fugitive peace

(Images from Wikimedia Commons)

It had never really occurred to me to wonder whether questions of halakha, Jewish law, might hamper human-rights work. OK, driving to a protest on the sabbath is clearly out. But leave it to Rabbis for Human Rights to agonise about the conundrum that the shmita, or sabbatical year — which we are in now, when Jews may not farm their land — creates for a God-fearing Jew who wants to show solidarity with Palestinian farmers harvesting their olive crop. This came in today from their mailing list. I rather like the halakhically dubious but morally bracing conclusion:

Up until this point we have not really answered the question of how we, as a rabbinic organization, are participating in agricultural work in the Sabbatical Year. For those who accept the rabbinical permit to “sell” one’s land, there is no problem harvesting on land which is not ours and given the fact that we will not be profiting financially. Even the permit, however, stipulates that planting must be done by non-Jews because this is seen as an activity prohibited by the Torah and not just by the rabbis. We can certainly be present to guard and even digging the holes is permitted. Maimonedes says that when we see a non Jew doing the work that we are forbidden to do during the Sabbatical Year we should offer words of encouragement and wish that their efforts be successful. I think that, when we are talking about land that has laid fallow for all too many years because of settler violence and difficulties of access, the Land has had her rest and now is the time for justice.

(More pictures here)

Mostly, the Africans are invisible. You catch a glimpse of dark faces like a hallucination when the kitchen door swings open in just about any of Tel Aviv’s glitzy restaurants and bars, but for all the diners know they are teleported to work, or flown in specially from Sudan each evening.

That’s because most of the diners, like me until last night, have never heard of Levanda street. I stood on Levanda for at least half an hour, and almost everyone who passed by was either African or lost.

The street begins next to Tel Aviv’s central bus station, which pumps passengers in and out 24 hours a day, and runs between workshops and low-rise housing to where the shiny office towers of the business district rear up. Those Africans who have found paying work rent rooms. Those who haven’t are in the basement of the last house on Levanda.

I went with a handful of young Israeli soldiers. Some of them had been in the south the day before, near the Ketsiot prison where Africans who sneak across the porous border with Egypt are held while the UNHCR processes them. They had bumped into a gaggle of Ivorians who, through a bureaucratic snafu, had been released into the empty desert. The Ivorians had heard of this place in Tel Aviv that an NGO had rented as a shelter for migrants. The soldiers arranged for them to be picked up, and then decided to bring them some food.

2,000-odd Africans entered Israel last year, a growing tide encouraged by the news that Israeli soldiers, unlike their counterparts in most of north Africa, don’t shoot migrants (and even help them). Some are refugees from wars and genocide, and some just want a better life.

The ones from Cote d’Ivoire have one of the more uncertain futures. Most of them - so they say, at least - fled the fighting that broke out after a rebellion against Laurent Gbagbo, the president, in 2002. On the recommendation of UNHCR, people from war zones like Darfur get automatic “temporary protection” from the Israeli government, which means the right to stay and work until the UN deems it safe to go back. Until recently, that included Ivorians. But the 11 who arrived at Levanda street this week were among the last batch who might be eligible. The civil war was officially declared over in March, and refugees will now have to prove their case for protection, though they may have left Cote d’Ivoire two or three years ago and have no idea what is going on there.

The 11 new arrivals were mostly young men who said they had been rebels in the war. They were friendly, though still a little annoyed at having been dumped in the desert. An argument broke out between a couple of them about whether talking to journalists was likely to improve their chances of asylum. Then they took us inside.

It’s a small warren of rooms, which judging by the scraps of posters used to be a nightclub. At their estimate, which looked about right, around 100 people are packed in to it. They’ve run out of sleeping space, so some are sleeping outside, in temperatures that have fallen close to freezing. Bags, clothes, mattresses and cooking pots take up almost all the dry floor space. What was once shelving improvises as bunk-beds. They could sleep in the bathrooms if they weren’t inch-deep in diluted urine. A couple of broken, shit-filled toilets are the alternative to relieving themselves outside. Well-wishers have brought some bits and pieces of kitchen equipment, utensils and food. A few, though, clearly have some money, whether sent by relatives, borrowed, earned or stolen; there are a few mobile phones and even the odd MP3 player.

