To the Senate of the Associated Students of the University of California, Berkeley (ASUC):
I am writing to encourage renewed support for Senate Bill 118A ("A Bill in Support of ASUC Divestment from War Crimes"), including the override of ASUC President Will Smelko's veto on March 24, 2010. The earlier passage of the bill by a 16-4 vote in the Senate has been widely hailed as a major step forward in the growing global campaign of divestment and boycott as a means of holding Israeli accountable for flagrant and persistent patterns of violating fundamental rules of international criminal law, as well as those portions of international humanitarian law applicable to military occupation. We have reached a stage in world history where citizens of conscience have a crucial role to play in the implementation of a global rule of law, and this initiative by Berkeley students, if implemented, will be both a memorable instance of global citizenship and an inspiration to others in this country and throughout the world.
I would agree that recourse to divestment and boycott tactics should be reserved for exceptional and appropriate circumstances. Such initiatives by their very nature deliberately interfere with the freedom of the global marketplace and the normally desirable free interplay of cultures, nations, persons, and ideas. There are several reasons why the circumstances of prolonged Israeli criminality resulting in acute suffering for several million Palestinians living under occupation since 1967 present such a strong case for reliance on the tactics of divestment and boycott.
First of all, it has become painfully clear that neither the United Nations, the United States, the actions of other governments, nor world public opinion are willing or able to persuade or pressure Israel to terminate policies that are both violations of Geneva Convention IV, governing occupation, and international criminal law, relating to both war crimes and crimes against humanity. At the same time, there is reason to believe that efforts by Palestinians to wage what might be called the Legitimacy War, are having a strong impact on Israel and elsewhere. It should be remembered that many of the conflicts of the last 75 years have been resolved by reliance on soft power superiority, which has more than compensated for hard power inferiority. In this respect the anti-apartheid movement, waged on a symbolic global battlefield, created a political climate that achieved victory in the legitimacy war that was translated, nonviolently, into a totally unexpected political outcome—the peaceful transformation of South Africa into a multi-racial constitutional democracy. The Palestinian solidarity movement has become the successor to the anti-apartheid movement as the primary legitimacy war of this historical moment. Berkeley’s participation by way of this divestment initiative thus takes account of the failure of governments and the international community to protect Palestinian victims of ongoing criminality, but also joins in a movement of solidarity that contains some hope of an eventual peaceful and just resolution of the underlying conflict allowing both peoples to resume a secure and normal life.
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It should be also noted that the people of Gaza have been subjected to an unlawful Israeli blockade that has for more than 32 months limited the entry of food, medicine, and fuel to subsistence levels, with widely reported drastic harm to physical and mental health of the entire population. There are two related points here: the allegations of criminality are abundantly documented, including by a range of respected human rights organization in Israel and occupied Palestine; and the U.S. Government has done its best to ensure the continuation of Israeli impunity and it has been complicit as arms supplier and as a country deferential to the blockade despite its gross and clear violation of the prohibition against collective punishment contained in Article 33 of Geneva IV. In this respect, as Americans we have an extra duty beyond that of those living elsewhere to support the global divestment campaign, thereby showing that our government does not speak for the whole society when it comes to the application of the rule of law to Israel and its political leadership.
Thirdly, by targeting General Electric and United Technologies for divestment, the Senate shows that it is not acting arbitrarily or punitively, but seeking to take action against corporations that are supplying precisely the weaponry used by Israel to impose its unlawful will on occupied Palestinian territories. Israel in legally dubious ways has relied on Apache and Sikorsky Helicopters and F-16 fighter bombers to mount periodic attacks against a variety of Palestinian targets, thereby abandoning its primary duty as an occupying power to protect the civilian population of an occupied territory.
Although most emphasis on criminality has been placed on Israeli policies toward the Gaza Strip, it is also relevant to note that Israeli policies on the West Bank and in East Jerusalem have consistently ignored the obligations imposed on an occupying power by Geneva IV, and have done so in a manner that has consistently undermined hopes for peace. Israel has continued to build and expand settlements, unlawful by Article 49(6) of Geneva IV prohibiting transfers of population of the occupying power to an occupied territory; the scale of these unlawful settlements, with some 121 settlements established on the West Bank alone and over 200,000 Israel settlers now living in East Jerusalem, has produced an aggregate settler population of about 450,000. Such a massive violation of international humanitarian law is serious on its own, but also creates a situation on the ground that has greatly diminished prospects for a viable Palestinian state or for the sort of withdrawal from occupied Palestine that had been unanimously decreed by the UN Scecurity Council in its famous Resolution 242 way back in 1967.
A final expression of Israeli lawlessness can be noted in its continued construction of a separation wall on occupied Palestine land despite a 14-1 judgment by the International Court of Justice (ICJ) that the wall was unlawful, should be dismantled, and Palestinians compensated for the harm done. It is notable that the ICJ is a diverse and respected international institution that rarely reaches such a level of unanimity on controversial issues. Unfortunately, less notable is the fact that the sole dissenting judge was the American judge, and that the U.S. rejected the judicial authority of the ICJ in relation to the wall without even bothering to refute its legal reasoning. Although the judgment was in the form of an ‘Advisory Opinion’ it represented a detailed and authoritative assessment of applicable international law that was endorsed by an overwhelming vote of the UN General Assembly. Consistent with its attitude toward international law, Israel immediately expressed its unwillingness to abide by this ICJ ruling, and has continued to build segments of the wall, using excessive force to quell nonviolent weekly demonstrations by Palestinians, Israelis, and international activists at construction sites. To give perspective, if the Soviet Union had constructed the Berlin Wall in such a way as to encroach on West Berlin by even a yard, it would have almost certainly have caused the outbreak of World War III.
I hope that I have demonstrated that divestment is justified in light of these realities. Israel has consistently defied international law. The United States Government has been unrelenting in reinforcing this defiance, and is a major facilitator through its overall diplomatic, economic, and military support. The international community, via the UN or otherwise, has been unable to induce Israel to respect international humanitarian law and international criminal law. With such a background, and in light of an increasingly robust worldwide movement supportive of divestment, it seems both symbolically and substantively appropriate for Berkeley to divest from corporations supplying weaponry used in conjunction with Israeli criminality. Such a decision taken at the behest of students at one of the world’s leading universities would send a message around the world that needs to be heard, not only in Israel but in this country as well. It also shows that when our government cynically refuses to uphold the most fundamental norms of international law there is an opportunity and responsibility for citizens to do so. I salute the members of the Senate (and their supporters in the Berkeley community) who vote to override this ill-considered veto of Senate Bill 118A.
Albert G. Milbank Professor of International Law & Practice Emeritus, Princeton University
(since 2002) Visiting and Research Professor, Global Studies, UCSB
Special Rapporteur for Occupied Palestinian Territories, UN Human Rights Council
On March 18, UC Berkeley's student senate voted 16 to 4 to divest from General Electric and United Technologies as part of a Divestment campaign against Israel's illegal occupation and the attack on Gaza.
The Senate president vetoed the bill despite the massive support for divestment.
Join Hon. Archbishop Desmond Tutu, Noam Chomsky, Naiomi Klein, Jeffrey Blankfort, Prof. Richard Falk and others in supporting the divestment. The final decision will be made tomorrow, Wednesday April 14 at 7pm PST, when the veto can be overturned with just 14 votes.
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