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.

Advertisements

2 Comments

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

Occupation or Colonisation? Ilan Pappe

Pappe talkThis talk at Queen Mary University in London interested me for two reasons.

I learned about Israel’s ethnic cleansing of the Palestinians  and the history of the Nakba from this man when I read his book “The Ethnic Cleansing of Palestine” and I really wanted to see Professor Pappe speak in person.  (More about Ilan Pappe here.)

I also wanted to challenge Professor Pappe.  Last year he suggested (recommended?) that we jettison the term “occupation” in favor of “colonisation”. (Check out his comments and my response here.) Although I understood his argument, I disagreed with him but never had the opportunity to tell him directly. So I imagined I might be able to tell him in London — face-to-face — because it was the subject of his talk.

The event was clearly billed as a “students only” gathering with a warning that student ID would be checked at the door, but that didn’t deter me. I found my way to Queen Mary University on the East Side of London and the students who were gathered outside encouraged me to attend.

Thankfully, the room monitor waved me in without any questions. I was clearly several decades older than the students around me.

Pappe headshot

The evening’s talk was not what was billed in the title for the event. Professor Pappe’s presentation focused on Settler Colonisation as it challenges basic Zionist ideology.  He did not argue, as he has in the past, that the term “colonisation” should replace “occupation.”  I had no desire to challenge him on that point, especially when the students had so many good questions to ask him. It felt as though I would be usurping their time with Pappe if I had raised my hand too.

Pappe explained the difference between “classical colonisation” and “settler colonisation” where the settlers are looking for a place to redefine themselves, a national movement. The settler sees himself as indigenous, and sees the genuine indigenous people as a threat (a hurdle) to be overcome.

“The Palestinians are fighting an anti-colonialist war of liberation.”

He drew parallels to South Africa several times, and said the logic of dehumanization is firmly embedded in he Zionists’ DNA as well as Israel’s DNA.  Otherwise, they couldn’t do what they’re doing to the Palestinians and live with themselves.

“The Bible is not an action plan for colonisation.”

Sitting in a university in London, Pappe noted that the Zionists probably wouldn’t have succeeded with their settler colonisation plans without the help of the British. That acknowledgement helped me appreciate that the U.S. isn’t the only culprit in this tragedy.

Shivers went down my spine when Pappe mentioned that the Zionists’ massacres of Palestinians in 1948 was probably much, much worse than what he wrote about in The Ethnic Cleansing of Palestine. We probably don’t know, and won’t know, the extent of the massacres until Israel opens up its archives to the public.  The documents from 1948 would have become public this year but Netanyahu approved an extension of another 20 years before they will be declassified. (What are they hiding?)

Pappe said that the settler colonialists in Israel have perfected two models — the open prison (West Bank) which was astonishingly approved in the Oslo Accords, and the maximum security prison (Gaza) where collective punishment is the norm and the Israeli military is using its might to carry out massacres.

Pappe and students

Academics around the world are collaborating on the issue of how to do decolonisation. Pappe supports the One Democratic State. He didn’t mention Jeff Halper, but I suspect Pappe must be collaborating in the same effort.

Pappe sounds optimistic for the future of Palestine, and believes the young Palestinians (both in Palestine and in the diaspora) will succeed, but it may not happen in his lifetime, he admitted.

 

 

 

 

 

 

3 Comments

Filed under Israel, Israel Defense Forces, Nakba, People, Politics, Settlers, Uncategorized

The Human Spirit

Christmas message from December 2015, as relevant today as it was then, perhaps more so.   

World leaders have spent the last three years building walls, metaphorically and legally, to stem the tide of refugees. Donald Trump is demanding Congress cough up the money for his wall along the southern US-Mexico border, and now he’s closed down the U.S. government until they do. (Remember his campaign promise that Mexico would pay for the wall?)

The absurdities are limitless. We (meaning the colonial Western powers) preach free trade and no economic barriers, knowing the benefits flow primarily in one direction — ours.

We export our military and new-fangled weapons of hideous destruction to countries and people who have no means to resist our “gifts” of democracy.

We lock people up for years behind economic, political and cultural blockades (occasionally dropping cluster bombs and white phosphorous on them) because they don’t behave as we tell them they should. They refuse to obey.

Meanwhile, we continue to shop for the latest fashions, attend the posh parties, gush over every theatrical production, and toast to the New Year.  The hypocrisy of all hypocrisies is that we believe we can live our lives free from the mayhem and chaos WE have spread throughout the world; that our selfish, malevolent actions have no consequences!

