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Eugene Kontorovich Tag

The problem with the "peace negotiations" that failed numerous times over the years is that the Palestinians cling to the hope that international organizations -- primarily the United Nations and its branches -- will force Israel into concessions that harm Israel's security, and will pave the way not for a lasting peace, but more war with Israel's position being weakened. Getting more by threats than negotiations is the tactic the Palestinians just can't seem to give up. This rejectionism, reinforced by those who think boycotting Israel will also force Israel to hang itself, has achieved nothing for the Palestinians. The State offered the Arabs of the British Mandate of Palestine in 1947 was rejected. Golda Meir's offer after the 1967 War was rejected. Offers at Camp David and later by Prime Minister Olmert were rejected. Always the threats. The threat of terrorism and more Intifadas. The threat of the Security Council forcing Israel back to the 1949 Armistice lines. The threat to join the International Criminal Court and put Israeli leaders on trial for war crimes. Always the threats, never the hard compromises. The threat of Security Council action failed yesterday, though it's likely to be tried again.. Today, Mahmoud Abbas and other Palestinian leaders announced that "Palestine" would join the ICC, via the Times of Israel:
Palestinian Authority President Mahmoud Abbas signed a request Wednesday to join the International Criminal Court, a move that would establish a new avenue for action against Israel after the UN Security Council rejected a resolution which aimed to establish a timetable for a full Israeli pullout from the West Bank and East Jerusalem In a live broadcast from the West Bank city of Ramallah, Abbas signed 20 international treaties, including the Rome Statute, the ICC’s founding document.... The Palestinians planned to submit the paperwork for joining the ICC to U.N. Secretary-General Ban Ki-moon on Wednesday afternoon, but postponed it, probably until Friday. Handing over the documents is the last formal step for Palestine to become a member of the ICC, which would happen in about 60 days.... Prime Minister Benjamin Netanyahu said in response to the announcement that it was the Palestinian Authority, not Israel, that had to worry about the ICC’s judgments because of its partners, Hamas, from whose Gaza territory over 4,500 rockets and other projectiles were fired at Israel during a 50-day war this summer. Abbas’s Fatah and the Islamist terror group Hamas are the joint backers of the current Palestinian “unity” government.

Yesterday was oral argument at the Supreme Court in a lawsuit over whether Congress had the power to designate Jerusalem as the Capital of Israel on passports. The case is Zivotofsky v. Kerry, and the issue is a fight between Congress and the Executive Branch, Via Scotus Blog:
Issue: Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."
Prof. Eugene Kontorovich points out that legally the issue is not the same as the political issue of recognition of Israeli sovereignty over all of Jerusalem. Most observers of the oral argument believe it it will be a 5-4 split, most likely in favor of the Executive Branch. But oral arguments are not necessarily accurate predictors of ultimate outcome, so who knows. Regardless of the legal technicalities, the media and public perception is that this is a political issue regarding Jerusalem, particularly in light of hostile and threatening statements made by the Obama administration over Israeli exercise of sovereignty over "East Jerusalem" (the part of Jerusalem illegally occupied by Jordan from 1949-1967). Via Mirabelle from Israelly Cool:
Some of Obama’s biggest recent grievances in that relationship [between Obama and Netanyahu] seem to have been over Jews living in various neighborhoods in Jerusalem. In the past few weeks, Obama or his spokespeople have expressed their displeasure with Jews moving into homes they legally purchased in Silwan, planned construction of mixed Jewish and Arab housing in Givat Hamatos, or Monday’s announcement of homes in Har Homa and Ramat Shlomo. Rather than go on a lengthy rant about my complete and utter disappointment at my own President, I though we’d just take a trip in the Wayback Machine, to 2008 . . .
In 2008, Obama pledged that Israel could keep its undivided Capital of Jerusalem, if it likes it. That was then. This is now:

We have covered the academic boycott of Israel extensively, focusing on the American Studies Association. Recently, in connection with the ASA annual meeting this week in Los Angeles, we reported on ASA's discriminatory policy to bar attendance by representatives of Israeli Universities or any Israeli academic holding a representative title such as Dean or Rector. After a letter alerting the hotel hosting the ASA annual meeting, The Westin Bonaventure, to the hotel's legal obligations and potential liability, the ASA changed its position. The legal challenge was that hotels are bound by laws barring anti-discrimination in public accommodation, and therefore have a legal duty not to knowingly permit discrimination on the premises. In reaction, ASA denied that it ever had the discriminatory policy which ASA in fact published multiple times and had on its website. ASA even announced that it welcomed Bibi Netanyahu to the conference. In another development, as reported by Eugene Kontorovich at Volkokh Conspiracy at The Washington Post, The Times of Israel, and JNS, among others, the Rector [Dean] of the University of Haifa is taking up the challenge, and sending an official representative to the ASA conference. As part of my occasional and continuing efforts to access new audiences, I have a column about the ASA conference at the O.C. Register, Unfairly singling out Israelis. In the column, I examine how the public and the hotel would have reacted if the discrimination were directed at any national origin group other than Israelis. OC Register Unfairly Singling Out Israelis Here is an excerpt:

The late September arrival of Ebola-postive Thomas Eric Duncan at Texas Health Presbyterian Hospital has caused many Americans to worry about their personal health in the event of an Ebola outbreak. Right on the heels of that worry, however, is a worry of another kind. What about your personal rights? In particular, what about that most fundamental liberty interest: freedom from confinement. As Professor Eugene Kontorovich noted at The Volokh Conspiracy earlier today, this question has caused the (now released) quarantined nurse to threaten a legal challenge to the constitutionality of her recent confinement in New Jersey. So what are your rights when faced with involuntary quarantine? The answer, while simple, is completely unsatisfying and even a bit concerning: It depends. As a result, the true “answer” is a very nuanced and fact intensive inquiry into each particular case of confinement. Books can be written (and have been) about the legality of involuntary confinement in the face of a public health crisis, but this blog post may serve as highly generalized primer for the curious. To begin, quarantining “separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick.” [Emphasis Added]. Note that “quarantine” refers to the confinement of those who are not currently sick, but have been exposed to an infectious disease and may ultimately develop symptoms. “Isolation,” on the other hand, refers to confinement of individuals who are sick.

Earlier today, a Palestinian drove his car off the road into a group of people who had just gotten off Jerusalem's light rail at the Ammunition Hill stop, killing a three month old baby and injuring seven others. The Times of Israel reports:
“A private car which arrived from the direction of the French Hill junction hit a number of pedestrians who were on the pavement and injured nine of them,” police spokeswoman Luba Samri said in a statement. “Initial indications suggest this is a hit-and-run terror attack,” Samri said. The baby died at the nearby Hadassah Hospital on Mount Scopus a few hours after the incident. A spokesperson for Israeli rescue service Magen David Adom said a 60-year-old woman and seven other people, including the baby’s father, were also lightly and moderately wounded in the attack. ...
The suspect , Abdelrahman al-Shaludi, previously served time in jail and has been identified by Israeli government spokesman Ofir Gendelman as a member of Hamas. Prime Minister Benjamin Netanyahu blamed Palestinian Authority President Mahmoud Abbas for partnering with Hamas and inciting violence.

Ever since I started covering the anti-Israel academic boycott of the American Studies Association in December 2013, I have interacted with some of its members who are reasonable people concerned about the direction the ASA has taken.  But those voices have been drowned out by a shrill and vocal minority.

A little publicized fact is that less than one quarter of the membership voted in favor of the boycott (and depending on which membership numbers you use, perhaps as few as 16%), but it was enough to change the course of the organization due to low overall participation.

Once known as a somewhat obscure but well-regarded organization, ASA now is a pariah (as the NY Times described it) because of the boycott. ASA has become the poster child for how a relatively small group of anti-Israel radicals can take over key committees of a relatively small organization and leverage that power for a political agenda.

