Palestine Ups The Pressure, Ctd

Israel has responded to the Palestinian Authority’s bid to join the International Criminal Court with predictable harshness:

In an initial response over the weekend, Israel said it had frozen 500 million shekels (more than $125 million) in tax funds collected for the Palestinians. The monthly transfers are a key source of revenue for the cash-strapped Palestinian government. Netanyahu’s government minister for strategic affairs, Yuval Steinitz, said Israel could take even tougher action. “If the Palestinian Authority continues to attack us, I assume we will consider other steps,” he said, without elaborating.

The Israeli government is also planning to petition Congress to cut off American aid to the PA. In an editorial, Ha’aretz slams these retaliatory measures as “perverse revenge”:

The Palestinian application to the ICC is uncomfortable for Israel. But those who fear it now should have considered the implications before they pushed Abbas into a corner.

In any case, despite the embarrassment Israel is liable to suffer in The Hague, the application is still a nonviolent, political move, whose impact Israel can mitigate greatly if it conducts its own investigation into suspected war crimes. But over all this hovers the question of where the punishments imposed by Israel will lead. Does Israel want to see the PA collapse? Has it taken into account the impact its action will have on the PA’s faltering economy? Revenge and punishment aren’t a policy. And they most certainly aren’t a smart policy.

Emily Schaeffer Omer-Man points out that Israel would have nothing to fear from the ICC if it were more vigilant in investigating and punishing crimes within its own security apparatus:

What is beyond ironic here, and in fact cause for concern, is that the Palestinian bid to the ICC would pose no threat to Israel if the latter were to meet the complementarity requirement under the court’s statute. According to the Rome Statute, state actors over which the court has jurisdiction by virtue of the said state being a party to the treaty, or the complaint having been launched by a state party, may only be prosecuted if it can be shown that the same state is “unwilling or unable” to carry out a genuine investigation and prosecution of the alleged war crime. …

Under the Israeli military justice system the Military Advocate General both counsels the military on the law during operations and decides whether to investigate and indict those accused of violating it after the fact. Moreover, relevant Israeli criminal law does not define offenses that constitute war crimes as such, and thus they are not prosecuted and penalized with the appropriate gravity.

J.J. Goldberg, meanwhile, thinks through what charges Israel might face if the Palestinians’ move succeeds:

Israel would be far more vulnerable to war crimes charges for its settlement policies. Many friends of Israel find it ludicrous that building apartment houses could be considered a war crime, but international law is pretty unambiguous on the question. The legal text is the Fourth Geneva Convention, the international treaty adopted in 1949 in response to the Nazi atrocities. According to Article 49 of the convention, a nation that occupies another nation’s territory in the course of war may not “deport or transfer part of its own civilian population into the territory it occupies.”

Note that there’s noting illegal about one nation occupying another nation’s territory in the course of war. That’s what happens in war. The Fourth Geneva Convention defines how the occupied territory and its population must be treated during the course of the occupation. It says nothing about the fact of occupation itself except that it happens in war. So all the talk you hear about Israel’s “illegal occupation” is simply ignorant. An argument can be made that Israel illegally violates certain of its obligations as the occupying power. That’s what the court case will be about, if it ever reaches the court.

Juan Cole fantasizes about the court indicting Netanyahu:

While it is unlikely that this could happen, Israel’s leadership might not be able to visit most of Europe, which would isolate them and much reduce their influence. The European institutions in Brussels would take an ICC conviction seriously. … Over a third of Israeli trade is with Europe, and technology transfers from Europe are crucial to Israel. It could be kicked out of European scientific and technological organizations, where it presently has courtesy memberships. And Israeli leaders could end up being afraid to visit European capitals lest they be arrested, Pinochet style (even if governments ran interference for them, they could not be sure to escape lawsuits by citizen groups and could not be insulated from activist judges).

The world wouldn’t end for Israeli leaders if they were convicted, as it hasn’t ended for [Sudanese President Omar] al-Bashir. But the consequences would be real and unpleasant, and over time could have a substantial impact.

But Aaron David Miller deflates expectations that Palestine will accomplish much of anything by joining the court:

There are numerous issues relating to whether the Palestinian Authority can be recognized as a state for purposes of presenting charges to the Court; jurisdictional questions; and Palestinian vulnerabilities too that stem from Hamas’s own transgressions and alleged war crimes. And even if these can be overcome, there’s the matter of whether the ICC wants to get drawn into the politics of the Israeli-Palestinian problem. Having publicly indicted roughly three dozen individuals in 12 years, and all of those in Africa for crimes that variously involve willful murder, torture and rape, it would strain the ICC’S credibility should the Court decide to open cases against Israeli military commanders or senior politicians. That the ICC can’t indict the Middle East’s No. 1 war criminal , Bashar Assad, because Syria isn’t an ICC member and Russia would block any UNSC referral of the matter doesn’t do much for the court’s credibility. And prosecutors want to take cases they can win; and it’s by no means clear that the ICC wants to get itself in the middle of the Israeli-Palestinian conflict or that it believes that’s going to enhance its political reputation and credibility by doing so.

The PA’s move, Matthew Waxman adds, “is also very bad for the ICC”:

That Court, which faces major resource and management challenges, is already reeling from the collapse of its case against the Kenyan President and from lack of support among states to enforce its arrest warrants against Sudanese leaders. Palestinian membership will make the United States more hesitant to support the ICC generally, and may push the United States back to actively undermining it. More significantly, it thrusts the ICC into the fiery politics of the world’s most intractable diplomatic problem. There is nothing the ICC can do that will not bring upon itself tremendous criticism, from one side or the other: pursuing cases against Israel will end any U.S. support for the Court and produce another tense situation in which the court’s authority is powerfully resisted, while declining cases will lead to charges that the court is feckless.

