Senior Hamas Terror Planner Mazen Faqha Assassinated in Gaza

By Miriam Elman

(Re-published from Legal Insurrection | March 26, 2017) Mazen Faqha was a Hamas official responsible for organizing a 2002 suicide bombing attack in Israel.

Found guilty and given a life sentence for the crime that killed nine people and injured scores more, he was among the over 1000 terrorists—many of them also with blood on their hands and serving life sentences—released in 2011 as part of the prisoner exchange to free hostage IDF soldier Gilad Shalit.

Faqha was deported to Gaza.

From there, according to Israeli officials, he became a “key planner” in setting up Hamas terror cells in the West Bank, directing them as they organized and launched deadly terror attacks against Israelis.

On Friday March 24th, 38-year-old Faqha was assassinated by assailants using silencers, The Times of Israel reports:

Faqha was shot dead near his home in Tel el-Hawa, a neighborhood in southwestern Gaza City, by [unknown] assailants using a weapon equipped with a silencer. He was hit by four bullets to the head … Hamas said Israel was to blame and vowed revenge … The identity and motive of the assailants was not immediately clear. There was no official comment from Israel on his killing.”

Below I review the fallout from the killing of Mazen Faqha …

Thousands of militants and civilians in Gaza and the West Bank turned out for his funeral processions, and a swirl of accusations by various Palestinian terror groups, which are blaming Israel for “waging a clandestine war” and are now threatening retribution.

Early Sunday morning (EST), Israeli media reported that the IDF was being put on high alert in expectation of Hamas retaliationI begin with Faqha’s victims.

August 2002 Egged Bus Bombing

Born and raised in the West Bank village of Toubas, Mazen Faqha was a senior Hamas commander in the Qassam Brigades (the armed wing of Hamas), which carried out many suicide bombings during the bloody second intifada.

Faqha had a hand in a number of these attacks, but he was sentenced in 2003 for planning a suicide bombing on a civilian passenger bus near Safed in the north of Israel the prior summer. 

Here’s a summary of the terror attack from Israel’s Ministry of Foreign Affairs, along with the names and photographs of those killed. 

Nine people were killed and some 50 wounded in a suicide bombing of Egged bus No. 361 traveling from Haifa to Safed at the Meron junction in northern Israel shortly before 9:00 Sunday morning. There were many IDF soldiers on the bus, which exploded as it was traveling near the entrance to the burial site of Rabbi Shimon Bar Yohai, frequently visited by Jewish worshippers. The blast blew off the roof of the bus, which then burst into flames, killing or wounding nearly everyone inside, witnesses said. Among those killed were twere three soldiers, four Israeli civilians and two Philippine women. Hamas claimed responsibility for the attack. Overnight on Sunday, IDF troops captured Hamas commander Mazan Fukha, responsible for dispatching the suicide bomber, in the West Bank town of Tubas together with two of his deputies.”

For his crime, Faqha received nine life sentences—one for each person he killed. But he was jailed for only 8 years, when he was released in 2011 for IDF soldier Shalit, who by then had been held captive for 5 years in Gaza.

Under the conditions of his release, Faqha was supposed to refrain from engagement in terror or incitement to violence. In fact, he returned to terror activities, resuming a leadership position in the Qassam Brigades.

Thousands Attend the Funeral of a Slain Hamas Terrorist

Yesterday, thousands of Hamas supporters called for “revenge” during Faqha’s funeral in Jabalia, northern Gaza. The top brass of Hamas reportedly delivered fiery eulogiesHamas Prime Minister Ismail Haniyeh and Yahya Sinwar, the new leader of Hamas in the Gaza Strip, headed the procession from Gaza City’s al-Shifa Hospital, where Faqha’s body was initially taken, to the al-Omari mosque, and from there to Sheikh Radwan cemetery.

Here’s some images from the funeral, where even children were spectators. Many more images can be found on the Internet. It’s also important to note that the funeral march included members and leaders from Gaza’s various political factions and armed groups, and not only Hamas supporters. Although more subdued, in the West Bank hundreds of Palestinians reportedly also marched to Faqha’s childhood home in the small village of Toubas. There, they viewed the Gaza funeral on TV.

Did Israel Assassinate Mazen Faqha?

As of this writing, Israeli officials haven’t commented on Faqha’s killing.

In fact, as noted by Avi Issacharoff for The Times of Israel, there’s “no firm evidence” of Israeli involvement.

But multiple terror groups—including Hamas, Hezbollah, the Popular Front for the Liberation of Palestine (PFLP), and Islamic Jihad—stated that “Zionist fingerprints” were evident in the killing which had “clear marks of Mossad [Israel’s spy agency]” …

To the read the whole post, click here.

