Rebecca Vilkomerson has been a member of Jewish Voice for Peace since 2001 and the group’s Executive Director since 2009. She lived with her family in Israel from 2006-2009. In 2010 she was named one of the 50 most influential Jewish American leaders by the Forward, and was named one of “14 Women to Watch” in 2014.

 

FMEP: Jewish Voice for Peace (JVP) has, in some ways, been a lightning rod for the global movement for Boycotts, Divestment and Sanctions of Israel (BDS). Many people can’t reconcile the idea of a Jewish organization advocating a boycott of Israel. Obviously, this is especially true for those who see BDS as unfairly anti-Israel, even anti-Semitic. As the Executive Director of JVP, how do you respond to those charges? And, perhaps a parallel question, what would you say are the major differences between the public perception of the BDS movement and its reality?

Rebecca Vilkomerson: From a personal perspective, I don’t think that endorsing BDS is anti-Israel in the least.  The demands of BDS are about transformation. Just as ending apartheid in South Africa did not destroy it, addressing the three demands of the BDS movement would change Israel fundamentally–ideally in ways that would bring equality and freedom for all people in the region, something I would hope would be of interest to most people.

I do want to de-couple the concepts of “anti-Israel” and “anti-Semitic.” As JVP’s statement on anti-Semitism says, in part, “Definitions of anti-Semitism that treat criticism of Israel or of Zionism as inherently anti-Semitic are inaccurate and harmful. The majority of Jews are not Israeli, and not all citizens of Israel are Jewish. Israel is a state; Zionism is a political ideology; Judaism and Jewish identity encompass a diversity of religious and secular expressions and a robust, varied set of traditions, cultures, and lived experiences.”

And that being said, I want to make a case for the legitimacy of “anti-Israel” as a category.  It’s often used as an accusation, as a way to end discussion and almost always linked to or tainted by anti-Semitism.  But Palestinians, whether in Israel or under Occupation or in diaspora, have experienced unbearable loss–of home, property, rights and life–at the hands of Israel. They may be deeply angry or hate the state of Israel based on their direct experiences with violence at its hands.  To demand that they fight for their rights while loving or caring for Israel as a Jewish state, defined by their exclusion or subordination, is not just absurd but cruel. For those of us doing this work in part because we want to see Israel become a better place, it is incumbent upon us to understand and defend those who are struggling simply for the sake of their basic rights with no love lost for the state that oppresses them.

Palestinians, whether in Israel or under Occupation or in diaspora, have experienced unbearable loss–of home, property, rights and life–at the hands of Israel. They may be deeply angry or hate the state of Israel based on their direct experiences with violence at its hands.  To demand that they fight for their rights while loving or caring for Israel as a Jewish state, defined by their exclusion or subordination, is not just absurd but cruel.

In terms of the second half of the question, I think there are numerous misconceptions about BDS.  The reality is that the three core demands of BDS are actually a quite moderate call for basic internationally recognized rights: full equality for all, the end of occupation and the Palestinian right of return. While Jewish communities often react strongly in particular to this last demand, it is enshrined in the Universal Declaration of Human Rights. In fact, my own children have the right to a German passport under the same principle.

BDS does not require a one state solution; in fact, many Palestinian groups that endorsed the BDS call actually endorse two states.

The BDS movement is a Palestinian-led movement originating from a call by a broad coalition of civil society institutions. Its global network of supporters is inclusive, multi-ethnic, multi-racial, and multi-faith, including many Jews from around the world among the individual and organizational supporters. I have always found that the Boycott National Committee, the leadership body of the BDS movement, conducts itself with the highest ethical and anti-racist standards, contrary to common accusations in Jewish communities.

Finally, I think it is important to remember that BDS is a set of tactics and demands, not an end unto itself. I recommend that those who have questions go to the BDS website and look around.  I am always astonished by how many people have criticisms who haven’t gone to the primary source.

FMEP:  In 2010, the Jewish weekly newspaper, The Forward, listed you as one of the 50 “most influential Jewish leaders.” In 2013, the Anti-Defamation League listed JVP as one of the top 10 “anti-Israel groups” in the country. That seems like a really good illustration of the sharp divisions among American Jews that you and JVP more broadly provoke. How do you see your relationship to the Jewish community, including, but not limited to, the major Jewish institutions?