Until our leaders grasp the “cause and effect” of our exploitations abroad, we will continue to see desperate people fleeing desperate circumstances of our own making.

The human spirit seeks life.  I also believe the human spirit seeks to help those in need. 

Mural

Mural in Patras, Greece

That’s why Somer Sood, a California mother, created a nonprofit to bring backpacks to refugee children in Greece, along with some joy and dignity.

That’s why an American lawyer from Hawaii founded Advocates Abroad to provide legal assistance to refugees in Greece.

That’s why Sayrah Namaste, a New Mexico mother, regularly goes to the US-Mexico border to help refugees there.

And that’s why Judy Werthein, an Argentinian artist, created a new brand of shoes in 2005. (Brinco means jump in Spanish)  She distributed the trainers free of charge to people attempting to cross the border in Tijuana, Mexico. At the same time, just over the border in San Diego, she sold the shoes as ‘limited edition’ art objects for over $200 a pair. Wertheim donated part of the money she raised to a Tijuana shelter helping the migrants.

Today, they are on display in London at the Tate Modern Art Museum.

 

The trainer’s design includes eagle motifs inspired by American and Mexican national symbols, and an image of Saint Toribio Romo, the patron saint of Mexican migrants. The shoes also feature a torch, a compass and pockets to hide money and medicine. Printed on a removable insole is a map of the border area around Tijuana.

Werthein had the Brinco trainers produced cheaply in China. Many global companies manufacture products in countries where labour is cheap and often poorly regulated. The artist hopes to draw attention to how easily goods move between countries, compared with the strict regulations around the movement of people. The same governments that allow the import of cheap goods from overseas often strictly control, and actively discourage, migrants from entering the country in search of better living conditions.

Lora Lucero’s spirit wants to help refugees. Today it may be as little as purchasing and donating a cot to the shelter and shipping it to Las Cruces. Here is the address for shipping: Project Oak Tree 1280 Med Park Drive Las Cruces, NM 88005.

Tomorrow?  I hope I find the answer I’m searching for in 2019 — how can Lora best help the refugees seeking safety and security?

 

 

 

2 Comments

Filed under Peaceful, People, Politics, Uncategorized, US Policy, Video

Borders

Protest refugees 8

A simple message seen in London the week before Christmas. A few people protesting the government’s actions with refugees seeking asylum in the UK. They quietly read the names, dates and circumstances of those refugees who have died trying to find safety and a new home in the UK. I was shocked to hear how many suicides occurred after the refugee learned his or her asylum application had been rejected.

Sharing that photo on social media elicited many who supported it, with one person making the effort to point out that “Yes but sovereign countries do. And that matters a lot, whether you want to acknowledge it or not!”

My initial reaction, if I’m honest with myself, was one of scorn. I decided not to respond because I know we’re using different playbooks — I’m a Democrat and a Progressive, the poster is a Republican and a Conservative. Our worldviews clash, and there’s no point in engaging with someone who is so wrong and misinformed.

However, his reaction to a simple message of love for our brothers and sisters no matter where they may live, continued to needle me. Why would he assume I don’t acknowledge the importance of sovereign countries or understand that there’s a significant political dimension to borders?

Then it dawned on me —- he must think the same of me, as I think of him. That I’m wrong, misinformed, uneducated, naive, stuck in my box and unable to appreciate the nuance of any issue.

And then an “AHA!” moment —- there are different kinds of borders.

  • the legal, jurisdictional borders between nation-states,
  • the political borders such as the divisions between the Republicans and Democracts in the U.S., the Conservative and Labor Parties in the UK, and Fatah and Hamas in Palestine, and
  • the borders we create in our own heads every time we think about “us vs. them.” 

Refugees die on boats that are sinking in the Mediterranean as they try to cross the borders between countries, while politicians cavalierly throw up political and legal roadblocks and refuse to engage in any meaningful sense with the forces driving the refugees to flee their homes in the first place.

The Israeli military sharpshooters are killing and maiming Palestinians every week at the fence (not a legal border) between Israel and Gaza for the simple purpose of protecting their sovereign country.  Fatah and Hamas appear to be sabotaging each other and the dreams of a future State of Palestine because they have erected impenetrable borders between the two. “Either you’re with us or you’re against us!”

And I automatically threw up a border between myself and my friend on social media, refusing to engage with him, dismissing his comment, and moving on to others with whom it was easier to see eye-to-eye. Us versus them!

