There’s been a lot of debate over the Israel Anti-Boycott Act. The ACLU—the standard-bearer of all matters related to civil rights and liberties—says unequivocally that the bill violates the First Amendment right to free speech. Others, including some progressives who one would normally expect to defer to the ACLU’s judgment, insist it does not. All of these arguments deal with the hypothetical. To understand the potential impact of the bill, it is illustrative to move from the hypothetical to the actual. I offer myself as a case study.

As a liberal Zionist, I fiercely defend Israel’s right to exist, its right to security, and its legitimacy as a member of the community of nations. I also fiercely care about what kind of state Israel exists as and the values it embodies. I want to see Israel flourish as a liberal democracy that fully implements the rule of law, adheres to international norms, and respects the civil and human rights of all peoples living under its authority.

For all of these reasons, I vehemently oppose Israel’s now 50-year occupation of the West Bank, Gaza, and East Jerusalem, and the odious policies that undergird it. And for all of these reasons, for decades I have advocated in favor of actions—by individuals, businesses, governments, and international bodies—that support Israel by challenging Israel’s ever-expanding settlement enterprise and ever-deepening occupation.

As for activism targeting Israel, I do not personally advocate boycotts, divestment, and sanctions (BDS) against Israel itself, but I defend the right of others to do so. Regardless of why people advocate BDS—and I know from personal experience that it is a convenient lie to suggest that only those who are motivated by hatred of Israel or anti-Semitism engage in BDS—it is a fallacy to suggest that BDS is ipso facto an illegitimate form of protest. Boycotts are protected political speech and are used by Americans—and Israelis—every day to express their beliefs on a wide range of issues. That said, I personally advocate focusing activism on settlements and on the occupation. It is in many ways an arbitrary, manufactured distinction—the government of Israel is inarguably responsible for settlements and for the occupation policies to which I object. But I believe that as a tactic focusing activism this way is far more effective than BDS, making clear that the objective is to change Israeli policies, rather than, as some critics suggest with respect to the global BDS Movement, to undermine Israel’s existence.

In practice, this means that for years I have been a prominent voice both arguing against BDS targeting Israel, and calling for boycotts of settlements products, for truthful labeling of products manufactured in settlements, and for boycott and divestment actions targeting the occupation. I have articulated these views in numerous articles, analyses, and reports. I have spoken on university campuses and in synagogues, and lobbied Congress. I even testified at a special session of the United Nations Security Council.

I have also long urged groups like the UN and EU to promote respect for international law, according to which all settlements are illegal. When the UN and EU have adopted resolutions or decisions reminding nations and companies of the legal obligation to differentiate between sovereign Israel and the occupied territories, and to refrain from activities that support settlements, I have enthusiastically welcomed, endorsed, and echoed these positions—not at the behest of either body, but because these actions align with my own deeply held political views and, indeed, are what I have been calling on these bodies to do all along.

Read the rest of the article on Lobelog.

An Israeli outpost in occupied East Jerusalem (Shutterstock)

On Monday the Knesset passed a bill that would legalize settlement outposts in the occupied West Bank that were built on privately owned Palestinian land. The law can now be used to raise the status of outposts all over the West Bank to those of settlements that are legal under Israeli law (all settlements beyond the Green Line are illegal according to international law). That would be a tremendous setback to the already dimming prospects of an Israeli withdrawal from the West Bank, and to the two-state solution.

The law has already been challenged in court by Israeli human rights groups. Countries including the United Kingdom, France, Germany, Jordan and Turkey have all condemned the law, as has the United Nations. American Jewish groups, including centrist groups like the Anti-Defamation League and American Jewish Committee, have also expressed their objections to this law.

In light of the law’s passage, FMEP  is updating our policy brief about the “Formalization” or “Regularization” Law.

What is the “formalization law”?

The law allows the Israeli government to retroactively legalize outposts built in the West Bank if the outpost was set up on privately owned Palestinian land with government involvement, but was not an officially sanctioned settlement. Palestinian owners would not be able to retrieve their land, but would be entitled to annual financial compensation payments at 125% of the value of the land as determined by the Israeli government.

What are the specific problems with the bill?