RV: Years ago, when JVP was much smaller, we made some effort to get a “place at the table” at some local Jewish Federations, Jewish Community Relations Councils, Hillels, etc., with the assumption that we belonged in any umbrella group of the Jewish community. Our hope was to challenge the bigger institutions’ positions on Israel/Palestine from the inside, especially once they knew that significant numbers of their community shared our position.  However, we were never successful, and in recent years, specific guidelines have been put in place in many of these institutions to exclude JVP or others who share our views.

More recently, as we’ve continued to grow and the red lines that prevent honest debate about Israel/Palestine and Boycott, Divestment and Sanctions (BDS) have hardened in establishment Jewish institutions, we have evolved a somewhat different approach.  JVP is a vibrant Jewish community to which people can connect through chapters in their hometowns, or as Rabbis, academics, students, labor activists, or health workers.  Our members are showing up together to support other justice struggles like the Movement for Black Lives and the fight against the Dakota Pipeline because they see JVP as their political home. This year, for the first time we are livestreaming High Holiday services from four synagogues and chavurot (communally organized Jewish practice communities) from around the country for members who don’t have access to spiritual spaces where they can bring their full political selves to Jewish practice.

In other words, we are creating our own alternative Jewish institution that doesn’t need approval from or inclusion in the self-identified “major” Jewish institutions. We are creating a new model for Jewish communal life, one that welcomes and centers the multiplicities of Jewish experiences and histories and does not insist on a separation between justice for Palestinians and Jewish identity.  It feels good that other organizations like IfNotNow, Open Hillel and the Center for Jewish Non-Violence are also emerging.  We may not share the exact same approach or focus, but we have enough in common that it feels like a new universe of Jewish space is opening.

Ultimately I really believe that it is to the detriment of the mainstream Jewish communities that they are excluding a vibrant, engaged, and growing segment of the Jewish community in the U.S.

FMEP: With many thousands of members and more than 60 chapters across the country, JVP has certainly magnified its impact from its humble beginnings twenty years ago. But you face the same question all of us working on this issue face: in that time, the Israeli occupation has only tightened, US policy has become even more entrenched, and Palestinian despair has grown. Given that troubling reality, what is the path to success that you see, in both the short and long term?

Also, more than any President before him, Barack Obama came into office with the announced intention of finally ending the Israeli occupation and reaching a negotiated peace between Israel and the Palestinians. Eight years later, Obama will leave office with the situation considerably worse than when he came in, and it seems clear that the next administration, whether Clinton or Trump, is going to be much less concerned about the occupation than Obama. What do you expect going into the next administration, and how do you think it will affect JVP’s efforts?

RV: Your framing is really important and a reminder to all of us of how we have to ground our work in a feeling of urgency given the realities on the ground. But that feeling of urgency also has to be tempered with the reality of what we’re up against–the biggest U.S. aid package to Israel ever just being approved is one reminder.  I’ve combined my answers to your last two questions because I think that JVP is playing a longer game than just the next administration.

We see the U.S. as the linchpin that allows Israel to continue its destructive policies, through the military, economic and diplomatic aid and cover the U.S. offers.  And we (and by “we” here I mean JVP and all the other groups doing this work) know we need to build a seriously strong grassroots movement, as other movements have done at other moments in our history, in order to bring about a profound change in the U.S. approach to Israel.  That is the only power that can go up against the Israel lobby, which includes Christian Zionist organizations, Jewish organizations like AIPAC, and the US arms industry which profits directly from military aid packages to Israel.

Public opinion is demonstrably changing. To offer just one example, 49% of Democrats now support economic sanctions on Israel over settlement construction, according to a Brookings Institution poll from last year. It is clear that the bipartisan consensus around Israel is crumbling, and a new coalition of women, young people, and people of color are emerging that see Palestinians and Israelis as peoples that deserve equal rights and freedom and are willing to take action in support of that belief.  Palestinian rights are becoming an integral part of the progressive agenda, like racial, economic and climate justice.  So while I don’t have immediate hopes (and do have a lot of fears) for the next administration, I also have a lot of optimism about where this movement is going to take us in the long term.

 

“You can not like the word, but what is happening is an occupation — to hold 3.5 million Palestinians under occupation. I believe that is a terrible thing for Israel and for the Palestinians.”

