Disobedience a way to save a state – Response to M. Feiglin’s op-ed contribution in today’s Jerusalem Post

Antoine de Saint-Exupery’s The Little Prince – I love it! Who doesn’t succumb to the Little Prince’s charm and that of his friends? ‘Words are the source of misunderstandings.’  ‘It is only with the heart that one can see rightly; what is essential is invisible to the eye.’ ‘All men have stars, but they are not the same things for different people. For some, who are travelers, the stars are guides. For others they are no more than little lights in the sky. For others, who are scholars, they are problems. For my businessman they are wealth. But all these stars are silent. You – you alone – will have the stars as no one else has them – […] In one of the stars I shall be living. In one of them I shall be laughing. And so it will be as if all the stars are laughing, when you look at the sky at night … You – only you – will have stars that can laugh!’ These are simple truths eloquently put down on paper.

But this apparent, superficial simplicity might also be their inbuilt failure as shown by the use of a quote from the book by Moshe Feiglin in his op-ed contribution in today’s Jerusalem Post: IDF Insubordination can save Israel to underline his point that disobedience and insubordination are really a duty of a good citizen. Cut from the context and standing for itself the dialogue of the king and the Little Prince it seems just fine.

Of course Saint-Exupery let’s the king say that the ruler can only order what can be fulfilled by the subjects as rule has to be based on reason. And the fact itself can’t be argued. Heart and brain have to come together in those who rule a country to secure it and propel it ahead. Yet, the king who speaks is a caricature, a king without subjects who is blown around by the one subject that shows up like a blade of grass in a hurricane. It shows that it has nothing to do with reason or good ruling to turn around in one’s decisions as a government with every ailing of every subject at every time.

I’ve been born and raised in East Berlin and I’ve seen a peaceful revolution by means of disobedience, obstinacy and simple misunderstandings or lack of communication. I grew up in a country were in it most recent history the most evil things happened because people just followed their orders and later used this as an excuse. Hence, I can follow Mr. Feigling’s remarks that some laws just need to be disobeyed and some orders rejected as they completely violate any rule of moral, humanity or reason.

Yet, as long as Israel regards itself as a democracy and hasn’t yet turned in a monarchy or even dictatorship, anarchy is not the right thing to promote. The individual has his/her chance to participate in the decision making process in many ways. The individual can vote or be voted for, can involve in parties, challenge laws in courts, express his/her opinion on the street in peaceful demonstrations, participate in the system of checks and balances and use the media for his/her ends… It’s not perfect but it is from all the bad choices around the best we have.

I already have my problems with a direct democracy a la Switzerland where the people can express their nebulous fears of a raise of Islam in their country in a vote about minarets. I could write a whole article alone about the psychology behind the phallus symbolism of minarets and church towers and what a fear of minarets obstructing the sight of church towers could say about the libido of the common Swiss. Yet I leave it at the remark that a less fear driven approach by a smaller, pre-elected group of rulers with more insight and more foresightedness might have come to less striking and reputation-damaging solutions (restrictions in building regulations anyone?) with better prospect of success with the actual problem of a creeping Islamization of Europe. A per se permission to disobey rules and laws set up by a government voted into office with the majority of votes because they don’t fit the own ends and deeds is out of question for me.

And to finish this off – an army is an army and not a political party or movement. You get drafted and you serve because it is the duty of each citizen as long as the country needs protection. It is a limited time in which the soldier enters a special relationship status with the state where s/he is charge and guard of the state at the same time with special rights (payment, safeguarding etc.) but especially a special duty to loyalty. Because as the word ‘to serve’ implies already the soldier or the army made up of soldiers is not the ruler but the servant. As hard as it would be on me as well to obey someone just because s/he has more stripes (and here we are at the phallus symbols again) it’s the only way the army can fulfill the only reason it is around – protection of the state. Hence, disobedience in an army, though there might be cases where it is asked for, will never save someone but rather endanger the whole people.

How to Embrace a Cactus – Pictures and my opening speech for my art show

Thank you for honoring me with your presence and presenting me with a wink of your time. Time is so precious and wears away so fast. Years trickle off, live lines develop – yet do you still know exactly what you did during the last, let’s say, three/ three and a half years? 

