Evacuating Settlers Is Not The Same As Japanese Internment
May 1, 2012 § Leave a comment
Moshe Arens is a longtime Likud wise man, having served as foreign minister and three tours as defense minister, but his compass is off this morning. Writing in Haaretz, Arens argues that forcing the settlers in Ulpana to leave their homes is wrong similarly to the way that uprooting settlers as part of disengaging from Gaza was unjust. This is a perfectly understandable viewpoint, albeit one I disagree with. The problem is that Arens then makes an unfortunate comparison which is incorrect on a number of levels. Arens writes:
The government decision involved a blatant violation of the civil rights of thousands of Israeli citizens, and a petition against it was filed with the High Court of Justice – the ultimate protector of the civil rights of Israeli citizens and all those living under Israeli sovereignty or Israeli jurisdiction, the ultimate arbiter of complaints against injustice and unlawful acts. The court, nevertheless, upheld the government’s decision.
In retrospect, the massive uprooting of so many Israeli citizens from their homes, by force, is now seen by many as a gross miscarriage of justice, similar to the case of the expulsion of U.S. citizens of Japanese origin from their homes in World War II. That government decision was also upheld by a supreme court and regretted in later years. In both cases, force was used against citizens who had violated no laws.
No matter what your view is of the Gaza disengagement, the comparison with Japanese internment during WWII is a bad one. To begin with, Arens’s characterization of what happened during WWII is ahistorical to an extreme degree. Arens asserts that Japanese-Americans were expelled from their homes and thus compares them to settlers in Gaza who were also expelled from their homes. The problem with this is that U.S. citizens of Japanese origin were not simply expelled from their homes; they were also put in detention camps. It was not a matter of only telling Japanese-Americans where they couldn’t go, but also confining them to a specific area and keeping them there by force. The settlers who were forced to leave Gaza were placed under no such restrictions. Once the disengagement was carried out, they were free to go and live in any place of their choosing in Israel. Arens purposely muddies the waters here by referring to “expulsion” without once mentioning internment, thereby creating a false parallel between the two cases. No doubt he is aware of the entire history of the treatment of Japanese-Americans during WWII, even if he is counting on the fact that some of his readers are not.
Furthermore, Arens’s comparison between the two cases does not work because the circumstances are too dissimilar. Gaza was not Israeli sovereign territory but was under Israeli military control and administrative jurisdiction. This gave the state a lot more leeway in how it made and carried out decisions related to Gaza, and enabled the government and the military to take unilateral actions in the name of national security that would not be allowed within Israel’s borders. In addition, all settlers in Gaza were ordered to leave regardless of their race, ethnic origin, or any other category, because the disengagement applied to any Israeli citizen residing within a defined territory. No distinctions were made between different types of citizens since the military directive was a blanket one.
In contrast, the executive order signed by FDR designated parts of the West Coast as military areas despite the fact that they were on sovereign U.S. soil and were not under attack or part of any arena in which warfare was taking place. Their legal status was more complicated during wartime, but nobody was asserting that they constituted permanent extra-judicial territory. Furthermore, Civilian Exclusion Order Number 34 removed from the Western U.S. all citizens of Japanese ancestry and only citizens of Japanese ancestry. This was not a military order related to a particular territory like the Gaza disengagement, but was rather a military order related to a particular group of people. The dissents in Korematsu (with the exception of Justice Jackson’s) did not object to the notion of expelling citizens from a particular area for reasonable national security reasons but were predicated on the fact that citizens were expelled and then interned in camps solely because of their ancestry without regard to any other factor. This is certainly not what happened in Gaza. Arens implies that Korematsu is now viewed as a “gross miscarriage of justice” because it uprooted citizens from their homes, but that is only a half-truth. It is viewed this way because it uprooted citizens from their homes and then also detained them, and both of these decisions were based solely on race. As Justice Murphy wrote in his dissenting opinion:
The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so “immediate, imminent, and impending” as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger….Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment.
The Gaza disengagement does not fit the facts of Japanese internment during WWII at all. The settlers were not deprived of their rights in any way (Israel has no constitution, which is a completely separate problem) since any right to live in Gaza disappeared once the order was given to evacuate a territory under military administrative control, and the settlers were not discriminated against in any way. Arens understandably wants to connect what is now universally viewed in the U.S. as a national disgrace to what he views as an Israeli national disgrace, but the situations are too completely different to successfully make that comparison without purposely misleading on the facts, as Arens does.
The settlers who were uprooted from Gaza in many ways got a raw deal. The state encouraged them to go there in the first place and subsidized their lives there, and then following the disengagement did an abysmal job of compensating them for their economic losses. Their standard of living has dropped dramatically and the government has not followed through on its efforts to make them whole again. Nevertheless, the comparison to Japanese internment during WWII is an atrocious one, and Arens undermines his larger argument by making it.