– Israeli Prime Minister Ariel Sharon, May 2003

 

On Monday, most of the presidential candidates addressed the annual conference of the American-Israel Public Affairs Committee (AIPAC). The speeches hit all the usual marks, with the candidates striving to show that they would promote Israel’s interests better than the others. Palestinians were mentioned almost exclusively in the role of the demonized villain, and the notion of a resolution of the conflict was barely given even the emptiest kind of lip service, if it was mentioned at all.

All of these speakers avoided using one particular word: occupation. None of them offered any hint that they acknowledged that Israel was occupying territory not legally its own, ruling over millions of Palestinians without basic rights. Only Bernie Sanders, delivering a speech from the campaign trail in Utah, mentioned the word.

This is a problem. In the wake of the collapse of peace efforts, anger, despair, and violence threaten to engulf Israelis and Palestinians. Statements from top Israeli security officials affirm this key point: Palestinian despair of ever ending the occupation that began in 1967 is one of the drivers of violence.

Even the more moderate forces of the Palestinian Authority have been slow to condemn acts of violence, leading to renewed accusations of incitement from the right wing government of Benjamin Netanyahu. In Gaza, millions languish in dreadful conditions under a siege imposed against the Hamas government by Israel and Egypt, even while Israel quietly acknowledges that forces much more violent than Hamas are being kept at bay by the Islamist group.

Meanwhile, Israel is sliding ever further to the right, not just in the government but in the opposition as well. There is no constituency that feels any urgency for a resolution, and no one is pushing for talks or the sort of compromises a resolution will necessitate. Instead, the Netanyahu government, bending to the influence of settlers and parties to the right of the Prime Minister, is moving to consolidate the one-state reality that exists today into a permanent one.

This is all the result of the absence of an effective diplomatic process. It is very difficult to see how this state of affairs can change if the next President of the United States is committed only to “standing with Israel” and not to pressing both sides toward a resolution. It’s even more difficult to see it if our next president can’t even acknowledge the reality of occupation.

This is hardly a radical word. It’s one whose applicability has been affirmed by the High Court of Justice in Israel, and has been used by Prime Ministers such as Ehud Barak and even Ariel Sharon. It also has the merit of describing the situation on the ground in the West Bank, and legally still applies to Gaza as well. The fact that Palestinians in the West Bank and Gaza are governed under military law, rather than civil law, is evidence that Israel itself recognizes the legal fact of occupation, despite what its right wing politicians might claim.

Our next president must find a way to strengthen Israel’s security by ending its occupation of Palestinian territory and undemocratic rule over millions of Palestinians. This isn’t just in the interests of Israelis and Palestinians; it’s also a U.S. interest, one backed by an overwhelming international consensus. Pursuing those necessarily intertwined goals, and navigating the political minefields that surround them is no easy feat.

An agreement ending the occupation is the only way there will be a secure State of Israel and a secure State of Palestine. But we can’t get there if we can’t even name the problem. Whether it is at AIPAC, along the campaign trail or after the new president is in office, it is essential that they address the problem of occupation. That starts by calling it what it is.

 

Secretaries Jack Lew, Ernest Moniz and John Kerry defend the JCPOA before the Senate Foreign Relations Committee

AIPAC recently issued a memorandum to congressional members and staff with respect to the future of the Iran sanctions regime should Congress reject the Joint Comprehensive Plan of Action (JCPOA).  This memorandum notes that, if a joint resolution of disapproval for the JCPOA were to be passed by both houses of Congress and President Obama’s inevitable veto overridden by a two-thirds vote again of both houses, the U.S. sanctions regime would remain legally in place.  It is on this basis that AIPAC argues there will be no deterioration of the international sanctions regime facing Iran, at least until it completes the nuclear steps it committed to take in the JCPOA.  Consequently, AIPAC considers there will be ample time to renegotiate the text of the JCPOA before Iran has finished its work.

AIPAC is certainly correct that U.S. sanctions can be maintained as a matter of law should Congress reject the JCPOA.  But, it is there that AIPAC’s analysis parts company with several important realities.

 

Maintaining the sanctions regime if the JCPOA falls apart is about more than the letter of U.S. law.

AIPAC’s main argument appears to be that since U.S. law will not change if the JCPOA is rejected, we have nothing to fear from a post-JCPOA-rejection world.  This assertion ignores the fundamental reality that the U.S. sanctions with teeth require foreign participation in order to work.  This is because U.S. law is structured to present an “us or them” choice to international businesses and banks therefore have to elect to follow the U.S. lead (and U.S. law) in order to prevent transactions from taking place with Iran.

