NYU’s Selective Defence of Academic Freedom

by Kevin Jon Heller

John Sexton, the controversial President of NYU, has spoken out against the American Studies Association’s much-debated resolution in favour of boycotting Israeli universities. Here is his statement, issued jointly with NYU’s provost:

We write on behalf of New York University to express our disappointment, disagreement, and opposition to the boycott advocated by your organization of Israeli academics and academic institutions.

This boycott is at heart a disavowal of the free exchange of ideas and the free association of scholars that undergird academic freedom; as such, it is antithetical to the values and tenets of institutions of advanced learning.

I have no desire to wade into the debate over academic BDS, other than to say I’m generally wary of academic boycotts, but find it distressing that those who criticize the ASA for undermining academic freedom somehow never get around to criticizing Israel for its ongoing repression of Palestinian academics and students.

That said, NYU is the last university that should be issuing flowery defences of academic freedom. As Anna Louise Sussman points out in The Nation, President Sexton has not only refused to criticize the repression of academics in the UAE, where NYU has a campus, he has made statements that actually justify that repression:

Since April 8 the Emirati government has arrested five prominent Emiratis—activists, bloggers and an academic—for signing a petition calling for reform, and thrown them in jail, where they remain to this day. They are being held without charges, although they are in contact with their families and lawyers.

[snip]

Dr. Christopher Davidson, a reader in Middle East politics at Durham University who specializes in the politico-economic development in the Gulf, believes that by arresting people like Professor bin Ghaith, a high-profile academic, the government hopes to show that no one—no matter how connected they are—is beyond the government’s reach. Even Professor bin Ghaith’s connections to Paris-Sorbonne couldn’t save him, although Davidson chalks that up to the Sorbonne’s notable lack of response.

[snip]

According to NYU sociology Professor Andrew Ross, who has been an outspoken critic of the university’s involvement in the autocratic city-state, NYU president John Sexton recently told a group of concerned faculty members that he had reason to believe those arrested were a genuine threat to national security, something that Professor Lockman finds “particularly shocking.”

“He suggested that these people were genuinely subversive and deserving of arrest, although human rights organizations, of course, have a different take,” said Lockman. “This kind of toadying to the crown prince and his ilk shows the hollowness of NYU’s role in this place.”

Ross and his colleagues at the New York chapter of the American Association of University Professors sent a letter addressed to Dean Sexton and Vice-Chancellor Al Bloom, warning that “Silence on this serious issue will set a precedent that could also have ominous consequences for the speech protections of NYUAD faculty.”

Apparently, academic freedom is important to NYU only when it’s Israeli academics whose freedom is at stake. The academic freedom — and actual freedom — of academics in states in which NYU has business interests? Not so much.

Hat-Tip: Max Blumenthal.

NOTE: For more about President Sexton’s unwillingness to defend academic freedom in the UAE, see this essay in The Atlantic. The articles notes that, ironically, the UAE discriminates against Israeli students who want to study in the country.

http://opiniojuris.org/2013/12/27/nyus-selective-dedication-academic-freedom/

42 Responses

  1. I’m wholeheartedly in favor of the BDS, including the academic boycott part of the campaign. I want to make several basic points. Anyone expressing an opinion on the matter should at the very least read the available literature (which includes two books, one by Omar Barghouti and an edited volume Audrea Lim published by Verso) that explain the reasons for the BDS in general, including the specific justification for the academic boycott. Presumably, such an individual will already be acquainted with at least some of the (now considerable) literature on the Israeli-Palestinian conflict.
     
    Keep in mind that boycotts are often tactics of last resort, reflecting frustration and apparent failure of many other strategies, tactics, and measures, be they violent or nonviolent, to achieve a group or movement’s goals. And let’s not forget that the BDS movement has deliberately made a strategic if not principled choice for nonviolent strategies and methods which, apart from particular periods and places (still conspicuously unknown or insufficiently appreciated by most parties and observers) in the history of the conflict, has not been the preferred means of struggle for the Palestinians. Continued failure on this score will only give more ammunition to those who argue the Israelis can only be moved by violence.
     
    Be that as it may, let’s not forget that the “PACBI [Palestinian Campaign for the Academic and Cultural Boycott of Israel]-inspired calls for boycott consistently target institutions, not individuals, steering clearly away from political tests or other McCarthyist measures. [….] Events and projects involving individuals explicitly representing these complicit institutions should be boycotted. By the same token, mere institutional affiliation to the Israeli academy is therefore not a sufficient condition for applying the boycott.”

  2. Patrick,

    Your points are well taken, and I could’ve pointed out that President Sexton’s statement incorrectly claims academic BDS applies to individuals as well as to institutions. That said, PACBI does not keep them as separate as they claim — or as they should. On the contrary, I find principle 12, which includes the following in the boycott, very troubling:

    Advising on hiring or promotion decisions at Israeli universities through refereeing the work of candidates, or refereeing research proposals for Israeli funding institutions. Such services, routinely provided by academics to their profession, must be withheld from complicit institutions.

    This boycott directly harms Israeli academics, not Israeli institutions. PACBI should eliminate it.

