Adapted from Phil Ochs, Love me I’m a Liberal

Oh, I cried at Sabra and Shatila,
The tears ran down my spine,
And I cried when Rabin was gunned down,
As though I’d lost a father of mine.
Continue reading →

Part II of the Series:

A Who’s Who of the „Free Muslims Board

In Part I of this series, we examined the activities of Jon „Yani“ Haigh, a longtime Queensland resident who operates and monitors a network of racist troll groups on Facebook, and Kamal Nawash (for whom Haigh provides a range of web design and programming services) of the „Free Muslim Coalition Against Terror“ , a group that advocates the political repression and surveillance of the US Arab and Muslim communities (related to the Facebook group „Free Muslims“). This, the second part of the series, examines some of the other shady characters who make up the „Free“ Muslims Coalition.

 

The board of the Free Muslims are exactly what you’d expect of a group with the stated purpose of putting a Muslim face on the plethora of repressive measures, human rights violations, and outright war crimes that make up the „war on terror“.

Particularly fitting is the presence on the Board of Ray Hanania, who began his career as a journo in Chicago, covering local and regional politics for the Sun-Times and other print, radio, and TV outlets. During this period, he also hosted call-in radio chatshows on WLS, and appeared regularly on Dick Kay’s City Desk on WMAQ-TV. In 1990, he served as a panellist at the Chicago mayoral debate, which resulted in yet another electoral victory for the Daley clan. Two years later, he delved headfirst into the world of Chicago machine politics, founding the Urban Strategies Group, a full-service PR agency whose clients include Mayor-For-Life Daley himself, various city agencies, aldermen, Democratic committeemen, and „three successful candidates for the U.S. House of Representatives“.

Hanania boasts particular expertise in „crisis management“ for „those with serious public relation [sic] challenges“. One imagines that such expertise was quite useful during his stint providing „basic media training“ to the propaganda agency of Israel’s „Palestinian Authority“. Nor could it have hurt when he was called upon by the U.S. State Department and U.S. „Information“ Agency to „provide media training sessions, meetings and presentations…to foreign media and government officials.“ Continue reading →

Part I of a Series on Racism and Infiltration

In the aftermath of the racist tweet and multiple, contradictory „explanations“ by Greta Berlin, much attention has been focussed on the letter published as an appendix to Larry Derfner’s second article on the subject, in which a number of purported members of the „secret group“ corroborate Berlin’s claim that nothing untoward or anti-Semitic was going on in the group in question. Benjamin Doherty revealed, in successive articles on Electronic Intifada, that a number of the signatories were in fact sockpuppets controlled by one Ofer Engel. Another central figure, however, has largely avoided the spotlight.

Before we proceed, however, it is important to keep in mind that the following is not about any one individual, though a number of individuals will be given their time to shine. No, this is about the Palestinian solidarity movement as a whole: What we are and seek to do as a movement, and those who would hijack us for their own purposes.

Yani Haigh and The Trollpen

The final signatory on the „nothing to see here“ letter is a Queensland web designer and photographer by the name of Jon „Yani“ Haigh. He is, in Facebook terminology, the „owner“ of the „secret group“ Any Topic NOT Israel (and a regular in a number of related groups), and operates a number of anonymous and aesthetically nondescript websites, including thebestplans.org and peacearchitects.org.

This article, the first in a series dealing with the activities and associates of Jon „Yani“ Haigh, will seek to provide a brief introduction to Haigh himself, and his close associate Kamal Nawash of the Free Muslim Coalition Against Terrorism. In future articles, we will look at other figures on the „Free Muslims“ Board, including the inimitable Ray Hanania, and other organisations and agencies with which Haigh and his associates collaborate.

A recurring theme in his posts is that „Jews suck“, and can only redeem themselves by being baptised Christian, and by boycotting Jewish community institutions and events (along the lines of Herskowitz‘ schul picket). Alternatively, repentant Jews may simply send money to peacearchitects.org. Conflict, unsurprisingly, follows Haigh like the CIA follows Julian Assange.

The same can be said of other regulars of the „secret group“ and affiliated groups, such as fellow signatory Kyle O’Laughlin, who divides his time in Any Topic NOT Israel fairly evenly between complaining that African-American pride is welcomed whilst „White Pride“ is – shockingly enough – considered racist and posting links together with his comrade James Linden Rose on how the KKK and other white supremacist groups are in fact Jewish front groups designed to make white people look bad and thwart Ron Paul’s perennial presidential run.

Whilst the groups Any Topic NOT Israel, Our Land, and Free Muslims all have anodyne descriptions about getting to know each other and coming up with plans for peace, etc., and mission statements banning racism and flaming, the groups themselves bear little resemblance to these noble sentiments. In point of fact, the groups operate as a breeding and training ground for trolls, particularly those (like O’Laughlin, Linden Rose, and Haigh) of the white supremacist variety, mixed together with a few of the more vocal Zionist trolls. There, they engage in their preferred versions of racism, and hurl accusations back and forth about collaboration, snitching, and participation in world conspiracies of one sort or another, with little to no moderation in sight. One does have to wonder what the purpose of creating and administering a network of racist trollpens would be.