Did you enjoy every moment, every wink? In E.T.A. Hoffmann’s story ‘The Sandman’ the eyes of the life-size doll Olimpia and her glances, from his perspective always tracing the student Nathanael, make him first meet insanity then death. Yet, even though constant surveillance is torture, eyes and their glances are mirrors of the soul and of life. Hence, they fascinate me and are a never ending source of inspiration. 

So, it is no wonder that I got hooked by two other books in which eyes play a major role – Dante Alighieri’s Divine Comedy and J.K. Rowling’s Harry Potter series. Admit it, you never thought you would ever hear these two works mentioned under the same breath. Yet Dante’s paradise, for him a divine or heavenly place that is fortified on all sides against the invasion of evil or unhappiness, is with its 9 spheres quite similar to Rowling’s 9 story, medieval castle with its thick walls, high watchtowers, which is known as a ‘stronghold of ancient magic’, which can only be seen by those few with the ability to wield magic and which would never have come into existence without the same talent. 

And what is all this talk about eyes then? While Dante travels to paradise while looking into the eyes of his first and deepest love Beatrix, a love he was never to live, Harry is recognized by his eyes that are so similar to that of his mother, who died because she loved him dearly. These eyes accompany us on our travel to and through paradise searching for the gold in the world and in us. 

And still, the eye in the first picture of my ‘Hogwarts and Dante’s 9 Spheres of Paradise’ series shines rather like a black sun. It reminds us that Paradise is fragile and nobody living there is a one-dimensional, all-good, all-saint creature. This is a message repeated on every sphere of Dante, every level of Hogwarts, every picture of the series. 

If already paradise up to the Fixed Stars and the Empyrean Heaven is not perfect why should our world beneath it, that vibrates around us, be split in good people and Death Eaters, even though I admit such an approach would make the judgment and solution of complex conflicts and the opinion finding process much easier? Yet, we need to keep aware that gold is buried in mud. We all and everything have light and have a Shadow that escorts us like an uninvited guest who came to stay. 

Furthermore, everyone has a story, a past, strengths and weaknesses, has a parentage and background and talents. It’s not without reason that it is said: Whoever rescues a single life rescues a whole universe. The largest universe for us to discover, the only corner of the world we can change is us. 

I sallied forth, have the freedom, am a permanent student of myself. After I’ve read a lot – next to other books I’ve read ‘Who am I? And if yes, how many?’, a question I, the pumpkin and it’s seeds, can clearly answer with “21” – it was time to write my own story. ‘One King’s Children’, even though it was not planned like that as it is designed to be a political thriller, became another try to get a better understanding of myself and to embrace a cactus. 

No fear, your eyes on me have not yet driven me crazy so that I started to stutter nonsense. One calls a Jew born in the country “Sabre”, prickly pear. Therefore, the place s/he has grown from must be a cactus. Israel, the land my grandparents did their share to build up, the place my mother was born and the dream living in my heart, has the beauty of a succulent with thorns one has to deal with. While looking into the stingy subjects as well as while arguing any other subject the world can bring up I allow myself the wealth of an opinion of myself and of taking my own path. And as you can see I make them tangible and audible at occasions like these. 

Remembering, attention gaining, turning the limelight onto an injustice that needs to be eliminated as fast as possible as it already lasts for way too long is in the end my primary concern here and on this day. So, let me repeat my question from the very beginning – so you still know what you did during the last three, three and a half years, since June 25, 2006? 

No? One young man called Gilad Shalit knows to name exactly the one thing he did since he did only one thing. After at age 19 being kidnapped by Palestinian militants in a cross border raid from the Gaza Strip at June 25, 2006 he sat in captivity ever since. 1215 days, more than three years without any contact to the world he loved – what an unbelievable long period in an already tight measured life time! Much more than just a wink. It is a time span in that a seed grows to a seedling resembling already the tree it once will become. It is a time span in that the tree of life has developed and changed so much. 

Since very recently, since a video message was published, that the Israeli government bought at the high price of the release of 20 convicted criminals before their time, we know that Gilad Shalit has kept hold of the tree of life during all these years. But now in the very latest it is high time to give him as well the opportunity to search for the gold in the world and in himself, to discover himself, to allow him the wealth of an opinion of himself and to enjoy every wink. It is time to rescue another universe. Freedom for Gilad Shalit!