  3. Kevin, I’m not sure about the need for its elimination if only because it seems there will always be a fair number (at present it may be the vast majority) of academics who refuse to participate in the boycott and I also strongly suspect the institutions concerned will take this condition into consideration in such decision-making (there may even be the danger of over-compensation!): in other words, would-be academics will still be accorded ample opportunity to proceed with their careers. However, let’s assume for the sake of argument that some individuals will in fact be harmed: boycotts of all sorts invariably harm (some) innocent individuals, and there’s no getting around that fact, although if the cause of such harm is readily avoidable without diluting the substance of the boycott in question, an argument can be made for its removal. Those such as yourself concerned about no. 12 can certainly argue their case to Barghouti and others responsible for the boycott, but I do not think opposition to this feature of the boycott (or the refusal to eliminate it) should amount to sufficient to oppose the academic boycott itself (in this case, I would fall back on consequentialist or utilitarian reasoning).

  4. erratum: “should amount to sufficient reason…..”

  5. Let me also point out NYU’s former boycott of Coca-Cola products, as well as its attempt to remove its Chick-Fil-A restaurant.
    Frankly, I see a boycott-divestment as entirely legitimate as a political tactic, but supporting or opposing such actions should be honestly and openly proclaimed as the university taking sides in a political battle.  The problem is that universities, and NYU in particular, claim neutrality in some cases (at NYU, when clamping down on speech it does not like), and claim heroic political stands in other contexts (at NYU, when supporting the leftist cause du jour, opposing military recruitment, for example).
    The reality is that “academic freedom” is only ever bandied about when a university has already decided its position on a subject.
     
    Disclosure: former TA for Sexton, as well as a former lawyer with FIRE– have written tangentially on this subject before: http://thefire.org/article/14656.html.

  6. First, it is a little amusing to see a comment that one should read “the literature” before commenting on this, where “the literature” includes (at the very least!) two books.  This sounds at best snobbish, and at worst an attempt to stop contributions to the debate from someone who has a basic knowledge of the situation and a healthy moral sense but might not have engaged in the right-think needed to read “the literature.”  Anyone with any sort of common sense should know that there is more than enough blame to go around between the Palestinians and the Israelis.
    Which common sense brings me to the second point.  Has anyone suggested a boycott of, per se, Palestinian academic institutions, on the sole ground of their being Palestinian?  On the grounds of, by that mere fact of being Palestinian, being affiliated with that part of the aforementioned blame going around which attaches to those acting on behalf of the Palestinian cause?  Just curious.
    Third, this is a pretty unpersuasive blog post as a whole.  You don’t need to condemn every undeniably bad X as a prerequisite to being allowed to condemn an undeniably bad Y.  Unless perhaps your job is professional condemner–which NYU is not, nor does it have a full time condemnation ombudsman.  Being able to condemn one Y without condemning all X is especially useful when you believe the Y (BDS) more directly impacts you, your students and faculty, and your interests than the X (any Israeli academic oppression of Palestinians).  
    Furthermore, with regard to bin Ghaith and the “UAE Five”, NYU explicitly stated that it does not issue positions on subjects like this.  You could reasonably argue that arrests for public petitions by a separate country (even one where you have an academic outpost) are more remote than something like BDS, which actually tries to govern domestic NYU’s direct relationship with academics.  Thus, NYU can condemn BDS without being obliged to condemn the more remote UAE Five arrests.  There is no need to ascribe to NYU an extreme pro-Israel stance or any sort of hypocrisy (that “NYU should be the last university to issue flowery defenses”); merely a certain selectiveness about how proximate something has to be before they condemn it.
    It might also have been helpful to not cite an old article stating that the academics were held “to this day,” without mentioning that the UAE Five were immediately pardoned and released.
    As a general matter, you can’t just read into the lack of condemnation of something that a person somehow supports it or is affiliated with it.  Even if you find a very vague quote by one extremely ardent critic (Ross), making a claim without context about a purported Sexton statement that sounds bad.
    Penultimately, one obligatory laugh at academic pretensions: read the final quote in the Sussman-Nation article by Dr. Davidson, and just try to imagine the fright UAE would take if–*gasp*–the Louvre were to take a strong stand on something.
    And ultimately, I read a fair bit of the linked literature at NYACT.  It’s pretty unpersuasive on the claim that there is any targeted discrimination against Palestinian academics and students.  It’s all just the general claims of suffering that would be made by anyone living under a situation labeled as occupation, applied specifically to academics.  Students have a hard time getting to classes: well, everyone purportedly has a hard time getting anywhere.  Professors have a hard time getting visas: well, everyone does.  It reminds me of that old joke: “World destroyed; blacks, poor hardest hit.”  It seems a little misleading to say (or at least imply) that Israeli is specifically persecuting academics.  Misleading, and actually a bit self-centered.

  7. Fox,

    I’m glad you are not one of those people who condemn criticism of Israel because there are worse states in the world. As you say, “You don’t need to condemn every undeniably bad X as a prerequisite to being allowed to condemn an undeniably bad Y.” 

  8. I suppose I agree it’s probably foolish to condemn people for criticizing state N-1 in a group of N states just because state N is behind it. (Assuming N is at least moderately large.)
     
    Strictly speaking, though, I think I could still believe that Israel is the best state in the world and be consistent with what I said above.  If “You don’t need to condemn every undeniably bad X as a prerequisite to being allowed to condemn an undeniably bad Y,” then it probably follows a fortiori that you certainly don’t need to condemn every deniably bad X first.  So the ranking of Israel in the world good-bad standings probably isn’t a premise in my argument.
     
    I thought the thrust of the argument was pretty clear: if condemnation correlates with proximity of interests, there’s no need for charges of hypocrisy.  Unless, again, your job is professional condemner and you have sufficient time to get around to condemning everything below N=1.
     

  9. I would like to reword my poorly phrased second point, though, relating to the common sense that there is enough blame ‘to go around’ to sufficiently tar both the Palestinians and Israelis.
     

