Tag Archives | Israel

Northwestern Can’t Quit ASA Over Boycott Because it is Not a Member

Northwestern University recently condemned the American Studies Association boycott of Israel. Unlike some other schools that quit their institutional membership in the ASA over the boycott, Northwestern has not. Many of my Northwestern colleagues were about to start urging a similar withdrawal.

Then we learned from our administration that despite being listed as in institutional member by the ASA, the university has, after checking, concluded it has no such membership, does not plan to get one, and is unclear why the ASA would list us as institutional member.

Apparently, at least several other schools listed by the ASA as institutional members say they have no such relationship.

The ASA has been spending a great deal of energy on political activism far from its mission, but apparently cannot keep its books in order. The association has yet to explain how it has come to list as institutional members so many schools that know nothing about such a membership. The ASA’s membership rolls may get much shorter in the coming weeks even without any quitting.

How this confusion came to arise is unclear. ASA membership, like that of many academic organizations, comes with a subscription to their journal. Some have suggested that perhaps the ASA also counts as members any institution whose library happened to subscribe to the journal, ie tacking on membership to a subscription, rather than vice versa. This would not be fair on their part. A library may subscribe to all sorts of journals for academic research purposes (ie Pravda), without endorsing the organization that publishes it. That is the difference between subscription and membership.

I eagerly await the ASA’s explanation of the situation. [...]

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Northwestern University Rejects Israel Boycotts

I am proud to say Northwestern University has strongly rejected the American Studies Association and other proposed boycotts of Israel, and reaffirmed its ties to Israel institutions. The following statement was released Friday by Northwestern University President Morton Schapiro and Provost Dan Linzer (emphasis mine):

Recently the membership of the American Studies Association approved a resolution calling for a boycott of Israeli higher education institutions. Two other U.S. academic associations have also advocated that stance. While we support the right of academicians to voice their viewpoints, Northwestern University disagrees strongly with the boycott vote of the ASA. Northwestern also rejects the actions suggested in the resolution. In fact, we believe the ASA resolution directly contradicts the values of academic freedom and advancing scholarship for which Northwestern stands.

Northwestern University faculty and students should have the ability to pursue academic collaborations with their colleagues at institutions around the world, including Israel. Northwestern for years has had highly successful and valued joint degree programs and extensive partnerships with Israeli institutions and scholars. We intend to maintain and strengthen relationships such as these.

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Israel, Palestine, and Democracy

At Commentary, I have a new piece on the common argument that Israel must make a deal with the Palestinians to save itself as a democracy. Here is an excerpt:

The “democracy” argument has become the central justification of the diplomatic process, incessantly invoked by Secretary of State John Kerry and Israeli peace envoy Tzipi Livni. What makes the democracy argument effective is that it plays on deep-seated Jewish sentiments. Israelis are a fundamentally liberal, democratic people who desperately do not wish to be put in the role of overlords.

The problem with the democracy argument is that it is entirely disconnected from reality. Israel does not rule the Palestinians. The status quo in no way impeaches Israel’s democratic identity.

It is true that the Palestinians are not represented in the Knesset. But Israeli residents of Judea and Samaria are similarly not represented in the Palestinian Legislative Council. Simply put, both the Palestinians and Israelis vote for the legislature that regulates them. That is democracy (though obviously it does not play out as well in the Palestinian political system).

The Palestinians have developed an independent, self-regulating government that controls their lives as well as their foreign policy. Indeed, they have accumulated all the trappings of independence and have recently been recognized as an independent state by the United Nations. They have diplomatic relations with almost as many nations as Israel does. They have their own security forces, central bank, top-level Internet domain name, and a foreign policy entirely uncontrolled by Israel.

The Palestinians govern themselves. To anticipate the inevitable comparison, this is not an Israeli-puppet “Bantustan.” From their educational curriculum to their television content to their terrorist pensions, they implement their own policies by their own lights without any subservience to Israel. They pass their own legislation, such as the

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New Paper on International Criminal Court’s Jurisdiction over Israeli Settlements

My paper, Israel/Palestine — The ICC’s Uncharted Territory, has just been published in the Journal of International Criminal Justice. It explains that the International Criminal Court does not have jurisdiction over the oft-threatened and much-discussed Palestinian referral of Israeli settlements, despite the General Assembly’s recognition of Palestine as a non-member state. In brief, the relevant conduct does not occur “in the territory” of Palestine as required by Art. 12 of the Court’s Statute. Abstract here.

