In the wake of the collapse of the last round of Israeli-Palestinian talks last April, it’s become widely accepted that the continuing growth of Israeli settlements is a key obstacle to an agreement. This has created difficulties for those inclined to support the Israeli government’s ability to do whatever it wants. One way to make it easier to defend the settlements and the occupation that sustains them is to obscure the difference between them and Israel proper. As I wrote last month, a method that lobbyists like the American-Israel Public Affairs Committee (AIPAC) have been employing lately to accomplish that is to target the Boycott, Divestment, and Sanctions movement (BDS).

Several recent pieces of legislation demonstrate how this is accomplished. In Illinois, a bill prohibiting Illinois from contracting with businesses that are boycotting Israel passed unanimously in both the State Legislature and Senate. The language of the bill specifically includes “territories controlled by the State of Israel” – that is, territories occupied by Israel after the 1967 war, which no country in the world, including the U.S., recognizes as part of Israel.

In Congress, amendments to the bills that would give the President the power to negotiate the Trans-Pacific Partnership trade deal without public scrutiny (called “fast track”) require the President to make combatting any boycotts of Israel a principle trade objective and would require the President to report to Congress on any businesses that are participating in such boycotts. These amendments also specifically include “territories controlled by Israel.”

In both cases, the legislation does little if anything to protect Israel’s legitimacy. Rather, they extend existing American protection to Israel’s settlements, treating them as if they were a part of Israel for the first time in American history.

It is important to recall that US law already protects Israel against boycotts started by foreign governments. The Export Administration Act of 1979 and the Ribicoff Amendment to the Tax Reform Act of 1976 were enacted to protect Israel from the Arab League boycott against it. The Illinois law extends this protection in a small way, to encompass any boycotts against Israel, whether initiated by governments or civil society. The amendments in Congress, by contrast, change nothing with regard to boycotts of the internationally recognized State of Israel.

The real effect of those amendments and the major effect of the Illinois law as well, actually has nothing to do with any boycotts of Israel, whether by Arab states or activists. The upshot of all of these measures is that, for the first time, the United States is treating the settlements as if they were part of Israel. At no time has the United States ever implied any recognition of Israeli sovereignty over any territory it occupied in 1967. Even Israel’s annexations of the Golan Heights and East Jerusalem have never been recognized by the United States.

Promulgating bills purported to be opposing BDS is a clever way to disguise what is, in reality, an effort to affect a major shift in American policy toward the settlements. Admittedly, it is a slower way to change that policy, and one must point out that the Illinois law clearly does have some, albeit small, influence on potential BDS activities. There can be no doubt, however, that when the dust settles and politicians look back on what they did here, the one and perhaps only effect that will stand out will be setting a precedent for treating the settlements as a part of Israel.

Here, it is instructive to examine a post by Eugene Kontorovich at the Volokh Conspiracy celebrating these new laws. Kontorovich, who is one of a microscopic number of international law experts who defend the legality of Israel’s settlement program, wastes no time in capitalizing on the dual nature of the bills. He immediately blurs the very crucial distinction between European economic actions directed entirely at Israel’s settlements, and some civil society BDS actions that take aim at Israel more generally.

Kontorovich derides European concerns about the economic and legal risks of doing business with the settlements, calling them legally groundless. He does not expand on this point; perhaps a sign that he knows it is easily assailable. In fact, there are serious issues for firms that are considering doing business with or in the settlements.

The overwhelming opinion of both international law scholars is that Israel’s settlements are illegal and violate the Fourth Geneva Convention, which forbids an occupying power from transferring its own citizens into occupied territory. As a result, the European Union and a number of European countries have passed laws that exclude settlement products from favorable import laws that Israel is entitled to as an associate of the EU or has worked out in trade agreements.

Europe has never really enforced those laws, but this could be changing, and that is what has Kontorovich and his ilk concerned. A recent trade deal between the EU and Israel became controversial due to provisions that barred any dealings with the settlements. The EU is also considering enforcing its laws about labelling products that come from the settlements, and thus distinguishing between them and Israeli products.

Crucially, Kontorovich describes these measures, and European warnings to businesses about them, as actions and warnings against “Israeli companies,” and this is again part of the agenda of blurring the distinction between Israel and the settlements. Kontorovich then moves into a general attack on the global BDS movement.