Honi soit qui mal y pense – Germany and the talks about Gilat Shalit

B. Netanyahu called German chancellor A. Merkel today a “real friend of Israel” though she repeated her commitment to a 2 state solution as this is in her opinion the only path to a peaceful solution, though she demanded a complete stop of all settlement construction as she sees it as a decisive requirement for peace in the region. But the two heads of states argued for sharper actions and tighter sanctions on Iran. And since yesterday the signs thicken that Germany mediates in the talks about freeing captured soldier Gilad Shalit.

That’s deserving of thanks. Anything making the fate of Gilat Shalit easier and lessens the number of days he still has to spend in this dreadful captivity is highly welcomed. Yet, I wonder why information on the mediation leaked just in this moment. Was it just the upcoming visit of Netanyahu turning the focus onto the German Israeli relations?

Honi soit qui mal y pense. Germany has a general election for the Bundestag upcoming in September. After just another legislative period under the lead of a great coalition of SPD and CDU/CSU current chancellor Merkel can’t score in any domestic question anymore. The involvement of Bundeswehr in Afghanistan is seen very critical since what started as a happy boys scout trip has made more soldiers return in coffins than the ordinary, politics-dispirited German, who asks what dealings Germans have at the Hindu Kush, can stand. And though Germany is still in the ban of Obama-mania, the pivotal hero isn’t inclined to pose for nice photos and nice words. Hence, another success in some unsolved question praised internationally would come in handy.

That Germans involved precisely in talks with the Hamas is somewhat telling. Although Merkel joined Netanyahu in calling for tighter sanctions on Iran now, one shouldn’t forget that Germany is one of the best trading partners of the Mullah regime that is as well the backer of the Hamas. As they mediate and do something good for Gilad Shalit and Israel they talk with the terrorist organization. Though this might seem a simple statement the reasons behind it or the consequences of talks becoming public are not. This is just another small step to a possible normalization of relations with Hamas as is more frequently demanded in Europe lately.

But while I’m always for talks with enemies to further peace as one does not negotiate peace agreements with friends I would think it necessary to work things the other way around. Mediate if you are in a position to help but do it in secret without the desire to take advantage of the result for your own position domestically or internationally. Ask the terror organization publically for a renunciation of all terror (legal-wise there is no use in asking them to recognize Israel as Jewish state or state of the Jews as states exist once they consist of the three elements state territory, state authority, body politic and the Jewish element has to be anchored in a possible constitution; yet politic-wise it would be a nice add on). And only once they did so and meant it, consider publically to talk to them officially.

Yet, this wouldn’t help Merkel in the upcoming election anymore as it would take too much time and patience. And it is probably not in the interest of Germany’s good trading partner…

Tucholsky’s “All soldiers are murderers” and a Twitter dialog

“RT @Jew4palestine: @IsraeliSoldier do you wait until u see the tears in their eyes before you shoot. or wait until they cry mommy then snipe” 

I read this dialog this afternoon on twitter. And it reminded me immediately of Tucholsky’s ‘All soldiers are murderers’ remark. 

Tucholsky? Kurt Tucholsky (January 9, 1890 – December 21, 1935) was a German journalist and writer. He was one of the most famous publicists of the Weimar Republic, a social critic, democrat, participant of WWI and afterwards adept pacifist. His remark ‘All soldiers are murderers’ originally derives from the gloss ‘The Guarded War Arena’, published under the alias Ignaz Wrobel in the mag ‘Die Weltbuehne’ in 1931. There he wrote: 

“There had been four years long many square miles of land where murders were obligatory, while half an hour away from that place it was strictly forbidden to do just that. Did I say: murder? Certainly, murder! All soldiers are murderers.” 

Tucholsky, who was co-founder of the Friedensbund der Kriegsteilnehmer (Coalition for Peace of Participants of the War), criticized with his remark national governments that force young men in recruiting age to kill for national interests and deduced that a war is an ordered, collective murder. 

From then on up to today the remark has occupied many German courts including the Bundesverfassungsgericht (Supreme Constitutional Court) and has become a catch phrase of the German pacifistic community. 

Yet, what do you think? Where would we be without people brave enough to risk their lives for our freedom and integrity? 

Sure, you could say that if all people laid down their guns and embraced a peaceful life we wouldn’t need any army anymore – swords into ploughshares, peace and prosperity for all! But with humankind as it is, always dreading the different in the other, always thinking the own kind superior, and always begrudging the other of the things s/he has earned or gained this is just utopia. 