Greta Berlin, as luck would have it, is a member in several of these groups, though the exact

circumstances of her joining them will likely remain unclear, given the fog of bullshit that surrounds her and her cohorts‘ descriptions of the groups.

 The Company He Keeps

             Yani Haigh, it must be said, is a rather embarrassing person to have vouch for one’s anti-racist credentials. Indeed, were it not for his signature on the „nothing to see here“ letter and the creepily detailed set of mindmaps with which, by his own account, he monitors over 200 Facebook groups „to track troublemakers“, he would be an annoying boor of little consequence; he would merely be someone to avoid sitting in front of at the Gabba when the footie’s on, but would not merit much attention beyond that.

However, over the course of the past week, facts have emerged to place Haigh’s combination of racist boorishness and meticulous surveillance into a broader context. One of the websites Haigh designed and operates, thebestplans.org, is that of an organisation founded by one Kamal Nawash, Esq., Haigh’s employer and fellow member of the groups in question.

Kamal Nawash is a Palestinian-American lawyer, with an LL.M. from American University’s Washington College of Law.

After a stint as counsel for the American-Arab Anti-Discrimination Committee (ADC), in 2003, apparently with the support of hard-right Republican activist Grover Norquist, Nawash stood for election to a seat in the Virginia state Senate. His Senate run was ultimately unsuccessful due to the general climate of scapegoating and criminalisation of Muslim and Arab life in the US.

Some might be led by such an experience to campaign against racism and bigotry. Not Kamal Nawash. Shortly after his electoral defeat, Nawash founded the Free Muslim Coalition Against Terror (and later, its Facebook counterpart, the group „Free Muslims“), an organisation largely dedicated to providing public relations cover to US government repression of the Arab and Muslim community. One view one finds repeated throughout the autobiographies of the Free Muslims Board members is that it is Muslim ideology – and not, say, decades of murderous US and US-sponsored violence against them and their countries – that is at fault for any problems in the Muslim community and the Middle East.

In 2004, the Free Muslims organised a March Against Terror, which was endorsed by a diverse cross-section of people and organisations dedicated to bigotry against Arabs and Muslims (such as Daniel Pipes), to organisations and people dedicated to more general bigotry (RIGHTALK.com), to fellow alibi Muslims such as Zuhdi Jasser of the „American Islamic Forum for Democracy“, to a wide assortment of right-wing organisations that no one had ever heard of and/or offer no proof that they actually exist (such as the „Government of Free Vietnam“, made up of former officials from the US puppet dictatorship who claim to be the legitimate government on account of having been elected fair and square to the position by four US presidents in a row).

Apparently, Nawash’s March Against Terror (and explicitly in support of Bush) caught a few eyes in Washington, because, in 2005, he was rewarded by the Bush White House with an appointment as US envoy to the Organisation for Security and Cooperation in Europe (OSCE).

Around the same time (2003-2007), Nawash began contributing to FrontPagemag.com, the far-right blog run by Stalinist-turned-fascist David Horowitz, who also operates the neo-McCarthyite campus group CampusWatch and the right-wing private intelligence organisation Discover The Networks. Nawash’s articles include titles such as We Are So Sorry for 9-11, French Riots: A Gift from the Open Borders Lobby, and the KCNA-esque Free Muslims Congratulate President George Bush.

This period in the life of Kamal Nawash has been very helpfully chronicled by none other than Daniel Pipes himself. As of 11 September 2003, Nawash earned a strong blast of scorn from the Pipes for suggesting that the Bush administration’s „anti-terrorism“ (i.e., pro-repression) plan raised concerns about „basic Constitutional rights“:

Of particular interest (given that several 9/11 hijackers used a student cover), is Nawash’s objection to the U.S. government tracking foreign students, protesting (nonsensically) that this step would indicate „a willingness to restrict scientific knowledge and scholarship to certain classes of people and to flout, basically, principles of academic freedom.“ Sounds like this man opposes the war on terrorism; in any case, he sure makes for a strange Republican candidate.

Throughout 2003, Pipes had nothing but contempt for Nawash, who was raising objections to the Clinton-era Antiterrorism and Effective Death Penalty Act, which allows the executive branch unilaterally to ban organisations as „terrorist organisations“, and criminalises anyone associated with them, criticising the designation of Palestinian groups disfavoured by the US regime as „terrorist“, and generally raising fairly mild questions about the human rights implications of the „war on terror“. Of US Senator John Warner (R-VA), who had endorsed Nawash’s candidacy for the Virginia state Senate, Pipes wrote: „Virginians might wish to inform their senior senator that he is, to put it mildly, going out on a limb on this one.“

By 2004, however, another tune began to be blown on the Pipes. In noting Nawash’s formation of the Free Muslims group, Pipes writes:

It sounds good and it has been getting lots of good publicity, but given Nawash’s record on terrorism, as established here (his dismissing the concept, his close ties to a person alleged to fund terrorism), I need to be convinced that this leopard has changed his spots.