By melding his arguments against European measures and those of the BDS movement, Kontorovich lumps all economic action together, without distinguishing between actions directed at Israel and those directed at the occupation. This can hardly be seen as accidental; virtually every major move by businesses, governments, churches or any other entity that could have even the slightest economic effect on Israel has been scrupulously directed solely at Israel’s settlements and its ongoing occupation. That holds whether those actions have included any involvement of the global BDS movement or not.

Indeed, Kontorovich hardly stands alone in this. Boycotts or divestment proposals directed solely at the settlements and the occupation are routinely called “anti-Israel” and described, wholly inaccurately, as being directed against Israel.

Kontorovich also employs the disingenuous comparison of the BDS movement’s actions to the Arab League boycott of Israel. A group of governments, however, took that action, and as such, it is appropriate for another government to act to counter it. Economic movements from civil society, by contrast, are one of the few non-violent paths that groups of citizens have to affect policy. It is well established as protected speech under the United States Constitution and cannot be compared to the actions of foreign governments. Kontorovich surely knows this, but chooses, unsurprisingly, not to address it.

That protection of civil society boycott must hold, whether or not the boycott is popular. The global BDS movement is certainly a flashpoint, and clearly, parts of it are distinctly anti-Zionist, often to an extreme, and reject the very concept of a two-state solution. While such attitudes are not universal in that movement, it is certainly fair to say that for many in the pro-Israel community, those views characterize the movement as a whole.

That, however, should not mean that our government should act against a boycott movement. Kontorovich is essentially correct in one of his statements: “the message of the BDS movement…is fundamentally rejected by the vast majority of Americans.” If that is the case, however, that argues AGAINST such legislation, not for it. To legislate against a well-established aspect of free speech should require an extraordinary threat. Yet Israel’s popularity in the United States certainly guarantees, at least for the immediate future, that Israeli products and services will continue to sell in the American market.

It is worth asking, however, how much impact it would have if, someday, the United States also chose to differentiate between settlement products and actual Israeli ones. Aside from the friendly trade deals that settlement products would not qualify for, might people be less inclined to buy products from settlements, which are much less popular than Israel, if they could tell the difference between them and Israeli ones?

Perhaps that is what really concerns Kontorovich, as well as AIPAC, which has been pushing this legislation. The BDS movement has had very little impact, to date, on Israel’s economy. Just to cite one example, one of the biggest victories they were involved in, the decision by the Presbyterian Church, USA (PCUSA) to divest from several companies they viewed as helping to support the occupation, exclusively targeted settlements. Moreover, PCUSA specifically stated that this was done based on its own initiative, and not as a part of the BDS movement.

Kontorovich’s arguments, and AIPAC’s legislation, raise a very fundamental question about restricting free speech. Is the United States willing to restrict free speech, albeit speech that is not very popular, when that speech is directed at another, allied country when the speech has clearly posed no material threat to that country? Is our standard for dangerous speech that low?

It also raises a key question related to American policy in the Israel-Palestine conflict. That question is whether the United States regards the settlements as part of Israel. Do we, in fact, agree with the most radical anti-Zionists and the most radical settlers, both of whom make no distinction between the settlements and the actual state of Israel?

More to the point, are we willing to stigmatize, penalize and perhaps someday even outlaw initiatives by many civil society groups, including many that are profoundly pro-Israel, that seek to end Israel’s occupation, reverse the settlement program and finally reach a two-state agreement?

Ultimately, Kontorovich and AIPAC are working with their arguments and legislation against those things. By hiding protection of settlements in language that seems to be defending Israel, they are moving that agenda forward. It’s important that this disingenuousness is exposed and people understand what they are really being asked to support.

The shell game is a tried-and-true method of persuading people to give their money to the person running the game. In political terms, it’s also a reliable method of persuading people to buy into the political stance of the man running the game.

Elliott Abrams is a master of the shell game. He provides what seems like a serious and sober analysis, with just enough cherry-picking of facts and omission of detail to convince you of his point of view. That is a big reason why this man, who is responsible for some of the greatest foreign policy fiascos in American history, continues to be considered a legitimate source for foreign policy analysis.

