Category Archives: Politics

“What are Trump and Netanyahu afraid of?” — New York Times editorial board asks

iStock 20492165 MD - American and Israeli flags

America and Israel flags

The New York Times Editorial Board, so often an apologist for Israel’s brutal occupation of the Palestinians, opined (August 15, 2019) that Trump’s and Netanyahu’s actions denying two U.S.  Congresswomen the opportunity to visit Israel-Palestine was a sign of weakness.

There are not many traditions of decorum that President Trump has not trampled on since entering the White House. But to put at risk, so cynically, America’s special relationship with Israel solely to titillate the bigots in his base, to lean so crassly on a foreign leader to punish his own political adversaries, to demonstrate so foul a lack of respect for the most elemental democratic principles, is new territory even for him.

America’s special relationship with Israel” translates to $3+ Billion every year from US taxpayers to Israel; an unquestioning veto at the UN Security Council to prevent any measure critical of Israel’s occupation; a willful blindness to the undemocratic, apartheid state that flaunts its “successes” while shielding from public view its grotesque human rights violations; a mindless deference to Israel’s hasbara and security mantra; and a chilling indifference to the suffering, killing and dehumanization of the Palestinians barely surviving under Israel’s military occupation. The N.Y. Times Editorial Board asks: “What are Trump and Netanyahu afraid of?” My answer is simple.

The Truth

Anyone who has lived, worked, volunteered or spent any bit of time with the Palestinians in the occupied West Bank, occupied East Jerusalem, or the occupied Gaza Strip knows that the State of Israel has been wildly successful at spinning a righteous tale of its victimhood, its struggle for survival and security in a “dangerous neighborhood,” and its “peace-loving” liberal values.

The State of Israel has succeeded in creating this mirage by carefully pushing its hasbara  (promoting its version of the facts) to the exclusion of contrary facts which undermine Israel’s preferred reality.  And the New York Times, as well as some other western media, have been complicit in this charade.

Israel has also succeeded in keeping the U.S. Congress duped by indoctrinating them into Israel’s version of the facts with carefully orchestrated junkets to Israel that highlight the “special relationship” between our two countries; by keeping AIPAC (Israel’s Washington lobbyist) in the offices of freshman members of Congress so they are honed to the “correct path” from the beginning; and by unseating those members of Congress who won’t follow AIPAC’s direction. (Read about former Congressman Paul Finley who died August 9, 2019).

There are so many examples, books could and have been written about it.  My first education about the myths and propaganda came from one of the new Israeli historians, Professor Ilan Pappe, which I wrote about here.

My correspondence with the editors of the New York Times in 2016 is one small example of trying to break through Israel’s alternative reality. When the editors refused to label the Gaza Strip as “occupied” territory, I challenged them.  I wrote about it here. After several communications back and forth, my query finally ended up in the deep, dark hole within the bowels of the New York Times. Even the Democratic National Committee has apoplexy with the term “occupation”, as I wrote about here.

The four congresswomen — Reps. Ilhan Omar of Minnesota, Alexandria Ocasio-Cortez of New York, Rashida Tlaib of Michigan and Ayanna Pressley of Massachusetts — the “Squad” as they’re known on Capitol Hill — are a threat to anyone who fears the truth. They’re challenging the powerful lobbyists, the accepted orthodoxy of the Democratic Party, and even the State of Israel’s hasbara.

I can only imagine that the New York Times Editorial Board must be sniffing the same scent that the Emperor who wore no clothes sniffed when it began to dawn on him that his reality didn’t match what everyone around him knew.

The truth — that’s what Trump and Netanyahu fear.

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US Congress condemns boycotts of Israel

On July 23, 2019, Congress passed H. Res. 246 condemning boycotts of Israel. (398 – 17) [The full text is copied below.]

The resolution was obviously drafted by AIPAC — Israel’s powerful lobbying organization working against all efforts to “delegitimize” [AIPAC’s word, not mine] the State of Israel.

The U.S. Congress opposes the Global Boycott, Divestment, and Sanctions Movement (BDS Movement) targeting Israel, including efforts to target United States companies that are engaged in commercial activities that are legal under United States law, and all efforts to delegitimize the State of Israel;

This comes at the same time that the U.N. Special Rapporteur is recommending a global BDS (boycott, divestment and sanctions) movement against Israel because no other actions by the United Nations or the international community have deterred Israel’s occupation and steady march towards ethnic cleansing of the Palestinians from their land.

As the ACLU has repeatedly informed Congress, political boycotts are fully protected by the First Amendment. The Supreme Court made that clear when it recognized, in a landmark 1982 decision called NAACP v. Claiborne Hardware, that the Constitution protected a 1960s boycott of white-owned businesses in Mississippi.