 

Israel Passes Law Barring Foreign BDS Activists From Entry

By Miriam Elman

(Re-published from Legal Insurrection | March 9, 2017) On Monday night (March 6), Israel’s parliament (the Knesset) passed in its second and final reading a law barring the entry of foreign nationals who have “knowingly and publicly” called for boycotting Israel or who “represent an organization” that calls for such a boycott.

The law extends the ban to those foreign visitors (excluding permanent residents) who back the anti-Israel BDS (boycott, divestment, and sanctions) movement and to those who support the boycott of settlement goods in Judea and Samaria/the West Bank.

From Inside Higher Education: Writing for the blog Legal Insurrection, Miriam Elman, an associate professor of political science at Syracuse University’s Maxwell School, described the ban as “a perfectly reasonable move for Israel to prevent foreigners from abusing tourist visas in order to try to destroy Israel.” “Israel isn’t particularly unique in refusing entry to people determined to be threats to the state, but the law makes such bans more transparent because individuals would no longer be refused entry into Israel on a case-by-case basis, left solely up to the discretion of the government,” she wrote.

The legislation, which passed with 46 votes in favor and 28 against, was sponsored by center-right political parties and had been in the works for over a year, as discussed in detail in my prior post, Will Israel Bar Entry of Foreign BDS Activists?

As noted, the law aims to combat anti-Israel, BDS-promoting tourist activism that’s gone on unimpeded in the country for years. These foreign activists foment and participate in often violent protests, then take film of the Israeli police response in order to demonize Israel in furtherance of the boycott movement.

To my mind, it’s a perfectly reasonable move for Israel to prevent foreigners from abusing tourist visas in order to try to destroy Israel.

How Israel’s New Anti-BDS Entry Law Will Work

The new legislation is supposed to improve the current situation by replacing an existing law that grants any foreign visitor from a friendly country an automatic 3-month entry visa, except for those who the Interior Minister specifically barred.

The new law flips the situation around such that entry for individuals affiliated with designated pro-BDS organizations would be automatically banned, unless the Interior Minister allows it.

So a key component of the law is “shifting the burden” from the state to the foreign activists themselves. Now, instead of the Ministry of the Interior having to account for why someone shouldn’t be admitted into the country, it’ll be up to the BDS-supporting visitors to “persuade the state” why she or he should be allowed in.

The law aims to address the absurd situation that’s developed in Israel where foreign BDS activists enter Israel under false pretenses and routinely take advantage of automatically issued tourist visas to engage in political warfare against the state.

Every nation on the planet is entitled to control its borders and determine which foreign nationals can enter. Israel isn’t particularly unique in refusing entry to people determined to be threats to the state, but the law makes such bans more transparent because individuals would no longer be refused entry into Israel on a case-by-case basis, left solely up to the discretion of the government.

I wrote in my prior post:

“By making the default option not to grant a visa unless the government says otherwise, the new law would effectively identify and advertise which of the dozens of NGOs currently operating inside Israel are deemed to be harmful to the Jewish state.”

Bottom line: As Naftali Bennett—education minister and leader of the Jewish Home party—said on Twitter (see in Hebrew below) when it passed, the law is “necessary and logical” and “let’s Israel defend itself from those who wish it ill.”

Barring Entry Only to Major BDS Leaders Who Call for Israel’s Destruction

Will a left-wing Jewish American college student who tweeted using the hashtag #BDS or who called for a boycott on her Facebook page be turned away at Ben Gurion Airport because of the new anti-BDS entry law?

What about someone who made a one-time donation to a BDS-supporting organization, or who signed a pro-BDS petition at some point in the last few years?

None of these people would be blocked (although, as I noted in my prior post, there’s always the chance that an over-zealous Interior Ministry official will enforce the law improperly).

The law is meant to advance steps to “oppose those who call for Israel’s demise.” But it’s supposed to apply to “major BDS activists” and foreign BDS campaigners “with standing” who can “really impact the situation” by getting others to boycott Israel. It’ll apply to “known organizations” and their main activists and won’t involve any “blacklists” of other individuals.

It certainly won’t be applied to someone who just “posts a comment on Facebook against Israel.”

In the category of those who would be blocked from entry by the new law are BDS-backing foreigners who spend their time in Israel not doing touristy things but collecting false information and ‘evidence’ about Israel’s alleged perfidy and malevolence to spread on social media and to share back home to captive audiences.

Also included will be BDS activists who act to harass and obstruct IDF and security personnel by organizing or participating in violent protests, making contact with representatives of terror organizations, and inciting Palestinians or Jewish settlers to violence …

To read the whole post, click here.

Will Israel Bar Entry of Foreign BDS Activists?