The article also provides perhaps the most comprehensive analysis thus far of the ICC’s territorial jurisdiction, which has thus far not caused much controversy, but could have significant implications for American forces in Guantanamo Bay, border incidents in the Koreas and elsewhere in Asia, and numerous other contexts.

The timing is fortuitous: Nabil Shaath, a top Palestinian official and negotiator, last week reemphasized threats to attempt to bring Israel before the ICC after the current negotiation period ends this spring. OK, not that fortuitous, as such threats come with considerable regularity, and it does appear this is Abba’s next move.

A separate article will explain why such a case might not satisfy the ICC’s requirement of dealing only with the gravest of the world’s atrocities. (I say might, because it is anyone’s guess; though the gravity threshold is a key component of the Court’s jurisdiction, it remains entirely undefined.) Thinking about calling it “When Gravity Fails” but that might be too cute. [...]

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The EU Supports Exploitation of Resources in the Occupied Territories

The Occupied Sawahari Territories that is (aka Western Sahara).

Global Post runs my commentary today on the European Union’s new treaty with Morocco, which does everything the EU has been claiming in its increasingly hostile recent dealings with Israel that international law forbids. The EU’s position regarding Western Sahara is consistent with its practice in Northern Cyprus and elsewhere.

The European Union recently affirmed that there is no international legal problem in signing a deal with an occupying power that extends to the territory it occupies, or from foreign companies doing business in occupied territory.

It did so when it provisionally approved a fisheries agreement earlier this month with Morocco that extends into the territory of occupied Western Sahara, which is beyond Morocco’s recognized sovereign territory.

Moreover, the EU actually pays Morocco for European access to Western Saharan resources. On all these points, the agreement directly contradicts what the EU, in negotiations with Israel, calls fundamental principles of international law.

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New Report on EU’s “Settlement Guidelines” for Israel

The Kohelet Policy Forum, a Jerusalem think tank, has released a legal and policy analysis, by Prof. Avi Bell and myself, of the European Commission’s recent “settlement guidelines” – a ban on funding Israeli entities located across, or, more importantly, conducting any “activities” in the West Bank, eastern Jerusalem, the Golan Heights, and Gaza. I’ve previously explained how the Guidelines’ are not about either international law or the Palestinians, and how they contradict and undermine the EU’s own practices elsewhere.

Israel and the EU are currently in the throes of negotiations about the document. The paper presents important new information for discussions of business and academic activities in occupied territories.

The report is available here; and this is from the Executive Summary:

•The Israel Grants Guidelines adopted by the European Commission are singularly discriminatory
against Israel. They contradict international law as established in U.N. documents and leading
court cases, as well as the European Union’s own interpretations of international law.

• The EU provides aid and financial cooperation to numerous countries that maintain settlements
in what Europe considers occupied territory, such as Morocco, Turkey, and Russia. In none of these
cases has the Commission imposed limitations on the aid akin to the Guidelines for Israel.

• The Commission’s position that the Guidelines are mandated by international law are further belied by EU programs that provide grants specifically for settlers in belligerently occupied territory, such as the EU’s programs in Turkish-occupied Northern Cyprus.

• Under international law, there are no prohibitions regarding organizations engaging in “activities” in occupied territories, yet the Guidelines bar funding solely on the basis of such “activities.”

• In pretending that the Guidelines fulfill the requirements of international law, the Commission
exposes the EU to legal challenge for EU funding of

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How the EU Continues to Fund Settlements in Occupied Territory

The EU recently issued guidelines blocking research and other grants to Israeli institutions with activities (archeological digs, etc.) across the Green Line. In the yesterday’s Jerusalem Post I reveal that the EU continues to actively fund settlements in occupied territory, against their own understanding of international law:

Under guidelines prepared earlier this summer, euros would not be allowed to go to Israeli entities located cross the Green Line – or to those that have any operations there. All Israeli entities applying for funding would have to submit a declaration that they do not have such operations.

Europe claims that such a move – unparalleled in its dealings with any other country – is mandated by international law. The EU does not recognize Israel’s sovereignty over the territories, and thus has an obligation to keep its money from going there. Those who celebrated the move said that Israel is finally paying the international price for its occupation.

