Opposition to Unconstitutional Undemocratic Un-American Pro-Apartheid Bill sometimes referred to as anti-BDS Legislation

MEMORANDUM

To:       State Representative 

From:  Ronald W. Fox

Re:       Opposition to Unconstitutional Undemocratic Un-American Pro-Apartheid Bill sometimes referred to as Anti-BDS Legislation

Date:   January 11, 2017

PROPOSED BILL

The law proposed by the Jewish Community Relations Council prohibiting the Commonwealth of Massachusetts from contracting with those who support the Boycott Divestment and Sanctions Movement designed to bring non-violent pressure on Israel to cease violating international, human and civil rights as well as international criminal laws is not only unconstitutional but is un-American, anti-democratic, unjust, supportive of inequality, intolerance and injustice, and, most ironic,  is in opposition to the basic values of Judaism.

While most of the civilized world is bringing pressure on Israel because of its illegal occupation and illegal settlements, this law, in effect, rejects the argument that settlement growth is an obstacle to peace;  says nothing about Israel’s continued violations of Palestinian human rights; supports the predictable increase in deaths and property destruction on both sides; and, finally, gives a green light from the United States for Israel’s continued expansion of the settlements resulting in Israel achieving its long time goal of the annexation of the West Bank (code words – Judea and Samaria) and thereby killing the vision of a two state solution with a viable contiguous Palestinian state

PERSONAL BACKGROUND

I am a 76 year old Jewish person who was born in Lynn, left to go to college and law school, spent three years primarily in Albuquerque, New Mexico, serving in the US Army JAG. I returned to this area and have lived in Marblehead since 1968 where I and my wife, Joan, raised our two children.

I have been involved with the Jewish community nearly all my life, beginning with preparing for my Bar Mitzvah at Temple Beth El on Breed Street in Lynn in 1952. I have served on the boards or committees of Temple Beth El, the Marblehead Jewish Community Center, the local Jewish Federation and Temple Shalom in Salem.  My wife and I, in 1971, dissatisfied with the local temples established a Havurah (Jewish Fellowship Community) through which we created and celebrated Jewish holidays in our homes and other venues, such as a sunrise Rosh Hashanah service at Plum Island.

About this time I became aware of the conflict between the Israelis and the Palestinians and, since 1972, for the last 44 years I have been a constant reader, observer, speaker and writer/blogger on the conflict between the Palestinians and the Israelis.

In the June 12, 1980 New York Times is an ad I signed. The heading said “End Middle East Bloodshed” and it read in part, “We are deeply saddened by the failure of the leadership of the Government of Israel to end its settlement policy and to restrain Jews from hostile actions in the territories.” (See Attachment 1)

I have also planned and put on a debate on Israel in Lebanon – Invasion or Self-Defense (1982); formed a sister-community relationship with Wadi-Na’am, a Bedouin village in Israel proper whose structures were being demolished by the Government of Israel; was the adviser to public service law students at Harvard Law School (1984-1989); formed a small group to discuss I/P related issues (1990-2007); was involved in the Tikkun Community,  a national organization seeking peace with justice in I/P  (2001-2006); published a blog “Judaism and Israel” (2007); and presently support organizations actively promoting peace with justice including Jewish Voice for Peace, B’Tselem - The Israeli Information Center for Human Rights in the Occupied Territories, Rabbis for Human Rights and ICAHD  -  Israeli Committee Against House Demolitions.

THE OCCUPATION

The occupation of the West Bank began in 1967.  On November 22, 1967, the United Nations Security Council passed Resolution 242 which states in part,

“Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter (renouncing the acquisition of territory by force) 1. Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles: (i) Withdrawal of Israel armed forces from territories occupied in the recent conflict.”

Israel has been in violation of the United Nations Charter Article 2 and Resolution 242 since 1967. The year 2017 will mark 50th anniversary of the longest occupation in the world.

THE SETTLEMENTS

Vladimir Jabotinsky, in the 1920s, preached a ``Greater Israel," on both sides of the Jordan with a Jewish majority outweighing the Arab population, to be won by force and guarded, in his famous phrase, by an ``Iron Wall" which was needed to  protect the enclave while they established a majority as quickly as possible.” He admonished the Jews to stand up straight, to stop cringing and making excuses, and to tell the goyim ``to go to hell."

