Analysis from Israel

Peace Process

Regardless of whether you support or oppose a new law allowing Israel to bar entry to prominent supporters of anti-Israeli boycotts, one outcome was eminently predictable: Israel would lack the guts to enforce it even when doing so was most justified. That was amply proven by Wednesday’s decision to grant a one-year work visa to Human Rights Watch researcher Omar Shakir. By this decision, Israel eviscerated the one crucial point the law got right, despite the many it got wrong: You cannot wage an effective war on the BDS movement while giving the people behind it a pass. As the old truism goes, people are policy.

Shakir is the epitome of someone who should have been denied entry, and his case exemplifies why the law’s basic assumption–that boycotters must be targeted personally–is 100 percent correct. He has given lectures on college campuses in which he accused Israel of being an apartheid state, advocated anti-Israel boycotts, compared Zionism to “Afrikaner nationalism,” rejected a negotiated solution to the Israeli-Palestinian conflict on the grounds that it would “institutionalize injustice,” and called for ending Israel’s existence as a Jewish state. His resume also includes a stint as a legal fellow at the Center for Constitutional Rights, an organization that provides legal assistance and training to BDS activists and files war crimes suits against Israeli defense officials. Nor would discovering all this require any great research skills on the part of government officials; it’s all in a handy memo, complete with links, that NGO Monitor published in December.

Yet in his new role as HRW’s “Israel and Palestine director,” Shakir is supposed to oversee the production of unbiased, objective reports about human rights violations in Israel, the West Bank, and Gaza. Needless to say, the very idea is fatuous; when someone has already made up his mind that Zionism is racism, Israel practices apartheid and a Jewish state has no right to exist, expecting him to produce unbiased research on this subject is like expecting the head of the Ku Klux Klan to preside fairly over the trial of a black man accused of raping a white woman. Instead, Shakir will spend his year here producing reports full of vicious anti-Israel slurs. Thanks to the “halo effect” enjoyed by all human rights organizations, those findings will be treated as credible by numerous well-meaning people overseas and will further undermine Israel in the international arena.

In short, allowing Shakir to take up his post will do Israel incalculable harm. Yet, instead of doing the minimum research required to justify barring him as an individual, the border control authorities made a hasty decision in February to deny him a visa on the sweeping grounds that HRW is an anti-Israel organization. Clearly, accusing an entire organization of being anti-Israel is far harder to justify, even if it happens to be true (which, in HRW’s case, I believe it is). Doing so without exhaustive research and intensive preparation for the inevitable diplomatic backlash was insane.

The predictable result was that the State Department exerted pressure on HRW’s behalf since it’s an American organization. And then, instead of retreating to the narrower and more easily defensible position of barring Shakir on the grounds of his clear unfitness for his post, Israel capitulated completely. Thus instead of HRW being justly embarrassed at having chosen someone so patently unqualified as its “Israel and Palestine director,” boycott advocates were handed a totally unjustified and very public victory.

One might think this is simply a case of bureaucratic ineptitude that has nothing to do with the new law, especially since Shakir’s visa was initially denied before the new law even passed. But the new law actually makes such damaging outcomes even more likely. Why? Because it differs from the old law, which also allowed prominent boycott advocates to be denied entry, in one respect only: Instead of border control officials needing the interior minister’s permission to bar a prominent boycotter, they can now do so on their own authority, unless the government intervenes.

In other words, under the old law, visas were theoretically denied only in cases where the government had already decided it was prepared to stand behind the denial. By handing this authority over to relatively low-level officials, the new law makes it even more likely that the government will end up beating humiliating retreats from eminently reasonable decisions simply because they were made without the necessary research and preparation.

In all other respects, the new law is identical to the old. Like the old one, it applies only to the most prominent boycott advocates. Consequently, it accomplishes nothing except to further increase the likelihood of bureaucratic snafus, while also producing a lot of unfavorable publicity, upsetting even many of the country’s prominent defenders, giving extra ammunition to people who seek to tar Israel as anti-democratic, and creating unwarranted anxiety among well-meaning people who now fear being denied entry on grounds that aren’t even actionable under the law, such as a personal refusal to buy settlement products.

If Israel is to fight the BDS movement effectively, anti-Israel activists like Shakir must be called out as publicly as possible instead of being allowed to pose as objective researchers whose anti-Israel screeds should be considered credible. And barring them from entering the country, precisely because it’s such a high-profile step, can be an effective way of doing so. But if Shakir’s case is any example, the new law will at best contribute nothing to this essential effort, and, at worst, may even end up hindering it.

Originally published in Commentary on April 26, 2017

The U.S. Army recently announced that it has horrifying video footage of Islamic State fighters herding Iraqi civilians into buildings in Mosul. The plan was not to use them as human shields–that is, to announce their presence in the hope of deterring American airstrikes. Rather, ISIS was deliberately trying to ensure that American troops killed them, by “smuggling civilians into buildings, so we won’t see them and trying to bait the coalition to attack,” an army spokesman said at a briefing for Pentagon reporters. The motive, he explained, was hope that massive civilian casualties would produce such an outcry that the U.S. would halt airstrikes altogether.

There’s an important point to this story which the spokesman neglected to mention: This tactic is borrowed directly from Hamas. And it was borrowed because the world’s response to successive Hamas-Israel wars convinced ISIS that creating massive civilian casualties among residents of its own territory is an effective strategy. Admittedly, Hamas hasn’t yet been caught on video actually herding civilians into buildings before launching attacks from them. But there’s plenty of evidence that Hamas prevented civilians from leaving areas whence it was launching rockets or other attacks at Israel, thereby deliberately exposing them to retaliatory strikes.

During the 2014 Gaza war, for instance, the Israel Defense Forces warned civilians to evacuate the town of Beit Lahiya before launching air strikes at Hamas positions. But according to Palestinian human rights activist Bassem Eid, who based himself on interviews with Palestinians in Gaza, Hamas gunmen showed up and warned that anyone who left the town would be treated as a collaborator. Since Hamas executes collaborators, that was equivalent to saying that anyone who tried to leave would be killed on the spot. Thus, faced with the alternative of certain death at Hamas’s hands, most Beit Lahiya residents understandably opted to stay and take their chances with the IDF.

