25 September 2007

25 September 2007 - Israel/Palestine: Week 3

This week’s readings were perhaps the most “pro-Israel” of the syllabus. Though they examine whether Israel can be both Jewish and democratic—perhaps a loaded question—two of the readings answered strongly in the affirmative. A summary of the readings follows (apologies to the professor, who tells me he drops in on this blog, and will have read some of these comments in my reaction paper already).

Ruth Gavison defends Israel’s legitimacy on “universal moral grounds,” both categorical and utilitarian. The categorical argument rests on the right of all peoples to self-determination in their own land, which Jews exercise in Israel and Arabs should exercise in a Palestinian state. The utilitarian argument holds that the benefits of Israel for Jews outweigh the burden of Israel for its Arab citizens.

This balance has changed over time, she argues; the right of Israel to be established and maintained as a Jewish state only matured during the course of the twentieth century. Jews could, however, always claim the liberty to settle in the interest of creating a future state. Arabs today enjoy a similar liberty, she says, to oppose Israel’s Jewish identity, but that identity violates their interests, not their rights.

Alan Dowty opposes the definition of Israel by Oren Yiftachel, et al., as an “ethnocracy,” which he describes as both atypical and overly “unforgiving.” Dowty agrees with the “acid test”—the measure of Arab minority rights—but not the “either-or” approach of Israel’s critics. He notes that Israel is democratic and free by most measures, but should include Arabs in power-sharing and national identity.

Meanwhile, Hassan Jabareen asserts Arab rights of self-determination within Israel by arguing that the Palestinian identity of Arabs is suppressed by legal norms of equality. Yet he wants Jews to give up their right of self-determination to accommodate Arabs who don’t have to give up theirs. This failure to reciprocate recognition perpetuates the overall conflict and is rightly dismissed by Gavison.

The discussion today—again, without getting into too many specifics—was the liveliest we’ve had thus far. I also found it the most frustrating, because I felt that people were not being specific enough with the terms they used. Without quarreling with the right of Arab citizens of Israel to identify as Palestinians, for example, it is necessary to specify which group and which Palestinian claims one is talking about.

I seemed to have a fundamentally different reading of Gavison from most other folks. She lists the physical and cultural survival of Jews as important reasons for Israel’s existence, but I think what is also important to her is the idea that Jews earned the right to self-determination by creating a self-governing political unit before 1948. Hannah Arendt, binationalist that she was, took that position also.

The problem I have with a debate that focuses so much attention on the “Jewish vs. democratic” question is that the Jewishness of Israel is not, to me, the fundamental issue in the Israeli-Palestinian conflict. There may be negative consequences for Arabs that flow from Israel’s Jewishness, but Israel’s Jewishness is not the reason Palestinian Arabs do not have a state alongside Israel or even in all of Palestine.

I spoke about five or six times, which makes me a bit uncomfortable. Every week I tell myself I’ll sit back and listen awhile, and yet every week I obey the urge to intervene. I once tried organizing an “Israel section,” but failed. The professor challenges everyone’s views, even those he agrees with, which is great, but it can be hard being in the minority even when the readings provide a good basis for Israel’s case.

24 September 2007

24 September 2007 - Against Ahmedinejad's speech

I am strongly opposed to Columbia University’s decision to invite Iranian President Mahmoud Ahmedinejad to speak on campus. The invitation is being defended as an exercise of “free speech.” But the principles of free speech or academic freedom do not require a university to extend an invitation to every nut who wants a platform, particularly when that nut brutally suppresses those freedoms in his own country.

Many of those who, like me, oppose Columbia’s decision have tried to draw a distinction between “free speech” and “hate speech.” I think this is irrelevant. What people have forgotten is that free speech is a right held by individuals against interference by the government. The speech of a government official, especially a head of state, does not require such protection and its therefore irrelevant.

A foreign leader should therefore enjoy the right to free speech in the U.S. only on a reciprocal basis—i.e. to the extent that he grants such liberties to his people. Columbia claims it is promoting the exchange of views, but there is no one on earth who does not know what Ahmedinejad’s essential views are. He hates Jews, Israel and liberal democracy. He believes the end is nigh and wants to make it happen.

Columbia has said it has allowed Ahmedinejad to speak on the condition that he allow “equal time” for questions and challenges. This amounts to giving him “double time,” because how long can it take to ask a question? Ahmedinejad will spend most of the second half of the program responding, and he knows it. He is also a seasoned debater and probably relishes the thought of hostile questions from Americans.

Regardless of the outcome of the “debate,” Columbia is allowing Ahmedinejad to score a propaganda coup whose victims will be both foreign enemies and his domestic opponents, as he uses this event to boost his image back home. A Columbia dean recently said he would have even extended an invitation to Adolf Hitler, if he’d been prepared to answer questions. Pre-selected, of course, as always.

This is a farce, and a mockery of free speech. A university that does not allow the U.S. Reserve Officer Training Corps (ROTC) onto campus is rolling out the red carpet for one of America’s enemies. Many people I deeply respect think that Columbia has done the right thing for world peace. I think it is an unwise, arrogant intervention that can only frustrate the goals of free and peace-loving nations.

23 September 2007 - Abe Foxman's The Deadliest Lies

I spent some time this evening reading Abe Foxman’s The Deadliest Lies, which the Anti-Defamation League leader published as a response to Walt & Mearsheimer, Jimmy Carter and the lot. It’s written in a simple, song-song style, which may strike some readers as somewhat pedantic, and also begins with a description of antisemitism in the U.S., which I found somewhat superfluous.

Yet Foxman’s arguments are sound, even if they’re not too different from what others have said. Foxman hits the nail on the head when he challenges M&W to “[w]in the policy debate,” noting that instead they resort to “complaining about the process and suggesting that their opponents . . . are somehow using unfair tactics to withhold the victory that Mearsheimer and Walt believe they deserve.” (89-90)

Foxman presents a few recent examples of cases in which the ADL and other Jewish groups actively opposed and criticized Israeli policy: the expansion of certain settlements, the law restricting marriages between Palestinian and Israeli citizens, and a few others. M&W acknowledge such diversity, when it suits them, though elsewhere they portray Jewish support for Israel as hawkish and intolerant.

Next, Foxman turns to historian (and former IDF soldier, now turned anti-Zionist) Tony Judt. Foxman shows how Judt offered the feeblest defense of M&W, ignoring challenges to their ideas and merely arguing that their work didn’t receive the attention he felt it should have. He also tells his side of the infamous cancellation of Judt’s speech at the Polish consulate, saying it should not have been canceled.

Foxman disputes Judt’s account in its essentials, declaring: “I never actually called the Polish consulate to complain about the Tony Judt speech.” (160) He says that his critics rushed to print their protests before checking the facts, which is not hard to believe. He did not “censor” Judt, he says, nor does he equate criticism of Israel with antisemitism, though he believes some criticism of Israel is illegitimate.

Finally, Foxman turns to Jimmy Carter and Palestine: Peace Not Apartheid. He points out the fallacy of the Israel-apartheid analogy, and says Carter deliberately provoked controversy by using the word “apartheid” in his title. Unfortunately, Foxman describes the situation in rather vulnerable terms: “The Jews of Israel don’t want to rule the Palestinians—they want to live apart from them . . .”. (185)

This is, strictly speaking, different from apartheid South Africa, which was a system of domination in which the existence of separate nations was really a self-serving illusion (substantially different from the form of “apartness” that was enforced by segregation laws, many of which pre-dated the “apartheid” system). But anti-Israel partisans will make a facile feast of Foxman’s use of the word “apart.”

Foxman criticises Carter’s historical revisionism and one-sided recollections, drawing on the critiques provided by former Carter associate Kenneth Stein. He also documents some of Carter’s apparently religiously-based hostility to Israel. He acknowledges that Carter is “a good man,” but argues that he, like M&W, will “give comfort and support to bigots and opportunists” who hate Jews and Israel (214).

I’m a bit uncomfortable with the “comfort and support” line of argument. It is the type of tactic that can be used all too easily to shut down debate. Critics of Zimbabwe’s government, for example, are routinely lumped with racists. But that does not mean the motives of M&W, Judt, and Carter, whatever they are, should be entirely beyond question. Why only Israel? Why Israel more than others?

Foxman closes with an appeal to the “Jewish liberal or progressive” to speak up and join debates within the Jewish community. Ironically, this is the same recommendation arrived at by M&W, though with a different intention in mind. Foxman wants to strengthen Jewish institutions and the Jewish relationship with Israel; M&W want to weaken, undermine, dismantle and re-define.

Perhaps the most powerful part of the book is the foreword, written by former Secretary of State George P. Schultz. In clear prose, Schultz debunks the idea that the “Israel lobby” controls American foreign policy, and defends the U.S.-Israel relationship. Foxman’s probably won’t convince those who don’t agree with him, but in The Deadliest Lies he’s provided a primer that will be useful to those who do.

21 September 2007

21 September 2007 - The siege of Bethlehem

Last night, Israeli negotiator Moty Cristal was the featured speaker at a film screening hosted by Harvard’s Program on Negotiation (PON). The film, The Siege of Bethlehem, documents the negotiations between Israeli soldiers and Palestinian militiamen during the 38-day standoff at the Church of the Nativity in Bethlehem. Produced by the BBC, the film is a fascinating portrayal of the bargaining process.

The issue that sustained the siege for so long was the question of what to do with Hamas terrorists who had holed up inside the church. The Israelis wanted to arrest or deport them; the Palestinians wanted to go free. Various other Palestinian militants were also inside the church, along with many civilians who did not want to stay but were too afraid of retaliation by Hamas to leave of their own accord.

The formula that was eventually reached was a trade: men for food. For every group of civilians that the Palestinians allowed to leave, the Israeli soldiers would deliver more food to the church. This was a shaky, unstable arrangement whose success depended on countless other factors, including the contemporaneous siege of Arafat’s headquarters in Ramallah and the intervention of international actors.