In early September 1967, Prime Minister Levi Eshkol was considering granting the first approval for settlements in the West Bank and Golan Heights, conquered three months earlier in the Six-Day War. He also wanted to re-establish the kibbutz of Kfar Etzion near Bethlehem, which had been lost in Israel's 1948 war of independence. The legal counsel of the Foreign Ministry, Theodor Meron, was asked whether international law allowed settlement in the newly conquered land. In a memo marked "Top Secret," Mr. Meron wrote unequivocally, "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention."  In the detailed opinion that accompanied that note, Mr. Meron explained that the Convention -- to which Israel was a signatory -- forbade an occupying power from moving its civilians to occupied territory.

But his advice was ignored. In 1967 Kfar Etzion settlement was founded by Jewish Israelis in the occupied West Bank. On April 13, 1968, Rabbi Moshe Levinger led a group of eighty-eight Israeli Jewish people into Hebron in the occupied West Bank and celebrated Passover at the Park Hotel. The Government of Israel took no action to remove them.

From 1968 on, each successive Israeli government encouraged and often gave financial incentives to encourage Jewish Israelis to move to the West Bank, investing significant resources in establishing and expanding the settlements in the Occupied Territories, both in terms of the area of land they occupy and in terms of population.

From 1968 to 1972 Jewish Israeli citizens founded 11 more settlements.

In a conversation in 1973 with Winston Churchill III, Ariel Sharon said;

“We’ll make a pastrami sandwich of them. We’ll insert a strip of Jewish settlement in between the Palestinians, and then another strip of Jewish settlement right across the West Bank, so that in 25 years time, neither the UN nor the US, nobody will be able to tear it apart”.

In July, 1977, Menachem Begin refuses President Jimmy Carter’s request to freeze settlement activity.

In September, 1977, Ariel Sharon, as minister of agriculture, unveils “A vision of Israel at Century’s End” calling for the settlement of 2 million Jews in the occupied territories.

In an April 21, 1978 opinion, the Legal Adviser of the Department of State in the administration of President Carter reporting to Congress on the legal status of Israeli settlements in the occupied territories stated,

“While Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for the reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with international law.”

By 1980 there were 53 settlements where approximately 12,500 Jewish Israelis squatters lived.

Also in 1980 the UN Security Council passed Resolution 465 stating,

"Settlements and International Law – 5. Determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel's policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and .. a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East.”

By 1988 there were 110 settlements where approximately 63,600 Jewish Israeli squatters lived.

On the 25th anniversary of his infamous pastrami pledge, Ariel Sharon, as foreign minister, in comments broadcast on Israeli radio in November, 1998, said,

“Everybody has to move, run and grab as many [Palestinian] hilltops as they can to enlarge the [Jewish] settlements because everything we take now will stay ours... Everything we don't grab will go to them.”

On April 14, 2002, Rabbi Ben-Zion Gold at Harvard Hillel said;

“Building of Israeli settlements in parts of the West Bank has frustrated their (Palestinians) hopes. At this point three generations of Palestinians have lived for thirty-five years under Israeli occupation and the persistent building of settlements on their land has led to violent conflict.  When Sharon was elected  . . his commitment to the preservation of the settlements precluded the possibility of a peaceful resolution of the conflict.  . the conflict cannot be solved by power alone. Then by what? By removing the basis for the conflict. The Jewish settlements on the West Bank are a grave and dangerous mistake that have done much harm to Israel. Micah. ‘He has told you, O man, Only to do justice and to love goodness, and to walk humbly with your God.’ By all means, Humbly.”

Also in 2002, Archbishop Desmond Tutu said,

 “In a region where repressive governments and unjust policies are the norm, Israel is certainly more democratic that most of its neighbors.  This does not make dismantling the settlements any less of a priority.  .  Over 35 new settlements have been constructed this year.  Each one is a step away from the safety deserved by the Israelis and two steps away from the justice owed to the Palestinians.  If apartheid ended, so can the occupation, but the moral force and international pressure will have to be just as determined.”