There’s also plenty of evidence that Hamas deliberately launched attacks from buildings where it knew civilians were present. Just last month, for instance, I wrote about a case during the 2009 Gaza war in which Hamas directed sniper fire at Israeli troops from the third floor of a well-known doctor’s home, thereby forcing the soldiers to choose between becoming sitting ducks or shooting back and risking civilian casualties. Unbeknownst to the soldiers, Hamas was also storing explosives in the house (using civilian buildings as arms caches or wiring them with explosives is standard practice for Hamas). Consequently, when the soldiers fired at the Hamas position, an unexpectedly large explosion ensued, killing three of the doctor’s daughters and one of his nieces.

In short, Hamas repeatedly used tactics aimed at maximizing the number of civilian casualties on its own side. Yet instead of blaming Hamas for this, the world largely blamed Israel. Mass demonstrations were held throughout the West condemning Israel; there were no mass demonstrations condemning Hamas. Journalists and “human rights” organizations issued endless reports blaming Israel for the civilian casualties while ignoring or downplaying Hamas’s role in them. Western leaders repeatedly demanded that Israel show “restraint” and accused it of using disproportionate force. Israel, not Hamas, became the subject of a complaint to the International Criminal Court.

Hamas thereby succeeded in putting Israel in a lose-lose situation. Either it could let Hamas launch thousands of rockets at Israeli civilians with impunity, or it could strike back at the price of global opprobrium.

Alan Dershowitz, who aptly calls this the “dead baby strategy,” has been warning for years that unless it “is exposed and rejected in the marketplace of morality, it’s coming to a theater (or school or hospital) near you.” After all, why wouldn’t other terrorist organizations adopt a strategy that has so obviously proven successful?

Now, ISIS has proven his point: It has chosen to deliberately sacrifice civilians rather than employing the more obvious tactic of using them as human shields. Granted, the organization enjoys killing, but based on its track record, it’s also far from stupid. So if it has concluded that dead civilians are more useful than living human shields, it’s because, like Hamas, it considers this a win-win strategy. At worst, America’s reputation will be tarnished, since many people worldwide will blame it for the civilian casualties rather than putting the blame on ISIS, where it belongs. And at best, negative public opinion will force America to abandon the airstrikes altogether.

Nor is the latter hope as far-fetched as it may seem at first glance. It’s true the “dead baby strategy” never persuaded Israel to stop airstrikes against Hamas, but there’s a fundamental difference between the two cases: Israel’s citizens were under direct attack by Hamas rockets and tunnels, and in a choice between sacrificing its citizens’ lives and suffering global opprobrium, any self-respecting country would choose the latter. But ISIS isn’t launching rockets at America from Mosul; the threat it poses is far less immediate. Consequently, the incentive for America to simply back away from the fight if the civilian death toll climbs too high is much greater.

In short, by blaming Israel for civilian casualties that were actually deliberately caused by Hamas’s actions, the world ensured that other terrorist organizations would adopt a similar strategy. Or to put it more bluntly, it ensured that many more civilians would die, because terrorist groups would see a profit in their deaths.

ISIS obviously bears primary blame for all civilian deaths in Mosul. But a portion of that blame is shared by every journalist, “human rights” activist, politician and demonstrator who blamed Israel rather than Hamas for civilian deaths in Gaza–because they are the ones who persuaded ISIS that deliberately sacrificing civilians is an effective way to fight a war.

Originally published in Commentary on April 5, 2017

A review of a comedy of manners set in England in the 1920s wouldn’t seem the obvious place to look to understand why the average Westerner really has no business trying to tell Israelis how to run their country. But two sentences in this New York Times book review encapsulate the problem perfectly: “Historical details, which abound, are often fascinating. (Who knew that beards interfere with gas masks?)”

I’m sure most New York Times readers don’t know that. But virtually every adult Israeli does, other than a few recent immigrants. That’s because almost every adult Israeli either has a gas mask or did at one time (mine still lives in my closet), and many of us have actually worn them. They were distributed nationwide before the 1991 Gulf War, out of fear that Saddam Hussein would put chemical warheads on the missiles he launched at Israel during the war. Israel, incidentally, was one of only two countries Saddam launched missiles at, even though it wasn’t one of the 39 countries actually waging war on Iraq at the time.

Since then, Israel has run several nationwide campaigns to get people to exchange their old gas masks for new ones. That gas masks have an expiration date is another fascinating “historical” detail most Westerners probably don’t know (the campaigns ended a few years ago, after the implosion of both Iraq and Syria reduced the risk of a chemical attack). Israel also passed a law requiring every new house to include a bomb shelter capable of doubling as a sealed room, since ordinary bomb shelters offer no protection against chemical attacks (yet another little-known “historical” detail). That’s one of many factors contributing to the country’s sky-high housing costs, but not one Israelis complain about. In-house bomb shelters are even more necessary today, given the thousands of rockets launched at Israel by both Hezbollah and Hamas over the last 10 to 15 years.

Even Israelis who were children in 1991 undoubtedly remember being woken by sirens in the middle of the night, rushing to makeshift sealed rooms (heavy-duty plastic wrap, tape and damp towels), putting on their masks and sitting for hours waiting for the all-clear. The adults also remember being unable to fall asleep at night while awaiting that siren. The chronic sleep deprivation experienced by people under missile bombardment is another little-known historical detail (somehow, it never seems to interest human rights organizations as much as the sleep deprivation of captured terrorists during interrogations).

As for beards, this being Israel, a public battle raged for months in 1990-91 over whether Haredi men, who normally don’t shave for religious reasons, should be given special, more expensive masks that can accommodate beards, or whether they could reasonably be expected to shave, given that in Jewish law, saving a life trumps most other religious precepts. There was even a high-profile court case by a secular bearded man charging discrimination because Haredim got the special masks while he did not (he won).

Of course, there’s no reason why reviewer Susan Coll or any other Westerner should know any of these “historical details.” Thankfully, no Western country has faced the threat of bombardment with chemical warheads, or even conventional rockets, in more than 70 years. The problem is that so many Westerners who share her ignorance feel fully qualified to tell Israel what it should do, despite not knowing the most basic facts about the security challenges it faces.

If you don’t even know that beards interfere with gas masks, something every Israeli has been forced by hard necessity to learn, or if you see that fact as nothing but a “fascinating historical detail,” what makes you qualified to give advice to a country whose security challenges are so clearly outside your knowledge and experience? What makes you qualified to decide how Israel should cope with the hundreds of thousands of missiles pointed at it? What makes you qualified to insist that withdrawing from the West Bank doesn’t pose a serious risk, or that bombing rocket storehouses in Gaza causes disproportionate harm?