Beyond short-term factional politics on both the Palestinian and Israeli sides, the effect of which is to drive them farther apart in seeking long-term solutions, there are no winners in this move.

Yishai Schwartz argues that Palestine’s ICC accession will help Netanyahu, and what’s more, Abbas knows it:

So even though he might personally prefer Livni to Bibi, he must also recognize that politically, a right-wing Israeli government is a diplomatic triumph. International support for Palestinians plummets when Israel is led by leftist leaders who make concrete offers. Palestinian rejections of Barak’s and Olmert’s offershowever reasonable or unreasonablecontributed to a public image of the Palestinians as unserious and recalcitrant. By contrast, an Israeli government led by the confrontational Netanyahu and staffed by figures explicitly opposed to Palestinian statehood is a gift to Palestinians. In the years since Netanyahu assumed power, Europe has grown increasingly fed up with Israeland as demonstrated by France and Luxemburg’s Security Council votes in favor of Palestinehave completely embraced Palestinian positions on the major issues.

Palestine Ups The Pressure

Noah Gordon sums up the big news this week:

The Palestinian Authority’s President Mahmoud Abbas signed the papers to join the International Criminal Court a day after it was denied statehood by the UN’s Security Council. The provocative move could draw sanctions from Israel and the United States, as well as expose the Palestinian territories and Israel to an international investigation of war crimes.

Jessica Schulberg’s take on the implications:

Precedent suggests that Palestine’s ascension to the ICC will amount to little more than a symbolic display of sovereignty.

As The Washington Post editorial board noted, the ICC accused Sudanese President Omar al-Bashir of genocide, crimes against humanity, and war crimes in 2009. Yet, he continues to rule the country and travel freely. Since its inception in 2002, the ICC has brought a total of 21 cases in eight countries, resulting in only two convictions. Even if the ICC does decide to indict specific Israelis for war crimes, Israel is not party to the Rome Statute and could refuse to surrender its citizens or evidence for trials.

At this point, Palestine had little to lose by joining the court. It comes at a time when international support for Palestinian sovereignty is expanding, as is disillusionment with Israel’s continued occupation. While this decision is in direct defiance of the U.S. (the biggest donor to the United Nations Palestinian Relief Agency), the Americans are unlikely to pull funding.

Keating notes how close the vote was for Palestinian statehood:

This latest Security Council vote was hardly an unambiguous victory for Israel. The U.S. and Australia were the only countries to vote against the resolution. (Australia abstained on the 2012 Assembly vote, but has been more vocally pro-Israel since the election of Prime Minister Tony Abbott last year.) Three of the five permanent members—Russia, China, and France—voted for it. Britain, whose parliament passed a non-binding resolution in support of Palestinian statehood in October, abstained. None of the four EU countries on the council supported Israel’s position (Luxembourg voted for the resolution, and Lithuania abstained), reflecting growing impatience in Europe with Netanyahu’s government. …

Going forward, if the composition of the council is slightly different or the U.S. is slightly less enthusiastic about lobbying on Israel’s behalf, things could easily go very differently and Israel and its primary backer could find themselves even more isolated.

Bernard Avishai thinks Secretary Kerry is misreading the situation over there:

It turned out that Kerry did not have to veto the first resolution, though Abbas may try to reintroduce it in January, when the composition of the Security Council will change to his advantage. Kerry is trying to avoid “doing stupid stuff,” as Obama has often put it. If the nuclear negotiations with Iran finally produce an agreement this winter—even one that opens the country to permanent inspections and greater economic integration—Netanyahu and the Republican Congress can be expected to attack it. Why provide them with more reasons to accuse the Obama Administration of being unfriendly to Israel?

At the same time, Kerry knows that doing nothing to quell the conflict between Israelis and Palestinians may not be shrewd. Jerusalem witnessed escalating acts of violence this year, some with religious overtones, and Kerry saw how the collapse of his mediation effort last spring contributed to the eruption of war in Gaza. So Kerry is asking for a three-month grace period on the second, more significant resolution, in which all sides sweat out the Israeli election results with him.

Gershon Baskin supports the PA’s resolution, for the most part:

My sense is that the Palestinians put down a draft to place a benchmark of their baseline positions – look at what we are demanding. We (the Palestinians) want the world to know that our demands are such and such and that they are reasonable. That is a kind of starting point for the Palestinians, and if their international diplomatic strategy continues, members of the Security Council sympathetic to the Palestinian side may now push for some amendments to that resolution.

For the most part, the resolution is quite good and I see it as a call to the international community to preserve the viability of the two-state solution. I see this as a call to save the State of Israel from the occupation and to enable Israel to break free from its hold over millions of Palestinians. It is most unfortunate that the Palestinians did not wait to bring the draft to a vote, at least until after Israeli elections.

Enshrining Inequality In Israel, Ctd

J.J. Goldberg has a smart take on Israel’s “nation-state” bill. He begins by stressing how redundant it is for Israel to keep proclaiming itself a Jewish state when the UN recognized it as such in the 1947 partition vote, which the PLO ratified in 1998. The bill’s contribution, he concludes, “is not to define what Jewish statehood includes, but what it excludes: Arabic language, Palestinian national pride, a religion-neutral legal culture”:

It’s no accident that the legislation’s sponsors and main backers are the same right-wing factions, in the Likud and Jewish Home parties, that are fighting hardest against territorial compromise and Palestinian statehood. They’re not worried about international opinion. Their problem is the built-in flaw in their own blueprint for the future. Holding onto the territories, maintaining a single state between the Jordan and the Mediterranean, means creating a binational state. The advocates face growing pressure — and anger — from the military, academic, arts and legal communities and other sectors, all demanding to know how Israel can absorb two million-plus West Bank Palestinians without losing the Zionist vision of a Jewish state.

