Put it down and walk away?! (an exchange over BDS, and Israel, between 2 Jewish lawyers)

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Two weeks back we reported on a debate on Jewish Perspectives on Boycott, Divestment and Sanctions at a Brooklyn church (videos here). Adam Horowitz moderated, and Kathleen Peratis, a lawyer and member of the J Street board, argued against boycott. David Samel, who is also a lawyer, attended the event. He later sent Peratis a letter. She responded. Samel and Peratis have allowed us to publish their correspondence:

Dear Kathleen Peratis:

I attended the BDS debate in Park Slope Thursday night and found it quite fascinating. I hope you do not mind my burdening you with this rather lengthy response. I’m an appellate lawyer for whom “brief” is a one-word oxymoron.

You and Gil Kulick were very articulate in your presentation and conveyed the sincerity of your hope for a resolution that, if not perfectly fair, could be agreeable to all sides. However, I disagreed strongly with the content of your positions, and would like to respond on three particular issues: the viability of a truly Jewish and democratic state; the events of 1948; and the question of apartheid.

There was much discussion on whether there can be a democratic and Jewish State. You see no contradiction in the terms Jewish and democratic, and think that such state can provide equal rights to all. Israel is now in its 63rd year, and as you are well aware (and expressed vehement opposition to), discrimination against Palestinian citizens is only getting worse. We’re not talking about private discrimination of the type that continues to exist in the US, but government-sponsored discrimination that would never survive scrutiny under our constitutional equal protection guarantees. In education, Arab and Jewish children are mostly in separate schools, with Jewish schools receiving several times the funding per student as Arab schools. In social relations, Jews and Palestinians may not marry each other in Israel, and have to travel abroad to do so. In housing, Jews can live virtually anywhere, while Palestinians are severely restricted. The list goes on and on.

Surely these discriminatory policies can be ameliorated, but can there ever be true equality between Jews and non-Jews in a Jewish State? I think that is not even possible theoretically. The policy of giving you and me the right to “return” to the land from which our ancestors supposedly were expelled millennia ago, while denying that right to the ethnically-challenged Palestinians whose roots “only” go back hundreds of years, is inherently discriminatory. Even more importantly, the more egregious forms of discrimination against Palestinian citizens appear destined to continue, and perhaps worsen, into the far foreseeable future. How long should they have to wait for improvement, especially when full equality is beyond their reach?

You and Gil seemed to cherish the 1948 declaration of Ben-Gurion founding the state, with its rosy promise to guarantee equal rights to all. Whether you accept his sincerity or not, and I do not, his guarantee is absolutely meaningless, just like the Soviet Constitution guarantee of free and fair elections.

Of course, for the following 18 years, Ben-Gurion’s promise did not even include the right to vote for Palestinians. Since 1966, the words of 1948 have continued to be empty and meaningless, a promise that will never be fulfilled.

That leads me to 1948. You claimed that the UN partition resolution of 1948 created the state of Israel and signified international recognition of a Jewish State. First of all, the resolution dated from 1947, and the mistake is not as trivial as it may first appear. The resolution did not create the state. It was a non-binding General Assembly proposal for partition that passed. The state was created when Ben-Gurion made his declaration of independence, and a sufficient number of countries, principally both the US and USSR, recognized Israel’s independence. But even worse, your invocation of the UN is disingenuous. I cannot think of a single UN action since then that Israel has respected. One year after the partition resolution, the UNGA passed Resolution 194, calling for the return of Palestinian refugees, and Israel has adamantly rejected that ever since. Even the partition resolution did not have unequivocal Jewish support. Many Jews rejected partition itself, and those like Ben-Gurion who accepted it did not accept the borders drawn or the prohibition against driving people from their homes. The UN Mediator Bernadotte, a hero of the Holocaust, was assassinated by the Jewish side in 1948. It would be hypocritical in the extreme to demand respect for a single 1947 UN resolution – and only the one aspect of that one resolution that proposed the Jewish State – while ignoring Israel’s flagrant disregard and even contempt for the UN ever since.

While it was not discussed much at the debate, the origin of the refugee issue is highly relevant. To establish the type of Jewish State with a Jewish super-majority, dispossessing large numbers of Arab inhabitants was necessarily part of the plan. We all agree that if all of the Palestinian descendants were allowed to return today, Israel would be demographically overwhelmed and unable to continue as a Jewish State. Israel’s founders were well aware of demographics, and knew that if they did not expel hundreds of thousands, their state would have a rather short expiration date. Even Benny Morris, the leftist-turned-rightist historian, concedes that there were at least 24 massacres by armed Jewish forces of Palestinian civilians in an effort to incite flight. (He thinks Ben-Gurion should have completed the ethnic cleansing process.)

Finally, you were indignant in denouncing the comparison of Israel to apartheid. As your co-panelist Gil conceded, the situation in the occupied territories already resembles apartheid in South Africa. It is the OPT situation of complete separation and grossly unequal access to resources that has most often been compared to apartheid. Specifically, that is what Jimmy Carter had in mind when his famous book title drew such scorn. But what of Israel itself? You claim that it is not nearly as bad as SA apartheid, and that is arguably true, but as Hannah Mermelstein [arguing the pro-BDS side] pointed out, it still may fit the international law definition of apartheid that is not restricted to conditions as they existed in South Africa. And you expressed revulsion over the continuing intolerable discrimination within Israel, but say it falls well short of apartheid. What would you call it? Apartheid-lite? When the African National Congress demanded an end to apartheid, they insisted on equality, not simply diminished discrimination.

