Over the weekend new broke that the Trump Administration was closing the PLO mission in Washington, DC. To help people understand the laws that led up to this crisis, FMEP has compiled the relevant laws, below.
1. The 1987 Law that Started it All
In 1987, Congress passed legislation barring the PLO from operating in the United States (Sec. 1003 of PL 100-204; aka 22 USC 5202: Prohibitions regarding PLO). That section states:
It shall be unlawful, if the purpose be to further the interests of the Palestine Liberation Organization or any of its constituent groups, any successor to any of those, or any agents thereof, on or after the effective date of this chapter-
(1) to receive anything of value except informational material from the PLO or any of its constituent groups, any successor thereto, or any agents thereof;
(2) to expend funds from the PLO or any of its constituent groups, any successor thereto, or any agents thereof; or
(3) notwithstanding any provision of law to the contrary, to establish or maintain an office, headquarters, premises, or other facilities or establishments within the jurisdiction of the United States at the behest or direction of, or with funds provided by the Palestine Liberation Organization or any of its constituent groups, any successor to any of those, or any agents thereof.
When President Ronald Reagan signed PL 100-204 into law on Dec. 27, 1987, he issued a signing statement declaring Sec. 1003 unconstitutional. He wrote:
Section 1003 of the Act prohibits the establishment anywhere within the jurisdiction of the United States of an office “to further the interests of” the Palestine Liberation Organization. The effect of this provision is to prohibit diplomatic contact with the PLO. I have no intention of establishing diplomatic relations with the PLO. However, the right to decide the kind of foreign relations, if any, the United States will maintain is encompassed by the President’s authority under the Constitution, including the express grant of authority in Article II, Section 3, to receive ambassadors. I am signing the Act, therefore, only because I have no intention of establishing diplomatic relations with the PLO, as a consequence of which no actual constitutional conflict is created by this provision.
2. The Middle East Peace Facilitation Act (1993-1997)
After the signing of the Olso Accords, Congress chose not to repeal 1003 of PL 100-204 (or any other anti-PLO legislation). It instead passed legislation giving the president authority to temporarily suspend key anti-PLO laws. That legislation was called the Middle East Peace Facilitation Act, PL 103-125, signed into law Oct. 28, 1993. This law permitted the establishment of the PLO mission in Washington in 1994.
Congress let MEFPA expire in 1997.
3. The Era of the National Security Waiver (1997-2011)
In 1997, Congress replaced the broad suspension authority granted to the president in MEPFA with a waiver provision – specific to 1003 of PL 100-204 – quietly inserted into the FY98 Foreign Operations Appropriations Act (Sec. 539d of PL 105–118, signed into law on Nov. 26, 1997). This provision read:
(1) The President may waive the provisions of section 1003 of Public Law 100–204 if the President determines and certifies in writing to the Speaker of the House of Representatives and the President pro tempore of the Senate that it is important to the national security interests of the United States.
(2) PERIOD OF APPLICATION OF WAIVER.—Any waiver pursuant to paragraph (1) shall be effective for no more than a period of six months at a time and shall not apply beyond twelve months after enactment of this Act.
Congress included a similar waiver in annual Foreign Operations legislation every year from 1997-2011.
4. Conditioning the Waiver on Palestinian Actions at the UN
In 2011, the Palestinians were admitted as members in UNESCO. In response, in the FY12 Foreign Operations Appropriations Act (PL 112–74, signed into law on Dec. 23, 2011), Congress deleted the national security waiver of the 1987 law, and replaced it with a waiver conditioned on the president certifying that the Palestinians not being admitted to any additional UN agencies. According to the provision, if the president cannot make the certification, he must wait at least 90 days (during which it would be illegal for the mission to remain open), and then he can waive the 1987 ban if, and only if, he can certify that the Palestinians have entered into “direct and meaningful negotiation with Israel.”
