Analysis from Israel

Legal Issues

That Israelis are still arguing over the soldier who shot a wounded terrorist in Hebron three weeks ago isn’t surprising; the very rarity of the case naturally makes it the talk of the country. What is surprising, however, is how many left-wing pundits have used comparisons to the famous Bus 300 affair of 1984 to accuse today’s Israel of moral degeneration (two examples here and here). For by any reasonable standard, what this comparison actually shows is how much higher Israel’s moral standards have become over the last 32 years.

The Bus 300 affair began when Palestinian terrorists hijacked a civilian bus, Bus 300, and threatened to kill all the passengers. Israeli troops eventually stormed the bus, killing two terrorists and capturing two others. The Shin Bet security service then took the bound, captured terrorists to an isolated spot and killed them. It subsequently claimed all the terrorists were killed when the bus was stormed, but that claim was disproven a few days later when an Israeli daily published a front-page picture of one captured terrorist being taken off the bus, clearly very much alive. Thus ended Act I; we’ll get to Act II later.

Last month’s incident in Hebron, in which the soldier killed a terrorist who was already lying on the ground wounded, has some obvious similarities. But consider the differences:

First, in the Bus 300 affair, the extrajudicial execution was perpetrated by the highest ranks of the defense establishment: It was ordered by then-Shin Bet chief Avshalom Shalom – who would later be lionized by leftists for denouncing Israel’s presence in the West Bank in the documentary film “The Gatekeepers”– and carried out by the agency’s then-chief of operations, Ehud Yatom. In contrast, the Hebron shooting was the private initiative of a single, relatively low-ranking conscript, a sergeant.

Second, the defense establishment did its best to cover up the Bus 300 killings, and they would probably have succeeded absent that newspaper photo. In contrast, according to every media account of the Hebron incident thus far, the ranking officer on the scene reported the shooting up the chain of command less than 10 minutes after it happened, and his superiors promptly decided to open a Military Police investigation. That decision was made even before B’Tselem published its famous video of the incident.

Third, after the Bus 300 photo was published, the Shin Bet tried to frame an innocent man for the killing. That man, army officer Yitzhak Mordechai, stood trial but was ultimately acquitted. As far as we know, nothing remotely comparable happened in the Hebron case.

But the contrast becomes even starker when we consider Act II of the Bus 300 affair. It opened two years later when three senior Shin Bet officers told then-Prime Minister Shimon Peres that Shalom had ordered the killings. Peres – who also later became a leftist icon (and Nobel Peace Prize laureate) for his role in the Oslo Accords – not only refused to order an investigation but kicked the three out of the Shin Bet. They subsequently took their information to then-Attorney General Yitzhak Zamir, who did order a criminal investigation. But the government told him to drop it, and when he refused, he, too, was kicked out of office.

In the Hebron shooting, by contrast, not only has no one been fired for pursuing a criminal investigation but Prime Minister Benjamin Netanyahu and Defense Minister Moshe Ya’alon, both from the center-right Likud party, publicly demanded a full and thorough probe. That probe is currently underway, and an indictment is expected shortly.

But the crowning glory of the Bus 300 affair occurred soon after Zamir’s dismissal, when then-President Chaim Herzog – like Peres, a member of the left-leaning Labor Party (which his son, Isaac Herzog, currently heads) – forestalled any further attempts at investigation by issuing a preemptive pardon to Shalom and four other Shin Bet officers. This is the only preemptive pardon in Israel’s history; usually, pardons are granted only after someone has been indicted and convicted. Nevertheless, the Supreme Court upheld it, so nobody ever stood trial for the killings except the innocent man who was framed.

In contrast, barring some unexpected development, the Hebron shooter almost certainly will stand trial, most likely for manslaughter.

So how can anyone comparing these two incidents possibly see evidence of moral deterioration? It boils down to one claim: The Israeli public was “shocked” by the Bus 300 affair, whereas the Hebron shooter enjoys strong public support. That claim, however, ignores two important facts.

First is the fact that social media didn’t exist in 1984; if it had, it would have shown plenty of anti-Arab racism then, too. This isn’t mere speculation; 1984 is the year Meir Kahane’s subsequently banned Kach Party first entered the Knesset, and his supporters used to chant racist slogans in the streets.

The more important fact, however, is that most of the Hebron shooter’s support stems not from anti-Arab racism, but from three elements that didn’t exist in the Bus 300 case.

First, whereas the Bus 300 terrorists were already bound and harmless, the Hebron terrorist was still unbound and free to move his hands. Since wounded terrorists in similar situations have used that freedom to kill – for instance, by detonating explosive vests – many Israelis felt the soldier might well have been justified in opening fire if, as he claims, he saw a suspicious hand movement.

Second, the initial evidence against the soldier – before testimony had been taken from his comrades – consisted mainly of Palestinian video footage disseminated by B’Tselem. Since it’s hardly unknown for Palestinian videos to be edited in ways that distort the truth (for instance, by showing a soldier’s response to some Palestinian action but not the action itself, thereby making the response seem unprovoked), many Israelis were unwilling to condemn the soldier based solely on the video.

Third, many Israelis felt the soldier was badly wronged when Defense Minister Ya’alon and IDF Chief of Staff Gadi Eisenkot did immediately condemn him, without awaiting an investigation of the facts. And frankly, any self-respecting liberal ought to agree. Since Ya’alon and Eisenkot are the people who must approve every senior officer’s promotion, this constituted gross interference in the course of justice. Military prosecutors have already decided they can’t win a murder conviction, but with their bosses having publicly declared the incident a crime, they might well feel compelled to charge the soldier with something even if they would otherwise deem an indictment unwarranted.

In short, the different public reactions stemmed from serious substantive differences in the cases rather than from any major change in Israelis’ moral values. In contrast, the establishment’s behavior reflected a real change in moral values – and that change was entirely positive.

Three decades ago, an extrajudicial murder was ordered by the highest levels of the defense establishment, covered up by the highest levels of government and ultimately never investigated or prosecuted. Last month, a manslaughter (at most) was committed by a low-level soldier acting alone and immediately investigated by the military itself, with full support from the highest levels of government.