In this case, the agenda is the Boycott, Divest and Sanction movement, conceived of and scripted at the anti-Semitic 2001 Durban conference.  Part of the Durban script was to have Palestinian civil groups issue a call for a boycott.  That took place, and now groups like ASA cite the civil call for a boycott as their justification, ignoring its roots and preplanning.

At a time when the Humanities and Social Sciences are suffering and Ph.D. graduate students in fields like American Studies have few job prospects, the leadership and activists at ASA devote their energies to demonizing and delegitimizing Israel.

During this year's annual meeting, an entire day will be devoted to an offsite program run by ASA's Activism Caucus (yes, there really is such a thing) to teach faculty from around the country how to boycott Israeli universities, faculty, and scholars. ASA in a real sense has become a political activist organization.

The boycott, as applied to ASA's annual meeting, was discriminatory, and the hotel was put on notice that the hotel had potential liability.

We have covered the American Studies Association academic boycott of Israel since inception, and compiled the definitive list and accompanying statements of universities and associations rejecting the boycott.  Scroll through the ASA Tag for the full history. The short version is that the boycott targeted all Israeli academic institutions, and importantly, faculty and scholars acting on behalf of the institutions either as representatives, ambassadors or by virtue of administrative status. From the earliest days of the ASA boycott, ASA tried to make a distinction between individuals and institutions, as if boycotting an institution was not also boycotting the people who worked there. That was a critical charade, because the boycotting of individuals was too odious even for many people supporting the academic boycott.  So ASA could have a boycott of individuals while pretending it was not boycotting individuals. That ASA distinction was set forth in a December 4, 2013 statement of the ASA National Council supporting the boycott and advocating for membership approval:
Our resolution understands boycott as limited to a refusal on the part of the Association in its official capacities to enter into formal collaborations with Israeli academic institutions, or with scholars who are expressly serving as representatives or ambassadors of those institutions, or on behalf of the Israeli government ....
That is a distinction ASA made throughout its public statements and position papers -- if you were a representative of an Israeli institution, or if you had an administrative title, you were boycotted. For example, a form letter ASA distributed to members to be given to university administrators made the same distinction:

Israel is undergoing intense soul searching, as a nation, for the actions of what are believed to be 6 Israeli Jews in murdering an Israeli Arab teen, Mohammed Abu Khedair, in retaliation for the kidnapping and murder of three Israeli teens, Gil-ad Shaar, Eyal Yifrach and Naftali Fraenkel. Much of that criticism is internal. Members of Israel's Knesset unanimously condemned the murder, as has every prominent Israeli leader. The Editor in Chief of The Times of Israel writes that " the killing of Muhammed Abu Khdeir must rid us of the illusion that we enjoy a distinctive moral superiority over our neighbors." An Israeli Jewish group is organizing a visit to the family of the murdered teen. Israeli President Shimon Peres termed the murder a crisis of morality:
President Shimon Peres says Israel is in a deep crisis of morality following the arrest of six people in the killing of Palestinian teen Muhammed Abu Khdeir last week. “We did not believe that such a heinous crime could take place among our people. We mustn’t be such a people,” Peres says. “Today ‘out of Zion shall go forth the shame,’” he says, paraphrasing a famous Bible quote. “There is no justification for death and no crime is more acceptable than another,” the president adds. “My heart aches with the grieving Abu Khdeir family and with the grieving Shaar, Yifrach and Fraenkel families.”