Their plight illustrates how slow the refugee rumour mill is to catch up with reality. When just a few dozens or hundreds were trickling across each year, it was easy for Israel to give them a much better life than they could have elsewhere. “Would you have come if you knew what the conditions were like?” I asked one of them who had been designated as the spokesman. “Not at all,” he said.

The space is divided by nationality: Ivorians in one section, Eritreans in the next. The Eritreans are usually classified by the UNHCR as economic migrants, and have little chance of staying permanently.

Scanning a list of names of people awaiting their UN documents I came across a young Eritrean geography graduate called Aaron. He had excellent English, an easy, ironic smile, and cynical sense of humour. When I asked why he had come to Israel, he gave me such a look that I apologised for asking a stupid question. “No, it’s not stupid,” he said, and looked around us at the pile of blankets and mattresses. “I was just, you know [ironic smile] looking for a better life.” After graduating, he had few job prospects and faced getting drafted into the army. “But I like my freedom. I was born free and I intend to stay free the rest of my life.”

I told him if that George Bush heard him, he would probably get an American passport on the spot. He laughed loud and ironically, declined to be photographed, and then walked out of the shelter to the bus station. A relative from Eritrea had contacted him, asking him to meet yet another new arrival and bring him back to the shelter. Aaron was one of the ones with a phone.

I took his number. He felt like someone I could have met nursing a lazy afternoon drink in any of Tel Aviv’s cafes. I’d like to think he soon will be. I doubt it, though.

One of the great things about working for a weekly is that I can usually avoid the press conferences, photo-ops, stake-outs and other feeding frenzies required of the purveyors of instant news. With Bush coming I’m especially glad. Here are some edited highlights from the schedule sent to the media (my emphasis added):

Tomorrow:

11:55 – Official reception at Ben-Gurion International Airport… entry via Terminal 1 by 09:00… MBU’s [ie, mobile broadcast units] to enter… by 07:00;

Thursday:

Meeting and Press Conference of the Palestinian National Authority President Mahmoud Abbas with President of the United States of American (sic), George W. Bush… Press conference will begin at 11:30 a.m… All Press MUST arrive at the Press Gathering Point BEFORE 06.30.

Friday:

08:10-09:40 – Visit Yad Vashem…. Pool members at PM’s Jerusalem Office by 06:00

Not that the rest of us are going to have it easy. Jerusalem traffic has already slowed to about half its usual speed. Military choppers keep buzzing overhead in both Jerusalem and Ramallah. There are more guns around than at an NRA convention. People are avoiding making appointments for the next couple of days. Some who commute between Jerusalem and Tel Aviv are finding places to stay overnight so they don’t have to make the trip. Some offices in Jerusalem have given their employees the time off; one friend who works for an international agency has been told to stay at home because of “security concerns”, though it’s not clear whether they’re afraid their employees will get caught up in a assassination attempt or run over by a speeding presidential limousine.

This had better be good.

Or in the local language, court acquits Palestinian.

While I was researching this week’s piece on the upcoming Bush visit to the Middle East, something caught my eye in the White House’s December 18th press briefing about it. Dana Perino, the spokeswoman, was asked whether Bush would meet with Hamas, and answered:

“I think the President wants to deal with the elected leader of all the Palestinians, which is Abu Mazen and Prime Minister Fayyad. So he is going to focus on talking with them. Hamas is a terrorist organization. He is not going to be talking with them.”

Now, all the reporters in the room knew that Hamas was also elected by the Palestinians, and that Fayyad was not elected at all but appointed by Abu Mazen to head an emergency government whose legal legitimacy is questionable at best. Nobody challenged her.

