Cognitive dissonance at the United Nations

Cognitive dissonance — “the state of having inconsistent thoughts, beliefs, or attitudes, especially as relating to behavioural decisions and attitude change.”

Cognitive dissonance refers to a situation involving conflicting attitudes, beliefs or behaviors. … For example, when people smoke (behavior) and they know that smoking causes cancer (cognition), they are in a state of cognitive dissonance.

I may have a couple of examples of cognitive dissonance from today’s (3/18/2019) UN Human Rights Council meeting in Geneva.

COI_Commissioners_HP

Legal experts and delegates from around the world all said in unison “Israel must be held accountable for its gross human rights violations in the occupied Palestinian territory” (behavior) but they know that Israel has never been held accountable in the past 51 years of occupation (cognition) despite annual demands for accountability. Furthermore, there are no discernible plans to hold Israel accountable at the international level.

Another example might be the Israeli supporters and cheerleaders demonstrating outside of the United Nations.

They condemned the United Nations Human Rights Council  for its criticism and “bias” against Israel while holding the State of Israel up as the paragon of virtue (behavior) although they must know that Israeli military sharpshooters have killed nearly 200 Palestinian protesters since the #GreatReturnMarch began in March 2018, and there’s a humanitarian crisis in Gaza that threatens the lives of 2,000,000 Palestinians (cognition).

Maybe the UN Human Rights Council really believes that the State of Israel can be held accountable, although there’s no objective evidence to support that belief.

Osmar_Schindler_David_und_Goliath

Osmar Schindler (1869-1927)

And maybe Israeli supporters really believe that Israel is a victim unfairly targeted by the rest of the world and the Palestinians threaten their existence — a true David and Goliath story — but there’s no objective evidence to support that belief either.

Israel is the occupier with a first-world military.  Palestinians have some rockets that might sputter over Tel Aviv until the Iron Dome intercepts them.

Israel has a first-rate economy, a technology giant, and is not hurting for job growth. Palestinians in Gaza are experiencing the highest unemployment in the world (54%) and high food insecurity (68%) due to Israel’s 12 year blockade.  The report released today by the Independent International Commission of Inquiry is a fact-filled compilation of the tragic events surrounding the #GreatReturnMarch protests, not speculation or conjecture.

Who is David and who is Goliath?

I suspect each side will continue this charade for years to come. Israel isn’t motivated to change the status quo (end the occupation) because it believes the benefits of the occupation accrue to Israel.

I’ll hazard a guess that the occupation will end when there’s a magical convergence of three elements:

The United Nations regains its credibility and steps in forcibly to take action to end the occupation (legal, economic, or maybe something else).

The Palestinians manage to change the dominant narrative that exists today (which is that Israel is a victim and the Palestinians are terrorists wanting to destroy Israel).

Advocates and activists on both sides are willing to sit down and listen to each other.

Selfie at the park

It happened to me tonight when a 24-year old man from Brussels came up to me at the hostel in Geneva and wanted to talk about the UN Watch protest he attended today in solidarity with Israel. He asked sincere questions because he overheard me talking about Gaza, and listened deeply to my responses. We didn’t see eye-to-eye on everything but we shared a common concern about climate change, and he now knows the environmental engineering students in Gaza are also concerned about climate change.

Dr. Tarek Loubani (a Canadian physician) spoke at the UN Human Rights Council’s 40th session today. Here’s what he said:

Thank you, Madam Vice President,

I am here with Dr. Mahmoud Matar on behalf of our colleagues from the hospitals of Gaza. I am an emergency physician in Canada and Gaza and associate professor of Medicine at Western University in Canada.tarek.loubani

On 14 May 2018, I was at the protests delivering trauma care on the field. I saw only peaceful protesters, and none posed any threat to the soldiers. When protestors were shot, me and my team of medics would treat and evacuate them. Due to the blockade I did not have the materials or medics to care for my patients.

I was one of the 19 medics shot that day. I wish I could tell you I was in the midst of some chaos when it happened. I was not. The skies were clear, with no gas and no burning tires. I was standing among a group of medical professionals away from the main protest area wearing full hospital green uniform.

We were not close to protesters and there was no Israeli gunfire at the time. I heard a loud bang, felt an incredible pain and found myself on the ground.

I was treated, stabilized and discharged within an hour. I sewed my own legs because of the number of wounded. Like hundreds of others that day, I did not receive the care I needed. Still, I was lucky.

