David Benger

Mr. Biden, Please Appoint an Antisemitism Ambassador Now

BY David Benger

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Today is Yom Hashoah, Holocaust Remembrance Day in Israel. On this day, we are taught not only to mourn the millions senselessly slaughtered in Nazi death camps, but also to honor their memory by vowing: “Never again.” Never again will Jewish innocents be targeted for mass extermination with impunity.

For that vow to be fulfilled, we must pair those words with action. For President Biden, on this Holocaust Memorial Day, the clearest signal he can send that he cares for the global Jewish community is to prioritize the nomination of the first ever Ambassador-at-Large to Monitor and Combat Antisemitism.

The new Ambassador position was created by Congress early this year to elevate the importance of the position formerly known as Special Envoy to Combat and Monitor Antisemitism, a position created by the Bush administration in 2004.

It is incumbent upon President Biden to appoint a dynamic, energetic, worldly person with charisma and courage to the role. Antisemitism is on the rise across the world, and the new Ambassador’s role will be cut out for them from Day One.

The Ambassador will have to cast away arcane labels of “left wing” and “right wing” antisemitism and address all actions that harm to Jews with equal gusto. Graffiti on a synagogue wall frightens Jewish congregants, whether the words say 'heil hitler' or 'free Palestine. Both acts of vandalism strike fear into Jewish hearts. In that spirit, the Ambassador will have three priorities topping their agenda.

First, the growing power of the BDS movement and its insidious stranglehold on debate regarding the Israeli-Palestinian conflict must be made a priority. BDS stands for Boycott, Divestment, and Sanctions, and its goal is to use economic isolation destroy the Jewish and democratic character of the State of Israel. It operates behind the façade of advocating for Palestinian rights. In reality, the movement does nothing for the rights of Palestinians (other than occasionally costing Palestinians their jobs) and instead makes Jews feel unsafe across the globe.

Recognizing BDS for the hateful movement that it is and marshalling resources to combat it will need to be top of the agenda for the new Ambassador.

Second, the Ambassador should pick up right where former Special Envoy Elan Carr left off in advocating for the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism to be adopted as widely as possible. This will mean lobbying foreign governments as well as private companies, and international organizations.

The IHRA definition is a multi-page document with a chapeaux section that explains its goals followed by many examples of antisemitism in action. The full definition (examples included) are a fantastic guideline for helping decisionmakers correctly to label antisemitic acts of hate.

Third, the Ambassador must build relationships with social media platforms to pressure them to protect at risk Jews in online fora. Consistent with the respective free speech and hate speech in a given complainant’s source country, the Ambassador’s office must help individual Jews all over the world pressure tech companies to take down content that makes Jews unsafe.

To be effective in the role, the Ambassador will have to put in extraordinary effort to build relationships from the very beginning of his or her tenure. The Ambassador should ask every State Department outpost across the world (embassies and consulates) to assign an antisemitism portfolio to one of their staffers, so that there is always a point person on the issue.

Next, the Ambassador will have to build deep relationships with the two organizations that are most plugged in to Jewish communities across the globe: Chabad and Moishe House. Though both organizations exist in central Jewish hubs such as Tel Aviv or London, they also service small peripheral Jewish communities, such as Phnom Penh and Almaty. As such, the intel provided by emissaries of Chabad and residents of Moishe Houses will be crucial in guiding the Ambassador to a clearer understanding of the pressing challenges on the ground.

There have already been rumblings about prospective nominees to the position, but nobody has come out as a clear winner yet.

Most recently, news coverage has converged on Nancy Kaufman as an option. Nominating Kaufman would be a grave mistake. Not only has she has garnered support from antisemitic organization “If Not Now” for her refusal to denounce the BDS movement, but her entire professional career has been oriented toward the domestic challenges of American Jewry, the only Jewish community on the planet that does not fall within the Ambassador’s purview.

Other names in the mix include holocaust historian Deborah Lipstadt, lawyer and Civil Rights activist Abe Foxman, philanthropy professional Karen Adler, and former Special Envoy Ira Forman. These four have many years of valuable experience, but it may be worthwhile for the Biden administration to look outside the box for a person with the creativity, energy, and fresh perspective to proudly represent the State Department in every corner of the planet where Jews are at risk.

David Benger is a research fellow at Harvard University. He is a recent graduate of Harvard Law School, where he served as the chapter president of Louis D. Brandeis Center for Human Rights Under the Law, and the Events Chair of the HLS Alliance for Israel, as well as an editor on the Journal of Law and Public Policy and the HLS National Security Journal. Read full bio here.

Israel Should Engage With the ICC Investigators

BY David Benger

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Last Friday, a three-judge panel at the International Criminal Court handed down a decision authorizing the ICC Chief Prosecutor to pursue an investigation of international crimes committed in the territory of the so-called “State of Palestine.”