    “Which common sense brings me to the second point.  Has anyone suggested a boycott of Palestinian academic institutions, on the sole ground of their being Palestinian?  Such a boycott would be based on the charge that, by the mere fact of being Palestinian, they are per se affiliated with the blame ‘going around’ which attaches to those acting on behalf of the Palestinian cause?  Just curious.”

  10. “Students have a hard time getting to classes: well, everyone purportedly has a hard time getting anywhere”: this confirms that the author never lived in his life more than one day in the Palestinian Territories.
    “Has anyone suggested a boycott of, per se, Palestinian academic institutions, on the sole ground of their being Palestinian?”: Misleading. The boycott is not, per se, because these are Israeli institutions, but instead because Israel, against the opinion of the entire international community and the local majority, is continuing to exploit the local natural resources, keeping hundred of thousand of people without any civil rights. Point A is what Israel is doing since decades. Point B is that BDS, with which I agree only on some issues, is targeting Israeli institutions. Without A there would not be B. If the non-member state of Palestine would start to exploit the natural resources in Israel, building settlements in it, “a boycott of Palestinian academic institutions” would be acceptable. 
    Finally, A word about the notion of “no pre-conditions”, not directly addressed in your post but pertinent to the broader discussion. When an American or an Israeli official uses this phrase, what he/she actually means is “no pre-conditions for Israel,” since both Israel and the administration pose many pre-conditions for the Palestinians. The most basic ones are to abandon armed struggle (both in action and as a formal policy) and to recognize Israel. This is, after all, the reason Hamas is kept out of the political process. At the same time, Israel was never asked to formally recognize the Palestinians’ right to this land, nor has its government ever voted in favor of the two-state solution nor demanded that a settlement freeze last more than a brief moment.

  11. Maon, I don’t understand your point regarding (the factually inaccurate) exploitation. There are plenty of things the Palestinians have been doing that would warrant boycotts (such as glorifying terrorism). Would we now be discussing boycotting per se?
    Either way, my experience being part of an Israeli university delegation would appear to demonstrate that boycotts are often directed against Israelis for merely being Israelis – but we’ll assume that doesn’t reflect the BDS consensus.
    I’m really not sure how “no preconditions” arose in the current discussion, but I’m even more unsure what’s illegitimate about demanding a halt in terrorist activity in the process of negotiations. It appears there is an attempt here to compare severe and blatant human rights violations to much more disputed and controversial international legal questions.

  12. Ori, you write “I don’t understand your point regarding (the factually inaccurate) exploitation”. Even today, as confirmed by this video (link below) filmed by European and Israeli activists, dozens of quarries are currently active in the West Bank, providing some 12 million tons of stone, gravel, and dolomite annually, 75 percent of which is used for construction inside Israel (not to mention water). http://electronicintifada.net/blogs/adri-nieuwhof/cemex-tries-reason-away-complicity-israeli-violations-international-law
     
    The comparison with “glorifying terrorism” is baseless. No one claims that Israel should be pressured or boycotted just because Rabbi Yitzhak Shapiro and others claim  that “it is permissable to kill the Righteous among Nations even if they are not responsible for the threatening situation”. 
    The occupation of the PT is a state funded project. And settlers, in themselves, are not guilty of anything.
    The “preconditions” point is part of a discussion that we had in another post on OJ.
     

  13. The Hat-Tip to Maxie B. actually says it all.

  14. Maon, I would actually suggest reading the judgment one of the biased sources regards. In that case, the HCJ thoroughly discussed the issue and found a balance between the relevant competing interests (on the assumption that the law of belligerent occupation applies).
     
    Regarding Yitzchak Shapira, I’m afraid the point ignores one of the basic principles of international law: “a State is responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf“.

  15. “Regarding Yitzchak Shapira, I’m afraid the point ignores one of the basic principles of international law: “a State is responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf“. Ori, I am afraid you didn’t understand. Your sentence proves my point.  You made the example that “glorifying terrorism” is one of the reason why Palestinian institutions “would warrant boycotts”. I meant that one or several persons that “glorify terrorism” or the sentences of Yitzchak Shapira and other extremists are irrelevant and cannot be compared with a state funded project.
    Funding new settlements and funding new settlers to move in the OPT does not have anything to do with “relevant competing interests”. Please read Rome Statute’s OJ on the issue.

