these things, there are serious and significant consequences that will follow.

The last thing I'll note, outside the actual supplemental, we have seen a sea change when it comes to aid to Israel in Congress. Starting with Speaker Johnson, when they tried to move Israel aid early in the conflict, the speaker twinned it to IRS cuts, which was actually the first conditioning of Israel aid, and that failed. We saw Democrats in the Senate--we saw when the House tried to move just an Israel-only bill, the president said that he'd veto it. These things are unheard of. The Overton window on this has shifted so quickly. And we saw in the Senate, Senator Sanders, Senator Merkley, and Senator Walsh all declined to vote for the supplemental because of the unrestricted aid for Israel in the bill. And again, these are pretty big sea changes that I think are important to witness, as well as Senator Van Hollen's speech on the floor where he accused Israel of a war crime and those facilitating it war criminals for starving civilians in Gaza. So there have been some sea changes in Congress that I think are important to note as well.

Scott Anderson: Absolutely. Before we move on for the United States, though, I do want to pivot and look at that executive order you mentioned. This is, of course, a pretty notable action the Biden administration took about two weeks ago, implementing a sanctioned regime using the authority provided to the president by the International Emergency Economic Powers Act. This is the same law that's used for terrorism-related sanctions, for drug trafficking sanctions, human rights sanctions, and a variety of other U.S. sanctions programs. Using that authority, President Biden has set up a regime that would similarly freeze the assets of individuals involved in West Bank violence, identified only a handful of them in the order that will be immediately affected, but set up authorities that would allow other individuals to be designated through administrative procedures. This is a measure that has gotten very mixed reviews and particularly a lot of people criticizing it for being a bit of a show horse more than a substantive measure. But at least personally, I'm not entirely convinced that's true, particularly because this is a pretty notable authority and prior regimes that have started quite small have gotten big fairly quickly. I'd be curious about your thoughts about the impact this program might have, this authority, and particularly how it's being perceived and responded to in Israel and in the West Bank, where this violence by settlers and people affiliated with settlers against Palestinians was the main impetus for this effort.

Joel Braunold: When I read the executive order, I was floored. The president has built a weapon that can dismantle the entire settlement regime in the West Bank and cut them completely off from U.S. financial systems, and because the government, the state of Israel, is so embedded in the U.S. financial system, it's truly existential if you want to look at it. And don't believe my words, read those on the political right who are just--David Freeman, Ambassador Freeman is shocked. And Scott, while it says it's for violence against Palestinians, the first line of the executive order is targeted at those that the administration deems threatens peace, stability, and security of the West Bank. That's extremely broad. It's a sanctions that can hit government officials, individuals, seizure of property, destruction of property, violence, of course. He's built a nuclear weapon.

At the moment, as you've noted, the administration is using it as a scalpel and has started with four. And at the beginning, there was a very mild-mannered response by the prime minister's office saying, "This isn't helpful and it's inappropriate." And originally the settlers who were attacked by it, the first day they were like, "Ah, who cares? I don't do business in America." Two days later, all of their bank accounts were frozen. And then the Israeli political system finally realized, "Oh God, this is what sanctions mean." The finance minister told the banks, "You can't do this." And the bank said, "We have to. We have U.S. branches, we're apart of the SWIFT system. We can't not do this." And suddenly it dawned on the Israeli political establishment on the right that the U.S. could basically sanction anyone and that they would have to comply. Now, it's been a slow process, but the Israelis are waking up to this. There was an Axios report where the prime minister has raised this with the Secretary of State and the president, Ron Dermer was asked to ask clarifications. But for the Israelis, this is really the first time they've ever been dealing with a sanctions regime.