The 17 NAY votes included Rep. Ilhan Omar (D-MN), Rep. Alexandria Ocasio-Cortez (D-NY), Rep. Rashida Tlaib (D-MI), Rep. Betty McCollum (D-MN), Rep. Pramila Javapal (D-WA), and Rep. Raul Grijalva (D-AZ).  Their courage to stand up against the Democratic leadership, against AIPAC, and against the tidal wave of their fellow colleagues in the House must be recognized and applauded. 

Deb HaalandUnfortunately, my first term Congresswoman Debra Haaland (D-NM) did not display that courage. She issued no statement to explain her decision to oppose my constitutional right to boycott Israel but my hunch is that she will follow Speaker Pelosi’s wish —- the good inside game in politics —- on these matters. Although Haaland graduated from law school, her understanding or appreciation for the First Amendment is not strong.

On Cesar Chavez Day, Rep. Haaland stood on the stage with Dolores Huerta, but perhaps she wasn’t aware of the importance of that day — to remember a movement that was all about the use of boycotts!

The Senate has an identical resolution (S.Res. 120) which hasn’t been voted on yet. My two U.S. Senators are going to hear why I urge them to oppose it.

116th CONGRESS

1st Session

H. RES. 246

IN THE HOUSE OF REPRESENTATIVES

March 21, 2019

 (for himself, Mr. ZeldinMr. Nadler, and Mrs. Wagner) submitted the following resolution; which was referred to the Committee on Foreign Affairs, and in addition to the Committees on Financial ServicesScience, Space, and Technology, and the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

RESOLUTION

Opposing efforts to delegitimize the State of Israel and the Global Boycott, Divestment, and Sanctions Movement targeting Israel.

Whereas the democratic, Jewish State of Israel is a key ally and strategic partner of the United States;

Whereas since Israel’s founding in 1948, Congress has repeatedly expressed our Nation’s unwavering commitment to the security of Israel as a Jewish and democratic state;

Whereas American policy has long sought to bring peace to the Middle East and recognized that both the Israeli and Palestinian people should be able to live in safe and sovereign states, free from fear and violence, with mutual recognition;

Whereas support for peace between the Israelis and Palestinians has long-standing bipartisan support in Congress;

Whereas it is the long-standing policy of the United States that a peaceful resolution to the Israeli-Palestinian conflict should come through direct negotiations between the Government of Israel and the Palestinian Authority, with the support of countries in the region and around the world;

Whereas it is a hallmark of American democracy for citizens to petition the United States Government in favor of or against United States foreign policy;

Whereas cooperation between Israel and the United States is of great importance, especially in the context of rising anti-Semitism, authoritarianism and security problems in Europe, the Middle East, and North Africa;

Whereas the Global Boycott, Divestment and Sanctions Movement (BDS Movement) targeting Israel is a campaign that does not favor a two-state solution and that seeks to exclude the State of Israel and the Israeli people from the economic, cultural, and academic life of the rest of the world;

Whereas the BDS Movement targets not only the Israeli government but also Israeli academic, cultural, and civil society institutions, as well as individual Israeli citizens of all political persuasions, religions, and ethnicities, and in some cases even Jews of other nationalities who support Israel;

Whereas the BDS Movement does not recognize, and many of its supporters explicitly deny, the right of the Jewish people to national self-determination;

Whereas a founder of the BDS Movement has denied the right of the Jewish people in their homeland, saying, We oppose a Jewish state in any part of Palestine. No Palestinian, rational Palestinian, not a sell-out Palestinian, will ever accept a Jewish state in Palestine.;

Whereas university-based BDS efforts violate the core goals of the university and global cultural development, which thrive on free and open exchange and debate; and

Whereas the BDS Movement promotes principles of collective guilt, mass punishment, and group isolation, which are destructive of prospects for progress towards peace and a two-state solution: Now, therefore, be it

That the House of Representatives—

(1)

opposes the Global Boycott, Divestment, and Sanctions Movement (BDS Movement) targeting Israel, including efforts to target United States companies that are engaged in commercial activities that are legal under United States law, and all efforts to delegitimize the State of Israel;

(2)

affirms that the Global Boycott, Divestment, and Sanctions Movement undermines the possibility for a negotiated solution to the Israeli-Palestinian conflict by demanding concessions of one party alone and encouraging the Palestinians to reject negotiations in favor of international pressure;

(3)

urges Israelis and Palestinians to return to direct negotiations as the only way to achieve an end to the Israeli-Palestinian conflict;

(4)

supports the full implementation of the United States-Israel Strategic Partnership Act of 2014 (Public Law 113–296; 128 Stat. 4075) and new efforts to enhance government-wide, coordinated United States-Israel scientific and technological cooperation in civilian areas, such as with respect to energy, water, agriculture, alternative fuel technology, civilian space technology, and security, in order to counter the effects of actions to boycott, divest from, or sanction Israel; and

(5)

reaffirms its strong support for a negotiated solution to the Israeli-Palestinian conflict resulting in two states—a democratic Jewish State of Israel, and a viable, democratic Palestinian state—living side-by-side in peace, security, and mutual recognition.