The main drama is actually not between the Israelis and Palestinians. It’s between the soldiers on the scene, who have formed their own negotiating team, and the political leadership higher up, which has different interests and goals. The trust that the soldiers carefully build with the Palestinians inside the church is sometimes undermined, and the negotiators are very open about their frustration.

The film highlighted two really striking aspects of the relationships that unfolded on the scene. One was the camaraderie that developed between soldiers and the Palestinians; some of the greetings outside the church were quite warm. The other was the continuing disagreement among various Christian sects after the siege over who would re-enter the church first, which produces some amusing confrontations.

Some of the usual moonbats turned out for the screening, and complained that the film was “biased” because of its focus on the Israeli soldiers. Cristal responded smartly: “It’s great news to hear that the BBC is biased in favor of Israel.” Most of the people in the packed lecture hall were simply wowed by the presentation, which helped us make sense of an extremely complicated and politically charged situation.

The two sides started with no room for possible agreement. But by applying simple negotiating lessons—such as brainstorming together to find ways of creating shared gains—they found room for compromise: some of the men in the church were to be deported, while others would be shipped to Gaza and others would be freed. The CIA stepped in to “impose” the agreement, and the rest was history. Amazing stuff.

20 September 2007

20 September 2007 - Gqiba on Record on the apartheid analogy

The Harvard Law School Record ran my interview with Major General Fumanekile Gqiba today. It was cut down significantly. Below is the full version of the article I submitted.

Major General Fumanekile Gqiba has been South Africa’s Ambassador to Israel since July 2004. After a distinguished career in the anti-apartheid struggle and the African National Congress (ANC), he joined the newly integrated South African National Defence Force (SANDF) and was appointed Chaplain General in 1998.

Last semester, a challenge from Professor Farid Esack of the Divinity School appeared in the Record (Arsalan Suleman and Erin Thomas, “Real Justice Requires Honest Reflection,” March 22) to “name one veteran of the organized liberation struggle in South Africa who visited the OPT [occupied Palestinian territories] and did not then describe the Occupation as either similar to Apartheid or worse than it.”

In my response (“Palestine: Lose the Labels, Ask the Real Questions,” April 5) I referred to a quote by the South African Ambassador to Israel, Major General Fumanekile Gqiba. The accuracy of the quote was then challenged. As the interview below reveals, the quote was inaccurate but the example appears to stand, as Gqiba does not “describe the Occupation as either similar to apartheid or worse than it,” focusing instead on the lessons to be learned from South Africa’s history of conflict resolution.

Q: How did you make the transition from military to diplomatic life?

A: Unlike other military formations, MK [Umkhonto we Sizwe, the armed wing of the African National Congress] was a political wing rather than a pure military wing. The ANC regarded its military wing as those who have reached the highest level of political awareness. Hence when we were told, “Now is the time to negotiate,” we were able to say, "We are ready for that." If your program is political, you will always have that political analysis, not the military one. That's why it's easy for me to adapt to any situation.

Q: You also have a strong religious background.

A: That's for sure. I'm a trained and ordained Anglican priest. I think that has helped me to understand the dynamics of this very, very difficult context we are here in today. It has given me insight. I always say you need to come here first and then you will be able to understand it. But in my case I'm a political soldier, [and] I'm also a religious somebody. It has not been a problem for me to adapt.

Q: As a Christian, do you feel more connected to Israel than you would to another country?

A: That’s for sure. For us, this is our second home. That's where it all started. Jerusalem is the place. That is from a Christian perspective. Each and every Christian would like, one day, to be walking in the streets of Jerusalem.

Q: You seem to have made a very positive impression here in Israel as well as back home.

A: I'm happy to hear that. You know from the beginning I said: I come with an open mind. I've come to learn, and also to share our experience. My starting point is that here we are dealing with two cousins who ultimately would need to sit together and solve their political problems. They know each other better. Our role is to help them to sit down and to talk and talk and talk and talk, hoping that ultimately they'll find that point of convergence which seems to be so difficult for them. But I think they are now on the right track. Maybe that approach has helped our country to be accepted by both sides, whereas from the beginning we were perceived to be on one side. And that's how I see it - I might be wrong.

Q: I want to return to a question I asked you over email a few months ago, and clarify your answer. What do you feel are the merits or lack of merits between comparing South Africa in the apartheid era and Israel and the occupied territories today? Let's start with Israel.

A: You see, you know, as I say to you, and I've said this long ago, it's so easy for us when we are in South Africa to sit down and start analyzing, [to] come out with solutions (snapping fingers). You know, when I was told to come here, my first reaction was, "No, not Israel. Please, I'm prepared to go anywhere in the world." I've just come from exile in '93, I came back, I've got a young family, what I see on CNN was Israel for me. I said: "I don't want to go there. Send me anywhere in the world," but I was told, "No, we think you will fit there." Here I am. And when I arrived here, I started to grapple with the reality on the ground, and then I said, "Gee, I have to make a paradigm shift. I have to be objective."

I know even some of my comrades [in South Africa] don't believe when I say this is one, two and three, they say, "No, no, you are wrong on that." But for me, that has been the reality. Firstly, let's deal with one issue. Where people would say, you know, my belief was that Israel is the extension of the racist, white South Africa. Because that was my understanding before I came here. I regarded Jews as whites. Purely whites. But when I came here I discovered that, no, these guys are not purely whites. They are mixed. It's some kind of a, shall we say, a melting pot. You've got people from all over the world. You've got Indian Jews, you've got African Jews, and you've got even Chinese Jews, right? I began to say to our comrades, “No, Israel is not a white country. Perhaps we would say there are those who came from Poland, who happened to be white—i.e. Ashkenazi their culture still dominates." For me, that's how I see it. It's difficult to say Israel is racist, in a classic sense. I will say a certain culture is dominant over the others – the Ashkenazi culture seems to dominate the systems of authority.

Q: Now, in the occupied territories, what's your impression of the comparison there between what's going on, let's say, in the West Bank and what happened in apartheid South Africa?

A: Again, you know, you must underline what you are asking. You are saying: "occupied territories." Which means those territories don't belong to Israel. For me, that's very, very critical. We came here pursuing the goal of a two-state solution, right? And the West Bank is going to be part and parcel of that two-state solution for the Palestinians. If I was in the shoes of the Israelis, I would make it easier for the Palestinians to have the foretaste of their Palestinian state by genuinely sharing power with them. Again, without compromising the security of Israel. But at the same time treat them as equal partners, not as second-class citizens. That's very critical. If you are working with somebody, you don't do it the way it was done in South Africa. You know, in our townships, you would see a building coming out there: “Bomb-boom-boom-boom.” The community is not involved. And you are told: "This is your community center." What happens? People are going to vandalize it, because they failed to bring the people on board. And when people buy in, they protect that. If I was in the shoes of the authorities who decide, I would to put [the Palestinians] as equal partners, so that when [the Israelis] move out, there will be a continuity, they will take over and run their own affairs.

Q: There was a quote I asked you about in the Sowetan, where Andrew Molefe quoted you as saying: "The accusations are unfounded. The term 'apartheid' is uniquely South African and devalues the struggle of the black population against one of the worst forms of racial oppression known to man." Do you agree with that quote?

A: No, you see, that quote is not mine. I've traced it. I will tell you the owner of that quote. It's Malcolm [Hedding], who runs the [International] Christian Embassy in Jerusalem. He's a South African. That's from him.

Q: Do you think the two-state solution is still viable, or do you think that something has shifted in the last two months, with Hamas in Gaza?

A: No, it's still viable, believe you me. Hence I strongly believe Israel has to move very quickly. Because remember there are those who say it must be "one man, one vote." And we all know that the major problem of the state of Israel is demographics. If you talk about the state of Israel, "one man, one vote," ultimately [means] there will be no state of Israel. Therefore if the Israelis are serious about preserving their state, they have to move very, very quickly. And [Palestinian Authority President Mahmoud] Abbas, I think, is doing good work. You can't keep on saying, you don't have a partner. They've got a partner. Now they've realized it, and everybody is supporting Abbas. Which is good.

Q: There's been some controversy over South Africa's policies towards other countries in the Middle East, such as the developing relationship with Iran. Do you think that complicates South Africa's relationship with Israel?

A: No, it should not. We've got our own, independent foreign policy, whose dream is the realization of justice, peace and prosperity for the world. We strongly believe that all this could come about through genuine negotiations rather than isolations or wars. And let me make an example. When we arrived here, the Israelis [said], "You continue to support the Palestinians, and these are terrorists." You know, we said to them, one day you would realize that this is a strategic move which would ultimately benefit the state of Israel, because from the moral perspective, we are the only country which could say to the Palestinians, if you bomb the buses, you kill children, this and that, you are losing support. We said that openly to them, and they listened to us. Again with Iran. You need somebody who will continue to have access to these people. You cannot isolate them. Ultimately, as neighbours, you are going to speak to them. We believe in South Africa that solution will only be [found] by sitting down and talking. Not isolation. That's our foreign policy.

Q: What do you see as South Africa's role in the peace process?

A; You see, we don't want to be too ambitious. You've got the superpowers: Russia, the Brits--you know, those guys, they want to be seen to be running the show. We don't belong to that league. [We] should do things behind the scenes, talking to both sides, trying to bring them together, taking them to South Africa, we share [our] experience--I think, for us, that works. Bringing our President [here], bringing our ministers—the important thing is for them to see that we don't have roadblocks all over [in Israel]. The important thing is to bring the people to come and see for themselves. And then, believe you me, they'll make a paradigm shift, to strike a balance. When you are dealing with two factions, yours is not to take sides. It's to strike a balance, so you bring them together.

Q: Do you think South Africa is striking the right balance right now?

A: We are. I wouldn't be here, if I was not. I would--I will pack up and go.

Q: What do you see as the future of the Middle East?