The reaction from Israeli officials has been scathing. Chief among them, Prime Minister Netanyahu described the decision as “pure antisemitism,” and Minister of Strategic Affairs Michael Biton called it “a dangerous precedent.”

These reactions, though understandable, are not a reasonable response to the actual threat the ICC is likely to pose. As I wrote six years ago, Palestinian terrorists are more likely than IDF officers to be arrested and charged by ICC prosecutors.

Indeed, when the facts on the ground in the West Bank are applied to the laws that govern the ICC, it becomes apparent that should there be any charges brought by the ICC arising out of the situation in so-called “Palestine,” those charges will very likely be brought against Palestinian terrorists, not Israeli soldiers.

An ICC investigation, once launched, cannot be controlled or influenced by anyone other than the ICC professionals running the show. The fact that Palestinian officials and Palestinian-affiliated NGO’s were responsible for jumpstarting the investigation indicates nothing about how this process will go from here on out.

ICC investigators now have a mandate to investigate everything that occurred in the West Bank and Gaza since 2014.

Those who should be most frightened of the ICC now are Hamas and the Palestinian Authority, whose conduct offers up straightforward war crimes cases. Hamas, for example, stores weapons in civilian areas, routinely uses children as human shields, and indiscriminately targets Jewish civilians in Israel with acts of terror, from rocket attacks to arson.

For a more detailed analysis of Hamas’ violations of international law, read Colonel Eli Baron’s excellent analysis at the MirYam Institute, Part 1here and Part 2 here.

Meanwhile, the PA bankrolls the program colloquially known as “pay for slay,” providing financial compensation to the families of suicide bombers. These are all prosecutable crimes under the ICC charter, and should yield arrests of senior terror leadership.

Members of the Israeli military, conversely, are extremely unlikely to be prosecuted due to the IDF’s sophisticated court martial system. The International Criminal Court cannot prosecute anyone who has been investigated in good faith by a domestic criminal system (a concept known as the principle of complementarity), and so any Israelis who have been court martialed by the IDF will not face ICC prosecution.

So, why, then, have anti-Israel activists advocated so vociferously for an ICC investigation in the Palestinian territories?

There is one category of crimes which has captivated the imaginations of anti-Israel activists, chiefly because complementarity would play no role in the proceedings. The charter of the ICC criminalizes transferring, “by the Occupying Power of parts of its own civilian population into the territory it occupies.”

Certain activists believe this law can be applied to Israeli settlement activity in the West Bank. They are wrong.

First, lawyers for the State of Israel will argue that under settled principles of international law, Israel is not an occupying power. Under general principles of state formation (explained here by Avi Bell and Eugene Konotorovich), the West Bank has been a part of the State of Israel since 1948, notwithstanding Jordan’s short-lived military occupation there. Therefore, Israel is not an “occupying power” and cannot be charged with such a crime.

Second, the Israeli government’s financial subsidies for small villages in Judea and Samaria are far outside the intended scope of this prohibition. The drafters of this section of the ICC statute had in mind widespread and systematic war crimes and genocides during which large groups were moved about for the purpose of extinguishing minority sub-groups.

Indeed, an ICC investigation may be good for Israel in the long run. A thorough investigation carried out by a team of international professionals may finally alert the international community to Palestinians’ systemic and criminal violations of international law.

David Benger is a research fellow at Harvard University. He is a recent graduate of Harvard Law School, where he served as the chapter president of Louis D. Brandeis Center for Human Rights Under the Law, and the Events Chair of the HLS Alliance for Israel, as well as an editor on the Journal of Law and Public Policy and the HLS National Security Journal.

BRIEFING BY FORMER HEAD OF MOSSAD: MIRYAM ADJUNCT REFLECTIONS

BY David Benger

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On Monday, December 21st, the former Director of Mossad, Tamir Pardo, became the inaugural speaker of The MirYam Institute “Exclusive Speaker Series.” Pardo spoke eloquently, thoughtfully, and candidly about many leading issues of the day, and chiefly on three major topics. First, he discussed the JCPOA (Joint Comprehensive Plan of Action – commonly known as the Iran Deal). Next, he offered some thoughts on the Israeli-Palestinian conflict. And lastly, in response to questions from the audience, Director Pardo spoke about the challenges and opportunities the rise of China poses to Israel.

Before delving into these three key issues, however, Director Pardo began with an even more pressing question: What does Israel need to do to regain bipartisan support in the United States? It was a stellar question that I wish Director Pardo had tried to answer. He did not really address this issue in any depth. He noted that Israel is a sovereign nation, and it should not intervene in domestic politics. Moreover, he said, Israel must not be beholden to American interests or overly deferential to American requests.

When it came to the Iran challenge, Pardo’s expertise was in full gear. He presented three theoretical options for dealing with the approaching deadline for a nuclear-armed Iran.