Most people wouldn’t dream of proposing solutions to, say, the mystery of dark matter unless they were experts in cutting-edge astrophysics. Yet hundreds of thousands of people worldwide see no problem with propounding solutions to the Israeli-Palestinian conflict despite not knowing even elementary facts.

It would be nice if some of those people would evince a little more humility. But as long as they don’t, they really shouldn’t be surprised that Israeli voters keep rejecting their prescriptions.

Originally published in Commentary on March 22, 2017

There’s been a lot of talk lately about the Trump Administration’s plan to slash funding for the State Department, so I’d like to offer my own modest proposal in that direction: Kill the department’s human rights bureau.

This isn’t because I think America shouldn’t care about human rights. On the contrary, I think it ought to shine a spotlight on the world’s worst abusers, given that the UN Human Rights Council and so-called human rights organizations fail to do so. But since the bureau, judging by its latest annual human rights report, does nothing but channel those institutions’ Israel obsession, I see no reason to waste taxpayer dollars on it.

Haaretz reporter Amir Tibon did a numerical analysis of the report earlier this month and discovered two astounding facts. First, the document “devotes 141 pages to the human rights situation in Israel and the occupied Palestinian territories, more than to any other country in the world except China,” which gets the same number. Second, “Even when viewed as two separate reports, the number of pages devoted to each of the areas–Israel and the occupied territories–surpasses that of any other country in the Middle East region.” For instance, Israel alone, excluding the territories, gets 69 pages; by comparison, Iran gets 48 and Syria 58.

Since a normal reader would assume the amount of space devoted to a country bears some relationship to the magnitude of its human rights offenses, any such reader would have to conclude that Israel is a far worse human rights violator than, say, Syria, where the government has slaughtered hundreds of thousands of its own citizens. It must certainly be worse than Iran, which has abetted that slaughter with both money and troops.

But the report becomes even more surreal when you start examining the “crimes” to which the State Department devoted all that ink. Take, for instance, the demolition of illegal construction in the Israeli Bedouin town of Umm al-Hiran.

We’ll leave aside the question of why demolishing illegal construction–with the approval of several courts, including the Supreme Court, and while offering the residents alternative land plus cash compensation–constitutes a human rights violation at all. It’s enough to consider a single sentence, which is based on a report by an Israeli NGO, the Negev Coexistence Forum: “The NCF reported that construction work on [the planned new town of] Hiran progressed and expanded during the year, reaching to within a few yards of Bedouin houses in Umm al-Hiran, and residents suffered from the dust raised by construction.”

Is this a joke? Or do State’s human rights gurus seriously think people suffering from the dust of nearby construction constitutes a human rights violation? By that logic, the only place anyone could build without violating human rights would be in wilderness areas. In other words, we’d essentially have to shut down all construction worldwide.

Or take its section on press freedom, which quotes another NGO, the Association for Civil Rights in Israel. It begins as follows: “The independent media were active and expressed a wide variety of views without restriction. In December, however, ACRI published a report detailing a variety of legislative and rhetorical attacks on media throughout the year by elected officials, especially Prime Minister Netanyahu, and expressed concern about the chilling effect of these attacks on press freedom.”

In other words, State thinks it’s reasonable to fear a “chilling effect” on Israel’s media even though its own first sentence admits there’s no evidence of any such thing (“The independent media were active and expressed a wide variety of views”). Even worse, however, the nonexistent human rights problem it alleges would be solvable only by creating a real one. How could Israel possibly prevent elected officials’ “rhetorical attacks on media” without suppressing their own freedom of speech?

But far worse than such inanities is the way the report traffics in unsupported libel. Take, for instance, this gem: “There were reports some children worked in forced labor in the West Bank, including in settlements. NGOs reported employers subjected Palestinian men to forced labor in Israeli settlements … The PA was unable to monitor and investigate abuses in these areas.”

In other words, the State Department accused Israel of subjecting Palestinians–including children–to forced labor, without citing a single example to substantiate this accusation. It did so despite admitting that it doesn’t actually have any evidence aside from unspecified “reports” by unspecified “NGOs,” which even the Palestinian Authority wasn’t prepared to back (it “was unable to monitor and investigate” the allegations). Nor is this lack of evidence surprising, since the accusation is groundless (shockingly, Israel isn’t running forced labor camps in the settlements). So why was such a vile, unsubstantiated allegation even included in the report?

A human rights report worthy of the name would prioritize, devoting most of its attention to the world’s worst abusers. It would reflect enough basic good judgment to excise inanities like “suffering from construction dust.” It would either try to confirm unsubstantiated allegations or omit them because they were unsubstantiated. And it might even include some original investigating about human rights abuses in the many oppressive dictatorships that “human rights” organizations find less enthralling than democratic Israel.

Instead, the State Department apparently just copy-pasted anything it could find from such organizations, no matter how ludicrous or unsubstantiated. That inevitably resulted in paying absurdly excessive attention to Israel, because that’s what most “human rights” organizations do. If you doubt that, just consider this stunning graph from the Elder of Ziyon blog analyzing Amnesty International’s tweets during one month in summer 2015: Amnesty spared only four tweets for Syria’s ongoing civil war, but devoted over 60 to Israel and Gaza, most of them rehashing a war that had ended a year earlier with less than half a percent of Syria’s death toll.

In short, the human rights bureau simply generated a U.S.-sponsored version of the same anti-Israel bias Ambassador Nikki Haley so rightly condemns at the UN. And if so, then really, who needs it?

Originally published in Commentary on March 20, 2017

I’m not naïve enough to think that better PR would solve all of Israel’s international relations problems. But there’s no question that incompetent PR makes its situation much worse. As one example, consider Tuesday’s shocking revelation: Within about 24 hours of the most high-profile civilian casualty incident of the 2009 Gaza war, Israel had obtained evidence casting doubt on its responsibility for that death. But it sat on this evidence for more than eight years, finally releasing it only as part of a defense brief in a civil suit by the victims’ father.