Everyone asked the U.S. to do sanctions. President Biden created a sanctions regime. And I understand that those who are pushing for a ceasefire on the political left, it's a nothing burger, it's ridiculous. It is not a nothing burger, it is not ridiculous. You can argue you want it to start big rather than small, but at the moment it started small and they started with four. But I would argue, Scott, if they enforce those four sanctions--there's already been crowdfunding campaigns for one of the settlers that a payment processor is a part of a major bank. You've seen one of the sanctioned individuals go on Channel 14 and claim that his friend has been lending him his bank account. You've seen, there was a report in Times of Israel yesterday, that one of the regional council's authorities had signed a contract with one of these individuals beforehand. If the Biden administration just enforces properly the sanctions regimes against these four people, it will have gigantic political implications in Israel because of who it implicates. Because to actually cut off these four individuals, people on the political right don't want to do it. And if they're forced to, there will be political consequences. And so there has been a reaction, and if the Biden administration expands the list, or enforces the list, there will be greater reactions. And there's been reports that the Biden administration has asked for clarifications on a number of different instances of settler violence, and different potential IDF individuals who are involved either by not enforcing or enforcing. And there is a worry in Israel that these people will be added to the sanctions list. There was a report in Tablet blaming the USSC, the United States Security Coordinator, a three-star general, General Fenzel, of being hoodwinked by UN and pro-Palestinian activists, that most of this stuff is coming through Fenzel. So there's already a clear aim to try and besmirch this entire approach, and I'm sure in no doubt we'll soon hear that the executive order is anti-semitic or whatever else.

This also, of course, has a huge impact on Jewish philanthropy and pro-Israel philanthropy, who have never helped to deal with a sanctions regime. I come from the peace-building community and we've had to deal in the West Bank where you have lots of people under sanctions and have had to have provisions as you do your funding and your programming to make sure you're not running afoul of U.S. sanctions regimes. I think Jewish communal funding, JNF, others who fund within the West Bank are now going to have to very carefully make sure that they're being vetted. Because alongside the executive order, the Biden administration set out a FinCEN notice to all U.S. banks about potential transactions that they should red flag if people are funding in the West Bank and how they're funding. And so they're definitely trying to up the level of risk in the banking sector if people are working in this space. So taken together with the national security memo, I'd argue that the Biden administration has built the tools for leverage. And now they're starting to use them. And in addition, it inspired the UK and France to issue their own sanctions against violent settlers. And that has a lasting impact because for those in Israel who thought that, okay, we'll just wait out the Biden administration, praying for Trump to come in. And as David Freeman said this executive order wouldn't last the first day. Well, the British and French will. And you don't want to run afoul of those sanctions either if you're part of an international banking system. So, we've entered a new world where President Biden broke the seal on this, and now we live in a world where Israel has violent settlers who are now under Western sanctions, and that is never going to dissipate.

Scott Anderson: So you mentioned that these tools, this national security memorandum, executive order, are building leverage. And so I think that brings us to one of the last topics really to dig into, which is leveraged towards what? In the past few weeks, we have heard reports, all secondhand, thirdhand, with a fair degree of ambiguity about a plan that is percolating in the Biden administration, something that looks a lot like what the Biden administration was working towards before October 7th, which was at the time reported to be a normalization agreement between Saudi Arabia and Israel that combines U.S. security assurances or guarantees to both of them of different stripes as a way of kind of bridging the gap and bringing them together towards a more normalized relationship. Now, in a post-October 7th world, that is all being made conditional upon some sort of ceasefire in Gaza and end of the military campaign. It seems very clear Saudis aren't going to do anything until that happens. But then also on the carrot side of it, Saudis potentially being willing or able to play some role in funding reconstruction in Gaza, among other countries in the region, and particularly in the Gulf, that might be in a position to fund substantial reconstruction. And that's in addition to playing potential other roles in a post-conflict Gaza, politically engaged with Palestinians, maybe even some peacekeeping role. All these things have been discussed in different quarters at different times.

The Biden administration, the reporting is that this is their intent on moving in this direction, that this is the way out that they see. This is what they see as being a post-conflict, a day-after arrangement, which is a Saudi-backed deal supporting some sort of autonomous Palestinian entity, potentially including recognition of Palestine as a state in Gaza and in the West Bank. Tell us what we know about what this plan might look like, is likely to look like, and how it's being received by different quarters, how far out we are from this being a reality. At least one Economist report I saw cited anonymous senior administration officials at giving it a 25 percent chance of actually coming forward. I think basically a 50 percent chance you get their countries on board and Palestinians on board, and then a 50 percent chance you can get the Israelis on board. So one in four, averaging those together. Where do you think the likelihood is of this actually ending up anywhere actually is? And absent that path, what's left in terms of where to go?