How any sane person can call that evidence of moral degeneration is beyond me. But then, as I’ve shown before, claims of Israel’s moral deterioration rarely hold up well under scrutiny.

Originally published in Commentary on April 13, 2016

Israel and its supporters have argued for years that many “human rights” organizations are far less concerned with human rights than with pushing a political agenda. But as long as that political agenda consisted mainly of attacking Israel, most Westerners remained convinced that these groups still deserved their credibility and moral haloes. Even initial forays into political issues unconnected with Israel – like Amnesty International’s controversial assertion last year that upholding human rights requires decriminalizing prostitution – didn’t destroy the halo. But by demanding that the European Union accept millions of Middle Eastern migrants rather than returning them to Turkey, these organizations have picked a political fight that millions of Europeans actually care about. And in so doing, they may be dealing their own credibility a long-deserved death blow.

The “human rights community” is outraged by the EU’s recent deal with Ankara, under which all migrants entering Europe via Turkey will be promptly returned there. The Council of Europe’s commissioner for human rights, Nils Muiznieks, declared that such “automatic forced return” is “illegal,” and the only acceptable solution is for EU countries to “ramp up the relocation of asylum seekers” into their own borders. Human rights groups similarly asserted that the deal violates international humanitarian law, inter alia, because they claim Turkey is unsafe for refugees. Amnesty, for instance, termed the deal “abhorrent.”

Then, angry over the EU’s refusal to accept their view, the organizations halted assistance to tens of thousands of migrants already in Greece. The UN High Commissioner for Refugees, Medecins Sans Frontieres, the International Rescue Committee, the Norwegian Refugee Council and Save the Children all suspended operations in Greek refugee centers to protest the deal.

There are numerous problems with the “human rights community’s” response to this deal, but let’s start with the biggest: the claim that it somehow violates international law, in the form of the 1951 Refugee Convention.

This convention was intended to ensure that anyone with a “well-founded fear” of persecution could find refuge somewhere, so as to prevent a repeat of the situation in which six million Jews were slaughtered by the Nazis because no country would let them in. But it never guaranteed anyone, much less tens of millions of people, access to the country of their choice.

Turkey, understandably, isn’t most refugees’ first choice. It’s an authoritarian country where basic rights like freedom of the press are ruthlessly suppressed; it has suffered numerous terror attacks in recent years; and it’s less wealthy than Europe. But all this makes it no worse than much of the rest of the world.

The one thing Turkey isn’t is unsafe for most refugees. It has hosted millions of Syrian refugees for years; the current tally exceeds 2.7 million. And unlike Syrians in Syria – where a brutal civil war has killed some 470,000 people since 2011 – the refugees in Turkey have survived. Turkey also grants full access to UN officials, so UNHCR could process refugee applications just as well in Turkey as it could in Greece.

Thus, if Turkey is willing to continue hosting these refugees in exchange for benefits like billions of euros and visa-free access to Europe, there’s no earthly reason why those refugees should be entitled to relocate to the EU instead. Indeed, if Turkey’s drawbacks suffice to entitle refugees to resettle in Europe, at least half the world’s population would be similarly entitled.

On this issue, the usually inapt analogy between Syrian refugees and Jews during the Holocaust is instructive. Jewish refugees from Nazi-occupied Europe certainly preferred to go to America, but they willingly fled to any country that would take them – not only impoverished, authoritarian countries in South America and Africa, but even China — then under brutal Japanese occupation. And while they didn’t have it easy, their flight accomplished its purpose: Most of those refugees, even in Japanese-occupied China, survived and could later rebuild their lives.

Similarly, refugees in Turkey don’t have it easy, but they’re surviving. Thus, relocating them to Europe isn’t necessary to fulfill the refugee convention’s goals; it’s necessary only to achieve a political purpose: remaking Europe by flooding it with millions of migrants.

But if rewriting international law to serve their political agenda weren’t bad enough, “human rights” groups then compounded the offense by hurting real human beings in order to push this agenda. Suspending aid to refugee centers in Greece won’t kill the deal; it will only make the refugees more miserable. So these groups are sabotaging refugees’ right to humanitarian assistance – a right they themselves claim the refugees have – just to make a political point.

Finally, there’s the fact that this political activism is aimed exclusively at the West. The UN and international aid organizations did not, for instance, suspend operations in government-controlled parts of Syria to protest the Assad regime’s refusal to grant them access to besieged rebel-held towns where people were literally starving to death – a far graver violation of international humanitarian law than returning asylum seekers to safe haven in Turkey. On the contrary, the UN’s Office for the Coordination of Humanitarian Affairs actively collaborated with the Assad regime to conceal the deadly impact of these sieges. In short, protesting Western “misbehavior” is so important that it even justifies withholding aid to people who need it, but far worse behavior by non-Western regimes doesn’t even merit verbal protests.

The response to the EU-Turkey deal once again proves the truism that what starts with the Jews never ends with them. With regard to Israel, the “human rights community’s” political agenda has long trumped concern with actual human rights. That’s why Amnesty, for instance, issued more than five times as many tweets one month last summer about the previous year’s Gaza war, which killed some 2,200 people, as it did about the ongoing Syrian war, which has killed 470,000: If Israel can’t be blamed, Amnesty isn’t much interested.

That’s also why Israeli organizations helping Syrian refugees in Greece discovered that while no Syrian ever refused their help, members of international “human rights” organizations did, even though the Israelis were among the few volunteers who spoke Arabic: These international “humanitarians” viewed boycotting Israel as more important than communicating with the refugees they ostensibly came to help.

Such politicization of human rights never bothered most Westerners as long as Israel was the only victim. But now that it’s being turned against Europe, perhaps the West will finally recognize the travesty that the “human rights community” has become.

Originally published in Commentary on April 4, 2016

The global firestorm that has erupted over Israel’s “NGO transparency bill” can’t be understood without knowing one crucial fact: Israel’s leading left-wing “nongovernmental” organizations are actually wholly-owned subsidiaries of the European Union and its member states. This fact, which was incontrovertibly demonstrated by a new NGO Monitor study, explains both why the bill is so important and why it is so fiercely opposed by the organizations themselves and their European funders.