By 2005, we find Pipes explicitly endorsing the Free Muslims March Against Terror, particularly chuffed that one Khaleel Mohammed „denounc[ed] CAIR“.

Whilst Pipes begins expressing sceptical endorsement (and Pipes has no other kind of endorsement on offer for Arabs and Muslims), by 2006, some within the exceedingly mild-mannered antidiscrimination group CAIR were expressing concern with Nawash and the way in which his remarks were eagerly snapped up by the likes of Daniel Pipes.

In two short years, Kamal Nawash went, in the mind of racist „smearcaster“ Daniel Pipes, from something akin to the 20th hijacker to one of the Good Muslims. A remarkable transformation, to say the least.

Pipes‘ timeline ends in 2008, but one can imagine that he would see no reason to reconsider his assessment in the light of subsequent events. In 2011, Nawash endorsed the neo-McCarthyite hearings chaired by Rep. Peter King on the „radicalisation of American Muslims“, and condemned the Muslim and Arab-American antidiscrimination organisations for their opposition to King’s efforts to further scapegoat and criminalise the Muslim community. When it was revealed this year that the NYPD had, for years, been carrying out a massive, illegal programme of spying on virtually the entire Muslim community of the Five Boroughs, Nawash, along with representatives of other Muslim astroturf groups organised a joint rally in support of the NYPD spying effort with none other than Rep. King himself.

Looking at this trajectory, one might be excused for speculating that Nawash’s conversion from moderate Republican and defender of Muslim and Arab-American rights to Pipes pet was not entirely free of opportunism.

Opportunism, as we will see as this series progresses, is something of an overarching theme.

*    *     *    *    *   *    *

UPDATE: In the twelve hours since this post went live, someone temporarily shut down my Facebook account, and there was an attempt to hack this blog. It appears someone might have succeeded in changing my blog password, thus preventing me getting in. All appears well now, but it does seem that someone is not exactly chuffed to bits that this article was published. They will be positively unecstatic about the subsequent parts of this series.

Meanwhile, Ali Abunimah has published his „final word“ on the debacle that gave rise to this series:

Should I have been more explicit about what I saw? Perhaps, but I had my reasons to take a more restrained approach. I had hoped that by sounding the alarm, and signaling that Berlin’s explanations were not credible, Berlin herself would begin to take the issue seriously, and that the new Free Gaza board would do the same. Sadly that did not happen.

The most dispiriting spectacle over the past two weeks was seeing Berlin disseminating, and a small group of people embellishing, outlandish stories intended to distract and shift the blame on to those who were asking for accountability.

Almost every day, I’ve received emails alleging, among other things, that I am a “Zionist agent,” that I’ve been “conned” by Israel into attacking Berlin so that Israel can steal Gaza’s natural gas, that I am engaged in a “vendetta” because Berlin endorsed a book I didn’t like, and so on. A few of these messages came from people I had previously believed to be reasonable and sensible, which added to the disappointment.

Read the full article here.

Bekah Wolf of Mondoweiss has also come out with a piece very germane to the topic of this series, documenting what some of us had been saying since this began: This wasn’t just one accidental tweet. Alas, Greta Berlin has form.

Some people have come to Greta’s defense, accepting her assertion that this was a technical mistake, that she did not support the content of the video, and that those who have criticized her response to the “mistake” are on a witch hunt. I’d like to acknowledge that the Free Gaza Movement was not synonymous with Greta Berlin; some of my good friends and people I deeply respect were leaders of that movement and their work and commitment should in no way be minimized by this.

Setting aside Greta’s woefully inadequate explanations for the tweet (of which there were several), the fact remains: Greta is an active administrator of a Facebook group that is full of unabashedly anti-Semitic rhetoric and has been called out before by activists for it but has never done anything to challenge or stop it. Since the controversy broke, the “Our Land” group has attempted to cover some of its tracks. The fact that Greta remains an active administrator of a Facebook group that accommodates this kind of bigotry raises serious issues about her commitment to building an anti-racist movement committed to justice and equality. Moreover, her unprincipled, vicious andIslamophobic attacks on the Palestinians who have called her to task for her behavior should alarm all of us who are committed to Palestine solidarity work.

The full article can be found here.

CAMERA’s Latest Scam:

The San Remo Irrelevancy and the Occupied Palestinian Territory

Sometimes the much-maligned Facebook ads have their merits. Last night, I happened upon a Facebook ad offering a course approved by the State Bar of California for credit towards the Bar’s minimum continuing legal education (MCLE) requirements entitled “Who owns Jerusalem?“.

