Why you should cheer against the Raptors in the 2019 NBA Finals and support the Warriors

Tags

, , ,

If you’re remotely pro-Palestinian, you shouldn’t be cheering for the Toronto Raptors in the NBA Finals (and you should be cheering for the Warriors). Here’s why:

Warriors Stadium

Golden State Warriors vs Toronto Raptors, Oakland Oracle Arena (Florent Lamoureux)

P1) If Toronto wins, Raptors owner Larry Tanenbaum is on record as stating that he plans to take the team to Israel

P2) Given Tanenbaum’s role in pro-Israel lobbying & advocacy (he founded the fanatically pro-Israel “Center for Israel and Jewish Affairs”), it is fair to assume that the purpose of the trip is to normalize Israel via sports

P3) Going on a trip to Israel whose purpose is to normalize is an act of normalization under any circumstance (i.e. waiving Palestinian flags on the trip does not make it a non-normalizing act)

P4) I have no good grounds to believe that Raptors players will refuse to go to Israel if their owner so desires

____________________

C1) If the Raptors win, Israel will be normalized via sports

P5) I don’t want Israel to be normalized via sports

____________________

C2) I should cheer against Toronto

P6) There are no good grounds to believe that Israel would be normalized via sports if the Warriors win

____________________

C3) I should cheer for Golden State.

Also, Drake. You should always cheer against Drake.

Drake

Abdul-Baset Sarout: The Good & The Bad

Tags

Abdel-Baset Sarout

Abdel-Baset Sarout (courtesy of BBC)

Over the past 24 hours, I’ve seen countless tributes to Abdel-Baset Sarout on social media and several pieces penned in his honor in various English-media outlets after he was killed in action by regime forces. Although I understand why many people feel the urge to honor his memory and why many of the tributes are laudatory in nature harking back to the early days of the Syrian uprising, I have to say that downplaying or passing over in silence his extremist and sectarian views as the Syrian uprising progressed into full blown-war is somewhat disturbing as the impression one is left with is that these things were “minor” and “no big deal” (and it frankly provides critics with low-hanging fruit to tar the entire uprising when a controversial figure like Sarout is lionized without serious reservation).

On the other hand, the commentary from the pro-Assad side unsurprisingly focuses exclusively on those later extremist views and also gets some important details wrong. Furthermore, his role in the early days of the uprising is completely ignored, and the context of his radicalization is absent.

The truth is that his life and his evolution are far more complex than what is being portrayed, and in the interest of fairness and completeness, I want to highlight both the good and the bad of Abdel-Baset Sarout.

This piece from the Guardian is rather typical of what I’ve seen being posted on the opposition side (all true, but essentially highlighting only the good):

“A Syrian footballer who became a symbolic figure in the rebellion against the country’s president, Bashar al-Assad, has died of wounds suffered in a battle with government forces.

Abdul Baset al-Sarout, 27, who rose to fame as a goalkeeper for his home city of Homs, joined peaceful protests against Assad in 2011 and was known as the “singer of the revolution”. He later took up arms as the country slid into civil war. Four of his brothers and his father have also been killed in the fighting.

Sarout’s life and his role in Syria’s uprising and conflict was the subject of Return to Homs, a documentary film that won an award at the 2014 Sundance film festival”.

Here are other pieces published in Al-Jazeera, The National and Haaretz) that say more or less the same thing.

There’s no doubt that Sarout was an early revolutionary who galvanized the protest movement in his hometown of Homs. He was a famous football goaltender for the (under 17 and then under 20) Syrian national team who gave up a life of comfort and fame to join and then lead the protests in Homs at the age of 19. By virtue of his singing, his charisma and his uncompromising opposition to Assad, he quickly became an icon in the early days of the Syrian uprising. Here is a good example to give you a feel for the atmosphere in those days, with Sarout leading the chants and the singing (Feb 2012).

There’s also no doubt that he personally suffered at the hands of the regime, losing multiple family members as Assad cracked down on the protests and bombed Homs to rubble. Surely this played into his transformation from non-violent protester to rebel leader, and I recommend you watch Return to Homs to get a better feel for his evolution.

Having said that, Sarout also clearly became radicalized over time. Although he did lead early protests with Fadwa Suleiman (a famous Alawi actress), he can be seen in this video (Homs, March 2012) perched up top of a platform energizing the crowd and seemingly and enthusiastically supporting the hateful message from the orator on the mic, who talks about exterminating Alawis and kicking the Shia out (1:05 to 1:30).

In this video (May 2014), within the context of the brutal siege of Homs, Sarout directs a message to Jabhat al Nusra (Al Qaeda) and ISIS, calling them brothers in arms and telling them that once he gets out of Homs with his men, that they should unite in order to fight the Christians and take back the lands that the Shias and infidels supposedly took (1:26 to 1:43).

In this video (Nov 2014), Sarout leads the singing of a song which first cheerfully encourages the slaughtering of the Alawis (2:30 to 2:55), followed by him glorifying Bin Laden and cheering for 9/11 and the falling of the twin towers (4:00 to 5:20).

There is also, of course, the infamous pledge of allegiance he supposedly made to ISIS (Dec 2014) about 6 or so months after he was “evacuated” from Homs as a result of the negotiated deal with the government to end the siege. There is quite some controversy around this with folks on the anti-Assad side saying he never pledged, while folks on the pro-Assad side insisting that he did. The truth is likely somewhere in the middle on this one.

In Dec 2014, Al-Jazeera claimed that Sarout had pledged allegiance to ISIS. Jabhat al Nusra also claimed he pledged allegiance and an extensive court case was opened to determine the truth of the matter.

Sarout, on the other hand, denied that his group had any affiliation with ISIS or any other armed faction fighting in Syria in this video (Aug 2015).

So what’s going on? From what I can tell, Sarout did want to pledge allegiance to ISIS and did so, but to a person who wasn’t empowered by ISIS to accept his pledge in any formal way. Later on, because of issues and infighting amongst the group of fighters who wanted to pledge allegiance to ISIS, as well as where Sarout would be deployed if he joined ISIS, when the formal ISIS representatives came to accept his allegiance, he rebuffed them. I recommend reading / listening to his wide ranging interview in May 2016 (while exiled in Turkey) where he discusses the details (I’ve quoted a small piece of the interview below):

“Soon after you formed Fallaq Homs, you left it. Shortly after that, rumors started to circulate that you gave allegiance to the “dawlah” [Islamic State]. What are the origins of the rumors and what are they grounded on?

There is no smoke without fire. If there was no basis to these rumors no one would even bring up such an accusation. So I can confirm it does have a basis. Seven months after I left Fallaq Homs, I was in contact with a man called Abu Dawud from Eastern Homs from the Ahlul Sunnah wal Jama’a group. He had left this group and was searching for fighters to form a new splinter group that would eventually give allegiance to ISIS. I was one of those people looking for work. I was frustrated by seven months of no progress with my previous group trying to break the siege.