As of 2016, there are now 123 settlements where approximately 350,000 Jewish Israeli settlers (because they are illegally there, I will refer to them as “squatters”) live. This does not include approximately 200,000 squatters in East Jerusalem which the State of Israel claims to have annexed but which is not recognized by any international organization.

At the same time 2.5 million Palestinians now live in 100% segregated communities “side by side” with squatters who have moved into government subsidized or privately-financed settlements built on confiscated Palestinian land in violation of international law. The use of extrajudicial process (theft and questionable military necessity) to take control of over 60% of the West Bank has been thoroughly documented in “Land Grab” published by B’Tselem – The Israeli Information Center for Human Right in the Occupied Territories

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West Bank Palestinians live under an occupation that controls their movement, subjects them to military law written by the Israeli army, and have no voting rights. Despite living outside Israel’s internationally-recognized borders, the West Bank’s co-mingled squatters are citizens of Israel, live under its judicial code, and have full Israeli voting rights.

 

The Israeli governments since 1967 have pursued goals and an approach consistent with Jabotinsky’s philosophy in deed if not in words and in pursuit of that, to make life so miserable for the Palestinians that they will emigrate from the West Bank. Israel’s delays and excuses for not engaging in good faith negotiations have been a cover for the goal of ultimately annexing “Judea and Samaria” (the West Bank). The government of Israel has never had and has now no intention of supporting the establishment of a viable contiguous Palestinian state.

Attached are three documents I drafted in 2003:

Facts Which Might Apply to the Issue of the Legality of Settlements in the West Bank (See Attachment 2);

Laws Which Might Apply to the Issue of the Legality of Settlements n the West Bank (See Attachment 3); and

Quotes Over the Years About the Illegality and Immorality of the Settlements (See Attachment 4).

INTERNATIONAL HUMAN RIGHTS VIOLATIONS CAUSED BY SETTLEMENTS

The settlements violate international human rights laws, international criminal laws, hundreds of UN actions, the fundamental and core values of Judaism and American values of democracy, equality and justice. In addition, their existence has led Israel to violate many other human and civil rights of Palestinians, including Israel:

distributing water unequally denying Palestinians fair access to minimal water while allowing ample water to squatters for irrigation and pools. (See Attachment 5)

taking control over 40% of the West Bank;

destroying over 48,000 homes and other structures since 1967 (very few for security reasons);

building a wall, 85% inside the green line separating families from their lands, schools and businesses;

overlooking squatters and the IDF destroying 800,000 olive trees; illegally establishing one (military) law for Palestinians and another (Israeli) law for squatters;

failing to enforce criminal laws against squatters while punishing Palestinians for the same actions;

illegally restricting movement by constructing many checkpoints and physical barriers (many unrelated to security concerns resulting in difficulty in getting to jobs and medical assistance; 

holding thousands of Palestinians, sometimes more than a year, without ever charging them with a crime.

AND ISRAEL’S FOUR INVASIONS OF GAZA

On four occasions since 2006, Israel has chosen to invade Gaza through wars of choice, using excessive force, including in 2014 in which over 2000 Palestinians, mostly women and children and two-thirds civilians, were killed and over 96,000 houses and structures were destroyed or damaged. There is evidence that Israel initiated these invasions and/or used minor acts to justify them. Some experts believe that Israel’s actions included war crimes.

AND 1000’S OF INSTANCES OF IDF AND SQUATTERS VIOLENCE AND INHUMANITY

B’Tselem has document such acts in frequent reports from 2001 to 2014. (See Attachment 6)

These actions would be unthinkable and abhorrent and illegal in the United State (substitute Native Americans and Blacks for Palestinians) and yet the US not only fails to pressure Israel in the UN but has now passed a 10 year $38 billion military aid deal.

