Image 01 Image 03

Eugene Kontorovich Tag

Most people around the world firmly hold to the view that Israel’s residential housing communities built in Judea and Samaria/the West Bank are “illegal”. For years, this fictitious claim has fed a wild campaign of incitement and ‘lawfare’ against Israel, based on the myth that Jews have no legal right to live or make their homes on Palestinian-claimed lands in the West Bank. But the truth is that Israel isn’t an unlawful occupying power—certainly not according to any binding international laws. Now, Northwestern University Professor of Law Eugene Kontorovich, a leading expert in the fields of constitutional law, international law, and the intersection of law and economics, is on a speaking tour of universities and colleges to explain why. Eugene Kontorovich, headshot Below I summarize the legal case for Israel’s West Bank settlements according to Kontorovich. A 50 minute video of his remarks is also embedded.

There has been quite a bit of BDS-related legislative activity in the several weeks, with two anti-BDS measures moving through Congress, and activity in several state legislatures.  While the legislatures universally oppose BDS, President Obama has weighed in in opposition to Congress's pro-Israel legislation.

Federal Anti-BDS Legislation

First, Wednesday afternoon Senators Mark Kirk (R. - IL) and Joe Manchin (D. - WV) and Representatives Bob Dold (R. - IL) and Juan Vargas (D. - CA) filed a bill to help states divest from BDS-supporting companies.  According to Adam Kredo of the Washington Free Beacon:
The new bill, which was filed Wednesday afternoon, marks an aggressive push by lawmakers on both sides of the aisle to combat the growing Boycott, Divestment, and Sanctions movement, otherwise known as BDS, which advocates in favor of economic war against the Jewish state. The bill would provide legal shelter to states seeking to divest taxpayer funds from any company that has backed the BDS movement. It also would set a legal precedent granting safe harbor for private investment companies to do the same.

Spain has a particularly virulent anti-Israel movement both in the form of Boycott, Divestment and Sanctions, and rogue judges who threaten to issue warrants for the arrest of Israeli officials. As to BDS, recall it was the Valencia BDS group that got American Jewish singer Matisyahu banned from a reggae festival after he refused to sign a declaration denouncing Israel. The decision was reversed after an outcry and statements by the Spanish government that the action was illegal discrimination. The Spanish court system just dealt another blow to BDS efforts, finding that excluding Ariel University, located beyond the 1949 armistice line in Samaria (West Bank), from academic programs in Spain constituted illegal discrimination. The Jerusalem Post reports, In setback for BDS, Spain awards West Bank school €70,000:

Proponents of the Boycott, Divest & Sanction (“BDS”) campaign are faced with growing legislative opposition.  In the US, New York is poised to become the third state to enact binding anti-BDS legislation.  In Britain, new rules will essentially prohibit BDS in local government altogether. Proposed New York Law The New York Senate and General Assembly are considering legislation that would prevent the state from contracting with or investing in companies that boycott Israel.  The stated purpose of Senate Bill S6086 is “To prohibit New York State from contracting with or investing taxpayer money in corporations who have a stated policy of boycotting Israel.”  The Senate’s justification is:
The Boycott, Divest, Sanctions movement (BDS) is a harmful discriminatory policy effectuated by a growing number of companies. The BDS movement is nothing more than thinly veiled anti-semitism. This bill would ensure that New York continues its long history of standing up to discrimination by condemning this movement and not doing business with these companies.

The Boycott, Divest & Sanction ("BDS") movement and the broader campaign to delegitimize Israel has had a tough few weeks.  In academia and industry, the boycott campaign has been exposed as potentially discriminatory and unlawful, and yet another panel of experts has affirmed that Israel's use of force against Hamas is not only legitimate, but exemplary. Law Professors Eugene Kontorovich and Steven Davidoff Solomon of the Northwestern University and University of California - Berkeley, respectively, make the case that boycotts by academic associations are unlawful.  As one might expect, academic associations each have a stated purpose, typically to collect, share, expand and advance knowledge in the relevant field.  Profs. Kontorovich and Davidoff explain that such associations cannot legally do anything other than pursue those stated purposes, and:
Boycott resolutions that are beyond the powers of an organization are void, and individual members can sue to have a court declare them invalid. The individuals serving on the boards of these organizations may be liable for damages. Consider the American Historical Association. Its constitution—a corporate charter—states that its purpose “shall be the promotion of historical studies” and the “broadening of historical knowledge among the general public.” There’s nothing in this charter that would authorize a boycott. And an anti-Israel boycott will do nothing to promote “historical studies” or broaden “historical knowledge.” A boycott by definition restricts study and research: The explanatory material attached to the [American Anthropological Association ("AAA")] resolution, for example, says it would restrict the organization from sharing scholarly journals with Israeli universities.