Option one, he said, was a full ground invasion and destruction of weapons-making facilities, akin to the U.S. invasion of Iraq. Pardo immediately dismissed Option 1 as absurd, but ever the intelligence professional, he felt it needed to be voiced nonetheless.

Option 2 is to sit back and wait for the growth of pro-democratic revolutionary forces in Iran, and to support that revolution when it inevitably comes. Pardo was clear that he was speaking only of providing material assistance to a homegrown revolution in full stride, and never of fomenting revolution from the outside. History has shown that outside forces artificially stoking the flames of rebellion (especially in the Middle East) inevitably ends in catastrophe. But offering support to an ongoing revolution might just be ok. The problem with Option 2 is that you are at the mercy of Iranian domestic groups, and if Iranian nuclear scientists complete their work before grassroots activists’ revolt, Israel will have compromised the security of millions of her residents.

That leaves us with Option 3, which, according to Pardo is to negotiate with Iran, to dialogue with the Iranian leadership, and to convince them to change their opinion toward Israel, and reconsider their genocidal intent. Option 3, according to Pardo, is “the only option.”

Pardo claimed the greatest mistake made by President Obama’s negotiating team was to not open the agreement with full diplomatic relations between Iran and the United States. Paragraph 1 of Section 1 of the agreement, said Pardo, should have been a hearty declaration of mutual recognition and establishment of diplomatic relations, followed by immediate openings of reciprocal embassies in Tehran and Washington as well as multiple consulates in both countries.

The conversation retreated from the horizon problem of Iran to the existential problems Israel faces with regard to daily rocket fire from Hamas in Gaza, and various other terror cells in the West Bank, as well as the looming threat from Hezbollah on Israel’s northern tip in Lebanon. Here, Pardo made it clear that though the Abraham Accords are a positive development, they have nearly no impact on the Israeli-Palestinian status quo. Annexation of neighborhoods in Judea and Samaria was never a serious consideration by Prime Minister Netanyahu, according to Pardo. It was merely a feint meant to inspire negotiating partners in the UAE, Bahrain, and other nations to come to the table. And so, the Israeli-Palestinian conflict is no closer to being solved. Pardo was adamant that a one-state solution was untenable. Demographic trends alone would mean that in only a few decades, one state between the Jordan River and the Mediterranean Sea would be a majority Muslim Palestinian state.

At this point, moderator Benjamin Anthony opened the floor to audience questions. Pardo was asked, in particular, to characterize the growth of China from Israel’s perspective: Is China foremost a prospective trading partner? A military rival? Is China’s growth an opportunity or a threat from Israel’s perspective? Pardo answered succinctly, but clearly: “From my perspective, Israel’s priority is the United States. Israel should be careful not to cross the rules that the United States has set, because Israel could end up losing more than it gains.” Pardo indicated that Israel should be taking its lead from the Americans with regard to China, because the special relationship with the U.S. is Israel’s most important strategic asset.

It was not only a special treat to hear from a man of Tamir Pardo’s stature, but indeed a singular honor. The man has done far more than most to ensure that Jewish blood is no longer cheap. Pardo, in my esteem, was thoughtful, self effacing, analytical, and clever in his calculations of the geopolitical costs and benefits.

David Benger is a research fellow at Harvard University. He is a recent graduate of Harvard Law School, where he served as the chapter president of Louis D. Brandeis Center for Human Rights Under the Law, and the Events Chair of the HLS Alliance for Israel, as well as an editor on the Journal of Law and Public Policy and the HLS National Security Journal.

ISRAEL SHOULD APPLY SOVEREIGNTY AND REJECT THE TRUMP PEACE PROPOSAL

BY Benjamin Anthony & David Benger

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Regardless of how far-reaching or limited, immediate or gradual the process may actually be, Israel should apply sovereignty over the Jordan Valley, but it must not do so under the framework of the Trump peace plan. That plan, if implemented, exacerbates all of Israel’s present security concerns and leaves it with no discernible advantages. Israel’s sovereignty over the Jordan Valley must be decoupled from the Trump plan, therefore.

The extension of Israeli sovereignty is a policy consonant with the principled, decades-long held view of Israeli leaders that Israel must retain security control over the Jordan valley.

That bedrock of Israeli national security, combined with the continued growth of Jewish communities in Judea and Samaria, has increased the calls for international recognition of Israeli sovereignty in those areas, the recognition of which would enshrine Israel's national security imperatives in law and resolve the somewhat purgatorial status of Israelis who live there.  

Indeed, Israel should have recognized its own sovereignty over Judea and Samaria long ago, just as it did over the Golan Heights in 1981, but it has not yet done so. Instead, it has deferred any decisive legislative action vis-à-vis the Jordan Valley right up to the present day.