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UN Special Rapporteur urges Israel be held accountable

michael_lynk

Special Rapporteur S. Michael Lynk

The community of nations should start using some of the legal sticks available in its basket to push the State of Israel into ending the occupation of Palestine.  That’s the bottom line according to the U.N. Special Rapporteur who is calling for global boycott, divestment and sanctions (BDS) against the State of Israel.

Professor S. Michael Lynk, a Canadian law professor, is no newbie to Israel’s occupation. As the UN Special Rapporteur for human rights in the occupied territories, he asked  — When is enough, enough under international law?  He answered it in his report to the U.N. General Assembly in October 2017. I summarized his report here.

In the 22 page report, which should be required reading for everyone interested in the future of Israel and Palestine, Professor Lynk opened a new (legal) chapter in Israel’s occupation of East Jerusalem, the West Bank, and the Gaza Strip. He made the case for recognizing Israel as an illegal occupier, and called on the international community to use all of the tools in its toolbox to end this illegal occupation.

The next year, EJIL: Talk! …. the Blog of the European Journal of International Law published Professor Lynk’s commentary where he urged the international legal community to consider whether or not Israel’s prolonged occupation of Palestine has crossed some legal red line, resulting in an illegal occupation. Professor Lynk posited a 4-part test to determine the answer. His commentary was reprinted on my blog here.

The Great MarchIn the Spring of 2018, when Palestinians in Gaza launched the Great Return March and protested at the fence line between Israel and Gaza, Israel responded with lethal force. Lynk said the killings reflected a “blatant excessive use of force by Israel” and likened them to “an eye for an eyelash.” The protesters appeared to pose no credible threat to Israeli military forces on the Israeli side. Under humanitarian law, he said, the killing of unarmed demonstrators could amount to a war crime, and he added that “impunity for these actions is not an option.” (I wrote about that here.)

Although Professor Ilan Pappe wants the world to jettison the term “occupation” in favor of “colonization” in the context of Israel – Palestine, Professor Lynk has taken a different tack. He recommends that the U.N. declare the occupation illegal. See more about that here.

In March 2019, the UN Commission of Inquiry issued its findings and recommendations on the deadly protests in Gaza. Professor Lynk agreed and warned that —

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.”

ACCOUNTABILITY

For many years, Palestinians and human rights activists have been beating the accountability drum urging the world to hold Israel accountable for its responsibilities as an occupier and its flagrant violations of international humanitarian and human rights law. Beyond the many non-binding resolutions at the U.N. over the years, there has been no credible and sustained effort to hold Israel accountable. (The U.S. is a very big reason why the U.N. has failed — but that’s for another blog post.)

2013-05-05-21-01-541On his most recent tour to the Middle East, Professor Lynk held meetings in Jordan because Israel refuses to allow him to visit Palestine. He believes that unless Israel is pressured to do the right thing, it will continue to deepen and further entrench the occupation.

Professor Lynk recommends that the UN members should consider everything from cutting cultural ties with Israel to suspending its membership in the world body.

He emphasized the role of the EU, which accounts for some 40 percent of Israel’s external trade and could make the flow of Israeli goods and services to the 28-nation bloc contingent on policy shifts that help Palestinians.

Furthermore, Lynk urges the speedy publication of a long-awaited blacklist of Israeli and international companies that profit from operations in Israeli settlements in the occupied West Bank. He also wants prosecutors at the International Criminal Court (ICC) in The Hague to hasten its preliminary investigation of allegations of rights abuses by Israel and Hamas on Palestinian territory, which began in 2015.

Although Professor Lynk’s role as UN Special Rapporteur carries no enforcement power or authority, he’s certainly using his responsibility to examine and report on the occupation to the fullest extent possible. Now civil society and solidarity activists must amplify his call for accountability. 

 

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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Rep. McCollum is my super-heroine

Don’t let anyone tell you that one person can’t make a difference!  

Betty McCollum

Rep. Betty McCollum

Rep. Betty McCollum (D-MN) is the embodiment of a one woman tidal wave washing over Congress.

For the past four years, she’s been raising the issue of the persistent and gross human rights violations perpetrated on Palestinian children by the Israeli military.

The arrest and detention of Palestinian children in Israeli jails has been well-documented by human rights organizations. Israel is the only country in the world that prosecutes children in military court, a stark example of its double standard and apartheid system of justice.