As I noted in Tuesday’s post, the study examined the financial reports filed with Israel’s registrar of nonprofit organizations by 27 prominent organizations from 2010-2014. The groups include B’Tselem, Breaking the Silence, Adalah, the Association for Civil Rights in Israel, Physicians for Human Rights-Israel and many others actively engaged in trying to tarnish Israel’s name overseas. Overall, these groups raised more than 261 million shekels during those years; at current exchange rates, that comes to $66 million.

Of this total, fully 65 percent – some $43 million – came either directly or indirectly from foreign governments, primarily European ones. Foreign governments provided 20 of the 27 groups with over 50 percent of their funding, and three groups (Yesh Din, Terrestrial Jerusalem and Emek Shaveh) received over 90 percent of their funding from foreign governments. The largest donor was the EU, followed by Norway and Germany.

Moreover, this high level of European funding is absolutely unique, as demonstrated by a previous NGO Monitor report analyzing the years 2007-2010. That report found that the EU’s European Instrument for Democracy and Human Rights spends more on promoting “democracy and human rights” in “Israel and the occupied Palestinian territories” than in every other country of the Mideast combined. Indeed, the EIDHR spends more in Israel alone – excluding all the grants given jointly to “Israel and the OPT” – than it does in every other Mideast country, every Asian and Pacific country, all but one African country and all but one American and Caribbean country; grants to “Israel and the OPT” together exceed those to every other country worldwide, by a very large margin.

The “transparency bill” would require any NGO that gets more than 50 percent of its funding from foreign governments to state this clearly on any report or publication it issues, and also in any written or oral contacts with public officials. The government-sponsored version would not require representatives of these groups to wear special nametags in the Knesset; that idea was raised in a private member’s bill, but Prime Minister Benjamin Netanyahu has said it won’t be in the final legislation.

The bill’s supporters say it is similar to America’s Foreign Agents Registration Act. The U.S. Embassy in Israel disputes this, insisting that FARA applies only when groups engage in activities “at the order, request, or under the direction or control, of a foreign principal – not simply by receiving contributions from such an entity.” That claim, however, is patently false.

FARA’s actual text says a foreign agent need not be directly controlled by a foreign principal; he can also be acting “under the direction or control” of a third party “whose activities are … financed, or subsidized in whole or in major part by a foreign principal.” In other words, he could be employed by a local NGO financed “in whole or in major part” by a foreign government. Moreover, FARA says explicitly that no formal contractual relationship between the agent and the foreign principal is necessary.

Thus receiving substantial contributions from a foreign entity actually could be enough in itself to make someone a foreign agent, as long as he also engages in one of four actions specified by the law, of which the relevant one in Israel’s case is the first: engaging “within the United States in political activities for or in the interests of such foreign principal.”

The EU and its member states make no secret of the fact that getting Israel out of the West Bank is one of their top foreign policy goals. That contradicts the Israeli government’s position, which opposes further territorial withdrawals under the current circumstances.

The 20 NGOs in question similarly make no secret of the fact that getting Israel out of the West Bank is a top policy goal. B’Tselem, for instance, unambiguously titled one of its fundraising appeals “Help End the Occupation: Support B’Tselem.” Yehuda Shaul, the foreign relations director for Breaking the Silence, explicitly defined the organization in a 2014 article as “Israeli veterans who work toward ending the Israeli occupation.” And so forth.

In other words, these organizations are conducting political activity in Israel aimed at pressuring the elected government to adopt a key European policy goal, all while being financed “in major part” by European governments. That’s precisely the situation FARA’s provisions are meant to cover, and for good reason: When certain donors provide more than half an NGO’s funding, no explicit contract is needed to ensure the NGO’s compliance with its donors’ wishes; the threat of losing funding is sufficient.

But lest there be any doubt, even the explicit contractual relationship sometimes exists. Just this month, for instance, an EU-sponsored organization gave B’Tselem €30,000 to lobby the Knesset against the NGO transparency bill, which the EU openly opposes. In other words, it paid B’Tselem to lobby the Knesset to enact the EU’s preferred policies.

There’s also no doubt that these European donors are hostile to Israel. Norway – the largest individual government donor – is remarkably honest about this; its Foreign Ministry says explicitly, for instance, that it funds UNRWA, the UN agency responsible for Palestinian refugees, because it is “a guarantor that the rights of Palestine refugees, including the right to return, are not forgotten.” The “right of return,” needless to say, is Palestinian code for eliminating the Jewish state demographically by flooding it with millions of descendants of Palestinian refugees.

But the rest of Europe isn’t much more subtle. For instance, the EU recently adopted discriminatory labeling requirements that apply only to “Israeli-occupied” territory, but not to territory occupied by any other country. It gives higher priority to the Israeli-Palestinian conflict than it does to other conflicts that are not only far bloodier, but have swamped it with an unprecedented refugee crisis. And the funding it pours into Israeli NGOs – more, as noted, than it gives the rest of the Mideast combined – isn’t because it thinks a 67-year-old democracy actually needs more help with democracy promotion than the world’s dozens of dictatorships; it’s because this money isn’t aimed at promoting “democracy and human rights” at all, but at subverting the policies of Israel’s democratically elected government.

By now, I doubt there’s anyone in Israel who doesn’t know these NGOs are wholly-owned subsidiaries of European governments; indeed, the main reason they conduct so much of their activity overseas these days is that they have little credibility left in Israel. But abroad, these groups are still viewed as Israeli organizations representing an authentic Israeli perspective, and they also benefit from the NGO “halo effect.”

That is why the transparency bill is so critical, and also why both the organizations and European governments are fighting so hard to kill it: Once these groups are required to state openly, on everything they do, that they’re primarily funded by European governments, it will be possible to expose them for what they really are – not independent Israeli NGOs with Israel’s best interests at heart, but agents of a hostile foreign power that is obsessed by Israel, discriminates against it and wishes it nothing but ill.