Absent an Israeli declaration, the Trump plan is now the voice most openly calling for the recognition of Israeli sovereignty in the Jordan Valley, something that has pleased many observers who value the importance of Israel affixing its eastern border. The unfortunate consequence of this is that the Trump administration seems a more strident supporter of the idea than do many Israeli policy makers.

A thorough analysis of the plan reveals that the concessions requested of the Israelis in exchange for American support of sovereignty extension are far too great for Israel to accept or work from as a basis for negotiation.

Heavily conditioned upon a change in Palestinian behavior though the plan is, it encourages negotiations on issues that Israel has long considered non-negotiable, to a degree that is unpalatable and unacceptable.

First: the question of Jerusalem. The Trump Plan explicitly proposes that the capital of a future Palestinian state is to be situated in East Jerusalem. It states:

“The sovereign capital of the State of Palestine should be in the section of East Jerusalem...and could be named Al Quds..Jerusalem should be internationally recognized as the capital of the State of Israel. Al Quds…should be internationally recognized as the capital of the State of Palestine." 

If Israel applies sovereignty to the Jordan Valley as part of the Trump plan, it will be doing so while knowingly elevating the partition of Jerusalem to a legitimate subject for negotiation. Jerusalem is the eternal and indivisible capital of the Jewish people. President Trump cannot be allowed to play King Solomon with that city.

Second, the plan explicitly calls for the establishment of a Palestinian state in Judea and Samaria. By applying sovereignty over the Jordan Valley as part of the deal, Israelis themselves will be party to a proposal that anchors a Palestinian state in the heartland of the Jewish people's ancient homeland.

This would expose Israel to a potentially belligerent Palestine perched atop the Judean hills. Such a Palestine would enjoy a topographical advantage over Israel's most densely populated civilian areas and industrial sectors, including Tel Aviv. 

This plan defies the ideological and religious principles of many Israelis who support sovereignty.

It wantonly ignores the pyrrhic price Israel could be required to pay, according to the plan itself, promoted as it is by a transactional American president who, beyond November, will be free from reelection considerations, and who will likely be in pursuit of a foreign policy legacy. 

Third, this plan dangerously resurrects the widely discredited “land for peace” strategy that harmed Israel’s security interests in the past and continues to do so in the present. It encourages further concessions of Israeli land, specifically in the Negev region, for the stated purpose of expanding the Gaza Strip.

Gaza has been a haven for terrorists since the Israeli withdrawal from the enclave in 2005. There is no evidence to support the idea that an expansion of Gaza’s borders into Israel will improve the situation. 

In essence, the plan offers Israeli land adjacent to the Gaza strip, that has been cultivated and inhabited by Israelis for a century – and which is in no way disputed – to an enemy state. It effectively calls for the affixing of Israel’s eastern border with Jordan, with whom Israel has a peace treaty, at the cost of further ensnaring over a million Israelis within a reality of continuing, sustained, indiscriminate rocket barrages from an ever larger launching pad to Israel’s west.

Israel’s first Prime Minister, David Ben-Gurion, stated that “It is in the Negev where the creativity and pioneering vigor of Israel will be tested.” Ceding Israeli land in that part of the country will destroy that vision.

In addition to the many flaws particular to the Trump plan, it’s high time that Israel disentangles itself from US-brokered peace processes writ large. Historically, peace deals brokered by Americans have not aged well for Israelis. Every concession to the Palestinians simply becomes the starting point for the next round of negotiations, while Israel gains nothing in return; not peace, nor quiet, nor international legitimacy.

No other sovereign nation awaits the permission of the United States of America when deciding its domestic affairs and priorities, as Israel has done. The parameters of the Trump plan prove that it is not in Israel’s interests to continue to do so, despite the long-standing bonds between the two countries.

If the American 'quid' is the recognition of Israeli sovereignty over land Israel already legitimately holds, Israel’s 'quo' must not be the division of its capital, the anchoring of a Palestinian state in its heartland, the ceding of further land, and the placement of its citizens in yet greater danger.  

Israel must reject the Trump plan outright. It only endangers Israel further. Instead, Israel should assert full effective civil control over the Jordan Valley, and arrive at the next negotiation from a place of strength. 

Benjamin Anthony, Co-Founder & CEO of the MirYam Institute, brings considerable experience and expertise to his position in the areas of substantive, policy driven dialogue and debate about the State of Israel throughout the international community. His portfolio includes the coordination of high level briefings by senior members of the Israel defense establishment - active and retired - to elected officials; including within the US Administration, the US Senate, and the US House of Representatives, on matters relating to the state of Israel and her strategic relationship and positioning in an international context.

David Benger is a 3rd year JD student at Harvard Law School. At Harvard, David is the chapter president of Louis D. Brandeis Center for Human Rights Under the Law, and the Events Chair of the HLS Alliance for Israel. He is also an editor on the Journal of Law and Public Policy and the HLS National Security Journal.