The Pitfalls of Preconditions
April 3, 2012 § 6 Comments
Barak Ravid reports in Haaretz that long-time negotiators Saeb Erekat and Yitzchak Molcho recently met in secret in an effort to revive dormant Israeli-Palestinian peace talks, and that the PA has outlined a number of demands that it plans on presenting to Netanyahu as preconditions to negotiations. Unsurprisingly, Abbas’s preconditions are that negotiations begin with a baseline of the 1967 borders and that Israel freeze all settlement activity.
While the Palestinians are in a difficult spot and want to gain some leverage going into peace talks, the preconditions gambit is a continuation of the same negotiating mistake. A little reminder of recent history is helpful in understanding why this is. When AIPAC convened its annual conference in March 2010, the attendees gathered during a particularly rocky period for Israel diplomatically. Earlier that month, Vice President Biden had landed in Tel Aviv to be infamously greeted with an announcement of 1600 new housing units in East Jerusalem which led to a mini-crisis with the United States and an hour-long dressing down from Secretary of State Clinton. Israel’s deputy foreign minister Danny Ayalon was fresh off causing a diplomatic crisis with Turkey following his attempt to humiliate the Turkish ambassador with cameras rolling in response to Turkish television dramas portraying Israeli soldiers as kidnappers and intentional murderers of innocent civilians. Britain was also threatening to cut intelligence ties and cease intelligence sharing following revelations that Israel had used British passports while assassinating a Hamas military leader in Dubai.
Most importantly, serious pressure was building up for Israel to make real concessions in service of creating an independent Palestinian state. President Obama had called for Israel and the Palestinian Authority to resume negotiations and had pressed Israel for a freeze on all settlement activity. The PA seemed for the first time in nearly two decades to be making progress in building state institutions in the West Bank, and the U.S.-trained PA police force was winning accolades for its progress and professionalism. There was also a growing sense among military officials that a lack of progress on the Israeli-Palestinian front was becoming a problem for the U.S., embodied by General David Petraeus’s Senate testimony that anti-American sentiment in the Middle East was partly due to the absence of a Palestinian state. The momentum for an independent Palestine was building, and following the Biden episode and the fury among top U.S. officials at what they saw as an unacceptable humiliation of the vice president, the Palestinians were in an ideal situation to negotiate a favorable resolution to the conflict.
Such negotiations never took place, however, because the Palestinian Authority committed the crucial mistake of setting preconditions before coming to the negotiating table. As every first year law student required to read the seminal negotiation treatise Getting To Yes can tell you, setting preconditions to negotiating is a tactic that almost always fails. The book’s very first lesson is not to bargain over positions as it is inefficient, damages the relationship between parties, and leads to bad agreements. Tactics such as setting preconditions and refusing to negotiate until they are met are fated to backfire if the objective is to reach an agreement, as the other side is likely to dig in and paint the refusal to negotiate as evidence of bad faith. Over time, the party setting the preconditions will become hostage to the perception that it has no interest in reaching a deal, and will then be forced to maintain its principled position even when events on the ground put it at a disadvantage or give up credibility and leverage by dropping its demand entirely. In short, setting preconditions before agreeing to negotiate an agreement is rarely going to be a winning strategy.
In early 2010, Abbas insisted that no negotiations could take place absent a complete freeze on all building activity in the West Bank and East Jerusalem, which was a condition that Israel was in no way prepared to meet given the extension of the freeze request to East Jerusalem. Netanyahu did, however, agree to a 10 month West Bank settlement freeze, allowing him to take the high road by announcing that he was making concessions and was ready to negotiate at any time while portraying the Palestinians as unwilling peace partners. By September 2010, following months of demands that Israel freeze all East Jerusalem construction, the Palestinians finally agreed to negotiate, but by that point it was too late, as Israel’s settlement freeze expired. Events on the ground had also shifted by that point and Obama announced his unwillingness to ask the Israelis for yet another halt to all West Bank building activity, and the Palestinians were in no position to make a credible case having squandered months of potential negotiations. Fast forward two years later to the most recent AIPAC conference, and the Palestinians and peace negotiations barely registered with attention turned exclusively to Iran.
Despite all this, Abbas is about to pull a Groundhog Day and make the exact same mistake, although this time his starting point is far less favorable and thus his tactic is even more unlikely to work. The question is whether the PA actually wants to have serious negotiations at this point in time or is just looking to win a p.r. battle with Israel. If it’s the latter, then setting preconditions makes sense since it highlights Israeli settlement activity, which is already being cast in an unfavorable light following the High Court’s Migron decision and the current standoff between the IDF and the prime minister’s office over the Beit Hamachpela group in Hebron. If the objective is to actually negotiate though, Abbas and Erekat need to wake up to the fact that setting preconditions is a terrible negotiating strategy that is fated to fail from the start.