It turned out to be an advertisement for a “course”, sponsored by the “pro”-Israeli PR organisation CAMERA and held by an obscure Canadian lawyer by the name of Jacques Gauthier, claiming that an even more obscure document from 1920 known as the “San Remo Resolution” had vested full legal title to the entirety of Palestine to Israel.

Before we turn to the content of the San Remo document, let us recall what the International Court of Justice, the supreme judicial body in the international system, concluded about the legal status of the territories occupied in 1967 (including East Jerusalem) after exhaustive analysis of the matter:

78.          The Court would observe that, under customary international law as reflected (see paragraph 89 below) in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907 (hereinafter „the Hague Regulations of 1907“), territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.

The territories situated between the Green Line (see paragraph 72 above) and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories, as described in paragraphs 75 to 77 above, have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.

Legal Consequences of the Construction of a Wall on the Occupied Palestinian Territory, paragraph 78 (emphasis added).

Put briefly, under the basic international legal principle of the “inadmissibility of territorial acquisition by war”, Israel has no claim to sovereignty over any of the territories occupied in the 1967 war. Those territories – the West Bank, Gaza, and East Jerusalem – are and remain “occupied territories”. The Court based this conclusion on an exhaustive study of the relevant legal framework, including foundational documents of international humanitarian law such as the Hague Regulations of 1907, the General Assembly’s Partition Resolution (on the strength of which the State of Israel was founded), and various Security Council resolutions calling for the withdrawal from the occupied territories (UNSC 242) and declaring “totally invalid”

„all legislative and administrative actions taken by Israel to change the status of the: City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section […]”

(UNSC 298).

CAMERA and Gauthier claim that the San Remo document negates all this, and gives Israel full title not only to the territory within Israel’s recognised (pre-June 1967) borders, but to the territory occupied in the 1967 war. If this is true, then the entire international legal consensus on the status of the Occupied Palestinian Territory is dead wrong.

This, of course, raises the question: Is it true? In order to answer this question, two fairly obvious requirements must be met:

(a)   The San Remo document must actually grant sovereignty to Israel (or, given that Israel would not exist for another 28 years, to a „Jewish state“ to be created on the entire territory of Mandatory Palestine); and

(b)   It must continue to be valid and applicable, meaning that any and all subsequent enactments must either not concern the subject matter of the San Remo document, or, if related, not conflict with it (the “last-in-time” principle – lex posterior derogat priori).

Note that (b) is a subsidiary question. If the San Remo document does not actually grant sovereignty over the territory in question to Israel or a future “Jewish state”, then its continuing vitality is of no relevance to whether Israel has any claim to the Occupied Palestinian Territory. Thus, we must first turn to the relevant provisions of the San Remo document:

(a)     To accept the terms of the Mandates Article as given below with reference to Palestine, on the understanding that there was inserted in the proces-verbal an undertaking by the Mandatory Power that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine; this undertaking not to refer to the question of the religious protectorate of France, which had been settled earlier in the previous afternoon by the undertaking given by the French Government that they recognized this protectorate as being at an end.

(b) that the terms of the Mandates Article should be as follows:

[…]

The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

In other words, the San Remo document calls for the implementation of the Balfour Declaration, which called for the establishment of a “national home for the Jewish people” in Palestine, and twice provides that the “rights hitherto enjoyed”/”civil and religious rights” shall in no way be impaired by the establishment of this “national home”. There is no reference to a “Jewish state”, nor any transfer of sovereignty to “the Jewish people” or to anyone else, merely a “national home” for Jews “in Palestine”. Even more fatally to Gauthier’s claims, the San Remo document makes no determination whatsoever as to boundaries, only noting that boundaries are to be determined on some later date by the Principal Allied Powers.

When I raised these fairly obvious issues on the Facebook event page set up by CAMERA Regional Coordinator, attorney Talia Shulman Gold, she claimed that “national home” and “state” were the same thing: “Just what do you think establishing a „national home“ meant anyway, Elise[1]?“

While this assertion may have some superficial appeal owing to the peculiarity of the phrase “national home”, there remains an obvious problem. The term “state” was in common use at the time that the San Remo document was signed. The drafters of the document can be reasonably assumed to have been aware of the term “state” and of its meaning. And yet, they did not use the term “state” to describe what they were creating for “the Jewish people” in Palestine, preferring the term “national home”. If they had intended to establish a legal basis for the creation of a “Jewish state”, they could quite simply have referred to “the establishment in Palestine of a state for the Jewish people”. Instead, they specifically chose to use a different term. To claim, as Shulman Gold has (and Gauthier must), that the drafters actually meant “state” is to claim that they did not really mean what they wrote.