  16. I am glad that Kevin Heller and the Nation article refer to the United Arab Emirates. This is one of the world’s wealthier states per capita and also owns a huge mass of capital. Somehow all of our anti-imperialists forget that, according to Lenin’s definition, imperialism was an outgrowth of huge amounts of capital. Lenin may or may not be right in his definition of imperialism [in Imperialism: The Highest Stage of Capitalism] but working conditions in the UAE and the Persian Gulf sheikdoms are reputed to be very bad. Indeed, from what I see living in Israel the working conditions for Arab workers from Judea-Samaria working in Israeli enterprises are much better than those for the millions of foreign workers, especially the Asians, in the Persian Gulf.
    Now, if the state of academic freedom in the UAE is as Heller and the Nation article say and if boycotts of universities are legitimate, then what Kevin Heller forgets is that logically, the ASA should be boycotting the universities of the United Arab Emirates, before even getting to Israel. The writers in the Nation, etc, also fail to reach the logical conclusion. Furthermore, if universities in Israel are damned for supposedly cooperating with government policy re the Palestinian Authority and the territories it claims in Judea-Samaria, then why are the ASA and other boycotting academic bodies  not boycotting US universities which surely collaborate with their government’s foreign policy in many cases? I remember a poli sci prof at Temple U in Philadelphia during the Vietnam war who drew up a governmental structure for South Vietnam on a USG commission. So why don’t the ASA and the Native Peoples associations boycott American universities?
    So, yes, boycotting Israel on the false premises asserted by the ASA is Judeophobia. But even if the charges against Israel were true, it would be unjust to single out Israel.
    Moreover, the whole charge of occupation directed at Israel as an accusation is a red herring. It neglects the relevant history. When Germany, Austria and Japan were occupied by the USA, USSR, UK and France after WW2, nobody complained. Indeed, huge Japanese territories (Sakhalin Island, Kurile islands) are still occupied by Russia and nobody talks about it or complains about it or boycotts over it, except some Japanese I suppose.
    Even closer to Israel is the situation of Cyprus, about 35% occupied by Turkey and 4% occupied by the UK [the UK occupies by treaty with Cyprus]. Some 200,000 Greek Cypriots were driven from their homes in the 1974 Turkish invasion. Yet few complain but for Greeks and Greek Cypriots. The EU even collaborates with the Turkish-sponsored Northern Cyprus Republic, according to Prof Kontorovich’s research. Yet no boycotts for Turkey. Why not? Probably because of the favoritism for Muslims which has infected the Left since Stalin issued his Appeal to Muslim Toilers in 1917.
    As I point out above, this favoritism is wholly inappropriate now when half a dozen Muslim states have a higher per capita income than the USA. Edward Said’s apologetics for Islam only reinforced an existing tendency in Western academia. The favoritism for Islam lets Arab spokesmen like Maon overlook the more than 1000-year subjection and humiliation of Jews under Muslim rule as dhimmis, including in Israel, plus overlooking the bigotry against Jews inherent in Muslim tradition.

  17. Maon, The comparison doesn’t seem to apply. Palestinian leadership and governmental organs celebrate terrorists (see e.g. here and here).
     
    The Rome Statute’s provision on “indirect” transfers is certainly not customary and therefore irrelevant. In any event, arguing that many Israeli settlements are illegal contradicts the general principle of ex injuria jus non oritur.

  18. Elliott,
     
     
    “what I see living in Israel the working conditions for Arab workers from Judea-Samaria working in Israeli enterprises are much better than those for the millions of foreign workers”: palestinians are not foreign workers, but the local majority under occupation. The “foreigners” in the OPT are mainly the one funded by the State of Israel.
     
    If want your “judea-samaria” push the State of Israel to give back the coast between Ashkelon and Ashdod that was not occupied by the “israelites” for 1 single day in its entire history. Otherwise you risk to be selective.
     
    “When Germany, Austria and Japan were occupied by the USA, USSR..”: Palestinians, contrary, to Germany (or Japan), are not responsible for the explosion of WWII. And German refugees, contrary to the Palestinian ones, had at their disposal a huge country called Germany. This did not erase their traumas, but it made a big difference.
     
     
    “1000-year subjection and humiliation of Jews under Muslim rule”: true, by modern standards the one of ‘tolerance’ is an an ‘intolerant concept’. But the situation was not white and black as you would wish. First, Jews were treated in a extremely different way under Sunis than under Shias. Not by chance when Maimonides was expelled from Spain he decided to go to Egypt, and not to France or to England, under Saladin. Saladin so respected him that he appointed him as the president, the “Nagid,” of the Jewish community in Egypt, an official post in the government.
     
    “I believe – wrote in 1857 British consul James Finn (1806-1872) – there are few countries in the world where in spite of appearances to the contrary, there is so much of practical religious tolerance as in Palestine”. William T. Young, Finn’s predecessor, wrote in 1839 that a Jew in Jerusalem was not considered “much above a dog”, but added that in case of danger a Jew would have found a shelter “sooner in a Mussulman’s house than in that of a Christian”.
     
    I could continue for a few hours on this, but my impression is that you need your barbarians. That’s your way to justify the reality.
     
     
     

  19. Maon, indeed, Christians were often very intolerant of Jews. I do not aim to determine which religion treated Jews worse than the other. However, our great teacher Maimonides believed that Arabs/Muslims treated Jews worse than Xians did, although Maimonides did serve as a physician to Fatimid rulers. And he was the official leader of the Egyptian Jewish community as you point out.
    Now on Israel and the Judea-Samaria areas (also called the West Bank). Jews are the majority in those two areas together. Moreover, Jews have been the majority of the population in Jerusalem since the mid-19th century, since 1853 at least. And Arab irregular forces began driving Jews out of their homes in parts of Jerusalem, Haifa and Tel Aviv in December 1947.
    You write: “Palestinians, contrary, to Germany (or Japan), are not responsible for the explosion of WWII.” They were not responsible for starting the war. However, As to Arab and Palestinian Arab participation in WW2, it is well-attested that most of the Arab nationalist movement was pro-Nazi. Pogroms against Jews took place in Baghdad in 1941 in a pro-Nazi atmosphere, while the German occupation of Libya saw pogroms against Jews there in 1943. The chief Palestinian Arab leader, the British-appointed mufti of Jerusalem, Haj Amin el-Husseini, spent most of the war years in Berlin and urged the Germans and their allies not to let Jews escape the Holocaust by leaving the Nazi-fascist domain. He broadcast over Radio Berlin, urging Arabs and other Muslims: “Kill Jews wherever you find them.” When he met Hitler 28 November 1941, he was pleased when Hitler told him that the Germans intended to “solve the Jewish Question” in the Arab countries.
    So the Palestinian Arabs cannot be considered innocent in the Holocaust.
    On the Ashqelon-Ashdod coast, it was part of the Kingdom of Judea, Herod’s kingdom, recognized by the Romans.