As long as the prisoner’s dilemma enchains our minds we need armies to enforce our values – our laws, democracy, freedom and sheer our lives – and defend them against those attacking us. Certainly, armies need rules too and have to keep up to moral standards. Their conduct needs to be checked and checked again, as weapons mean power and power might fog the brains and wits. And any misconduct needs to be punished severely.   

But in the end, imho no soldier in the army of a democratic state is automatically a murderer. And to blame one of cold-blooded behavior in a moment of death or life is plainly defamation and over-simplifying a very difficult situation.

The Goldstone Commission on Gaza – Why its Mandate and the UN Human Rights Council is criticized rightly

It’s almost September. This is not just of interest to me since it means my much longed for vacation is just around the corner. But it also means we are about to read the Goldstone Commissions report on their findings about the Gaza War, eagerly expected by many though not less eagerly criticized since the establishment of the commission.

As the discussion of the commission, its fact finding mission and its report passes through yet another warming up phase (as if the subject wouldn’t be heated up enough already) I want to take a look at where the criticism mainly voiced by Israel derives from. 

Relevant articles like Irwin Cotler’s Op-Ed contribution to the Jerusalem Post “The Goldstone Mission – Tainted to the Core” here and here  mainly name three problems which they unfortunately deal with promiscuously: the organization that runs the investigation, (the composition of the Commission) and the task issued to the Commission in context of the resolution it is based on. I don’t like mulligan as I prefer an organized arrangement on my plate. The same goes for my thoughts. Therefore, I will discuss the two of the problems one by one starting with the last, but in my opinion most important problem. 

Resolution S-9/1 by the United Nations Human Rights Council, adopted on January 12, 2009 and the thereupon based mandate of the international independent Fact Finding Mission established on April 3, 2009-08-23 

On 3 April 2009, the President of the Human Rights Council established an international independent Fact Finding Mission with the mandate 

“to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.”  

This is already a revised version of the mandate. The original version called on the Commission to focus only on Israeli actions. Yet, though the wording of the mandate has been changed on demand of commission head Richard Goldstone so that he may be able to look into Hamas actions as well the appointment of the mission followed the adoption of resolution S-9/1 by the United Nations Human Rights Council at the end of its 9th Special Session on 12 January 2009 and is based on it. 

Resolution S-9/1 is headlined: The grave violations of human rights in the Occupied Palestinian Territory, particularly due to the recent Israeli military attacks against the occupied Gaza Strip. Concerning the Fact Finding Mission it states: 

14.        Decides to dispatch an urgent, independent international fact-finding mission, to be appointed by the President of the Council, to investigate all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission; 

While the headline of the resolution concludes already what the commission is suppose to investigate, the wording of the paragraph, defaming Israel as an occupying power, is at least biased. However, most important phrase of the paragraph in my opinion is “current aggression”, especially in the light of the general renunciation of force laid down in the UN Charter and specified in the GA resolutions 2625 and 3314. 

Aggression, as a standing term in international law implies that Israel was wrong to use any force in Gaza during its operation, whether or not the actions taken were in accordance with all rules of ius in bello and irrespective of any findings of the Fact Finding Commission. If taken as a fact Israel deemed an aggressor would be deemed culpable of an offense under international law and would be liable for all damages, even for damages originated by actions lawful according to the standards of ius in bello. 

A violation of the renunciation of force under international law implies an international element and the use of military force. The international element is problematic when we deal with the Palestinian Territories. Even though Israel withdrew from the Gaza Strip in 2005, Palestine is still a state created by invitro-fertilization and stuck in retort. But I focused on that question in an earlier article on the Goldstone Commission . The use of force by Israel can’t be argued. 

On the other hand, even the use of military force can be justified under Art. 51 UN Charter that explicitly acknowledges a nature-given right to self-defense. Allowed is the force necessary to ward off an attack. The attack in question has to be immanent, armed, attributable to the other state and has to excess a certain threshold of intensity. As much as one wants to allow the IDF to go into Gaza anytime just so to free captured and kidnapped soldier Gilad Shalit his ongoing captivity can’t be subsumed to be an immanent, armed attack. 

But how about the decade worth of rocket-fire from Gaza targeting Israeli civilians, escalating in the three years after Israel’s complete withdrawal from the Strip? How many rockets are enough per month, per week, per day to speak of an immanent, armed attack that exceeds the threshold of intensity? Are 13 residents dead, hundredth wounded, damage worth in the millions and the traumatisation of nearly every inhabitant of Sderot e.g. enough? How about the non-extension of the truce with Israel announced by Hamas in December 2008? 