A: You know, you see, when I arrived here, three years ago, I said, within two years, we're going to sign peace--what kind of peace it's going to be, nobody will tell--but something's going to be signed. That has been delayed. I'm still very optimistic that it's a matter of time. We are going to sign peace in this part of the world.

19 September 2007 - Israel/Palestine: Week 2

This week, our seminar focused on the way in which Arab lands were dealt with by the new State of Israel after 1948. It’s an important issue, one that touches on the legitimate and lingering grievances of Arab citizens of Israel. A comprehensive solution to the problem might accompany, or even prepare the way for, progress in the negotiations to resolve the overall Arab-Israeli conflict.

The land issue does not relate directly to the Israeli-Palestinian conflict, but is important. Unfortunately, the readings for the week seemed to ignore three important contextual factors: 1. The effect of the state of war between Israel and her Arab neighbors; 2. The expulsion of Jews from Arab lands and the loss of their property there; 3. The improvement of Arab land rights in Israel since the 1960s.

Several readings attempted to apply a colonial template to the land issue, casting Arab as dispossessed natives. This analogy fails for a number of reasons. Unlike other settler groups, Jews had an indigenous claim. Furthermore, Arabs lost land through wars started by Arab states, not through wars of conquest. And elsewhere, settlers violated treaties, whereas Israel has sought to negotiate and honor them.

It is worth recounting Hannah Arendt’s rejoinder to the “colonial” charge—and Arendt, let it be noted, favored a binational state: “The building of a Jewish national home was not a colonial enterprise in which Europeans came to exploit foreign riches with the help and at the expense of native labor . . . [it was] without conquest and with no attempt at extermination of natives.” (The Jewish Writings, 434-5)

The real question here, to borrow from Ruth Gavison, is: did the establishment of a Jewish state impose costs on its Arab citizens, and do those costs outweigh the benefits in a universal sense? The land regime imposed after 1948 may have been necessary to protect the state’s contiguity. This imposed costs, but those have been ameliorated over time, and could be ameliorated further within the current system.

On the plus side, the class discussion was rather lively. This is turning out to be a more useful class than I imagined it would be, chiefly because the whole range of opinions on these issues has begun to emerge. That’s to the credit of the professor, and the students as well. Still, Israel is alone in the dock. An Israeli student told me he was glad for my interventions, but that I was just a “fig leaf.” He may be right.

18 September 2007

17 September 2007 - Israel and emerging international constitutional jurisprudence

There’s an old joke that goes like this: Arnold Schwarzenegger has a big one, Sean Penn has a small one, Madonna doesn’t have one, and the Pope doesn’t need one. What is it? A surname, of course. When it comes to constitutions, one could almost construct a similar saw: America has an old one, Iraq has a new one, Britain doesn’t have one, and Israel doesn’t need one. Or does it?

I’m taking a class this term on comparative constitutional law, and we’ve been looking at the global emergence—and convergence—of constitutional law. What seems common—even among those countries that still don’t have a formal constitution—is the power of judicial review of legislation and administrative actions. This, ironically, has geon hand-in-hand with the spread of democracy.

Perhaps Fareed Zakaria was correct when he observed in Foreign Affairs (Nov. 1997): “The ‘Western model’ [of government] is best symbolized not by the mass plebiscite but the impartial judge.” The same countries that saw new democratic governments established also saw the establishment of new, independent judiciaries. In some cases (e.g. Pakistan), judiciaries are leading the charge.

Judicial and constitutional supremacy are not always the same thing, but they have often gone hand-in-hand, sometimes also with post-war reconstruction, decolonization, market reform, and globalization (Hirschl 2002). Some systems only allow a priori review of laws before they are enacted; some provide for a posteriori review alone. Some allow all courts to exercise review powers; others, under the model of Hans Kelsen in Austria (and accepter late in South Africa) only allow one.

Some systems allow “strong-form review”—in which the constitutional findings of the highest court cannot be overruled except by replacing its members or amending the constitution—while others allow only “weak-form review” in which the court’s interpretations can be revised through consultation with the other branches. Some courts may even prefer to confine their rulings to the parties in particular cases.

In addition, there are also differences in rules of standing, with some courts allowing any citizen who claims his or her rights have been violated to file a complaint, and some allowing even broader access. The High Court of Israel has developed some of the most liberal rules of all, and allows even a simple letter from an individual on a matter of public interest to become a petition to the Court.

There is a problem with this expansion of judicial power, known as the “counter-majoritarian problem,” which is that unelected judges may have arbitrary power to overturn laws passed by democratic majorities. To resolve this problem, constitutions such as the Canadian constitution have included “limitations” clauses that allow limits that can be “justified in a free and democratic society.”

The case of R. v. Oakes (1986) before the Supreme Court of Canada established a two-part test: first, whether the law or conduct violates a right; second, whether that violation is justifiable. This, in turn, requires a showing that the violation serves a “sufficiently important objective,” that it is rationally connected to that objective, and that it is the least drastic means available (Hirschl, ibid.).

Other courts have sought other ways of resolving the problem, including the “preferential model,” which chooses a law or action that is more in conformity with constitutional rights over one that is less so. One version of this, in Britain, requires courts to interpret current and future legislation in accordance with the provisions of a supranational court, the European Convention on Human Rights.

In many cases, the new judicial power is established in a foundational case—much as Marbury v. Madison (1803) did in the U.S. In Israel, the expansion of judicial powers in the Basic Laws of 1992 was followed by Metrael Ltd. v. Minister of Religious Affairs (1993)—a fight over non-kosher meat and the identity of Israel as a Jewish state—and United Mizrahi Bank v. Migdal (1995), a property rights case.

The rights tradition in most countries has involved “negative liberties”; outside the U.S., it has also involved second-order socioeceonomic rights and third-order culture, language and group rights. Even in the U.S., courts are increasingly being drawn into the political arena, as cases such as Bush v. Gore (2000) demonstrate. International tribunals are also having affecting domestic courts in many countries.

Questions of “horizonal effect”—the degree to which constitutional rulings bind actors outside of government—are still controversial in many places, and seem to potentially create opportunities for abuses of judicial power. This has become less of a problem as the area of law and regulation has steadily expanded worldwide.

Regardless, courts in Israel and around the world are extending their reach into areas that are not strictly legal, touching issues such as restorative justice and the legitimacy of political transitions. This has, in many places, prompted a backlash of sorts—a backlash personified in Israel by justice minister Daniel Friedman. (And, equally typically, there is now a backlash to the backlash itself.)

Constitutions, like judges, are not modern inventions. They existed in the ancient world in a general sense, and described forms of government abstracted from the personal identity of the ruler. The idea of the separation of powers resurfaced in the medieval era in Europe in the quarrels of kings and popes, and kings and nobles, only to fade again in the era of absolue monarchy and the divine right of kings.

The emergence of new upper classes in the 17th and 18th centuries led to new calls for checks on the power of the monarchy, which were accompanied by the emergence of modern political philosophy. In the late 18th centuries, the American, French and Polish experiments achieved varying results; the industrialization of the 19th century led to renewed constitutional movements on the Continent.

The 20th century saw the failure of constitutionalism in the Weimar Republic, and the resurgence of constitutionalism after the Second World War, during the era of decolonization and especially the Cold War. Today, even states without constitutions recognize something like constitutional rights, and illiberal states aspire to imitate the basic features of constitutional democracies.

So, to return to our original question: does Israel need a constitution? Perhaps it might be better to ask whether Israel needs a more formal constitution than the one it has right now, which is partly informal and judge-made. The present system leaves the relations of the branches of government undefined, and many questions of national identity unanswered. I’ll write more on this as the year progresses.


Hirschl, Ran, “Beyond the American Experience: The Global Expansion of Judicial Review,” Marbury v. Madison: Documents and Commentary, Mark Graher, ed. (Congressional Quarterly, 2002), pp. 129-152.

Kim Lane Scheppele, “The Agendas of Comparative Constitutionalism,” 13 Law and Courts (2003): 5-23.

Mark Tushnet, “Comparative Constitutional Law” in The Oxford Handbook of Comparative Law (Oxford University Press, 2006), pp. 1225-1257.

16 September 2007

16 September 2007 - The Federal option

Last week, General David Petraeus testified in the Senate that the U.S. troop surge has been successful enough that some troop withdrawals can begin in the next few months. Iraq remains a very dangerous place, however, with an uncertain future. The achievements thus far—holding democratic elections, approving a constitution, sharing oil wealth among the various provinces—risk being destroyed by violence.

While I was in Utah the week before, I was surprised to read a column in the local paper by nationally-syndicated columnist Charles Krauthammer suggesting that Iraq be divided up into regions, largely along ethnic and sectarian lines. In fact, Krauthammer says, this is happening on the ground already, and therefore a division would be more likely to succeed, since it would reflect what Iraqis want.

I remembered reading a strident criticism by Christopher Hitchens a few months back of the idea of partitioning Iraq. Hitchens said: “In that event, we would quite probably not end up with three neatly demarcated mini-states, one each in a three-way split among Sunni Arab, Shiite, and Kurd. Instead, there could be partitions within the partition, with Iran and Saudi Arabia becoming patrons of their favorite proxies and, in the meantime, a huge impetus given to the "cleansing" of hitherto-mixed cities and provinces.”

Krauthammer does not go as far as saying that Iraq should be divded into separate countries. You need the central government, he says, to keep the regions in balance and prevent military intervention by Iraq’s neighbors. But partition in some form, he says, is inevitable: “Perhaps today's ground-up reconciliation in the provinces will translate into tomorrow's ground-up national reconciliation. Possible, but highly doubtful. What is far more certain is what we are getting: ground-up partition.”

The idea of strong regional governments in a federal Iraqi state has its precedents. The United States, after all, did not build a powerful central government until 1789, thirteen years after it declared independence from Britain and six years after defending that indpendence on the battlefield (in a war that was partly a civil war, since many colonials fought for the King against their rebellious neighbors.)