When I was shot, paramedic Musa Abuhassanin treated me. He was my rescuer. About an hour after, he was shot in the chest during a rescue. Musa died. Medical teams are not political actors, but humanitarians. We simply want to ensure that if people get into trouble, we’re there to help them.

Some 600 health workers have now been wounded at the protests and three killed. Thirty-nine were killed between 2008 and 2014. We are still under fire. Four paramedics were wounded last week. International law is clear on the duty to protect health workers, and to facilitate our life-saving work.

When I return to my work in Gaza, I should not worry that next year I will have to speak to you again about what I saw. I should not worry that my name will be added to the list of dead health workers doing their jobs. When you here do not act meaningfully, it is more likely that injuries and deaths to medics occur – more likely that I will be injured or killed. Madam Vice President, I ask you and members of the council to do all you can to ensure we are protected in line with international law.

 

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Filed under Gaza, Israel, Israel Defense Forces, People, Uncategorized, United Nations

Medical aid convoy to Gaza

Gaza boys flag beach

Friends and readers of this blog know that I’ve been searching for ways to return to Gaza since I left in 2013.

In the past 6 years, Israel has tightened the blockade, making it virtually impossible for anyone to pass through the Erez crossing in the north.

In the summer of 2014, the IDF launched Operation Protective Edge, a massively disproportionate military campaign against the civilian population trapped within the largest open air prison in the world.

In the summer of 2015, the Freedom Flotilla III carrying humanitarian supplies to Gaza was forcibly detained in international waters by Israel, the participants were jailed, and the supplies were confiscated.

Change ThingsI’ve been to the U.S. Embassy in Cairo several times in recent years asking for their help. In 2012, the Embassy provided me with the requisite paperwork to the satisfaction of Egyptian authorities but now my government refuses to assist Americans wishing to travel to Gaza.

If not by the Erez crossing in the north, or by sea to the west, the only other possibility is from the south, through the Rafah border between Gaza and Egypt.

Through Rafah it will be.

I’ve been invited to join a medical aid convoy bringing urgently needed medicines and medical supplies to Gaza. Alhamdulillah!

My contribution of $10,000 is critical to the success of the mission, and that’s why I’m turning to friends to crowdfund donations for this convoy.

Please read my GoFundMe campaign, contribute if you can, and most importantly, please share the campaign with your friends.  Here’s the link.

I’m financing my travel expenses myself. Every dime I raise in this campaign will be used to purchase medicines and medical supplies for Gaza.

THANK YOU!

 

 

 

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Demonstrators Shot in Violation of their Right to Life

29425644_419847478469077_7507957825339916288_n

On 7 January 2018, Ahmed Abu Artema, a 34-year-old Palestinian poet and journalist, posted on Facebook the idea of a non-violent march at the separation fence, to draw attention to General Assembly resolution 194 and to the dire humanitarian situation in Gaza. In the post, ending #GreatMarchofReturn, he wrote, “what if 200,000 demonstrators marched peacefully and broke through the fence east of Gaza and entered a few kilometres into the lands that are ours, holding the flags of Palestine and the keys to return, accompanied by international media, and then set up tents inside and established a city there.”  The idea evolved into a movement of Palestinians. Within weeks, Abu Artema, civil society activists and other stakeholders drew up a charter of 12 principles, envisaging a national march by Palestinians of all ages, genders, political and social groups. (para. 22 and 23)

I’ve been following the #GreatReturnMarch since the beginning, watching its preparations, and studying it from the perspective of my international human rights law course that was occurring at the same time.

23472746_1518214138214284_7274524142973981851_nAn Israeli woman shared her thoughts about the protests. The New York Times adopted the Israeli framing of the protests.  The protests continued.  With grim predictability, the killing of unarmed protesters continued too.

Ms Fatou Bensouda

Ms Fatou Bensouda – Prosecutor

Throughout the summer and fall of 2018 I followed the protests and took heart when the Prosecutor for the International Criminal Court warned Israel that it might be subject to prosecution for its crimes committed against the protestors.

The United Nations appointed an independent international commission of inquiry to investigate.  Predictably, Israel refused to cooperate in the investigation, and Egypt wouldn’t let the commission enter Gaza because of security concerns in the Sinai. However, in this small and interconnected world we live in, with Skype and other technology, the commission interviewed many participants in the protests, as well as families of the victims, the medical personnel in Gaza, as well as viewed much of the video documentation from the protests. COI_Commissioners_HP

The three member commission released its report and findings on February 28, 2019. The Israeli government immediately condemned it, saying that the commission was blinded by hatred,  but everyone else I’ve read has received it favorably.