The provision – Sec. 7086(b) of that bill – reads in full:
(1) The President may waive the provisions of section 1003 of Public Law 100–204 if the President determines and certifies in writing to the Speaker of the House of Representatives, the President pro tempore of the Senate, and the Committees on Appropriations that the Palestinians have not, after the date of enactment of this Act, obtained in the United Nations or any specialized agency thereof the same standing as member states or full membership as a state outside an agreement negotiated between Israel and the Palestinians.
(2) Not less than 90 days after the President is unable to make the certification pursuant to subsection (b)(1), the President may waive section 1003 of Public Law 100–204 if the President determines and certifies in writing to the Speaker of the House of Representatives, the President pro tempore of the Senate, and the Committees on Appropriations that the Palestinians have entered into direct and meaningful negotiation with Israel: Provided, That any waiver of the provisions of section 1003 of Public Law 100–204 under paragraph (1) of this subsection or under previous provisions of law must expire before the waiver under the preceding sentence may be exercised.
(3) Any waiver pursuant to this subsection shall be effective for no more than a period of 6 months at a time and shall not apply beyond 12 months after the enactment of this Act.
At the time it was being considered and passed, this new provision was highlighted as ” ********IMPORTANT************” and explained in detail, repeatedly, in my weekly Legislative Round-Up, including in the editions published July 29, 2011 and October 4, 2011.
5. Conditioning the Waiver on Palestinian Actions at the UN + on Palestinian Actions at the ICC
In 2015, the Palestinians joined the International Criminal Court (ICC), sparking consternation and concern in Israel and among supporters of Israel in Congress. In response, in the FY16 Consolidated Appropriations Bill (PL 114–113, signed into law Dec. 18, 2015) [which included the FY16 Foreign Operations Appropriations Act], Congress imposed an additional condition that the president must satisfy in order to waive the 1987 law, requiring that he certify that the Palestinians are not promoting, supporting, or endorsing action against Israel at the ICC. Like the previous UN-only version of the waiver language, according to the provision, if the president cannot make either certification (regarding the UN or the ICC), he must wait at least 90 days (during which it would be illegal for the mission to remain open), and then he can waive the 1987 ban if, and only if, he can certify that the Palestinians have entered into “direct and meaningful negotiation with Israel.”
The relevant provision, Sec. 7041(j)(2)(B), reads in full:
(i) The President may waive the provisions of section 1003 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (Public Law 100–204) if the President determines and certifies in writing to the Speaker of the House of Representatives, the President pro tempore of the Senate, and the appropriate congressional committees that the Palestinians have not, after the date of enactment of this Act—
(I) obtained in the United Nations or any specialized agency thereof the same standing as member states or full membership as a state outside an agreement negotiated between Israel and the Palestinians; and
(II) taken any action with respect to the ICC that is intended to influence a determination by the ICC to initiate a judicially authorized investigation, or to actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.
(ii) Not less than 90 days after the President is unable to make the certification pursuant to clause (i) of this subparagraph, the President may waive section 1003 of Public Law 100–204 if the President determines and certifies in writing to the Speaker of the House of Representatives, the President pro tempore of the Senate, and the Committees on Appropriations that the Palestinians have entered into direct and meaningful negotiations with Israel: Provided, That any waiver of the provisions of section 1003 of Public Law 100–204 under clause (i) of this subparagraph or under previous provisions of law must expire before the waiver under the preceding sentence may be exercised.
(iii) Any waiver pursuant to this subparagraph shall be effective for no more than a period of 6 months at a time and shall not apply beyond 12 months after the enactment of this Act.
At the time it was being considered and passed, this new provision was highlighted as ” ********IMPORTANT************” and explained in detail, repeatedly, in my weekly Legislative Round-Up, including in the editions published June 5, 2015, July 17, 2015, Dec. 23, 2015, and Dec, 31, 2015.
FMEP’s President Lara Friedman joined Churches for Middle East Peace for a webinar explaining the “Israel Anti-Boycott Act,” a piece of legislation moving in the Senate (S 720) and the House of Representatives (HR 1697).