Honesty About the Settlers In Hebron
April 2, 2012 § Leave a comment
There is nothing at all positive to say about the news that Netanyahu has asked Barak to delay implementing an IDF order to evacuate the settlers who moved into a house across from the Cave of the Patriarchs in Hebron. The settlers appear to have legally bought the building from its Palestinian owner (although it was done through a front man so that the owner would not know that it was being bought by Jews, which is a sad commentary on both sides) and then moved in without the proper permits, and were ordered to leave by the IDF so as not to disturb public order. Bibi then asked Barak not to enforce the army’s order, but that request has apparently been rejected.
It’s important to be up front about what is going on here. There cannot be a policy of settlers and their supporters cheering on the IDF when it makes determinations in the name of national security about the route of the security fence, or decides where Palestinians can or cannot travel within the West Bank, or enforces a West Bank closure during Jewish holidays, but then slamming the IDF when it uses the same security rationale on settlers. If it is the job of the IDF to keep the general peace in the areas under military occupation, then its decisions cannot be questioned only when they apply to one side but not to the other.
It is also crucial to recognize that the settlers in Hebron, or Migron for that matter, are not there because of cheap housing, government subsidies, or a desire to live in proximity to Jerusalem. They are also not living in large towns over the Green Line that everyone presumes will become part of Israel proper in an eventual deal with the Palestinians. The argument about applying patience and understanding with these types of non-ideological settlers – one which I understand and sympathize with – does not apply in any way, shape, or form to the 500 folks who decide to live in Hebron for purely ideological and religious reasons. I have been to Hebron and visited the homes of the settlers who live there, and they are true believers in every sense of the word. They do not live there for economic reasons or because the government made it easy for them to do so. They live there because they fervently believe in the righteousness of their cause, which is ensuring that there is a Jewish presence throughout the entire biblical land of Israel, and particularly in Hebron, which is the holiest city in Judaism outside of Jerusalem. There is no logical argument that can possibly be made justifying their presence there on security grounds, and they do not intend to vacate when asked, nor do they make any pretenses of hiding their abhorrence at the idea of an independent Palestinian state.
Now, they are certainly entitled to their opinions and their views, and they have the right to espouse them as loudly as anyone else. But when Netanyahu attempts to delay a military order that was issued in order to avoid a messy situation that might easily degenerate into violence, let’s not pretend that it has anything to do with Israel’s legitimate security needs or the lack of a true Palestinian partner for peace. There are many good reasons why Israel cannot pick up and immediately leave the West Bank, and even though I think this needs to happen as soon as possible, I am all too familiar with the real security concerns presented by the Palestinian response following the Gaza disengagement. The group of settlers in Hebron, however, is well outside the realm of real security concerns. They recognize the danger of being there, and yet they remain despite the danger they create for others by doing so. Their presence there is on purely ideological grounds and has nothing to do with Israel’s defense. So when Netanyahu puts forth his litany of reasons for why Israel cannot leave the West Bank, remember that none of those reasons apply when he asks his defense minister to contravene an army order that was issued to prevent a possible conflagration in Hebron. This is craven politics, pure and simple, and like I wrote about Migron, nothing good can possibly come out of this. It just reinforces what an intractable situation Israel has gotten itself into, and how difficult it is going to be to eventually reach a negotiated peace agreement.
Migron and What Comes Next
March 26, 2012 § 1 Comment
Migron is the kind of place that should never be in the news. It is a relatively small outpost in the West Bank that was started, vacated, and started again, built on land privately owned by Palestinians, and will never in a million years be part of any land swaps that might take place should the Israelis and Palestinians work out a peace agreement. Last August, the Israeli Supreme Court ordered it to be evacuated and demolished by the end of this month, and there is no reason that anyone but the government and the residents of Migron should have thought about it ever again. Yet, Migron is now all over the news because the government negotiated a deal with Migron’s residents to allow them to stay for another three years and then amazingly asked the Supreme Court to ignore its own ruling and approve the new agreement.
This might seem at first glance like a strange strategic move, but it was actually a smart one on its face because the makeup of the Court has changed. The new president, Asher Grunis, is a conservative who was able to assume his new position last month despite being less than three years away from the mandatory retirement age of 70 after the Knesset passed a law clearing the way for him to be appointed. The reason this was done is because his predecessor, Dorit Beinisch, who was responsible for the Migron decision among others, was seen as extremely activist and the assumption was that having Grunis at the helm would make the Court more compliant with the government’s wishes. In the first real test of this theory, however, the government has been unpleasantly shocked, as Grunis was part of the three judge panel that unanimously ruled yesterday that the deal between the government and Migron’s residents does not supersede the Court’s order from last August, which means that Migron must be demolished by the end of the week August 1.