Originally published in Commentary on January 22, 2016

During the Hamas-Israel war of 2014, both Obama Administration officials and their European counterparts repeatedly accused Israel of excessive force over the “massive” destruction of civilian property in Gaza. But if those officials retain even a shred of intellectual integrity, the recent devastation of Ramadi during a joint Western/Iraqi effort to retake the city leaves them only two options: either hand themselves over to the International Criminal Court as suspected war criminals, or publicly apologize to Israel for all the slurs they hurled at it over far less extensive damage.

As the New York Times reported last week, the successful recapture of Ramadi from the Islamic State left the city “in ruins.” Reporter Ben Hubbard described one neighborhood as “a panorama of wreckage so vast that it was unclear where the original buildings had stood.” The city has no electricity or running water, and “Many streets had been erased or remained covered in rubble or blocked by trenches used in the fighting.” When Hubbard asked an Iraqi officer how residents would return to their homes, the officer replied, “Homes? There are no homes.”

Indeed, a different Iraqi officer told the Associated Press “that more than half of the city’s buildings have been destroyed, including government offices, markets, and houses.”

This is devastation orders of magnitude greater than what Gaza suffered. According to UN figures, 9,465 homes in Gaza were completely destroyed and another 9,644 badly damaged, out of a total of roughly 319,000 (the latter figure is my own calculation based on  official Palestinian statistics: Dividing Gaza’s total population of 1.82 million by its average household size of 5.7 people gives you 319,000 households). Thus even according to the UN – which traditionally exaggerates Palestinian casualties and damage – only about 6 percent of Gaza’s homes were destroyed or badly damaged. That’s a far cry from “more than half of the city” in Ramadi.

But the reasons for the destruction, in both places, are no less significant than its scope. One, as Hubbard noted, is the inherent difficulty “of dislodging a group that stitches itself into the urban fabric of communities it seizes by occupying homes, digging tunnels, and laying extensive explosives.” In Ramadi, he reported, Islamic State built tunnels under the streets and planted explosives in roads and buildings. Indeed, “Entire areas are considered no-go zones because they have yet to be searched for booby traps left by the jihadists.”

These are the same tactics Hamas used in Gaza: Tunnels, booby traps, and weapons stockpiles were placed in and under civilian buildings on a massive scale. On July 30, 2014, for instance, three Israeli soldiers were killed by “an explosion at a booby-trapped UNRWA health clinic that housed a tunnel entry shaft,” the Times of Israel reported. At the same press briefing where those deaths were announced, an Israeli officer said Hamas had thus far detonated more than 1,000 bombs, destroying “thousands of buildings” in Gaza. As an example, he cited a street the army searched the previous night in which 19 out of 28 buildings were booby-trapped.

But in Gaza, both the Obama administration and European officials blamed Israel for the ensuing destruction. In Ramadi, in contrast, both American and Iraqi officials quite sensibly “placed blame for the city’s destruction on the jihadists, who mined roads and buildings.”

The other factor in Ramadi’s devastation was airstrikes by the U.S.-led coalition. As AP reported, these strikes “smashed large parts of the city into rubble.” Nor is that surprising: When a target area is extensively booby-trapped, even precision airstrikes often cause greater-than-expected damage, because the attacking force can’t know which buildings are wired with explosives, and hitting a wired building will set off massive secondary explosions. Yet airstrikes are unavoidable when fighting militants entrenched in a sea of tunnels and booby-trapped buildings, because using ground troops alone would result in unacceptably high losses for the attacking force.

Consequently, a Pentagon spokesman correctly blamed Islamic State (also known as ISIS or ISIL) for the damage to Ramadi: “One hundred percent of this is on ISIL because no one would be dropping any bombs if ISIL hadn’t gone in there,” Colonel Steven H. Warren told Hubbard.

Yet in Gaza, both the Obama Administration and European officials largely blamed the damage on Israel rather than Hamas, even though Israeli airstrikes were employed for the exact same reason, sometimes caused greater-than-expected damage for the exact same reason, and obviously wouldn’t have been launched at all had Hamas not attacked Israel to begin with. Indeed, Israel’s airstrikes were arguably far more justified than America’s were: Islamic State wasn’t firing missiles at America from Ramadi or digging attack tunnels into American territory from Ramadi. In contrast, Hamas had fired thousands of rockets at Israel from Gaza over the previous decade and dug dozens of cross-border attack tunnels, including one that notoriously emerged right next to a kindergarten.

Ramadi, incidentally, is far from the only example of the way the Obama Administration and Europe hold Israel to a double standard. On Monday, the Elder of Ziyon blog highlighted another one: According to the Herald Scotland, “The British government is refusing to accept evidence of civilian fatalities in UK air strikes from human rights groups monitoring the results of bombing raids” in Syria and Iraq; instead, it relies exclusively on “evidence from its own internal surveillance.” But that same government uncritically accepted NGO reports saying that almost 70 percent of Palestinian casualties in Gaza were civilian, even though Israel scrupulously investigated those reports and found that in reality, about half the casualties were documented members of either Hamas’ military wing or smaller terrorist organizations like Islamic Jihad.

I don’t really expect any Obama Administration or European official to admit to having unjustly criticized Israel during the Gaza war. But any fair-minded person comparing the devastation of Ramadi to that in Gaza should reach the same conclusion a group of high-ranking Western military experts did in a comprehensive report issued last month: that during the Gaza war, Israel “met and in some respects exceeded the highest standards we set for our own nations’ militaries.”

Originally published in Commentary on January 13, 2016

Back in June, Connecticut College philosophy professor Andrew Pessin proposed going on the offensive against the boycott, divestment, and sanctions movement by responding to every BDS proposal with a similar proposal targeting the Palestinian Authority’s terrorism, corruption, and human rights violations. I think it’s time to expand this terrific idea to the European Union following last week’s atrocious decision to apply special labeling requirements to Israeli produce of the West Bank, Golan Heights, and East Jerusalem. As a first step, I propose a worldwide campaign to label the produce of Spanish-occupied Catalonia and the Basque Country – not merely because these occupations have been around since long before the State of Israel was born, but because in contrast to Israel’s repeated efforts to negotiate solutions to its territorial disputes, the Spanish government has refused to even consider negotiating over Catalonian and Basque demands for independence.

