Denver Journal of International Law and Policy

What makes a Palestinian intifada different from other Arab revolutions?  David Aronofsky, University of Montana General Counsel and adjunct faculty member in the Schools of Law and Education, asked this very provocative question during this year’s Sutton Colloquium. The Colloquium, which hosted a diverse group of panelists from around the country, came to a rather uncomfortable pause. After a minute or two, Lt. Colonel Rachel VanLandingham pointed to Professor Paul Williams’ tie (adorned with pink elephants) and announced, “There’s a pink elephant in this room.”

The pink elephant, of course, was Israel.

Israel and the United States share an intimate relationship. Since 1985, the United States has provided nearly $3 billion in grants annually to Israel.  Israel also enjoys widespread protection by the United States’ veto in the U.N Security Council, as well as the power America holds by threatening cuts in financial support to any satellite U.N agency that contemplates the thought of Palestinian statehood.

The pink elephant in the room

Much of this intimacy is codified in federal law. Following Palestine’s recent admission into the United Nations Educational, Scientific and Cultural Organization (UNESCO), for example, the Obama administration immediately halted payment of more than one-fifth of the agency’s total funding (a whopping $60 million).  Why? Because according to legislation passed during the 103rd meeting of Congress in 1994, the United States is prohibited from funding any U.N. agency that recognizes the Palestine Liberation Organization (PLO) as being of the same standing as member states.  The administration enforced the law in this instance because Mahmoud Abbas, current chairman of the PLO, submitted the original request for UNESCO’s recognition of Palestine.

Why does federal law single out the PLO specifically from international recognition? The alienation may stem from the fact that the PLO used to be considered a terrorist organization by the U.S. State Department until the Oslo Accords in 1994.  Congress very well may have decided to de-list the PLO as a terrorist organization but still wanted to ensure that it would never gain international recognition in the form of the Palestinian statehood. Interestingly enough, Benjamin Netanyahu’s Likud party also has terrorist roots. Most recognizable of these roots is the Irgun, a paramilitary organization that was responsible for the infamous King David hotel bombing during the years of the British-Palestinian mandate.

President Obama has not been so keen to respect other federal and constitutional laws, however. This includes Western involvement in Libya. Arguably, American intervention in the recent NATO incursion in Libya was all but prohibited by the War Powers Resolution and constitutional provisions restricting the executive power of the president. Libyans are different from Palestinians in that they do not have their own Israel to deal with. But does President Obama have the authority to cherry pick which federal laws to enforce?

Assuming, arguendo, that American intervention in Libya was a mere military excursion supported by Resolution 1973, what, then, becomes of the U.S.-vetoed Security Council resolutions forcing Israel to comply with international law?  President Obama, to an extent, clarified this stance in his March address to the nation on U.S. intervention in Libya. He clarified that America’s responsibility to protect (“R2P”) is contingent upon her national interest.  He subsequently discussed the importance of democracy in the Middle East.

It appears that President Obama was asserting that democracy abroad is of national interest to the U.S., both in terms of ideology and security. This assertion works, for now, to tie the loose ends with its allegiance to Israel. After all, many peg the allegiance to Israel with the notion that Israel is the only democracy in the Middle East.

Or is it?

Following the successful revolutions in Tunisia, Egypt, and Libya, it appears that Israel is not the sole democratic kid on the block anymore.

Moreover, Israel seems to be heading in the opposite direction: with a rising Arab-Israeli population, and what is becoming an unsustainable presence in the West Bank and Gaza, Israel is fast-approaching the point where it will have to choose between being a legitimate democracy or a Jewish state.

Does President Obama’s pro-democracy stance also mean that Tunisians, Egyptians, and Libyans will also enjoy similar packages of foreign aid and Security Council protection? And if they do, what makes Tunisians, Egyptians, and Libyans so vastly different in their opposition to violence directed at their own people and their support of universal rights, than the Palestinians against the Israelis?

The International Court of Justice has made itself clear on Israel’s obligations to international law, a stance similarly taken in Resolution 1973. Perhaps the most famous of the Court’s proclamations is in its 2004 Advisory Opinion on the legality of Israel’s West Bank wall, where the Court stated: “Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination  and its obligations under  international humanitarian  law and international human rights.”  Not surprisingly, Ariel Sharon reacted furiously and refused to comply.

Something is definitely amiss in this responsibility to protect doctrine that President Obama proposed. Nevertheless, it is more important now than ever that the United States take care of the pink elephant before it turns white.

Sources: Fox News, LA Times, Washington Post

Since 1967, Jerusalem has been part of the disputed territory between Israel and Palestine.  Israel captured the city and annexed the area to solidify its control of the holy city. Despite Israel’s annexation, Jerusalem has not been internationally recognized as Israeli territory or as the claimed future capital of Palestine. On September 27, Israel approved plans to build 1,100 housing developments in Gilo, a Jewish enclave in east Jerusalem.  The approval came the week after Palestine sought a bid for membership in the United Nations. The construction plans met a waive of disapproval, not only from Palestine, but also from the Mideast “quartet” – the United States, United Nations, European Union, and Russia.

Following Palestine’s bid for UN membership last week, the quartet called for Israel and Palestine to resume peace talks for the first time in over three years. The quartet set a negotiation date between the two belligerent states for the end of 2012.  The Obama Administration has continually disapproved of Palestine’s bid for UN membership, and Secretary of State Hillary Rodham Clinton recently released a statement contending that Israel’s approval of such housing units in East Jerusalem is “counterproductive to our efforts to resume direct negotiations between the parties.” The Obama Administration was “deeply disappointed” by Israel’s announcement of the development plans.