Certainly, as AIPAC has noted, there is fear of the consequences of U.S. sanctions on foreign businesses to motivate them.  No one likes paying multi-billion dollar fines and many of the most important international corporations and financial institutions will shy away from doing business with Iran until the status of U.S. sanctions is resolved.  But, cooperation with U.S. sanctions has also been about a common aim and pursuit by the governments of those corporations and banks.  European, East Asian, and Indian firms have declined to do business in Iran – even if their exposure to U.S. sanctions was limited – because there was a common understanding that sanctions were needed to prevent Iran’s acquisition of nuclear weapons.  This common sense of purpose will be lost if the United States walks away from the JCPOA.  Instead, the only motivating force will be the threat of U.S. penalties.  But, for those without U.S. exposure – or prepared to risk it – this may not be enough to stop business with Iran.

Moreover, foreign governments can take steps to preclude corporate cooperation with U.S. sanctions.  AIPAC takes it as a given that if the U.S. Congress passes new sanctions, foreign cooperation is assured.  But, let us remember a time in which there was a significant difference between the United States and Europe on Iran sanctions: 1996’s Iran-Libya Sanctions Act, which prompted – among other things – passage of European legislation that explicitly forbade companies from complying with U.S. law, deemed by the EU to be extraterritorial.  This law is still on the books, as is a European policy decision in 1997 to bring the United States to the World Trade Organization should it impose sanctions on a European company pursuant to ILSA.  Fortuitously, this situation has been avoided to date because of cooperation between the United States and EU.  But, should that cooperation lapse, this challenge could once again be met with infighting between the EU and United States, hardly a propitious scenario for building a unified diplomatic front to get a better nuclear deal.

 

Even with cooperation, there won’t be support for new sanctions.

Let us assume for a moment that rejection of JCPOA and resumption of U.S. sanctions does not lead to immediate legal conflict between the United States and its sanctioning partners.  This is still a far cry from an environment conducive to the imposition of new sanctions to strengthen the U.S. negotiating hand with Iran.

No one in the opposition camp has laid out a clear strategy for how to secure such pressure, other than to threaten the imposition of sanctions against our partners directly.  This is understandable, because there is no credible strategy for doing so.  The United States has secured cooperation with its sanctions efforts before on the basis of a plan to get a negotiated settlement of the nuclear issue.  But, that plan would be largely out of the window as a result of the rejection of the JCPOA.

Skeptics doubtless would bristle at this idea, stridently noting that they only wish to “improve” the deal, not destroy it.  But, considering that AIPAC argued that the JCPOA could only be a good deal if it required “Iran to dismantle its nuclear infrastructure and relinquish its uranium stockpile,”[1] it is unlikely that this is the kind of condition Iran could plausibly accept.  Other skeptics have also argued that the provision of sanctions relief is itself a problem because of the potential for destabilizing activities and terrorism being funded by Iran.  Taken together, the “improved” nuclear deal would require a wholesale rewrite, with terms involving the termination of Iran’s nuclear program and absence of sanctions relief until it has fully resolved any outstanding concerns with its regional foreign policy.

Such a deal would, of course, be to the U.S. advantage.  But, it is also thoroughly implausible and it is doubtful that U.S. partners (aside from Israel) would sign on to such a construct because it has no hope of being accepted by Iran.  It is worth noting, for example, that Russia and China have long maintained that Iran has a right under the NPT to an enrichment program and that during negotiations, Russia indicated that it would accept no language – even if Iran was amenable – that appeared to abridge this NPT right.  And, it is also worth noting that – though some have tried to suggest that it is merely Administration spin – the Ambassadors of the European-3 countries (France, Germany and the UK) have all apparently made it quite clear to interested Congressional interlocutors that they see no chance of resuming talks if Congress torpedoes the JCPOA.[2]

 

Radical, dramatic escalation of sanctions pressure would be necessary

It is unfortunate that the international community would probably not join willingly in an escalation of sanctions pressure against Iran because, if there is any hope of using sanctions to force Iranian nuclear capitulation, then it would have to come on the back of a such a massive escalation.