In Catalonia, which has been occupied by Spain for hundreds of years (aside from a few brief interruptions), pro-independence parties currently control a majority of the provincial parliament. Nevertheless, the Spanish government adamantly rejected their plea to negotiate over their grievances.

Last year, Catalonia sought to hold a referendum on independence, but Spain’s Constitutional Court squelched the idea; consequently, the province had to make do with a nonbinding vote. Since standing in line to cast a meaningless ballot isn’t a terribly attractive proposition, turnout was unsurprisingly low (an estimated 37 to 41 percent). But a whopping 81 percent of those who did participate in the vote backed independence, reinforcing the impression left by an astounding demonstration in 2013 in which hundreds of thousands of Catalonians formed a 400-kilometer-long human chain to demand independence.

Earlier this month, an absolute majority of the Catalonian parliament passed legislation to begin the process of breaking away from Spain. But this legislation, too, was promptly suspended by Spain’s Constitutional Court.

In short, Catalonia has repeatedly sought to obtain independence from Spain by peaceful means. Yet the Spanish government has squelched every such effort.

In the Basque Country, an absolute majority of the Basque provincial legislature approved a bill calling for self-determination back in 2003, but Spain’s national parliament wouldn’t even discuss the issue. In 2008, the Basque parliament decided to hold a referendum on self-determination, but the Spanish Constitutional Court ruled that the vote couldn’t go ahead, just as it did in Catalonia’s case.

The Basque Nationalist Party appealed this decision to the European Court of Human Rights, but that court upheld the Spanish court’s ruling. Thus, it isn’t just Spain; the EU as a whole has been complicit in squelching the Basques’ desire for self-determination. Nevertheless, the Basques haven’t abandoned this desire; they periodically stage pro-independence demonstrations, and the province’s elected premier, inspired by Catalonia’s efforts, recently said he wants to make another stab at a referendum.

Incidentally, many pro-independence parties in the Basque Country haven’t even been allowed to run for office; Batasuna in 2003, EHAK in 2008, D3M in 2009 and Sortu in 2011 were all banned by Spain’s Supreme Court on the grounds that they had links with the Basque terrorist organization ETA. Yet Spain’s (justified) refusal to tolerate ties with terrorist organizations at home has never stopped it from demanding Israeli negotiations with and concessions to the PLO, whose various factions all proudly maintain “armed wings,” aka terrorist organizations.

The contrast between Spain’s treatment of Catalonian and Basque demands for independence and Israel’s treatment of Palestinian demands for independence couldn’t be starker. Whereas Spain adamantly refuses even to negotiate on the issue and has repeatedly squelched efforts to hold referendums, Israel has repeatedly offered the Palestinians a state in most of Gaza, the West Bank and East Jerusalem; it’s the Palestinians who have rejected these offers. Israel also actually withdrew from Gaza and parts of the West Bank to further the Palestinians’ quest for independence, whereas Spain has yet to vacate an inch of Catalonia or the Basque Country

Moreover, Israel has done all this despite rampant Palestinian terror throughout the years since the “peace process” began in 1993. In contrast, the Catalonian independence movement has never engaged in terror, while ETA has killed fewer people in almost five decades of activity than Palestinian terrorists did during the second intifada of 2000-05 alone, and has carried out no attacks at all since 2011. In other words, Israel would have far more excuse for intransigence than Spain does, because a Palestinian state shows every sign of being a real security threat to Israel, whereas Catalonia and the Basque country pose no comparable threat to Spain.

Israel also negotiated repeatedly with Syria on a land-for-peace deal in the Golan Heights. It was Syria’s meltdown into civil war that ultimately ended those negotiations.

It’s no secret that the EU’s labeling decision is a piece of unmitigated anti-Israel bias. As Prof. Eugene Kontorovich concisely explained in last week’s New York Times, it blatantly contradicts the EU’s own policy on other territorial disputes worldwide, as well as World Trade Organization rules and national court rulings in various European countries.

But if the EU believes labeling is the way to go, then the obvious place to start is at home. So it’s high time to begin labeling the produce of Spanish-occupied Catalonia and the Basque Country – two areas that, based on their track records, would be far more peaceful, productive members of the international community than a Palestinian state ever would.

Originally published in Commentary on November 19, 2015

The one saving grace about anti-Semites is that, contrary to Barack Obama’s famous claim, they generally are irrational and, therefore, they often overreach. The anti-Israel boycott, divestment, and sanctions movement has been doing exactly that recently. In the past month alone, it has suffered three resounding and damaging failures.

The first, of course, was its “success” in pressuring a Spanish reggae festival to disinvite American Jewish singer Matisyahu unless he issued a statement backing a Palestinian state. Matisyahu, to his credit, didn’t merely refuse; he also made sure the world knew why he wouldn’t be appearing as scheduled. The subsequent public outcry not only made the festival hurriedly backtrack and reinstate Matisyahu in his original slot, but also exposed the truth of the BDS movement’s anti-Semitism, which it has long tried to hide. After all, Matisyahu isn’t Israeli; he was asked to issue that statement, alone of all the artists at the festival, simply because he was Jewish.

Next came last week’s decision to boycott Israel by the mighty municipality of Reykjavik (population about 120,000). Having naively expected applause for this display of moral indignation, the municipality was stunned to be met instead by an outpouring of condemnation, including from Iceland’s own prime minister, and quickly reversed course. But the damage, as Haaretz journalist Asher Schechter lamented, was already done: Reykjavik had provided further proof that the BDS movement, contrary to the widespread belief that it merely targets “the occupation,” is simply anti-Israel.

Then there’s my personal favorite, which occurred this week: the BDS protest against a Pharrell Williams concert in South Africa. When I first read about the planned protest, I couldn’t believe BDS was serious. A black American singer goes to South Africa to perform for black South Africans, and BDS wants to ruin the audience’s fun? Just because Williams’ corporate sponsor is a Jewish-owned retailer (Woolworths) that already boycotts produce from “the occupied territories”? But BDS evidently couldn’t see how bad this looked. It rashly promised some 40,000 demonstrators, “the largest protest event in South African history against any musician or artist.” And it wound up with a measly 500, as many South Africans suddenly discovered that BDS might not be their best guide to international morality.