Even if we were to accept, for the sake of argument, that it is permissible to read “state” where “national home” is written, the central claim – that the San Remo document gives Israel full sovereignty over the entirety of Mandatory Palestine, including the Occupied Palestinian Territory – runs into an even more serious problem: The San Remo document makes no determination at all with regard to boundaries, except to provide that “the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, [is entrusted] to a Mandatory” (emphasis added). The Principal Allied Powers left the determination of the boundaries of Palestine for a later date.

In other words, the Gauthier-CAMERA claim that the San Remo Resolution made a final and irrevocable determination that the West Bank, Gaza, and East Jerusalem should be contained within the boundaries of the State of Israel is a cynical fraud. Israel’s lawful boundaries are the internationally recognised, pre-June 1967 boundaries, and the West Bank, Gaza, and East Jerusalem are – as was authoritatively reaffirmed by the International Court of Justice – Occupied Palestinian Territory.

A Hoax Worthy of Joan Peters

It is worth noting that this blatant misrepresentation of the content and legal status of the San Remo Resolution is not the only fraud promoted by the „Committee for Accuracy in Middle East Reporting in America”. CAMERA’s “suggested book list” includes such lowlights of American intellectual life as Joan Peters’ discredited From Time Immemorial, which grossly falsified archival documents in an effort to claim that Palestine was uninhabited on the eve of Zionist colonisation, and Alan Dershowitz‘ The Case for Israel, which plagiarises numerous passages from From Time Immemorial, and embellishes on it with further absurdities.

Why would an organisation ostensibly dedicated to “accuracy” in media reporting promote a long-since-exposed hoax like From Time Immemorial (absurdly claiming that “Joan Peters dispels the myth of Zionist dispossession of „native“ arabs [sic] in Palestine, drawing on rarely examined archives and statistics. She makes a credible case for Jewish indigenous habitation lasting thousands of years; a groundbreaking study necessary to any discussion of the current conflict in the region.”) and a phantasmagorical distortion of the San Remo Resolution and the legal status of the Occupied Palestinian Territory?

Obviously, these stories aren’t being promoted for their “accuracy”, so there must be some other motive. What goal could CAMERA be pursuing by promoting a work that falsely claims that Palestine was uninhabited prior to Zionist colonisation, and that an obscure 1920 document grants Israel full title to the Occupied Palestinian Territory? Simple: Promoting works such as these provides a pretext under which moral and legal objections to the constant violations of Palestinian rights by the US and Israel – from the ethnic cleansing (“Nakba”) of 1948 to the 1967 occupation and the displacement of Palestinians through state-subsidised illegal settlements – can be dismissed. It provides rhetorical cover for some of Israel’s most severe crimes.

They Give CLE Credit for This?

It is not particularly shocking that CAMERA is promoting a hoax that provides fraudulent reasons for ignoring Palestinian human rights. This is what they do, and they make no bones about it (even Dershowitz at least tried to camouflage his reliance on the Peters hoax). However, it should be the slightest bit alarming that the State Bar of California has seen fit to give attorneys continuing education credits for listening to a lecture that promotes it.

The California State Bar’s standards for approving MCLE activities are set forth in Rule 3.501 of the Rules of the State Bar, which requires that the activity “relate to legal subjects directly relevant to members of the State Bar and have significant current professional and practical content” (Rule 3.501(A)) and that the provider “have significant professional or academic experience related to its content” (Rule 3.501 (B). Unless California is a hotbed of litigation on the legal status of the Occupied Palestinian Territory, it is hard to see how even an accurate lecture on “Who Owns Jerusalem?” could be considered “directly relevant” or to have “significant current professional and practical content”.

Moreover, it seems a bit of a stretch to claim that Gauthier, who, based on a Google search for ‘“Jacques Gauthier” Israel’ (the latter term added to narrow down the vast multitude of people called ‘Jacques Gauthier’ in the world), has never held an academic post, has never published in a peer-reviewed journal of international law, and whose “academic or professional experience” appears to be limited to giving lectures like this to various right-wing Israeli PR organisations, qualifies as having had “significant academic or professional experience” on the subject.

There is no explicit requirement in the rules on approval of MCLE activities that an activity provide an accurate portrayal of applicable law; however, it seems fairly reasonable to assume that the California State Bar would not grant MCLE approval to, say, the hucksters who claim that there is no obligation to pay income taxes, or the right-wing “common law” militias who claim that the Fourteenth Amendment is invalid and that the only competent courts in the US are the “common law courts” they have created. Lest these seem like somewhat extreme examples, it is worthwhile to recall at this point that we are talking about a lecturer who claims that the entire international legal consensus on the status of the West Bank, Gaza, and East Jerusalem is wrong, and bases this on a blatant distortion of an obscure 1920 document that has long since been superseded, in an effort to deny the Palestinians any right to self-determination or even protection under the Fourth Geneva Convention. This is a serious fraud.

The State Bar of California needs to answer a few questions in this matter:

(a)   Is the “Who Owns Jerusalem” lecture in fact approved as an MCLE activity, as is claimed on its Facebook event page?

