Justice for Palestinians in the US

    by Sylvia Schwarz and Phil Benson

Justice and human rights should not be controversial issues. Certain truths are, one would expect, universal. After all, that was the point when the Universal Declaration of Human Rights was so named. But the attempt to bring the issue of justice and human rights for the Palestinians into view of the American public has been mostly blocked. Having suffered for more than sixty years from discriminatory laws, occupation, apartheid, and ethnic cleansing, justice for Palestinians continues to be an unreachable goal. In the US Americans have been denied the knowledge of the human rights abuses committed against the Palestinians and the voices of those who advocate for Palestinians continue to be drowned out by pro-Israel propagandists. Unless there is fair coverage in the media, the political institutions and the courts, justice will continue to be denied.

In November 2011 Minnesota Break the Bonds Campaign (MN BBC), a statewide campaign working to convince the State of Minnesota to divest from its portfolio of Israel Bonds in solidarity with the non-violent Palestinian call for Boycott, Divestment, and Sanctions, filed a lawsuit against the State Board of Investment (SBI). The suit charged that the SBI had invested the state's pension funds in Israel Bonds in violation of section 11A.24 of the Minnesota Statutes which limits foreign government bond investments to Canada; that the investment was contrary to the state's obligation under the US Constitution to comply with the Fourth Geneva Convention, a ratified treaty; and that the investment was otherwise imprudent because it exposes the state to lawsuits for its complicity in financially supporting Israel's human rights violations. In filing this important lawsuit MN BBC was largely confronted by silence. The media, the legislature, and the courts all seemed to conspire to keep the issue from being publicly addressed .

Media

If an informed electorate is essential for democracy, the media today has been AWOL in its duty on all fronts, but none more so than the issue of Israel and Palestine. All players in the media, from the CEOs of communications companies, to editors who decide what stories are published or aired, to reporters in the field, have shared in the failure to precisely inform.  

In the eye-opening book People Like Us: Misrepresenting the Middle East [1], Dutch journalist Joris Luyendijk examines the traps that foreign correspondents and their media outlets back home fall into when reporting about Israel and Palestine. The first of these traps is laziness. It is easier to rewrite a press release from the field using their editors' conclusions or to rely solely on Israel's official spin without investigating any opposing positions. Israel's government press offices pro-actively promote highly edited stories to the press, ready for use with just a little personalization. Journalists who exhibit independence and the desire to investigate a story from another angle are shut out and isolated, their access to information eliminated or reduced, leaving them ineffectual and less valuable to their news organizations.

Reporting on Israel and Palestine in the United States rarely deviates from the US government line, says Marda Dunsky in Pens and Swords: How the American Mainstream Media Report the Israeli-Palestinian Conflict[2]. According to Dunsky, this reporting almost never includes any relevant context such as international law, human rights consensus, or the history of the conflict and how this history affects the current situation.

The result of these failures is that only one side of the story is ever told and most Americans never see anything but the official government (both Israeli and US) position. Let's face it, when it comes to information, Americans are also lazy. They prefer to be spoon fed sound bites and vote with their remote control buttons. The more inquisitive among us must search hard for information that does not automatically reinforce the official line. When a lazy news audience is combined with lazy journalism, the news becomes a compounded cycle of one-sided coverage. The audience is taught to expect nothing better and is disoriented when confronted with anything different. The difficulty in disseminating other positions or news about incongruent events in this closed loop is monumental. This includes coverage of the Palestinians' non-violent demonstrations against the Israeli annexation wall, the continuing massive theft of Palestinian land to build "settlements" that are illegal under international law and significant protest events occurring within the United States, such as the lawsuit that MN BBC brought against the SBI.  

Government

The media's laziness in accurately covering issues involving Israel and Palestine is matched by the blatant cowardice of our elected officials to honestly confront these issues. A review of controversial votes in the House between 1964 and 2009 shows that for the most part, with the exception of the Gulf of Tonkin Resolution in 1964, which was unanimously approved, most of these controversial votes won or lost by small margins, usually along party lines. But when the subject is Israel, votes are always unanimous or nearly so. It is impossible to imagine any issue in which there is so much apparent unanimity of opinion between members of the two opposing parties, and it shows the staggering influence that the pro-Israel Lobby has on nearly every member of Congress.

The influence of the pro-Israel lobby extends to state and local government as well. When the topic of Israel is raised, most legislators hold the belief that it will imperil their political careers to speak in support of basic human rights principles or established international law that favors the Palestinian position, although many will admit it off-record. And given how poorly the topic is covered in the media, legislators can be assured that the public will not complain about their consistent pro-Israel votes. This was typified by the reaction of most Minnesota state legislators when confronted by MN BBC with the hard and cold facts about the Israeli occupation and Israel's universally condemned human rights violations. Not a single legislator attempted to deny or rebut the facts we presented to them about these violations. Rather, MN BBC has consistently encountered an intense and immediate desire by the legislators with whom we spoke to change the subject. This was true even among those legislators who had visited the occupied Palestinian Territories and had personally observed the reality of the situation.

The Courts

Perhaps the most disappointing is the pattern exhibited by American judges in dodging their obligation to make rulings that might acknowledge Israel's continuing human rights abuses and international law violations. The courts do it by employing case ending legal loopholes short of deciding cases on the merits. The most prominent loophole that is regularly abused by the courts is the "political question" doctrine, despite the Supreme Court's regular pronouncements, repeated recently in Zivotovsky v. Clinton, that "the Judiciary has a responsibility to decide cases properly before it, even those it would gladly avoid."

In a commentary by law professor Gwynne Skinner ("The Nonjusticiability of Palestine: Human Rights Litigation and the (Mis)application of the Political Question Doctrine," Hastings International and Comparative Law Review, Winter 2012), Professor Skinner surveyed a number of reported decisions and found that US judges regularly terminate cases involving Israel's human rights and international law violations on the basis of "nonjusticiability" (not capable of being be tried) by employing the "political question" doctrine, even when identical or similar facts in cases involving other countries have been found by the courts to be justiciable. Skinner maintains that the six "Baker factors[1]," which the courts use to determine whether a case implicates a "political question" that is better left to the legislative or executive branches for resolution rather than the courts, have been misapplied to cases which seek to address Israel's international law and human rights violations. By doing so "the courts have dismissed all cases involving Israeli's [sic] alleged illegal actions on, inter alia, political question grounds," (Skinner, p.2), avoiding the responsibility to fairly hear cases. This avoidance of responsibility, Skinner declares, is in direct contradiction to the desires of the founding fathers, who early on (in 1789) instituted a law called the Alien Tort Statute, allowing aliens to bring suit in federal courts for violations of customary international law. When a case is unfairly dismissed on "political grounds," the plaintiffs in these cases, Palestinians or those working for justice for Palestinians, are denied justice.

When MN BBC brought its suit charging the SBI with violating Minnesota law, a lower court dismissed the case, in part on the basis that it involved a "political question." It is no such thing. Section 11A.24 of the Minnesota Statutes clearly states which investments are allowed and those which are not. Investments in foreign government bonds, with the exception of Canadian bonds, are not allowed. MN BBC asked the court to declare that the state did not have the right to invest in Israel Bonds. It did not ask the court to declare that Israel was an international law violator. That determination has already been made in other forums.