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Justice for Palestinians: the untouchable issue

REUTERS/Suhaib Salem
The plight of Palestinians is routinely ignored by US media, politicians and courts.

Justice and human rights should not be controversial issues. Certain truths are, one would expect, universal. That was the point when the Universal Declaration of Human Rights was so named. But for more than 60 years Palestinians have been denied justice and Americans have been denied the knowledge of human-rights abuses committed against them. Unless there is fair coverage in the media, government and courts, justice will continue to be denied.

In November 2011 Minnesota Break the Bonds Campaign (MN BBC), a statewide campaign working to persuade the State of Minnesota to divest from Israel Bonds, filed a lawsuit against the Minnesota State Board of Investment (SBI). The suit charged that the SBI had invested state 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 U.S. Constitution to comply with the Fourth Geneva Convention, a ratified treaty; and that the investment was otherwise imprudent. Although it is an important topic, the media, Legislature and courts seemed to work together to keep the issue from being publicly addressed.

Media

In his book “People Like Us,” Dutch journalist Joris Luyendijk examines practices of foreign correspondents reporting about Israel/Palestine. Most journalists rely solely on Israel’s official spin without investigating opposing positions. Israel’s government press offices promote pre-written stories to the press. Journalists exhibiting independence who try to investigate other angles 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 government line, says Marda Dunsky in “Pens and Swords.” According to Dunsky, this reporting almost never includes relevant context such as international law, human-rights consensus, or the history of the conflict.

The result of these failures is that only one side of the story is told, and most Americans never know anything but the official government position. Let’s face it, Americans are also lazy. Most will not seek out information that does not reinforce the official line. When a lazy news audience is combined with lazy journalism, the news becomes a cycle of one-sided coverage. The difficulty in disseminating other positions in this closed loop is monumental. This includes coverage of the events in Israel and Palestine, and those in the U.S., such as the lawsuit that MN BBC brought against the SBI. 

Government

The influence of the Israel lobby extends to state and local government too. Regarding Israel, most legislators believe that their political careers are imperiled if they speak in support of basic human rights or international law. And given how poorly the topic is covered in the media, legislators are assured that the public will not complain about consistent pro-Israel votes.

This was typified by the reaction of most Minnesota state legislators when confronted by MN BBC with facts about the 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. Yet none would be courageous enough to speak publically. 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

Just as disappointing is the pattern exhibited by American judges in dodging their obligation to make just rulings regarding Israel. Courts employ a legal loophole known as the “political question” doctrine, despite the Supreme Court’s 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.”

Law professor Gwynne Skinner found that U.S. judges regularly terminate cases involving Israel’s human rights and international law violations on the basis of “nonjusticiability” (not capable of being be tried) using the “political question” doctrine, even when identical facts in cases involving other countries have been found by the courts to be justiciable. Skinner maintains that cases which seek redress of Israel’s international-law and human-rights violations have been found to be “political questions” better left to the legislative or executive branches for resolution rather than the courts, and this determination has been misapplied.

By doing so the courts have avoided the responsibility to fairly hear cases, and this is in direct contradiction to the desires of the Founding Fathers. When a case is unfairly dismissed on “political grounds,” the plaintiffs in these cases are denied justice.

When MN BBC brought its suit charging the SBI with violating Minnesota law, a lower court dismissed it, in part on the basis that it involved a “political question.” It is no such thing. Minnesota Statutes 11A.24 clearly state which investments are allowed. 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.

In addition, investing in Israel Bonds violates Article XI of the U.S. Constitution, requiring states to uphold all ratified international treaties. Since Israel Bonds are used for projects recognized by the U.S. government as illegal under the Fourth Geneva Convention, a ratified international treaty, the SBI may not invest in them. These are not political questions. The SBI is violating the law.

MN BBC filed an appeal. A three-judge panel of the Appeals Court will hear the case on Thursday, Sept. 27, in St. Paul.

The record has not been good for getting the Palestinian side of the story out to the public, to legislators, or to the courts. Palestinians have been historically vilified in the United States in the zeal to show favoritism to Israel. If it is so difficult for U.S. citizens to gain recognition of a lawsuit filed in a state court on behalf of Palestinians harmed by international law violations, how much harder must it be for Palestinians themselves to find justice?

It is essential that those working on the side of human rights and justice continue to work to break through these walls of silence.

Sylvia Schwarz is an engineer living in St. Paul and a Core Team member of Minnesota Break the Bonds Campaign.

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Comments (7)

  1. Submitted by rolf westgard on 09/25/2012 - 08:08 am.

    Why we are number 2

    Whether it is right or wrong, most of the world views Palestine as a kind of concentration camp run by Israel with the active support of the U.S. The result is that we are the second most hated nation. For the most hated, check the UN Assembly totals when there is a vote to condemn Israel.
    Until those settlements leave the West Bank, we are in that perception rut.

  2. Submitted by Dan Hintz on 09/25/2012 - 07:56 pm.

    Atrocious legal analysis

    “Minnesota Statutes 11A.24 clearly state which investments are allowed. Investments in foreign government bonds, with the exception of Canadian bonds, are not allowed”

    That statement is so completely wrong, I have to wonder if Ms. Schwarz even looked at the statute. Its pretty clear she hasn’t read the order rejecting that argument and dismissing the case. You can find the Court’s analysis in paragraphs 16-29 in the attached document.

    http://mn.breakthebonds.org/wp-content/uploads/2012/09/11.-Judges-Order-to-Dismiss-Case.pdf

    The Court of Appeals is going to reach the same conclusion as the District Court did, because this lawsuit is completely frivolous. Ms. Schwarz is not a lawyer, so she may not know better, but there are attorneys working on this, and they should. Wasting the court and the state’s time and money filing frivolous lawsuits does nothing to further the cause of the Palestinians.