  20. Elliott,
     
    Your Nazi-Palestinian parallel (“Palestinian Arabs cannot be considered innocent in the Holocaust”), through Hajj Amin Al Husayni, is historically flawed. I suggest you to go a bit deeper on this:
    “Hajj Amīn al-Ḥusaynī – the «Grand Muftī of Jerusalem» – is often portrayed as the legitimate representative of the Palestinian people in the first part of XX century. Due to his collusion with Nazism, such a position implies that the Palestinian people are, at least in principle, responsible for their own tragic destiny. This study challenges that assumption and sheds light on how and why the Grand Muftī was imposed on the Palestinian people by London. Analyzing the rise to power of Hajj Amīn al-Ḥusaynī and the means granted to him is crucial for understanding the ways through which the British authorities related to the local realities in post-World War I Palestine and to what extent these practices have marked the subsequent development of Palestinian society.” http://www.storicamente.org/05_studi_ricerche/al_husseini_kamel.pdf
     
    Furthermore, the Handschar (Hajj Amin’s Nazi division) was composed by Bosnian and Serbian Muslims, and by Catholic Croatians. No Palestinians. On the contrary, 6000 Arab Palestinians joined the British army in 1939 to fight the powers of the Axis. Again, it seems that you need your barbarians to justify the reality.
     
    “On the Ashqelon-Ashdod coast, it was part of the Kingdom of Judea, Herod’s kingdom”: 
    wrong. This is a map of Herod’s Kingdom: http://www.jewishvirtuallibrary.org/jsource/History/herodmap.html
     
    The numerous archaeological expeditions carried out over decades in Ashkelon – one of five ancient Philistine cities, which today encompasses what was, until 1948, the Palestinian village of al-Majdal – have confirmed that it was never conquered by the ancient Israelites. One verse in the Book of Judges seems to refute this, indicating that the area was conquered and subdued for a handful of years, but this verse itself is contradicted in the very same chapter of the Book. And even if one assumes that there was a conquest, the occupation of an area for a few years does not mean that it represented part of the “historic Jewish homeland.” Otherwise, the many Philistine raids and sometimes occupations of Israelite towns as far east as the Jordan River valley would also make these areas “less” Israelite.
     
    Finally, I find strange your reference to king Herod. King Herod, a great builder and bloody monster, was not even a real Jew. He belonged to the people of Edom, who had only recently been forcibly converted to Judaism. I doubt whether the present Chief Rabbinate would have recognized him as a Jew and have allowed him to enter the country, marry a Jewish woman or be buried in a Jewish cemetery.
     
    In the area “also called the West Bank” Jews are not, contrary to what you claim, the majority. Furthermore, most of them are immigrants of these last 10/20 years. And BTW, jews were given Judea and not Samaria. Jews descend from Judah, and not Ephraim, Manasseh etc. who were ancestors of Samaritans. Most Samaritans converted to other religions after VI-th century, and the largest number of both Samaritans and their descendants is in area of Nablus. Samaritans were not affected by the expulsion of Jewish rebels by Romans and their population was large enough that they rebelled when Byzantines tries to forcibly convert them to Christianity in VI-th century.
     
    “Moreover, Jews have been the majority of the population in Jerusalem since the mid-19th century, since 1853 at least”: Joseph Schwarz wrote in 1850 that in Jerusalem there were 7.500 Jews, 15.000 muslims e 10.000 christians. In the same year James Finn wrote that “Jews greatly exceed the Moslems in number”. So the numbers are unclear. For sure most of the christians were Arabs and thus Jews became an absolute majority 3 decades later. The only important thing is that Uru-Shalem, the city mentioned as such in the Egyptian Execration texts in the XVIII BCE, did not belong to 1 single people for its entire history. This is (also) why has to be shared.
     

  21. Ori, no clear to me how the sentence of a politician (non elected and functional to keep the occupation alive) that celebrates the releasing of persons that were in prison for more than 20 years – persons that I would have preferred to remain in jail – should be a reason why Palestinian institutions “would warrant boycotts”. Dozens of Israeli elected politicians uttered extremists and racist speaches, but no one image to boycott or sanction Israel just for this (and rightly so, otherwise half of the states of the world would face the same). Amira Hass: “If anyone in the world had called Israel an “abscess,” we would have generated a wave of protests, and learned scholars of anti-Semitism would lecture about the vocabulary that the Nazis borrowed from pathology and microbiology (the same holds for Mahmoud Ahmadinejad ). But when a deputy prime minister of Israel and a member of the Labor Party used a clinical metaphor to talk about the Gaza Strip this week (“Gaza is an abscess, troublesome pus” ), no one got upset. We are always allowed to do what others are not.” 
    Israel is pushed to comply with international consensus and law for its actions and state funded projects, not for the statements of some of its (elected) politicians.
     
    The Rome Statute reflects customary international law and represents, at least, opinio juris of about 160 states. 
     
    Nazmi Jubeh: “Any Jew who wants to live in our community, following the rules which this entails, must be free to do so. It’s quite a different story, however, to request that the settlers who arrived here by force and in defiance of international law can ipso facto be entitled to see their actions justified. In other words, those who want to live in a future Palestinian state must do so under the law and not as colonialists. When Israel was created, the Palestinians were already here, and accounted for the vast majority of the local population. This is why there are now over one million Palestinians in Israel, many of whom are known as ‘internally displaced persons’ [IDPs]. In constrast to this, settlers arrived in the Palestinian territories through violence and incentives received in recent years from Israeli governments. Equating the former to the latter is not only simplistic, but also morally reprehensible.”