The incident in question took place on January 16, 2009, when Israeli troops fighting in Gaza came under sniper fire. The troops fired two shells at an observation post that seemed to be directing the snipers. The observation post was located on the third floor of a building which, unbeknownst to the soldiers, was also the home of a well-known doctor, Izzeldin Abuelaish. Three of Abuelaish’s daughters were killed, along with one of his nieces; several other family members were wounded. Abuelaish, who worked in Israel, maintained good relations with Israelis and advocated for Israeli-Palestinian peace, later became famous worldwide when he published a book about this incident and his response to it, called I Shall Not Hate. Israel was blamed worldwide for the Abuelaish casualties and never publicly challenged the assumption of its guilt. Yet it now turns out that within a day after the incident, it had evidence indicating that its shells may not have caused the carnage.

The evidence came in the form of laboratory tests conducted on six pieces of shrapnel extracted from the two casualties treated in Israel (the other wounded weren’t brought to Israel, nor were any of the dead, so no shrapnel from the other victims was available). The tests showed that alongside traces of various explosives used by both the Israel Defense Forces and Hamas, at least one fragment contained an explosive called R-Salt, which isn’t used by the IDF but is commonly used in improvised explosive devices in Gaza. Moreover, all six fragments contained potassium nitrate, another substance not used in IDF weaponry that is used in Hamas’s homemade Qassam rockets.

A follow-up report a month later, which compared the shrapnel to the specific type of Israeli shells fired, concluded that four of the six fragments could not possibly have come from those shells; a fifth “may have come” from an IDF shell, and apparently, no conclusions were possible about the sixth.

All of the above indicates that Hamas or a smaller Palestinian organization was using the house as a weapons cache. According to the IDF, there is no other way to account for the presence of non-IDF explosives in the shrapnel.

This in no way implies culpability on Abuelaish’s part; Palestinian terrorists routinely store weaponry in civilian houses without the owners’ consent or even knowledge. But it does raise the possibility that the Israeli shells, which were intended to take out the observation post without significant damage to the house, would not have caused such extensive casualties had the house not contained a concealed weapons cache–something the soldiers couldn’t have known–which exploded when the shells hit. And if so, then Israel clearly isn’t responsible for the deaths: It used a reasonable amount of force to respond to a legitimate military threat and could not have foreseen the deadly consequences.

One of the most common accusations leveled at Israel by its critics is that because it possesses precision weaponry capable of feats like destroying a single room without damaging the rest of the building, any civilian casualties it causes must be the result of criminal negligence at best and deliberate murderousness at worst. That conclusion is obviously possible only if you ignore various salient facts, such as that mistakes are inevitable in wartime when soldiers must often make split-second decisions based on imperfect information.

But one of those salient facts is Hamas’s habit of storing arms and ammunition in civilian houses–without, obviously, informing Israel of the caches’ locations. This means that no matter how carefully Israeli troops choose their munitions, they have no way to protect against the possibility that an arms cache they didn’t know about will set off secondary explosions, resulting in far more extensive damage than they intended.

This fact is essential to understanding why the blame for most civilian casualties actually rests not with Israel, which does try hard to use proportionate military force, but with Hamas, which deliberately endangers its own civilian population by hiding weapons in their houses. Yet since it is frequently not well understood overseas, Israel has every interest in publicizing high-profile examples as heavily as possible.

Instead, it sat on its information about the Abuelaish case for eight years. The lab report was kept so secret that even Abuelaish’s lawyers didn’t know of its existence until last week, although the suit was filed back in 2010. And then, having finally been forced to disclose the report to defend against the lawsuit, the government nevertheless made no attempt to publicize it; it came to light only because a reporter took the trouble to read the defense brief and realized that the information was newsworthy.

Obviously, information like this won’t change a single Israel hater’s mind. But there are many people of goodwill, especially overseas Jews, who sincerely want to believe that the IDF strives to avoid civilian casualties, but can’t understand why, if so, they nevertheless keep occurring.

Israel has many valid answers to that question, including the fact that its civilian-to-military casualty ratio is actually lower than that of other Western armies. But these answers are useless if it doesn’t take the trouble to publicize them. Sitting on exculpatory information about a high-profile case for eight years is hardly the way to assuage its supporters’ concerns.

Originally published in Commentary on March 15, 2017

A few weeks ago, the security threat Israel faced from Palestinian terror looked relatively low. But then Barack Obama and John Kerry decided to meddle. The consequences were eminently predictable: They got to enjoy feeling self-righteous, while Israelis and Palestinians pay the price in blood.

Here’s what things looked like a few weeks ago: The lone-wolf Palestinian terror attacks that were proliferating a year ago had largely died down since most Palestinians had concluded (correctly) that they weren’t accomplishing anything. Rocket attacks from Gaza were at their lowest point in 11 years, with only 15 rockets fired in all of 2016, down from 24 in 2015. Moreover, the fact that just 39 rockets were fired in the two years following the Gaza war of 2014 showed that this war had created far greater deterrence than its predecessors. By comparison, 261 rockets were fired in the two years after the 2009 war and 412 in the two years after the 2012 war. And if further proof were needed of the war’s deterrent effect, there was Hamas’s bizarre offer last month to share its homemade rockets with anyone willing to use them against Israel–a clear indication that it had no intention of waging its own war anytime soon. If it did, it would be stockpiling its rockets rather than trying to hawk them.

But by last week, things looked very different. Israeli defense officials reported a sharp upsurge in attempted Palestinian attacks–primarily rock-throwing, but there was also a deadly car ramming in Jerusalem that killed four soldiers and wounded 16. In a highly unusual statement, the officials noted that this rise had occurred in the two weeks since the UN Security Council passed a resolution condemning Israeli settlements on December 23. And while the increase was partly attributable to the Palestinian exam season (when more teens are out throwing rocks because regular classes are canceled), it was much steeper than the usual exam-period spike.

That this upsurge occurred immediately after the UN resolution is no coincidence. Defense officials obviously can’t spell out the causal connection. It would be highly unseemly for them to accuse the Obama Administration of fomenting anti-Israel terror. But a commentator is subject to no such restraints, so let me explain.