It’s a short (22 pages) read and I recommend it to everyone.

Some excerpts that added to my understanding of the #GreatReturnMarch —

Israel was prepared. The protesters were not trying to take anyone by surprise.

Prior to the first demonstration, Israeli forces reinforced their positions at the fence with additional troops, including more than 100 sharpshooters. They dropped leaflets in Gaza and contacted Palestinian bus companies to warn against participation. At the demonstration sites, they strengthened the separation fence and its underground barrier (to prevent and detect cross-border tunnels), installed kilometres of barbed wire coils on the Gazan side as additional barriers, cleared vegetation on both sides, dug deep trenches on the Israeli side and erected a battery of earth mounds or berms onto which snipers were positioned for better visibility and shooting accuracy.

When the rules of engagement were challenged, the Israeli Supreme Court ruled in favor of Israel.

Israeli and Palestinian non-governmental human rights organizations challenged the application of lethal force by Israeli forces at the fence in the Israel Supreme Court, contending that the rules of engagement violated international law because they were too permissive or were being applied permissively. The Court disagreed and approved the rules of engagement, holding that “the use of potentially lethal force for the sake of dispersing a mass riot – from which an actual and imminent danger is posed to life or bodily integrity – is, in principle, permitted, subject to proving necessity and proportionality.” The Court declined to examine how the rules were applied on the ground, deferring to the internal investigations of Israeli security forces.

Ten pages of this report describe the deaths and injuries during three specific days of protest (Sections V and VI — p. 7-16)

Was Israel testing new weapons on the civilian population?

According to an international doctor working at a Gaza hospital, interviewed by the commission, “It was striking the number of extremely similar injuries; massive open wounds in the legs, with skin and muscles ‘blown out’, bones smashed to pieces, and damage to blood vessels leading to vascular injury, putting the entire limb at risk.”

COGAT holds the power of life and death – no surprise here!

In early April, the Coordinator of Government Activities in the Territories denied exit permits for wounded demonstrators, primarily on the basis of the policy of the Minister of Defense to deny passage to any person injured during the demonstrations.  Although the Supreme Court of Israel subsequently rejected the above-mentioned blanket policy, those injured in the demonstrations continued to face significant challenges in obtaining medical treatment outside Gaza, as illustrated by the case below:

 Zakaria Bishbish (14)
On 30 May, Israeli security forces shot Zakaria, from the Maghazi refugee camp, in the back at the demonstration site in El Bureij, while he was at least 100 m from the separation fence. The gunshot perforated Zakaria’s stomach and colon, splintered his vertebrae and damaged his kidney. His family sought a two-week exit permit to seek life-saving treatment at Saint Joseph Hospital in East Jerusalem, which had arranged a medical appointment for 4 June. The Coordinator of Government Activities in the Territories, however, denied the request, giving no reasons. His family then attempted to secure appointments for him in Egypt and the West Bank; the Coordinator did not respond to their requests. On 18 June, Zakaria died
of sepsis.

Will the State of Israel and/or any individuals involved in these killings be held accountable?

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Filed under Gaza, IDF, Israel, Israel Defense Forces, nonviolent resistance, Peaceful, People, Uncategorized, United Nations, Video

Accountability needed to end excessive use of force against Palestinian protesters in Gaza, says UN expert

The following press release copied verbatim emphasizes ACCOUNTABILITY but who will hold Israel accountable?

GENEVA (5 March 2019) – The international community must take immediate and decisive action to ensure that Israel cease its violations of international law when responding to the ongoing demonstrations at the Gaza fence, a UN human rights expert said.

The Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, Michael Lynk, welcomed the findings and recommendations of the Commission of Inquiry into the deadly 2018 Palestinian protests in Gaza.

The Commission, which was mandated to investigate violations of international humanitarian and human rights laws, presented its findings on 28 February 2019.

“It found reasonable grounds to believe that, in all but two of the 189 fatalities investigated, the use of live ammunition by Israeli security forces against demonstrators was unlawful,” Lynk said. “Accordingly, I support the Commission’s call for accountability with respect to those who used lethal fire unlawfully, and for those who drafted and approved the rules of engagement which permitted this illegal use of lethal fire.”