Australia has announced that it no longer will refer to East Jerusalem as "occupied" territory. This is an enormous and important contribution to Middle East peace, as it corrects the false narrative that Israel's recapturing of territory illegally occupied by Jordan from 1948-1967 is not justifiably part of Israel. For the historical and legal background of why Israel's recapture of East Jerusalem and other territories is not illegal under international law, see Prof. Eugene Kontorovich's recent article at Commentary Magazine, Crimea, International Law, and the West Bank, as well as his lecture, The Legal Case for Israel. The Times of Israel reports, Australia drops ‘occupied’ label from East Jerusalem:
The Australian government will not refer to East Jerusalem as “occupied, territory” the government said in a statement on Thursday, in what one legislator called a “massive shift” in foreign policy Attorney General George Brandis explained Australian Foreign Minister Julie Bishop’s position that using the word “occupied” was judgmental and does not contribute to the dialogue about the contested area, the Australian Associated Press reported.
The move came, in part, as an Australian reaction to the verbal abuse Palestinians heap on anyone who supports Israel (been to a campus lately?):
Australia’s decision to stop referring to East Jerusalem as “occupied” territory and to adopt additional similar steps that will likely please Israel and anger the Palestinians came as a retaliatory measure against Palestinian officials who in recent months repeatedly and ferociously attacked Canberra’s Middle East policies in public, The Times of Israel has learned “The Australian government is irritated by how the Palestinians have chosen to pursue their disagreements with us in public,” a senior Australian source told The Times of Israel Thursday. “This is the kind of behavior you’d expect from the leaders of a student union but not from a government-in-waiting.”
As expected, the Palestinians heaped even more abuse on the Australians:

In the earliest days of the internet, an Instapundit reader suggested the term "take the Boeing" to describe when bloggers join big media outlets. Today, Volokh Conspiracy took the Washington Post's Boeing:
We’re now trying what might be the most ambitious experiment yet: a joint venture with the Washington Post. The Post will host our blog, and pass along its content to Post readers (for instance, by occasionally linking to our stories from the online front page). We will continue to write the blog, and will still take you here. We will also retain full editorial control over what we write. And this full editorial control will be made easy by the facts that we have (1) day jobs, (2) continued ownership of our trademark and the domain, and (3) plenty of happy experience blogging on our own, should the need arise to return to that. The main difference will be that the blog, like the other material, will be placed behind the Post’s rather permeable paywall. We realize that this may cause some inconvenience for some existing readers — we are sorry about that, and we tried to negotiate around it, but that’s the Post’s current approach.
I wish them well.  They are the premier group of law professor and lawyer bloggers who actually blog about the law.  Not to leave others out, but the work Eugene Kontorovich has done on The Legal Case for Israel is decisive. As for me, I don't know if I am hirable by major newspapers.  Certainly not The New York Times, for at least 10 reasons. When big media gobbles up what's left of the smaller blogosphere, I tend to throw a pity party and look for a song that fits my mood.

Northwestern University Law Professor Eugene Kontorovich has been doing wonderful work exposing the myth of the Israeli "illegal" occupation of Judea and Samaria (the "West Bank").  You really need to watch the videos we have posted here, The Legal Case for Israel and The historical fiction of Israel’s “occupation”. Given the war on Israel declared by the American Studies Association and two other smaller anti-Israel boycott groups, and the need to correct so much of the anti-Israel propaganda behind it, here is Prof. Kontorovich's explanation of the legal history of the region again: Now Prof. Kontorovich has come out with a challenge to the European Union to treat Israel's "occupation" the way it treats other "occupations" -- and the Europeans are none too happy. As reported by The Times of Israel, Why is this occupation different from all other occupations?:
Many Israelis have long felt that the European Union is biased against them. Two legal scholars – a former Israeli ambassador and an American Jewish international law professor — think they’ve found the perfect case to prove the claim: A new fishing deal, signed between the Europeans and Morocco, which applies beyond Morocco’s internationally recognized borders, taking in the territory of Western Sahara, even though Morocco invaded that area in 1975 and has occupied ever since.