By Miriam Elman 

(Re-published from Legal Insurrection | Feb. 1, 2017) On Monday Jan. 30, Israel’s parliament (the Knesset) was set to pass into law a bill that bars BDS (boycotts, divestments and sanctions) advocates from the country.

“Opponents are right that if the new law is executed poorly, it could defeat its purpose by increasing support for BDS.”

The bill would extend the ban to those who back the anti-Israel BDS movement as well as those who support the boycott of settlement goods in Judea and Samaria/the West Bank.

The bill has been in the works for over a year, passing its first Knesset reading back in November. Two weeks ago, the Knesset Internal Affairs and Environment Committee reportedly approved the final wording of the bill, sending it to the plenary for its second and third/final reading. That was supposed to happen on Monday evening (Israel time), when the bill was anticipated to garner a sufficient number of votes in favor to pass. On Monday afternoon (EST) I learned from several colleagues that the vote was postponed. They tell me that there’s no indication when the bill will be back on the Knesset agenda.

The delay is a shame. That’s because this is a bill that needs to become law—the sooner the better.

Below I summarize it, discuss the criticisms that have been raised, and highlight the type of virulently anti-Israel “tourist activism” that’s likely to be impacted if the bill becomes law (and the kind that won’t).

Not surprisingly, the anti-boycott bill has generated “outrage and dismay” from left-of-center legislators and NGOs in both Israel and the U.S. As I suggest below though, most of the criticisms are overblown. The law would be an important corrective to an absurd situation that’s developed in Israel where foreign activists routinely take advantage of the country’s democracy in order to work against it. Still, opponents are right that if the new law is executed poorly, it could defeat its purpose by increasing support for BDS.

Also included below is a short statement exclusive for Legal Insurrection from Lahav Harkov, the Knesset reporter for The Jerusalem Post.

Israel’s Latest Anti-Boycott Bill

The proposed legislation, which has been advanced by both right-wing and centrist Israeli lawmakers, seeks to prevent foreign nationals who have publicly called for a boycott of the Jewish state, or who work on behalf of a pro-BDS organization, from entering Israel.

Jonathan Lis reports for Haaretz.com:

The Knesset is likely to give final approval Monday evening to a bill that would forbid granting entry visas or residency rights to foreign nationals who call for economic, cultural or academic boycotts of either Israel or the settlementsHowever, the interior minister would be able to make exceptions to this rule if he deems it warranted in a particular case.”

The language of the bill rests on a legal definition of anti-Israel boycotts from a 2011 law, which allows citizens to bring civil suits against Israeli persons and organizations that call for the boycott of Israel and settlements.

So a key aspect of the bill is that it extends to cover settlement-boycott supporters who would also be barred from entering the country under the law (the ban wouldn’t apply to foreign nationals who already have residency permits).

The bill has been in the works for some months, gaining traction following the formation of a joint taskforce this past August. Convened by Public Security and Strategic Affairs Minister Gilad Erdan and Interior Minister Arye Deri, the taskforce was mandated to work on ways to prevent entry and to deport BDS activists who are illegally exploiting their tourist visas by engaging in political activities.

Note that representatives of international organizations are able to apply for humanitarian aid visas in order to work in the West Bank legally. But the terms of these visas prohibit recipients from engaging in political or legal activities. So the taskforce was asked to consider how Israel could rectify the situation in which BDS activists are routinely receiving 3-month tourist visas in lieu of the specific humanitarian aid visas, and are thus operating in the country illegally. The bill is a result of the taskforce’s effort.

It was approved for a first reading in the Knesset back in November, with 42 lawmakers in favor, 18 opposed and 7 abstentions. The bill had been on last week’s plenary agenda for a final reading and vote, but was postponed at that time too …

To read the whole post, click here.

Trump’s Plan to Move US Embassy to Jerusalem Could Help the Peace Process

By Miriam F. Elman

(Re-published from The Washington Post Monkey Cage | Dec. 29, 2016) President-elect Donald Trump’s pledge to move the US Embassy from Tel Aviv to Jerusalem and his selection of an ambassador to Israel who heartily supports the relocation have produced a deluge of dire warnings. Critics claim the move would unleash a wave of extremism, making past clashes pale by comparison. But these warnings may be exaggerated. A careful look at conflict-resolution theory suggests that moving the embassy could be a constructive move, pushing Israelis and Palestinians back to negotiations.

“The costs of a move may be high, but the literature on conflict resolution suggests this could prove a strength, not a weakness.”