Among the dead were 35 children, 3 paramedics and 2 journalists. Another 6,106 demonstrators were wounded during the demonstrations.

The Special Rapporteur noted that, since the start of 2019, Israeli security forces have continued to respond to protests along the fence with tear gas, rubber coated bullets and live ammunition. As a result, a further five children have been killed in the past two months.

One such incident saw the killing with live ammunition of two boys (aged 14 and 17) on 8 February 2019, and following the protest, the death on 12 February 2019 of a 16-year-old Palestinian boy who was hit by a tear gas canister in the head. According to human rights organisations, the three boys posed no threat to Israeli forces. More recently, on 22 February 2019, a 14-year-old Palestinian boy was killed by live ammunition during a protest east of Gaza city. 

Lynk reiterated that international human rights instruments pertaining to law enforcement provide that firearms may only be used against persons if there is an imminent threat to life or risk of serious injury. He added that, in the context of an occupation, the killings at the Gaza fence resulting from the unlawful use of force might well constitute willful killings of the protected population, which constitute a grave breach of the Fourth Geneva Convention and potentially a war crime under the Rome Statute.

“We must ensure legal accountability and end impunity for the excessive use of force against largely peaceful Palestinian demonstrators, and the resulting arbitrary deprivation of life,” said the Special Rapporteur. “This is a grave violation of their right to life and it abrogates their guaranteed freedoms of expression, peaceful assembly and association.”

Lynk also endorsed the recommendations of the Commission that the de facto authorities in Gaza failed in their duties to prevent the indiscriminate use of incendiary kites and balloons, which caused economic damage and civilian fear in southern Israel. 

The Special Rapporteur welcomed the attention given by the Commission of Inquiry to the dire living conditions in Gaza, which have fueled the large demonstrations over the past year. He endorsed the Commission’s call for an immediate lifting of the Israeli blockade of Gaza, which has repeatedly been described by recent UN Secretary-Generals as a prohibited form of collective punishment of the people of Gaza. In particular, he noted the dire impact of the blockade on the Gazan health system, which has significantly contributed to the deteriorating quality of health in the Strip. 

As the one-year anniversary of the “Great March of Return” on 30 March 2019 draws closer, and in view of the ever-deteriorating economic and humanitarian situation in Gaza, the Special Rapporteur expressed concern over possible rising levels of violence if no firm action was taken to pursue accountability and justice. “Continuing to suffocate Gaza is a blot on the world’s conscience and a recipe for more bloodshed,” Lynk said. “Restoring Gaza and ensuring justice and accountability would give the region hope that a better Middle East is possible.”  

Mr. Michael Lynk was designated by the UN Human Rights Council in 2016 as the Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967. The mandate was originally established in 1993 by the then UN Commission on Human Rights. Professor Lynk is Associate Professor of Law at Western University in London, Ontario, where he teaches labour law, constitutional law and human rights law. Before becoming an academic, he practiced labour law and refugee law for a decade in Ottawa and Toronto. He also worked for the United Nations on human rights and refugee issues in Jerusalem.

The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

 

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UK Parliament briefing on Israel’s Nation State Law

UK Parliament interior

UK Parliament Hall

Briefings about Israel-Palestine for Legislators in the UK and US are very similar.

Organize-organize-organize.  Line up expert witnesses.  Secure a member of Congress or Parliament to sponsor the briefing.  Invite-invite-invite.  Hold your breath and see who shows up, praying for members of Congress and Parliament to attend or send their staff.

The Members of Parliament (MPs) might be forgiven for not attending the briefing on Israel’s new Nation-State Law on Feb. 26, 2019 given the current Brexit turmoil they find themselves embroiled in. About 30 people were there, hopefully some staff, and at least one Zionist who identified himself at the end of the meeting.

The seminar at the House of Commons in London was hosted by EuroPal Forum and  brought together experts in the legal, diplomatic and public policy fields.

Andy Slaughter

Andrew Slaughter – photo credit Chris McAndrew

MP Andy Slaughter convened the meeting and provided a strong introduction to the issue. Clearly, he doesn’t need an education on Israel-Palestine. (Slaughter’s interests include the Middle East and particularly Palestine. He is Secretary of the Britain-Palestine All-Party Parliamentary Group (APPG) and Vice-Chair of Labour Friends of Palestine and the Middle East.)

