Australia/Israel Review


Essay: The Case for Moral Clarity

May 4, 2020 | Alan Dershowitz

The situation in the West Bank bears no relationship to apartheid, nor is it “occupation” as that term is used in international law
The situation in the West Bank bears no relationship to apartheid, nor is it “occupation” as that term is used in international law

Anti-Zionism, Antisemitism and legitimate criticism of Israel

 

Much of what today purports to be criticism of Israel or the claim of ideological opposition to Zionism is merely disguised antisemitism, perpetrated by singling out the nation-state of the Jewish people for condemnation and demonisation. 

The United Nations, for example, devotes more time to condemning Israel than all the other countries in the world combined, and the only explanation for this is that they are motivated by a hatred of the Jewish people and a hatred of their Jewish state.

When, on university campuses, there are demonstrations against buildings going up in the West Bank (something I might personally be opposed to), while ignoring the misdeeds of Syria, Yemen, Iran, Hezbollah, and Hamas, there is no other explanation but a hatred of the Jewish people. 

The world did not care when the Palestinians were being oppressed and occupied by Egypt or Jordan. The world only became concerned when occupation accusations shifted to the nation-state of the Jewish people. Israel is the “Jew among the nations,” and to single out only Israel for delegitimisation, condemnation, and demonisation is perverse and the current form of antisemitism. 

To put this brief on antisemitism in historical context, “legitimate” anti-Zionism can be traced to German Jews who considered Judaism merely a religion and not a nationality. However, this is not the subject at hand, nor is it the mindset of today’s antisemitic “anti-Zionists.” The current debate does not centre around the philosophy of Zionism, but on the demonisation of Israel not because of what it does, but because of what it is, and that is, a sovereign state of the Jews. There is no name for this other than antisemitism. 

First, to understand the new antisemitic movement, its core values and outlook must be understood. The so-called “progressives” are largely regressive, in that they repress free speech and deny due process. These new McCarthyites are not truly liberals because they do not allow for freedom of thought, freedom of conscience, and freedom of speech. They show a fundamental disrespect for others who think differently from them.

I consider myself a liberal. 

Anti-Israel rhetoric does not stem from liberals for the most part, but from radical leftists. The radical Left has been antisemitic since Voltaire and Marx. The radical Left and the radical Right both have shared elements of antisemitism. A problem we now face is that this outlook is slowly creeping into the minds of liberals. American Jewish writer Peter Beinart deserves some of the blame for this phenomenon, because he presents himself as a liberal, not a radical leftist, and he has begun to use tropes, that at least others interpret and use to make broader arguments against the Jewish people, such as the influence of Jewish money. These can be heard from other Jews, too. 

For example, Eric Yoffie, a former head of the Reform movement in the US, attacked me in an article in Israeli newspaper Ha’aretz, for defending Israeli Prime Minister Benjamin Netanyahu against his current indictment, saying I must be doing it for the money. He said that it was a matter of American businessman Sheldon Adelson’s money. 

I have never received a penny for defending Netanyahu. How is Yoffie different from US House of Representatives Congresswoman Ilhan Omar tweeting, “It’s all about the Benjamins, baby”? The trope that Jews do everything for money and that Jews use money to do everything is pervasive, and even Jews are guilty of this when attacking other Jews. 

When Yoffie attacked me, he resorted to antisemitic tropes; that I must be doing what I do for the money, even though I have never spoken to Adelson about this subject and would never take orders from anybody, even a client, as to what to say on a given subject, as a matter of principle. The use of antisemitic tropes is finding its way into our everyday speech, writing, and rhetoric, and it is a dangerous development. 

Not only are classical antisemitic terms being used in rhetoric against Israel, but other loaded catchphrases are being blatantly misused to smear Israel. 

One such term is calling Israel “an apartheid state.” 

Historically, we should recall that the campaign that misnamed Israel as an apartheid country was initiated by none other than an antisemite named Bishop Desmond Tutu of South Africa. Bishop Tutu, though highly respected, has proven himself a bigot, constantly speaking of the Jewish people’s influence and money. He once said that Israel and the Jews are very un-Christian. I was banned from speaking at a university in Cape Town because of my criticism of Bishop Tutu. 

The apartheid claim generally comes from antisemites, and it is based on ignorance. Anybody who fought the war against South African apartheid as I did, along with Bishop Tutu, Nelson Mandela, and Canadian Supreme Court Justice and jurist Irwin Cotler, knows what apartheid is. Apartheid is denying “people of colour” the right to vote, among other basic rights. In Israel, of course, the Declaration of Independence assures the Arab citizens of Israel full, complete, and equal rights, and obviously, the Knesset, Israel’s Parliament, has Arab members. Apartheid is a fake argument, but it is one that resonates with ignorant people who do not understand history and cannot distinguish true apartheid from the country in the Middle East that has the most equality. 

If you want to find apartheid situations in the Middle East, look to Saudi Arabia for apartheid based on religion and gender, or talk about Iranian apartheid based on sexual orientation. But don’t pick Israel, which has the best record of equality on all these grounds of any country in the Middle East, and one of the best records of any country in the world. 

THE MYTH OF “ILLEGAL OCCUPATION” 

Another false claim is that of “occupation.” This term has crept into the popular parlance by way of the media adopting this inaccuracy from sources of propaganda and anti-Israel rhetoric, with politicians following along, lacking basic understanding about the terms and their legal meaning. 