(b)   What representations were made in the request for approval?

(c)    Was the request signed by a member of the State Bar of California?

(d)   On what basis was the lecture found to have “direct relevance” and “significant current professional or practical content”?

(e)    How in-depth is the Bar’s review of proposed MCLE activities?

(f)     What safeguards, if any, are in place to prevent the approval of fraudulent providers?

---

[1] Perhaps thinking the better of allowing open debate on the original Facebook event page, Shulman Gold has since deleted it. However, in anticipation of this, I had already saved the relevant threads to a Word document.

In the wake of the killings of several settlers in the Occupied Palestinian Territory (OPT), there has been much handwringing from on high. A case in point is David Samel’s post Are the settlers civilians? On MondoWeiss.

Others, particularly Max Ajl, have already pointed out the immorality of condemning the acts of people who live under the heel of a criminal occupation in which we are all complicit. Indeed, one need only imagine the torrent of outrage that would ensue even today if Germans were to condemn the European antifascist resistance for their attacks on civilians under German occupation. The media in Nazi Germany in fact did carry such condemnations of the “barbaric” acts of the resistance. Would anyone today dream of citing these condemnations as proof of anything other than the revolting cynicism and hypocrisy of their authors?

In the following remarks, I would like to deal with an equally egregious defect in Samel’s piece – the way in which it deals with – or, perhaps, fails to deal with – international humanitarian law.

Samel’s post goes awry before he’s even done writing the title, which misstates the issue by conflating the different types of settlers in the OPT – commonly known as “lifestyle settlers” and “ideological settlers” (though he does touch on the distinction in the text of the piece, in a manner to which we will return) – and creates the impression in those unfamiliar with the applicable legal principles that the discussion is taking place on uncharted territory.

Even though the applicable legal framework – the 1949 Geneva Conventions and their Protocols Additional – sets clear and mandatory standards for determining who is a civilian, and reams of doctrinal literature exist interpreting those and other related provisions, Samel does not even attempt to engage the legal definitions of the terms “civilian” and “combatant” – indeed, he never even cites the relevant provisions. Instead, he prefers to cloud the issue with red herrings about the upbringing of settlers (“They have been taught since birth that they are entitled to live on this land“) and absurd strawman arguments such as his question about “allowances for those who are retarded or autistic”. To make matters worse, he creates an express functional equivalency between those resisting a brutal, criminal occupation and those actively participating in one.

It only goes downhill from there.

International Humanitarian Law and Armed Illegal Settlers

International humanitarian law – the law of armed conflict – recognises exactly two kinds of people: civilians – who are entitled to the protections of the Fourth Geneva Convention (including, crucially, the right not to be shot at if they are not directly participating in hostilities) – and combatants – who enjoy the privileges and protections enshrined in the Third Geneva Convention (but can be shot at with impunity as long as they don’t surrender or become physically incapacitated). Combatants are members of military and paramilitary organisations, with the exception of the members of the medical services of those organisations, who bear arms openly, make themselves recognisable by affixing badges or other distinctive marks to their persons, and are subject to a fixed chain of command. Civilians are, basically, everyone else. Under international humanitarian law, they may not be targeted for attack except to the extent that they actively participate in hostilities, and even then, only for the duration of their participation in the hostilities (the latter restriction, it is worth noting, is expressly rejected by the Israeli government). The relevant definitions can be found in Art. 4 of the Third Geneva Convention, as well as Art. 43(1) and Art. 50 of the 1977 Protocol Additional.

How, then, do these definitions apply to the illegal settlers in the OPT?

The “lifestyle settlers” are Israelis who have moved to the illegal Israeli settlements (generally) in close proximity to the Green Line, so called because their decision to become settlers is based on the tax incentives and other subsidies that allow them to enjoy a living standard unavailable to them within Israel. While their presence is totally illegal and serves to render the robbery of Palestinian land a fait accompli, the “lifestyle settlers”, by and large, do not participate actively in hostilities (except, of course, for those who are active members or reservists of the Israeli military). As such, they clearly fall within the definition of “civilian” within the meaning of international humanitarian law (subject to the aforementioned qualifications).

There is, however, another type of settler: the paramilitary “ideological settler”. These are far-right, fanatical nationalists, who go out of their way to encroach on Palestinian territory. They are also armed to the teeth. With regard to this group, Samel writes:

Armed – Some have questioned whether the victims were armed, and suggested that if they were, they deserved their fate. This makes little sense to me. If they were armed, it seems it was purely for defensive purposes, as they were not engaged in any aggressive operation themselves. Considering what happened to them, their fears were not imaginary. True, if they and their fellow settlers were not living this illegal, immoral lifestyle that was choking the lives of their fellow human beings, they would have no need for armed defense, but here, their possession of weapons to use defensively in the case of hostility does not make them kill-worthy. There’s no reason to believe that the Palestinian gunmen even knew whether they were armed. (emphasis added)

There are two possibilities here: Either Samel is being extremely disingenuous, or he is almost impressively ignorant of the relevant facts. Either way, this paragraph alone should suffice to make clear that his comments are not to be taken seriously.