Finally, as icing on the cake, the lawfare crowd also suffered an embarrassing defeat this month: After it painstakingly gathered the 100,000 signatures needed to force a debate in the British parliament on a motion to arrest Israeli Prime Minister Benjamin Netanyahu, parliament unceremoniously refused to debate it anyway on the grounds that the motion itself flagrantly violated both British and international law with regard to diplomatic immunity.

But all of the above are merely the tip of the iceberg of what could be done against BDS. As Gerald Steinberg, president of NGO Monitor, has repeatedly stressed, one of the most important steps is pressuring Europe to stop funding anti-Israel hate groups by showing decision makers what their money is really being used for. This may seem like mission impossible, but as Steinberg wrote last week, the past year actually brought some significant progress:

Under the “Partnership for Peace Program”, the European Union did not renew grants for NGOs that promote BDS and lawfare, including for violent activities, marking the most significant change in over 15 years. A number of European embassies in Israel also reduced or ended grants for anti-peace NGOs. While there are still tens of millions of Euros and Pounds and Krona going to BDS, the trend is down, for the first time.

Legal action is another promising and underutilized tool. As I wrote last year, BDS has already suffered major setbacks in European courts. But the real legal game-changer, as professors Eugene Kontorovich and Avi Bell of the Kohelet Policy Forum argued recently, could be an Israeli challenge in the World Trade Organization against EU sanctions on settlement products. The EU plans to finalize a directive on labeling Israeli settlement produce next month, the latest in a series of directives targeting such produce. But as Kontorovich and Bell noted, the EU hasn’t imposed similar measures on other territories it deems occupied, such as Western Sahara or Kashmir, and WTO rules explicitly prohibit discriminatory trading policies.

The movement to Besmirch, Demonize and Slander the Jewish state is so hydra-headed and so venomous that it can often seem overwhelming. But in reality, it is big and strong enough to win only if nobody else is in the ring: As the past month’s events amply demonstrate, pushback works. Now it’s time to accelerate the pushback and put BDS where it belongs – on the defensive.

Originally published in Commentary on September 24, 2015

If you’ve ever wondered why so many overseas Jews view democratic Israel as irredeemably racist, consider the following story: Knesset member Robert Ilatov justifiably made headlines last Thursday by declaring that Arabs who refuse to sing the national anthem, “Hatikva,” shouldn’t be appointed as judges. But several prominent English-language Israeli news sites didn’t even bother mentioning the swift, uncompromising rejection of his view by Justice Minister Ayelet Shaked; you won’t, for instance, find a word of her response in Haaretz’s report, while the left-wing +972 website dismissed it as a “weak protestation” by omitting all the most significant parts of her statement.

Shaked’s response matters not only because of her position, but because she herself is no bleeding-heart liberal; she’s second-in-command of the religious Zionist Jewish Home party, the right flank of what the media routinely term a “hardline” government. And that’s precisely the point: While extremists always get headlines, the mainstream rejection of their views is ignored – even when that rejection is so sweeping that it encompasses the leadership of the most right-wing party in the governing center-right coalition.

Granted, Ilatov’s views can’t be dismissed as insignificant; the opposition back-bencher made his statement right after the Knesset chose him as one of the Judicial Appointments Committee’s nine members. But surely the contrary views of the other eight members – and especially Shaked, the panel’s chairwoman – should be considered no less significant when assessing Israel’s character.

Shaked, in her response, endorsed the compromise employed by Supreme Court Justice Salim Joubran during his own swearing-in ceremony: Arab judges should stand for the anthem, because state officials must respect the state’s symbols, but they shouldn’t be required to sing along if they can’t identify with lyrics that, after all, are about the Jewish yearning for Zion. “A judge needs to stand during the national anthem, but I won’t be looking to see if he is mouthing the words to Hatikva or not,” she said.

She also endorsed the importance of maintaining the judiciary’s professionalism: “A judge needs to be selected first and foremost according to skills and criteria,” she stressed. Finally, she underscored the importance of having Arab judges in the system: “The fact that we have Arab judges is an admirable thing in a country where 20 percent of the population are minorities.”

In other words, the second-in-command of one of Israel’s most right-wing parties, who also happens to be the justice minister, said exactly what she should have said regarding Arab sensitivities, Arab representation in state institutions and judicial professionalism. But liberals who get their news from Haaretz or +972 will never know it; reading those reports, a well-meaning liberal would legitimately conclude that anti-Arab extremists are running around Israel unopposed.

The same is true of another important news item last week: Two brothers who torched Jerusalem’s Jewish-Arab Hand in Hand School last year were sentenced to 24 and 30 months in jail, respectively (the sentence reflects the fact that the attack endangered no lives, since it occurred overnight). The arson made headlines worldwide as evidence of Israel’s “racism.” But how many international media outlets bothered reporting the fact that the perpetrators were caught, indicted and sentenced to jail?

This isn’t a minor detail. No country on earth has ever managed to eradicate hate crimes; thus the difference between a decent society and an intolerant one is not whether such crimes occur, but how society responds. Are the perpetrators lionized and allowed to walk free – as, for instance, Palestinian terrorists are? Or are they universally condemned, brought to trial and given heavy sentences?

Israel is in the latter category: Not only was the arson universally condemned at the time, but the perpetrators are now doing jail time. But because the initial attack made headlines overseas while the subsequent sentence was either ignored or merited at most a brief mention, the impression left is the opposite: that Israel is a place where hate crimes are tolerated.

Neither Israel nor its supporters can change the media coverage. But liberal Jews who care about Israel can and must try to educate their fellows about the distorted image this coverage conveys. Because criticizing Israel for its minority of extremists while never even acknowledging the majority’s efforts to fight them isn’t “tough love”; it’s sheer dishonesty.