In a recent op-ed, “The Israel Anti-Boycott Act is an Act of Political Persecution” Lara explained how the bill, if passed, would impact her. She writes, “a plain-English reading of the law makes clear that the impact is far wider, seeking to silence, deter, and punish U.S. persons, like me, for exercising the basic right to free political speech in calling for and supporting policies that challenge settlements and occupation.”
You can watch the webinar below, and click here for additional resources.
In late October, Israeli Prime Minister Benjamin Netanyahu told a joint meeting of the Knesset foreign Affairs and Defense Committees that “at this time we need to control all of the territory (of the West Bank) for the foreseeable future.” He echoed this during his talk at the Center for American Progress on November 10, when he insisted that, despite his stated support for a two-state solution, he saw no alternative to a permanent Israeli military presence in the Jordan Valley.
These remarks fall within a particular set of parameters of discourse around the Israeli-Palestinian conflict. In this view, Israel is being asked to make a concession by even considering an end to its now 48-year old occupation. In this view, Palestinian liberty is not a self-evident, inalienable right, but an Israeli gift.
This view is not only that of the Israeli right, but of the majority of politicians in both Jerusalem and Washington. Netanyahu is merely following those parameters to their logical conclusion: that the occupation lives until such time as Israel feels it should end. The fact that millions of Palestinians live under military rule may disturb many Israelis, but it does not create a political imperative to change that state of affairs.
Netanyahu recognizes the absence of any international agenda for a peace process, much less any real pressure to get back onto the long and winding road toward a sustainable solution. As a result, he is pressing forward with the agenda of the Israeli right, which has long been clearly articulated by its leaders. Their view has been, unabashedly, a single Israeli state in all the territory Israel now controls, with Palestinians contained and controlled within a series of disconnected cantons.
That policy means holding the West Bank and East Jerusalem in perpetuity while denying citizenship, along with basic rights, to the Palestinian people living there. If that is the policy that Israel pursues, then it must explain to the world how it justifies a system that is unmistakably reminiscent of apartheid.
It will not be an easy case to make, and it certainly will not be a popular one. But given the fact that, at this writing, there has been no notable response to Netanyahu’s words, it might not be very hard for him to sustain the policy he seems to be proposing.
Last month, during the height of the tensions raised over the status of the Temple Mount, I met with a high-ranking official in the Netanyahu government in Jerusalem. In discussing the impasse in peace talks, he posed the following question: “As an Israeli, if I am to agree to a Palestinian state, is it not fair that I know what will be on the other side?”
It’s a reasonable question. After all, can we expect Israel to consent to an arrangement if they don’t have some assurance that it won’t lead to even more attacks? Once we unravel the context of that rhetorical question, however, we get to one of the root causes of the endless nature of this occupation.
The point the official made to me was based on the view that Israeli security demands that Palestinians prove they can be trusted with their own freedom. This is a logic that is broadly accepted. Yet it rests on certain assumptions.
The first assumption is that Palestinians are either not entitled to or have somehow forfeited the rights Americans consider fundamental and inalienable. Many of us in the West have a greater measure of freedom than most, and we generally hold to the idea that human rights, civic rights and rights of individual liberty are inalienable. True, most of us also believe that a crime can lead to an individual being forced to forfeit some of those rights, but you’d be hard pressed to find people who believe that an entire group of people can be denied their individual or collective rights because of the actions of a few members of their group.
Yet when it comes to the Palestinians, we seem to lose sight of this basic ethic. Of course, this is a situation of unsettled conflict, and in such circumstances, people are often put under martial law, or even besieged. But according to international norms, those are supposed to be temporary conditions. Indeed, the laws of military occupation (which Israel’s High Court has confirmed apply to the West Bank) exist precisely because occupation is understood to be a temporary condition, which all sides are striving to end.
Indeed, the blind eye the United States and, to a lesser extent, the European Union turn to Israel’s failure to fulfill its duties as an occupying power, in addition to the human rights issues that numerous Israeli groups have documented, are also an outgrowth of this view of the conflict. Even many who are sympathetic to the Palestinians’ plight, whether out of fear of being seen as insensitive to the Jewish history of persecution or for purely political reasons, continue to treat basic Palestinian rights as subordinate to Israeli security concerns.