I would definitely say so. And if we come to the conclusion that Israel responded to an armed attack by Hamas from the Gaza Strip Israel’s military response could have been justified under Art. 51 UN Charter and therefore not nameable an aggression as she had a right to self defense – if the force used did not exceed the level necessary to ward off the attack. At this point I will need to owe you an answer as I lack the military expertise. 

However, this won’t affect the result of my reflection as we still need to look at the general framework in that a renunciation of force works only. The negative assessment of the phenomenon of military force that had led to the development of a clause calling for the total renunciation of force in the UN Charter bases on the experience of the insufferable horror caused by the wars of the last century. This human rights based reasoning has not lost any of its validation. 

Yet, a measure taken because of humanitarian reasons mustn’t lead itself to the violation of human rights through the backdoor. Meaning: The renunciation of force is ultimately only acceptable if the enforcement of rights and interests is possible in another way. It requires that in a framework of collective security the community of states takes effective actions against any and all law-breakers and comes to the defense of the victims. 

The UN should be the one to provide the framework. But put into work in praxis it proves to work unfortunately only imperfectly to say the least. The Security Council knocks itself off on a regular base due to the veto power of its permanent members. And the UN Human Rights Council is too busy condemning Israel it hasn’t even once addressed the question of rockets fired by Hamas in a decade or the problem of a kidnapped soldier in more than three years of captivity. But the UN Human Rights Council’s story is sad enough to get a chapter of its own. 

The Organization that runs the investigation: the UN Human Rights Council 

“I believe in the indefeasibility and the dignity of every human being. I believe that God gave all people the same right to freedom. I pledge to offer resistance to any offense against freedom and to resist tyranny wherever it may occur.” 

I am a front-line city girl. Grown up in the daily antagonism of the East-German education system vs. West-German media, permanently exposed to propaganda of both sides until my 14^th birthday, my parents took care I wouldn’t grow any walls in my head or in my heart though I experienced a real one on a daily base. What was planted in my head instead was the belief in the opening statement that echoed every Sunday at noon over the air via RIAS Berlin, Radio in the American Sector. 

This statement represents my first approach to Human Rights. Back when I first heard it nobody would have believed that one day I would argue with my International Law professor in the oral part of my final law exam about the binding character of the UN UDHR. Not with the same consequences (I passed the exam in spit of the debate) but nevertheless never less passionate Human Rights are discussed at many stages. They are one of the few things even the Generation Crisis, otherwise completely self-centered and opinion-less, would join a Facebook group to take a stance against their violation.  

Yet though the phrase ‘human rights’ is used easily, do we all really speak about the same thing? I don’t want to start the same debate about the question of penetration of the Human Rights Declaration into binding international law that I had with the professor some years ago (btw: the leading opinion still is that the Universal Declaration on Human Rights had been a resolution of the UN General Assembly without any binding power and it has still not become part of international customary law as the understanding of human rights is too diverse in different legal systems).  

I just mean with Amnesty International, Human Rights Watch and all the other more or less highly funded NGOs working for the universal observation of Human Rights around, with the principle of universal jurisdiction anchored in many criminal law codes around the world to some degree, with the Human Rights Council installing inquiry teams and investigating violations what are the basic principles of human rights we all agree? Aren’t these the norms a rational human being, seeking to survive and prosper, would act upon and expect others to act according to because what s/he fears most is violent death by the hand of others? Isn’t it what is expressed in the opening statement of this chapter? Aren’t these the norms you would expect the UN Human Rights Council to safeguard for all nations? 

The UN Human Rights Council was established by the UN General Assembly in 2006 as a subsidiary body. It is the successor to the UN Commission on Human Rights that had to be replaced because of the Commissions inefficiency due to the presence of human rights violators and the politicization of the body. But just as the US had already stated when voting against the resolution establishing the UN Human Rights Council, it has no adequate provisions to keep states which abused human rights from Council membership. And it also lacks the precautions to avoid falling victim to the whims of political interests. 

With Darfur, China, North Korea, Afghanistan, Iran, even the US’ CIA excesses at Guantanamo around and happening, 80% of the UN HRC’s resolutions target just one state, Israel. And as the language of the one resolution (S-9/1) mentioned exemplifies, the dealing with Israel is highly biased. Israel, just as any other nation, is far from perfect. But in the UN HRC she falls victim to prejudgment and can’t expect any help from this side. I dare to predict that even in case the Goldstone report of the Fact Finding Mission will stress violations from Hamas as well as from Israel, Israel will be condemned in the following resolution with the Palestinians not even mentioned in a footnote. 