I think the main difference between you and me, Kathleen, is that you see 1948 as a glorious achievement that has been undermined by post-1967 misjudgments. I see 1967 as a continuation of the faulty principles that have plagued the Zionist movement since the beginning. It was always about building a national fantasy at the expense of the natives, who simply don’t count as much. It was always envisioned that Palestinians would be severely compromised to pave the way for the Jewish State, and they cannot be faulted for refusing to accept their expulsion, domination and subjugation. (I do not excuse in the slightest their attacks on Israeli civilians, but that does not “delegitimize” their grievance.)

Relatedly, all of this talk about Jewish self-determination and Jewish sovereignty is ill-conceived. As American Jews, a tiny minority of the population, do we lack self-determination and sovereignty? Perhaps you fear the risk of a worldwide tidal wave of anti-Semitism. Personally, I think that Jews are among the most protected human beings on Earth, despite (or maybe as a result of) our unfortunate history. But do you think that the hypothetical and speculative danger to Jews should take precedence over the genuine misery that Israel has inflicted, and continues to inflict, on Palestinians? I also think that much of the anti-Semitism that exists in the world is generated by the arrogance of Israel in callously, even gleefully at times, forcing that misery upon a defenseless population.

It is not easy to say one day that something you always believed in – a Jewish State that can truly be a model for humanity – actually was a bad idea from the start, and has no future in a world that rejects as immoral any inequality based upon birth characteristics. Today, it is not possible to reverse the decades of death and dispossession and discrimination. But there is a way forward. Enter the 21st century and decide that the principle forbidding ethno-religious discrimination trumps the necessity for a Jewish State. It might be difficult, but certainly not impossible, to transform Israel and the territories into one state that treats all citizens equally, with guarantees of security and religious freedom for all. On the other hand, there is no long-term future for a Jewish State that offers more privileges, rights, and status to some (even a majority) of its citizens. That is a recipe for perpetual seething discontent.

Despite our differences, I do want to thank you for your participation in the debate. I found all four of the panelists to be very eloquent, respectful and honest, and I’m very glad I attended.

Cordially, David Samel

Dear David,
I am afraid we have little common ground other than our mutual desire to have a respectful exchange with each other.

Our fundamental and unbridgeable gap is your assumption that the continued existence of Israel is actually on the table for discussion.  It is not.  Israel is a legitimate member of the community of nations–not the best of them but far from the worst–and you and others who actually think this is a productive subject for discussion are at best wasting your time and at worst serious obstacles to peace. You seem to suggest that if the original raison d’etre for Israel was a post-Shoah safe haven for Jews, then that reason no longer applies and so Israel should say, “Okay, if that is how you feel, we will fold up and go away.”  Even the Arab world accepts Israel (see Arab Peace Initiative so to what end are you beating this dead delegitimizing horse? By the way, national liberation movements have led to bloody expulsions and even genocide over the last 100 years but I am not aware of any serious calls to undo the creation of the resulting states.  Are you?

I see what may be a clue to the answer to this question in your saying, “It is not easy to say one day that something you always believed in — a Jewish state that can truly be a model for humanity–actually was a bad idea from the start…”  If by this you are assuming it  is something I always believed in, you are wrong.  I did not grow up with Zionism or even Judaism.  I came to both only twenty years ago–recently enough so that I knew what I was getting into.  But I suspect that what you actually mean is that you always believed in a Jewish state that could be a model of humanity, and instead you are facing the curdling of your dreams.  If so, and if that accounts for the intensity of your bitterness, then I actually  understand.

You use a very colorful and not wholly inapt phrase “building a national fantasy at the expense of the native who simply don’t count as much.”  As I read that phrase, I though of America, and counting a slaves as “worth” 3/5 of a white person for apportionment purposes, enshrined in our very constitution, which took a civil war and 150 more years of racial struggle to undo.  The discrimination against Palestinian citizens of Israel is beyond appalling.  I could tell you stories that I have heard first hand from a number of Palestinian Israeli friends and also Palestinian American friends that shame me.  But, unlike you, these outrages do not make me want to (as I said at the debate, a la Food Channel cooking contests)) “put it down and walk away” or make the useless demand that Israel cease its existence.  Instead it motivates me to redouble my support for  the thousands of Israelis (Jewish and Palestinian) who feel exactly the way I do and, I gather, the way you did before you gave up, who want to end the discrimination against Palestinians, against immigrant workers, against women, against the non Orthodox; who want to abolish state-sponsored religious courts, who want to enforce Supreme Court rulings against housing discrimination, who want to close the income gaps.  Will they ever achieve perfect equality and justice for all of the citizens of Israel?  I assume not (no surprise there).  Is Israel’s Jewish state self-definition the principle problem to doing so? Hardly.  I favor making Israeli democracy really good before we worry about making it perfect.

And that brings me to the subject that brought us here– the Global BDS Movement–which was the subject of the debate last week that you attended.  As you know, I regard this movement as a distraction from doing the things that might actually help the American Jewish community drop its blinders and defensiveness and start looking seriously at those painful compromises that are necessary for peace.  Neither B, D nor S has any chance to have any economic impact, as Hannah Mermelstein, one of its most prominent spokespeople, admits.  It is meant to be an education and organizing tool.  As such, it is my observation that it is giving both sides an opportunity they are enthusiastically grasping– to go right back to their comfort zones, one side delegitimizing Israel and the other side decrying the delegitimization of Israel.  Both side are experts at doing what they are doing but that does not advance the cause of peace one millimeter.  The hard issues are how to move the Jewish community toward what we correctly call the “painful compromises” and the BDS boogeyman is a great big distraction.

Shavua tov,


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