Still, Hamas is a terrorist organisation, and that’s a good enough reason not to talk to it, right? Except that a lot of the Palestinian security men guarding Bush on his visit to Ramallah have also been active in Fatah’s military wing, the al-Aqsa Martyrs’ Brigades, which has carried out more attacks from the West Bank than Hamas has; and the al-Aqsa men who killed two Israeli soldiers near Hebron last week were themselves on the PA security forces’ payroll. What’s more, this fluidity between the Brigades and the official PA forces has been common knowledge for years (even I’ve written about it). In short, “terrorist”, like “democrat”, is an extraordinarily flexible term in the Washington dictionary.

That nobody corrected Perino isn’t surprising. Press conferences are not for getting into arguments — there’s no point. The journalists are there to hear the official position, and at best pick up on whether it’s changed since the last time. If the official position is that Hamas are terrorists and Abu Mazen and Fayyad are democrats, that’s just another way of saying that Hamas are our enemies and Abu Mazen and Fayyad are our friends.

This loose use of labels is nothing new, of course: yesterday’s strategic ally is today’s evil dictator (Saddam) and yesterday’s freedom fighter is today’s terrorist (Bin Laden). The trouble is that as journalists we’re so used to this doublespeak that we don’t even notice it any more, so we just shovel it on to the general public — and usually we don’t have the time or the space to explain, to those who follow events less closely than we do, that the people we’re quoting are talking out of their backsides.

I know nothing about law, but I’ve always been oddly fascinated by Israel’s supreme court. It’s probably the paradox of a court known worldwide for having civil rights at the centre of its agenda—in Israel, if you think your civil rights have been violated, you go straight to the top, bypassing the lower courts—in a country known worldwide for its dubious record on those same rights.

The short answer to the paradox, of course, is that the civil rights we fondly think of as universal are totally not. It’s courts and parliaments that get to decide what the rights should mean, how much scope they should have, and what to do when individual freedoms clash—as they inevitably do—with the good and security of the collective. And though judges are more independent than legislators, they are still products of the same system; they have their ideologies, social consciences and political pressures, as well as personal agendas. How they interpret individual freedom suits the country they are in.

This came home to me yesterday at a seminar on “The Interface between Law, Intelligence and Terror” at the Shasha Centre at the Hebrew University. The main part was a closed session packed with retired generals, senior spies and supreme court justices, where the average age was at least three decades above mine. Most of the talk was, not suprisingly, about the need for laws to give the security services greater powers, plus a lot of sniping at the recent US National Intelligence Estimate and its claim that Iran had halted its nuclear weapons programme.

In the evening, there was a public debate in the evening between Aharon Barak, the recently retired president of the Israeli supreme court, and Richard Posner, an influential and iconoclastic American appeals court judge.

These two are oceans apart ideologically. Barak’s motto “everything is justiciable” shaped the present-day Israeli supreme court. Posner is one of the most controversial judicial conservatives in America, infamous for arguing that a free market in babies (or rather parental rights, he later clarified) would be better than government-regulated adoption. He wrote in his review of Barak’s book The Judge in a Democracy that Barak had created “a degree of judicial power undreamed of even by our most aggressive Supreme Court justices”. Barak, in turn, rather cattily hinted that Posner’s opposition to judicial activism was so extreme even in American terms (let alone Israeli terms) that he was simply wrong about how US judges actually work.

Both enjoy using rhetoric to win points, which made for some disagreements that were largely cosmetic. For instance, Barak said a judge’s role is to protect democracy, while Posner said a judge is meant to act as a brake on democracy. It didn’t take much to see that, in Barak’s words, they were “reading different dictionaries”: Barak’s “democracy” was the liberal values that underpin democratic societies, while Posner’s meant majority rule. In reality they both think the judge has to keep the will of the majority from overly restricting the rights of the individual, though they disagree on how.