Israeli Attorney General, Avichai Mendelblit, stated that the bill is inconsistent with Israeli law, violates international law, and seeks to undermine the status of the High Court of Israel. It is an attempt to legalize a procedure that also violates Israeli jurisprudence and precedent since the beginning of the occupation that has agreed that the State cannot simply confiscate privately owned Palestinian land for settlements. Forcing landowners to accept a payment in exchange does not mitigate this, as the Court has repeatedly confirmed. Mandelblit has since repeated that he would not defend this law against legal challenge.

What is the status of the bill now?

The bill is now the law of the land. The legal challenges it faces are considerable, and most observers believe the law will not withstand those challenges. Still, until Israel’s High Court of Justice makes a ruling on the case, the law is in place and we cannot be absolutely certain that the law will be struck down by the Court. In the meantime, the law will have an effect on the ground. There are currently 16 outposts and settlements that have demolition orders against them due to claims of private Palestinian ownership of their lands. The law will freeze those orders for one year. Given the difficulty of getting such orders implemented (the Amona outpost was taken down just last week, after first being deemed illegal by israel’s High Court in 2006), setting the clock back on them adds a new layer of complication to an already difficult process. Similarly, the very passage of this law encourages settlers to set up outposts with even greater impunity. By the time the Court rules, even if it does strike the law down, there could be many more outposts on privately owned Palestinian land.

For more background on the law, see our original policy brief here.

An Israeli outpost in occupied East Jerusalem (Shutterstock)

On Sunday the Israeli cabinet unanimously passed a bill that would legalize settlement outposts in the occupied West Bank that were built on privately owned Palestinian land. If passed by the Knesset, the law could potentially be used to raise the status of many outposts all over the West Bank to those of settlements that are legal under Israeli law (all settlements beyond the Green Line are illegal according to international law). That would be a tremendous setback to the already dimming prospects of an Israeli withdrawal from the West Bank, and to the two-state solution.

The Obama Administration made clear its opposition to the bill. “This would represent an unprecedented and troubling step that’s inconsistent with prior Israeli legal opinion and also break long-standing policy of not building on private Palestinian land,” State Department Spokeswoman Elizabeth Trudeau said. “We hope it doesn’t become law.”

What is the “formalization law”?

The bill in question is referred to colloquially as the “formalization law.” It would allow the Israeli government to retroactively legalize outposts built in the West Bank if the outpost was set up on privately owned Palestinian land with government involvement, but was not an officially sanctioned settlement. Palestinian owners would not be able to retrieve their land, but would be entitled to financial compensation at a value determined by the Israeli government.

How does this change the status quo?

Israel has retroactively legalized specific outposts many times in the past. This law, however, would allow the Israeli government to retroactively legalize an outpost quickly, preventing the Israeli judicial system from compelling the state to dismantle the outpost. While this law is not solely a response to the current dispute over the Amona outpost, that dispute has accelerated the motion on this bill.

What are the specific problems with the bill?

Israeli Attorney General, Avichai Mendelblit, stated that the bill is inconsistent with Israel’s rule of law, violates international law, and seeks to undermine the status of the High Court of Israel. It is an attempt to legalize a procedure that also violates Israeli jurisprudence and precedent since the beginning of the occupation that has agreed that the State cannot simply confiscate privately owned Palestinian land for settlements. Forcing landowners to accept a payment in exchange does not mitigate this, as the Court has repeatedly confirmed.

What is the status of the bill now?

The approval of the bill by the ministerial committee means that it will come to the Knesset floor for readings, debates and, eventually, votes. It must pass three readings in the Knesset to become law.

Is the bill controversial, or will it pass easily?

The bill is being pushed hard by the religious nationalist Jewish Home Party and its leading ministers, Naftali Bennett and Ayelet Shaked (ironically, Shaked, the Minister of Justice, is opposed in this effort by the people in her own ministry, who agree with the Attorney General). Prime Minister Benjamin Netanyahu seems to recognize that the bill is going to damage Israel in the international community and could provoke action from the outgoing Obama administration. Still, he has yielded to pressure from the settler movement and approved the bill along with the rest of the ministers who voted to bring the bill to the Knesset. Netanyahu objected mostly to the timing, hoping he could delay both this bill and the High Court’s decision on the Amona outpost until after President Obama left office, but he failed on both counts.