In the months preceding the resolution, the international community had started paying more attention than ever before to the way the Palestinian Authority incites and encourages terror. For instance, a July report by the Quartet (comprising the U.S., UN, EU and Russia) infuriated the PA by including an unequivocal condemnation of PA incitement, complete with examples. Even more significantly, the British government announced last month that it was putting new restrictions on aid to the PA because of its payment of salaries to imprisoned terrorists, while the U.S. Congress is considering slashing aid to the PA for the same reason. Since the PA is already facing serious funding shortfalls, these were worrisome developments. Consequently, it had begun ratcheting its anti-Israel incitement ever so slightly downward.

But then came the UN resolution, followed by Kerry’s speech on the peace process five days later, and the PA realized it no longer had to worry about incitement: The good old days, in which the world blamed Israel alone for the absence of peace, were back. The resolution–which wrongly deemed the settlements both illegal and an impediment to peace and demanded that all states take punitive action against them by distinguishing, “in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”–didn’t utter a word of criticism of the Palestinians. True, it included a generic condemnation of incitement and terror, but without any mention of who was perpetrating said incitement and terror, allowing the Palestinians to claim that even this section was aimed solely at Israel. Kerry then reinforced the message by devoting the lion’s share of his speech to the settlements, with Palestinian incitement and terror coming only a distant second.

Consequently, the PA felt free to ramp its incitement back up to full force. And it did, to deadly effect.

Shortly before the resolution passed, for instance, a Jerusalem Post reporter who asked more than two dozen east Jerusalem Palestinians what they thought of reported plans to move the U.S. embassy from Tel Aviv to Jerusalem couldn’t find a single one who cared. But then the PA, bolstered by the resolution and Kerry’s speech, ordered all imams under its control to devote their sermons on Friday, January 6 to why the embassy move was unacceptable and would/could/should lead to violence. After all, the world could hardly object to that. Kerry himself had said exactly the same thing. And on January 8, an east Jerusalem Palestinian carried out the car-ramming that killed four soldiers. His relatives said he did so after hearing a local imam assail the proposed embassy move in his Friday sermon.

But Palestinian incitement isn’t just deadly to Israelis; it’s even deadlier to Palestinians. Whenever violence breaks out, Palestinians always end up with the higher death toll; that’s inevitable, given Israel’s superior weaponry. Unfortunately, that has never yet deterred the Palestinian leadership from fomenting it. Thus, by reassuring the PA that it will face no international consequences for inciting, the Obama/Kerry team guaranteed bloodshed on both sides.

Two and a half years ago, I detailed how another Obama/Kerry effort to promote Israeli-Palestinian peace ended up sparking a war instead. But either they learned nothing from that fiasco, or they simply don’t care how many Israelis and Palestinians die for the sake of enabling them to posture self-righteously on the world stage. After all, they’ll be out of office at the end of the week. Israelis and Palestinians will still be here bleeding.

Originally published in Commentary on January 17, 2017

Despite 23 years on repeated failure, Martin Indyk remains convinced that he knows exactly how to solve the Israeli-Palestinian conflict. Without a trace of embarrassment, he unveiled his latest plan in the New York Times last week, a “Jerusalem first” approach that calls for the Old City to be run by “a special regime that maintained the religious status quo and ensured that the three religious authorities continued to administer their respective holy sites.” But with characteristic disdain for reality, he ignored the elephant in the room: The status quo he seeks to preserve, especially on the Temple Mount, is actually unacceptable to both sides–and should be unacceptable to anyone who cares about the fundamental right of freedom of religion.

Unlike many veteran peace processers, Indyk doesn’t pretend that Jews have no connection to the Mount. He admits that it contains “the ruins of Judaism’s holiest of holies.” He simply seems to think it’s perfectly reasonable to expect Jews to forgo any contact, even the most tenuous, with their holiest site in perpetuity. Not, of course, that he puts it that bluntly. But when you consider what’s happening on the Mount even today, when Islamic authorities don’t yet have absolute control, it’s hard to imagine his “solution” producing any other outcome. And it’s equally hard to see why anyone should consider the current situation acceptable.

Just last week, for instance, Palestinian guards employed by the Islamic Waqf (religious trust) that runs the Mount’s day-to-day affairs tried to eject an Israeli archeologist from the site merely for daring to use the term “Temple Mount” in a lecture to American students. They demanded that he use the Mount’s Islamic name instead, and when he refused, they demanded that Israeli policemen on the site eject him. Other tour guides subsequently told the Times of Israel that this isn’t an uncommon occurrence.

Disgracefully, the Israeli police–who have long since decided their job on the Mount isn’t protecting Israelis’ rights, but kowtowing to the Waqf’s every whim to prevent Arab rioting–seconded the request that Dr. Gabriel Barkay stop using the site’s Judeo-Christian name. But at least they also told the Waqf guards that they couldn’t evict him merely for using the term “Temple Mount.” Under full Islamic control, even uttering that name would evidently be a punishable offense.

Or consider what happened to Jerusalem Post reporter Lahav Harkov when she visited the Mount in September 2015. As usual, the Waqf guards harassed her nonstop, over everything from the length of her skirt (below the knees, but not ankle length) through taking pictures to standing still for longer than the guards deemed proper. But the climax came when, moved by thoughts of the Temple, she unexpectedly began to cry. A Waqf guard promptly started shouting at her in Arabic. And once again, an Israeli policeman disgracefully seconded the Waqf’s complaint: “You can’t close your eyes and cry. That’s like praying.”

Yet at least the Israeli police didn’t kick her off the Mount. Had the Waqf had its way, she would never even have been allowed to enter.

In a 2014 report for the Jerusalem Center for Public Affairs, journalist Nadav Shragai, an expert on Jerusalem’s history, detailed all the ways the “status quo” on the Mount has eroded to the Jews’ detriment since 1967. Jewish visiting hours have been drastically curtailed; Jews can no longer enter the mosques, even as the portion of the Mount occupied by the mosques has expanded greatly; the Waqf has been allowed to destroy Jewish archaeological relics with impunity; and so forth. All this has happened even though Israel nominally controls the Mount.

But to Palestinians, even the one right Jews still retain on the Mount, the right of a strictly limited number to pay strictly controlled visits–as long as they don’t mind nonstop harassment and refrain from doing anything offensive to the Waqf, like praying, tearing up, or using the term “Temple Mount”–is unacceptable. The consensus Palestinian position today, as memorably articulated by their “moderate” leader Mahmoud Abbas, is that Jews who ascend the Mount are “defiling” it with their “filthy feet.” In short, the Palestinians aren’t interested in preserving the Mount’s status quo; what they want is to ban any Jew from ever setting foot on it again.