Their answer is to ground the state’s Jewish character — its language, calendar, legal culture, national anthem — in a quasi-constitutional basic law that can’t be amended except by a Knesset super-majority. That’s how they intend to defend Jewish statehood: by relegating the culture and values of today’s non-Jewish minority to the sidelines and ensuring they stay there, even if and when they become a majority.

The messy political battle sparked by the bill came to a head yesterday when Netanyahu abruptly fired the bill’s main opponents, Justice Minister Tzipi Livni and Finance Minister Yair Lapid, saying he would “no longer tolerate an opposition within the government”. The move effectively demolished his coalition, forcing new elections that could take place as soon as March. Zack Beauchamp believes the coalition’s collapse was inevitable:

The reason that Livni and Lapid, rather than Bennett and Lieberman, are being dismissed is simple enough:

Netanyahu is a right-wing prime minister leading the right-wing Likud party in a dominantly right-wing coalition. Together, Likud, Yisrael Beiteinu, and Jewish Home control almost twice as many seats as Yesh Atid and Hatnua. This put Lapid and Livni’s parties in a bizarre situation. On the one hand, Netanyahu needed to please them, because his government couldn’t achieve a governing majority without their support. On the other hand, the right-wing parties had them so outnumbered that they had huge trouble getting their way on issues like West Bank settlements, taxes, or minority rights. Lapid and Livni ended up, in practice, being centrist fig leaves for a hardline right-wing government.

Viewed in that light, it wasn’t a question of whether this inherently unstable government would collapse: it was a question of when. It turns out the answer was 18 months after forming.

Looking at the latest poll numbers, J.J. observes that Netanyahu could well emerge from these elections with a stronger hand – as is his intention, of course:

The latest opinion poll, published Sunday by Haaretz, showed that if elections were held today for a new Knesset, Likud would rise from 18 seats to 24 in the 120-member body, while Yesh Atid would drop from 19 seats to 11. The party to the right of Likud, Naftali Bennett’s Jewish Home, would rise from 12 to 16. Labor would drop from 15 to 13, Livni’s Hatnuah from 6 to 4 and Avigdor Lieberman’s Yisrael Beiteinu from 13 to 11 and Shas from 11 to 6. …

In all, according to the pollsters, the Dialog group, parties on the right would rise from 61 seats in the current Knesset to 77 seats, while the center, left and Arab-backed parties would drop from 59 to 43. That calculation counts the two Haredi parties, Shas and Torah Judaism, as part of the right, even though they were members of the last two Labor led coalitions under Yitzhak Rabin and Ehud Barak. In response to the question of who was “most fit” to be Israel’s next prime minister, 35% named Netanyahu and 17% named Labor leader Yitzhak Herzog, while Lieberman, Lapid and Bennett received 8%, 7% and 6% respectively.

Aaron David Miller sees Israel’s diminishing center-left parties as being too weak to pose much of a challenge to the prime minister:

There’s little doubt that Israelis are tired of hapless governance and failed politicians. The very fact that campaigns and elections are being scheduled at a cost of billions of shekels for reasons that are hard to divine or that appear to focus on petty politics and personal rivalries instead of big issues only reinforces the public’s cynicism. At the same time, however, there’s little doubt that Israel’s public has moved to the right (look at the last two elections) and that the current security environment and terrorism threat in Jerusalem will only highlight that anger and concern. If you had a pragmatic, security-credentialed, electable hawk, that is to say a Rabin-like figure whom Israelis trusted, you might even have a real election on some important issues. But right now you don’t.

Meanwhile, in another noteworthy analysis of the controversy over the nation-state bill, Bernard Avishai links it to Israel’s evolution from colony to state:

One should think of Israel as having two competing legal structures: a gradually evolving democratic state and the remnants of the old Zionist settler colony. Think of a nearly completed building encased in scaffolding that was never taken down—that, in effect, has become a rival structure. To incubate Hebrew, and provide refuge, Israel once needed Jewish collectives, whose land was purchased and owned by the Jewish National Fund. It needed to enforce strict regulations against selling J.N.F. property to non-Jews. It needed a Jewish Agency to qualify immigrants—a precursor of the Law of Return—and fund their assimilation into the Yishuv, while building settlements to house them. It needed a paid, official rabbinate to preside over the religious rites of marriage, burial, and divorce. And, given these material privileges, Israel needed an immanently legal definition of a Jewish person.

All of these fixes made sense for an insurgent Zionist colony in the nineteen-thirties. They are grotesque sources of discrimination within a Jewish democracy in 2014.

Enshrining Inequality In Israel

Last Sunday, Israel’s cabinet advanced a controversial bill that would amend the country’s Basic Laws to define it explicitly as “the national state of the Jewish people”:

According to many critics, the new wording would weaken the wording of Israel’s declaration of independence, which states that the new state would “be based on the principles of liberty, justice and freedom expressed by the prophets of Israel [and] affirm complete social and political equality for all its citizens, regardless of religion, race or gender”. … Netanyahu argued that the law was necessary because people were challenging the notion of Israel as a Jewish homeland.

For my part, I see it as a natural evolution of Israel’s settler policies and the end of any pretense at aiming for a two-state solution. The claim on the West Bank is a religious and racial claim – and that identity is far deeper at this point than any commitment to Western ideas of democracy, and deepening by the day. It’s also a way, of course, to ensure that the slow annexation of the West Bank can continue, because it all but ends any hope of negotiation with the Palestinian leadership. It comes at a time when the Knesset is also considering a proposal (unlikely to pass) that would enshrine punitive home demolitions in Israeli counterterrorism policy, strip citizenship from anyone who expresses support for terrorism, and have anyone brandishing a Palestinian flag arrested for “incitement”. Foreign Minister Avigdor Lieberman openly wants to pay Arab Israelis to leave the country. In such a climate, what can prevent a further weakening of Israeli democracy in favor of racial and religious fundamentalism?