There’s no immutable magic in the geographical borders between nation-states. History demonstrates how often such borders have changed, and they will undoubtedly change in the future.

And there’s certainly nothing special at all about any political party, despite what the politicians may tell us.

But the borders we create in our heads are the most pernicious and impenentrable because (1) we don’t see or acknowledge them, and (2) even if we do, most of us are unwilling to eliminate those borders. It’s far easier to stay within my comfort zone where I’m right, or at least I feel affirmed in my beliefs. It takes work and perhaps a bit of humility to try to tear down those “us versus them” borders in our minds.

And so as Christians celebrate Christmas 2018, the message I want to share is to remember the Golden Rule, treat your neighbor as you wish to be treated. I think that’s the key to breaking down every type of border.

Bethlehem

 

 

 

4 Comments

Filed under Peaceful, Spiritual - Religion, Uncategorized

The gift of quiet self-reflection

I grew up in a mixed family (Christian and Jewish). As a child, I loved opening a gift each evening of Hanukkah, and then on Christmas morning, opening a whole bunch more. As a spoiled, middle-class brat, both holidays for me were all about the gifts, with a smattering of religious ceremony and reflection thrown in for good measure.

Nearly half a century later, when I was living in Gaza for a few months (2012-2013), many new friends asked me “What are you? A Christian? A Jew? Something else?” Labels help us make sense of each other, but my standard response to my inquisitors was not so simple.

After explaining my family traditions, I told my new friends that I don’t consider myself a member of any organized religion today, followed by their expressions of  astonishment or disgust. Then I would explain that I try to live my life by one simple (yet not so simple) rule — to treat others as I would want them to treat me. The Golden Rule in the Christian faith is also a bedrock principle in Judaism and Islam.

Last night I wished my Jewish family, friends and colleagues a quiet time of reflection on this first night of Hanukkah 2018. Here’s what I wrote on social media:

I believe tonight is the beginning of Chanukah. I was going to wish my Jewish family and friends a “Happy Chanukah” but instead will wish each of you a time of self-reflection about what it means to be a Jew after 50 years of Israel’s military occupation. How is that working for you? How does it make you feel? I hope you have quiet time to reflect.

The responses ranged from disappointment tinged with anger, to support and agreement. (I’ve copied several below without author identification.

Wow, I have reflected on your post and am saddened. We always celebrated this holiday in the spirit of hope for humanity and kindness. None of us free from association with a country that has committed acts of brutality and sometimes barbarism. As Americans, we can point to any number of atrocities. To use the actions of a government to issue such a wish to a people, such as the Jews, is inappropriate.

And then this —

I absolutely agree [with the previous comment]. This is like asking those who observe Christmas how they feel about celebrating a holiday associated with a religon that committed the worst brutality and atrocities ever in the name of furthering its creed.

Writer #1 offered further —

We do not succeed in changing people’s hearts and minds through insulting them. I have worked on many campaigns, invested time, money, and effort to influence policies toward justice. I feel it is dangerous to say that Jews who are citizens of other countries are responsible for the Israeli government’s atrocities. The occupation needs to end, but we will not build a coalition by this approach.

And then a third writer chimed in —

I was going to wish my white American family and friends a “Merry Christmas” but instead will wish each of you a time of self-reflection about what it means to be white American, with access to all of America’s privileges, after a century of U.S. imperialism from death squads in Latin America to Vietnam to drones, the NSA, and support for Saudi Arabia. How is that working for you? How does it make you feel? I hope you have quiet time to reflect.

How does that sound to you Lora? It sounds very condescending and patronizing to me. To say that, I would be setting myself above the people I’m talking to, saying “*I* have reflected on these issues and obviously you haven’t so I’m asking you to do so”.

What you said is worse because, while Americans do have some responsibility for America (to the extent that our democracy works, which is not very well), you are assigning to all Jews responsibility for Israel. I do think it’s especially important for us as American Jews to oppose what Israel is doing, because the position of American Jews plays at least some role in American policy toward Israel (though again, in practice, there is not much democratic power). But that doesn’t mean we are responsible for Israel’s actions simply because we are Jews.

hanuka1Others felt I was conflating Jews with Zionists, which I’m clearly not.  Surprisingly, no one has called me an anti-Semite, usually the default position for many who disagree with my words.

A time of reflection is what I wish — and I hope the reflection is focused on Israel’s half-century brutal and dehumanizing military occupation of the Palestinians.