He mentioned Amnesty’s new report (Human Rights in the Middle East and North Africa – Review of 2018), and the 25th anniversary of the massacre in Hebron where Baruch Goldstein killed 29 worshipping Palestinians, and even mentioned that AIPAC is calling Israel’s new political party racist! (The New Right הימין החדש‎, HaYamin HaHadash was established in December 2018). He concluded his remarks by saying that Israel’s Nation State Law is institutionalizing Palestinians as second class citizens before he apologized and said he had to leave the meeting. The speakers who followed were just as pointed and passionate.

Parliament Nation State event

Orfhlaith Begley, the MP representing the Sinn Fein from northern Ireland, said that Sinn Fein believes an international peace initiative is needed. The party is going to work on the Irish Parliament to recognize the State of Palestine. She mentioned there was a bill in the House of Commons to require Israel to treat Jews and Palestinians equally but it failed with the religious parties voting against it!! The British government has said nothing publicly about Israel’s Nation-State law.

UK Parliament 3

 

Salma Kami-Ayyoub, a legal consultant with Al-Haq and other organizations, summarized the provisions of the Nation-State Law and its three major impacts on Palestinians.

(1) Only Jewish people have the right to self-determination in the Land of Israel. (2) Settlement of Jews is a national value. (3) The Nation-State law is a Basic Law, equivalent to the Constitution. All future laws will have to be consistent with it as a foundational law for Israel. It is now a legal obligation of the State of Israel to promote the settlements. The law is “extremely damaging” because it forces the right of return out of the negotiations.

Where does this Nation-State Law apply?  Over the whole of historic Palestine, Kami-Ayyoub said.  There is no other constitution in the world that has a similar provision. She mentioned the rise in settler violence and asked why aren’t the settlers in Hebron called terrorists? She believes the UK government should impose sanctions. At the least, Parliament should investigate whether UK arms sold to Israel are being used to kill Palestinians.

She also mentioned the Namibia decision in 1971 as precedent which must be followed now.  I remember reading the decision a couple of years ago in my Human Rights Law class.  The International Court of Justice wrote:

The member States of the United Nations are under obligation to recognize the illegality and invalidity of South Africa’s continued presence in Namibia and to refrain from lending any support or any form of assistance to South Africa with reference to its occupation of Namibia.

UK Parliament 6

The final speaker, Kamel Hawwash, is a British-Palestinian Professor who gave an impassioned plea for action.

A predictable Q & A followed until a Zionist stood up and introduced himself as a British Jew who attends pro-Israel meetings in London and wanted to hear the other side. He listed a number of Israel’s achievements in health and science, and then invited the panel to attend some meetings to learn about Israel’s positive contributions to the world.

Professor Hawwash gave the best rebuttal by asking the Zionist — “Are Israel’s scientific achievements incompatible with ending the occupation?” he asked. No response, and the meeting ended soon after.

The exchange at the end was symptomatic of the typical discourse with Zionists on the issue of Palestinians and the occupation. They refuse to talk about the occupation, they ignore the elephant in the room, and they deflect by turning the conversation to other points, such as Israel’s scientific achievements.

 

UK Parliament 11

Maurice on left, Zionist in the middle

After the meeting ended, filmmaker Maurice Jacobsen tried to engage with the Zionists but said they kept deflecting and refused to respond directly on the issue of the occupation.  Undoubtedly, it was frustrating for both but it summarized for me what the greatest challenge may be to ending the occupation.  Not Israel’s new Nation State Law, although that presents a huge obstacle.

The biggest challenge is finding a coherent and meaningful way to talk about the occupation with the occupier and with the Zionists around the world that support Israel. Some pro-Palestinian activists may not be inclined to talk with Zionists, but Palestinians and Israelis will never live together as equals in the Holy Land if they refuse to talk and listen to each other.

Obviously, the Zionists appear content with the status quo since they have the upper hand and all of the advantages of the occupation flow to the State of Israel. They have no incentive to change the narrative that “Palestinians are terrorists and Israel must defend itself”. Thus it’s incumbent on the Palestinians and their supporters to provide a framing of the narrative where both can live together, side-by-side, respectfully and peacefully, as their ancestors did centuries ago.

This isn’t a sign of weakness or capitulation. The right of return must remain on the table. But the occupation will only end when both sides are willing to talk about it and listen to the other.