  22. Maon, regarding the Rome Statute, I’m unaware of how the mere ratification of 160 States demonstrates the existence of custom. When a State ratifies a treaty, it constitutes an act of State practice and opinio juris. However, in order to demonstrate custom, practice must be continuous, consistent and of duration. This is currently lacking in the context of the “indirect” transfers. Moreover, upon seeking to determine the existence of custom, of pertinence is the practice of the most affect States. This is lacking in our context as well (Israel, Turkey, Armenia, Azerbaijan, Russia, China, Morocco etc.).
     
    I’m unsure about the genuineness of the source concerning a junior member of a previous government. Additionally, considering Israel is a multi-party democracy, I’m unsure how one can deduce from the fact that someone’s an elected member of parliament reflects the views of the State. However, I’m even less sure who the Palestinian legitimate leader is, considering the international community endorsed the PLO as the Palestinians’ representative and on that basis exists the PA.

  23. Hajj Amin al-Hussaini represented the Palestinian Arab national consensus, had the backing of the Palestinian political parties that functioned in Palestine, and was recognized in some form by Arab governments as the voice of the Palestinian people
    Maon, I am glad that your source correctly asserts that Husseini was appointed mufti of Jerusalem by the British administration of the country against the will of the panel of Muslim scholars traditionally charged with choosing new muftis. In fact, this has long been the contention of Zionist historians, such as Joseph Schechtman in his bio of Husseini, The Mufti and the Fuehrer [New York circa 1965]. So one might call Husseini a creature of British imperialism.
    Nevertheless, your source does not deny that Edward Said wrote the quote above. Said is saying that Husseini was in fact a genuine representative of the Palestinian Arabs. So it turns out that they were responsible for his work for genocide of the Jews, although he was made mufti by the British.
    It turns out also that the British Empire bears a lot of guilt for the Arab-Israeli conflict as well as for the Holocaust. Maybe a lot of things would have turned out for the better were it not for British policy. But that is another issue.

  24. Elliott,
    You didn’t read “my source” because it explicitly deals with what you wrongly claim (“your source does not deny that Edward Said wrote the quote above”). Please read better:
    “[..] Dershowitz strengthened his point of view by proposing the following passage: «Even Professor Edward Said believes that [Dershowitz begins to quote Said] “Hajj Amin al-Hussaini represented the Palestinian Arab national consensus, had the backing of the Palestinian political parties that functio- ned in Palestine, and was recognized in some form by Arab governments as the voice of the Palestinian people”» [Dershowitz 2003, 56]
    [...] Ironically, the passage from which Alan Dershowitz extrapolated the sentences of Edward Said, quoted at the beginning of this article, comes from a book called, «Blaming the victims». At this stage of the present analysis it is appropriate to clarify that that quote was the result of manipulation.
    Said’s opinion has been distorted to support a theory that he would not have agreed with: «This committee [the Arab Higher Committee], – this is the complete sentence written by Said – chaired by Palestine’s national leader, Hajj Amin al-Hussaini, represented the Palestinian Arab national consensus, had the backing of the Palestinian political parties that functioned in Palestine, and was recognized in some form by Arab governments as the voice of the Palestinian people» [Said and Hitchens 1988, 248].
    The subject of the sentence, therefore, was the Arab Higher Committee, not Hajj Amīn al-Ḥusaynī. The Arab Higher Committee, created in 1936 without an elec- tion and with «shallow roots among the population» (Uri Avnery dixit), represented «the political voice of the Palestinian people» to a limited extent, inasmuch as it was composed of representatives from several local families (Ḥusaynī, Khālidī, Nashāshībī, Ghusayn, Hādī, Salāḥ and others). If Hajj Amīn al-Ḥusaynī, who not coincidentally was the mind behind the initiative, was elected to lead this com- mittee, it was only thanks to the aspects analyzed in this article. At that point, no other leader would have had the strength and political weight required to oppose such a choice or aspire to that office. [...]
    http://www.storicamente.org/05_studi_ricerche/al_husseini_kamel.pdf

  25. Ori, 
    As you correctly claim, “when a State ratifies a treaty, it constitutes an act of State practice and opinio juris.” Rome Statute reflects/confirms an OJ that is continuous and consistent.
    We discussed this topic several times. Your point i close to Eugene’s claim, to which I cannot but answer with Jordan’s words: the preamble to the Rome Statute contains no such phrase and, instead, notes affirmations, determinations, and recollections with respect to “crimes” and responsibilities that exist, etc. Article 5 speaks of “crimes of concern to the international community as a whole,” which, of course, would be crimes under customary international law over which there is universal jurisdiction among states.
    The issue of whether the Jewish settlements are contrary to Article 49(6) has already been(correctly) decided by the ICJ in its advisory opinion from 2004.
     As for “the junior member of a previous government”, I could provide you a few dozens of somehow similar quotations, of top and minor political figures. The point is that these quotations are meaningless, for Pals and well for Israelis. Again, Israel is pushed to comply with international consensus and law for its actions and state funded projects, not for the statements of some of its (elected) politicians.
    And yes the PLO, and the PA, is recognized as the Palestinians’ representative. If the Gaza Strip and the West Bank would “ comprise one territorial unit” we could perhaps have elections, a national coalition, and elected representatives.