Children are taken from their beds and arrested in the middle of the night; they’re arrested on their way to school with their backpacks yanked from their shoulders; and they’re even pulled out of the arms of their teachers in classrooms. All of this has been documented and reported, thanks to Amnesty International and other Human Rights groups, but it hasn’t stopped Israel.  An estimated 500-700 children are arrested, detained and prosecuted in Israel’s military court system each year, according to Defense of Children International – Palestine.

UNICEF’s 2013 reportChildren in Israeli Military Detention, while somewhat dated still remains one of the most thorough reviews of the pattern and practice Israel employs against Palestinian children in detention.

No Way To Treat a Child — The No Way to Treat a Child campaign seeks to challenge and end Israel’s prolonged military occupation of Palestinians by exposing widespread and systematic ill-treatment of Palestinian children in the Israeli military detention system. It is a joint project of Defense for Children International – Palestine and American Friends Service Committee.

And we even have the personal interviews of 24 Palestinian child prisoners held in Israeli jails compiled in a 2016 book “Dreaming of Freedom“, edited by Norma Hashim and translated by Yousef Aljamal. I delivered a copy of the book to Rep. McCollum in January 2018 as a ‘thank you’ for her unwavering support and advocacy on behalf of Palestinian child prisoners. dreaming-of-freedom

The United States has a big stick it could use to bring pressure to bear on Israel —- it’s annual $3.8 billion appropriation to the Israeli military. Representative McCollum doesn’t believe that U.S. taxpayers want their dollars supporting gross human rights violations of children.

In 2015, she wrote a letter to then-Secretary of State John Kerry which 19 of her Democratic colleagues signed, asking him to make this issue a top priority.  But nothing came of it.

The following year she wrote a letter to President Obama which 20 of her colleagues signed, asking him to appoint a Special Envoy for Palestinian Youth to collect “vital information necessary to actively promote human rights.”  But again nothing happened.

So in 2017, she drafted a bill, H.R.4391, to prohibit any funds from being used by Israel to “support the military detention, interrogation, abuse, or ill-treatment of Palestinian children.” It also required the Department of State either to certify that funds were not used in this manner or report how Israel expended them to ill-treat Palestinian children.

In July 2018, Rep. McCollum explained why H.R. 4391 was necessary.

When it didn’t pass in the 2017-2018 session, Representative McCollum strengthened the bill and reintroduced it on April 30, 2019 where it was referred to the House Committee on Foreign Affairs. Check out the committee membership here, and if your representative is listed, consider calling and writing and telling him/her why you think H.R. 2407 is important and should have a hearing.

On May 1, her office issued a press release explaining the bill.

The Promoting Human Rights for Palestinian Children Living Under Israeli Military Occupation ActH.R. 2407 — amends a provision of the Foreign Assistance Act known as the “Leahy Law” to prohibit funding for the military detention of children in any country, including Israel.

The bill also establishes the “Human Rights Monitoring and Palestinian Child Victims of Israeli Military Detention Fund,” authorizing $19 million annually for non-governmental organization (NGO) monitoring of human rights abuses associated with Israel’s military detention of children. The Fund also authorizes qualified NGOs to provide physical, psychological, and emotional treatment and support for Palestinian child victims of Israeli military detention, abuse, and torture.

The full text of the bill can be found here. Additional resources can be found here.

“Israel’s system of military juvenile detention is state-sponsored child abuse designed to intimidate and terrorize Palestinian children and their families,” Congresswoman McCollum said. “It must be condemned, but it is equally outrageous that U.S. tax dollars in the form of military aid to Israel are permitted to sustain what is clearly a gross human rights violation against children.”

More than 10,000 Palestinian children have been arrested, detained, abused, and prosecuted by Israeli security forces in the Israeli military court system since 2000. Independent monitors such as Human Rights Watch and Israel’s B’Tselem have repeatedly documented that children are subject to abuse and, in some cases, torture — specifically citing the use of chokeholds, beatings, and coercive interrogation. Just weeks ago, CNN broadcast video showing armed Israeli soldiers entering a primary school in Hebron to arrest a 9-year-old who was then “frog-marched away and taken to an army vehicle.”

“Peace can only be achieved by respecting human rights, especially the rights of children. Congress must not turn a blind eye to the unjust and ongoing mistreatment of Palestinian children living under Israeli occupation.

“I strongly believe there is a growing consensus among the American people that the Palestinian people deserve justice, equality, human rights, and the right to self-determination. It is time to stand with Palestinians, Americans, Israelis, and people around the world to reject the destructive, dehumanizing, and anti-peace policies of Prime Minister Netanyahu and President Trump.”

McCollum is front in center on one of the most important human rights issues facing our country —- how we treat children. I’m going to have her back, and help her as much as I can.   Please write your member of Congress and ask him or her to cosponsor H.R. 2407.

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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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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

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.

 

 

 

 

 

 

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