But some of the differences are profound. Barak has a somewhat exalted view of judges’ wisdom and importance to society, while Posner describes them as “rather limited”, “not knowing very much”, and vulnerable to “the deformations of their profession”, meaning their tendency to privilege legalism. To Posner legislative limits on judges are essential, while Barak fought them tooth and nail; since he left the job the government and the supreme court have been at war over attempts to make the judges more accountable to politicians. Posner said that words like “justice”, fairness” and “human rights” were “empty much of the time” and to be avoided; Barak, looking incredulous, riposted with “you cannot judge without justice”. To Posner, and to at least a couple of other Americans at the seminar, the idea of the supreme court intervening in military decisions, as Israel’s regularly does, was simply mind-boggling.

In short, they had totally different views on what judges should do to protect civil rights. Yet what struck me was how much of the disagreement could be explained not by ideology but by differences in the way Israel and the US function as countries. It starts from basic procedural stuff. The fact that Israel’s supreme court can be a court of first instance (the reason, I was told, is that the British wanted to limit challenges to the government’s decisions during the Mandate, so they didn’t let lower courts hear such cases) means it sometimes has to intervene on specific cases while they’re still hot—whether to permit a military action that might harm innocent people, for instance—rather than waiting for a body of experience about the issue to build up and set a general precedent.

Then there’s history. For instance, Posner, argues that personal security matters to people more than civil liberties (though one might retort that in practice they usually have to choose between their own security and other people’s liberties, so it’s hardly a fair fight) and it’s therefore reasonable to restrict civil rights in times of war or crisis. In American history, he noted, this is what has happened, and after each crisis—the Civil War, World War II, etc—civil rights have grown stronger again. 9/11 brought new infringements, but as the feeling of threat recedes, these are being challenged. Now, even in the US this idea is a red rag to anyone who believes in the sanctity of constitutional rights. Barak, though, had a much more pragmatic response: Israel doesn’t have short crises punctuated by long periods of peace, but frequent, extended patches of conflict, and without judges to act as a buffer against public mood swings, civil liberties would be in terrible shape.

The Israeli court is also a buffer against a far more volatile politics than in America. Plus it fills the vacuum left by the lack of a constitution. Indeed, the starting criticism that judicial conservatives have of Barak is that he arrogated to the court the powers to overturn legislation and treat the “Basic Laws”, which are merely ordinary laws that require a larger majority to change, as if they were a real constitution. But, as Posner admits, in an “immature democracy, poorly governed” with a “mediocre and corrupt” political class, surrounded by enemies and with no constitution, someone like Barak may have been just what Israel needed.

Meanwhile, Barak’s critics at the other end of the scale are human-rights groups who point out that his court may have been very progressive on civil rights in Israel proper, but when it comes to petitions from occupied Palestinians, it has mostly sided with the government and its security services. Yesterday’s lecture was interrupted repeatedly by a handful of American students shouting “what about the civil rights of the Palestinians?” In another country one might have expected a hall mostly full of other students to be a little sympathetic. Here they immediately began shouting at the protestors to shut up, and burst into loud applause when the security guards finally hauled them out of the hall. It was a reminder that even judges who stand as the ultimate guardians of civil rights cannot avoid reflecting the views of their society.

We were seven, crowded around a table in a West Bank cafe: two officers from PA General Intelligence, two British journalists, one translator and, as seems de rigeur for any gathering of Palestinian men, two wide-eyed young toughs with an indeterminate relationship to the proceedings. Halfway through the conversation a family with two small kids holding party balloons came into the room, took a look at us and promptly left again.

A friend and colleague, Matthew Kalman, had invited me to join him for the interview because he needed someone who knew Moscow. As Matt wrote in his story, published today, one of the intelligence officers claimed to be among a hand-picked group sent to Moscow for anti-terrorist training by Russian special forces. His descriptions of where they had been and what they had learned were detailed enough to convince me, as was the Russian he had picked up (”thank you”, “please”, “hello”, “goodbye”, and the all-important krasivaya devushka, “pretty girl”). He had a pretty good accent too.