In South Africa, federalism was put forward by the liberal parties during the negotiating process between the ANC and the apartheid government. The idea was to convince minorities to accept majority rule in exchange for the prospect of governing at the provincial level. Indeed, in the 1994 election, the National Party won the Western Cape and the Inkatha Freedom Party won in KwaZulu-Natal.

The federal system has not worked terribly well in South Africa, owing to the increasing dominance of the ANC over the course of the past decade and a half. The ruling party now controls all nine provinces and has reduced them to administrative appendages that take their orders from party HQ. When the opposition has governed at the provincial level, however, it has charted a more independent course.

While I was in Israel this past summer, I began to wonder if some form of federalism might work in Israel—first, to provide a check on the power of the central government, and second, to provide regional political power to minorities, such as Arabs and Orthodox Jews, in order to improve overall social cohesion. It could even help resolve the external conflict with the Palestinians.

There are many different versions of federalism, and different federal units might choose to govern themselves differently within the bounds of the overall system. The beauty of it is that it makes room for diversity within a single nation. The danger is that it can create a central government that is too weak—or even, in some circumstances, create ways for a dominant ruling party to expand its power.

12 September 2007

12 September 2007 - Israel/Palestine, week 1

Yesterday, I attended the first session of a course being taught at HLS by Professor Duncan Kennedy entitled “Israel/Palestine Legal Issues.” The syllabus indicated that the course would be quite anti-Israel. The first week, for example, covers “Historical background up to the establishment of the State of Israel and the expulsion of the Palestinians,” with emphasis on the latter bit of historical revision.

The central weakness of the course, in my view, is that it confuses politics and law, law and fact. The essence of the Israeli-Palestinian conflict is not a legal dispute but a political one. Framing it in legal terms seems to set aside the political complexity of the conflict, or to vindicate the claims of one side (in this case, the Palestinian side) by invoking various legal authorities, rightly or wrongly, against the other.

The course is both too ambitious, and not ambitious enough. On the one hand, it attempts to deal with issues of severe difficulty—such as refugees—that should each be studied on their own if they are to be understood. On the other hand, the course fails to provide the historical (or legal) background necessary to understand the issues—ignoring, for example, pre-1948 events or Ottoman and British law.

The intellectual posture of the course, and many of the included materials, is that of the Critical Legal Studies school, which claims that law itself is not “neutral” but determined by the interests of the powerful. Accordingly, many of the criticisms of Israel that are provided apply equally to most other democratic states as well (to say nothing of undemocratic ones) and provide few insights about this unique case.

The readings for the first week included some counterpoint, such as a relatively straightforward account by Aaron Wolf of the founding of Israel (albeit with a bit too much emphasis on water); a chapter from Alan Dershowitz’s The Case for Israel, responding to the charge that Israel created the Palestinian refugee problem; and a similar but more strident bit from Samuel Katz’s old polemic Battleground.

However, the thrust was provided by readings from anti-Zionist historians Ilan Pappé and Nur Masalha, and from “New Historian” Benny Morris. Elsewhere, Morris actually distances himself from Pappé and Masalha, who adopt an overtly political approach to history. Neither proves what they claim about a Jewish plot to expel Arabs, but the syllabus suggested we were meant to take the charge seriously.

Yesterday’s class went better than I had anticipated. The room was packed—there were almost as many auditors as enrolled students—and Kennedy did a good job of leading the discussion. People came from all kinds of backgrounds: both the president of the Alliance for Israel (myself) and the president of Justice for Palestine were there, and some people had no prior allegiances at all.

We spent a lot of time on historical texts, such as Woodrow Wilson’s Fourteen Points. I found this a bit irritating—I think too much emphasis was given to the Arab nationalist reading of World War I-era agreements. I pointed out that we had to read these texts with an understanding of the historical context—i.e. that the British did not actually promise a Palestinian state, nor were Arabs demanding one.

Kennedy took these points on board, and then moved on to a discussion of Ilan Pappé and the 1948 Palestinian refugee exodus. Thankfully few people had actually done the Pappé reading, and Kennedy gave time to my criticisms of his scholarship. He also concluded that Alan Dershowitz’s reading of Benny Morris’s research was accurate in its presentation of a multiple-cause story about the Palestinian flight.

However, we never got around to mentioning the Jewish refugees expelled from Arab lands. We also never spoke about the 1947 U.N. partition resolution, or the Peel Commission, or any of that. In fact the 1920s and 1930s were basically left out altogether: we jumped from Sykes-Picot to the Palestinian refugees. The only time the 1930s were mentioned was when I drew attention to the Arab revolt of 1936-9.

The discussion ended up being rather moderate, and I think I can say I had something of a positive influence, because Kennedy knew up front that I would criticize several of the readings and as a result we gave them a closer analysis than might have been the case otherwise. I get the sense that I have a better historical background than most of the people in the room, though I’m not an expert at all.

I believe Kennedy is sincere in his openness to dialogue and debate, and that it is better to engage in a critical way with a deeply flawed -course than to attack or abandon the entire enterprise. I’m going to keeping giving it a chance, hoping it leads somewhere positive. I’ll try to write about it, while staying on the safe side of the Harvard policy that classroom discussions are considered “off the record.”

On a related note, here’s Martin Kramer, who wrote Ivory Towers on Sand: The Failure of Middle Eastern Studies in America, evaluating the progress of Middle Eastern studies over the past few years, pointing out that some of its worst tendencies have been held in check but that there has been little progress in promoting alternative viewpoints. Harvard comes in for some criticism, too.

11 September 2007

11 September 2001 - In memoriam

On the sixth anniversary: an excerpt from a longer piece I wrote a few years ago, describing my experience of that September 11th.


In Durban, [at the World Conference Against Racism,] I had hoped that I would be able to talk to people, to exchange ideas with them about the Middle East conflict and come to some kind of mutual understanding. And I had succeeded, despite the poisonous atmosphere at the conference, in having several heartfelt conversations with some of the Arab and Muslim activists I met.

But watching the parade of thousands of anti-Israeli—and often anti-Semitic—demonstrators, I was overwhelmed. This wasn't reason; it was demonization, a thin layer of words atop an ocean of hatred and mistrust.

In Cape Town, my [Muslim] landlady and I had been struggling to figure out what the inflamed debate on the Middle East meant for our relationship. We could not avoid it; it beamed into our living room on television and made the rounds of gossip in the neighborhood. On national radio, an activist called for Muslims to root out the "CIA and Mossad agents in our communities"—whatever that meant.

Hearing that, I felt fear for the first time, and wondered if someone would attack our house on such a pretext. Was my presence a threat to her, as well as to myself?

She seemed inclined to let the whole affair drop: "They've been fighting over there for thousands of years," she told me once, "and it's never going to end, not until the world is through. You can't change the world, so you might as well forget about the whole thing."

But I often tried to argue that peace was possible. "They haven't been fighting for thousands of years," I would tell her. "The Arab-Israeli conflict isn't even a hundred years old. If you say that it's an ancient conflict, you're almost giving up on peace."

One night, she came back from her weekly religious classes, dressed in her black robe and white headscarf, beaming serenely. "Our sheikh spoke to us about anti-Semitism," she told me, "and he said that it's wrong to hate Jews. 'Just remember that there are good Jews,' he told us. 'And not every Jew is a Zionist.'"

I smiled—"That's great," I told her—but I was silently sad: could she not see that Zionism, for all its flaws, had pointed out the way forward for an embattled and persecuted Jewish community? That Zionism, like Black Consciousness, was a deeply flawed movement but one which nonetheless had progressive aims and positive achievements to its credit? That even if I were to reject Zionism and Israel, as a Jew I would always owe a debt to the umbrella of physical and psychological protection that Israel provided?

"It's all the Freemasons anyway," she declared, interrupting my thoughts. "The sheikh showed us a book that describes how Freemasons are secretly pitting Muslims against Jews so that they can control the world."

What could I do but laugh? We had several conversations like this, and began to see each other's point of view more and more clearly over time.

Sometimes, we found our roles strangely reversed. When Israel began surrounding Yasser Arafat's police headquarters with tanks and bombarding Palestinian police stations with missiles, I actually found myself shouting at the television. "The idiots!" I yelled. "What is that going to solve?" "Well," said my landlady, catching me by surprise, "there are idiots on both sides. Those suicide bombings are horrible." I was moved by her empathy—and amused that she had been more circumspect than I. Perhaps we had helped each other come to a deeper understanding of the conflict, after all.

But that was only a small, personal connection. Watching the thousands of angry people in Durban, I felt a sense of despair: I could never reach all of them. There were simply too many—these people would continue to believe strange and awful things about Jews simply because there were not enough Jews to go around. We would remain caricatures, figures from religious folklore, snapshots from international press reports, but in the grand scheme of things few non-Jews would ever be able to claim a Jew as a friend. I could never change that.

I returned home from the conference tired, hurt, and angry, fearful of how my neighbors would treat me after hearing all of the terrible rhetoric, and wondering how I would cope with living in my neighborhood after being exposed to the worst forms of Muslim hate for Jews.

But those questions were answered for me rather swiftly, as I drove slowly through the neighborhood for the first time since returning, maneuvering carefully through the rows of parked cars gleaming in the late winter afternoon sunshine. A bouncing ball suddenly flew into the street, and a child in a matching white robe and fez came bounding after it. I braked, instinctively. As I watched the boy retrieve his toy, I felt a certain joy flowing back into me: whatever illusions the conference in Durban had robbed me of, my innate human sympathy was still untouched. The compassion I had cultivated over the preceding several months in my neighborhood was still there, and still whole.

As I rolled on through the streets, I delighted in all the details of the place—the men calling to each other across open car hoods, grandmothers rocking their daughters' babies to sleep in the dim light of open doorways, paint flaking off the buildings and falling into the street, children playing cricket in the road with a taped-up bat and a tennis ball.