There is no doubt that the opposition, led by the Yesh Atid and Zionist Union parties will oppose this bill. Much will depend on whether lawmakers from Likud and other center-right parties join them. The fact that the Attorney General opposes the bill is very important, and may very swell sway enough Knesset members to oppose it. But with both Bennett and Netanyahu, as well as, quite likely, Defense Minister Avigdor Liberman supporting the bill, political pressure on coalition MKs will be intense. One faction, the Kulanu party which is part of Netanyahu’s governing coalition, had been opposed to the bill, but relented under pressure from Netanyahu, who did not wish to see his coalition fracture over this issue.

The bill has now passed its first reading in the Knesset. Two more readings are required for the bill to become law. The bill is not being submitted for a second reading yet. There is time for friends of Israel to try to convince the Prime Minister and the rest of his cabinet not to move forward with this bill. But the Jewish Home faction is sure to press for the bill to move forward, so the time to act is now.

The United Nations Human Rights Council’s (UNHRC) report on last summer’s fighting between Israel and Hamas came out on June 15. Before the ink on it was even dry, the Israeli government was condemning it as biased, and accusing the UN of trying to prevent Israel from defending itself.

The allegations, both against Israel and by Israel against the report, are very familiar and very serious. We need to consider soberly the points raised by the UNHRC report as well as the rebuttals Israel has made.

Is there bias regarding Israel at the United Nations Human Rights Council?

It would be wholly disingenuous of anyone to deny that Israel has a legitimate gripe about its treatment at the UNHRC. The Council is, as one would expect, a highly politicized body. The issue of human rights is particularly easy to politicize; any country can be called out for human rights violations. Depending on the point of view of the accuser, it might be the United States, Saudi Arabia, Cuba, Venezuela, Kenya, Russia, China, Bolivia, or the United Arab Emirates that seem undeserving of the seats they currently hold on the Council.

That being said, Israel is the only country that “merits” a permanent spot on the UNHRC’s agenda and Israel has been condemned there far more often than any other single country. There is no calculus that can justify singling Israel out in such a manner. Worse, this singling out of Israel undermines the Council’s legitimacy when it tries to exercise its mandate in Israel, the West Bank and Gaza.

Some argue, with good reason, that this type of bias against Israel is a sort of “balance” to the near-immunity Israel gets from the Security Council thanks to the United States’ repeated use of its veto power in that body. It is certainly true that both the use and threat of the US veto has prevented dozens of Security Council resolutions. But rather than balance things for Israel, this only exacerbates the problem.

What Israel needs, and what most Israelis want, is for Israel to be treated like any other country, and particularly like other Western democracies. The occupation is the major obstacle to this, of course, but Israel is done no favors by this tit for tat game at the UN. The HRC should judge and treat Israel no differently from any other country. It should remove Israel from unique status in the Council’s agenda. By the same token, Israel must be held accountable for its actions, especially considering the fact that it has held millions of people without basic rights and freedoms for nearly half a century.

The United States says the process for selecting the investigative committee was flawed. True?

The Council appointed the investigators. The one real expert on International Humanitarian Law (IHL) was the original head of the committee, William Schabas. He was a controversial figure and, while the issue over which he was forced to resign (he had done some minor consulting work for the Palestine Liberation Organization for which he was paid a small fee) was very thin, he had stated two years earlier that he believed that Israeli Prime Minister Benjamin Netanyahu should be “in the dock of an international court.”

In truth, Schabas had also expressed concern about Israel’s survival and very likely could have investigated the Gaza war impartially. However, it should have been obvious from the beginning that Schabas was vulnerable and would provide an easy target for the United States and Israel to attack the commission’s work. The remaining commission members, while fine jurists, were not specifically IHL experts. While the report adheres religiously to IHL and was as well-documented as was possible, these realities left the report vulnerable to attacks on its credibility.

So was the report credible?

The report is not flawless; it never could be, given the fact that neither Israel nor Hamas cooperated with the investigation. The report, for example, places blame on Israeli commanders who were forbidden by their government to testify as to what information they did or did not have regarding conditions on the ground in Gaza. The conclusions, based on the information the investigators were granted, were strong, but the absence of the testimonies of Israeli commanders obviously compromises the conclusions.