No matter what your political persuasion, it is tough to view this as anything but a victory for the rule of law and judicial independence. The Court’s order was clear, and the fact that the government and Migron’s residents petitioned the Court to approve their deal casts aside any doubts as to whether the government has the power to simply disregard the original decision. The question now is whether the Knesset will scramble to pass a bypass law that nullifies the Court’s decision through a legislative override. If this happens, it will be a truly disastrous move on a number of fronts. With all of the attention that has been focused – including by me – on the various anti-democratic legislation moving through the Knesset, passing a law to avoid enforcement of a Court decision that was itself an attempt to enforce a previous Court decision would add unnecessary fuel to the fire, and provide ammunition to people who erroneously declare Israel to no longer be a democracy. A legislative override will also further doom any last shred of prospect that remains for a peace agreement with the Palestinians, since if the government cannot bring itself to evacuate a place like Migron, it is exceedingly difficult to imagine ever uprooting any settlements as part of a negotiated deal for a Palestinian state. Bypassing the Court is also terrible timing given that Israel is about to face Goldstone Redux, since the new UN committee set up to investigate the settlements is without a doubt going to issue a damning report, and Israel is making the same ill-considered mistake it made last time by refusing to cooperate at all and cutting off all communication with UNHRC commissioner Navi Pillay. What is going to happen next is sadly predictable – Israel will not try to lobby the committee at all in the belief that doing so would grant the committee legitimacy, the committee will blast Israel in every possible way and the government’s strategy will be an utter failure when nobody ignores the report or accepts Israel’s argument that its lack of cooperation makes the report illegitimate, and Israel will then spend months, if not years, complaining that its side of the story was not represented and that it is being unfairly demonized by a one-sided version of the facts.
So for a variety of reasons, this is just not the time to create an even bigger mess by sending the message that Israeli Supreme Court decisions can be ignored whenever they put the government in an uncomfortable position or conflict with the politics of Likud’s coalition. Yet, I’ll bet almost anything that Migron is not evacuated and demolished by week’s end August 1, and that Likud’s younger rightwing vanguard does everything in its power to make sure that the Migron decision is consigned to nothingness. The Knesset’s current coalition politics will not allow anything less, and Israel will continue to fight a losing battle to convince the world that it is blameless for the situation with the Palestinians and that it will be able to withdraw from part of the West Bank whenever the Palestinian leadership is interested in returning to the negotiating table. Migron and all of the machinations surrounding its eventual fate is a crushingly sad symbol of the state of Israeli politics and the inertia of the peace process.
Why I Do Not Agree With A Settlement Boycott, Cont.
March 22, 2012 § Leave a comment
I wrote a few days ago that one of the reasons I do not support Peter Beinart’s call for a settlement boycott is that it is unlikely to achieve the result that he believes it will since the Israeli economy does not depend on the settlements to a particularly large extent. Via the Forward, some hard facts and numbers backing up my assertion and an acknowledgement from Beinart himself that the economic impact would be limited.
Ottoman Law and Adverse Possession in the West Bank
March 20, 2012 § 1 Comment
The Israeli Supreme Court issued a ruling today that overturned a law remaining on the books from the Ottoman period allowing settlers to claim ownership of land that they did not previously own if they have farmed it for at least ten years. Law students will immediately recognize the parallel to adverse possession, which is a common law concept relating to property that allows someone who openly, notoriously, and continually possesses someone else’s land to gain ownership of it after a set amount of time (I have blocked most memories of law school from my mind, but I seem to recall seven years as being the minimum). This Supreme Court ruling does away with the use of adverse possession in the West Bank, and it should be applauded for two reasons.
One, there is a distinction to be made between settlers who have used the law to gain possession of farm land and the type of adverse possession law that exists in the U.S. The reasoning behind adverse possession in U.S. common law is that we want to maximize the efficient use of property, and so if the adverse possessor is using the land in a productive manner and the land’s true owner is neglecting it, utility maximization dictates that the person using the land should get to continue to do so legally. There is an important component to this, however, which is that the adverse possessor does so openly and notoriously, which gives the land’s owner adequate notice and opportunity to challenge the adverse possessor. In the West Bank cases, the original Palestinian owners have largely not been afforded the opportunity to evict the settlers farming the land or have been blocked from challenging the settlers in court due to the military’s jurisdiction over the West Bank. Today’s ruling rights what is a clear wrong, and does not allow settlers to, in the words of the court, invade land rather than honestly take it.
Two, that the Israeli Supreme Court stepped in to overturn this law on behalf of Palestinians in the West Bank is an important reminder that Israel is indeed a democracy and even in matters pertaining to the West Bank the rule of law can prevail. The usual caveat applies, which is that Israel’s actions in the West Bank do not befit a democratic state and its use of military law there should be ended as soon as possible. Nevertheless, those who loudly proclaim Israel to be an authoritarian polity across the board are wrong, and today’s decision illustrates that in a meaningful way.