WHO OPPOSES THE SETTLEMENTS

The UN General Assembly has passed hundreds of resolutions since 1967 critical of Israel’s occupation and settlements. In 2015 the UN General Assembly passed 23 resolutions condemning countries - 20 targeted Israel (exploitation of natural resource, nuclear proliferation, Palestinian self-determination, assistance to Palestinian refugees, human rights, settlements, etc.) and 3 were aimed at the rest of the world). Since 1972 the US has vetoed 88 UN resolutions condemning and otherwise criticizing Israel for violations of the Palestinian human, civil and other rights. (See Attachment 7)

International Criminal Court – In 1998, the Rome Statute of the International Criminal Court defined the transfer by an Occupying Power of parts of its own civilian population into the territory it occupies as a War Crime indictable by the International Criminal Court.

Fourth Geneva Convention - The Fourth Geneva Convention Relative to Civilian Persons in Time of War, of 1949: Article 49 states “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Universal Declaration of Human Rights (1966) - Israel is a signatory and has for nearly 50 years violated these rights of Palestinians contained in the declaration including the Right to Self-Determination, the Right to Equality, the Right to Property, the Rights to an Adequate Standard of Living and the Freedom of Movement.

Israeli Officials including former heads of Shin Bet.  In the powerful movie, Gatekeepers, six former heads of Shin Bet deplored most of the political leaders who have shaped their nations’ history not be being too weak but for being too rigid, hypocritical or indifferent to negotiate with their Arab enemies. One of the former heads, Mr. Shalom, said, “We have become cruel. To ourselves as well, but mainly to the occupied population”.

An Israeli -Yitzhak Frankenthal on July 27, 2002 said,

“My beloved son Arik, my own flesh and blood, was murdered by Palestinians. The Palestinians … have been ready to make peace with us; it is we who are unwilling to make peace with them .. as an occupation force it is we who trample over human dignity, it is we who crush the liberty of Palestinians and it is we who push an entire nation to crazy acts of despair.  Finally, I call on my brothers and sisters in the settlements – see what we have come to.”

Nine mainstream Christian denominations/organizations, including the Methodists, are so opposed to settlements that they have adopted resolutions not to buy settlement goods.

Foreign governments – as of September 14, 2015, 136 (70.5%) of the 193 member states of the United Nations have recognized the State of Palestine.

US presidents including Jimmy Carter, George H.W. Bush and Barack Obama.

Secretary of State John Kerry on December 4, 2016, according to the New York Times, “accused right-wing Israelis of deliberately thwarting efforts to broker a peace deal with the Palestinians. In unusually stark terms, Mr. Kerry warned that the building of Israeli settlements was undermining any hope of an agreement to allow two states to live side by side.  In the view of the United States government, Israel’s accelerated building on Palestinian-owned land is a deliberate obstacle to peace, Mr. Kerry added.”

Jewish groups including Jewish Voice for Peace, J-Street and Americans for Peace Now.

Jewish Americans including the signers of a Boston Globe full page ad (See Attachment 8) and a Pew Research Center survey in 2013 found that “just 17% of American Jews think the continued building of settlements in the West Bank is helpful to Israel’s security; 44% say that settlement construction hurts Israel’s own security interests. 

WHO SUPPORTS THE SETTLEMENTS

The Congress of the United States and President-Elect Trump’s nominee as Ambassador to Israel.

THE UN RESOLUTION AND SECRETARY KERRY’S STATEMENT

I do object, however, to the action of the UN, and Kerry’s statement explaining the US action in abstaining as not going far enough. Secretary Kerry’s speech focused on the settlements and made passing references to the human rights violations by Israel.  For a US high official to powerfully condemn Israel for anything is certainly positive. Many in this country will have heard for the first time a well thought out presentation blasting Israel for trampling on the rights of Palestinians.  However, Kerry’s main point was that the US abstained (NOTE the US did not vote for it) to preserve the two state solution and he provided evidence of decades of Israel’s adamant refusal to comply with US demands that it discontinue its support for the building of settlements. He also made the point that the alternative, one state, is unacceptable, but, if it results, it could only be Jewish OR a democracy. It cannot be both. Since preserving the two state solution is consistent with US values such as democracy, equality, justice and dignity, the US did not veto (NOTE despite Israel acting contrary to US principles for decades, we gave Israel a $38B commitment).