Many assumed Trump would renege on his campaign pledge once in office, as presidents Bill Clinton and George W. Bush did. But relocating the embassy allows the Trump Administration to reinforce that, unlike the Obama administration, it doesn’t consider settlements the key obstacle to peace. Trump will be particularly keen to make this distinction after the US abstention Friday on U.N. Security Council Resolution 2334, which effectively declares illegal all Israeli presence beyond the 1949 armistice lines, including in East Jerusalem. Trump’s transition team has publicly called moving the embassy a “very big priority” and is reportedly exploring the logistics for its new location.

Conflict resolution experts call this tactic a “burning bridges” move, which sends a clear, credible commitment to act. The costs of a move may be high, but the literature on conflict resolution suggests this could prove a strength, not a weakness. As has long been noted by scholars, the perception of a party’s will and commitment is essential to peacemaking. Demands and offers need to be believable, and concrete actions can display a readiness to react.

Though some Arab states may protest, official relations between Israel and its neighbors have never been better as they face down common threats, from Islamist extremism to an expanding Iranian influence. Additionally, the argument that moving the embassy would drive a wedge between the United States and Arab states or Europe is less tenable following the passage of the UN resolution.

As highlighted by a former member of the Knesset, not only does the resolution delegitimize Israeli communities set up on land captured in the 1967 war, but it also designates pre-1967 territory as “Israel proper.” So while the international community hadn’t previously recognized Israeli sovereignty over any part of Jerusalem, the resolution actually commits the world to recognizing the western half of the city as part of the state of Israel, making Trump’s campaign promise more feasible than before.

Critics are right that an embassy move could spark demonstrations and perhaps even other forms of retribution, undermining the shaky Palestinian Authority. But Jerusalem has already faced a wave of violence in recent months, and the potential for future clashes isn’t sufficient cause for delay. For the moment, Palestinian Authority President Mahmoud Abbas would probably be able to control any fallout after emerging considerably stronger since last week’s Security Council vote and the Fatah central party elections earlier this month.

Negative reactions may be dampened if the move recognizes Muslim and Palestinian connections to the city. One small site shows how this might work. On the outskirts of Jerusalem, perched on a hilltop with magnificent views, the Tomb of Samuel is a model of interfaith harmony. Jews and Muslims conduct prayers there simultaneously. Scholars who study sacred sites note that it’s the only place on the planet where a functioning synagogue operates underneath a working mosque. The tomb’s low-density population area and relatively minor religious importance for Muslims have helped to preserve the peace. But strong coordination and dialogue between the local Muslim clerics who administer the mosque and Israeli civil authorities who control the Jewish prayer room there as a national park have also been essential to stability …

To read the full post, click here.

 

The US Embassy in Israel: Next Year in Jerusalem?

By Miriam Elman 

(Re-published from Legal Insurrection | Nov. 13, 2016) President-elect Donald Trump campaigned on a promise that the United States would officially recognize Jerusalem as the capital city of the Jewish state.

He also vowed that when he became president he’d relocate the U.S. embassy from its current beachside location in Tel Aviv to the Holy City.

“Presidents have been relying on a national security waiver built into a 1995 law, which gets used at regular six month intervals and gives them an opportunity to suspend the embassy move.”

Now, some are saying that once he’s in the Oval Office, Trump will go back on his word.

In his outspoken reaction to the U.S. election results, PLO Executive Committee member Tayseer Khaled called Trump a liar, predicting that contrary to his promises, he wouldn’t transfer the embassy.

Even one of Trump’s own advisors is reportedly skeptical that the move will happen anytime soon. In an interview for BBC radio which was also publicized by CNN last Thursday, Walid Phares added a “caveat” to Trump’s campaign pledge: he would relocate the embassy, but only after a “consensus” had been reached.

So will Trump do what he said he’d do?

As I discuss further below, there’s a very good chance that among the Trump administration’s first moves will be to follow through on a campaign promise that his predecessors have reneged on for the last two decades.

Stalling on the Will of the American People

As we noted in an earlier post, moving the embassy would break with over two decades of bipartisan White House policy to circumvent the Jerusalem Embassy Act of 1995, a law that passed by wide margins (93-5 in the Senate and 374-37 in the House). It calls for Jerusalem to remain an “undivided city” and for the U.S. to recognize it as Israel’s capital.

It also stipulated that the embassy be moved no later than May 31, 1999.

For years presidential hopefuls have been vowing to move the embassy as required by law. But then, once in office, they invariably fail to honor the commitment made on the campaign trail.

The campaign promises keep getting broken because successive administrations have been reluctant to formalize the relocation, continually citing concerns that the move would upset the prospects for a peace deal between Israel and the Palestinians.

Basically, as explained in the prior post, presidents have been relying on a national security waiver built into a 1995 law, which gets used at regular six month intervals and gives them an opportunity to suspend the embassy move.