Why should American Jews reflect on Israel’s actions?

  • Because Israel’s government officials have declared ad nauseum that they represent Jews worldwide, and have even invited Jews living anywhere on Planet Earth to come make their home in Israel. (That will certainly help with the “demographic threat.”)
  • Because the U.S. government has aided and abetted this 50 year occupation with the largest financial aid appropriations made to any country (most recently $38 Billion over the next 10 years). The U.S. consistently shields the State of Israel from being held accountable at the United Nations. The U.S. Congress gives Israel’s leader standing ovations when he speaks at the U.S. Capitol, and it is certainly clear that the vast majority of Congressmembers are at the beck and call of AIPAC, Israel’s lobbying organization in the U.S.
  • Because Israel’s three military campaigns against the Palestinians in the Gaza Strip, its 12+ years of economic, political and cultural siege on Gaza, and its deliberate killing of men, women, children, paramedics, and journalists at the #GreatReturnMarch at the fence between Israel and Gaza since March 2018, has occurred without any reprecussions, and no Israeli leaders have been held accountable. The killings will surely continue.
  • Because American Jews can and are playing a very important role in educating Congress that “Israel doesn’t speak for us” and younger American Jews are distancing themselves from Israel by greater numbers every year. Some personal reflection must have helped move these particular Jews to speak up and against the occupation.
  • Because when an American Jewish constitutent has an opinion to share about Israel with their member of Congress, I believe it carries much greater weight than my opinion (no matter how informed or eloquent I may sound.)

My Hanukkah wish casts no blame on Jews as a group or as individuals, despite what some writers above might have felt. That’s perhaps the biggest reason why my Jewish family, friends and colleagues should spend some time this Hanukkah in self-reflection on the issue I’ve raised. They may be carrying the weight of Israel’s horrific human rights abuses but they shouldn’t.  Quiet reflection may do the soul some good.

1 Comment

Filed under Spiritual - Religion, Uncategorized, United Nations, US Policy

Eloquent truth-telling at the United Nations

International Day of Solidarity with the Palestinian People Special Meeting at UN Headquarters November 28, 2018

Professor Marc Lamont Hill at the United Nations calls for “Free Palestine from the River to the Sea” to chorus of applause.  This 20-minute video says all that needs to be said about Israel’s long-term, illegal occupation of Palestine, about human rights, about the facts on the ground today in the West Bank and Gaza.  CNN fired Professor Hill the day after he spoke the hard truth at the UN.

1 Comment

Filed under People, Uncategorized, United Nations, Video

US Mimics Israel at US-Mexico Border

No More War

My social media Facebook feed is overwhelmed with photos and messages of horror about the current actions of the U.S. military at the US-Mexico border.  Check out the story here, if you haven’t seen it.

We (I use that pronoun deliberately) have closed the border and we are now violently throwing tear gas canisters and shooting rubber bullets at men, women and children migrants.

Here are several videos of the migrants being attacked at the US-Mexico border.

I’m not shocked by Trump’s aggressive and violent response at the border, and neither should any American be shocked. We’ve been watching the same actions occurring at the fence (not border) separating Israel and the Gaza Strip since March of this year.

Israel, our best friend and ally in the Middle East, has deployed its military to the perimeter fence line shared with Gaza to shoot tear gas canisters, rubber bullets, and live bullets at Palestinian men, women and children participating peacefully in the Great Return March. 

Palestinians have paid a great price for their call for life with dignity during mass protests held along Gaza’s boundary with Israel over the past eight months.

Some 180 Palestinians have been shot dead by Israeli occupation forces and nearly 6,000 others injured by live fire during the Great March of Return.


Altogether, a staggering 24,000 Palestinians have been injured during the Great March of Return protests – more than one percent of the territory’s population.

See Maureen Clare Murphy’s full article here.

Neither Trump nor the U.S. Congress has stood up to Israeli leaders and told them to stop this barbarity.  Trump probably thinks he has the tacit support of Congress for his deployment to the US-Mexico border.  The US and Israel are playing by the same playbook now. Americans shouldn’t be surprised.

I, for one, fully expect snipers to be deployed at the US-Mexico border. And I won’t be surprised when the U.S. military is deployed against Americans inside our country. This action today against the migrants in the South is only a precursor to future, more aggressive actions to support our nascent Fascist government.

1 Comment

Filed under Gaza, Israel Defense Forces, People, Uncategorized, US Policy, Video