However, given these limitations, the report has a great deal of credibility. Conclusions were supported by the evidence, and despite the reticence of Israel and Hamas, the investigators had enough evidence to reach credible conclusions. Accusations by Israel of bias are based on the history of the UNHRC or other factors, but not on the actual contents of the report. When one reads the full report, it is impossible to conclude that there is bias present. Hamas’ crimes are treated with all the severity they deserve. The Palestinian Authority, which was not a direct antagonist in the fighting and which was the only body to cooperate with the investigation is also taken to task for having “consistently failed to prosecute” people under its jurisdiction who have committed war crimes.

The report does not state that war crimes definitely occurred, but it lays out evidence of them having been committed by both Israel and Palestinian armed groups, including Hamas. Israel’s complaint that since those are designated terrorist groups they should not be judged by the same standard as Israel is simply not consistent with the law. Under IHL, combatants, whether state actors or militant groups, are expected to adhere to the same rules. When Hamas fires rockets they cannot aim with any precision, they fail to meet the standard of IHL, just as Israel does when it uses highly imprecise artillery. Part of Israel’s discomfort at this reality surely is that it, unlike any Palestinian group, has a more than ample supply of much more precise weapons. The report also raises serious and disturbing questions about why the level of civilian casualties and damage in Gaza was so high when Israel did use weapons that are more precise.

The report discomfits Israeli leaders even more by suggesting that there are serious questions of policy, including the policy of the civilian government in the conduct of the war raised by the Gaza war. However, Israel does itself no favors by trying to bury the report rather than confront these questions. If the conduct of this war was defensible, Israel is more than capable of working with its allies to establish that fact in a transparent and credible investigation. That Israel chooses not to do so and that the United States helps it avoid such important questions only diminishes Israel’s standing in the world, and continues the erosion of the values that most Israelis hold dear.

What should happen now?

The United States has blocked any possibility of the Security Council acting on the report. That is a terrible mistake. The Council need not accept the report whole cloth, but there are other options.

Israel, as a sovereign state, has a right and responsibility to protect its citizens. Israeli and Palestinians civilians, no matter the grievances that exist, are entitled to the protection of IHL equally. As the report reflects, Hamas and other Palestinian groups stated their intention to target Israeli civilians, and the weapons they used could not be controlled to offer civilians any protection. In the event, Israeli civilians were clearly under fire.

In Gaza, the civilian impact was massive and tragic. The report raises many questions about Israeli rules of engagement and strongly suggests that these fall well short of IHL requirements. However, while acknowledging that Gaza is very small and densely populated, the report also strongly suggests that there were more than a few incidents where Hamas used civilian areas to launch attacks at Israel as a tactic, not out of sheer necessity.

Military forces fighting guerilla groups in urban areas are increasingly characterizing warfare, not only in Israel and Gaza but also around the world. The questions raised in the Gaza war, therefore, are not only important for accountability there, but to begin to ask the question of how countries should defend their citizens against such tactics. Can there be a clearer responsibility for the Security Council than to ask and answer that question?

Dealing with that question could be a small bit of good that comes out of the horrific suffering in Gaza that is still going on today. The preponderance of reports from NGOs in Israel and internationally as well as this latest piece, strongly suggest that Israel and Hamas both committed war crimes. Simply moving on and burying this report will only ensure it will happen again. An investigation that involves Israel, the United States and the international community can be seen as credible, and can begin to address these questions.

Israel, and any other country involved in asymmetrical warfare needs a clearer set of rules for what it can do as well as for what it cannot. IHL was written at a time where regular militaries fighting each other defined most warfare. That is no longer the case. Consideration of modern conflicts as well as monitoring and enforcement mechanisms is a crucial next step. Gaza is an opportunity to take that step. We should not let it be buried.

Palestine has been on a marathon treaty-signing binge since the United Nations General Assembly recognized it as an Observer State in November 2012. In the past year, it has joined dozens of international agreements including the Geneva Conventions, seven human rights covenants and conventions, and most recently the International Criminal Court.

No one thinks this treaty-accession spree is motivated by the PA’s enthusiastic commitment to human rights and international humanitarian law. The PA’s current approach to international instruments and institutions is join anything and everything a state can join. In this sense, human rights treaties are yet another political/diplomatic tool that Mahmoud Abbas is wielding against Israel. And though signing these treaties has no legal effect on Israel – which, in any case, is already a member of most of them and legally obligated to respect them – Israel responded with predictable outrage that, treaty after treaty, Palestine was being let into the “states-only” club.