Here’s a copy of the standard text that’s been sent like clockwork to the Secretary of State:

MEMORANDUM FOR THE SECRETARY OF STATE

SUBJECT: Suspension of Limitations under the Jerusalem Embassy Act

Pursuant to the authority vested in me as President by the Constitution and the laws of the United States, including section 7(a) of the Jerusalem Embassy Act of 1995 (Public Law 104-45) (the ‘Act’), I hereby determine that it is necessary, in order to protect the national security interests of the United States, to suspend for a period of 6 months the limitations set forth in sections 3(b) and 7(b) of the Act.

You are authorized and directed to transmit this determination to the Congress, accompanied by a report in accordance with section 7(a) of the Act, and to publish the determination in the Federal Register.

This Suspension shall take effect after the transmission of this determination and report to the Congress.

BARACK OBAMA

So Bill Clinton, George Bush, and Barack Obama have routinely blocked the relocation of the embassy while saying that the U.S. is still committed to doing it.

Meanwhile, Congress continues to periodically call for the move (see here and here).

Trump Promises to Move the US Embassy in Israel

Back in March, at the American Israel Public Affairs Committee (AIPAC) policy conference in Washington, D.C., one of the biggest applause lines in Trump’s remarks was his promise to move the U.S. embassy from Tel Aviv to Jerusalem:

“We will move the American embassy to the eternal capital of the Jewish people, Jerusalem” …

To read the full blog, click here.

INSCT Faculty Member Miriam F. Elman is an Associate Professor of Political Science in the Maxwell School of Citizenship and Public Affairs at Syracuse University.

Never Forget: Sbarro Pizzeria Massacre, Jerusalem, Aug. 9, 2001

By Miriam Elman

(Re-published from Legal Insurrection, Aug. 9, 2016) On this day 15 years ago, a Hamas terror gang based in the West Bank executed a bombing attack on a busy restaurant in the center of Jerusalem.  In the horrific act of savagery 15 people were killed, including 7 children.

“Although perpetrated by a Hamas terror cell, Israeli officials at the time held the Palestinian Authority and the late PLO Chairman Yasser Arafat complicit in the carnage.”

Two U.S. citizens were among those murdered. Four additional Americans were wounded — one severely.

In total, some 130 were injured with varying degrees of severity by the “human bomb” and his team of accomplices.

The mastermind was Ahlam Tamimi, relative of Bassem Tamimi, and a hero to this day in her home village of Nabi Saleh where international activists still protest the security barrier constructed in response to the Sbarro and dozens of other suicide bombings.

I’ll describe the attack, its victims, and the team of terrorists involved in order to underscore the disgraceful fact that for over two decades the U.S. Department of Justice (DoJ) has not prosecuted a single Palestinian terrorist who has killed Americans in Israel or the disputed territories, even though U.S. law requires it to do so.

Included at the end of the post is a statement exclusive for Legal Insurrection by Frimet and Arnold Roth—the parents of Malka (Malki) Roth, a 15-year-old American girl who was murdered in the Sbarro atrocity.

At 2:00pm on a hot summer day, a Palestinian terrorist entered the Sbarro Pizzeria and detonated a bomb.

Situated at the corner of King George Street and Jaffa Road in Jerusalem, probably one of the busiest pedestrian crossings in Israel, the bomb blast completely gutted the restaurant.

I ate at this Sbarro a number of times when I lived in and visited Israel. It was a popular kosher eatery, conveniently located, and a good place to bring the kids.

On August 9, 2001 the restaurant was filled with lunch-time diners—many of them children and their mothers. The street was also crowded with pedestrian traffic.

At the time, like most public spaces in Israel the pizzeria wasn’t guarded, something which enabled the human bomber to enter the place unimpeded.

According to media reports, documentation by the Israel Ministry of Foreign Affairs, and accounts piece together by those who lost loved ones in the horrific attack, the terrorist and his 10 kilogram bomb was transported by taxi to the site by a woman named Ahlam ‘Aref Ahmad al-Tamimi, also known as Ahlam Tamimi, and another Palestinian, Izz al-Din Shuheil al-Masri.

They reportedly concealed the explosives inside a guitar case. The case was also packed with nails, screws, and bolts to ensure maximum damage.

The terrorist al-Masri was killed in the blast. Tamimi escaped but was arrested a few weeks later. Hamas and Islamic Jihad claimed responsibility for the bombing.

In the immediate aftermath of the attack, Jerusalem municipality police closed down the PLO’s east Jerusalem headquarters (known as the Orient House) and the IDF took control of Palestinian military and political buildings at Abu Dis, just outside of Jerusalem. The IDF also attacked the PA’s West Bank police headquarters in Ramallah.