Yet it turns out that despite the guidelines, the EU still knowingly and purposefully provides substantial direct financial assistance to settlements in occupied territory – in Turkish-occupied Northern Cyprus, that is. So the EU funds the occupation of an EU member state. . . .

Projects include study abroad scholarships for students at the numerous Northern Cyprus universities (imagine such funding for students at Ariel University!); developing and diversifying the private sector through grants to small and medium- sized businesses; various kinds of infrastructure improvements (telecom upgrades, traffic safety, waste disposal); community development grants, funding to upgrade “cultural heritage” sites, and so forth. They even put on a concert.

Amazingly, this information has never been discussed in the debate over the EU action. On the contrary, academic supporters of the EU measure have falsely stated that “There is no significant difference in the [...]

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The EU’s Israeli Settlement Guidelines and International Law

At The Times of Israel, I have a piece about the new European Union guidelines about funding to Israel, which provide that certain EU monies will not go to Israeli entities beyond the 1949 armistice lines, or that conduct activities there. In particular, I explain that while the guidelines cloak themselves with the mantle of international law, they have nothing to do with international law. Here is the intro:

These guidelines have led to numerous misconceptions from all sides. Concerned Israelis worry that it represents the beginning of an economic boycott. European officials claim international law and a concern for Palestinian self-determination, demand such action. None of this is right.

First, the guidelines do not establish an economic boycott. The rules do not restrict trade between Europe and Israel, or even Israeli companies in the West Bank. Rather, they specify how the EU as an organization chooses to spend its largesse – prizes, grants, and so forth. There is a big difference: restricting one’s gifts saves the EU money; implementing trade restriction would directly hurt its economy as well. In economic terms, a boycott is not the logical extension of a no-gift policy, but rather its direct opposite.

Nor is this about the Palestinians – the rules also bar funding of any organization connected to the Golan Heights. It is not clear which Syria the Europeans think Israel should surrender the entire Golan to, Assad or his Islamist foes, but this broad and unreasonable restriction has nothing to do with “the occupation.” It also has nothing to do with “settlements” in the West Bank; any Israeli institution with a presence in Eastern Jerusalem is blacklisted.

But most importantly, the EU policy is not about international law, which the guidelines repeatedly claim requires such action. Even if one thinks Israelis residing

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The Jerusalem Passport Case – Separation of Powers and Standing

The D.C. Circuit has held the Jerusalem passport law unconstitutional for impermissibly intruding into the Executive’s foreign relations powers. The law requiring the State Department to record “Israel” as the country of birth for those born in Jerusalem. The D.C. Circuit, through extensive and lucid analysis, concluded that recognition was an exclusively executive function, on which the Act impinges. The lawsuit, brought by Menachem Zivotofsky, an American born in Jerusalem, has gone on for a decade, but this will probably be the end.

The D.C. Circuit’s separation of powers analysis was quite strong, though I think the case lacks standing, as Judge Gladys Kessler on the district court first ruled nine years ago.

The plaintiff, claimed the issue was just about passports, and did not involve recognizing foreign countries. The argument was hard to take seriously: refusing to recognize Israeli sovereignty over Western Jerusalem, on passports or elsewhere, is a crucial limitation on the U.S.’s recognition of the State of Israel.

More interesting was the plaintiff’s argument that Congress itself acted through an enumerated power – Immigration and Naturalization. The Court rather convincingly showed that passports were not central to this power, which in any case was concurrent with the Executive’s foreign policy powers. Thus in rock-paper-scissors terms, an exclusive executive power (recognition) beats a concurrent legislative one.

One might think that the Immigration power naturally overlaps with recognition: immigration requires a prior determination of foreignness. The Executive has never taken a position one way or another the sovereignty over Jerusalem. Heck, it might be part of New York, in which case no immigration or naturalization would be needed. Indeed, because of the particular circumstances here – Congress is not contesting a determination of Jerusalem’s status, but rather a non-determination – one might think Congress cannot exercise its powers without [...]

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Human Rights Watch Director Privately Slurs Israel

The credibility of NGOs like Human Rights Watch depends on their being above and apart from the conflicts they monitor – to not take sides. Human Rights Watch has been criticized by many, including its founder, for giving up all objectivity an adopting an anti-Israel campaign.