For Palestinian human rights activists, this situation is a win-win. They view the fight for self-determination as central to the human rights struggle. So to the extent that joining international treaties hastens the end of Israel’s occupation, this is to be welcomed. Yet whether or not this strategy of collecting “symbols of statehood” in fact advances actual independent statehood on the ground, the treaties themselves are now legally binding on Palestine. This is an important achievement for human rights.

Activists note proudly that Palestine joined every single human rights treaty without filing a single reservation. This is extremely rare; indeed in our part of the world, I believe it is unprecedented.

Israeli violations of Palestinians human rights receive the lion’s share of the international media coverage. Yet Palestinians are also victims of severe violations of their rights by Palestinian authorities, including torture, extra-judicial killings, denial of due process and suppression of free speech and freedom of assembly (the Palestinian Independent Commission for Human Rights conducts comprehensive monitoring of these and other issues).

Of course joining international treaties is no guarantee of respect for rights. Many countries with horrendous human rights records are party to human rights conventions. But the treaties are significant as a new tool to be employed by all those working to promote respect for human rights by the PA and by Hamas authorities as well (the treaties apply to the territory of Palestine, which certainly includes both the West Bank and the Gaza Strip).

A spokesperson for the UN High Commissioner for Human Rights noted the significance last May when Palestine joined five human rights conventions: “Palestine is now bound, as of today, for five treaties and, by July 2nd, seven treaties covering many major issues. And they will therefore, like other states, now be very closely scrutinised in whether they implement those treaties. Those treaties are hard law and therefore it gives a lot of extra ammunition to civil society organizations, the media, the UN and many others to help Palestine ensure that the human rights of Palestinians in the occupied territories, in the West Bank, in Gaza, are upheld.

How can the treaties actually help to promote human rights on the ground? Each human rights treaty has a committee of experts to evaluate compliance. Each state party to the treaty submits a periodic report to this committee detailing policies and practices according to the treaty obligations. The committee of experts reviews this report, along with shadow reports from non-governmental organizations and other institutions, and then conducts a dialogue with state representatives and issues concluding recommendations. Each stage of this process is an opportunity for human rights groups to raise awareness and press government agencies to better comply with their legal obligations.

Palestine has already begun this process. This year, they are reportedly expected to submit their first periodic report to four treaty bodies: those monitoring the Covenant on Civil and Political Rights, the Convention Against Torture, the Convention for the Elimination of Racial Discrimination and the Convention on Discrimination Against Women.

Next year, Palestine is to report on three additional treaties, regarding social and economic rights, children’s rights and disability rights

I doubt they will manage to stick to this schedule. It is an enormous task to prepare comprehensive reports for seven major human rights treaties in two years. However, the conversations have already begun within the various ministries and institutions. These conversations are themselves important advocacy opportunities for improving respect for human rights.

Abbas’ strategy of treaty-accession may or may not bring Palestine closer to independence. It will be no small achievement, however if the by-product of these efforts is greater domestic respect for human rights.

Jessica Montell served 13 years as Executive Director of B’Tselem: the Israeli Information Center for Human Rights in the Occupied Territories. She is now a visiting research fellow at the Hebrew University, Faculty of Law. Follow her on Twitter @JessicaMontell.

The views expressed on the Foundation for Middle East Peace Blog are those of the authors and do not necessarily reflect the views or positions of the Foundation.

Palestinian representative to the UN, Riyad Mansour

The Palestinian Authority (PA) has now moved a step closer to making good on its threat to go to the International Criminal Court (ICC) and bring charges against Israel. There is little doubt that this was a move Palestinian President Mahmoud Abbas tried desperately to avoid. In the end, he was forced to do it by a combination of U.S.-Israeli rejectionism, Palestinian desperation to do something to try to end Israel’s occupation, and his own many missteps.

Abbas signed on to 18 international agreements after the quixotic attempt to pass a resolution at the United Nations Security Council (UNSC) predictably failed. Among them was the 1998 Rome Statute, which established the ICC and took formal effect in 2002. This is the step that the U.S. and Israel have warned Abbas against most strongly. Among all the “unilateral steps” the Palestinians could take (which, one should note, is no more “unilateral” than any number of actions taken by Israel on a routine basis), this is the one Israel worries about most. Read more at LobeLog