Although perpetrated by a Hamas terror cell, Israeli officials at the time held the Palestinian Authority and the late PLO Chairman Yasser Arafat complicit in the carnage. Then Foreign Minister Shimon Peres, the architect of the Oslo peace accords, reportedly said on the day of the attack:

If the Palestinian Authority had acted with the necessary determination and carried out preventive detentions of Hamas terrorists and their operators, the murders today in Jerusalem would have been prevented”.

Six weeks after the bombing an exhibit at Al Najah University in the West Bank, which included a mock-up of the Sbarro pizzeria complete with bloody plastic body parts and partially-chewed pizza crusts, glorified the attack and the bombers …

To read the complete article, click here.

Time to Revive the 2004 Bush-Congress Letter to Israel

By Miriam Elman

(Re-published from Providence, April 21, 2016) Shortly after his inauguration, President Barack Obama abandoned a series of pledges that his predecessor had made to Israel. They included the promise that the U.S. would support a number of Israeli positions in future negotiations with the Palestinians, including a) Israel would not be compelled to cede its claims to all of the territory captured from Jordan in the 1967 Six Day War; b) millions of Palestinian Arabs would not be resettled in Israel; and, c) Israel must be recognized as the state of the Jewish people.

“The Bush-Congress letter to Israel was incredibly valuable since it helped Sharon win domestic public approval for his Gaza disengagement plan.”

These commitments were delivered by former President George W. Bush to the late Israeli Prime Minister Ariel Sharon in the form of a two-page letter at a White House press conference on April 14, 2004.  Several months later, Congress would add its support to the letter’s terms by lopsided margins—95-3 in the Senate and 407-9 in the House of Representatives.

A letter from a U.S. President to an Israeli Prime Minister might not seem like a big deal. Yet, it’s what enabled PM Sharon to undertake risks for peace—the removal of every Israeli citizen, settlement, and military base in Gaza, and the removal of four small settlements in the West Bank.

In fact, the Bush-Congress letter to Israel was incredibly valuable since it helped Sharon win domestic public approval for his Gaza disengagement plan. Of course, Sharon may have taken this unprecedented move even in the absence of the White House’s support. But the letter made it an easier sell.

While the letter was viewed by the Arabs as signaling a major break in U.S. policy, the reality is that previous U.S. administrations had also accepted that there would be no return to the 1949 borders because Israel would keep some of the settlements. Basically, the 2004 Bush-Congress letter just “set forth publicly” something that had already been widely acknowledged by the U.S. government: to ensure Israel’s security with defensible borders, the 1967 lines weren’t a useful starting point for negotiations.

Indeed, it was President Obama who shifted the goal posts by refusing to view the Bush-Congress letter to Israel as binding on U.S. policy and by claiming that negotiations should start on the 1967 lines.

President Obama’s cavalier decision to reject the Bush-Congress letter soured relations between the U.S. and its most important ally in the Middle East during the early days of the Obama presidency. From the Israeli perspective, it was a betrayal …

To read the full article, click here.

ISIS & Genocide: State Dept. Has Made the Right Call, But It Shouldn’t Have Taken This Long

By Miriam Elman

(Re-published from Legal Insurrection (“State Dept: ISIS Committing Genocide”), March 17, 2016) At a 9:00 a.m. press conference [on March 17, 2016], Secretary of State John Kerry announced that the Islamic State’s actions perpetrated against ethnic and religious minorities, including Christians, are “genocidal” and constitute crimes against humanity.

“In his statement this morning, Kerry makes a point of noting that classifying ‘Daesh’s’ actions as amounting to genocide doesn’t place any ‘legal obligation’ on the United States to act.”

In the brief (10 minute) statement, Kerry refers throughout to the Islamic State (ISIS) as Daesh, its Arabic acronym. He details many of the “despicable” horrors that ISIS has perpetrated against the civilians under its control, claiming that “Daesh is genocidal by self-acclimation, by ideology and by practice”. In labeling ISIS’s motivations as genocidal and its actions as constituting genocide, the State Department met a congressionally-mandated March 17 deadline for making this classification. This past Monday, in a rare example of bipartisanship, the U.S. House of Representatives unanimously (393 to 0) passed a non-binding resolution condemning the Islamic State’s atrocities as genocide.

Kerry’s announcement comes as a surprise.

In recent weeks the Obama administration had insisted that further evaluation was necessary. And at a press conference as late as yesterday, Mark Toner, a State Department spokesperson, stated that Kerry was not yet ready to make the determination of whether ISIS’s actions had met the legal standard of genocide, and would need more time to review the available evidence and ponder the “legal ramifications” of this designation.