So what did you do with Abu Dawud?

We gathered some groups, including mine. They asked us when ISIS reaches this area will you be prepared to give allegiance? In all honesty, I was one of those willing to give allegiance because I wanted to work. So I told Abu Dawud and he automatically took it as allegiance. However it later became clear that it wasn’t a valid way of giving allegiance and [it was] nullified.”

Finally, there is no doubt that Sarout was close to extremist groups throughout his later phases. Whether because of true ideological conviction or the “exigencies of war”, the reality is that this part of his life surely taints his legacy as the “Songbird of the Revolution”.

How a fake story about Cristiano Ronaldo donating €1.5 million to Palestinians for Ramadan spread

Tags

, , ,

My latest article has been published at Mondoweiss

Palestinian chlidren hold ballons and posters bearing a portrait of Palestinian boy Ahmed Dawabsha, 5, who suffered severe burns in an arson attack by suspected Jewish attackers on his family home last July and in which his younger brother, Ali, and his p

Poster of Real Madrid footballer Cristiano Ronaldo and Palestinian Ahmed Dawabsha, 5, who met in Spain in 2016 one year after Dawabsha survived an arson attack on his West Bank home in Duma, in which both of his parents and infant brother were killed by Israeli extremists. Yarmouk Stadium, Gaza City, March 27, 2016. (Photo: Ashraf Amra)

“Nicolas Sawaya looks at how a fake story about Cristiano Ronaldo donating €1.5 million to Palestinians for Ramadan spread” – Mondoweiss

13th Annual Houston Palestine Film Festival

Tags

My latest article has been published at Mondoweiss

imprisoning-a-generation

Still from “Imprisoning A Generation,” a feature length documentary by Anemoia Projects screening at the Houston Palestine Film Festival

“The 2019 Houston Palestine Film Festival marks its 13th anniversary with a lineup of award-winning features & shorts focusing on Palestine. The festival will run for two consecutive weekends: April 26-27 and May 3-4” – Mondoweiss

A computationally useful algebraic representation of nonlinear disjunctive convex sets using the perspective function (updated)

Tags

,

mathematical-optimization-word-cloud

Our updated (and improved!) pre-print is now available at Optimization Online.

Abstract

Nonlinear disjunctive convex sets arise naturally in the formulation or solution methods of many discrete-continuous optimization problems. Often, a tight algebraic representation of the disjunctive convex set is sought, with the tightest such representation involving the characterization of the convex hull of the disjunctive convex set. In the most general case, this can be explicitly expressed through the use of the perspective function in higher dimensional space – the so-called extended formulation of the convex hull of a disjunctive convex set. However, there are a number of challenges in using this characterization in computation which prevents its wide-spread use, including issues that arise because of the functional form of the perspective function. In this paper, we propose an explicit algebraic representation of a fairly large class of nonlinear disjunctive convex sets using the perspective function that addresses this latter computational challenge. This explicit representation can be used to generate (tighter) algebraic reformulations for a variety of different problems containing disjunctive convex sets, and we report illustrative computational results using this representation for several nonlinear disjunctive problems.

Happy Liberation Day Lebanon

Tags

,

Khiam Prison

A photographer captures the moment a Khiam prisoner is told of his freedom (BBC)

Seventeen years ago today, the Israeli army withdrew in defeat from South Lebanon after an 18 year occupation. Thousands of Lebanese from across the ideological and religious spectrum resisted the Israelis and gave their lives to liberate the land, and they will never be forgotten.

I still remember my first trip to South Lebanon a few weeks after liberation with friends from Marj’ayoun (a town in South Lebanon). I had never been to the South despite having spent nearly every summer of my life in Lebanon because the South had been under Israeli Occupation since 1982. I’ll never forget the triumphant music blaring along the path adjacent to the border fence and the copious amount of rocks meticulously arranged in small mounds every dozen or so yards being picked up and thrown by passersby onto the Israeli side as they released their frustration and anger after years of occupation while simultaneously celebrating victory. I’ll never forget seeing Occupied Palestine for the first time across Fatima’s gate and being shocked at the lushness and greenery of Israeli settlements a few hundred yards from where we were given the desolate landscape on the Lebanese side after years of occupation.

However, the most haunting memory that remains with me is my visit to the notorious Khiam prison, where thousands of Lebanese resistance fighters were tortured – many to death – by the South Lebanon (proxy) Army under Israeli command. A former detainee who had been tortured and imprisoned for seven years stood up on a small rock and recounted the horrors of his ordeal for 30 minutes without pause, and without expression, and without emotion. It was as if they had beaten his soul out of his body, as he seemed incapable of feeling anything anymore. But the people who had gathered around to hear his stories were full of feelings, and emotions, and tears; of sorrow, of grief, of pain, and perhaps of joy for being able to finally put behind that horrible chapter in our history.

Happy Liberation Day Lebanon.

Trump’s Immigrant / Refugee / Muslim Ban

Tags

trump

President Donald Trump

On the 27th of January 2017, Donald Trump signed an executive order (EO) titled “Protecting the Nation from Foreign Terrorist Entry into the United States”. The EO contains multiple controversial sections, including a 90-day ban on foreign nationals from seven-Muslim majority countries (with some exceptions), a 120-day ban on all refugees, an indefinite ban on all Syrian refugees, and a prioritization of refugee applicants whose religion is a minority religion in their country of nationality.

As of January 30th, according to numbers compiled by Customs and Border Protection (CBP) and as reported by the Daily Beast, the passing of this EO had caused 200-250 travelers at US airports to be denied entry after having flown to the United States on valid visas or green cards; as of February 2nd, according to CBP, 1222 travelers were denied from boarding flights for the United States (87 visa-holders were granted waivers); and as of February 3rd, according to a lawyer in the Justice Department, more than 100,000 visas had been revoked, although the State Department disputed that number and said that “only” 60,000 visas had been revoked.

The EO has engendered a swell of opposition to what has variously been described as an immigration ban, a refugee ban and a Muslim ban, including tens of thousands of people in multiple US cities who protested the ban, as well as the filing of dozens of lawsuits challenging the executive order on various grounds. As of February 3rd, a Seattle-based federal judge imposed a temporary restraining order on the EO, effectively suspending it, and on February 9th, the 9th Circuit Court of Appeals denied an emergency motion for a stay of the TRO filed by the Trump administration (essentially upholding the TRO). Given the level of opposition to the EO and the current legal battles being fought in courts across the US, the purpose of this article is to examine the order in detail, analyze some of its more controversial aspects and provide an up-to-date view of the latest legal developments.

1) Purpose of Executive Order

The ostensible purpose of this executive order is stated in Section 1 [italics mine]:

The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States.  Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans.  And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States.  The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.  The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.  In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation”.