Joel Braunold: I'll do my prediction at the end, like a good sports person. You do your analysis and then you make your pick. So as I said when we were talking about the hostage negotiations, this pause seems very pregnant and it's pregnant with the possibility that this is during this space, especially if it's during Ramadan, a lot of things need to happen very quickly. There needs to be a relaunch Palestinian government of technocrats, apparently. There needs to be some level of agreement of what a transitional authority can look like in Gaza. And anchoring this all would be a new regional compact with the beginnings of a Saudi-Israeli normalization deal that would be leading to rebuilding and reconstruction in Gaza and utilizing the promise of Saudi normalization to move the Israelis to agree to some level of political process.

 At the end of our last podcast, Scott, I said it's like a wicked hard problem of a Rubik's Cube trying to figure it all out. And so it seems like the administration has decided that let's pack everything in, let's make it all one big giant push, right? Let's, squeeze as much in, get a hostage deal, and then utilize that momentum to work out what the end of the war looks like, offer Saudi normalization as the prize for the Israelis at the end of the path, and in doing so, lock in a diplomatic achievement and do it before August. And why before August? Because if, as part of the Saudi normalization deal, they need a treaty with the United States, then the aim is to do it before the conventions. Because once the conventions happen, it's dead zone in Congress. But if it could happen beforehand, you can start moving and you can start doing what you need in order to lock it in. And the Saudis would want to do it because as Lindsey Graham has said and others, "Make the deal when President Biden's there because he can deliver his party. And if it's under President Trump, you might not get the votes that you need for a treaty." And that's what the time pushes on the Saudi horizon.

Joel Braunold: The challenge has been though, that as the Saudis have watched and looked and learned, they don't want to be humiliated by the Israelis, and so they're expecting the Americans to deliver the Israelis on this. And they can see the prime minister fighting with the president. And they're like, "If he's fighting with the president, who's his biggest ally and they're taking pot shots at each other, how's he going to react to us? Like, we don't want to be in this fight." And so, the Saudis issued their own declaration late last week, after they heard John Kirby say that there were two tracks, one on Saudi and one on ceasefire, they said, "No, it's one track, it's the same track and we want 67 lines shared capital of East Jerusalem, the standard Arab peace initiative stuff." But if you read their statement carefully, it said "recognition of," not the "declaration of." Why is that important? I think that the administration, and speaking to the Saudis, have come to the conclusion that there is very little that this Israeli government can give on this side. There's very few things post-October 7th that they're going to be able to do, absent of ending the war in Gaza, which seems to be the trigger in order to do this. Most of the costs are therefore borne by others. So we saw like a trial balloon by David Cameron, the British Foreign Secretary, where he wrote about recognizing an independent Palestinian state. We saw Secretary of State Blinken not deny that the U.S. is considering recognition. I'll note that the U.S. recognition would probably be bilateral because should they enable the UN to recognize it according to the 1990 law, they'd have to defund the United Nations. So unless that piece of legislation from 1990 is removed as part of a Saudi normalization deal, they won't be able to recognize a Palestinian state at the United Nations without defunding it, so I'm assuming it's bilateral. But I don't I don't think the administration has declared they're doing that. It's all in the ether of trying to work out what things they need to do in the Rubik's Cube in order to move this grand deal to move forward.