Originally published in Commentary on July 26, 2015

Responding to today’s Times of Israel interview with Fatou Bensouda, prosecutor of the International Criminal Court, legal expert Eugene Kontorovich tweeted, “you got to ask #Bensaouda questions & didnt ask about an inquiry into settlements in Cypru[s]?” But Bensouda could actually offer a reasonable response to this challenge about double standards. The people who couldn’t – and who should therefore be hounded about it at every conceivable opportunity – are senior European Union officials who insist that any facilitation of Israeli activity in the “occupied West Bank” is illegal, yet happily facilitate Turkish activity in occupied Northern Cyprus, Moroccan activity in occupied Western Sahara, Chinese activity in occupied Tibet, and much more.

Just today, Reuters revealed that an influential European think tank is urging the EU to go beyond its current drive to label Israeli settlement products and impose numerous additional sanctions, from restricting interaction between European banks and Israeli banks that do business in the settlements (i.e. all of them) to refusing to recognize degrees from Israeli educational institutions in the West Bank. The European Council of Foreign Relations is technically an independent organization, but, as Reuters correctly noted, its “proposals frequently inform EU policy-making.” In 2013, the council proposed five different measures against Israeli activity in the West Bank; two years later, three of the five have been largely adopted, either by the EU itself or by individual member states: excluding settlement produce from EU-Israel trade agreements, severing contact with Ariel University (which is barred from the EU’s Horizon 2020 research program) and advising European companies against doing business in the settlements.

But as Kontorovich has pointed out repeatedly, the EU has no qualms about facilitating activity in other territories that it deems occupied. For instance, the EU has an entire program to direct funding to Turkish-occupied Northern Cyprus; inter alia, the program finances infrastructure projects, scholarships for students and grants to businesses. And lest one think this is equivalent to EU projects to help Palestinians, think again: Turkish settlers, who constitute anywhere from 20 to 50 percent of the population (depending on whose estimates you believe), are eligible; nor is the program barred from funding projects that directly or indirectly benefit these settlers. That’s in sharp contrast to the West Bank, where European countries refuse to fund any project that might benefit Israeli settlers, even if it benefits the Palestinians far more.

Similarly, Kontorovich noted, the EU reached an agreement with Morocco in which it actually pays Morocco for access to fisheries in Moroccan-occupied Western Sahara. In short, the EU is paying the occupier for the right to deplete the occupied territory’s natural resources.

And, of course, numerous European companies and organizations do business in such territories; from French conglomerates like Total and Michelin to British universities.

Nor can the EU argue that Palestinians are unique in objecting to such activity. Indeed, the PLO’s Western Saharan counterpart, the Frente Polisario, is currently suing in the Court of Justice of the European Union over the Morocco fisheries agreement, yet the EU is vigorously defending the deal.

Moreover, Israel has a far stronger legal claim to the West Bank than do any of the “occupiers” the EU has no problem doing business with. The League of Nations awarded this land to a “Jewish national home,” and that international mandate was preserved by the UN Charter’s Article 80; the territory had no other recognized sovereign when Israel captured it from an illegal occupier (Jordan) in a defensive war; and UN Security Council Resolution 242 explicitly reaffirmed Israel’s right to keep at least part of the captured territory. Thus if the EU were going to discriminate among “occupied territories,” it should by rights discriminate in Israel’s favor rather than against it.

Bensouda could reasonably respond that a prosecutor has no business commenting on hypotheticals; she can only address actual cases that arrive on her doorstep. But the EU can’t use the excuse that the issue is hypothetical; it’s already neck-deep in discriminatory treatment.

This issue should, therefore, be raised with every EU official at every possible opportunity – by Israeli officials, journalists, and American Jewish leaders. It might not influence EU policy, but at least it would lay bare to the world what actually lies behind it. There’s a name for treating Jews differently than all other peoples. It’s called anti-Semitism.

Originally published in Commentary on July 22, 2015

Any legal case has two main components – the facts and the law. In my last post, I analyzed the International Criminal Court’s disregard of salient facts in its ruling on Thursday overturning the chief prosecutor’s decision not to investigate Israel’s botched raid on a 2010 flotilla to Gaza. But the ruling was equally contemptuous of several fundamental legal principles.

The first of these is that judicial decisions should be dictated by law, not politics. The majority judges threw this principle out the window when they asserted that whether the alleged crime was sufficiently grave to merit ICC attention should depend not on what actually happened, but on the amount of “attention and concern that these events attracted” from the international community, as reflected in “several fact-finding efforts on behalf of States and the United Nations.” In other words, the ICC’s choice of cases will depend not on their objective legal merits, but on how many resolutions the dictators who dominate the U.N. Human Rights Council decide to devote to it.

As legal scholar Eugene Kontorovich aptly noted, the ICC is thereby “saying ‘drop dead’ to victims U.N. not interested in,” which is a travesty in and of itself: It means the court will spend its scarce resources investigating 10 people killed while attacking soldiers intercepting a blockade-busting flotilla, but ignore – to cite just one example – the tens of thousands of Syrian civilians killed by their own government’s barrel bombs.

No less appalling, however, is that this is a standard of justice used only in the most benighted regimes: Prosecutions will be based on neither facts nor law, but solely on whether they serve the interests of the politicians in power.

The second fundamental legal principle the decision guts is that the same person shouldn’t be prosecutor, judge and jury. Since a prosecutor is obviously invested in his own case, he cannot be an impartial judge.

But the ICC judges, sitting as a “pre-trial chamber,” decided to actively force the prosecutor to pursue an investigation she considered unjustified (technically, they only ordered her to “reconsider” her decision, but in practice, that order leaves her little choice). Thus the court is no longer an impartial arbiter between prosecution and defense; it is now actively invested in the success of the case.

This blurring of boundaries is justifiable only in extraordinary circumstances. That is why, as Judge Peter Kovacs noted in his dissent, “the Pre-Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion” – or at least, it ought to be. Instead, the majority decided to leave her no discretion at all.