Dahlia Scheindlin nonetheless thinks such a law would be very bad for the Jewish state:

Some insist that it is hypocritical and maybe even anti-Semitic to protest a simple law of national self-definition, when ‘France is for the French people,’ or ‘Germany is the land of the German people.’ Can we lay this argument to rest already? In those examples citizenship overlaps with nationhood. Yes, France is for the French. But what makes someone French is not birth or ethnicity alone, but citizenship. This proposed basic law would codify and demarcate the State of Israel as something that belongs only to a subset of its citizens.

State rights will not overlap with citizenship; they privilege a subset of citizens. Non-Jewish citizens have no route to sharing in the privileged national group. Being Israeli won’t be enough to live equally in this country. In fact, the state has consistently rejected the very idea that there is an Israeli nationality. The true comparison is simple: the law says Israel is for the Jews, just as America once said America is for whites.

The Guardian’s editors come out against it:

Arab citizens of Israel, who make up at least 20% of the population, would be granted civil rights as individuals, but denied “national rights” as a people. This is not a charge levelled by critics. Prime minister Binyamin Netanyahu, who voted for the bill, unabashedly admits that, should it become law – and it still faces parliamentary obstacles – only Jews would be granted national rights. An immediate manifestation of the change could be the downgrading of Arabic from its current status as an official language of Israel.

For nearly half a century, Israel’s defenders have insisted that – whatever the world’s misgivings about the 47-year occupation of lands gained in the 1967 war — the country itself, Israel-proper, is a full-blooded democracy, with Palestinian citizens of the country enjoying full equality. This would render that claim false. The basic laws would enshrine inequality, ensuring Jews had fuller rights than Arabs.

Gershon Baskin also opposes the bill:

How could the State of Israel be less to Muhammad who was born in Kafr Kara, whose father, grandfather, great-grandfather and great-great-grandfather were born in Kafr Kara, than it is to me, who was born in the United States and immigrated here 36 years ago? How could Israel belong more to Svetlana who arrived here a few years ago than to Samira whose family has been living in Haifa for 50 generations? Israel demands loyalty from its Palestinian citizens. Foreign Minister Avigdor Liberman even wanted them to take a loyalty oath. What are they expected to be loyal to? Israel continues to discriminate against its Palestinian citizens. There is absolutely no excuse for discrimination on national or religious grounds in Israel after more than 65 years of statehood. The proposed law for the Jewish state would push us in the exact opposite direction.

But Haviv Rettig Gur downplays the controversy, noting that the idea of a “Jewish nation-state law” has been kicking around for years and emerged from the political center, not the far right:

In the summer of 2009, [Institute for Zionist Strategies] staff working on the bill met with former Shin Bet head and then-Kadima MK Avi Dichter, who adopted the initiative eagerly. Dichter is known as a political centrist, a critic of the far-right and an advocate of separation from the Palestinians.

In fact, in explaining his own support for the bill, he described it as an end-run around Netanyahu’s demand that the Palestinians recognize Israel as the nation-state of the Jewish people – a demand Netanyahu saw as a litmus test for the Palestinian willingness to end the conflict. By defining Israel as the Jewish nation-state in its own constitution, simple recognition of Israel, which moderate Palestinian leaders have been willing to do, would necessarily constitute acceptance of the state’s constitutional identification with the Jewish nation, Dichter reasoned. It would remove a small but significant obstacle on the road to peace.

That sounds like whistling past the graveyard of democracy to me. What road to peace? And doesn’t this law all but make Palestinian engagement a dead letter?

Bibi Opts For Vengeance Over Justice

Israel demolishes Palestinian attacker's home

In response to the recent spate of “lone wolf” terror attacks in Jerusalem, Israel revived its controversial practice of demolishing the homes of the perpetrators last week:

Israel on Wednesday blew up the house of Abdelrahman al-Shaludi, a 21-year-old Palestinian from East Jerusalem who rammed his car into Israeli pedestrians in October, killing 3-month-old Chaya Zissel Braun and Karen Yemima Muscara, an Ecuadorean woman studying in the city. The Wednesday blast, which rocked the densely populated Silwan neighborhood on a steep hillside just south of Jerusalem’s Old City, marked the restart of a policy of demolishing the family homes of Palestinians responsible for anti-Israeli attacks. According to Danny Seidemann, an Israeli lawyer and left-wing activist who tracks developments in East Jerusalem, it was the first punitive demolition in the city since April 2009, when police razed the home of a Palestinian who went on a rampage a year earlier, killing three Israelis.

The government also issued demolition orders to the families of the attackers in last Tuesday’s synagogue massacre. Just imagine for a moment how such a policy – which, to be perfectly clear, punishes entire extended families for the crimes of individuals – would fly in any other Western country, especially if it targeted members of a particular ethnic group. The return of the demolitions speaks volumes about how Netanyahu, who vowed after Tuesday’s attack to “settle the score with every terrorist”, approaches this conflict. For him, it really is about settling scores. Will Saletan remarks on just what kind of message this policy sends to the Israeli public:

The first lesson this policy teaches Israelis is that it’s legitimate to inflict suffering on innocent people in order to discourage terrorism. “You need a means of deterrence against the next suicide attacker,” Netanyahu explained this week as he announced demolitions in response to the synagogue attack. “When he knows that his house, the house in which his family lives, will be demolished, this will have an impact.” Shaul Shay, a former member of the Israeli national security council, agrees: “A terrorist may be willing to sacrifice his own life, but maybe he will think twice if he knows the homes of his relatives will be destroyed. If the family pays the price, it’s different.”