In reading this section, one is left with the impression that the existing visa-issuance process is in shambles and that the United States has been invaded by foreign-born terrorists. However, when we look at the statistics for terrorism-related deaths in the US by foreign-born terrorists over the past 40 years, a diametrically opposed picture emerges. According to the CATO institute (a libertarian-leaning think tank), between 1975 and 2015, 3024 people have been killed by foreign-born terrorists.

chance-of-dying-by-a-foreign-based-terrorist-cato

These statistics include 9/11, which is responsible for the vast majority of those deaths (2983 people were killed, excluding the 19 hijackers), and which indeed was committed by foreign-born terrorists on temporary visas (18 of the 19 9/11 hijackers entered on tourists visas; 1 was on a student visa). If we split this period between pre-9/11 and post-9/11 eras, then according to CATO:

“The period from 1975 to 2001 had only 17 murders committed by 16 foreign-born terrorists of a total of 64 who either tried or were successful in their attacks. During the same time period, 305 people were killed in terrorist attacks committed by native-born Americans and those with unknown nationalities […] From September 12, 2001, until December 31, 2015, 24 people were murdered on U.S. soil by a total of 5 foreign-born terrorists, while 65 other foreign-born terrorists attempted or committed attacks that did not result in fatalities. During the same period, 80 people were murdered in terrorist attacks committed by native-born Americans and those with unknown nationalities”.

It becomes clear then, that with the exception of 9/11, the number of deaths resulting from foreign-born terrorists is both low overall, and lower than terrorist attacks committed by American-born terrorists (both in the pre and post-9/11 eras). In fact, if we exclude 9/11 as a unique outlier, the annual chance of being killed by a foreign-born terrorist in the US is 1 in 250 million per year over the period 1975-2015 (those are about the odds of winning the Powerball lottery). In the period before 9/11, the odds are 1 in about 350 million per year, while the odds are 1 in 175 million in the period post-9/11 per year. Either way, these odds are extremely low. Even if we include 9/11 in the statistics, the odds of being killed by a foreign-born terrorist are 1 in 3.6 million per year (for those of you interested in the math, take the total number of deaths over the particular period of interest, for example 3024 deaths from 1975-2015, and divide that by the number of years in that period (40), and then again by the average number of people in the US over that period (around ~275 million)).

To put things in perspective, let’s take a look at lightning-strike data in the US:

According to the NWS [National Weather Service] Storm Data, over the last 30 years (1986-2015) the U.S. has averaged 48 reported lightning fatalities per year. Only about 10% of people who are struck by lightning are killed, leaving 90% with various degrees of disability.”

This implies that about 480 people per year in the US were struck by lightning (10% of whom died) over the period 1986-2015 (this is likely an underestimate given that these are based on reported numbers). Assuming similar numbers between 1975 and 1985, about 19,000 people from 1975 to 2015 would have been struck by lightning. Comparing these numbers to deaths by foreign-born terrorists, Americans are about 6 times more likely (when including 9/11) and 450 times more likely (when excluding 9/11) to be struck by lightning than to die at the hands of a foreign-born terrorist.

To continue putting things in perspective, according to CATO, 768,000 people (including the 3024 killed by foreign-born terrorists) were murdered in the US between 1975 and 2015.

us-murder-rate-cato

Comparing these numbers to deaths by foreign-born terrorists, Americans are more than 250 times more likely (when including 9/11) and about 15,000 times more likely (when excluding 9/11) to be murdered in the US than to die at the hands of a foreign-born terrorist.

Finally, for people worried about refugees (the topic of Section 5 of the executive order), according to CATO:

“Of the 3,252,493 refugees admitted from 1975 to the end of 2015, 20 were terrorists, which amounted to 0.00062 percent of the total. In other words, one terrorist entered as a refugee for every 162,625 refugees who were not terrorists. Refugees were not very successful at killing Americans in terrorist attacks. Of the 20, only three were successful in their attacks, killing a total of three people and imposing a total human cost of $45 million, or $13.84 per refugee visa issued. The three refugee terrorists were Cubans who committed their attacks in the 1970s and were admitted before the Refugee Act of 1980”.

Crunching the numbers, the odds of someone in the US being killed in a terrorist attack by a refugee are 1 in 3.6 billion per year over the period 1975 to 2015. Since the Refugee Act of 1980 was passed, not a single death in the US was the result of a terrorist attack by a refugee. In other words, the odds of someone in the US dying from a terrorist attack committed by a refugee since 1980 is literally 0.

2) The Travel Ban on Seven-Muslim Majority Countries

Section 3 of the executive order, titled “Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern”, states [italics mine]:

“(a)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

 (b)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order.  The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.

(c)  To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

(d)  Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.

(e)  After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

(f)  At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.

(g)  Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.

(h)  The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order”.

I’ve highlighted sub-section 3(c) in italics since I intend to focus on this section. The purpose of this section is to impose a temporary 90-day ban into the US on all foreign nationals from seven Muslim-majority countries: Iran, Iraq, Syria, Sudan, Somalia, Yemen and Libya. Although these countries are not explicitly named in this section, they are implied by reference to the appropriate sections of the Immigration and Nationality Act (INA) in the executive order. To be clear, Section 217 (a)(12) of the Immigration and Nationality Act (INA), also referred to by its US code 8 U.S.C. 1187(a)(12), is a new section in the INA that was recently added after the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015” became law as part of the year-end spending bill President Obama signed on December 18, 2015. The purpose of this Act was to restrict the use of the visa-waiver program for certain nationals who traveled to Syria, Iran, Iraq and Sudan, although the list was expanded in February of 2016 to also include Libya, Yemen and Somalia. The visa waiver program “allows citizens of 38 (mostly European) countries to travel to the United States without first obtaining a visa“. The purpose of this Act, then, was to change the process by which citizens from these 38 countries, having traveled to any of the listed seven countries, obtained visas into the country (these citizens had to go through an interview process to now obtain visas into the US if they had traveled to the listed seven countries, whereas they didn’t need visas before the passing of the Act). As such, although it is true that the Obama administration had identified these seven countries as “countries of concern”, the Act of 2015 did not ban foreign nationals from these countries from entering into the US; only Trump’s executive order does that.

At any rate, before delving into the details of section 3(c) of the EO, it is important to first define the terms in this section. The term immigrant, according to its legal definition, refers to people who intend to permanently immigrate to the US; i.e. those who have green cards or lawful permanent residence. In contrast, non-immigrants are those who do not intend to stay in the US on a permanent basis, and include people such as students (on F1-visas for example), guest workers (on OPT or H1-B visas), tourists etc.