IS THE TWO STATE SOLUTION IS DEAD

The close to terminal case of the two state solution has been brought about by Israel’s aggressive settlement policy allowing the building of illegal settlements and military control areas in the West Bank, thereby making the establishment of a viable contiguous Palestinians state physically and politically nearly impossible. There now are just too many Jewish Settlers— what Israelis call “facts on the ground” scattered throughout the West Bank. (See Attachment 9) - Area A includes 18% of the land and most of the Palestinian population. The Palestinian Authority has most government powers in Area B, mostly rural comprising 22%. Israel has control over Area C which covers 60% of the West Bank and contains all the settlements. Palestinians are not allowed to have any economic activity in Area C or receive permits to build there.

Jimmy Carter in a recent interview published in the Prospect, a UK magazine: said “At this moment there is zero chance of the two-state solution… (Israel’s Prime Minister) .. does not now and has never sincerely believed in a two-state solution for Israel and Palestine. … The Netanyahu government decided early on to adopt a one-state solution, ..  but without giving them [the Palestinians] equal rights.” Thomas Friedman in an op-ed published on February 10, 2016, “The peace process is dead. It’s over, folks, so please stop sending the New York Times Op-Ed page editor your proposals for a two-state solution between Israelis and Palestinians.” Prime Minister of Israel Benjamin Netanyahu “ “At least one good thing came out of the election in Israel on Tuesday, when voters appeared to return Prime Minister Benjamin Netanyahu to power. Going forward, there will be a lot fewer illusions about the hawkish prime minister, who once supported a two-state solution with the Palestinians but explicitly rejected it during the campaign.” Boston Globe editorial on March 20, 2015.

WHAT IS THE BOYCOTT, DIVESTMENT AND SANCTIONS (BDS) MOVEMENT

I am proud to support BDS

Boycott, Divestment, Sanctions (BDS) is a Palestinian-led movement for freedom, justice and equality. BDS upholds the simple principle that Palestinians are entitled to the same rights as the rest of humanity. Israel is occupying and colonizing Palestinian land, discriminating against Palestinian citizens of Israel and denying Palestinian refugees the right to return to their homes. Inspired by the South African anti-apartheid movement, the BDS call urges action to pressure Israel to comply with international law.

Boycotts involve withdrawing support for Israel and Israeli and international companies that are involved in the violation of Palestinian human rights, as well as complicit Israeli sporting, cultural and academic institutions.

Divestment campaigns urge banks, local councils, churches, pension funds and universities to withdraw investments from all Israeli companies and from international companies involved in violating Palestinian rights.

Sanctions campaigns pressure governments to fulfill their legal obligation to hold Israel to account including by ending military trade, free-trade agreements and expelling Israel from international forums such as the UN and FIFA.

Opposing this bill are 78 organizations. (See Attachment 10)

Who is one of the primary financial backers of anti-BDS legislation? Sheldon Adelson, enough said.  

THE EFFECT OF THE PROPOSED BILL

Will this new bill keep Mass from doing business with the 136 countries that have supported and recognized the State of Palestine, from doing business with the 14 countries who condemned the settlements in the UN, from signing a consulting contract with Secretary Kerry 

MORE ABOUT HEBRON

Since their arrival in Hebron almost 50 years ago, the Jewish Israeli settlers have chosen not to live in peace with their Palestinian neighbors and have subjected Palestinians to the worst ongoing abuse in the West Bank. They have attacked Palestinians, injuring and killing them, destroyed and stolen their property, taken over their buildings, regularly humiliated them by spitting and swearing, harassed children on their way to school, destroyed olive trees and attacked farmers attempting to harvest olives. The Israel Defense Forces soldiers do not keep peace but protect the settlers and shield them from prosecution for their violence and theft.  Hebron is the second largest city in the West Bank with a population of 120,000 Palestinians. In the old city, home to 30,000 Palestinians, 1000 IDF soldiers have barred access of Palestinians to a main street thereby causing the shutdown of most of the downtown Palestinian businesses giving free rein to the lawless actions of only 650 squatters. 