The UN Human Rights Commission at least isn’t part of a framework of collective security Israel can trust in. 

Final Remarks 

Still, though the Goldstone Commission’s mandate and the organization behind can be criticized and the final report and any follow up resolutions have to be eyed carefully and in the context of the information given above, the deduction cannot be – Israel or any other nation is forth on allowed to use any military force it thinks suitable for her cause. From a moral and a humanitarian point of view any war or military action is hard to justify. From a political point of view it can be deadly and isolating. And so it should always stay the last, the ultimate choice after all other options have been explored unsuccessfully because the enemy thinks human rights, the right to live in peace and freedom, are meant for everyone else but not for Israelis.

Iran: Justitia is forced to rob Liberitas of her Phrygian Cap

Iran: Justitia is forced to rob Liberitas of her Phrygian Cap

…but don’t think the world is looking away!

Allow birthday cakes and ballons into Gaza – for Gilad Shalit

Captive - Gilad Shalit, acrylic color on paper

In view of the fate of this young man, Gilad Shalit – kidnapped in a cross border raid by Hamas more than three years ago and ever since held captive in isolation – one wants to scream at the illegality and wrong. One wishes one was more influential like Bill Clinton who simply flew to North Korea for a talk with Kim Yong Ill and afterwards loaded the two journalist held hostage by the North Korean system into his airplane to fly them home. One wishes one was more powerful so that one would be able to enter Gaza oneself and get the man back.

However, one is limited to the few possibilities one is given: one’s voice as we aren’t born to keep silent, one’s network of friends and other birds of a feather and in my case my art. And in the end after such a long time and an unbearable horse trading – one life for one thousand lives, including freedom for convicted murderers – frustration comes up. Another birthday of Gilad Shalit approaches fast and still a solution or only the relaxation of his conditions of captivity is not yet at the horizon.

Frustration fast turns into hate, one of the deep and basic human feelings that speaks to our animal, werewolfish side and that knocks off the higher human brain.

This might be the reason why in the run-up to Gilad’s birthday I read calls on the internet, spread via Twitter, to interconnect the fate of this one young man with the fate of the population of Gaza. No humanitarian help for the Palestinians as long as Gilad is not free?

Would such a move really bring him one day closer to freedom and a return into the lap of his family? Would it help any in the future?

I doubt it. Even worse – it would even more damage Israel’s reputation in the world. And as Hamas conducts a policy of terror to one side and social engagement towards the other, a complete shut down of all humanitarian help would only drive the population into Hamas’ outstretched arms. Their help doesn’t come for free – they trade food, medicine, shelter and education for head scarves and complete body cover, support, votes and ultimately the lives and heads of the families’ children. It would help to shape just another generation of willing suicide bombers and kidnappers. Not to speak about the simple fact that a complete embargo would also worsen the food supply situation for the one man we try to save as he is in Gaza too…

In the light of this I would like to ask everyone to refrain to call for excessive measures as frustrating as the situation might be. We should use our combined strength to make sure Gilad Shalit is remembered every day, but especially on his birthday. It can be done by twittering a #GiladShalit hashtag as promoted by JIDF. But there are other ways up to the point where you write your government and demanding to get active.

And perhaps for one day it should be allowed to bring birthday cakes and balloons into Gaza written a big Happy Birthday, Gilad! all over them, so he might learn he is not forgotten and in the thoughts and prayers of so many all around the world!

EU – Israel argument about taxation and a US Court of Appeals decision in a controversial passport matter

This is a follow up to my latest article: EU, Israel and the Argument about Taxes on Home Carbonating Systems Produced in Ma’ale Adumim even though the case I am talking about today may on first sight not show any links to the EU tax case one. Yet, in the end the US Court of Appeals in Washington and the German tax court in Hamburg have to decide on the same question before they ever get down to the subject of the arguments pending. 

The Case of the US Court of Appeals:

A boy was born in 2002 in Jerusalem. His parents, an American couple living in Israel, applied for an American passport for their son. They stated as place of birth Jerusalem, Israel. However, in the passport the listing of Israel as state of birth was omitted. The parents filed a case on behalf of their son, demanding to name the state of Israel next to the city of Jerusalem in the passport. 