According to David Bier of the CATO institute, Trump’s ban targeting immigrants on the basis of their country of origin is illegal. Indeed, according to Bier, Section 202(a)(1)(A) of the INA states that except in cases specified by Congress in section 101(a)(27):

“[…] no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence”

This section of the INA does not cover the category of non-immigrants, but it does directly relate to immigrants (i.e. Green Card holders or permanent lawful residents). Despite that, acting Department of Homeland Security (DHS) spokeswoman Gillian Christensen said, on January 28 2017, that the executive order “will bar green card holders”, before a “senior administration official clarified […] that green card holders from the seven countries affected in the order who are currently outside the U.S. will need a case-by-case waiver to return to the U.S. […] Green card holders in the U.S. will have to meet with a consular officer before departing the country, the official said”.

This had the potential of impacting up to 500,000 lawful US residents from the seven countries listed above, before Donald F. McGahn II – Counsel to President Trump – “re-interpreted” this part of the executive order and issued a memo on February 1st 2017 exempting lawful permanent residents from the ban, which pundits called “highly unusual” and interpreted as a “face-saving way for the White House to redraft the executive order without incurring the embarrassment of actually having Trump sign a new executive order”. It is important to note, however, that despite this “re-interpretation”, the 9th Circuit Court of Appeals, within the context of the Trump administration’s challenge to the temporary restraining order issued on February 3rd (see section 4 below for details), has stated in their legal opinion (on p. 20-21) that the White House counsel is not empowered to issue an amendment superseding the EO; as such, it is not clear that this “re-interpretation” is legally binding:

“At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely. Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings”.

With regards to non-immigrants, the INA doesn’t provide the same protections as it does to immigrants. However, this does not mean that non-immigrants have no rights under the US constitution. Indeed, the 9th Circuit Court of Appeals has emphasized that:

“The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S.21, 33-34 (1982)”.

3) The Refugee Ban

Section 5 of the executive order, titled “Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017” states [italics mine]:

“(a)  The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days.  During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.  Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures.  Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.

(b)  Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.  Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

(c)  Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.

(d)  Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.

(e)  Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.

(f)  The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.

(g)  It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees.  To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement”.

Interpretation and “justification” of section 5(b)

I want to focus on section 5(b), which essentially states that refugee applicants claiming religious persecution will be prioritized “provided that the religion of the individual is a minority religion in the individual’s country of nationality”. 

It is not clear how the ambiguous language of 5(b) is to be interpreted, specifically the words “minority religion” and “country of nationality”. Would section 5(b) apply, for example, to certain groups of Muslims who are being persecuted for their minority religious beliefs, such as Shia Muslims facing religious persecution in Sunni majority countries like Saudi Arabia and Sunni Muslims facing discrimination in Shia majority countries like Iran, or would the Trump administration argue that the Shia  and Sunni categories are not religions but sects within Islam (and therefore, that intra-religious sectarian persecution does not qualify under 5(b)). Would section 5(b) apply to the Muslim Rohingya facing persecution in Buddhist-majority Myanmar, or would the Trump administration echo the claims made by the Myanmar government that the Rohingya’s country of origin is not Myanmar and that they are illicit foreigners from Muslim-majority Bangladesh (the Rohingya “are not regarded as one of the country’s [Myanmar] 135 official ethnic groups and are denied citizenship under Myanmar’s 1982 Citizenship Law, which effectively renders them stateless“)?

Regardless of how the language in 5(b) is to be generally interpreted, it is clear that at least in the particular case of Syrian refugees, the language of 5(b) was intended to prioritize Christian over Muslim refugees. Indeed, in an interview with Christian Broadcast News, Trump essentially stated that Syrian Christian (as opposed to Muslim) refugees would be prioritized in the refugee settlement process, in response to the interviewer’s question within the context of his executive order. Some conservative pundits such as David French from the National Review have attempted to justify this stance on Syrian refugees (if we read between the lines) by remarking that there seems to be a disparity in the number of Syrian Christian vs. Muslim Syrian refugees admitted into the US (Trump himself alludes to that in his interview). According to French:

“The Obama administration has resettled 13,210 Syrian refugees into the United States since the beginning of 2016 — an increase of 675 percent over the same 10-month period in 2015. Of those, 13,100 (99.1 percent) are Muslims — 12,966 Sunnis, 24 Shi’a, and 110 other Muslims — and 77 (0.5 percent) are Christians. Another 24 (0.18 percent) are Yazidis”.

The numbers quoted above seem to be correct, according to the Refugee Processing Center. The question is why have so few Syrian Christian refugees been admitted into the US? Is it because of discrimination, or for some other reason? French is correct in pointing out that around 10% of Syria’s pre-war population is Christian (at least according to the CIA World Factbook, which would put the number of Syrian Christians at around 2.1 million;  according to the Pew Research Center, around 5.2% of Syria’s population is Christian, which translates to about 1.1 million), but that is not the right metric to use to adduce any alleged disparity in the number of Christian vs. Muslim Syrian refugees (and by extension, potential discrimination in the refugee process), as this does not reflect the number of registered Syrian Christian refugees.

Neither is it helpful to make the case for discrimination in the refugee process on the basis of the number of Christians who have fled Syria. The conservative news network CNSNews has claimed that “estimates of the number of Christians who have fled their country since 2011 vary, but the international Christian charity Barnabas Fund estimated some 600,000 earlier this year, the European Parliament said at least 700,000 had done so, and a Chaldean Catholic bishop from Aleppo last March put the figure at at least one million“. As tragic as these numbers are, they only reflect the number of Syrian Christians who have fled Syria, and not the number of registered Christian refugees (which is what is needed to make the case for religious disparity in numbers in the refugee process).

Indeed, the only correct metric to use to adduce disparity in Christian vs. Muslim Syrian refugees in the refugee process is to check the religious denomination of the registered Syrian refugees. According to Robert Farley of FactCheck.org:

“Chris Boian, a spokesman for the United Nations High Commissioner for Refugees, said “UNHCR staff simply does not discriminate.” Boian said decisions about how to prioritize refugees is based on the “basic human needs” of refugees, regardless of religion, nationality or race.

The reality, he said, is that far fewer Christian Syrians have applied for resettlement.

According to data supplied by the UNHCR, just 1.5 percent of the 1 million Syrian refugees in Lebanon are Christians; 0.2 percent of the 655,000 Syrian refugees in Jordan are Christians; 0.3 percent of the 228,000 Syrians refugees in Iraq are Christians; and 0.1 percent of the 115,000 Syrian refugees in Egypt are Christians. (In Turkey, where there are 2.7 million Syrian refugees, they do not record the religion of refugees.)

“We don’t fully know why there are fewer Christians requesting refugee status with UNHCR,” Boian said”.

So, regardless of how many Syrian Christians may have fled Syria, it seems that disproportionately few have registered as refugees with UNHCR (the United Nations High Commissioner for Refugees is the UN refugee agency). Given that the US refugee settlement program relies on UNHCR for refugee applications (indeed, UNHCR “identifies those refugees who are most in need of resettlement to a third country — typically more developed countries, further from conflict regions, such as the United States”), it seems that the reason that so few Syrian Christians have been admitted as refugees into the US is because so few have registered with UNHCR (and the admitted numbers into the US seem consistent with their registered numbers with UNHCR). The real question then (as Boian has pointed out), is why so few Syrian Christians have requested refugee status with UNHCR. This is an important question to investigate, and Farley’s article offers a few hypotheses, although there does not seem to be an obvious answer to this question as of now. Regardless, the right course of action is to investigate this issue in more detail, and not to address it through the unconstitutional language of section 5(b) – see below.