Yet the status quo is equally unacceptable to a growing number of Jews – and rightly so. There’s no reason why Jews shouldn’t be allowed to visit their holiest site whenever and in whatever numbers they please, aside from, say, during Muslim holidays or Friday prayers at the mosque. There’s no reason Jewish visitors to the site should be unable even to shed a tear or use its Hebrew name.  And there’s especially no reason why Jews should be denied the right to pray at their holiest site, as long as they don’t do it in the mosque itself – which they wouldn’t want to do anyway, since Jewish law forbids entering the area where the Holy of Holies once stood, and its exact location isn’t known. Thus Jewish prayer would be possible only in peripheral areas, where there’s no risk of violating Jewish law.

Nor can one credibly argue that it’s impossible for Jews and Muslims to share a holy site; at Israel’s insistence, they’ve been doing it at the Tomb of the Patriarchs in Hebron for decades. The only thing that makes the Mount different is that there, Israel has shied away from enforcing a similar equal-access arrangement.

Thus, instead of sanctifying the “status quo,” it’s long past time to admit that this status quo grossly violates basic religious rights, that the violations are only getting worse, and that this deterioration will continue unless Israel takes steps to reverse it. In short, it’s time for Israel to scrap the status quo and finally start protecting Jewish as well as Muslim rights on the Mount. And it’s time for America, whose own constitution enshrines freedom of religion, to fully back Israel in doing so.

Originally published in Commentary on January 11, 2017

The massive support in Israel for soldier Elor Azaria, who was convicted of manslaughter on Wednesday for killing a wounded Palestinian terrorist, has confounded some of its friends and supplied ammunition for its enemies. So it’s important to understand why that support is so widespread. Jonathan Tobin correctly explained some of the reasons yesterday, including the fact that most Israelis have limited sympathy for terrorists. But to a large extent, this is also a self-inflicted wound by the two people at the top of the military chain of command, who forgot the most basic principle of justice: Not only must it be done, but it must be seen to be done. By their own actions, they managed to create an appearance of injustice in a case where I believe none actually occurred.

The shooting occurred at about 8:30 A.M. on March 24. Five hours later, B’Tselem released videotaped footage of it. By that evening–at a time when the Military Police investigation had barely begun, and long before the video could have been examined to ensure it hadn’t been doctored–both then-Defense Minister Moshe Ya’alon and Israel Defense Forces Chief of Staff Gadi Eisenkot had already unequivocally condemned Azaria’s behavior. Ya’alon said it “completely contradicts” IDF values, while an IDF spokesman termed it a “grave breach” of IDF standards. Such condemnations continued in the coming days. On March 28, for instance, three weeks before the military prosecution decided to file charges, Ya’alon told the Knesset that Azaria was “a soldier who has transgressed, and not a hero.” In other words, both Ya’alon and the army had declared Azaria guilty even before he was charged.

In conversations with friends shortly after the incident, it was this that most infuriated them and aroused their sympathy for Azaria: They felt that the men in charge of the army, whose job was to ensure that any soldier suspected of wrongdoing receives a fair hearing, had instead rushed to judgment against him in order to appease a hostile world after B’Tselem made its video public. Moreover, they wondered whether Azaria could even receive a fair trial when the two men who must sign off on promotions for every senior military police officer, prosecutor and judge had already made it clear that they expected a conviction. Under those circumstances, would military justice officials risk their careers by exonerating Azaria if the evidence justified it?

To be clear, based on the evidence that later emerged in court, I think Eisenkot and Ya’alon had good reason to believe Azaria had “transgressed” even when they first spoke out. The officer at the scene had reported the incident to his superiors as a possible crime within minutes of its occurrence, and this report, including damning testimony from other soldiers at the scene, had moved swiftly up the chain of command, leading army officials to decide a criminal investigation was warranted even before B’Tselem published its video.

But by immediately and publicly condemning Azaria – instead of saying, as the army usually does, that his conduct must be deemed unacceptable if proven, but meanwhile, the case is under investigation and the military justice system should be allowed to work without interference–they created an appearance that the deck had been stacked against the soldier. And since most Israelis weren’t following the minutia of the court hearings, that initial impression is what remained: In response to a video released by an irredeemably hostile organization, and whose authenticity had yet to be proven, the two men who headed the army had declared Azaria guilty even before the investigation began.

This impression was reinforced over the ensuing months by the fact that Eisenkot, in particular, refused to stop talking about the case, while demonstrating shocking insensitivity to the way his comments would sound to most Israelis. The very day before the verdict was issued, for instance, he said, “An 18-year-old man serving in the army is not ‘everyone’s child’ … He is a fighter, a soldier, who must dedicate his life to carry out the tasks we give him.”

Obviously, the second part of that statement is true; the army can’t function if its 18-year-old draftees aren’t treated as soldiers and fighters. But to parents, their child is always “their child,” even after he turns 18 and dons a uniform. And because in Israel, most young men do army service, most parents can imagine their own son in any other soldier’s place. In that sense, Azaria is “everyone’s child,” just as kidnapped soldier Gilad Shalit was “everyone’s child.” Israelis therefore overwhelmingly supported freeing 1,027 terrorists to secure his freedom. Israeli parents entrust the army with their most precious possession–their children–and in return, they expect the army to take the best possible care of them that’s consistent with carrying out its military functions.

Thus, when Eisenkot dismissively declared that a soldier isn’t “everyone’s child,” what Israeli parents heard was a refusal to acknowledge that his soldiers are indeed also their children, whose protection must be high on his priority list. And that merely reinforced the impression left by his initial hasty condemnations: In responding to the case, he had given insufficient weight to his responsibility toward his soldiers.

Based on the evidence, I see no reason to think Azaria was in fact convicted unjustly. But from the start, Eisenkot and Ya’alon created the appearance of injustice by routinely speaking out against Azaria when they should simply have kept silent and let the military justice system do its work. The result is that now, many Israelis still aren’t certain Azaria was convicted fairly, and that has translated into overwhelming support for an early pardon.

This case has sowed devastating distrust of both the army’s leadership and its justice system among a large section of the Israeli public. Yet much of that distrust could have been avoided had Ya’alon and Eisenkot simply kept their mouths shut. That neither man proved capable of doing so is a damning indictment of them, and a tragedy for Israel.