Their grudge against Israel has been clear for a while, and David Bernstein has written about it frequently here.

Now, we find evidence of direct personal animus. A news story reveals a private Facebook group whose members include a medley European journalists, NGO officials, and far-left activists. Recently the group turned to discussing an Israeli government report that the famous killing of a Palestinian boy at the start of the Second Intifida was in fact staged. Not only was he not shot by Israel, as much prior evidence suggested, he appears not to have been killed at all. (It would not be the last time Palestinians elaborately staged deaths for PR purposes.)

The issue is not the IDF report, but the comments made about it by Peter Bouckaert, HRW’s Emergencies Director (responsible for civilians in wartime, according to his twitter page). He wrote: “Typical IDF lies. As usual, it takes them a long time to really build up the falsehood.”

He goes on the complain that the New York Times coverage of the Israeli report will be used by supporters of Israel.

I previously criticized HRW for releasing reports on alleged Israeli crimes without waiting for the IDF’s comments - now we know: why wait for a “typical lies” that just build up the more time they get? Seriously, HRW should reveal what reports the “emergencies director” was involved in writing.

Academic writing on human rights and international law often treats groups like HRW as custodians of the truth, and [...]

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The Media Push for IRS Action Against Pro-Israel Groups

In addition to the IRS’s particular interest in right-wing groups focussed on domestic policy, it has taken an unusual interest in right-wing pro-Israel groups. (I am friends with the leader of the group written about in the link.)

One major question raised by the IRS scandal is where these ideas came from. At least as far as Jewish groups go, the IRS scrutiny is not a fluke. That is not to suggest it was ordered by the White House – that is highly unlikely. At the same time, it certainly does not come out of the blue. The past several years have seen a concerted campaign in the mainstream liberal press to bring the IRS down upon certain pro-Israel groups, particularly those that support activities in the West Bank (or the Territories Formerly Occupied By Jordan).

For example, in 2009 David Ignatius had a story in the Washington Post, A Tax Break Fuels Middle East Friction. “Critics of Israeli settlements question why American taxpayers are supporting indirectly, through the exempt contributions, a process that the government condemns,” he wrote. The Guardian in 2009 also had a piece calling for IRS action.

In 2010, the New York Times continued the theme with a massive, expose-style front page story, which concluded that while such tax breaks do not seem to be exactly illegal, it creates :a surprising juxtaposition: As the American government seeks to end the four-decade Jewish settlement enterprise and foster a Palestinian state in the West Bank, the American Treasury helps sustain the settlements through tax breaks on donations to support them.” The article then tried to raise questions about whether such groups really satisfied U.S. tax-deductible requirements, suggesting the IRS should look into them. The activities the supported, the Times article suggests, were illegal and extremist.

Picking [...]

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Landmark French Ruling on West Bank Construction and International Law

In an important but largely ignored case, a French Court of Appeals in Versailles ruled last week that construction of a light rail system in the Israeli-controlled West Bank by a French company does not violate international law. In doing so, the court sided with many of the arguments long made against the blanket application of the relevant provisions of the Geneva Conventions to Israeli settlements. National courts rarely if ever address such issues, and thus the decision is important both for its rarity and for what it says.

In this post, I’ll address issues relevant to the substance – Israel’s presence in the West Bank. In the next post I’ll deal with the “Kiobel” issues raised by the case – corporate liability, the value of American ATS cases, and so forth. I should note at the outset that what follows is based on a rough translation of the opinion and my vague French; I would be grateful for corrections on matters of language that I have misapprehended. I venture forward because it is an important decision that deserves attention, yet has been met by complete silence by international legal scholars.

The Jerusalem Light Rail, which began running last year after a long period of construction, links the Western part of the city with the parts occupied by Jordan prior to and annexed by Israel after the 1967 War. The project was widely criticized by pro-Palestinian groups, as was the participation of French rail companies in the project. Along with a variety of political pressure and boycott activities, a Palestinian group sued the French-based multinational conglomerate Alstom Transport for its role in in the project. The case was dismissed below in 2011, and the Court of Appeals upheld the decision last week.

Crucially, the Court held that only the [...]