In other words, the logic of the policy is that it punishes people who don’t commit acts of terror. Terrorists want to die, so they aren’t deterred. Israel targets their loved ones, who would suffer more acutely, in the hope that this “price” will intimidate the would-be perpetrator. That is the logic of hostage taking, and of terrorism.

And sure enough, West Bank settlers set ablaze a home in a village near Ramallah early Sunday morning, in yet another “price tag” attack. But that, of course, was an isolated incident; any attempt to link such lone-wolf terrorists to Israeli policy would be loudly denounced as guilt by association, or an outright anti-Semitic blood libel.

(Photo: Ganim al-Shaludi (8), sister of Palestinian AbdelRahman al-Shaludi, blamed for killing two Israelis in a deadly vehicular attack last month, stands inside her family home after it was destroyed by Israeli forces in Silwan neighborhood, east Jerusalem on November 19, 2014. By Salih Zeki Fazlioglu/Anadolu Agency/Getty Images)

A Massacre Of Jews At Prayer, Ctd

Mourners Attend The Funeral Of The Policeman Who Died In Synagogue Attack

Speaking before a Knesset committee yesterday, Israel’s Shin Bet chief Yoram Cohen pushed back on Netanyahu’s angry assertion that Mahmoud Abbas was to blame for inciting the horrific attack:

No one among the Palestinian leadership is calling for violence, Cohen said, noting that Abbas has reiterated that the path of intifada should be rejected. “ Abu Mazen [Abbas] is not interested in terror,” he explained, “and is not leading [his people] to terror. Nor is he doing so ‘under the table.’” At the same time, however, Cohen admitted that, “There are people in the Palestinian community who are liable to see Abu Mazen’s words of criticism as legitimization for taking action.”

J.J. Goldberg comments on why Cohen’s remarks are significant:

Cohen’s frontal attack on the prime minister’s stance toward Abbas is particularly shocking because the Shin Bet chief, appointed by Netanyahu in 2011, has been considered Netanyahu’s one reliable ally within the Israeli intelligence community. The heads of the Mossad and IDF military intelligence consistently take less alarmist views of Arab and Iranian intentions, repeatedly blunting the prime minister’s efforts to depict Israel’s enemies as unequivocally committed to Israel’s destruction.

Just last week Cohen was at the center of a media firestorm (as I described here) after senior Shin Bet officials appeared with his permission on a television newsmagazine to claim that the security service had warned the IDF last January of Hamas plans to launch a war in July, but the military had overlooked the warning.

Yishai Schwartz is convinced that the attack was motivated by hatred of Jews, rather than anger with Israel:

There is irony in the latest attack. The synagogue was in Har Nof, an ultra-Orthodox neighborhood in West Jerusalem. The worshippers lived in internationally recognized Israel and almost certainly never served in the army. They would never approach the Temple Mount, the holy site where recent visits by Jews have supposedly triggered the latest wave of Palestinian violence, because they believe that God’s law forbids it. In other words, these worshippers should be among the least offensive to Palestinians.

This is not to say that, for instance, last week’s murder of 26-year-old Dalia Lemkus was less obscene because it happened near a West Bank settlement. But the senselessness and brutality of the synagogue assault, and the otherworldliness of the victims, lays bare the inadequacy of rational political explanations for terror. No doubt the murderers had their grievances (and some perhaps were reasonable), but the butchery in Har Nof shows that any sense of strategy has been overwhelmed by hate. The murder of non-Zionist Torah scholars is an attack on Jews more than Israel, and explaining it requires an understanding of hatred, not of politics.

The attackers were members of the armed wing of the Popular Front for the Liberation of Palestine, a Marxist-Leninist militant group that hasn’t been heard from in a while. Ishaan Tharoor provides some background on the PFLP:

The group is considered a terrorist organization by the United States and other Western countries, but its ideology has very little in common with Hamas, whose jihad against Israel has blown hot and cold over the past two decades. Its legacy is a reminder of the older, secular nature of Palestinian militancy against Israel and Israel’s occupation of the West Bank and Gaza since the 1960s.

The PFLP was founded in 1967 by George Habash, a Palestinian Orthodox Christian animated by the pan-Arabism of then Egyptian President Gamel Abdel Nasser and the insurgent socialism that inflamed anti-colonial struggles in many parts of the world at the time. At its peak, the PFLP was one of the leading factions within the Palestinian Liberation Organization, alongside the Fateh party of the late Palestinian leader Yasser Arafat and Mahmoud Abbas, the beleaguered current president of the Palestinian Authority.

Freddie deBoer detects a double standard in the American media, wherein Palestinians are blamed collectively for such acts of violence while Israelis face no such censure for atrocities carried out by their government:

That the Israeli people are not responsible for the murderous, cruel, and illegal occupation of the Palestinian people by the Israeli government is a matter of media consensus. And, indeed, it’s true– despite the fact that Israeli government is an elected government, despite the fact that Israel’s democratic polity is in the main vociferously committed to the greatest crime of this young century, no individuals deserve to bear the blame for the sins of their government or their military. That is as clear a lesson as any the 20th century taught to us: the notion of collective blame is the first step on the staircase to genocide. And yet when it comes to the actions of two desperate madmen, there is no similar consensus, for the simple, plain, unavoidable fact that to the American media, Palestinians don’t deserve human rights because Palestinians are not human.