To be clear, I do not believe that more sanctions would force Iran to jettison its nuclear program.  Sensible, respected skeptics of the nuclear deal have agreed with this general conclusion (such as Juan Zarate during testimony before the Senate Foreign Relations Committee on July 30[3]).  Moreover, the history of the Iranian nuclear experience is that when faced with new sanctions, Iran responds with its own escalation by installing thousands of new centrifuges.

But, assuming that sanctions could create such a scenario, then it certainly would not be with the tools in place to date.  Iran’s economy has rebounded from its recession in 2012-2013 that sanctions helped to create.  Iran’s economy is still weak and it requires comprehensive sanctions relief to truly recover.  But, this also suggests that keeping the sanctions at status quo levels would also not be enough to tip Iran back into crisis and certainly sufficient crisis so as to get Iran to go even farther past the redlines established for the negotiation by the Supreme Leader.

But, without international support, this would not be achievable.  The best that could be hoped for is spotty cooperation and compliance, and the use of penalties to punish those who transgress U.S. sanctions.  But, let us not forget that the imposition of sanctions penalties is itself an admission of failure: failure of the deterrence and prevention strategy that sanctions are actually meant to effectuate.  For penalties to be imposed, it means that the bad guys have gotten the materials, technology or money that was to be denied by sanctions.  Penalties being imposed are not victories – they are compensation for the victims.

Penalties also hurt the United States, both in short-term and long-term ways.  First and foremost, the imposition of sanctions against particular targets means that they cannot do business in the United States.  This does not matter when Iranian individuals and entities are involved.  But, it does when major international banks or corporations are.  Denying access to these institutions also means that U.S. persons cannot do business with them, harming U.S. economic competitiveness.  The argument that our economy is so large that it can sustain such damage only works if sanctions are imposed in a small-scale fashion.  But, if the United States were to threaten the imposition of sanctions on major foreign financial institutions – and go beyond penalties to the punishment of cutting off correspondent banking relationships, as several statutes require – we could find our own economic position suffering. Imagine, for example, a decision to impose such sanctions on major Chinese banks should China refuse to make significant reductions in its purchases of Iranian oil once the sanctions mandating reductions come back into place.   It is not just the Chinese businesses that would suffer but anyone who does business in China.  China is the U.S. second largest trading partner.  Combined with India, Japan and Korea (the top four importers of Iranian oil), and those we would have to threaten with sanctions account for a quarter of all U.S. international trade (according to June 2015 year-to-date data from the Census Bureau).[4]

Long-term, another demonstration of the risk of reliance on the U.S.-led international financial system would further incentivize moves away from it.  I have written about this extensively and the risk both to the U.S. economy and to the ability of the United States to use sanctions as a foreign policy tool.[5]  I’m not alone: JCPOA skeptics Mark Dubowitz and Jonathan Schanzer similarly warned of the risk of alternative financial systems emerging and the threat this would pose to the United States from both financial and national security perspectives.[6]  It is this threat that Secretary Kerry was referencing in a recent interview when he said that the use of the U.S. dollar as a reserve currency was at risk if the Iran deal were to be jettisoned.

 

And Iran is hardly likely to sit around waiting for more pressure

Even more fundamentally, AIPAC misses the boat when it suggests that Iran’s response to U.S. rejection of the JCPOA will be placid understanding and even continuation of its steps under the JCPOA (!) rather than an escalation of its nuclear program.  To be sure, Iran would seek to take advantage of the situation by holding steady with its nuclear activities provided the JPOA’s sanctions relief would remain in place; this would further its ability to sow dissention in the international community and poison the U.S. ability to get partners for maintaining, much less escalating, sanctions.

But, the Iran Nuclear Agreement Review Act (INARA) would ensure that is impossible.  The terms of that Act require the President to stop providing sanctions relief under the JPOA in addition to not moving forward with relief under the JCPOA.  This means that oil sanctions would once again be fully in-force, with significant reductions mandated every 180 days.  International oil prices suggest that such reductions would be possible without creating a market crisis, but it strains credulity to believe that China and India would undertake 20% reductions of their imports of Iranian crude oil in the aftermath of a U.S.-aborted nuclear deal.  And then, a real U.S. choice would be needed whether to impose sanctions on associated banks and oil companies – which would ironically free them to engage in however much oil they might wish to purchase from Iran, knowing that they face no further penalty – or to pass on such sanctions at the risk of hollowing out the sanctions regime.