Samel’s claim here is that, assuming the settlers who were killed were indeed armed, it was “purely for defensive purposes”, because “they were not engaged in any aggressive operation themselves.” This is loopy. The fact that they were not involved in any aggressive operation at the time they were killed does not mean that they were never involved in such actions. Even John Wayne Gacy and Jürgen Stroop took some down time every now and then. However, even leaving aside this rather curious logic, there is ample evidence of the way in which these settlers use their weapons (for an extensive, but hardly exhaustive, list see Seham’s post on MondoWeiss).

The fanatical “ideological settlers” routinely and systematically engage in violent, sadistic attacks against defenceless Palestinians, including young children. These attacks range from harassment of Palestinian villagers, crop destruction, house occupations, and rock throwing to wanton murder. They knowingly and voluntarily take up positions in a war zone. They routinely kill and maim defenceless people (the only kind they are willing to confront), and have done for decades. Their weapons – which allow them to engage in their regular pogroms without fear of retaliation – are military-grade automatic assault rifles and the like.

These settlers make no secret of their violence. Indeed, they celebrate it as openly as they bear their arms, to the extent of building a shrine to Baruch Goldstein, who earned their undying adoration by massacring Palestinians as they worshipped in a Hebron mosque. They are part of an organised movement that has the specific objective of ethnically cleansing and settling every last bit of Greater Israel.

Paramilitary Settlers as State Organs

They commit their crimes with the knowledge of the Israeli government. Given that they conduct their terrorist operations in an area under complete occupation by Israeli military and police forces, and that their general objectives (at a minimum, the settlement and ethnic cleansing of Palestine) are entirely consistent with official Israeli objectives, it seems reasonable to say that they are operating not only with the knowledge of the Israeli government, but with its more or less active approval, as the government makes no effort to punish their crimes, disarm them, remove them from the OPT (as required by international law), or otherwise meet its duty to ensure that the occupied Palestinian population is safe from their depredations. Indeed, to the extent that Israel’s military get involved at all, it is to protect these settlers from any kind of retaliation from their victims.

As such, it is at least arguable that these paramilitary settlers meet the dependency and control test established by the International Law Commission’s Draft Articles on State Responsibility and the jurisprudence of the International Court of Justice. In essence, this doctrine holds that a person or group can be considered a de facto organ of a State – and its unlawful acts thus can be attributed to that State – where that person or group operates under conditions of complete control and dependency on that State. While it is not necessary to prove that the paramilitary settlers are de facto State organs in order to hold that they are not civilians under international law, it is useful to examine this question in order to fully understand their legal status.

The degree of control required in order for a person or group’s crimes to be attributed to a State as a de facto organ is a matter of some debate. In Bosnia and Herzegovina v. Serbia and Montenegro (ICJ 2007), the International Court of Justice held that various Bosnian Serb paramilitaries operating within Bosnia could not be considered de facto agents of Serbia and Montenegro in the context of the massacre committed by them at Srebrenica. There, the Court found that the paramilitaries, which (at the time) were operating in territory not controlled by Serbia and Montenegro, and which answered not to the government of that State but to the quasi-state Republika Srpska established in Bosnia, were organisationally and operationally too independent of Serbia and Montenegro to be deemed de facto agents at the time of the Srebrenica massacre.

The situation of the paramilitary settlers in the Occupied Palestinian Territory is fundamentally different in ways that suggest that they could validly be deemed de facto organs of the Israeli State. For one thing, they operate in territory that is under the complete and exclusive control of the State of Israel, which exercises that control through extensive occupying military and police forces. As Marko Milanović has noted, the ICJ in the Srebrenica case “all but hinted at the possibility that its demanding complete control test would indeed have been met for events taking place in 1992,” when Yugoslavia’s regular army was operating in Bosnia. This would seem to hold particularly true in the case of the Occupied Palestinian Territory, given that the Israeli government, which exercises civilian and military jurisdiction, as well as complete military control, over the OPT, has not made the slightest effort to disarm the paramilitary settlers or to remove them (along with the other illegal settlers) from the territory, as required by international law. Indeed, Israel protects the paramilitary settlers from any form of reprisal (or even protest) for their actions by the Palestinian civilian population.

In short, the Israeli government, through its military and police organs, not only refuses to take any action to curtail the activities of these settlers, but in fact takes decisive action to ensure that they can operate with impunity.

It is not saying too much to argue that, in these circumstances, the combination of deliberate actions and omissions of the Israeli armed forces, are what make the terrorist operations of the paramilitary settlers  – which are entirely consistent with the overall Israeli policy of settling and ethnically cleansing every useful bit of the Occupied Palestinian Territory – possible in the first place. Without the cover provided by the Israeli military, these notorious cowards would not even be in the Occupied Palestinian Territory, let alone engage in systematic attacks on the Palestinian population. They are only tough when there’s no risk.