  26. “And yes the PLO, and not the PA..”

  27. Maon, let me get this straight: the Rome Statute is customary since its parties said it is? If so, how does this conform to the principles of sovereign equality (or inequality for those non-parties States who do not have a say in whether it is custom or not) and the basic notion of State consent for the development of custom? After all, is it not “actual practice” of States that is of pertinence?
    By the way, the ICJ advised that the settlements were illegal on an incredibly poor legal analysis and it was in any event not concerned with criminal responsibility.

  28. Sorry that you find  ICJ decision ‘an incredibly poor legal analysis’.
     
    North Sea Continental Shelf case hardly applies to the context of our interest.
     
    Furthermore, the persistent objector claim lacks support in general patterns of practice and general patterns of opinio juris.  We know of no case that was decided on the basis of such a claim, although dicta appears in a few cases.
     
    Again Jordan: rare dicta indeed and the dictum in SS Lotus, if true (it is not, since consent is not the same as expectations that something is legally appropriate or required, i.e., opinio — and even with respect to treaties, what drives interpretation is “ordinary meaning,” not consent as such) it would mean that a state could op out of C.I.L. at any time in the future. 
     
    Recall that allies of Germany had persistently refused to ratify HC No. IV but at the IMT at Nuremberg, their nationals were bound by the C.I.L. reflected in the treaty once it became C.I.L. by 1939.  Persistent refusal did not create immunity from the reach of universal law.
     
     
     
    Contrary to what Eugene and you claim, the language of the Rome Statute does not suggests that it was “progressive development”. It is customary since it reflects in a continuous OJ (Fourth Geneva Convention, the Hague Regulations..).
     
     
     

  29. Maon, you’re right that I did not read all of your source. But, basing myself on what you quote from Said, that Said really was referring to the Arab Higher Committee, then I have to say that you and your source are splitting hairs. And Dershowitz was right. After all, you quote the fact that Husseini was the head or chairman of that Committee (AHC). Since Husseini chaired the AHC at its founding and after WW2 he was the dominant figure. As Shimoni and Levine put it [in Political Dictionary of the Middle East . . . ; New York 1974] “the extremist Husseini faction dominated the committee”. 
    Bear in mind that during WW2 and afterwards, it was notorious that Haj Amin was a Nazi collaborator and had called for Jews to be killed over Radio Berlin in Arabic. Yet he was accepted as the chief Palestinian Arab leader in that period, albeit there were some dissidents among the Arabs in Israel. Also recall that his entourage in Nazi Germany included members of other notable Palestinian Arab families, such as a Khalidi –as I recall– although other Khalidis were protégés of the British. Did any of the scions of the notable families protest against his leadership because of his Holocaust role? Did the Arab Communists protest that role? Maybe. But by and large he was accepted as the top leader despite his Nazi record.

  30. Maon, concerning the Jewish majority in the Land of Israel west of the Jordan. I did not say that the Jews were the majority in the Judea-Samaria (west bank) area. I said there was a Jewish majority in the Judea-Samaria area plus Little Israel within the 1949 armistice lines. Indeed there is a Jewish majority in the whole area west if the Jordan even including the Gaza Strip. To be sure, the Palestinian Authority produces its own, typically unreliable, statistics.
    As to Ashqelon, a Jewish community existed there from the Ptolemaic, pre-Hasmonean, pre-Herodian period (3rd century BCE). Herod did not rule it, as you rightly say, however he built some important public works there, indicating that he had a good deal of influence over the city. I find your claim that Herod was not a “real Jew” to be interesting. He was accepted as a Jew by the religious authorities of his time and married a woman offspring of the Hasmonean dynasty.

  31. Maon, The preponderance of sources and authorities that I have seen indicate that Jews were an absolute majority in Jerusalem in the 1850s. The French diplomat and historian Cesar Famin reported a Jewish majority in 1853, other sources speak generally of the 1850s as the time when the Jewish population became the absolute majority. See link:
    http://www.hnn.us/article/56698

  32. Elliott
     
    “And Dershowitz was right. After all, you quote the fact that Husseini was the head or chairman of that Committee”: I showed you that Dershowitz manipulated the sentence. The subject of the sentence was the Arab Higher Committee (AHC), not Hajj Amīn al-Ḥusaynī. The idea for the creation of the AHC was fully of Hajj Amin. It was created without an election and with «shallow roots among the population». Hajj Amin placed himself at the top of the Committe. No other leader would have had the strength and political weight garanteed by his role as a leader of the Supreme Muslim Council (created ex novo by the British). 
     
     
    “But by and large he was accepted as the top leader despite his Nazi record”. Answer:
    “One of the more blatant aims for example to “prove” this theory by underlining the fact that in September 1948 he was appointed president of the new created All Palestine Government. Any expert in the subject matter, however, can easily demolish that argument by explaining that the All Palestine Government was nothing but an Egyptian initiative to frustrate the ambitions of King Abdullah of Transjordan (1882-1951): «It was – in the words of Moshe Ma’oz – a mere tool to justify Cairo’s occupation of the Gaza Strip. Hajj Amīn al-Ḥusaynī and his clan were instrumental for the purpose».
     
    You write that “his entourage in Nazi Germany included members of other notable Palestinian Arab families”. There were perhaps less than 10 persons with him in Berlin, while you continue to ingnore that 6000 Arab Palestinians joined the British army in 1939 to fight the powers of the Axis. Again and agin, it seems that you need your barbarians to justify the reality.  