What intrigued Matt was that the methods the men were taught had been honed on Russia’s own version of the Palestinians: the rebels of Chechnya, brother Muslims in fact. Their training included a film of the botched rescue attempt in Moscow’s Dubrovka theatre, where at least 129 hostages died from after-effects of the gas that was pumped in to subdue the Chechen kidnappers. But the officer shrugged; this kind of geopolitical irony was beyond him. His trainers had explained to him that the people in Chechnya were irhabiin, “terrorists”. If his superiors told him to go after irhabiin in the West Bank or in Gaza — and he knew that this meant above all Hamas — he would obey.

I wanted to know why men from the PA security forces were ready to hunt down those same Hamas men that many of them, as members of Fatah’s militias, had fought alongside during the second intifada (though it was doubtful that this one had). The officer’s answer was one we’ve come to hear a lot of: the barbarity that Hamas displayed against Fatah men during their showdown in Gaza in June. There are truly horrific stories — of Hamas men riddling prisoners’ legs with machine-gun fire so as to sever them, for instance. Just how many such cases of extreme cruelty there were is hard to pin down: Fatah people tend to inflate the figures while Hamas people play them down as unauthorised “isolated incidents”.

But that matters little; these stories have become anchors of the anti-Hamas sentiment at all levels of Fatah, just as stories of Fatah torture in the 1990s were lore among Hamas. Much as I and others have been writing about the need for the world to recognise that Hamas represents a large chunk of the Palestinians and can’t just be swept under the carpet, as it is has been at Annapolis, there’s no getting away from the fact that a hurdle at least as big as the international community’s refusal to deal with Hamas is the internal hatred. Before June I had written several stories about Palestinian factional clashes and heard my interviewees recite the same mantras — national unity is paramount, we will never allow this to become a civil war, our common enemy is the occupation, and so on and so forth. It all sounds particularly hollow now.

We’re nearly there. And it seems I got it wrong when I said that Annapolis might be derailed by Ehud Olmert’s insistence that the Palestinians recognise Israel as a Jewish state before negotiations began. I think the reason is he never actually insisted on it - he just managed to look as though he was.

How I got misled on this is instructive. The funny thing is I sort-of saw it all begin, though I didn’t realise it at the time.

On November 5th, at the Saban Forum dinner at the president’s residence, the Ha’aretz journalist Ari Shavit asked Ahmed Qurei (Abu Ala), the head of the Palestinian negotiating team on Annapolis, whether the Palestinians would recognise Israel as a Jewish state. Ha’aretz reported this, but I first heard it from someone who had come straight from the dinner and was stunned by Abu Ala’s response.

“He could have thrown them a bone,” said my witness. “He could have said something like ‘Come on, guys, you know if it were up to me, you know what I think, but this is an issue that’s part of the talks and we have to leave it for the talks.’ I mean, they’re sitting there in the residence of the president of Israel. But instead he just said ‘let’s leave it for the talks,’ which makes it look to the Israelis like the whole issue of recognising the Jewish state is in question.”

I confess I didn’t take him too seriously. So what if Abu Ala didn’t soft-soap his hosts? He was right on the main point: recognition of Israel as a Jewish state implies renouncing the right of return, so it’s a no-no for Palestinians to concede it except as part of talks.

What I missed was that the media, and then the rightists within the coalition, would turn this into an issue. Within a week Olmert was insisting that “Whoever does not accept [Israel as a Jewish state] cannot hold any negotiations with me” and that “This will be a condition for our recognition of a Palestinian state.” Saeb Erekat retorted that “no state in the world connects its national identity to a religious identity,” which was rather foolish and only infuriated Israel even more.

A few days later Olmert repeated his demand to Javier Solana: the recognition of the Jewish state would be a “foundation for the post-Annapolis negotiations” and “is not subject to either negotiations or discussion.”

Both Israeli and international media interpreted this to mean that Olmert was making Palestinian recognition of the Jewish state a precondition for holding talks. But a close reading shows he never actually did.

When he said that only someone who accepts a Jewish state could hold talks with him, he followed it up with a qualifer: that he was sure Abbas and Salam Fayyad “are committed to prior agreements and want to make peace with Israel as a Jewish state”. In other words, they personally could hold talks with him. And when he said the condition was non-negotiable, he meant there would be no agreement without it — but not that there would be no talks without it.