The decision of the US court of appeals:

On July 10, 2009 the case was dismissed. The court upheld a lower court’s decision that the courts lack jurisdiction in the matter. In a system of separation of powers and of checks and balances questions of foreign policy belong exclusively in the domain of the executive branch and not in a court room. And according the State Department, US passports for those born in Jerusalem do not list a country because doing so would interfere with and pre-judge Israeli – Palestinian negotiations and would therefore interfere with another state’s sovereignty. 

Background:

The status of Jerusalem in any final agreement between Israel and the Palestinians is still highly disputed. The question is source of even more argument and emotions on both sides than the question of how to deal with the large Jewish settlements in Samaria and Judea/ the West Bank like Ma’ale Adumim. There it is most likely – and about the only working solution considering the number of people living in the large settlements – that in the framework of a land swap deal these few settlements will become integral part of the Israeli territory. 

Yet, just as the question of Jerusalem, the question of the settlements, all settlements is still a question of negotiations between Israel and the Palestinians. Whether or not Jerusalem or any settlement belong to Israel or a future Palestinian state, will be divided, swapped, shared, internationalized or handled in any other way is a political question and only up to the Israeli government in Jerusalem and the Palestinians. These are questions to be dealt with in any other state by the executive branch and in their foreign policy departments but not in any EU or US American courtroom. 

By the way, I just checked and both my Israeli and my German passport state as my place of birth Berlin, Germany. But technically, this is not the truth as I was born in East-Berlin, capital of the former GDR. Though, the legality of the claim of the East Bloc of East Berlin as capital of East Germany was disputed by the western Allies as the entire city of Berlin was formally considered an occupied territory governed by martial law through the Allied Control Council. Well, some disputes are solved by time.

EU, Israel and the Argument about Taxes on Home Carbonating Systems Produced in Ma’ale Adumim

The law suit pending with the tax court at Hamburg is about 19,155 Euros and 46 Cents. On the bottom line however, the question the German court has to decide on is much more important and explosive. Moreover, it is rather a political question than a legal one: Does Ma’ale Adumim belong to Israel? And I want to add: Is a German court or the EU or anyone else but Israelis and Palestinians able and allowed to rule on this question? 

The Case 

The German company Brita GmbH imported Soda-Club home carbonation systems and concentrates to create flavored beverages. It labeled the goods “Made in Israel” and claimed for them exemption from import duties as granted for Israeli industrial products under Title II, Chapter 2, Article 8 of the EU-Israel Association Agreement. The main customs office at Hamburg-Hafen took offense at the labeling and asked their Israeli counterparts where exactly the goods had been produced. They were told that the production took place in an area under Israeli tax responsibility. As the Germans concluded – rightly – that the home carbonation systems and syrups had been produced in Ma’ale Adumim, an Israeli settlement in Samaria and Judea/ the West Bank, they decided that Brita were not right to label the products “Made in Israel” and therefore the products were not eligible for freedom of taxation. Consequentially, they claimed 19,155 Euros and 46 Cents of tax for the shipment. Brita appealed the decision and took the matter to court. 

Background 

The EU is Israel’s largest market for exports and its second largest source of imports after the US. On the other hand, Israel is one of the EU’s most established trading partners in the Euromed (Europe Mediterranean) area ranking as the EU’s 25th major trade partner. Israel’s total trade with the EU amounted in 2007 to more than €25 billion (EU exported goods worth €14 billion and imported goods worth €11.3 billion, adding up to a trade surplus of the EU of about €3 billion a year). The EU has provided Israel with €14 million of aid under the terms of its European neighborhood policy between 2007 and 2010 to bring its company and commercial laws into line with the EU’s.

In 1995 Israel and the EU signed an Association Agreement that entered into force in 2000 and that is today the legal basis for the EU’s relations with Israel. According to Article 1.2 the aims of the agreement are to promote political dialogue, political and economic relations, to encourage regional cooperation and to promote cooperation in other areas which are of reciprocal interest. The agreement incorporates free trade arrangements for industrial goods (Title II, Chapter 2). According to Article 7 the provisions of Chapter 2 shall apply to products originating in the Community and in Israel. 

Ma’ale Adumim and Soda-Club 

Ma’ale Adumim is a city located East of Jerusalem on the edge of the Judean Desert. Established in 1976 on territory captured in the 1967 Six Day War, it is today a city of roughly 35,000. Many of the inhabitants, 99.8% of them are Jewish, commute to Jerusalem for work every day. 