  3. Submitted by Raj Maddali on 09/25/2012 - 11:05 pm.

    Proper Legal Analysis – But quixotic

    We’ve been thru this before.

    The intent of the statute is very clear. There is a section for Bonds, corporate bonds, etc…. And now the judge claims “Other investments” actually means Bonds also. Huh ?

    By the judges reading of this statute it can be written in one line. “The State of Minnesota can invest in international securities.”. Because even a muni bond, by her definition is an international security because i can buy it from Canada.

    However knowing the political climate, we all know that this lawsuit will go nowhere.

    • Submitted by Dan Hintz on 09/26/2012 - 09:30 am.

      Been through this before

      Hi Raj – we have been through this before.

      You know from our prior discussions that I am not unsympathetic to the Palestinians. My issue here is the faulty legal arguments in this lawsuit. I have explained it, the judge has explained it, and in a few months the Court of Appeals is going to explain it again. If it makes you feel better to keep telling yourself that the courts are wrong and just motivated by politics, I guess you are welcome to do that. But if you are really interested in helping the Palestinians, supporting frivolous lawsuits and then pretending politics are at fault when those lawsuits get summarily dismissed sure isn’t going to help. This lawsuit is not only a waste of time and resources, but it undermines the credibility of this organization and the cause it supports.

      • Submitted by Raj Maddali on 09/26/2012 - 10:27 pm.

        Purely based on the language of the Statute

        Hi Dan (again!!!)

        I read that decision, and i read the statute. In my opinion the judge is totally wrong. I have even made my argument, only based on the wording of the statute, in the earlier post. So it is not like i’m simply howling bias. I am in the securities industry and i can read and understand why the leg. made distinctions between bonds (safe investments) and int. securities (speculative investments). And yes i know you are a lawyer, but you have not challenged my reasoning.

        Also, I have stated that this effort is quixotic, no matter which way the judge rules. So i am not saying Sylvia is going to achieve anything here. However to state that there is no fear of going against the pro-Israel crowd in this country would be wishful thinking.

        • Submitted by Dan Hintz on 09/27/2012 - 09:12 pm.

          Language

          Raj, I did not mean to imply that you were just howling bias – you did set out your reasoning, and in attempting to parse statutory language, you put far more into your comment then about 99 percent of people here do. I did not address your point because we did it last time around, and I did not mean to just dismiss you.

          The place you are running into trouble is by treating the section on bonds as the last and only word on bonds. The language of that section doesn’t limit the bonds to only the types listed. In fact, it says “includes” when it would have to say “limited to” to get to your interpretation. One would think that a well worded statute would have a separate section for each type of investment, but statutes – like this one – are written by legislators and amended by legislators, and are sometimes a mess. Unless the statute specifically limits investments, it doesn’t limit them. That is as far as the judge needed to go.

          Think about this: what is the point of the statute? It is to ensure that the state makes reliable investments, and is not about dictating which countries should be avoided. There are separate statutes that bar or put restrictions on certain countries (Northern Ireland, Sudan, Iran). There is no statute for Israel. If the court determined that investments in Israel violated the statute, that would also mean that investments all over the world (England, France, China) do so as well, which obviously was not the legislature’s intent.

          If you recognize that nothing is going to be achieved by doing this, why support it? I would argue that Ms. Schwarz actually hurts the cause of the Palestinians by being such an ineffective advocate. Aren’t there more productive ways to support this cause other than frivolous lawsuits? I accept that taking a hard line on Israel is politically problematic, but again, I don’t know what that has to do with using ineffective tactics.

  4. Submitted by Paul Udstrand on 09/30/2012 - 11:05 am.

    On the face of it

    I’m no lawyer and I sympathize with Raj, but have to agree with Dan. clearly the legislation can’t be intended to limit international investment to Canada, i.e. the “plain language”. Furthermore the expectation that a state court should make rulings regarding international law doesn’t strike me a mere legalism, on the contrary I think it makes a lot of sense for a lot of reasons.

    While I’ve never been comfortable with these rulings on investments and investor accountability, the problem is undeniably too complex to be decided in a state court. I think for instance the expectation that investors “know” how investment money is being spent cuts both ways. On one hand some law actually requires such knowledge by as per due diligence. On the other hand the courts have decided that lack of such knowledge allows for financial support of entities engaged in criminal behavior. We saw this with South Africa during the divestment battles there. Although there was absolutely no doubt that Apartheid existed, courts ruled that investors had no way of knowing that money sent to SA would be spent on Apartheid. This creates a bizarre situation whereby the due diligence to “know” how the money is being spent is replace burden of proof based on the lack of such knowledge. In most cases your supposed to know whether or not you’re doing something illegal, ignorance is no excuse. This body of law seems to nullify that expectation by declaring it’s impossible for investors to know whether or not they’re breaking the law. Meanwhile the burden of proof is exaggerated. Instead of a “more likely than not” standard the courts seems to have adopted a “beyond reasonable doubt” standard. We’re not talking about locking anyone up, we’re just talking about blocking investment.

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