 

 

 

 

 

 

 

 

 

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Filed under Israel, Occupation, People, Politics, Settlers, Uncategorized

Powerful Women Call for End of the Occupation

Women in Black LondonNearly 100 women representing many countries (including U.K., Bosnia, France, Serbia, Croatia, Spain, Israel, Austria, Armenia and many more) convened in Leuven, Belgium (March 2-3, 2019) to stand in solidarity for peace, for the end of war, and for the end of the occupation.

Women in Black began in Jerusalem when the First Intifada broke out in December 1987. A handful of brave Israeli women wanted their neighbors and the government to understand that the occupation of Palestine was wrong, so they stood silently in black holding signs. They’ve been protesting the occupation every week for the past 31 years.  Today these Israeli women need support and solidarity from their international sisters because change is not going to happen from within.

They’re joined by women in many different countries. I’ve stood with Women in Black in Albuquerque, Baltimore and London. Thankfully, I could join the Leuven WiB when they stood in front of their beautiful city hall silently for an hour on Saturday.

The Grote Markt, one of the city’s busiest squares, was a great location with many pedestrians and cyclists flowing past, reading the signs, and sharing their support.

When the organist at Saint Peter’s Church across from City Hall played John Lennon’s “Imagine,” the tears and goosebumps mingled to make this the most special vigil for peace that I’ve ever joined.  (Thank you WiB Leuven!)  Next year the international gathering of Women in Black will be in Armenia. Look here for more details.

Imagine there’s no countries
It isn’t hard to do
Nothing to kill or die for
And no religion, too
###
Imagine all the people
Living life in peace
###
You, you may say I’m a dreamer
But I’m not the only one
I hope someday you will join us
And the world will be as one
###
Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
###
Imagine all the people
Sharing all the world
###
You, you may say I’m a dreamer
But I’m not the only one
I hope someday you will join us
And the world will live as one 

Following the vigil, the women gathered inside City Hall in the beautiful legislative chambers for reports, songs and fellowship.

Leuven City Council Chambers

Ria Convents (Leuven) moderated and opened the meeting;  Yvonne Deutsch (Israël) shared the history of how WiB began; Maria Vandoren and Mieke Coremans read poems they had written for the occasion; and Lies Corneille (the new municipial officer for equal rights and global policy in Leuven) welcomed us and thanked Women in Black for being a strong and consistent voice for peace. She mentioned the importance of being a powerful role model for the next generation of women.

Stasa Zajovic from Belgrade spoke about the impact of nationalism and fascism in the world,  and Jadranka Milisevic from Sarajevo told us about her work with young women in post-war Bosnia-Hercegovina. Women from Belgrade and France shared the important role of feminist lesbians in the peace movement, and Armine Karapetyan welcomed us to Armenia next year.

WIB Nov. 24 - 5

Women in Black from Baltimore 

 

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Whether Israeli settlers are committing genocide is not a political question; Al-Tamimi’s case can proceed.

On February 19, 2019, the District of Columbia Court of Appeals reversed the lower court, and ruled that the case brought by Palestinians against Sheldon Adelson and other Americans can proceed.  Al-Tamimi v. Adelson, 2019 WL 660919 (C.A.D.C., 2019)

“The plaintiffs, both Palestinian nationals and Palestinian Americans, claim the defendants, pro-Israeli American individuals and entities, are conspiring to expel all non-Jews from territory whose sovereignty is in dispute. They sued in federal district court, pressing four claims: (1) civil conspiracy, (2) genocide and other war crimes, (3) aiding and abetting genocide and other war crimes and (4) trespass. Concluding that all four claims raise nonjusticiable political questions, the district court dismissed the complaint for lack of subject matter jurisdiction. We now reverse.”

Martin McMahon

Martin F McMahon, Attorney for the Palestinians

The Palestinians’ complaint is over 200 pages and and the Court’s summary is chilling:

The plaintiffs are eighteen Palestinians who mostly reside in the disputed territory and a Palestinian village council. The defendants, all American citizens or entities, are eight high-net-worth individuals, thirteen tax-exempt entities, two banks, eight construction and support firms and a former United States deputy national security advisor. The complaint alleges that the defendants engaged in a conspiracy to expel all non-Jews from the disputed territory. Specifically, the individual defendants (excluding Abrams) funneled millions of dollars through the defendant tax-exempt entities and banks to Israeli villages called “settlements.” Armed with this financial assistance, the settlement leaders hired full-time security coordinators who trained a militia of Israeli settlers to kill Palestinians and confiscate their property. The defendant construction and support firms destroyed property belonging to the plaintiff Palestinians and built settlements in its place and, here in the United States, the deputy national security advisor publicly endorsed the settlements. All defendants knew their conduct would result in the mass killings of Palestinians residing in the disputed territory. 