Jonathan Tobin, unsurprisingly, sees it differently:

[W]hile it is true that a minority of Jews would like to alter the status quo on the Temple Mount to make it place where both faiths can be freely observed (Jews currently may not pray on the Mount, a stand endorsed by Prime Minister Netanyahu), the hate and incitement that leads inevitably to the kind of bloody slaughter witnessed in a Har Nof synagogue where five Jews were murdered yesterday is not a function of a few isolated zealots or a twisted interpretation of Islam. Rather it is a product of mainstream Palestinian political culture in which religious symbols such as the imagined peril to the mosques on the Mount have been employed by generations of Palestinian leaders to whip up hatred for Jews. The purpose is not to defend the mosques or Arab claims to Jerusalem but to deny the right of Jews to life, sovereignty, or self-defense in any part of the country.

Chemi Shalev loses hope:

The Israelis who routinely ride roughshod over Palestinian sensitivities stirred up a hornet’s nest at the Temple Mount while hate-infested Palestinians massacred Orthodox Jews as they were praying: It’s unprecedented, it’s true, though we’ve seen it all before.

No, there is no moral equivalence, but there is more than enough responsibility and recklessness to pass all around. The leaders of both sides are too busy maligning each other, after all, as they resign themselves and their constituents to constant struggle and eternal strife and the incorrigible otherness of their enemies. It’s hard to imagine anyone who could inspire less confidence than Abbas and Netanyahu to lead us out of the morass, but given the mutual hatred and racism coursing through their constituents, the odds are that their successors will fare even worse.

(Photo: Israeli police officers stand next to the flag wrapped coffin of Druze Israeli police officer Zidan Sif during his funeral on November 19, 2014 in Yanuh-Jat, Israel. Sif, 30, died of his wounds on November 18, after two Palestinian cousins armed with meat cleavers and a gun stormed a Jerusalem synagogue during morning prayers, killing four rabbis. By Lior Mizrahi/Getty Images)

A Massacre Of Jews At Prayer

Israelis Killed In Synagogue Attack

This is extremely distressing. Early this morning, two Palestinian cousins armed with meat cleavers and a gun burst into a synagogue in an ultra-Orthodox neighborhood of Jerusalem and killed four worshipers before dying in a shootout with police. The attack was the deadliest act of terrorism in the city in years and comes amid escalating tensions and violence surrounding the Temple Mount/Haram al-Sharif complex, and may also have been carried out in retaliation for recent attacks on Palestinians in the city. Hamas, which praised the murders and called for more such “revenge” attacks, is certainly spinning it that way:

Ghazi Hamad, a senior Hamas official in Gaza, said in a BBC interview that attacks like Tuesday’s should be anticipated. “Everyone expected that this would happen,” Hamad said. “Every day Jerusalem is boiling, every day there is a new crime against a Palestinian citizen. We didn’t see any effort of the Israeli government to stop the settlers from attacking the al-Aqsa mosque. They should open their eyes and see there is a revolution in Jerusalem, there is an uprising.”

Goldblog holds this up as further evidence of Hamas’s genocidal ambitions:

This is how a Hamas spokesman reacted to the massacre of Jews at prayer: “The new operation is heroic and a natural reaction to Zionist criminality against our people and our holy places. We have the full right to revenge for the blood of our martyrs in all possible means.”

Twenty years ago, shortly after the Jewish fanatic Baruch Goldstein massacred Muslims at prayer in Hebron, the then-prime minister of Israel, Yitzhak Rabin, said of the killer, “You are not part of the community of Israel. …  You are a foreign implant. You are an errant weed. Sensible Judaism spits you out.” Hamas’s endorsement of the massacre of Jews at prayer in their holy city confirms—as if we needed confirming—that its goal is the eradication of Israel and its Jews. We should pray for the day when the leaders of Gaza react to this sort of massacre in the manner of Yitzhak Rabin.

But David Horovitz also blames Abbas for fanning the flames:

[T]he centrality of religious dispute to this latest iteration of the Israeli-Palestinian conflict is now unmistakable. And at the core of this new iteration, Tuesday’s attack made murderously clear, is Muslim intolerance — of the very notion that Jews have a religious connection to the Temple Mount, and by extension to Jerusalem and to Israel. Appallingly in the last few weeks, Abbas made himself a party to this intolerance. Unlike Hamas, he does not openly call for Israel’s destruction. He may not, in his heart of hearts, even seek it. But he has allied himself to the extremists in castigating as “contamination” the Jewish desire to express the link to the site of the Biblical temples, the site that roots our historical legitimacy here.

Charles Pierce throws up his hands:

By the choice of targets, by the alleged motives in question, and by the ex post facto justification offered on behalf of the attackers, this was purely an act of religious war. By the choice of targets, by the alleged motives in question, and by the ex post facto justification of what is surely to come, the response is likely to be purely an act of conventional war, even though there will be a religious undertone to it that nobody will talk about. The response is also likely to be overwhelming. Thus, in the choice of targets, by the alleged motives in question, and by the ex post facto justifications of both sides, the violence will be speaking to the violence in a different language entirely. One cannot solve the other because one cannot understand why the other does what it does. This increasingly seems to be a problem that the modern world is unequipped to solve. The intellectual faculties needed to understand religious violence have atrophied in the west. It baffles us, a T-Rex in the Internet cafe. It baffles us and it goes on.

(Photo: This handout image supplied by the Israeli Government Press Office (GPO), shows a view of the scene of a shooting at a Synagogue where a suspected Palestinian attack took place on November 18, 2014 in Jerusalem, Israel. By Kobi Gideon / GPO via Getty Images.)

The Two-State Dissolution?