A few days later, a gale-force wind in one of the Cape's notorious late winter storms blew the corrugated-iron roof off of the two-story building opposite our house at five in the morning. With a tremendous roar, it flew across the street in the darkness, severed several power lines in a bright blue explosion of sparks, and landed on the low garden wall and roof of our house.

Half-asleep, I had imagined that the city was being bombed, or that our home had been struck by lightning. I opened the front door cautiously into the thrashing, wind-driven rain to find the whole street in darkness and great hunks of warped metal resting on our gate. Had anyone been walking outside at the time, they would have surely been killed. One of the sheets had barely missed going through the front window into the bedroom where my landlady was sleeping; only a small tree had blocked it.

The entire neighborhood awoke and came to help us dig out from under the sheets of metal. But attention quickly turned to the Catholic family living in the building that had lost its roof, whose home was now fully exposed to the wind and rain.

The fire department arrived and went to work on the sheets of metal outside our house with crowbars; once we could move in and out, we joined in the efforts to help our neighbors. A chain had formed in the pitch darkness along the staircase in their building to move furniture and other valuables; people fetched extra blankets from their cupboards for the mother and her daughter, seven months pregnant. My landlady made tea and coffee for everyone, including the firefighters; no one else on the block seemed to have electricity.

Eventually the debris was cleared and the rain stopped. The Catholic mother cleaned and returned our teacups to us that same day, thanking us and adding the strange comment that she, unlike the other people on the block, was "a good Christian."

At this stage, my nerves were completely frayed and I decided that I needed a vacation.

I went to stay with my aunt in her apartment in Hillbrow [in central Johannesburg]. Hillbrow might have seemed an odd choice for a vacation spot. I knew the noise would be incessant and the chaos outside omnipresent, but at least no one would bother me, and I would be far away from political and religious clashes, as well as flying chunks of metal.

As it happened, the police shot someone on the street corner outside during the early part of my visit, and I came down with a horribly painful stomach illness that made it impossible for me to eat for two days. Still, I was managing to relax, spending endless hours sprawled in front of the television and sunning myself on the balcony, far above the hubbub in the streets below.

A few days before I was due to leave, I felt well enough to take a taxi to the Rosebank mall. The place was bustling with people of all colors, and I marveled once again at the rapid racial integration of upper-middle-class consumerist culture. I decided to take in a three o' clock movie, choosing a popular Indian epic that had been constantly sold out in Cape Town. Ah, Bollywood—at each point of dramatic crisis, a cast of thousands begins singing and dancing. If only real life were like that, I thought to myself.

Real life was far, far worse when I emerged from the theatre four hours later. The mall was almost completely deserted, save for a half dozen people huddled around a television screen. In the eerie silence, an unthinkable image appeared—the World Trade Center collapsing. My hand flew to my open mouth, in a posture I would see repeated in countless photographs of people's reactions to that same sight, the abysmal nightmarish awe of the collapse calling forth some kind of instinctive pose, as if we were all deer frozen in the headlights of an oncoming truck.

I ran, ran, ran through the mall, searching desperately for a telephone. When I managed to I find one, I tried calling my parents in Chicago, but the overseas lines were busy. I finally managed to get hold of an operator in the United States; her heavy sighs bespoke a terrible feeling of loss and fatigue. Unable to help myself, I began asking her frantic questions: what had happened? Did anyone survive? Are we at war?

I eventually reached my mother, but the call was cut off midway through, so I hailed a taxi and returned to Hillbrow. The neighborhood was quieter than I had ever seen it before, day or night; the music of the shebeens was subdued, the gunshots less frequent. The city was in mourning—the great African Gotham was suddenly oblivious to its own horrors, bowing its head in sympathy with its sister across the ocean.

As the spectacle of the Septmber 11 disaster faded from the front pages, a slew of analysis and commentary began to emerge.

I tried to weigh the different arguments and find some kind of moderate path. But the mood of many South African media pundits was an irrepressible glee, barely hidden behind a facade of sorrow.

"It's a tragedy, but they got what they deserved," was the general line pursued in article after article. "We condemn terrorism in all its forms," was another popular tongue-in-cheek response from columnists and high-level policymakers, a criticism of American foreign policy disguised as sympathy.

Few South African leaders and intellectuals, other than Nelson Mandela, were able to offer a simple, unqualified statement of support and a condemnation of what had taken place.

Adding to my shock was a profound sense of alienation, the same feeling I had had at the Durban conference—the feeling that somehow, suddenly, I might not belong in South Africa after all. I was unwanted.

When I finally arrived back at my house in Salt River, I felt worse than I had when I had left. But I was quickly greeted by several neighbors, who walked across the street to see me when they saw I had returned. They were terribly sorry about what had happened in the United States: was my family all right?

The concern on their faces was genuine, and I was deeply moved. The world might have gone crazy, and the country's media commissars had lost the plot, but my Muslim neighbors cared about the welfare of my Jewish family in America. As strange as that might have seemed, it struck me as remarkably, wonderfully sane, a quiet affirmation of humanity when humanity was at its worst.

But things had definitely changed. There was a theory now making the rounds in the Muslim community that Israel, not Arab terrorism, was behind the September 11 bombing. My landlady's brother came by to visit, and as we enjoyed a cup of tea together, he posed what seemed like a cautiously innocent question: "I heard that there was a mosque in the World Trade Center; what do you think that means?”

I thought that he meant to suggest the futility of the terrorists' actions; in attacking New York, they had bombed one of the most cosmopolitan cities in the world, and unwittingly destroyed a mosque and killed many Muslims.

But my answers to his questions seemed unsatisfactory to him, and it was only after he left that I had realized he was getting at something else. He had been hoping that I, as a Jew, would be able to shed light on the theory that Israel was behind the attacks—for in his mind, that was the only way that the destruction of the mosque could be explained.

My attempts to bridge the divide began to feel, at times, increasingly desperate...

10 September 2007

10 September 2007 - FREE HELEN ZILLE

South African democracy is being threatened by the South African government.


10 September 2007 - Judge this book by its cover

After all the hype, and all the debate, I really expected something more from John Mearsheimer and Stephen Walt in The Israel Lobby and U.S. Foreign Policy. The authors have updated their paper, and even nod in the direction of some of their critics. That is not, however, the same as answering them. Basically, their claim—that the “Israel lobby” is bad for America—remains unchanged and unproven.

Walt and Mearsheimer’s argument consists of three basic parts. First, they argue that the U.S. offers Israel “extraordinary material aid and diplomatic support.” This is true. Next, they argue two separate but related claims: that “the lobby is the principal reason for that support,” and that the relationship—which they describe as “uncritical and unconditional”—is “not in the American national interest.”

And what is “the lobby”? It turns out to be a broad, amorphous set of actors—from the American Israel Public Affairs Committee (AIPAC) to writers like yours truly—anyone who acts to promote the U.S.-Israel alliance. This loose definition allows the authors to blame “the lobby” for anything done by any pro-Israel individual or group—and to ignore the things not done by the same people and organizations.

The authors allow that not everyone in “the lobby” agrees with everything “the lobby” does. But this is merely a superficial admission, made for the purposes of deflecting criticism. The entire argument turns on this bit of calculated imprecision. Such vagueness is also—though the authors would deny it—the hallmark of conspiracy theories. To put it charitably: this is a polemic, not a scholarly work.

Would the U.S. support Israel without “the lobby”? It’s a counterfactual claim, difficult to prove even with the best evidence and intentions, and the authors have neither. They dismiss claims of shared values by accusing Israel of “crimes against Palestinians” and presenting a polarized portrait of Israel in which they assume what they claim to prove: that only “the lobby”could defend such a state.

Setting aside the absurd claim that U.S. support for Israel is “uncritical and unconditional,” the authors’ argument that the alliance is against American interests rests on two claims: first, that Israel’s policies are a motivating force for anti-American terror; and second, that Israel has goaded the United States into attacking Iraq and isolating Syria, and is leading it into confrontation with Iran.

How do the authors prove that “[t]he United States has a terrorism problem in good part because it has long been so supportive of Israel?” They don’t. They simply state that Palestinian terror groups “do not attack the United States” (demonstrably untrue) but that Al-Qaeda does because of Israel. The latter claim is false, denied even by Robert Pape, whom the authors rely on for many of their conclusions.

(They add that those who disagree—whom they describe as “deny[ing] that there was any connection” (my emphasis) between Al-Qaeda and the Palestinian cause—want to protect “unconditional” U.S. support for Israel’s policies toward the Palestinians. Walt and Mearsheimer include such people as Dennis Ross, Martin Kramer, and Alan Dershowitz in this group, all of whom are critical of Israeli policies and would certainly acknowledge Al-Qaeda’s hatred of Israel. Here, and elsewhere, Walt and Mearsheimer indulge in the very labeling and slander that they claim Israel’s defenders mobilize against critics of the Jewish state.)

How do they prove that “the lobby” has brought the U.S. to war with half of the Middle East? They don’t. They cite newspaper reports, op-ed articles, after-dinner speeches and the like, elevating these bits of hearsay to geopolitical importance rather than presenting any concrete evidence of causation. They also ignore almost anything said or done by Arab states, Iran, and international terror groups.

Consider their theory that Israel and “the lobby” influenced the decision to invade Iraq. Exhibit A is a visit to Washington by former Prime Minister Benjamin Netanyahu. Exhibit B is an interview in a Cleveland newspaper by Ariel Sharon’s press spokesperson. Exhibit C is an appearance on CNN by former Prime Minister Shimon Peres. Exhibit D is an op-ed by former Prime Minister Ehud Barak.

So the utterances of these former Israel prime ministers and press secretaries—none of whom was in any position of real responsibility at the time—are credited with decisive influence. And “the lobby”? Well, AIPAC never supported the war, so the authors have a hard case there, but they point to all the neocons in the administration, shifting the definition of “the lobby” to fill their empty argument.