In response to concerns that the resumption of this sanctions campaign would also prompt Iran to start installing thousands of centrifuges, enriching tons of uranium, and completing the Arak reactor (capable of producing 1-2 weapons worth of weapons-grade plutonium per year), some outside observers have suggested either that the President could use his “prosecutorial discretion” to not enforce the law vigorously or that he could rewrite U.S. law unilaterally with Executive Orders to keep providing sanctions relief.  No one in the Administration has made such a claim and it is doubtful they would, as this could prompt legal challenge and constitutional crisis…from which Iran would surely benefit.  Moreover, it is questionable logic to assert that a better deal is achievable while also arguing that, in order to keep the nuclear situation from escalating, the United States ought to hold back on sanctions enforcement.

 

Boiling things down

AIPAC is probably right that the international sanctions regime will not collapse on Day 1 if the JCPOA dies in the halls of the U.S. Congress.  Iran will have to evaluate what it chooses to do in response, as will U.S. partners.  But, at best, the sanctions regime will be mauled, having lost its credibility in the international community and place as part of a diplomatic endeavor.  The proposed alternative deals suggest either that the Iranians are just waiting to accept worse terms after the U.S. fumbles the ball or that far more pressure would be needed than the international market would likely bear.  Having lost its international credibility, the United States will be in no place to secure such international pressure on a voluntary basis and will face some important, unenviable real world problems as a result.  Iran will reap the rewards of U.S. diplomatic failure, either waiting out the sanctions campaign in its death throes or expanding its nuclear program to ensure that any future negotiation starts with a better Iranian bottom-line.  Either way, the United States (and its partners at greatest risk of an Iranian nuclear weapon) would be worse off.

 

[1]http://www.aipac.org/~/media/Publications/Policy%20and%20Politics/AIPAC%20Analyses/One%20Pagers/Negotiating%20with%20Iran_5%20Requirements_Cover%20Sheet.pdf

[2] https://www.washingtonpost.com/world/national-security/ambassadors-press-case-for-iran-nuclear-deal-in-congress/2015/08/06/9f46cae8-3c70-11e5-b3ac-8a79bc44e5e2_story.html

[3] https://www.washingtonpost.com/world/national-security/the-limitations-of-sanctions-on-iran/2015/08/03/3be62170-37a1-11e5-9739-170df8af8eb9_story.html

[4] https://www.census.gov/foreign-trade/statistics/highlights/top/top1506yr.html

[5] https://gallery.mailchimp.com/20fec43d5e4f6bc717201530a/files/Issue_Brief_The_Future_of_Economic_Sanctions_in_a_Global_Economy_May_2015.pdf

[6] http://www.wsj.com/articles/mark-dubowitz-and-jonathan-schanzer-the-fragility-of-the-global-financial-order-1425423520

Richard Nephew is the Program Director, Economic Statecraft, Sanctions and Energy Markets, for the Center on Global Energy Policy. Nephew joined the Center February 1, 2015 directly from his role as Principal Deputy Coordinator for Sanctions Policy at the Department of State, a position he held since February 2013. Nephew also served as the lead sanctions expert for the U.S. team negotiating with Iran. From May 2011 to January 2013 Nephew served as the Director for Iran on the National Security Staff where he was responsible for managing a period of intense expansion of U.S. sanctions on Iran. Earlier in his career he served in the Bureau of International Security and Nonproliferation at the State Department and in the Office of Nonproliferation and International Security at the Department of Energy. Nephew holds a Masters in Security Policy Studies and a Bachelors in International Affairs, both from The George Washington University.

When President Barack Obama signed the Trade Promotion Authority (TPA) bill last week, a precedent was set. The bill included a provision that “…requires the U.S. Trade Representative to discourage European Union countries from boycotting ‘Israel or persons doing business in Israel or Israeli-controlled territories’ during free-trade negotiations between the U.S. and the EU.”

In effect, this amendment treated Israeli settlements, for the first time in American history, as being part of Israel and therefore deserving the same protection. It was a small step; there is no enforcement mechanism in the bill.

However, it cracked the dam and opened the potential for a flood. This small amendment was a first step in reversing long-standing American opposition to the settlements, and its support for the two-state solution. Read more at Talking Points Memo

 

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.

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.