Finally, the court ignored the law itself. As Kovacs also noted in his dissent, customary international law explicitly allows countries to enforce a lawful blockade, including by force if necessary. The blockade of Gaza is legal according to one of the very U.N. fact-finding committees the majority cited in its decision. And force was necessary in this case, since the ship refused repeated orders to halt and then attacked the Israeli boarding party with “fists, knives, chains, wooden clubs, iron rods, and slingshots with metal and glass projectiles.” Thus the casualties “were apparently incidental to lawful action taken in conjunction with protection of the blockade,” and as such, it’s likely that “most if not all of those acts will not qualify as war crimes.”

Yet the majority judges’ opinion doesn’t even mention the laws of blockade much less discuss their application to this case. Evidently, they consider customary international law irrelevant to their decisions.

In my earlier post, I compared the majority ruling to something out of Alice in Wonderland. And in fact, the three elements cited above are precisely the elements that make the Queen of Hearts’ courtroom so arbitrary: The law is irrelevant; judgment depends solely on the whim of the rulers; and the same person is prosecutor, judge and jury.

But the Queen of Hearts is actually preferable, because at least she’s honest about the arbitrary nature of her decisions: “Sentence first – verdict afterwards.” The ICC maintains an expensive taxpayer-funded legal bureaucracy in an effort to disguise it.

Originally published in Commentary on July 20, 2015

If the International Criminal Court ever had any pretensions of being a serious legal institution, they were effectively demolished by yesterday’s ruling overturning Prosecutor Fatou Bensouda’s decision not to investigate Israel’s botched raid on a 2010 flotilla to Gaza. Reading the ruling feels like falling down the rabbit hole straight into the Queen of Hearts’ courtroom, for many reasons. But here’s the one I found most astonishing: In a 27-page document devoted almost entirely to discussing whether the alleged Israeli crimes were grave enough to merit the court’s attention, not once did the majority judges mention one of the most salient facts of the case: that flotilla passengers had attacked the Israeli soldiers with “fists, knives, chains, wooden clubs, iron rods, and slingshots with metal and glass projectiles,” causing nine soldiers serious injuries.

That fact appeared only in Judge Peter Kovacs’ dissent. Anyone reading the majority decision would conclude that the soldiers opened fire for no reason whatsoever.

This is not a minor detail; it was central to Bensouda’s decision to close the case. She noted that the soldiers opened fire, ultimately killing 10 passengers, aboard only one of the flotilla’s seven ships – the one where passengers attacked them. That strongly indicates there was no deliberate plan to kill civilians; rather, the soldiers intended to peacefully intercept all the vessels, and the killings were the unpremeditated result of a chaotic combat situation that unexpectedly developed aboard one ship. Or in her words, “none of the information available suggests […] the intended object of the attack was the civilian passengers on board these vessels.”

The majority judges, however, dismiss that conclusion, asserting that the lack of casualties aboard the other ships doesn’t preclude the possibility that soldiers intended from the outset to kill the Mavi Marmara’s passengers. They then offer a string of wild suppositions to explain why soldiers might have wanted to perpetrate a massacre aboard that ship but not the others. Perhaps, they suggest gravely, it’s because the Mavi Marmara carried the most passengers. Or, perhaps because it carried no humanitarian aid. In any event, the soldiers clearly used more violence against the Mavi Marmara than against other ships that also refused their orders to halt, so “It is reasonable to consider these circumstances as possibly explaining that the Mavi Marmara was treated by the IDF differently from the other vessels of the flotilla from the outset.”

But of course, the only way to make that unsupported speculation remotely plausible is by ignoring the fact that the Mavi Marmara was the only ship whose passengers brutally attacked the soldiers. Once you acknowledge this fact, it’s obvious that it’s a far more likely explanation for the ship’s different treatment than any of the majority judges’ outlandish theories.

So how do they get around this problem? Very simply: by refusing to admit the fact’s existence. At no point in those 27 pages do they ever acknowledge that the passengers attacked the soldiers. And then, having obliterated the actual reason why the soldiers opened fire from the record, they can accuse Bensouda of having erred by not considering their alternate-universe theory that the soldiers opened fire out of malice aforethought.

In the Queen of Hearts’ courtroom, the rule is “Sentence first – verdict afterwards.” The ICC judges, in contrast, are perfectly willing to let the verdict precede the sentence; they merely insist that said verdict exclude any evidence which might contradict their preconceived conclusions.

And, in that case, the Queen of Hearts’ approach actually makes much more sense. If you already know what the verdict is going to be, it’s much more efficient to move straight to the sentence. At least that way you don’t waste taxpayers’ time and money on lengthy legal proceedings.

Originally published in Commentary on July 17, 2015

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The Left’s Inversion of Anti-Semitism

Consider, for instance, the uproar over the recent Hungarian campaign against George Soros, a leading left-wing activist who also happens to be Jewish. As part of his reelection bid, Hungarian Prime Minister Viktor Orban plastered the country with anti-illegal immigration posters featuring a smiling Soros bearing the slogan “Don’t let Soros have the last laugh” and a statement that 99 percent of Hungarians oppose illegal immigration. Orban, who accuses Soros of funding progressive groups in Hungary that lobby for “settling a million migrants” in the country, has also called Soros himself a “billionaire speculator” and an “American financial speculator attacking Hungary.”

The campaign has outraged many people, ostensibly out of concern for anti-Semitism. The head of Hungary’s Jewish Federation protested to Orban, saying that despite not being “openly anti-Semitic,” the campaign could spark anti-Semitism. So did Israel’s ambassador to Hungary, using language which strongly implied the campaign was anti-Semitic without actually saying so, until Prime Minister Benjamin Netanyahu (correctly) ordered a retraction. A senior European Union official termed Orban’s use of “speculator” anti-Semitic. The Associated Press even ran a story in May headlined “Demonization of Soros recalls old anti-Semitic conspiracies.”

Some attacks on Soros are anti-Semitic, like when someone at an anti-refugee rally in Poland in 2015 set fire to an effigy of an Orthodox Jew which he said represented Soros. That’s classic anti-Semitism; it implies both that the real problem is Soros’s Jewishness rather than anything he did, and that all Jews are responsible for Soros’s actions.

The Hungarian campaign, however, targets Soros not for his Jewishness, which it never even mentions, but for his actions; specifically, the fact that he is one of the main financial backers of pro-immigration organizations in Hungary.

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