Oh, and “the lobby” was not going to let former Israeli prime ministers hog the limelight. They were writing op-eds and making speeches, too. All of this hearsay is presented by these two self-professed “realists” as the mechanism by which a great nation mobilized hundreds of thousands of troops halfway around the world and convinced the American people to wave tearful goodbyes to their grim-faced sons.

Walt and Mearsheimer are on even shakier ground when it comes to Iran, downplaying the imperial ambitions of the regime and the apocalyptic fanaticism of Mahmoud Ahmedinejad, both of which are a threat to U.S. interests whether or not Israel’s security is at stake. On Syria, they describe Israel as the villain—no mention of the Hariri assassination or any other reason to fear the Assad regime.

And what do they conclude? That it is no use opposing “the lobby,” because it is simply too powerful—the foregone conclusion that lurks at the end of any conspiracy theory. Instead, they argue that Americans should focus on “[r]edirecting the lobby’s agenda,” backing leftist elements of “the lobby” that support a two-state solution (as if the rest do not). It’s a wimpy end to a very, very weak book.

Perhaps the “taboo” the authors break is not, as they claim, criticizing the role of the “Israel lobby” in U.S. foreign policy. Perhaps, as the cover of the book suggests—with the red, white and blue of the U.S. flag replaced with Israeli azure and white (note the similar superimposition of symbols on the infamous 2002 New Statesman cover)—what they are really suggesting is that the “lobby” controls much more.

The idea of Jewish control is taboo for a good reason: it has served as the justification for antisemitism for the past century. Here we have to distinguish between Jewish power, which is real, and Jewish control, which is perverse fantasy. Power reflects success in the game of interest group politics, playing by the democratic rules. Control means preventing other groups from competing at all.

If American supporters of the Palestinian cause wish to have a positive influence on the conflict, they should invest time and resources in Palesitnian nation-building and in strengthening liberal Israeli institutions. (This is, in fact, starting to happen already.) To suggest, as Mearsheimer and Walt do, that the obstacle to peace is a distant bunch of lobbyists, advisers and newspaper columnists is to invite ridicule.

09 September 2007

09 September 2007 - MECA conference, day 3

The day started badly. The first discussion I attended focused on Palestinian politics. The papers weren’t so bad. OK, one of the panelists tried to argue that Islamic Jihad was a secular movement busy making the transition to democratic politics, not at all like those crazy Fatah nationalists who force recruits to convert to Christianity (wtf?). But nothing terribly anti-Israeli, and actually a few good ideas.

Then the “discussant” took over. He turned out to be a community college crank who berated the panelists for not being politically radical enough. He responded to a proposal to use high-tech investment to boost the Palestinian economy (yes!) with an attack on globalization and an ode to the virtues of organic farming in Cuba, which its supposedly fabulous leaders have developed to spite the USA (again, wtf?).

He went on, talking about how this great article by Walt & Mearsheimer had proven that the Zionists control Congress. I walked out at that point, then thought better of it and returned with the thought of interrupting the discussant and taking him to task for giving the panelists a propaganda lesson rather than intellectual feedback. But by then the session had ended, and I just decided not to bother.

I went downstairs to the lounge, where I finished reading Walt & Mearsheimer’s book, which I happened to have with me. Really quite underwhelming stuff, I thought. Their grand suggestion for counteracting the supposedly terrible effects of the Israel lobby, that protean menace, is—get this!—to back an alternative Israel lobby, a Kasrils-type group like Jewish Voices for Peace (again and again, wtf?)

Next, it was time for a lecture about the history of Muslim minorities within the Russian Empire. Rather interesting, if a bit long-winded, and I learned a few things about Catherine the Great I had never known before. Then the lecturer made some side remark about Orthodox Jews, complaining they are “allowed” to study religious texts in their schools but Muslims are not (again and again and again, wtf?).

Then it was time for lunch, and I happened to sit next to one of my co-panelists from Thursday, a Greek Cypriot woman who had just escaped a conversation with a guy who was giving her some one-sided nationalist diatribe about the island she was born and grew up on. One thing I have learned from this conference is that Israelis are generally way ahead of other folks in learning to face up to their country’s flaws.

Instead of going back inside, I sat on the lawn to read—no more Walt & Mearsheimer, but a nice racy novel by Paulo Coelho. I was just getting to the good bit when a tall young man came up to me and asked if I was the guy from Harvard. He was a University of Utah student and former Army Ranger who had suffered in silence through the whole conference, and saw that I’d asked a lot of questions.

I felt for the guy—imagine putting your life on the line every day for your country, then getting back and being told by all these supposedly smart people that the problem was all your fault somehow. Or finding that the politicians who sent you there were suddenly running away from any responsibility for the decision. He was frustrated with academics and politicians, and wondering what to do about it.

I told him not to worry—that at the end of the day these people didn’t matter, that the beauty of the system is that people really did count, that every Congressional representative has to answer to the voters of Youngstown, Ohio or Salt Lake City or wherever, and that there are still people who believe spreading freedom throughout the world is a noble, worthwhile and achievable goal. He seemed happier, I guess.

I went back inside for the conference’s final event, a panel discussion entitled “Middle East after the Iraq War.” Or maybe I read the program wrong, because all the professors seemed interested in doing was talking about what happened before the Iraq War. Oh, and bashing Bush and the neocons, and decsribing the ethnic harmony that thrived under Saddam (again and again and again and again, wtf?).

By Q&A time, I’d had enough. I said: “At the risk of being put in the neocon box, let me propose this: suppose the army stays in Iraq, and applies enough pressure over time that the Iranian people overthrow the regime, and Syria collapses soon after, and suddenly the main state sponsors of terror are replaced by new governments, and the war on terror is won. Now, convince me that’s not going to happen.”

The answer: “Oh, those are just neoconservative assumptions. The Iranian people support the regime as much as the American people support their government.” You mean 30 percent approval? I wanted to ask, but he rambled on about how the minority groups in Iran were happy with the Islamic Republic. Another panelist lectured me about the “criminal” acts of the American government in Iraq.

I wanted to respond in these exact words: “I have 40 bucks in my pocket. This 20-dollar bill says that in ten years there will be a stable, democratic government in Iraq. And this 20-dollar bill says there will be a new, truly democratic government in Iran. And I aim to collect.” But I decided discretion was the better part of valor, and I’d had enough garbage for one afternoon, and one conference. I walked out, again.

Outside, I watched kids skateboarding and listened to the distant cheers from the football stadium and took in the last rays of sunlight. I finished the Coelho novel and walked to dinner, where a bunch of people came up to me: “You really think that the U.S. can win?” One of them asked me to recommend some reading (I offered Sharansky). We spoke at the edge of the crowd, like Soviet dissidents.

To the extent that the MECA conference represents the views of American academia, it was pretty depressing. Actually, most probably don’t think America is evil and Israel is the enemy of civilization. They just never hear any other arguments, because people are afraid to make them. Now, I really wish I had pulled that stunt with the 20-dollar bills. I might have freed a few minds, and my own.

07 September 2007

07 September 2007 - Revisiting the Pape thesis

I’ve gone for a run in the beautiful Utah hills, and I’ve had a chance to reflect on the Pape thesis (and thermblog’s comments). The apparent correlation between suicide terror and foreign occupation is compelling, at first. But correlation is not causation. Pape often imputes motives to suicide terrorists that may not actually be theirs, and sets aside some of their stated motives. Causation is more complex than that.

The correlation may also be weaker than it initially appears. Pape told us that he only included sucide attacks in which the perpetrator was successful in killing himself or herself. There are good reasons to believe that failed attacks may also be those with broader, offensive aims. It is easier to carry out a suicide attack on home soil, for the simple reason that foreigners are easier to keep out or kick out.

There is also a dynamic element Pape seems to ignore. Not only does the current wave of suicide terror have specific political and ideological origins and inspirations, but has also evolved into something more global in its aspirations. Withdrawing from Iraq—even slowly, as Pape seems to suggest—might encourage the global aims of Al-Qadea and Iran far beyond any real or exaggerated territorial grievance.

In a way, the questions Pape raises are similar to those that were asked in the West about the appropriate response to Soviet ambitions. Was it better to intervene militarily to stop the communist advance, or adopt a strategy of containment? Different responses were appropriate in different cases. These different tactics were applied within an overall strategy of sustained pressure that eventually succeded.

The same applies to global terror. You need a mix of strategies. The U.S. has withdrawn its military forces from Saudi Arabia—quietly, so as to give the least possible encouragement to terror. But it has not, and should not, withdraw from Iraq. And rather than a passive “off-shore” strategy, the U.S. should stick to its goal of spreading freedom, applying pressure that reserves force as a last resort.

Pape mentioned that he has received a lot of attention from marginal presidential candidate Ron Paul, who has said even the Korean War was a mistake. That is a sure sign of error. I'll still give the book a fair read--but if the war against communism is any guide, it is quite possible the war against terror may be won sooner than we imagine by applying pressure to the states that sponsor it.

07 September 2007 - MECA conference, day 2

Today’s highlight thus far was a lecture by Professor Robert Pape of the University of Chicago entitled “Why the War on Terrorism Goes South?” In his book Dying to Win: The Strategic Logic of Suicide Terrorism, Pape argues that those who use suicide bombing around the world have the common goal of pushing a foreign military to withdraw its forces from territory that the terrorists consider theirs.

Stephen Walt and John Mearsheimer rely on Pape’s analysis to justify their charge in The Israel Lobby that supporting Israel is bad for America’s national interests. And, indeed, in his lecture, Pape attacked the idea that Islamic fundamentalism is the cause of suicide terror around the world. He argued that this idea encourages foreign policies that may, in turn, encourage further suicide terrorism.