The lower court dismissed their complaint because it decided that five political questions were raised, and the courts typically avoid political questions which are better resolved by the Executive or Legislative Branches. 

Baker, the fountainhead of the modern political question doctrine, did not definitively resolve whether the doctrine is jurisdictional. Indeed, at one point, the Supreme Court suggested that the doctrine is not jurisdictional.

The political question doctrine arises from the constitutional principle of separation of powers. The “doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986).

The DC Court of Appeals found that only two questions presented in the complaint are potentially political questions which might prevent the judiciary from considering the case. The first is who has sovereignty over the disputed territory? The other can be restated as: are Israeli settlers committing genocide?  To determine if these two questions are jurisdiction-stripping political questions, the Court of Appeals turned to the Baker factors. [Baker v. Carr, 369 U.S. 186 (1962)].

The first potential political question presented—who has sovereignty over the disputed territory—plainly implicates foreign policy and thus is reserved to the political branches. As the Supreme Court has explained, in our constitutional system questions regarding the “legal and international status [of Jerusalem] are … committed to the Legislature and the Executive, not the Judiciary.” Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky II ), 135 S. Ct. 2076, 2081 (2015). What is true of Jerusalem specifically is true of the entirety of the disputed territory. In fact, the Executive Branch recently addressed the question who has sovereignty over the disputed territorySee Statement by President Trump on Jerusalem (Dec. 6, 2017), https://www.whitehouse.gov/briefings-statements/statement-president-trump-jerusalem (“We are not taking a position [on] any final status issues, including the specific boundaries of the Israeli sovereignty in Jerusalem, or the resolution of contested borders.” (emphasis added) ).  On the other hand, the second potential political question presented—are Israeli settlers committing genocide—is a purely legal issue.  And it is well settled that genocide violates the law of nations. Simon v. Republic of Hungary, 812 F.3d 127, 145 (D.C. Cir. 2016)

 

Genocide has a legal definition. See United Nations Convention on the Prevention and Punishment of the Crime of Genocide art. 2, Dec. 9, 1948, 78 U.N.T.S. 277, 280 (defining genocide, in part, as “[k]illing members of [a national, ethnic, racial or religious group]” “with intent to destroy [the group], in whole or in part”). Thus, the ATS—by incorporating the law of nations and the definitions included therein—provides a judicially manageable standard to determine whether Israeli settlers are committing genocide. We recognize that the Alien Tort Statute, 28 U.S.C.A. Sec. 1350 “enable[s] federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.” Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004)

Naturally, the Department of Justice didn’t want the courts involved in this case and argued that the complaint could create an inter-branch conflict because, “[g]iven the level of political and military support provided Israel by the American government, a judicial finding that the Israeli armed forces had committed the alleged offenses would ‘implicitly condemn American foreign policy by suggesting that the [government’s] support of Israel is wrongful.’ ” Gov’t Appellee’s Br. 16.

However, the DC Court of Appeals concluded this concern, although entitled to deference, is now moot as the plaintiffs have waived any theory of liability based on the conduct of the Israeli military.

Ultimately, we believe that the court would create an inter-branch conflict by deciding who has sovereignty over the disputed territory. By answering the question—regardless of the answer—the court would directly contradict the Executive, which has formally decided to take no position on the question. We do not believe, however, that the court would necessarily create an inter-branch conflict by deciding whether Israeli settlers are committing genocide. A legal determination that Israeli settlers commit genocide in the disputed territory would not decide the ownership of the disputed territory and thus would not directly contradict any foreign policy choice. 

In the final analysis, the DC Court of Appeals concluded that the question who has sovereignty over the disputed territory does present a “hands-off” political question, but the question whether Israeli settlers are committing genocide does not.

If it becomes clear at a later stage that resolving any of the claims requires a sovereignty determination, those claims can be dismissed.

So Al-Tamimi and the others who brought this case climbed a very steep mountain to reach the courthouse doors. They have been admitted in, and now must climb Mt. Everest if they are going to prevail on their claims.

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Filed under People, Politics, Settlers, Uncategorized, US Policy