Qiryat Arba is an urban Jewish Israeli settlement on the outskirts of Hebron founded in 1968 with a population of 7,108. It produces Hebron Wines. I certainly do not intend ever to purchase this wine and would work diligently with others to agree never to buy the wine of these religiously inspired haters.

What I assume this law would do would be to punish me from providing outplacement for lawyers in transition from positions in the Commonwealth  because I am exercising my constitutionally protected right non-violently to pressure Israel along with  the rest of the civilized world into stopping  violating international civil and human and criminal laws

Supporting this anti-BCS bill is in support of the illegal occupation, the illegal settlements, Israel’s violations of Palestinian human rights and the core values of Judaism. BDS is not anti-Semitism. Anti-BDS laws do not fight anti-Semitism, they are pro-apartheid.  We should all join in condemning Israel’s actions and not punishing those who oppose it.

MOST IMPORTANT, BDS IS PROTECTED BY THE FIRST AMENDMENT

In NAACP v. Claiborne Hardware C. (1982), the U.S. Supreme Court ruled that boycotts intended to effect political, social or economic change are protected by the First Amendment. The Massachusetts Charpter of the American Civil Liberties Union has published a detailed opinion on the unconstitutionality of this proposed legislation. (See Attachment 11).

JCRC IS ON THE WRONG SIDE OF JUDAISM

I read the following statements of the Jewish Community Relations Council (JCRC) the organization responsible for pushing this proposed law:

November 4 “Our commitment to justice and equality in our nation remain steadfast”;

On the election of Donald Trump “We ..remain vigilant in promoting our nation’s commitment to civil liberties, equality under the law, and social justice, the mighty pillars on which our nation stands” and

Regarding the Trump nominee for Ambassador to Israel “Whether President-Elect Trump supports a two-state solution, or believes that an ambassador who does not share his commitment to same can still carry out U.S. policy, is a matter of vital concern.”

The JCRC, as prime mover of this proposed law, is not only acting contrary to its principles but the core values of Judaism:

Exodus 22:20-21 - You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt”;

Deuteronomy 20:19 “When you besiege a city .. you shall not destroy its (fruit) trees .. for you may eat from them and you shall not cut them down.”;

Exodus 12:49 saying there shall be one law for the citizen and for the stranger who dwells among you;

Micah.6:8 “He has told you, O man, Only to do justice and to love goodness, and to walk humbly with your God;

Isaiah 1:17,27 “Learn to do well – seek justice, relieve the oppressed, judge the fatherless, plead for the widow; a basic definition of Judaism “What is hateful unto you, do not do unto your neighbor” and, especially,

Deuteronomy 16:20 “Justice, Justice shall you pursue, that thou may live and inherit the land which the Lord has given you (and in a footnote in the Hertz Second Edition 1980) “And even as there is social justice, prescribing the duties of class to class, so there is international justice, which demands respect for the personality of each and every national group, and proclaims that no people can of right be robbed of its national life or territory, its language or spiritual heritage.”

CONCLUSION

For the last almost 50 years Israel has maintained an illegal occupation, built illegal settlements and violated a wide range of international human rights, civil rights and criminal laws in its treatment of Palestinians.

The BDS movement is not anti-Semitic. Its goal is to pressure Israel into ending its injustices towards Palestinians and work with other nations to bring peace with justice to Israel, the West Bank and Gaza.

The proposed legislation is an attempt to support Israel’s goal of annexing the West Bank and is supporting the death of the two state solution which will leave only two options – one Jewish state or one democratic state. There cannot be both.

The proposed legislation is an unconstitutional restriction on freedom of expression and association.

I look forward, however, to the day when the Congress of the United States, federal, state and local governments move away from the wrong side of history and take action consistent with American values of democracy, equality dignity and justice.

If so, they will bring pressure on Israel and not seek to punish those seeking the end of the longest occupation in the world now in its 50th year; the establishment of borders pursuant to the 1967 Green Line; the tearing down of that wall, the dismantling of the illegal settlements, and compensation for Palestinian refugees.

In conclusion, I urge you not to support this anti-democratic, unjust, racist, intolerant and discriminatory proposed law.