The legality of section 5(b)

Many pundits, such as Mark Joseph Stern of Slate and David Cole of Just Security, have remarked that this section is meant to prioritize Christian (and other non-Muslim) applicants claiming refugee status over Muslim applicants, and as such, is unconstitutional since it violates the Establishment Clause (in the First amendment of the US Constitution). Both Stern and Cole remark that:

“According to the Supreme Court, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 US. 228, 244 (1982)”.

Furthermore, Cole argues that “one of the critical questions with respect to the validity of executive action challenged under the Establishment Clause is its intent and effect; if intended to disfavor a particular religion, it violates the Establishment Clause”. In an earlier article, he provides several lines of evidence that demonstrate Trump’s anti-Muslim bias:

  • On December 7, 2015, the Trump campaign issued a press release stating that “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
  • In July 2016, he effectively admitted that his revamping of the proposal was designed to target Muslims without expressly saying so. In an interview on “Meet the Press: with NBC’s Chuck Todd,” Trump said he would target immigrants from certain countries, but resisted the suggestion that this was a retreat from his proposal to target Muslims. “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion… People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.”
  • In November 2015, Trump told NBC News he “would certainly implement” a database to track Muslims in the United States … “I would certainly implement that. Absolutely.” Would Muslims be legally required to register? “They have to be — they have to be,” Trump replied.
  • In March 2016, Trump said, “Frankly, look, we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.”

When this evidence is added to Trump’s previously discussed statement in the Christian Broadcast News interview, it seems quite clear that there is intent to favor one religion over another.

Finally, Cole makes the important point that even if Trump had not made his unconstitutional claim on TV (and therefore not revealed blatant intent), the distinction between majority and minority religion independently violates the principle of denominational neutrality:

“Moreover, even absent that evidence of Trump’s invidious intent, the order on its face favors refugees from “minority religions” over those from “majority religions” in any given country. That distinction independently violates the principle of denominational neutrality, even if in some countries it means we will be privileging Christians and in other countries Muslims.  The law struck down in Larson v. Valente did not name any particular denominations, but simply imposed differential registration and reporting requirements on religions that received more than half of their total contributions from members, and those that did not.  Even though the law did not single out a specific religion by name, it failed to treat all denominations the same, and therefore violated the Establishment Clause.  Thus, even if Donald Trump hadn’t admitted his unconstitutional purpose on TV, the executive order would be unconstitutional”.

4) Legal challenges to executive order

Since the passing of the executive order, various lawsuits have been filed challenging the legality of the order on various grounds. In this section, we examine the major legal challenges that have ensued since the passing of the order.

ACLU lawsuit results in temporary stay against EO

The first major legal challenge to the executive order was “brought by the American Civil Liberties Union on behalf of two men [Hameed Khalid Darweesh and Haider Sameer Abdulkhalek Alshawi] detained at John F. Kennedy International Airport in New York City”. Judge Ann M. Donnelly, a federal judge in Brooklyn, issued an emergency stay on January 28th 2017, temporarily allowing people who had landed in the United States with a valid visa to remain (although the suit was filed on behalf of the two men, the temporary stay applied nationally). Her justification for issuing the temporary stay was based on her assessment that the executive order violated the claimants’ rights to Due Process and Equal Protection under the US constitution (see below).

ann-donnelly-1

ann-donnelly-2

Mark Joseph Stern provides some useful background for the basis of this ruling:

“The Fifth Amendment to the Constitution provides basic procedural guarantees to individuals detained in the U.S., prohibiting the government from depriving individuals of liberty without “due process of law.” Alshawi arrived in the country lawfully carrying the requisite documentation. Pursuant to the Immigration and Nationality Act, he now has a right to apply for asylum and have his claims processed by federal authorities. But the government did not do that. Instead, it instantly placed him in detention, without a hearing or any kind of judicial oversight, and barred him from speaking with his attorneys.

That is an unconstitutional deprivation of Alshawi’s liberty without due process of law. The federal government cannot indefinitely detain a lawful visitor without a hearing or any semblance of reasonable suspicion because the president signed an executive order. Nor, under the equal protection component of the amendment’s Due Process Clause, may the government discriminate against Alshawi because of his national origin or religion”.

Washington and Minnesota lawsuit results in temporary restraining order against EO

The next major challenge against the executive order was brought forward by Washington State and Minnesota. After hearing both sides, Seattle-based federal Judge James Robart, a George Bush nominee who was confirmed by the Senate in a 99-0 vote, issued a temporary restraining order (TRO), “targeting and effectively neutralizing all of the order’s main tenets, including its prohibition of entry from seven Muslim-majority nations. The judge also specifically blocked any preference for religious minorities in those countries, which have been widely interpreted as singling out Christian refugees for preferential treatment“.

robart-2

According to Judge Robart:

“The proper legal standard for preliminary injunctive relief requires a party to demonstrate (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest”.

Robart’s conclusion was that the States are:

“[…] likely to succeed on the merits of the claims that would entitle them to relief; the States are likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities favor the States; and a TRO is in the public interest”.

Although Robart does not discuss the details of item (1), he does explicitly discuss item (2) and claims that the “States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order”. The rationale behind this claim is summarized below:

1) Washington state and Minnesota residents were negatively impacted in areas of employment, education, business, family relations and freedom to travel.

2) Their harm extended to the States by virtue of the parens patriae legal doctrine (which is a “doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf”).

3) Direct harm to the States by virtue of the EO’s impact on the mission and operations of the States’ public universities as well as to the States’ tax base and public funds.

4) The TRO was extended beyond just Washington and Minnesota to the whole of the US by virtue of the view that immigration law should be applied uniformly (i.e. should be applied the same way everywhere in the US).

robart-1

Motion for an Emergency Stay of the TRO – denied by 9th Cicuit Court of Appeals

Unsurprisingly, the Trump administration filed a notice of appeal against Robart’s ruling on February 4th, and requested an emergency motion for a stay of Robart’s TRO in the 9th Circuit Court of Appeals; the Court subsequently denied this motion by a vote of 3-0 on February 9th. The main argument presented by the Court to deny the stay was based on their assessment that the Trump administration was unlikely to succeed in their appeal on the merits of their case, specifically around the States’ Due Process claim. According to the Court:

“In the district court, the States argued that the Executive Order violates the procedural due process rights of various aliens in at least three independent ways. First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States”.