Originally published in Commentary on January 5, 2017

The first relevant document is the 1922 League of Nations Mandate for Palestine. It explicitly allocated all of what is today Israel, the West Bank and Gaza as a “Jewish national home,” stressed that none of this territory could “be ceded or leased to, or in any way placed under the control of, the Government of any foreign Power,” and authorized “close settlement by Jews on the land.” It also allocated what is now Jordan to the Jewish national home, but with an explicit proviso that Britain, the Mandatory power, could “postpone or withhold application” of the Mandate’s terms to that territory if it so chose. No such proviso attached to the rest of the territory; it was awarded to the “Jewish national home” permanently and unconditionally.

After the League of Nations dissolved, the various international guarantees it had conferred were explicitly preserved in Article 80 of the UN Charter. That provision states that nothing in the charter shall be construed “to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.” Nor did the 1947 Partition Plan revoke this guarantee: It was adopted by the General Assembly, which under the UN’s own rules means it was nonbinding. It could have become a binding international treaty had both Jews and Arabs accepted it, but in fact, the Arabs rejected it.The next major development was UN Security Council 242. As I’ve noted before, this document was explicitly worded to allow Israel to keep parts of the territory it captured in the 1967 Six-Day War:

This resolution purposefully required an Israeli withdrawal only from “territories” captured in 1967, not “the territories” or “all the territories.” As Lord Caradon, the British UN ambassador who drafted 242, explained, “It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial.” America’s then UN ambassador, Arthur Goldberg, similarly said the two omitted words “were not accidental …. the resolution speaks of withdrawal from occupied territories without defining the extent of withdrawal.” This was equally clear to the Soviet Union and Arab states, which is why they unsuccessfully pushed to include those extra words.

This wording is also fully consistent with the 1922 Mandate and the Article 80 guarantee. The Security Council undoubtedly expected Israel to cede parts of the West Bank under some future peace deal; land for peace, after all, was the explicit policy of the Israeli government of that time. But by not defining the extent of the withdrawal, the resolution left open the possibility that Israel could satisfy its terms even without ceding an inch of the West Bank, by withdrawing instead from other captured territories. And in fact, Israel gave up over 90 percent of the territory it captured in 1967 just by withdrawing from Sinai in 1982.

Successive international agreements similarly preserve Israel’s claim to territory beyond the 1949 armistice line, aka “the Green Line” or “the pre-1967 border.” For instance, the 1949 armistice agreement with Jordan, which illegally occupied the West Bank and east Jerusalem from 1948-67, states explicitly that “no provision of this Agreement shall in any way prejudice the rights, claims, and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations.” In other words, it fully preserves Israel’s claim to the West Bank. Moreover, it was witnessed by two senior UN officials, with copies sent to three different UN agencies, including the Security Council–the same Security Council that so cavalierly abrogated this UN guarantee last week.

Fast forward to the 1993 Oslo Accord, under which Israel voluntarily gave parts of the West Bank and Gaza to the Palestinians, and you still won’t find any sanctification of the 1949 armistice line. The accord explicitly lists “Jerusalem” and “settlements” as “issues that will be negotiated in the permanent status negotiations,” meaning Israel did not concede its claim to either east Jerusalem or any of the territory on which the settlements sit. This document was formally witnessed by the United States and Russia–two of the countries that blithely voted to abrogate its terms last week.

The 1995 Interim Agreement transferred additional territory to the Palestinians, but once again designated Jerusalem and the settlements as issues to be negotiated in final-status talks, thereby preserving Israel’s claims to them. This agreement also added several other witnesses, including Egypt and the European Union. Egypt is currently a Security Council member, as are three EU countries: France, Spain and Britain (which voted to leave the EU but hasn’t yet done so). So we’re now up to six Security Council members that voted last week to abrogate agreements they witnessed.

Not coincidentally, Resolution 2334 also treats Israel in a way no other UN member has ever been treated. As Eugene Kontorovich and Penny Grunseid wrote three months ago, the UN has never deemed any other state an “occupying power”–not Turkey in northern Cyprus, not Russia in Georgia or Crimea, not Armenia in Azerbaijan, etc. Yet those countries actually are occupying other countries’ territory. Israel, in contrast, is “occupying” territory that never belonged to any other country (no state of “Palestine” ever existed at any point in human history) and to which it has the strongest claim under international law.

In short, Resolution 2334 violates previous League of Nations and Security Council decisions; it violates signed agreements witnessed by the very states that voted for it; it violates a fundamental principle of all law by setting one standard for Israel and another for the rest of the world. As such, there’s only one possible way for anyone who actually cares about “international law” to treat it–as having “no legal validity” whatsoever.

Originally published in Commentary on December 29, 2016

There’s really only one suitable Zionist response to last week’s UN Security Council resolution on the settlements: massive settlement construction. That’s the appropriate response for more than one reason, but I’ll focus here on the most obvious one: The resolution proves conclusively that Israel gets no credit for showing restraint on this issue, so there’s no earthly reason why it should continue suffering the costs of restraint.

As I’ve written repeatedly in the past, data from Israel’s Central Bureau of Statistics shows that there has been less settlement construction under Prime Minister Benjamin Netanyahu than under any of his predecessors. Nor is this a matter of partisan dispute: The left-wing daily Haaretz, a virulent opponent of both Netanyahu and the settlements, used the same data to reach the same conclusion last year.

Moreover, fully three-quarters of the growth in the settlements’ population under Netanyahu has been in the major blocs, which every serious international peace proposal for decades has concluded will remain Israeli under any Israeli-Palestinian deal. Again, this isn’t a matter of partisan dispute; that three-quarters figure comes from Shaul Arieli, a veteran peace activist who is also a virulent opponent of Netanyahu and the settlements.

Finally, almost all the growth in the settler population under Netanyahu has stemmed from natural increase – i.e. women having babies – rather than people actually moving to the settlements. The Haaretz report put the proportion at 74 percent; Arieli’s study, which is more recent, put it at almost 90 percent. Either way, the bottom line is that the only way Israel could have prevented this growth was by passing legislation requiring the forced sterilization of every woman in the settlements. Even the UN hasn’t demanded that yet.

For Netanyahu, this restraint has come at a real price. First, it caused him political damage, because it infuriated his voter base. The result, as I’ve noted before, is that by last month, he was facing an open revolt in his own party over the issue.