Perhaps it’s not surprising. Despite the enormous catastrophes brought on by the neoconservative school of thought of which Abrams is a part, the philosophy, such as it is, continues to be an influential voice in the foreign policy debate in the United States. This is, however, even more reason to look at an apparent change of course from Abrams with a skeptical eye. Read more at LobeLog

On Wednesday, the Senate adopted an amendment to the Congressional Trade Priorities and Accountability Act of 2015 (TPA) designed to defend Israel against the global “Boycott, Divestment and Sanctions Movement” (BDS). A similar amendment was adopted in the House of Representatives. Whatever one thinks of the bill’s intentions, the actual content of it is troubling enough that it must be opposed, whether or not one opposes the global BDS movement.

Let’s dispense with one point right away. There is no comparison between the sort of actions this bill is targeting and the Arab League boycott of Israel, from which the United States has been defending Israel through legislation since 1977. The Arab League boycott had one purpose and that was to destroy the Israeli economy. It sought no change in policy. What it was protesting was Israel’s very existence.

A similar accusation is often made today against the global BDS movement. Whether one believes that accusation valid or not, there is no justification for barring economic actions which clearly target Israeli policies that are, surely, problematic to say the least. Can we, as Americans, truly justify stigmatizing or even criminalizing a business’ or an individual’s decision not to do business with companies based in Israel’s settlements beyond the Green Line?

This is a distinction that both amendments act to erase. Several times in both bills, the language refers not only to Israel but also to “territories controlled by Israel.” The bills, therefore, erase the distinction between Israel and the settlements it has established in occupied territory – territory that, even according to Israeli law, is not part of Israel.

It is important to remember that Israel has never extended Israeli law or made any official claim to sovereignty to territory beyond the Green Line, except for their claims on East Jerusalem and the Golan Heights, neither of which has been recognized internationally, including by the United States. So how can Congress justify treating the settlements as if they are part of Israel? And what are the implications of it doing so?

As cynical as it may sound, it seems that Congress needs no justification for this crude and short-sighted act beyond the urging of the American-Israel Public Affairs Committee (AIPAC), which strongly supports these amendments. One might understand the desire to shield Israel from BDS, just as the U.S. shields Israel from so many other potential consequences of its nearly half-century old occupation. But to willfully include the settlements, as these bills do, serves no obvious purpose other than to maintain that occupation.

The precedent this sets, and the message it sends, is nothing short of disastrous. Indeed, what it really does is pave the way for a one-state future, with no alternatives. It is ironic that, after the shock and opprobrium that greeted Israeli Prime minister Benjamin Netanyahu’s campaign pledge that there would be no Palestinian state on his watch, the United States Congress would take a step toward closing off the two state option, not with words, but with actual legislation.

That might sound like an overstatement. But consider what this legislation would mean.

True, most of the measures in this legislation deal with reporting, or Congress’ list of points of emphasis in trade negotiations. However, it sets a clear precedent that the settlements and Israel are a single unit. That can have grave implications down the road. For example, while the United States has routinely averted its gaze from the ways in which American aid to Israel helps sustain the occupation, the fact that at least technically, US weapons are not supposed to be used for this purpose and that US funds had to be kept within the Green Line matters. It is something to build on, to try to make a case with for increased stringency in monitoring Israel’s actions and, potentially, a lever to modify those actions.

More than that, the overwhelming majority of actions taken to try to convince Israel that there is an economic incentive for it to change its policies have been scrupulously targeted at the settlements. Two years ago, the European Union, which is the target of the anti-boycott legislation, issued guidelines based on existing EU law, prohibiting funding of any projects beyond Israel’s recognized borders. Several European companies and investment firms have stopped doing certain kinds of business with some of their Israeli counterparts either because the business supported the settlements or because the work involved would actually be in the West Bank. These are not wholesale boycotts of Israel, but are actions targeted specifically to the occupation and the settlements. Is that what Congress is trying to protect Israel from? If it is, that is a much more significant step against a two-state solution than any of Netanyahu’s campaign promises.

One can debate the merits of boycotts, but when a boycott is called due to the grievous policies of a government, it is a legitimate way for individuals, organizations and businesses to protest that policy. Congress should not be interfering with the choice of individuals and businesses as to how they might wish to use their dollars or euros to express their politics, as long as it is a political expression and not one, like the Arab League boycott, designed to bring all of Israel down because of its very existence.

What Congress is doing with this amendment is putting to paper the view that the West Bank is Israel. What does that imply?