Put briefly, given their open bearing of arms and organised, systematic violent conduct, crucially enabled by the full military force of the Israeli government, these “ideological settlers” look less like private individuals and a lot more like a semi-official paramilitary wing of the Israeli government on the model of the South Lebanon Army or the US death squads in Latin America, Afghanistan, and Iraq.  This description seems particularly apt in the light of the fact that they direct their military efforts against the same occupied population as the government of the state to which they profess allegiance. As such, there is at least a strong case to be made that they constitute part of the armed forces of a Party to the conflict within the meaning of Art. 43(1) of the First Protocol Additional to the 1949 Geneva Conventions, which provides that“[t]he armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party”.

Indeed, the only open question that arises in determining whether the paramilitary settlers are combatants within the meaning of Art. 43(1) is whether there is any accountability for their actions at all, and that question only remains open because of the culture of impunity enforced by the Israeli government. However, even in the absence of serious efforts to hold the paramilitary settlers accountable, it seems reasonable to assume that the Party to the conflict in whose interest they act (Israel) would likely hold them accountable if they were ever to do something to which that Party seriously objected (though, given Israel’s standards, this could forever remain a theoretical question). Furthermore, the existence of a system of accountability is merely a prerequisite for POW status; it need not be met in order to establish that a person is a lawful military target. As such, it seems fair to assume that the paramilitary settlers are not entitled to the protections afforded civilians by the Fourth Geneva Convention.

Samel makes much of his assumption that the Palestinians who killed the settlers could not know whether they were lifestyle settlers or (paramilitary) ideological settlers:

This was most probably all the gunmen knew about their victims – that they were settlers. Maybe they were indeed armed and fanatic members of the most racist strain of the settler movement. But they were anonymous settlers when killed. In my view, they were civilians, not engaged in any immediately threatening behavior, and therefore not subject to a death sentence.

That’s assuming a lot. First of all, the killings occurred near Hebron, a hotbed of paramilitary settler activity. Second of all, Palestinians would hardly have access to lifestyle settlers, who live a highly sheltered existence in gated enclaves and use the bypass roads to avoid any actual contact with Palestinians in the OPT. Third of all, the paramilitary settlers do not, as a rule, make any attempt to conceal their identities when they carry out their pogroms. Given the regularity of these attacks, and the fact that the attackers do not go far from home to commit their crimes, it does not seem particularly “out there” to suggest that the Palestinians would recognise at least their most frequent attackers on sight.

This is, unlike much of the rest of Samel’s assertions, a question of legal significance. Art. 50(1) of the 1977 Protocol Additional provides that “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” However, Samel has not provided any actual facts in support of his claim that “all the gunmen knew about their victims” was “that they were settlers”. The fact that neither Samel nor I can say what they knew at the time does not mean that there was actual doubt.

It is worth recalling at this point that Samel is a lawyer. As such, he can be expected to have at least some rudimentary understanding of legal analysis and research. Yet he makes no attempt to apply – or even cite – the legal provisions that are dispositive of the question his article is ostensibly supposed to answer.

Not only does he fail to analyse the question based on the controlling legal provisions, he blatantly mischaracterises the standard when he accuses those who doubt that the paramilitary settlers are entitled to the protections afforded to civilians of applying a standard that is “[obviously similar] to Alan Dershowitz’s ‘continuum of civilianality, one of his most morally reprehensible concepts” (which is also a blatant mischaracterisation of Dershowitz’s bogus continuum). By Samel’s reckoning, denying civilian protections to members of heavily armed paramilitary groups working closely together with a Party to the conflict – as the Geneva Conventions and Protocols Additional themselves do – is morally equivalent to a “continuum” that allows for the wilful killing of persons who never even remotely participated in hostilities. One gets the distinct impression from Samel that the Geneva Conventions allow the crucial question of who is entitled to civilian protections to hinge on the signature on a person’s paycheque.

One might object at this point that Samel’s article was published on a political blog frequented by the lay public looking for a brief, informative article and not a treatise, rather than a specialised journal of international humanitarian law. This is no excuse for two reasons. First of all, the Geneva Conventions and other international legal instruments are no stranger to MondoWeiss, as they come up frequently in discussions of Israeli crimes. Second of all, discussing the Geneva Conventions does not require a confusing foray into the world of fertile octogenarians and unborn widows. These are well-known legal instruments, written in fairly straightforward language, and, as noted above, this would hardly be the first time that the readers of MondoWeiss were confronted an analysis of the Geneva conventions. Samel’s failure to engage the legal standards contained in the Conventions and Protocols is at best intellectually lazy, and at worst a disingenuous attempt to shed darkness on a well-lit corner of the law.