The United Nations and European Union have also criticized the development plans. Richard Miron, the spokesman for UN special coordinator for the Middle East peace process, stated that the proposed development “sends the wrong signal at this sensitive time.” EU’s foreign policy chief, Catherine Ashton, also issued a statement that Israel’s decision “should be reversed.” The Mideast quartet has called for peace settlements between the two states, however Palestine has demanded that all of Israel’s construction immediately halt in order for any peace talks to resume between the two countries. Saeb Erekat, the chief Palestinian negotiator, calls Israel’s development project “1,100 no’s to the resumption of peace talks.”

Israel refuses another construction freeze, which it did last year after Palestine’s pleas. Israeli Prime Minister Benjamin Netanyahu downplayed the decision and argued that “[w]e build in Jerusalem. Period, the same way Israeli governments have been doing for years, since the end of the 1967 war. We build in Jewish neighborhoods. The Arabs build in Arab neighborhoods. That is the way the life of this city goes on and develops for its Jewish and non-Jewish residents alike.” Israel has also defended the construction from a logistical point of view, asserting that Jerusalem’s “housing crunch” has made the new construction a necessity. The expansion will include government buildings, a school and an industrial park.

Israel’s current construction plans disregard to the “Roadmap” endorsed by the UN Security Council in resolution 1515 in 2003. The Roadmap “constitutes a negotiating framework for the resolution of the Israeli-Palestinian conflict.” Many argue that Israel’s planned housing developments in east Jerusalem would undermine peace talks as outlined in the agreed upon Roadmap and therefore would violate international law via Israel’s treaty with Palestine. UN representative Richard Miron stated that “[s]ettlement activity is contrary to the Roadmap and to international law and undermines the prospect of resuming negotiations and reaching a two-state solution to the conflict.” While Israel may have valid reasons for its new housing units in east Jerusalem, its proposed construction has not met the approval of many international authorities and its plans will be faced with criticism going forward. Israel appears to be steadfast in its construction plans and will continue to build despite resistance from the international community.

Mediterranean Sea in Israel

The New York Times recently published an article about a cohort of seemingly unlikely co-conspirators committing civil disobedience in Israel and the Palestinian Territories. A group of Israeli women smuggled a group of Palestinian women and girls from the southern part of the West Bank, through the Israeli barriers, across Israel to Jaffa, an urban area just outside of Tel Aviv. The purpose? Nothing grander than a swim in the Mediterranean Sea, as women, neighbors, and even friends. The action was inspired by Ilana Hammerman, who facilitated the first contraband seaside trip about a year ago. Ms. Hammerman was learning Arabic in the West Bank and there befriended three girls who expressed their desire to get out of the West Bank, if even for one day. Ms. Hammerman recounted her experience in the Israeli newspaper Haaretz, describing their adventure together through the crossing points and to Tel Aviv’s beaches and amusements. Palestinian residents of the West Bank, male and female, although maybe a little more than an hour’s drive away from the Mediterranean coast, are barred in large (if not all) part from moving freely into Israel and back to their homes. The girls with Ms. Hammerman had never before seen the sea.

Despite the criminal investigation of Ms. Hammerman that followed the publication of the Haaretz article, her cross-boundary excursion prompted the formation of a group that calls itself We Will Not Obey.  The women of We Will Not Obey protest the disparity in the freedom of movement between Israelis and Palestinians.  The New York Times explains that Israelis may move freely between the Jordan River and the Mediterranean; movement for Palestinians is significantly more restricted.  The women thus decided to repeat the defiance of Ms. Hammerman and seek other women who are willing to risk criminal punishment for the sake of showing their confined sisters the wild freedom of the Mediterranean.   And not only does the organization facilitate beach trips; the Israeli women bring toys into the West Bank, share meals with their Palestinian counterparts, and wander Tel Aviv’s shopping areas together during these escapes.  The women have achieved seven in total.

This story is extraordinary for at least two reasons. First, civil disobedience is so often thought of as something monumental, like the incredible movements following Gandhi or Mandela. The contrary actions of these women are beautiful in their simplicity. No, seaside trips for smuggled Palestinian women and girls may not feel hugely significant in a land dominated by heavy-handed security and bitterly prolonged divisiveness, but the bravery of the women, both sides risking criminal punishment, is inspiring and sends a message that yes, there are people who truly believe the Israelis and Palestinians can be neighbors, even friends, and act accordingly. Second, that women are committing civil disobedience in this area of the world is profound. The West Bank is dominated by male decision-makers (at least outside of the home, and arguably within the home as well), and although Israel clearly includes a mix of liberal and conservative, traditional and reformist citizens, the reigning rightist government reflects a significantly patriarchal approach to governing and offers no mystery about its stance toward liberties for the Palestinian people. 

In the Forward to the 2011 report on the Progress of the World’s Women issued by UN Women, Secretary-General Ban Ki-moon identified how essential it is to recognize women as agents of change.  The conviction of the Israeli and Palestinian women participating in these acts of civil disobedience is clear, and the joy brought by their new connections is palpable, evidenced by the photo of the women dancing together on a Tel Aviv rooftop at the end of the day.  Hopefully the men are paying attention and are inspired to also reach out peacefully to their neighbors, across the wall and to the sea.