First, it means that Congress is saying that Israel is an apartheid state. After all, in the West Bank there are millions of Palestinians who live under military law while the settlers live under civil law. Two peoples living under different laws administered by the same government is the textbook definition of apartheid. This is the very argument that truly anti-Israel forces use, and now Congress is making it for them.

Second, Congress is standing in clear and undeniable opposition to the vision, first articulated by none other than President George W. Bush over a decade ago, of two states living side by side in peace and harmony. After all, the entire premise of the two-state solution has always been that Israel is occupying territory that is not part of the sovereign state of Israel. This has been the view of not only the international community, but the High Court in Israel, and every Israeli government from 1967 until now.

Thus, Israel would be ending its occupation and de facto allowing a Palestinian state to come into existence. But if this is all one sovereign unit, as the new legislation implies, then we are talking about dividing an existing sovereign state when we mention a two-state solution. That has never been the argument for two states, and it is a much more difficult one to credibly make.

As JJ Goldberg correctly describes it in the Forward, “Proponents (of the global BDS movement) are divided on whether or not they seek to eliminate the independent existence of the state of Israel.” Congress, in a very bi-partisan fashion, is siding with the most anti-Israel elements of the BDS movement who also see the West Bank, Israel and Gaza as a single state, under Israeli rule and therefore an apartheid state.

Congress is also siding with the most radical elements of the settler movement, who see the West Bank and Israel as all part of one, holistic Greater Israel. Many of those settlers do not recognize the authority of the Israeli government, and frequently clash with the government and security forces.

Those are Congress’ fellow travelers in this sort of view, true opponents of the State of Israel. It could not be clearer: support for this legislation is about as far from being pro-Israel as one can get.

The Israeli-Palestinian peace process — the one that is supposed to end with a two-state solution — is on life support. Both sides in the conflict have made their share of missteps, but Benjamin Netanyahu, Israel’s prime minister, all but pulled the plug earlier this month by pledging during his reelection campaign that Palestine would never become a state on his watch. He reaffirmed the sentiment even as he dialed back the rhetoric after the vote. This position runs directly counter to U.S. national security goals.

A two-state solution has been an American goal for nearly two decades. Ina 2002 speech, George W. Bush became the first president to explicitly call for the creation of an economically sustainable, demilitarized Palestinian state. “The establishment of the state of Palestine is long overdue,” he saidin 2008. “The Palestinian people deserve it. And it will enhance the stability of the region, and it will contribute to the security of the people of Israel.” Today, virtually all American politicians, on both sides of the aisle, publicly support this outcome. But with Netanyahu standing in its way, how can the United States advance this goal?

By recognizing the state of Palestine.

>>Read the full article in the Washington Post>>

The idea that the two-state solution to the Israeli-Palestinian conflict is dead has been repeated so many times in the

past several years that it has taken on the droning sound of a mantra. Yet at the same time, we continue to hear pleas like the one that Palestinian Ambassador to the United Nations, Riyad Mansour made as the Security Council was about to reject the Palestinian resolution calling for an end to Israel’s occupation: “Those eager to save the two-state solution must act and cannot continue to make excuses for Israel and to permit, and thus be complicit in, its immoral and illegal behavior.”

So which is it? Must we abandon the two-state solution and think of other formulations or do we desperately need to revitalize and resuscitate the process we’ve been working on since 1993? Perhaps there is a better answer: a completely different approach to the two-state solution. (more…)

For decades, Israel has deepened its occupation of Palestinian land and expanded its settlements in East Jerusalem and the West Bank with virtually zero consequences. As a result, successive Israeli governments have had no reason to cease these policies and Israeli voters have had no reason to be concerned with voting for governments who carry them out. But with new Israeli elections scheduled for March 17 and signs of increasing pressure from Israel’s allies in the West, this could finally be about to change.

Last month, the Israeli newspaper Haaretz reported on an internal European Union document detailing a menu of possible new measures toward Israel in response to “acts by the Israeli government that are liable to make the two-state solution an impossibility,” such as settlement construction in specific areas in and around Jerusalem. Measures under discussion included limiting economic cooperation with Israel, compulsory labeling of products made in West Bank settlements, and ceasing projects with companies that operate in the occupied territories. On the more extreme end, the document also proposed a “no contact policy with settler organizations/Refus[ing] to engage with settlers, including public figures and those publicly rejecting the two-state solution” — similar to the current ban on officials meeting with Hamas.

Read more at Foreign Policy.