If you haven’t already, take some time this weekend to read David Remnick’s article on Israeli President Reuven Rivlin, the shaky status of the two-state solution, and the resurgent chatter about an alternative. Remnick explores the history of the one-state idea and interviews a wide range of Israeli and Palestinian figures – from Sari Nusseibeh to Caroline Glick – on why it’s in the headlines again. No excerpt quite captures the substance of the piece in its entirety, but here’s the gist of it:

The one-state/two-state debate is highly fraught not least because of proximity. Too much history, too little land. This is not India and Pakistan; the map of Ireland is a veritable continent compared with Israel and the Palestinian territories. Gaza is about as close to Herzliya as Concord is to Hanover; the West Bank, as Israelis are quick to point out, is seven miles from Ben Gurion Airport. Any two-state solution with a chance of working would have to include federal arrangements not only about security but also about water, cell-phone coverage, sewage, and countless other details of a common infrastructure. Talk of a one-state solution, limited as it is, will never be serious if it is an attempt to mask annexation, expulsion, or population transfer, on one side, or the eradication of an existing nation, on the other. Israel exists; the Palestinian people exist. Neither is provisional. Within these territorial confines, two nationally distinct groups, who are divided by language, culture, and history, cannot live wholly apart or wholly together.

Meanwhile, escalating violence in Jerusalem and elsewhere – centered as usual on the Temple Mount/Haram al-Sharif – has raised fears that a third Intifada may be afoot.

The situation in the city got precarious enough last week that Israel temporarily restricted access to the holy site, leading to widespread protests and prompting an emergency meeting of Netanyahu, John Kerry, and Jordan’s King Abdullah (the restrictions were lifted today):

Jordan recalled its ambassador to Israel last Wednesday in protest at what it described as “the increasing and unprecedented Israeli escalation in the Noble Sanctuary and the repeated Israeli violations of Jerusalem,” the Jordanian state news agency reported. Netanyahu called Abdullah last Thursday, assuring him that Jordan’s special status regarding the Temple Mount and the Muslim holy places in Jerusalem, as specified in the peace agreement between the two countries, would be preserved.

Like many of Remnick’s sources, Daniel Gordis is bearish on prospects for peace at the moment, especially after the latest Gaza War:

There is simply no incentive for Israelis to compromise. What’s in it for them? they ask. Would a deal neutralize Iran’s quest for a nuclear weapon? Would it stop Islamic State? Then why move the border closer to Israel’s capital and international airport? France may soon recognize a Palestinian state, as Sweden recently has, but none of that will change life for ordinary Palestinians. Israelis and Palestinians have lost all goodwill. The Israeli administration detests Obama and believes that a renewed poisonous attitude to Jews and Israel in Europe makes European capitals anything but fair arbiters. And with the Arab street ever more radicalized, the other side is no more inclined to be accommodating.

And Mazal Mualem wonders how long Netanyahu’s popularity can last, given the state of things:

The Protective Edge campaign that lasted 50 days and undermined the personal security of Israeli citizens from the Gaza envelope to the Tel Aviv area put the veteran prime minister in a new situation. He can no longer flatter himself that there was no war during his term of office, versus Olmert, who fought two. Netanyahu is now responsible for the longest round of fighting in Gaza, a campaign that brought no clear victory and did not tilt the balance.

Netanyahu faces what is emerging as a third intifada. Soldiers and young Israelis are being murdered in central Israeli cities in stabbing and vehicular terror attacks; Jerusalem is burning while concrete blocks and police are posted in bus and train stations. The atmosphere in Arab localities within the Green Line is tense, explosive. What will Netanyahu tell Israeli citizens in the coming election campaign that will probably take place in 2015? That he defeated Hamas? That he brought security? That he “forged a secure peace”?

Hadassah Rodham Clinton?

U.S. Hosts Israeli-Palestinian Peace Talks

If she’s elected, Aaron David Miller predicts that the second President Clinton will bring a quick thaw to American-Israeli relations:

Given the lack of competition, unless he stumbles badly, Netanyahu may well outlast Obama. And that brings us to the matter of Hillary Clinton. Those of you looking for a new sheriff in town — one who is willing and able to teach those Israelis a lesson, cut them down to size, and make it clear to them as Bill Clinton, who exploded in frustration following his first meeting with Netanyahu in 1996, did when he said, “Who’s the fucking superpower here?” — best lay down and lie quietly until the feeling passes.

That’s not Hillary Clinton.

Indeed, she conceded in her book Hard Choices that she was never comfortable playing the bad cop with Netanyahu to Joe Biden’s more even-tempered good cop. And yet, she has some natural advantages that would help mitigate some of the gratuitous tensions that have made an already tough relationship tougher and perhaps lay the groundwork for more productive cooperation. Should she become president, on one level, better ties with Israel are virtually guaranteed.

But while a more accommodating White House would be a boon to Netanyahu’s government, Larison stresses that it won’t exactly be good news for anyone else:

Miller’s main argument is that Clinton will probably manage the relationship with Israel more successfully than Obama has. That could be true, but it is worth noting that in practice this “better” management will be little more than endorsing and backing whatever the Israeli government does. Obama has occasionally, briefly put a little bit of pressure on Israel to maybe modify its most obnoxious policies ever so slightly, and the relationship is at its lowest nadir in twenty years and Obama is reviled for his supposed “hostility” to the country. The Bush approach was to enable and excuse almost everything that the Israeli government did or wanted to do, and Clinton seems interested in imitating Bush’s example.