  33. Elliot,
    “Jewish majority in the Land of Israel west of the Jordan”: there was not 1 single Jew in the place that you call the “Land of Israel east of the Jordan”. 
    “I did not say that the Jews were the majority in the Judea-Samaria (west bank) area. I said there was a Jewish majority in the Judea-Samaria area plus Little Israel within the 1949 armistice lines.”:
    This is not not what you wrote. You wrote: “Now on Israel and the Judea-Samaria areas (also called the West Bank). Jews are the majority in those two areas together.” 
    Furthermore, also the claim that “there was a Jewish majority in the Judea-Samaria area plus Little Israel within the 1949 armistice lines” is wrong. Unless you define what “judea and Samaria” and “little israel is”. In 1949, in “Judea and Samaria” there was a clear Palestinian Majority; a very limited Jewish (55%) majority can be detected in the “Jewsih State” suggested by the UNGA. “Judea and Samaria” were not supposed to be part of the “Jewish State”
    “there is a Jewish majority in the whole area west if the Jordan even including the Gaza Strip”: it is about half and half, but if any Jew of the world has the right to become automatically an Israeli citizen while a Palestinian refugee is denied even to visit his original village…it’s not a particularly fair “competition”.

  34. Elliott,
    “As to Ashqelon, a Jewish community existed there from the Ptolemaic”. The coast between Ashkelon and Ashdod that was not occupied by the “israelites” for 1 single day – including under Herod, as we now know – in its entire history. It becomes automatically Jewish for the eternity just because a little Jewish Community was allowed to settle under Alexander’s empire? Try to apply this approach to any part of the region or to the rest of the world.
    And again,  if one assumes that there was a conquest, the occupation of an area for a few years does not mean that it represented part of the “historic Jewish homeland.” Otherwise, the many Philistine raids and sometimes occupations of Israelite towns as far east as the Jordan River valley would also make these areas “less” Israelite.
    Herod belonged to the people of Edom, who had only recently been forcibly converted to Judaism.

  35. Elliot,
    “The preponderance of sources and authorities that I have seen indicate that Jews were an absolute majority in Jerusalem in the 1850s”: It is enough to visit wikipedia to check that most of the sources claim the opposite http://en.wikipedia.org/wiki/Demographic_history_of_Jerusalem
    this link that you sent me - http://www.hnn.us/article/56698 - is a far from being a serious academic work. It is full of generalizations – among many other things, there is not even an hint about the difference between suni and shia islam in relation to jews – mistakes – 1 out of dozens, the jizya was not “for the privilege of living another year”…women, children, old and sick people dind’t have to pay anything; it was paid only by men “whose religion precluded them from serving in the army, in return for the protection secured for them by the arms of the Muslims” (Thomas Arnold) – and, most of all, completely ignores any single source that does not fit the political agenda of the author.
    If you want to start to have an academic and more balanced knowledge about the issue I suggest you to start from Moshe Maoz, “Muslim Attitudes to Jews and Israel”, 2010. http://books.google.it/books?id=iNERGngsUOAC&pg=PA1&lpg=PA1&dq=moshe+maoz+Muslim+Attitudes+to+Jews+and+Israel,&source=bl&ots=WJ-ZOVY2Zq&sig=ias71-RUPlX54nKjbaRPg-jZMdc&hl=en&sa=X&ei=oV_BUqbnKIqitAbU4IHQDg&ved=0CCoQ6AEwAA#v=onepage&q=moshe%20maoz%20Muslim%20Attitudes%20to%20Jews%20and%20Israel%2C&f=false

  36. “Herod practiced Judaism, as many Edomites and Nabateans had been commingled with the Jews and adopted their customs. These “Judaized” Edomites were not considered Jewish by the dominant Pharisaic tradition, so even though Herod may have considered himself of the Jewish faith, he was not considered Jewish by the observant and nationalist Jews of Judea”
    http://en.wikipedia.org/wiki/Herod_the_Great
    Elliott, I stop here. Thank you for this conversation.

  37. Maon, I really don’t think you ought to depend on wikipedia as the final word on any issue. Now, I will cite a number authorities and authors that your wiki article on the population of Jerusalem over the years does not mention. First is Cesar Famin, a 19th century French historian and diplomat who reported a Jewish majority in his book of 1853. I cite Famin in an article of mine on the History News Network, linked to in a  previous comment. Then there was Nu`aman al-Qasatli, an Arab writing about 1872 and cited by Abdul-Karim Rafeq, “Political History of Ottoman Jerusalem,” in Ottoman Jerusalem, eds. S. Auld & R. Hillenbrand, Part I (London 2000), p 35. Then there was F Bovet, a Protestant minister [ca. 1858]. Then Baron de Vogue [ca. 1872]. Lastly –although there are others but let’s not be tedious– I will give a recent authority, Yehoshua Ben Arieh, Jeusalem in the 19th Century, Vol. 1, The Old City
    (Jerusalem: Ben Zvi Institute, 1984; New York: St Martin’s Press), p 279.

     

  38. Elliott, I wrote you “It is enough to visit wikipedia…”. Explanation ad usum delphini: wikipedia is certainly a basic source but you can start from there to get a grasp about the huge amount of scholars and arguments that you generally ignore. It is just a starting point.

  39. Academic institutions that engage in political advocacy – e.g., by engaging in boycotts for political purposes – are no longer academic institutions but rather political advocacy groups. That status may be inconsistent with their status as tax exempt section 501(c)(3) charities, and is certainly inconsistent with the purpose of supporting scholarly inquiry.     

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