Toner confirmed that the State Department would not be meeting the deadline set by Congress, and also said that waiting to make the determination would be “worth it”. So everyone following this issue (see for example here and here) was pretty much certain that Kerry would let the deadline lapse. As for me, I was hedging my bets. It wouldn’t be the first flip-flop of this administration. So I wrote in a post yesterday that: “While some were hopeful that Kerry would concur with the House, it’s looking increasingly likely that he’ll be dragging out the official determination, and will let the deadline pass tomorrow without any action.”

Kerry—unexpectedly—has done the right thing, although it should never have taken this long.

As I noted in yesterday’s post, the designation can’t come too soon for the Middle East’s suffering Christians. Officially classifying the Islamic State’s atrocities as an unfolding genocide would certainly help to bring about a global response to this crisis. Speaking up for the Middle East’s beleaguered and brutalized minority population would invoke a ‘responsibility to protect’ and, as has been noted, “there are a series of actions that [would] immediately come into play to stop [the genocide].” But in his statement this morning, Kerry makes a point of noting that classifying “Daesh’s” actions as amounting to genocide doesn’t place any “legal obligation” on the United States to act …

To read the full blog, click here.

The Legal Case for Israel’s “Settlements”

By Miriam Elman

(Re-published from Legal Insurrection, March 10, 2016) Most people around the world firmly hold to the view that Israel’s residential housing communities built in Judea and Samaria/the West Bank are “illegal”. For years, this fictitious claim has fed a wild campaign of incitement and ‘lawfare’ against Israel, based on the myth that Jews have no legal right to live or make their homes on Palestinian-claimed lands in the West Bank. But the truth is that Israel isn’t an unlawful occupying power—certainly not according to any binding international laws.

Now, Northwestern University Professor of Law Eugene Kontorovich, a leading expert in the fields of constitutional law, international law, and the intersection of law and economics, is on a speaking tour of universities and colleges to explain why. Below I summarize the legal case for Israel’s West Bank settlements according to Kontorovich.

Kontorovich is a full professor at one of the nation’s most prestigious universities and schools of law. He regularly writes an opinion column for the Washington Post’s The Volokh Conspiracywhere he addresses how the BDS-related measures arrayed against Israel can run afoul of the law (see for example here) and has recently criticized the Obama administration’s stance on anti-BDS congressional legislation (see here and here). As we highlighted in a post this past summer, he testified before the House against the argument that economic boycotts of Israel are justified or required by international law, and on the role that Congress can play in opposing BDS in ways consistent with U.S. law and policy.

In a post back in 2013 we also featured one of Kontorovich’s lectures on the topic of Israel’s occupation. In it, he claims that presenting Jewish settlement in the West Bank territory (ancient Judea and Samaria) as illegal or ‘colonial’ ignores both the historical complexities of the issue and the legal circumstances. His current presentation updates the arguments he presented then, bolstering them with new comparative research on “other countries’ settlements” and how the international community has reacted to these occupations …

… Here’s the gist of Kontorovich’s talk, which also generated good feedback at the Maxwell School during the Q&A:

International law derives from treaties and custom, not United Nations General Assembly resolutions which are non-binding and thus don’t oblige any action.

Kontorovich began his lecture by noting that in July 1922 it was the League of Nations that established the Mandate for Palestine, deemed as “reconstituting” a “national home” for the “Jewish people”. The word ‘settlement’ first appears in Article 6 of the Mandate: “close settlement by Jews on the land” was to be allowed and even encouraged. And it’s the League of Nations’ Mandatory borders that are binding.

When new countries are established, the most recent administrative border is what counts.

Kontorovich argues that while the League of Nations’ mandates have been contested by states that have sometimes refused to be bound by them (for example, by Iraq in its claim against Kuwait), these objections have no basis in international law. In 1948 the borders of Israel were supposed to be those of Mandatory Britain. The Green Line, or 1949 armistice lines, which are neither a political nor a territorial boundary and have no legal force under international law, didn’t correspond to any prior administrative border. So Kontorovich says that once Great Britain left, the mandate over Palestine—which was explicitly for the purpose of re-establishing a Jewish national home—just expired. The area became essentially a territory without a sovereign.

The fact that Jewish civilians live today in the West Bank isn’t an international crime.

Kontorovich explains that the Fourth Geneva Convention’s Article 49(6) has been grossly misinterpreted over the years to be a prohibition against the occupying power’s citizens. In fact, it’s only a set of injunctions on the occupier, and was explicitly meant to prevent the kinds of deplorable forcible deportations and mass transfers of peoples perpetrated by Nazi Germany during World War II. Article 49(6) doesn’t say that civilians can’t voluntarily move to live in occupied territory. Nor does it require occupying powers to make it difficult or burdensome for civilians to reside in these territories.