Thus Olmert was able to make it look like he was bending to the rightists without actually doing so. This week, as if nothing had happened, he repeated that he wanted to complete a final-status deal within a year. If nothing else, you have to give the man his due as a master of manipulation.

Anyway, this week’s issue finally has my piece on Annapolis as well as an editorial written in London that calls on Bush to rescue Annapolis by making his own speech about the shape of a two-state solution, and a cover picture of Bush entitled “Mr Palestine” which I find absolutely hilarious.

A moment of sympathy for Ehud Olmert, who is up against some scary people on the Israeli right. I snapped these pictures in Jerusalem. This first one showing Olmert behind bars was put up by the Jewish National Front, an extreme right-wing religious-Zionist group. Their credo (Hebrew) includes calls to “detach the enemy from the land of Israel and distance the enemy tens of kilometres from the border”, and “stop being ‘the most moral army in the Middle East’ - let the IDF win!”

Meanwhile, Olmert may not be right-wing enough for Avigdor Lieberman of Yisrael Beiteinu, who is a member of his coalition and claims the credit for making Olmert come up with all sorts of obstacles to Annapolis; but even Lieberman obviously isn’t right-wing enough for the “scientific workers from the countries of the USSR” who paid for a poster mocking his well-known opportunism: “Security - No! Jerusalem - No! Ministerial chair - Yes!” The text below says: “The time has come to leave the government and cancel the Annapolis conference!”

The Annapolis doomsday machine is now running at full tilt on the blogosphere: mainstream right-wing blogs like Michelle Malkin and Israpundit are issuing warnings about what a disaster it will be for Israel, while Time magazine’s Middle East blog asks whether the meeting will achieve anything.

I think it’s again fair to ask whether it will even happen. Ehud Olmert has been insisting that the Palestinians recognise Israel as a Jewish state as a precondition to the final-status talks that are to take place after Annapolis. The Palestinians are refusing.

That might seem silly; after all, the whole point of the two-state solution is that Israel will be a Jewish state and Palestine will be a Palestinian state. However, recognising Israel as a Jewish state means giving up the principle of the right of return of Palestinian refugees to Israel proper, since if all the refugees came back Jews would become a minority in Israel. The Palestinians know full well they will have to give this up anyway; the best they can hope for is that Israel agree to let in a certain number of refugees each year, as proposed in the Geneva Initiative. But this is meant to be part of the give-and-take of the final-status negotiations. Israel is trying to make the Palestinians concede it in advance.

Why? Probably simply because it can. As I described in my last post, a fortnight ago Abu Mazen caved in on his demand that the Annapolis meeting include a declaration pinning down the basics of the final-status agreement and a firm, six-month deadline for completing final-status talks. All he got in return was a non-committal agreement from Olmert to try to finish the talks within a year. In doing so he showed his weakness. Olmert, ever mindful of right-wingers in his coalition threatening to scuttle the talks, took advantage of this to try to shore himself up politically, as well as improve his own bargaining position before the talks begin.

Did he do this with American approval? I doubt it. Now, however, he can’t back down even if he wants to. Avigdor Lieberman, whose Yisrael Beiteinu party is the right-wing linchpin in the coalition, is playing political one-upmanship on the prime minister by trying to get Olmert’s pre-condition voted on in the cabinet and possibly passed as a law. The latter would be pretty easy. Some liberal Israeli commentators are tearing their hair out at Olmert’s demand — “like denying the legitimacy of our own national existence,” wrote Yoel Marcus in Ha’aretz — but very few Israeli politicians would dare to refuse to support it.

This, I surmise, is why we still have no fixed date or invitations for Annapolis, two weeks before it’s supposed to take place. And Abu Mazen must be facing the dilemma of his lifetime. He fears that if he refuses Olmert’s pre-condition, the US will pull the rug out from under his feet; but that if he accepts it, the entire Arab world will brand him a traitor.