Israel’s argument that the territories in question are not occupied because they were not the sovereign territory of another state (in this case, Jordan) does not change the dilemma of the millions of Palestinians who exist on a daily basis without civic or national rights and whose human rights are routinely violated with impunity.
This is what needs to change before any serious progress can be made. Israeli security is of course important, but it cannot continue to serve to justify the violation of Palestinians’ basic rights. The current paradigm frames the issue as one where Israel’s security concerns are the first order of business, and in pursuing those concerns, Palestinian rights should be addressed. But the most basic ethical view demands the reverse: a framework that demands the same rights for Palestinians as for Israelis, and within pursuing that overarching goal, security for both peoples must be maximized.
If that framework is adopted, we have the potential for a solution because it demands that the occupation end, where the current one does not necessarily do that. Most of us can reluctantly accept that people live under occupation for a short time, and we hope that human rights monitors can be effective in policing the conduct of occupying powers. But there are no moral or ethical, let alone legal grounds for accepting endless occupation. If Israel truly wants to control all of the West Bank, then it must annex it all (not just the parts it wants) and grant full citizenship to all of its inhabitants. Otherwise, it must work diligently to end the occupation and establish a viable, secure and self-sufficient Palestinian state.
As tragic and outrageous as the stabbing of innocent civilians or the suicide bombings of years past or any other murder of Israelis may be, they cannot justify open-ended occupation for the millions of innocent Palestinians who had no part in any such crimes. But no outside party is enforcing this basic ground rule with Israel. It is thus no surprise that Netanyahu is advocating perpetual occupation.
This is where the attitude of the United States and its international partners must enter, and enter forcefully. Israel is a country whose populace feels itself to be under permanent siege and is led by a Prime Minister who has a long history of building his political base on a foundation of fear. Under those circumstances, it is not reasonable to expect Israel to willingly give up what it perceives as its security advantage in controlling the Palestinians.
The United States has long sided with Israel in resisting any kind of timetable for ending the occupation. This has to change. Just as there needs to be a sense of urgency about Israeli civilians being killed in the streets of Israel, there must be at least as much urgency about the Palestinian people getting the rights and freedoms that all of us are entitled to as human beings.
Netanyahu has, ironically, given the US and EU the opportunity to change the game. These bodies must respond to Bibi’s declaration of perpetual occupation by making it clear that the occupation must begin to be drawn down.
The process need not be instantaneous. An international security presence can begin to replace Israeli security forces in various parts of the West Bank as Palestinians continue to develop the infrastructure they will need for a functional government. Meanwhile, permanent borders, the status of Jerusalem and the questions of refugees, the Jewish identity of Israel and mutual economic, water and security agreements can be worked out. It amounts to a phased Israeli withdrawal, with constant security adjustments and steady increases in Palestinian freedom. Such a process, however, can only succeed with robust international participation, led by the United States,
Until now, too much of the international diplomatic framework has been centered on what is best for Israel. Yes, it is important to make the argument that the occupation is the single biggest obstacle to a normal existence for Israel; that it is diverting resources from the Israeli public; and that it is rotting Israel’s moral structure from the inside. These are powerful arguments that should help incentivize Israelis to end the occupation.
But the more crucial moral argument is that millions of Palestinians live under occupation, and have done so for more than 48 years now. As those years have progressed, the occupation has not normalized or relaxed, but has grown even more restrictive and oppressive. This is a horrible reality, and obscuring it behind attacks on Israelis is a massive injustice to the overwhelming majority of Palestinians who want nothing more than to live normal lives without fear but with hope and opportunity. That is an argument that has been sadly neglected.
As long as the moral and political questions of ending the occupation revolve so strongly about Israel’s concerns, legitimate though those may be, Netanyahu can find his justification for advocating occupation without end. And he will find an audience that will not berate him for it. Once the question is properly framed around both Israeli security and Palestinian rights and freedom, such options cannot be considered, and progress can reasonably be expected.
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.
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 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…)