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BREAKING: Obama White House Describes West Bank as Part of Israel

In describing President Obama’s itinerary during his trip to Israel and Jordan next week, Deputy National Security Advisor Ben Rhodes conceded that the Jewish connection to the West Bank is as strong as it is to Israel, and indeed, spoke of the two interchangeably:

Thursday, the President will begin by going to the Israel Museum. At the Israel Museum, he will view the Dead Sea Scrolls, which are a testament, of course, to the ancient Jewish connection to Israel and, frankly, a marvel that the Israelis have restored within the Israel Museum in a very substantial, impressive way. So the President very much looks forward to the opportunity to see the Dead Sea Scrolls.

The Dead Sea Scrolls were first discovered in the Qumran caves in 1947, when it was part of the League of Nations Mandate for Palestine. Thus the White House seems to recognize that Israel’s history and borders are rooted in the Mandate – what happened in the “West Bank” in 1947 is somehow “connected” to Israel.

Moreover, most the the scrolls were recovered in the the 1950s, after this portion of the Mandate was illegally invaded and occupied by the Jordan. To put it simply, the Dead Sea Scrolls are from the West Bank, otherwise known as “Occupied Palestinian Territory.” The Dead Sea Scrolls, one might say, are written by settlers.

And if it were not for Israel’s victory in 1967, the Dead Sea Scrolls would not be in the Israel Museum.

By describing the Dead Sea Scrolls as evidence of the ancient Jewish connection with “Israel” (and by accepting the validity of their placement in the Israel Museum), the Administration implicitly acknowledges the arbitrariness of distinguishing between Israel’s presence at the Dead Sea and in Tel Aviv.

No doubt this was an [...]

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Europe OK with Occupation – and With Hezbollah

Despite the recent United Nations Human Rights Council’s report, France and many other European countries are against attempts to revive the peace process, end the occupation and remove settlements. They prefer a “long-term stalemate” (which sounds like Boogie Yaalon’s “long term conflict management plan“). Outside pressure to push peace could backfire and benefit hardliners on both sides, according to European journalists interviewed recently by Reuters.

Of course, I am not talking about Israel’s occupation of parts of the League of Nations Mandate for Palestine previously occupied by Jordan, but rather about Turkey’s occupation of a full-fledged EU member state.

In other European contortions, while France bombs terrorists “on the footsteps of Europe” in Mali, thousands of Hezbollah members operate openly in Europe. Their activities are now known to include bus bombing. France and other European powers have long been reluctant to declare Hezbollah a terrorist organization – apparently because they only kill Jews, and most elsewhere, according to an astounding analysis in the New York Times:

There’s the overall fear if we’re too noisy about this, Hezbollah might strike again, and it might not be Israeli tourists this time,” said Sylke Tempel, editor in chief of the German foreign affairs magazine Internationale Politik.

Europe has recently been indicating that it will be pressuring Israel to take so-called risks for peace. But Europe is not unbiased, nor is its attitude towards Israel driven principally by Israel’s actions. European actors are driven by political agendas, fear, and a variety of factors. And given their fear of taking on Turkey, or even Hezbollah, they are ill placed to talk about risks for peace. [...]

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Hans Kelsen on Occupation of Non-sovereign territory

The Geneva Convention is generally thought to apply to Israel’s occupation of the West Bank – that portion of the League of Nations Mandate for Palestine previously occupied by the Jordan. This is important because the legal argument against settlements is that they violate Art. 49(6) of the Fourth Geneva Convention, a provision which did not reflect prior international law.

Art. 2 of the Convention provides:

In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Because the West Bank was not part of the sovereign “territory of a High Contracting Party” (or of any country) in 1967, and Israel has argued that “occupation” within the meaning of the Convention can only exist in such territory. Of course, most international lawyers disagree, though in the years after 1967, some very prominent ones agreed.

What is more interesting is what people thought the provision meant before 1967, that is, before they knew the identity of the alleged violator. There is very little written on this, and few have looked at pre-1967 sources. However, one quite serious (pro-Israel) blogger has unearthed this intriguing discussion from Hans Kelsen in 1952, which clearly does not assume that the occupation of non-sovereign territory has the same consequences as the occupation of sovereign territory:

The principle that enemy territory occupied by a belligerent in course of war remains the territory of

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