With regard to the West Bank, a sizeable portion of Jewish Israelis who live there today didn’t move into the area, much less were they transferred there by Israel—they were born there! And these settler babies and kids aren’t there illegally. So Article 49(6) doesn’t create a “no-go zone” for the nationals of the occupying power who wish to migrate into the occupied territory. Israel has indicated a willingness to trade away some of this territory as part of a negotiated agreement—having rights and title to territory doesn’t mean a state can’t waive them. But until that day comes, nothing in the Geneva Conventions makes it unlawful for Israeli citizens to voluntarily settle in a territory with no other legal sovereign.

Many other nation-states are regarded as occupiers under international law and have populated these territories with settlers, but these actions have garnered virtually no international opprobrium in comparison to the negative reactions toward Israel’s settlement of the West Bank.

At the conclusion of his talk, Kontorovich noted the double standards that have politicized international law, and undermined its integrity. Only Israel’s actions in the West Bank are deemed unlawful and worthy of boycott, even as plenty of other countries—including America—have occupied territories and enabled their citizens to live in them. Kontorovich points to over a dozen other cases (e.g., Morocco’s occupation of Western SaharaTurkey’s occupation of Northern Cyprus) along with a few that are less well known, like the U.S. occupation of West Berlin which ended in 1990.

Americans were never prevented from living in West Berlin or from opening up businesses there. Nor were any third parties ever told that they had a legal obligation to boycott American-owned companies there. In fact, Kontorovich notes that no one made any fuss when Burger King opened a branch in West Berlin. And during the 1970s and 1980s the place became a popular destination for many American artists and musicians …

To read the full article, click here.

Fighting The Hate: When Does Anti-Israel Become Anti-Semitic?

By Miriam Elman

(Re-published from Legal Insurrection, Jan. 16, 2016) Last week I drove out to Rochester, NY to give a talk titled ‘Fighting the Hate: When Does Anti-Israel Become Anti-Semitic?’.

Sponsored by ROC4Israel, a new pro-Israel organization that we featured in a post back in October, my lecture centered on how legitimate criticism of Israel can be distinguished from criticism that crosses the line into anti-Semitic hate speech.

“As we’ve noted in hundreds of LI posts over the last few years, vehemently anti-Israel BDS activists, who are committed to delegitimizing Israel, have been working overtime to embed themselves within America’s college campuses and in our country’s mainline churches.”

A video of my 60 minute lecture, which also captures its accompanying PowerPoint slide show, is now available on YouTube (full embed later in post).

Below I highlight the main themes. I break the hour-long lecture into segments so that readers can click on to those parts of the talk that are of most interest.

I then summarize a series of post-lecture discussion exercises that I led with the nearly 100 audience members who attended my January 7, 2016 event.

1. Introduction

Despite some major setbacks, like the crushing defeat of an anti-Israel resolution at the recent professional meeting of the American Historical Association, the anti-Israel boycott, divestment and sanctions movement, or BDS, continues to gain ground.

As we’ve noted in hundreds of LI posts over the last few years, vehemently anti-Israel BDS activists, who are committed to delegitimizing Israel, have been working overtime to embed themselves within America’s college campuses and in our country’s mainline churches.

A recent report shows that programming aimed at vilifying Israel is even beginning to make some headway into the curricula of America’s Jewish day schools.

My video, its accompanying slide show, and the post-lecture discussion materials offer a new teaching tool to combat the BDS anti-Israel movement.

In them, I suggest how to facilitate a robust and constructive conversation relating to Israel—one that stands for the rights of both Jews and Arabs, and enables students and community members to better understand the complexity of both the Middle East in general, and the Israeli-Palestinian conflict in particular.

My lecture focuses on how Israeli government policy and practices can be criticized without resorting to anti-Semitism and the sorts of vicious anti-Jewish tropes that have sustained Jew-hatred across the millennia.

I show how anti-Semitism is neither a moving target nor in the eye of the beholder—it has a precise definition and specific manifestations. As noted by British writer David Baddiel, anti-Semitism is a unique type of racism. Jews are the only people on the planet for which racism has both a low and a high status: Jews are depicted as vermin and child killers who lust for blood; but they’re also centrally important and the purveyors of all evils, wealthy, and secretly in control.

Simply put: criticism of Israel crosses the line into anti-Semitism when the portrayal of the Israeli state and its society allows for them to emerge in ways similar to these classic stereotypes of the Jew.

Educators and community organizers who would like to use the documents and materials that accompany the video in their curricula or for a public community event can contact me for copies at melman@maxwell.syr.edu

To read the whole article, click here.