Pape has assembled a database of every suicide attack in the world—a database that no other academic and no government had previously compiled. The data, he said, show that ordinary terrorism is declining and suicide terrorism is increasing., and that this trend pre-dates 9/11. More attacks were carried out by the Hindu Tamil Tigers than any other, and 30% of Islamic attacks were by secular Muslims.

Pape has explored various motives for suicide terrorism, and focused today on the strategic goals. The common purpose, he said, was to “coerce democracies to withdraw military forces from terrorists’ homeland.” Religion was rarely a root cause, he said, but it was used as a tool in recruiting terrorists. These patterns, he said, accounted for 95 percent of the suicide terrorism encountered since 1980.

He presented a chart of attacks that included some of those by Hamas inside Israel. He identified the goal of Hamas as “Israel out, Palestine”—presumably meaning a withdrawl of Israel from the occupied territories. He also said that Hezbollah stopped suicide attacks after American and Israelis from withdrawal from Lebanon—that it did not follow the U.S. to New York or Israel to Tel Aviv.

Democracies, he said, are seen by terrorists as uniquely vulnerable to suicide tactics. Al-Qaeda’s main goal was to push foreign forces out of the Arabian peninsula, and almost 35% of its suicide attackers were Saudis. Al-Qaeda has killed more people since 9/11 than it did beforehand, and most attackers came from countries where U.S. combat troops were stationed. Few came from Iran, he noted.

That did not, he said, justify the 9/11 attacks or suicide bombing in general. But it was something that had to be taken into account. True, I thought, but states that have sponsored terror groups abroad—Iran, Syria, Pakistan, Afghanistan etc.—have not had foriegn troops on their soil, or else lost territory in interstate conflict. They have used terrorism to achieve specific political, military and ideological goals.

Al-Qaeda published a strategy document in 2003, Pape continued, in which it said that it would not focus on attacking the U.S. homeland in the short term, but would attack America’s military allies such as Spain (which it then did) to push them to withdraw from Iraq (which it then did) and to put additional pressure on the British government to pull troops out as well (which it is now busy doing).

I thought of Alan Dershowitz’s argument in Why Terrorism Works, in which he argues that government appeasement of terror—even the U.S. and Israeli governments, on several occasions—have taught extremists that terror is a useful tactic. Perhaps it is because democracies reward terror groups with withdrawal that terror groups have increasingly adopted this strategy. The phenomenon is complex.

Pape then played an Al-Qaeda propaganda video by Adam Gadan, the American convert who has become one of the movement’s most important spokesmen. Pape ended the tape and pronounced: “No 72 virgins . . . . This is an empathetic plea” for people to understand Al-Qaeda’s grievances. But would we expect the propaganda that a movement broadcasts to its potential recruits and its enemies to be the same?

Pape concluded with some observations about Iraq, acknowledging that while there might be multiple causes for suicide terror there, the core motivation was the presece of U.S. troops and the American occupation. More bombers came from Saudi Arabia than Iraq, but Iraq was the next biggest group, and after that most of the attackers came from neighboring countries with an American presence.

“For this pattern to be wrong, there would have to be hundreds of suicide attacks that we’ve missed,” Pape concluded. There is a pattern, but I’m not convinced the “strategic logic” is what Pape claims it to be. He rounded off his remarks by pointing out how the two stereotypes of a suicide terrorist—poor on the one hand and Islamist on the other—don’t apply, since many are educated and may be secular.

Female suicide bombers, he added, tend to be older than male attackers—most of the men are 19-23 years old, while a higher proportion of the women are past 24 years of age, possibly correlating with declining marriage prospects. The number of reglious versus secular attackers is roughly equal, with more religious than secular attackers in Israel/Palestine, and no secular attackers in Al-Qaeda.

Pape then delivered the argument we all knew was coming: the American attempt to transform Muslim countries will increase suicide terrorism, and the U.S. should therefore use an “off-shore” balancing strategy. This didn’t mean withdrawing immediately from Iraq and the Arabian peninsula, but it did mean giving more responsibility for security to Iraqis, and keeping heavy weapons out of the country.

The Q&A then began, and the first question—surprise, surprise—went to the same woman who had been badgering me yesterday. She asked whether the Israeli-Palestinian conflict was driving Al-Qaeda. Pape delivered a clear “no.” He pointed out that over several years and dozens of attacks, Al-Qaeda had never even attempted to attack Israel. The issue was rhetorical, but only a third-tier motive.

I then asked about the broader territorial ambitions of terror groups—how Hamas wants to destroy Israel, and Al-Qaeda sometimes talks about reclaiming Spain. He said there has never been an “offensive” campaign of suicide terror. I followed up by asking about the role of states like Iran in sponsoring terror. He said that their own citizens don’t become suicide bombers, saying not even Shias in Iraq did so.

Later on, in response to a question from the Palestinian professor who was at my panel yesterday, Pape argued that suicide attacks in the West Bank and Gaza increased almost hand-in-hand with the increase in Israeli settlement. This did not justify terrorism, he said—although he desribed 200,000 settlers versus 3 million inhabitants as if it presented a real threat, which I thought was a bit over-the top.

I left feeling that while I still have a few reservations, I think Pape’s argument is basically sound, but only as it applies to suicide bombing, not terrorism in general. Walt and Mearsheimer cite Pape to support their claim that Palestinian terror is a reaction to Israeli occupation (64). But Palestinian and Arab terror against Israel began before the occupation and has continued after the Gaza withdrawal.

I think that Pape, like many other scholars who study this problem, does not give enough attention to the other state actors in the region, historically and today. I also think that he gives too much credit to suicide bombers for stopping their campaigns after territorial withdrawals, when in fact the reason might simply be that a foreign power is better able to protect itself at home than abroad.

The data set Pape has assembled is interesting and powerful, and it is probably one of the most important scholarly efforts of the past ten years in the attempt to understand terror. But I don’t quite buy his interpretations. Suicide terror may be directed against occupation, but whether that is the only reason for suicide bombing, or the only available tactic to encourage withdrawal, is another matter.

06 September 2007

06 September 2007 - MECA conference, day 1

Today was the first day of the University of Utah Middle East & Central Asia (MECA) conference, where I presented a paper co-written with Sapir Handelman. The talk went well, and our paper was included on a panel that featured papers on Cyprus and Northern Ireland. A common theme emerged: the idea of designing negotiating processes to “build better failures” rather than aiming at success.

Unfortunately, attendance was low (about 12) at our session, perhaps because there was a very popular lecture on Iran that overlapped with the start of our presentation. But the discussions were good. I (inadvertently) dominated Q&A, partly because our four negotiation models are easy to understand, and partly because the Israeli-Palestinian conflict always stirs up trouble.

The hardest thing to do at a conference like this is defend Israel’s legitimacy in even the mildest way. I was grilled by a woman who was outraged that I would describe the Gaza disengagement as anything other than a land grab in the West Bank. Less hostile were the questions from a Palestinian academic who criticized Israeli responses to terror; we managed to find some common ground after a little effort.

Another panel I attended focused on the phenomenon of anti-Americanism, historically and today. Every panelist blamed U.S. foreign policy and U.S. support for Israel, which apparently means opposing Palestinian statehood. The other academics in the audience chastised the presenters for not being anti-American enough. I pointed out that they had ignored the Soviet Union, and got blank stares.

The highlight of the day was the opening event, a lecture by Robert Olson of the University of Kentucky, entitled “Whither Kurdish Nationalism?”. Turkey is a dominant theme at the conference, perhaps because it is one of the University of Utah’s areas of expertise but also because Turkey has been in the news constantly for the past several weeks—Abdullah Gül, the Armenian genocide, et cetera.

Olson began by describing how Kurdish nationalism measures itself against the progress of Jewish nationalism from the late nineteenth to the mid-twentieth centuries. The Kurds got a later start, after the First World War, and actually had a state in northern Iran for a year from 1945-6. After that, Kurdish ambitions were shelved until the emergence of autonomy in northern Iraq got things going again.

The Kurds, Olson said, have a tougher job than the Zionists did, because while Israel grew up in a colonial territory surrounded by other, relatively weak colonies, the Kurds are divided among four states, each with established governments and armies of varying capacity. These states, particularly Turkey, have a strong interest in halting Kurdish nationalism and blocking the emergence of a Kurdish state.

The Kurds have had to consider these factors in charting a course forward, weighing the benefits of independence and sovereignty against the risks of a Turkish invasion of northern Iraq. In the interwar period, it was Britain that governed Mesopotamia (Iraq) and attempted to sort out the competing national interests; today the United States, shoring up the democratic government in Iraq, finds itself in a similar role.

The resolution of the Turkish parliament on March 1, 2003 not to join the American invasion of Iraq, Olson said, is seen by Kurdish nationalists as a kind of “Balfour Declaration,” an potential milestone on the way to independence. However, in the new Iraq, Kurds are in prominent leadership positions, which raises questions as to whether Kurdish aspirations will move in the direction of a separate nationalism.

Olson then considered various theories that attempt to explain and predict the development of nationalism, among Kurds and in general. He gave particular weight to theories linking capitalism and nationalism, highlighting the role of economic elites in the formation and leadership of national movements. The role of intervention by an external power such as the U.S., he said, had been neglected.

He argued that the role of external powers has been far more important in Kurdish nationalism than other regional nationalisms because of Kurdish nationalism’s late start, owing to the slow development of a bourgeois class that could guide Kurdish aspirations. This, in turn, resulted from the projection of the American “crisis of capitalism” abroad. Whatever the cause, this is the Kurds’ best opportunity.

Questions at the lecture focused on the role of Islam, which some in the audience said was more important to Kurds in Turkey than nationalism. Others contended that capitalism was actually a brake on nationalism, since wealthy Kurds in Turkey invest in Istanbul, not Mosul. Olson acknowledged Islam’s role and said Turkey used capitalism to co-opt Kurdish nationalism, but the latter was still potent.