Second, it caused Israel strategic damage, because it kept the country from strengthening its hold over areas that most Israeli governments have considered essential for security under any future agreement. To take just one example, all Israeli premiers have deemed the E1 corridor, which links Jerusalem with the Ma’aleh Adumim settlement bloc, critical for Israel’s security – even Yitzhak Rabin, the patron saint of the peace process. Moreover, E1 in no way prevents the possibility of a contiguous Palestinian state, and has actually been assigned to Israel by every serious international peace plan ever proposed. Yet for years, Israel has refrained from building there out of deference to international public opinion, even as illegal Palestinian construction has mushroomed in this formerly empty area. The result is that it now has no “facts on the ground” to act as a counterweight to Palestinian claims. And since Palestinian claims always enjoy the international community’s automatic support, facts on the ground, in the form of large numbers of Israelis whom it’s

simply too difficult to evacuate, are Israel’s best guarantee of retaining areas it deems essential to its security.

Third, settlement restraint has caused major financial damage by exacerbating Israel’s massive housing crisis. As of last year, the price of an average apartment had soared to 146 average monthly salaries, more than double the ratio in most other countries, and up from just 43 in 2008; rents have risen correspondingly. In short, housing in Israel has simply become unaffordable for most people, and that’s a major threat to Israel’s future: People will neither remain in nor move to a country where they can’t even afford to put a roof over their head. Yet substantial building in the settlement blocs and eastern Jerusalem – where Netanyahu has also imposed an undeclared freeze in deference to the international community – could have alleviated the shortage responsible for this massive price rise. The settlement blocs are all within commuting distance of the center of the country, which is where the jobs are, and thus where people want to live; inside the Green Line, in contrast, there are few empty areas left in the country’s narrow waist. And in Jerusalem, the housing shortage is the main reason why the capital loses some 18,000 Jews every year.

Netanyahu was willing to absorb all this damage in the belief that international leaders, regardless of what they said publicly, would know the truth about the brakes he has put on settlement construction and support him when it mattered. But to most of the world, the facts have never mattered where Israel is concerned, and it turns out the same is true of the post-truth Obama Administration: Deputy National Security Advisor Ben Rhodes justified America’s support for the resolution (and support is the right word, because in this case, abstaining was no different than voting yes) with the spurious claim that the vote was motivated by an “acceleration of settlement activity” under Netanyahu.

It’s hard to say what impact the resolution will actually have, but there are at least two possible negative consequences. First, its declaration that the settlements are “a flagrant violation under international law” could spur the International Criminal Court, which is already considering a case against Israel over the settlements, to go ahead with it, by assuring prosecutor Fatou Bensouda that such action would enjoy widespread international support. Second, its demand that all states “distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967” provides a tailwind for international boycotts and sanctions against Israel and Israeli companies, since Israel itself considers some of those territories – for example, the Western Wall – to be sovereign Israeli territory.

So if Israel is going to be accused of “accelerated settlement activity” and slapped with potentially serious consequences no matter how much restraint it shows, there’s no justification whatsoever for it to incur the very real costs of this restraint. Hence there’s only one sensible response to this resolution: Build, baby, build.

Originally published in The Jewish Press on December 28, 2016

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ISIS Borrows a Tactic from Hamas

The U.S. Army recently announced that it has horrifying video footage of Islamic State fighters herding Iraqi civilians into buildings in Mosul. The plan was not to use them as human shields–that is, to announce their presence in the hope of deterring American airstrikes. Rather, ISIS was deliberately trying to ensure that American troops killed them, by “smuggling civilians into buildings, so we won’t see them and trying to bait the coalition to attack,” an army spokesman said at a briefing for Pentagon reporters. The motive, he explained, was hope that massive civilian casualties would produce such an outcry that the U.S. would halt airstrikes altogether.

There’s an important point to this story which the spokesman neglected to mention: This tactic is borrowed directly from Hamas. And it was borrowed because the world’s response to successive Hamas-Israel wars convinced ISIS that creating massive civilian casualties among residents of its own territory is an effective strategy. Admittedly, Hamas hasn’t yet been caught on video actually herding civilians into buildings before launching attacks from them. But there’s plenty of evidence that Hamas prevented civilians from leaving areas whence it was launching rockets or other attacks at Israel, thereby deliberately exposing them to retaliatory strikes.

During the 2014 Gaza war, for instance, the Israel Defense Forces warned civilians to evacuate the town of Beit Lahiya before launching air strikes at Hamas positions. But according to Palestinian human rights activist Bassem Eid, who based himself on interviews with Palestinians in Gaza, Hamas gunmen showed up and warned that anyone who left the town would be treated as a collaborator. Since Hamas executes collaborators, that was equivalent to saying that anyone who tried to leave would be killed on the spot. Thus, faced with the alternative of certain death at Hamas’s hands, most Beit Lahiya residents understandably opted to stay and take their chances with the IDF.

There’s also plenty of evidence that Hamas deliberately launched attacks from buildings where it knew civilians were present. Just last month, for instance, I wrote about a case during the 2009 Gaza war in which Hamas directed sniper fire at Israeli troops from the third floor of a well-known doctor’s home, thereby forcing the soldiers to choose between becoming sitting ducks or shooting back and risking civilian casualties. Unbeknownst to the soldiers, Hamas was also storing explosives in the house (using civilian buildings as arms caches or wiring them with explosives is standard practice for Hamas). Consequently, when the soldiers fired at the Hamas position, an unexpectedly large explosion ensued, killing three of the doctor’s daughters and one of his nieces.

In short, Hamas repeatedly used tactics aimed at maximizing the number of civilian casualties on its own side. Yet instead of blaming Hamas for this, the world largely blamed Israel. Mass demonstrations were held throughout the West condemning Israel; there were no mass demonstrations condemning Hamas. Journalists and “human rights” organizations issued endless reports blaming Israel for the civilian casualties while ignoring or downplaying Hamas’s role in them. Western leaders repeatedly demanded that Israel show “restraint” and accused it of using disproportionate force. Israel, not Hamas, became the subject of a complaint to the International Criminal Court.

Hamas thereby succeeded in putting Israel in a lose-lose situation. Either it could let Hamas launch thousands of rockets at Israeli civilians with impunity, or it could strike back at the price of global opprobrium.

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