The Court essentially agreed that these due process claims had merit, and therefore that the Trump administration’s appeal was unlikely to be successful. The Court also expressed serious concern around the claims of religious discrimination in section 5(b), although “they reserved consideration of these claims until the merits of this appeal have been fully briefed”. A summary of the court’s rationale to deny the stay is presented below, but the complete ruling is worth reading in full.

circuit-court-of-appeals-1circuit-court-of-appeals-2

The 4th Geneva Convention and the Oslo Accords

Tags

, ,

geneva_conventions

For those who are interested in the connection between the flaws of the Oslo Accords and the failure to explicitly incorporate the 4th Geneva Convention within the Accords, I strongly recommend  the excellent article “Flouting Convention: The Oslo Agreements” [The New Intifada (2001), p. 181-206] by Allegra Pacheco. On p. 186, Pacheco claims that “one of the greatest flaws of the Oslo agreements was that they did not commit Israel to (explicitly) abide by the (4th Geneva) Convention and cease its human rights violations”. On p. 188, she gives the background for that omission (worth reading in full):

allegra-pacheco-flouting-convention

It should be noted that Palestinian Human Rights groups valiantly tried to independently force the applicability of the Convention by appealing to the International Community (see p. 199 -201). These attempts yielded a “call for the convening of a meeting of the parties to consider enforcement measures of the Convention in the Occupied Territories”, as requested by UNGA resolution ES-10/6 (passed unanimously on February 9 1999), which resulted in a truncated 10 minute conference of the High Contracting Parties (to the 4th Geneva Convention) on July 15 1999 that still managed to reaffirm “the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory”. This was then followed by another conference of the High Contracting Parties on December 5 2001 and that issued a more detailed statement, again re-affirming the applicability of the 4th Geneva Convention.

Despite these attempts, Israel continued (and continues) to refuse the applicability of the 4th Geneva Convention to the OPT, and by extension, its applicability to the settlements in the OPT. It is not surprising, then, to see the avoidance of any mention of the 4th Geneva Convention in the successor to the Oslo Accords, the so-called Quartet Roadmap, which like Oslo, purposefully fails to incorporate standards of International Humanitarian Law (including the 4th Geneva Convention) within its text.

Follow-up to UNSC resolution 2334

Tags

,

A part of work in Jewish settlement of Harmoun Hanatsave near the Arab neighbourhood of Ras al-Amud

Jewish settlement of Harmoun Hanatsave near the Arab neighbourhood of Ras al-Amud in Jerusalem on Oct. 30, 2012. (Photo: Mahfouz Abu Turk/APA Images)

The purpose of this post is to address comments that have arisen in response to the article I published on Mondoweiss titled UN resolution on settlements is a step back for Palestinians. The main points of the article were as follows:

  • UNSC resolution 2334 uses weaker language on settlements compared to prior “settlement-centric” resolutions such as UNSC resolutions 446, 452, 465 and 478 that were passed in 1979 and 1980;
  • Settler growth since 1980 has increased significantly despite the passing of aforementioned stronger resolutions because of the lack of a real enforcement mechanism;
  • UN resolution 2334, similarly, lacks a real enforcement mechanism.

Based on the above points, the conclusion of the article was that:

  • The actual impact of UNSC resolution 2334 is expected to be no better than prior (and stronger) resolutions; i.e. no impact and continued settler growth.

To be clear, I stand by all 3 points as well as the conclusion of the article. However, several interesting points were made in the Mondoweiss comments section that I felt should be addressed explicitly. As such, I will paraphrase the main points in the comments, and address them individually.

1) It is true that UNSC 2334 uses weaker language than prior resolutions such as UNSC 465 (1980). However, this weaker language has already appeared in prior resolutions, such as UNSC 1515, which was passed in 2003. As such, UNSC 2334 is not “a step back” in and of itself; that step back had already occurred over a decade ago

This point was raised by Mondoweiss commentator ‘Siberiak’. Let me start by saying that this is a fair point. As such, it puts into question the title of the article, although it doesn’t undermine the main points or the conclusion of the article listed above. Furthermore, there are two caveats worth considering and that I will expound on in detail later in this post.

For context, UNSC resolution 1515 was a resolution that passed in 2003 and that endorsed the so-called Quartet Roadmap (the Quartet refers to the US, the EU, the Russian Federation and the UN). In the first operative clause of this resolution, it states that the Security Council:

  1. “Endorses the Quartet Performance-based Roadmap to a Permanent Two State Solution to the Israeli-Palestinian Conflict (S/2003/529)”.

S/2003/529 refers to the letter, dated 7 May 2003, from the Secretary General of the UN (Kofi Annan, at the time) to the President of the Security Council and that transmitted the text of the Quartet Roadmap.

The Roadmap was essentially a 3-phase approach to “resolving” the Arab-Israeli “conflict”. As such, it is not a “settlement-centric” resolution, but a much broader document. Still, it does contain language around settlements. If we focus on that language, we see that Phase 1 of the Roadmap calls for the following:

  • “GOI immediately dismantles settlement outposts erected since March 2001.
  • Consistent with the Mitchell Report, GOI freezes all settlement activity (including natural growth of settlements)”.

In Phase 2 of the Roadmap, we have the following:

  • “Creation of an independent Palestinian state with provisional borders through a process of Israeli-Palestinian engagement. Launched by the international conference. As part of this process, implementation of prior agreements, to enhance maximum territorial contiguity, including further action on settlements in conjunction with establishment of a Palestinian state with provisional borders”.

Finally, in phase 3 of the Roadmap, we have the following:

  • “SECOND INTERNATIONAL CONFERENCE: Convened by Quartet, in consultation with the parties, at beginning of 2004 to endorse agreement reached on an independent Palestinian state with provisional borders and formally to launch a process with the active, sustained, and operational support of the Quartet, leading to a final, permanent status resolution in 2005, including on borders, Jerusalem, refugees, settlements; and, to support progress toward a comprehensive Middle East settlement between Israel and Lebanon and Israel and Syria, to be achieved as soon as possible”.

There are two key points on settlements in the Roadmap that are worth summarizing:

  1. The Roadmap calls for the freezing of all settlement activity and the dismantlement of all settlement outposts erected since March 2001 (note that “settlement outposts” tend to be smaller settlements, usually unauthorized but typically encouraged by the GOI). However, it does not explicitly mention anywhere that all settlements (including non-outpost settlements), regardless of when they were erected, should be dismantled.
  2. The Roadmap calls for a negotiated solution to “final status issues”, including (major) settlements.

These two points are substantively similar to those contained within UNSC resolution 2334. As such, it is fair to say that these points have indeed appeared within a prior UNSC resolution (specifically UNSC resolution 1515, via S/2003/529). It can therefore be said that, in one sense, the “step back” from an explicit call for dismantlement of all settlements (such as that made in UNSC resolution 465) to a settlement freeze and a negotiated solution occurred over a decade ago; so UNSC resolution 2334, in that sense, would be echoing that “step back”, as opposed to imposing a new reality.