(Photo: Israeli Prime Minister Benjamin Netanyahu talks to U.S. Secretary of State Hillary Rodham Clinton during the first day of direct trilateral negotiations about a Middle East peace plan in the Benjamin Franklin Room at the Department of State on September 2, 2010. By Alex Wong/Getty Images)

The Curious Case Of Zivotofsky v. Kerry

Since 1948, the US has declined to formally recognize Israel’s sovereignty over Jerusalem, maintaining that the final status of the city remains unsettled as long as the Israeli-Palestinian conflict does. But in 2002, Congress passed a law regarding “United States policy with respect to Jerusalem as the capital of Israel”, which, among other provisions, permitted US citizens born in Jerusalem to have their place of birth listed as “Israel” on their passports. State Department policy is to list only “Jerusalem” without designating a country. Bush signed the legislation but issued a signing statement protesting that it interfered with his authority to conduct foreign policy.

Enter Menachem Zivotofsky, the plaintiff in Zivotofsky v. Kerry.

When Zivotofsky was born in Jerusalem shortly after the 2002 law was enacted, his parents requested “Israel” as the place of birth on his passport. The State Department denied the request, so the Zivotofskys went to court, arguing that State had violated the law. The government countered that the law infringed the president’s constitutional power to decide whether to recognize foreign nations. The DC Circuit first dismissed the case as a “political question” that the courts could not decide; SCOTUS reversed that decision and sent the case back to the circuit court, which ruled in the government’s favor. The family appealed, and the case is now before the Supremes for a second time. Amy Howe reviews Monday’s oral arguments, in which “lawyers for the two sides painted very different pictures of the potential effects of the law”:

Representing the United States, Solicitor General Don Verrilli told the Justices that the “question of the status of Jerusalem is the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades.”  He cautioned the Court that upholding the statute would undermine the president’s credibility in the Middle East peace process, and he reminded the Justices that the passage of the law had prompted “mass demonstrations in Jerusalem, thousands of people in the streets, some turning violent.”

Alyza Lewin, representing Zivotofsky, downplayed the government’s warnings about the possibly dire international consequences of the law, dismissing them as “grossly exaggerated.” Eventually, she suggested, listing Israel as the birthplace on the passports of U.S. citizens born in Jerusalem would “become a non-issue.”  And Congress has the power to require the State Department to do so, she maintained, pursuant to its power to regulate passports.

Though he suspects that the amici curiae care more about whether the US recognizes Israeli sovereignty over Jerusalem than about the separation-of-powers question at the heart of the case, Noah Feldman doesn’t buy Lewin’s argument:

Congress has indeed passed laws authorizing issuance of passports, and it’s not obvious that the world would shake if a handful of passports read “Israel” instead of Jerusalem. The problem is that the argument undercuts itself. After all, why is Zivotofsky bringing the case in the first place if not to make it appear that the U.S. has now recognized Jerusalem as part of Israel? Why, for that matter, did Congress pass the law if not to send that message?

In the real world, if the court held for Zivotofsky, it’s true that sophisticated observers would understand that Congress, not the president, had set the policy — but that would precisely reflect a conflict between the different branches of government, a circumstance that the Constitution for the most part has been interpreted to prohibit. Of course, it’s impossible for a tripartite government truly to speak with one voice on foreign affairs. But it’s definitely a goal toward which a rational constitutional system should aspire.

Jack Goldsmith favors the government’s position and urges the court to rule that Congress never had the authority to enact the 2002 law in the first place:

The beauty of ruling against petitioner on the basis of a lack of congressional power for the statute is that it allows the Court to avoid the super-hard problem of defining the contours of exclusive presidential power based on the vague and uncertain textual materials in Article II.  In other words, the Court can resolve the case, and mark off a narrow presidential power to determine what country should be designated on a passport, without reaching or discussing Article II (at least not discussing it very much), by focusing instead on the more precise terms of Article I.

And for you legal realists out there, this way of resolving the case satisfies two larger imperatives, somewhat in tension, that will certainly be in the back of the minds of many Justices: (1) not wanting to cross swords with the Executive on an important Middle East policy at a very fraught time of Middle East relations; and (2) not wanting to grant the president a large or vague exclusive presidential power related to recognition.

But Yishai Schwartz sees the case differently – as an opportunity to reassert Congress’s authority in international affairs:

Congressional supremacy is the basis of our entire constitutional system, and congressional oversight our best protection against tyranny. To be sure, a powerful executive, capable of acting against sudden threats and during periods of Congressional dysfunction (like now), is essential. Someone must fill the void. But allowing presidential discretion to become presidential supremacy undermines basic principles of democracy. In a democracy, after all, it is the people that are sovereign. It would be bizarre if their representatives, tasked with confirming treaties, regulating international trade and declaring war, had to bow to the president in smaller matters of foreign policy.

Dahlia Lithwick contends “that the worst-situated government agents to decide Mideast peace policies and whether what’s written on passports perhaps implicates Mideast peace policies, are the nine justices of the U.S. Supreme Court”:

Nobody is quite sure, after argument, which side will cobble together five votes, or for what. One thing that is certain is that even if the court wants to try to look neutral on the subject, it will have taken sides, in a massively consequential fashion. And while it’s always fascinating to hear the nine Justices bat about matters of foreign policy “Taiwan!” “Crimea!” “Barcelona!” the way they might do at a dinner party, it’s clear that dinner party knowledge is pretty much what they have to offer. And by deciding who the decider will be, at least on matters of foreign policy, even the neutral justices, aren’t.

Garrett Epps hopes the court rules clearly and decisively, noting that separation-of-powers cases can have surprisingly broad consequences:

Consider that a minor dispute over the sale of machine guns to Bolivia is still quoted today. That 1936 case, United States v. Curtiss-Wright Export Corp., provided the opportunity for Justice George Sutherland to proclaim (though the issue was not even present in the case) the “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations”—language that presidents have relied on since in issues more important than Bolivian arms sales, most notably George W. Bush’s claim of unilateral authority to attack foreign nations without congressional authorization.