For years we have been arguing that at most there is a thin line between the Israel hatred of the Boycott, Divestment and Sanctions (BDS) movement and hatred of Jews. BDS was born at the anti-Semitic 2001 Durban conference, but was repackaged as a grassroots "civil society" movement in 2005, and now has duped many progressives into thinking BDS is just about Israel leaving the West Bank. Groups like Jewish Voice for Peace do BDS's bidding is perpetuating this charade. That thin line has all but disappeared in Europe, where BDS paves the was to anti-Semitism: So it is, in a sense, no surprise to hear the outrageous news that American Jewish musician Matisyahu has been banned at a Spanish Reggae music festival due to pressure from the BDS movement after he failed to sign a statement recognizing a Palestinian state. BDS has shifted from its practice of banning and attacking Israeli musicians, to Jewish musicians who fail to pledge allegiance to the BDS movement. It was a natural shift for the movement. The Times of Israel reports:

The Security Subcommittee of The House Committee on Oversight and Government Reform Committee held a hearing on July 28, 2015, on The Impact of the Boycott, Divestment, and Sanctions Movement The Tower has a write up on the full scope of the hearing. In a prior post, we featured the testimony of Daniel Birnbaum, CEO of SodaStream International, about the threats, intimidation and violence of the BDS movement directed at SodaStream for 8 years, Epic House Testimony – BDS in business of “Manipulation, Violence and Destruction” In this post, we focus on the testimony of Northwestern Univ. Law Professor Eugene Kontorovich Prof. Kontorovich's full written presentation (embedded at bottom of this post) contains important background as to the role Congress can play in opposing BDS consistent with U.S. law, policy and history of involvement in the issue. The subjects covered include:
  1. Background on Economic Warfare Against Israel
  2. U.S. Policy on Boycotts of Israeli Entities
  3. The Scope of Anti-boycott laws
  4. The Argument that Boycotts of Israel are Justified or Required by International law
  5. Potential European Measures and their Implications for International Trade Law
Here is Prof. Kontorovich's appearance before Congress:

The Security Subcommittee of The House Committee on Oversight and Government Reform Committee held a hearing on July 28, 2015, on The Impact of the Boycott, Divestment, and Sanctions Movement. According to the House Advisory, the purpose was
  •  To better understand the Boycott, Divestment, and Sanctions (BDS) Movement, and review the economic impact of the Movement on American and Israeli businesses. 
  • To review how the goals of BDS may or may not be affected by International Trade Law, U.S. federal law, and state law. 
  • To seek to establish the formal position of the Administration with regard to BDS.
  • To review potential actions by the Department of State to maintain free and open trade among the U.S., Europe, and Israel.
The Tower has a write up on the full scope of the hearing. In a later post we will focus on the testimony of Northwestern Univ. Law Professor Eugene Kontorovich, whose lecture on The Legal Case for Israel is a must watch. Today we focus on the testimony of Daniel Birnbaum, CEO of SodaStream International.

There is a reason many nations, including the United States and Israel, refused to join the International Criminal Court (ICC). The fear was that ICC, created by the 1998 Rome Treaty, would go the way of entities like the UN Human Rights Council, and turn into a political operation directed at the West, the U.S. military, and Israel in particular. The ICC just proved that these fears were warranted, with an outrageous decision overruling an ICC prosecutor's decision not to investigate the Maarvi Mari incident, and requiring reconsideration because of international political concerns. In the Mavi Marmara incident, covered here many times (see Featured Image), Israeli commandos boarded a ship part of the 2010 Gaza flotilla organized by Turkish Islamists. The Israeli troops were attacked and responded with gunfire which killed 9 Turkish citizens. The incident caused a political rift between Israel and the already anti-Israel, anti-Semitic Islamist Turkish Prime Minister Recep Tayyip Erdogan. A UN panel determined that Israel's naval blockade of Hamas-run Gaza complied with international law, and that Israel faced "organized and violent resistance" when it legally boarded the Mavi Marmara. The ICC prosecutor decided not to open a formal investigation (.pdf) of the Mavi Marmara incident as a war crime, given the limited scope of the incident. The ICC judges just ordered otherwise, requiring reconsideration as reports Law Professor Avi Bell in The Times of Israel, The ICC declares war on Israel:

The anti-Israel activists employed as professors who led the fight at the American Studies Association to pass the academic boycott of Israel in December 2013, have been patting themselves on the back ever since. Forget that over 250 university presidents and the major academic organizations condemned the move as a gross violation of academic freedom.  Even the NY Times called the ASA a "pariah." The ASA humiliatingly had to back down from its plan to bar representatives of Israeli academic institutions from its annual meeting, eventually promising that even Bibi Netanyahu could attend. The profs seething with hatred of Israel, and anti-Zionist websites which promoted their academic boycott agenda, saw it differently. In their own minds, they were on the cusp of a historic anti-Israel paradigm change. The future belonged to the boycotters, in their minds. The reality has not worked out that way.  Other than some very small faculty organizations, no major academic group has adopted the boycott. No university in the U.S. is even considering a boycott. But the hyperbolic hateful rhetoric by the profs did have an effect.

I was a guest Tuesday morning on The Tony Katz Show on WICB Indianapolis. The topic was the Zivotofsky case discussed earlier this week, Supreme Court Overturns Congress on Jerusalem Passport Law. I made the point that while the majority decision purported to make the decision very narrow, it's likely that the decision would be used to try to limit Congressional legislation more broadly as relates to foreign policy: Professor Eugene Kontorovich expresses a similar view, writing at ScotusBlog (via Volokh Conspiracy):

On June 12, 2014, a terror cell affiliated with Hamas kidnapped Naftali Fraenkel (16), Gilad Shaer (16), and Eyal Yifrah (19) in the West Bank. After an intensive hunt and crackdown on Hamas throughout the West Bank, they were found dead. The murderers months later were located and killed by Israeli forces. Contrary to popular mythology, the kidnapping did not cause Israel to attack Gaza weeks later. Rather, the cause of the Gaza conflict was when Hamas started firing rockets from Gaza at Israel without stop. While driving on the way back from Hebron, I saw a sign (Featured Image), designating a forest in the memory of the three teens. It is at the Gush Etzion junction in an area of settlements near where the teens were abducted. The visit to Hebron was quite interesting. Hebron had the oldest continuous Jewish community in the world -- dating back several hundred years -- until Arab riots in 1929 killed 67 Hebron Jews and ethnically cleansed Jews from the city.

We recently reported on legislation in Illinois barring state pension funds from investing in companies that boycott Israel. The legislation passed both chambers unanimously, a stunning bi-partison rejection of the Boycott, Divestment and Sanctions movement. Gov. Bruce Rauner has promised to sign the legislation. The BDS movement is screaming about the legislation because while boycotting Israelis is cool with them, bocotting the boycotters is the worst violation of human rights ever. That's not much of an exaggeration as to their response -- it is full blown hissy-fit which mischaracterizes the legislation as suppressing speech. The reaction from BDS not only has been a hissy fit, it has been bizarre and revealing. Jewish Voice for Peace, one of the most aggressive BDS organizations, is demanding the State Department change its long-standing definition of anti-Semitism. I've long argued that the anti-Israel boycotters, particularly in academia, were forfeiting their standing to complain when the boycotts boomeranged and were turned on them. I'd rather that BDS never started this fight, but it did and now BDS supporters are realizing they are swimming in the ocean of a pro-Israel American population. The campus and faculty lounge anti-Israel bubbles are exceptions, not the rule. And that strong and increasing public support of Israel is being expressed through elected representatives. The Illinois legislation came at a time of two pending federal bills targeting the international boycott of Israel. But states may be where the action will be, as NY legislators plan to introduced a bill similar to the one passed in Illinois:

Iran released the Maersk Tigris, the cargo ship it seized at sea last week. The New York Times reports:
The Maersk Line, the Danish shipping giant, confirmed in a statement that the vessel and its 24-member crew, forced to anchor near Iran’s southern port of Bandar Abbas since its seizure on April 28, were now free and en route to the port of Jebel Ali in the United Arab Emirates. ... The Maersk Tigris is registered in the Marshall Islands. It is managed and staffed by Rickmers Shipmanagement, a subsidiary of Germany’s Rickmers Group, a maritime services company, which reported that the crew was in good condition. ... The apparent stand-down reflected what political analysts called a wish by both Iran and the United States to avert an escalation of tensions that could sabotage the nuclear talks between Iran and a group of six powers that includes the United States.
From the language of the report it appears that Maersk agreed to a settlement of the claim an Iranian company had against it. CBS offered the judgment of one of its security analysts.
The Iranian decision to board the vessel was "a reflection of the fact that tensions are running very high, and these tensions don't really have borders," explained CBS News senior national security analyst Juan Zarate. "These are conflicts that are happening on the ground, they're happening in the shipping lanes, and there are places and points of vulnerability that could... serve as flashpoints for conflict."

Last week Iran's foreign minister and chief nuclear negotiator Mohammad Javad Zarif appeared in "a conversation" with columnist David Ignatius of The Washington Post at NYU sponsored by the New America Foundation. There were those in the media who described Zarif as "suave" and "diplomatic," but not everyone was impressed with Zarif's performance. Matthew Continetti went after the supposed moderate in The Appalling Mr. Zarif.
What made Zarif’s appearance all the more nauseating was his pretense of moral standing. He has none. His lecture to the United States took place as his regime held a container ship it had seized in international waters, and as evidence emerged of Iranian violations of U.N. sanctions. It is the Iranian Revolutionary Guard Corps and its proxies such as Hezbollah and the Houthis and other Shiite militias that are fomenting and exploiting sectarian conflict in Lebanon, Syria, Yemen, and Iraq. Iran’s human rights record is abysmal. Since Zarif returned to government in the administration of Hassan Rouhani, there has been a “surge” in executions in Iran. “The authorities restricted freedoms of expression, association, and assembly, arresting, detaining, and prosecuting in unfair trials minority and women’s rights activists, journalists, human rights defenders, and others who voiced dissent” say the right-wing extremists at Amnesty International, whose most recent report catalogues the torture and cruel and unusual punishments of the Iranian regime. ... At NYU Zarif said America will have to lift sanctions on Iran “whether Senator Cotton likes it or not.” The “polite” and “respectful” audience broke into laughter—at Cotton. “I couldn’t resist,” Zarif said. No troll could.

When the Palestinian Authority submitted papers to the International Criminal Court for the purpose of seeking war crimes prosecutions of Israel, we reviewed many thoughtful and cogent analyses that based on the rules governing the court and precedent, the case may not even get off the ground. Not being an expert in the ICC, but knowing how so many supposedly neutral and objective international organizations have been corrupted by political animosity to Israel, I was skeptical:
>>>>>> Major caveat — these analyses assume that the ICC treats Israel the way it would treat any other nation, but anything that related to Israel always seems to skew international organizations, so I have my doubts. <<<<<<
And sure enough, right from the get-go, the ICC prosecutor has invented standards specifically for Israel. Law Professor and international law expert Eugene Kontorovich describes at Volokh Conspiracy what has happened, ICC’s undermines its own independence with Palestine inquiry:
The ICC’s Prosecutor announced today the opening of a “preliminary examination” into “the Situation in Palestine.” This means she will consider, on jurisdictional, evidentiary and policy grounds whether to open an investigation into crimes that may have been committed during this summer’s Gaza conflict. Opening such an investigation is a fairly standard step after receiving a declaration of acceptance of jurisdiction under Article 12(3) of the Rome Statute, and would not normally warrant much notice (other preliminary investigations also involve alleged crimes by the U.S. in Afghanistan and the U.K. in Iraq, though precious few Americans or British are aware of this). But this decision of the prosecutor is quite different, and extremely significant. The decision to open the inquiry involved the prosecutor determining that the Palestinian Authority is in fact a “state,” a necessary precondition to jurisdiction under the Rome Statute, the Court’s constitutive treaty.