On the way out of the lecture, I stuck up a conversation with someone about Kurdish nationalist strategies and their relation to Zionist strategies. He mentioned something about Zionists having a plan to “cleanse” Palestine of Arabs, and cited Ilan Pappé (or tried to, since he couldn’t remember his name) as an authority. I cited Morris (whom he hadn’t read) and brought the conversation back to Kurds.

This evening, on the way to dinner, I was accosted by the woman who challenged my description of the Gaza disengagement. We talked for a while but her extremism soon became tiresome and I ducked outside as soon as I had a plate of delicious Middle Eastern food. I found a table of Turks and we had a fantastic time laughing and debating and eating too much baklava. I have to visit Turkey sometime.

05 September 2007 - "Anything is justiciable"

One of the last things I did before leaving Israel was buy a copy of Aharn Barak’s The Judge in a Democracy, in which the former President of the High Court of Israel explains his judicial philosophy and recalls some of his more famous judgments. The book is an interesting read, but Barak’s legacy is more likely to be his famous saying, which sums it all up: “Anything and everything is justiciable!”

This memorable phrase not only expresses Barak’s philosophy but could serve as a slogan for an entire generation of justices that has expanded the powers of judicial review all over the world. Few jurists believed in this doctrine so fervently or practiced it so diligently as Barak did during the 1990s and the early years of the twenty-first century. His judgments shaped not only Israeli but international law.

Some of these judgments are famous for their substance, such as the High Court’s ban on torture in H.C. 5100/94, Pub. Comm. Against Torture in Isr. V. Gov’t of Israel (1998-9). (Given that the book discusses so many cases from Israel and other jurisdictions, I would have thought it would provide a table of cases at the beginning or end; sadly, it does not—the reader is left flipping through footnotes.)

I think jurists around the world recognize the immense difficulty of the balancing act that Israel’s High Court chooses to perform on such occasions, weighing the need for security against the world’s most acute long-term terror threat against the need to defend human rights principles in one of the world’s most robust democracies. Such judgments stand as a guide for courts in other countries.

This is so despite the fact that Barak’s legacy is highly controversial in Israel itself. Many religious conservatives believe that the High Court has adopted an unbridled left-wing activism and want to rein it in. Many human rights activists I spoke to felt that the High Court was not activist enough—that even though “anything is justiciable,” it had failed to declare the occupation of the West Bank itself illegal.

Substance aside, Barak’s influence as a judge is important because it expresses so clearly the spirit of a particular era in global jurisprudence—perhaps the first era in which one could even speak of “global jurisprudence.” Barak believes the role of the judge in a democracy is to mediate between law and society, an idea that Richard Posner finds outrageous but with which many judges outside the U.S. probably agree.

There are a couple of things about the book that I find a bit hard to swallow. Barak writes at length about constitutional law, but his entire judicial career was spent in a country that has no formal constitution. In addition, he says that “dignity” is the essence of human rights. That might be why people feel rights are important, but it seems a bit sentimental: the right to life must surely trump dignity in some cases.

I also found Barak’s treatment of opposing schools of thought, in particular the originalism or textualism represented by U.S. Supreme Court Justice Antonin Scalia, rather shallow. And I would not go as far as Barak does in arguing that judges make the law instead of simply interpreting or applying it. It is an important admission, but Barak also seems to believe it is a maxim for judges to live by.

To be fair, Barak does acknowledge some of the questions that his approach raises for the doctrine of the separation of powers, which he describes as the “backbone of democracy.” It is not ideal, he admits, for the judiciary alone to judge itself. However, he seems to think that the judiciary is at least qualified to do so—and that this arrangement, while not “ideal,” is at least “optimal.” (44)

Israel is now experiencing a backlash against this “optimal” solution—a backlash not unlike that which many other countries have experienced in the course of the “constitutional revolution” of the past twenty years. In some countries, this backlash has led to the restructuring of the courts altogether; in the U.S. it has led to the appointment of “strict constructionist” judges to the federal bench.

But these backlashes have rarely done away with the judicial review of legislation, even if they may have curtailed it somewhat (usually in favor of the executive, not the legislature, it seems to me). People seem to have become used to the idea that the courts should act as a brake on the government. Presidents who want to curtail judicial power have to do it the old-fashioned way: by stacking the courts.

The Palestinian Authority has a (very) short tradition of constitutional law, inseparable from the Fatah-Hamas rivalry. Most human rights issues of interest to Palestinians continue to be decided by Israel’s High Court. This week, the Court ordered that portions of the security fence built on land belonging to the village of Bil’in be moved, a victory for the activists who have protested there every Friday and for Israel’s legal system as a whole. That sort of judgment, “activist” or not, tends to boost the Court’s international esteem.

My main problem with Barak’s approach is it does not distinguish between constituional and judicial supremacy. Judges, too, must obey a higher authority, “optimal” or not. Nevertheless, Barak’s book is an interesting window onto the thinking of the Court and the man who defined Israel’s early proto-constitutional jurisprudence as well as the activist spirit of the first “globalized” judicial era.

03 September 2007

04 September 2007 - A failed dialogue

The Israeli journalist Tom Segev, writing about the Dershowitz-Finkelstein spat in 2005, observed: “Both are captive to the faith that ascribes supreme importance to the written and spoken word. Therefore, they frequently argue about what they - and others - have written and said, and invest mighty efforts in learned prefaces and footnotes, accusing each other of distortions and fabrications.”

For the past few months, I have had the makings of a similar squabble with Arleman Suleman, a Harvard Law grad who is currently clerking for a federal judge in the Southern District of New York. Suleman is the previous leader of Justice for Palestine here at HLS. Other than our views on the conflict, we seem to have a lot in common. We’re both interested in diplomacy and theater, for example.

Our dispute started back in March, when JFP announced it was hosting a debate on the Israel-apartheid analogy at Harvard. I was actually on my way to South Africa, but wrote a strident op-ed in the Harvard Law Record arguing against the analogy, which concluded: “By indulging the false Israel-apartheid analogy, JFP is siding with the enemies of peace, and standing against real justice for Palestine.”

Suleman wrote an equally strident response in which he defended the event and the analogy. He described the challenge laid down by one of the participants in the debate, Professor Farid Esack, to “name one veteran of the organized liberation struggle in South Africa who visited the OPT and did not then describe the Occupation as either similar to Apartheid or worse than it.”

I reacted angrily to the article—overreacted, I would say in hindsight—particularly because of a phrase in the opening sentence that referred to “uncritical supporters of Israeli policy.” I took that personally and wrote a complaining e-mail to Suleman. He responded in kind, and things began getting out of hand when I suggested that we meet for coffee. Suleman accepted, and things settled down for a bit.

Meanwhile, the exhange in the Record continued. I responded with a second op-ed in which I attempted to answer Esack and Suleman’s challenge by quoting South Africa’s ambassador to Israel, Fumanekile Gqiba: "The accusations are unfounded, the term 'apartheid' is uniquely South African and devalues the struggle of the black population against one of the worst forms of oppression known to man."

My original sources were all secondary, but I subsequently found the original article via a media monitoring service in South Africa. The article included the statement I had attributed to Gqiba, but without actual quotation marks. However, since it is fairly standard practice in South African journalism to indicate even direct quotations without quotation marks, I thought I was on safe ground.

Suleman wrote to me, challenging the quote and asking for the source. In the spirit of our détente, I provided him with the original article. In his next riposte in the Record, he wrote that my representation of the quote was “false and misleading” and quoted Gqiba as referring to the security barrier as an “apartheid wall.” He concluded: “It seems Professor Esack's challenge still stands.”

I found this even more offensive. I didn’t like being accused of dishonesty, especially when I had provided the original source to Suleman in good faith. So I wrote a new letter to the editor: “I stand by my quotation. I also happen to have had the pleasure of meeting Ambassador Gqiba personally in Tel Aviv, so I have some idea of what his views are. He has promised to e-mail me this week, though, to clear up any confusion, so if there's anything new to report I'll make sure the word gets out.”

I did receive a response in two parts from the ambassador, but his answers seemed unclear and noncommittal, so I asked to schedule an interview with him in Israel. In the meantime, Suleman and I decided to try arranging coffee before year’s end. But things fell apart—again over the issue of the Gqiba quote. It seemed he wanted me to admit I was wrong before meeting with me. That irritated me, again.

I had no way of knowing at that time conclusively whether the quote was incorrect—and anyway, that seemed the wrong way to start an open dialogue. I felt he wasn’t really interested in talking and wondered if he was using the quotation issue to find some way out of the meeting. He apparently believes I was the one who called things off—and I suppose, from his point of view, that’s not unreasonable.

To make a long story short: I believe I’ve lived up to my word. I’ve since investigated the Gqiba quote to the fullest extent possible, even going straight to the reported source (the interview will be published in the coming weeks). Gqiba denies having made the statement, which I accept. I was wrong—but I was wrong in good faith. At the same time, Gqiba does not describe the occupation “as either similar to apartheid or worse than it,” and so it seems Esack and Suleman’s challenge is met.

I’m not sure there’s a way to bridge the gap between what I believe and what Suleman believes. Hosting radically anti-Israel historian Ilan Pappé and holding discussions on the Israel-apartheid analogy both seem like provocations, aimed not at generating dialogue but demonization. (Perhaps some of the Alliance for Israel’s past events have provoked similar feelings - if so, I’m hoping to change that this year.)

But Suleman seems to be quite a decent fellow otherwise. I view our exchange as an example of failed dialogue—perhaps because so much of it happened on paper and e-mail, and so little in person. “Perhaps there is a chance for a peace process between the two professors,” Segev wrote, mocking Dershowitz and Finkelstein. I’d like to hope the rest of us can move beyond such bickering. If not, sadly, so be it.

UPDATE: Two excellent articles debunking the Israel-apartheid analogy have come to my attention in the past week: one by John Strawson and the other an interview with Gideon Shimoni. Recommended reading!