I've never watched Duck Dynasty. I don't know what it is other than from a cursory review of headlines. But the Duck Dynasty guy (whatever his name is) is suspended from his hit TV show because of these comments in an interview with GQ Magazine:
Out here in these woods, without any cameras around, Phil is free to say what he wants. Maybe a little too free. He’s got lots of thoughts on modern immorality, and there’s no stopping them from rushing out. Like this one: “It seems like, to me, a vagina—as a man—would be more desirable than a man’s anus. That’s just me. I’m just thinking: There’s more there! She’s got more to offer. I mean, come on, dudes! You know what I’m saying? But hey, sin: It’s not logical, my man. It’s just not logical.” ... What does repentance entail? Well, in Robertson’s worldview, America was a country founded upon Christian values (Thou shalt not kill, etc.), and he believes that the gradual removal of Christian symbolism from public spaces has diluted those founding principles. (He and Si take turns going on about why the Ten Commandments ought to be displayed outside courthouses.) He sees the popularity of Duck Dynasty as a small corrective to all that we have lost. “Everything is blurred on what’s right and what’s wrong,” he says. “Sin becomes fine.” What, in your mind, is sinful? “Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men,” he says. Then he paraphrases Corinthians: “Don’t be deceived. Neither the adulterers, the idolaters, the male prostitutes, the homosexual offenders, the greedy, the drunkards, the slanderers, the swindlers—they won’t inherit the kingdom of God. Don’t deceive yourself. It’s not right.”
The attacks on him are focused on the claims that he compared homosexuality to beastiality.  Professor Althouse argues that that is not true:

Eugene Kontorovich wrote an important essay for Commentary, Israel, Palestine, and Democracy. Here are three critical paragraphs from the middle of the essay:
The Palestinians have developed an independent, self-regulating government that controls their lives as well as their foreign policy. Indeed, they have accumulated all the trappings of independence and have recently been recognized as an independent state by the United Nations. They have diplomatic relations with almost as many nations as Israel does. They have their own security forces, central bank, top-level Internet domain name, and a foreign policy entirely uncontrolled by Israel. The Palestinians govern themselves. To anticipate the inevitable comparison, this is not an Israeli-puppet “Bantustan.” From their educational curriculum to their television content to their terrorist pensions, they implement their own policies by their own lights without any subservience to Israel. They pass their own legislation, such as the measure prohibiting real estate transactions with Jews on pain of death. If Israel truly “ruled over” the Palestinians, all these features of their lives would be quite different. Indeed, the Bantustans never won international recognition because they were puppets. “The State of Palestine” just got a nod from the General Assembly because it is not.

Daniel Seidemann is an Israeli who runs a non-governmental organization, Terrestrial Jersusalem, that describes itself as " an Israeli non-governmental organization that works to identify and track the full spectrum of developments in Jerusalem that could impact either the political process or permanent status options, destabilize the city or spark violence, or create humanitarian crises." According to NGO Monitor, Terrestrial Jerusalem receives its funding mostly from Europeans and one U.S. foundation and actively seeks to undermine Israeli policies which seek to maintain, among other things, a unified Jerusalem under full Israeli control. Seideman has written that he sees some measure of re-division of Jerusalem as inevitable and considers Israeli actions as contrary to the peace process:
Upon my arrival in Israel more than forty years ago, I too subscribed to the "Jerusalem mantra," whereby Jerusalem was "the-eternal-undivided-capital-of-Israel-that-would-never-be-redivided" (one word, and a noun). It was consensus, the impermeable devotion to an article of faith. The harsh realities in the ensuing years undermined that faith, and finally, in the summer of 2000, during President Clinton’s Camp David summit, it collapsed. It then became apparent, and has remained so, that the conflict between Israel and the Palestinians will end within the borders of a politically divided city. Jerusalem was deflowered at Camp David.
We have noted before the problem of Palestinian rock throwing, and how it is minimized by Western media as not consequential. Particularly when the rocks are thrown by children, it's no lose for anti-Israeli groups:  If the rock lands its mark, the mission was accomplished; if the child also is arrested, it's doubly good because the phalanx of international and Israeli leftist photographers will be there to record the moment as reflecting Israeli brutality (as just happened with the Bedouin protests). Seidemann recently was the victim of such rock throwing while stalled in traffic in East Jerusalem. His account of the event got particularly attention because he blamed Israeli occupation of East Jerusalem not the rock throwers (for an alternative, more accurate legal history of why East Jerusalem is not illegally occupied, see Prof. Eugene Kontorovich's lecture, The Legal Case for Israel).

Since today is a relatively slow news day (he says, probably to be surprised), it's a good time for another legal history lesson, from law professor Eugene Kontorovich, who also is affiliated with The Lawfare Project. We previously featured his lecture, The Legal Case for Israel, which...