One culprit is a man I voted for twice and campaigned for twice, former President Barack Obama. President Obama, who, in a vengeful last act, a month before he left his presidency, actually pushed through, and did not just refuse to veto, a resolution saying that the Kotel – the Western Wall in Jerusalem, Judaism’s holiest place of prayer – was illegally occupied, and that the Jewish Quarter of Jerusalem’s historic Old City, which has been populated by Jews for 3,000 years, is “illegally occupied.” 

First, the term “illegal occupation” is a misnomer. The term “occupation” is a term of art in international law. It applies to “belligerent occupation” of sovereign territories by an external sovereign, whether it was Nazi Germany’s occupation of European states such as France, Belgium, and Holland or whether it was the Allied post-war occupation of Germany or imperial Japan. 

The specific situation in the West Bank areas of Judea and Samaria after the 1967 war is not occupation, since the Palestinians never had a state there. It would be accurate to say that the lands are under dispute and subject to negotiation in line with the Oslo Accords of the 1990s. 

Yet, China’s occupation of Tibet, or Russia’s occupation of Chechnya, or Turkey’s occupation of Northern Cyprus are overlooked, as are other parts of the world today where there is genuine occupation. 

There can be no “occupation” when on numerous occasions, in line with Oslo and subsequent peace initiatives, Israel offered to concede disputed land in exchange for peace and recognition. 

I know this because I sat across the table from Palestinian Authority President Mahmoud Abbas and asked him if he would be willing to say that Israel is the nation-state of the Jewish people. He replied, “No,” he would not. 

You cannot honestly call the situation between the Israelis and the Palestinians “apartheid” when former Israeli Prime Minister Ehud Olmert offered the Palestinians an end to the so-called “occupation” in 2008, or when former Israeli Prime Minister Ehud Barak offered to end the “occupation” in 2000. 

That is not “apartheid;” that is not even an “occupation.” That is just disputed territory over which the Israelis are prepared to compromise. This only requires that the Palestinians sit down with Israelis, which the Palestinian leadership has refused to do for over a decade, feigning various reasons, the latest of which has been the 2019 American Embassy move from Tel Aviv to Jerusalem, which is a simple recognition of the Jewish right to its actual historical capital and does not negate the right to a Palestinian capital jointly located there at a later phase. 

Even the situation of Arabs living on the West Bank bears no relationship to apartheid. The leadership has repeatedly rejected offers of statehood. Moreover, Arabs living in Ramallah, Jericho, and other West Bank cities have more freedom and control over their lives than most Arabs living in Muslim countries. 

False claims and legal inaccuracies hurled at Israel freely by the left beg the question, “Can Israel do anything about the new antisemitic bias in the form of anti-Zionism or anti-Israeli sentiments?” The answer is, unfortunately, nothing. 

In my new book, Defending Israel: My Lifelong Relationship with My Most Challenging Client, I document how every time Israel did something positive, every time it gave away some of its territories, every time it sat down and negotiated, every time it offered a two-state solution, every time it offered the Palestinians the West Bank, the Boycott, Divestment and Sanctions (BDS) movement and other attacks on Israel grew.

There is an inverse relationship between conciliatory Israeli actions and the criticisms and attacks on Israel. The BDS movement is not a protest against Israeli decisions or actions; it is a crusade against Israel itself. 

Just ask the founder of the movement, Omar Barghouti, who says that he believes in Palestine “from the river to the sea,” which means Tel Aviv, Haifa, and Ashdod. This makes the idea that Israel can counter this kind of belief system historically untenable since it is an attack on the very existence of Israel. 

According to the anti-Zionists, the only thing Israel can do to stop the criticism is pack up and leave, give up and commit politicide, which no country in the history of the world has ever done, and which Israel will not do. 

Concessions drive radical attacks on Israel, and these attacks are not based on the “occupation,” the separation fence, the response to Gaza, the moving of the embassy, or the recognition of Israeli sovereignty over the Golan Heights. The attacks on Israel are not based on what Israel does, rather, they happen because of what Israel is, and that is the nation-state of the Jewish people. 

Peter Beinart wrote an article justifying arguments that Israel should not be the nation-state of the Jewish people, saying that it is perfectly legitimate to criticise and attack the entire Zionist enterprise, and that it is not antisemitic to say that Israel should not exist, any more than it is anti-Kurdish to say that there should not be a Kurdish country. But it is anti-Kurdish to say that there shouldn’t be a Kurdish country. There should be a Kurdish country. And it is certainly antisemitic to say that there should not be a nation-state for the Jewish people. 

This brings us to the question of what is truly legitimate criticism of Israel. Legitimate criticism should focus on issues and actions, not on what Israel is. Criticism must be equivalent to both sides. It must be criticism which passes what I call “the shoe on the other foot” test. If you criticise Israel for something, and the Palestinians do it too and do it worse, you must criticise them equally. If you criticise Israel, and other countries in the world are as bad or worse, you must put it in the context of those other countries. 

That is the key to legitimate criticism; equality, symmetry of criticism, no double standards, no singling out Israel because it is the nation-state of the Jewish people. Much of the current condemnation of Israel does not meet that definition of legitimacy. 

Professor Alan Dershowitz is the Felix Frankfurter Professor of Law Emeritus, Harvard University Law School, and the author of numerous books including 2019’s Defending Israel: The Story of My Relationship with My Most Challenging Client. This essay was initially published as a chapter in the book Israelophobia and the West: The Hijacking of Civil Discourse on Israel and How to Rescue It, edited by Dan Diker and published by the Jerusalem Centre for Public Affairs (JCPA). © JCPA (www.jcpa.org), reprinted by permission, all rights reserved.

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