And it's like a one big deal. Part of ending of the war will probably involve some level of exile, some DDR process, like anchored with maybe Egypt and Turkey and Qatar, who knows, right? It's a real complicated set of circumstances, but the trigger for all of this is getting to a pause that has to lead to a hostage deal pause, which is why you're seeing so much effort to do this and to do it before Ramadan because the Saudis said to the Wall Street Journal last week, "If this doesn't come together in the next few weeks, it's not going to come together." And for me, that's them indicating this has to happen before Ramadan, because if it doesn't just the time clock doesn't work. So that seems to be the amalgamation and the push. There was a big meeting that was reported between Saudi, Egypt, Jordan, UAE, Qatar and the Palestinians, where I think they were aligning their all positions on this. So there's been an alignment on this and a presentation of a unified position. President Abbas and his two top aides have been in Qatar all week, I'm sure trying to figure out what a reform PA would look like, working with the Qataris on the Hamas angle of this, so you can see if you read the regional picture right, all these different elements clicking into place.

Now the Israelis are clearly not very happy with any of this. The Washington Post reported today about this potential deal. And already the Israelis are like, "We can't gift the end. October 7th can't be gifted as Palestinian Independence Day, right? If the result of October 7th is that they get a state and it's recognized, you're just rewarding terrorism." And that is a very widely held position in Israel. As I said in the last podcast, if October 7th killed conflict management, it did not instantaneously mean that the Israelis were moving to conflict resolution, and that's not where they want to go. And so the magic words that I think this government of Israel would need to utter would be, "willing to look at a political process in order to make this work." I don't even know if they'll be able to get there, but maybe they will.

So that seems to be the state of play about how one and endgame looks like. It's a real--I don't think it's a Hail Mary, but it's a very difficult situation. I often say that anything in this conflict has a 20 percent ceiling of success, just because there are so many factors at play. Within that ceiling, this is pretty high and it's pretty high because the president himself is pushing it. It's not just like the secretary or someone else. The whole administration is pushing it. So maybe a 20 percent chance of success is probably where I would put it, which is just the general limitation. Given the political time clock though, I have noted that it seems like they have spun out the Hezbollah portion of this differently and that the deal to try and prevent escalation in the north is not linked into this. And the French and Amos Hochstein are working on this, it seems, separately. So they're not all the eggs in the same basket.

So I think that's it. I would hesitate to argue, though, that the executive order and the national security memo are leveraged to get Israel to agree to this. I think both of those are aides to stop settler violence and to stop a dissent in the West Bank from going crazy. And the national security memo is more leverage on Israel's behavior in Gaza. So I wouldn't claim that these are sticks to push Israel to agree to a U.S. normalization deal with Saudi. The Saudi deal is the prize. And they're hoping that that's enough to motivate Netanyahu, who's looking for a legacy, in order to try and move him into that position. But if it requires him recognizing a Palestinian state, that's a complete non-starter. But I don't think it does. I think the costs are on the other actors, the U.S. and others, and what Abbas has been asking for, President Abbas, is irreversible steps. And so, if they can try and find a way that they can create this, these irreversible steps towards a Palestinian state, that would probably be enough to satisfy the Palestinians on that level. And then if they're, if the region's willing to help on rebuilding Gaza and funding a reformed PA, then that's probably enough to keep everyone on board. So that's generally the battle plan, at least administration-wise. And as I said, I'd say it probably has a one in five chance, if I had to grade it anywhere.

Scott Anderson: Well, there are certainly a lot of moving parts to this picture that we will have to keep an eye on in the weeks to come. But for now we are out of time. Joel Branould, thank you so much for joining us here today on the Lawfare Podcast.

Joel Braunold: Pleasure as always.

Scott Anderson: The Lawfare Podcast is produced in cooperation with the Brookings Institution. Please be sure to rate and review us wherever you get your podcasts. And be sure to check out Lawfare's other podcasts, including Rational Security, a casual, light-hearted chat about national security news that I co-host each week with my colleagues Quinta Jurecic and Alan Rozenshtein. In addition, be sure to visit Lawfaremedia.org for extensive written coverage of national security law and policy issues and consider becoming a material supporter of Lawfare to gain access to an ad-free version of this and other Lawfare podcasts, among other perks. For more information, visit Lawfaremedia.org/support.

This podcast was edited by Jen Patja Howell and produced by Kara Shillenn of Goat Rodeo. Our music is performed by Sophia Yan. As always, thank you for listening.