The implications of the 4th Geneva Convention

[Note: The following section between stars (****) was added on 1/18/17]

**** Having said all of the above, there’s a different sense in which UNSC resolution 2334 is a “step back”. Unlike UNSC resolution 1515 via S/2003/529, which expressly avoided citing the applicability of the 4th Geneva Convention anywhere in the text, and by implication, affirming the illegality of settlements in violation of international law (essentially repeating Oslo in this regard; see here for background), UNSC resolution 2334 does explicitly cite the 4th Geneva Convention and declares the illegality of settlements, but fails to assert the implied consequences of such illegality; i.e. insisting on dismantling all settlements, as stated in UNSC resolution 465 (for example). Indeed, in the 3rd paragraph of the Preamble of UNSC resolution 2334, we have the Security Council:

  • “Reaffirming the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949”.

This is then followed up with operative clause 1, in which the Security Council:

  1. “Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace”.

However, and as discussed in the Mondoweiss article, instead of insisting on the dismantlement of settlements as the implied consequence of such illegality, UNSC resolution 2334, in operative clause 3, merely:

3. “Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations”.

In other words, in UNSC resolution 2334, the international community explicitly gives up on the critical and well-accepted notion within International Law that “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed“. The “step back”, then, is the failure of UNSC resolution 2334 to forcefully insist on the linking between the illegal act (i.e. settlements) which is recognized, and the notion that reparation must wipe out all the consequences of the illegal act, which isn’t recognized (given the lack of insistence on dismantlement of all settlements). By failing to re-iterate that link, UNSC resolution 2334 introduces the moral hazard of insisting on the applicability of a principle (illegality of settlements) while failing to draw the consequences stemming from that principle (dismantlement); instead, it allows for “facts on the ground” to dictate consequences (negotiations).****

Enhancing “maximum territorial contiguity” in S/2003/529

The second point worth noting is that there doesn’t seem to be any prescriptive language in UNSC 2334 regarding the negotiated borders, whereas there seems to be in S/2003/529. Indeed, within the context of negotiations, the language used in Phase 2 of the Roadmap around the borders of a future Palestinian state contains the following:

  • “As part of this process, implementation of prior agreements, to enhance maximum territorial contiguity, including further action on settlements in conjunction with establishment of a Palestinian state with provisional borders”. [my italics]

In contrast, that is something you don’t see in UNSC 2334, which only states, in operative clause 3, that the Security Council:

3.”Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations.”

Now admittedly, this prescriptive language around enhancing “maximum territorial contiguity” in the Roadmap is quite opaque, and so should not be overemphasized. Still, it is worth examining it in more detail.

Let’s begin with the words “implementation of prior agreements”. Although it is not completely clear what prior agreements are being referred to by the Roadmap, these are presumably the Oslo I Accord signed in 1993 (the so-called Declaration of Principles), the Oslo II Accord signed in 1995 (the so-called Interim Agreement on the West Bank and the Gaza Strip), as well as subsequent agreements whose objective was to implement Oslo II, such as the Protocol Concerning the Redeployment in Hebron (1997), the Wye River Memorandum (1998) and the Sharm el-Sheikh Memorandum (1999). Leaving aside this author’s  belief that the whole “Peace Process”, starting with Oslo I, was a sham and served to entrench the Occupation, one central element of Oslo II was to carve up the Palestinian Occupied Territories (OPT) into different Areas (so-called areas A, B and C) that Israel was supposed to gradually withdraw or re-deploy from, according to an associated timeline; a newly created Palestinian Council (which would replace the PA) would then be “in charge” of these areas after withdrawal (the phrase “in charge” is being used loosely here, as the Council would have had different levels of control over different areas). However, Oslo II (and subsequent agreements) were never fully implemented, and Israel remained in control of the vast majority of the West Bank, leaving the Council in “control” of non-contiguous islands dotting the West Bank (mostly in Area A and B). It is likely within this context, then, that the words “to enhance maximum territorial contiguity” should be interpreted. Having said that, it is crucial to note that even if these agreements were fully implemented, it is not clear how much territorial contiguity would have been enhanced given that settlements and their associated infrastructure, which dotted the landscape of Area C of the West Bank and which were under the control of Israel, were explicitly left to final status negotiations (and therefore were not part of the implementation of these agreements).

The next question, then, is how to interpret the words “including further action on settlements”. Does the word “including” tie back to the “implementation of prior agreements” and/or to the language around enhancing “maximum territorial contiguity”? As previously mentioned, given that both the Oslo I and II Accords (as well as subsequent agreements) explicitly left discussion of settlements to final status negotiations, it is reasonable to assume that this “further action on settlements” ties back to enhancing “maximum territorial contiguity”. Indeed, one of the major sticking points in the negotiations at Camp David II and elsewhere was the lack of contiguity of a potential Palestinian state because of settlements dotting the landscape all across the West Bank. Having said that, the words “further action” are left undefined, and as such, it is not clear what this “further action” consists of.

I suspect that this language was purposefully ambiguous to allow each side to claim its favorite interpretation of the text (as an aside, all these bilateral agreements contain such ambiguous language). For example, the pro-Israeli side could interpret those words in a way that would lead to the annexation of the vast majority of settlements around the Green Line with perhaps the dismantlement of smaller settlements deep into the West Bank, which would allow for potential contiguity of a future Palestinian state but with reduced borders well within the Green Line (at best, land swaps could be executed to “make up” for Israeli annexation of territory inside the Green Line, although the quality and quantity of land received in return has always been a contentious point of negotiations). Meanwhile, a more pro-Palestinian reading could interpret those same words as implying dismantlement of all or the vast majority of settlements, since dismantlement of settlements would enhance maximum territorial contiguity of a future Palestinian state.

The pro-Palestinian reading is indeed the interpretation of Amr Mousa, the Secretary General of the Arab League, who stated at the time that “the real execution of the map is the dismantlement of all settlements and not some random ones”.

It was also the interpretation of Kieran Prendergast, the UN Under-Secretary-General for Political Affairs, who stated that “[…] those actions would not be a substitute for Israel’s compliance with other obligations under the Road Map, such as dismantling all settlements activity”.

That interpretation is also consistent with UN General Assembly resolution 61/118, which was passed in 2007 (so well after the Roadmap resolution), which, in operative clause 3:

  • “3. Notes the Israeli withdrawal from within the Gaza Strip and parts of the northern West Bank and the importance of the dismantlement of the settlements therein as a step towards the implementation of the road map”;

and then reiterates and stresses the full implementation of prior UNSC resolutions, including UNSC 465 in operative clauses 6 and 8:

  • “6. Reiterates its demand for the immediate and complete cessation of all Israeli settlement activities in all of the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, and calls for the full implementation of the relevant resolutions of the Security Council [in the preamble, it states: “Recalling also relevant Security Council resolutions, including resolutions 242 (1967) of 22 November 1967, 446 (1979) of 22 March 1979, 465 (1980) of 1 March 1980, 476 (1980) of 30 June 1980, 478 (1980) of 20 August 1980, 497 (1981) of 17 December 1981 and 904 (1994) of 18 March 1994];
  • 8. Stresses the need for full implementation of the relevant Security Council resolutions regarding the Israeli settlements”.

To be clear, I am not claiming that the “dismantlement interpretation” is the only or even the best interpretation of that language; as I previously mentioned, there are clearly other interpretations that can be applied to this ambiguous language. However, the presence of this language, as opaque as it is, does potentially afford an avenue to whoever wants to interpret it that way with something to point to. In contrast, we don’t even have that in UNSC resolution 2334.

2) UNSC 2334 provides international legal justification for BDS against settlements

This point was implied by Mondoweiss commentator ‘punterweger’, who linked to Rashid Khalidi’s NYT article and which makes this argument. To be specific, Khalidi says that “it [UNSC 2334] ‘calls upon states to ‘distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.’ This provides the international legal justification for sanctions by states, boycotts of goods produced in settlements, and divestment by unions, foundations and universities of assets in companies that support the colonization of Palestinian land.”

Khalidi is referring to operative clause 5 in UNSC 2334, which:

“5. Calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”.

It is not clear why Khalidi believes that this clause provides the legal international justification for BDS against settlements. As Khalidi surely knows, there is a mountain of international law that already exists and that explicitly considers all Israeli settlements as illegal. Indeed, per Wikipedia’s entry on International Law and Settlements:

“The international community considers the establishment of Israeli settlements in the Israeli-occupied territories illegal under international law, because the Fourth Geneva Convention of 1949 prohibits countries from moving population into territories occupied in a war.[1][2][3][4][5] Israel maintains that they are consistent with international law[6] because it does not agree that the Fourth Geneva Convention applies to the territories occupied in the 1967 Six-Day War.[7] The United Nations Security Council, the United Nations General Assembly, the International Committee of the Red Cross, the International Court of Justice and the High Contracting Parties to the Convention have all affirmed that the Fourth Geneva Convention does apply.[8][9]

Numerous UN resolutions have stated that the building and existence of Israeli settlements in the West Bank, East Jerusalem and the Golan Heights are a violation of international law, including UN Security Council resolutions in 1979, 1980,[10][11][12] and 2016.[13][14] UN Security Council Resolution 446 refers to the Fourth Geneva Convention as the applicable international legal instrument, and calls upon Israel to desist from transferring its own population into the territories or changing their demographic makeup. The reconvened Conference of the High Contracting Parties to the Geneva Conventions has declared the settlements illegal[15] as has the primary judicial organ of the UN, the International Court of Justice[16] and the International Committee of the Red Cross“.

Logically, if settlements are illegal and a violation of international law, then clearly:

  • Anyone dealing with Israeli settlements is in violation of international law.
  • There is a distinction being made, ipso facto, between “Israel proper” and settlements (given that Israel is legally recognized under international law).

This logic is furthermore reflected in policies already in place by numerous countries. Indeed, the European Commission adopted “on 11 November 2015 an interpretative notice on the indication of origin of goods from the territories occupied by Israel since June 1967” to clearly distinguish them from “Israel proper”. Furthermore, the council of the European Union, on January 18 2016, first re-iterated that settlements are illegal under international law:

“7. Recalling that settlements are illegal under international law, constitute an obstacle to peace and threaten to make a two state solution impossible, the EU reiterates its strong opposition to Israel’s settlement policy and actions taken in this context, such as building the separation barrier beyond the 1967 line, demolitions and confiscation – including of EU funded projects – evictions, forced transfers including of Bedouins, illegal outposts and restrictions of movement and access. It urges Israel to end all settlement activity and to dismantle the outposts erected since March 2001, in line with prior obligations. Settlement activity in East Jerusalem seriously jeopardizes the possibility of Jerusalem serving as the future capital of both States”.

Then, they made sure to distinguish between “Israel proper” and the settlements in the very next clause:

“8. The EU and its Member States are committed to ensure continued, full and effective implementation of existing EU legislation and bilateral arrangements applicable to settlements products. The EU expresses its commitment to ensure that – in line with international law – all agreements between the State of Israel and the EU must unequivocally and explicitly indicate their inapplicability to the territories occupied by Israel in 1967. This does not constitute a boycott of Israel which the EU strongly opposes.”

In other words, the EU has already been distinguishing in its dealings between “Israel proper” and the settlements and is using already existing international law to justify that (as a side note, I would recommend reading the entire EU council statement; it is remarkable how similar certain parts are to UNSC 2334). As such, there’s nothing preventing other states from doing so as well, regardless of UNSC 2334. Therefore, operative clause 5 in UNSC 2334 does not provide the legal foundation for anything; at best, it explicitly states what is already and clearly implied within existing international law and what many countries are already doing.

3) UNSC 2334 is supportive of BDS, and provides impetus to the BDS movement

This is another point raised by Mondoweiss commentator ‘punterweger’. It is quite possible that this resolution will provide some impetus to the BDS movement, although how to quantify that is an open question. Furthermore, it is important to remember that this resolution (via operative clause 5) is supportive of BDS only against settlements. The BDS movement, on their website, “urges nonviolent pressure on Israel until it complies with international law by meeting three demands:

  • Ending its occupation and colonization of all Arab lands and dismantling the Wall
  • Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality
  • Respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN Resolution 194″.

BDS against settlements is not an explicit objective of the BDS movement. At best, it could be read into the first BDS objective, but even then, it is not a primary objective. Indeed, even if BDS against settlements was completely successful, and all settlements were dismantled, that would not end the occupation and colonization of all Arab lands, nor would it recognize the fundamental rights of Arab-Palestinian citizens of Israel to full equality, nor would it impact the implementation of the right of return. As such, operative clause 5 of UNSC 2334 could be construed as “supportive of BDS” only in a very limited and (at best) secondary sense, and as previously discussed, does not add anything new to international law that the BDS movement couldn’t already point to.

Editorial note: this post was updated on 1/18/17 to reflect a missing section in the original blog post (the section has been clearly identified between stars ****).

UN resolution on settlements is a step back for Palestinians

Tags

, ,

My latest article has been published at Mondoweiss.

A part of work in Jewish settlement of Harmoun Hanatsave near the Arab neighbourhood of Ras al-Amud

Jewish settlement of Harmoun Hanatsave near the Arab neighbourhood of Ras al-Amud in Jerusalem on Oct. 30, 2012. (Photo: Mahfouz Abu Turk/APA Images)

“UNSC resolution 2334 includes weaker language on Israeli settlements than prior UNSC resolutions which called for Israel to dismantle existing settlements and lacks a real enforcement mechanism. There is little reason to believe it will have a practical effect in halting and dismantling Israel’s settlement enterprise.” – Mondoweiss