Ma’ale Adumim is the second largest Israeli town in Samaria and Judea/ the West Bank. It is one of the large settlement blocs that are expected to remain under Israeli control in future agreements with the Palestinian Authority, even though Palestinians claim that this settlement in particular exposes a threat to the territorial integrity of a future Palestinian state due to its strategic location between the southern and northern parts of the West Bank. Yet, this is disputable as the city can easily be circled to the east. 

Soda Club is an Israeli company founded in 1991. In 1998 Soda Club bought the English original SodaStream to become the world largest home carbonation supplier. While the company’s gas cylinder refilling and refurbishment department is located in Germany, the main factory of the company Soda-Club, producing the home carbonating systems and syrups, is located at the edge of the industrial area of Ma’ale Adumim. 

So, here is the problem: When the free trade provisions of Chapter 2 only apply to goods originating in Israel and the goods of Soda-Club are produced in Ma’ale Adumim, can they rightly be labeled “Made in Israel”? How about goods produced in smaller settlements that are not expected to remain under Israeli control in future agreements? What are the implications of a decision pro or against tax exemption on goods produced in settlements? And last but not least, may a foreign court or a foreign entity like the EU anticipate a decision on one of the major questions of a future peace accord between Israel and the PA without infringing on Israel’s state sovereignty? 

Formally, the EU never accepted Israel’s claim of Ma’ale adumim or other settlements as her own state territory. In practice, the EU has never done much against it. Approximately, one third of the €11 billion worth of goods imported into the EU by Israeli companies are produced in Judea and Samaria. Most of them are labeled “Made in Israel” and are therefore exempted from taxation. 

Indeed, the German government replied in the German Bundestag to a minor interpellation of the Green party fraction that goods from the occupied territories are certainly not covered by the EU-Israel Association Agreement. But the Brita case is the only case pending at German courts right now. 

Up to lately, words and actions emitted by the EU were rather undetermined with much wiggle room. Most recently however, the wind has changed and the sounds coming from Brussels are harsh on Israel. The previously planned “upgrade” in EU-Israel relations has been put on hold. On this matter Luxembourg foreign minister Jean Asselborn said “We must say quite clearly today there can only be talk of an upgrade when the peace process is on its way and for that we need a few steps more.” 

In particular the EU foreign ministers said on occasion of the June visit of Israeli FM Lieberman at an EU Council of Ministers summit that an offer by Israeli leader Benjamin Netanyahu to create a demilitarized Palestinian state was welcome but insufficient to warrant any significant advance in bilateral relations. They further reminded Israel that it must stop building Jewish settlements on occupied Palestinian land, describing the activity as illegal under international law. 

Even more recently outgoing EU chief diplomat Javier Solana has called for the United Nations Security Council to push forward and recognize a Palestinian state even without a final-status agreement between Israel and the Palestinians. During a lecture in London, he said that if agreement between the two sides could not be reached, the UN should proffer its own solution to the conflict. He went on to lecture on how the Jewish settlements are an obstacle for peace, though he stressed before the importance of the Clinton parameters and the Geneva Initiative (ups, then-president Clinton called exactly for the incorporation of settlement blocs into Israel and land-swap where necessary). 

In the light of these statements the Brita case gains importance. It would be the perfect example to create precedence and to underline the EU’s new line of policy towards Israel. Therefore, the EU Commission has already asked all member states for support in an internal note. 

But, in the end it comes down to this:

1.)             The problem of settlements is a painful but not a new one. Especially some of the large settlements have been founded decades ago and house tens of thousands who work for a living and certainly produce goods sold on the markets. It was an option for the partners of the treaty to include a regulation on goods of settlement origin into the framework of the Association Agreement. It was not done.

2.)             The Agreement has entered into force in 2000 – 9 years ago. Why has the problem never been addressed before? Could it be that the Brita case now is not about the enforcement of law but about politics, something not belonging into a court room but on a round table?! A foreign court can’t evaluate all the aspects that need to be considered like the distinction between settlements and which will most likely once properly belong to Israel and which will be needed to give up. A territory now deemed not Israel can be Israel and vice versa.

3.)             Israel is a sovereign state and must not be pressured by other states or a supranational organization towards an agreement in a foreign court room. Other states and organizations might put forward their proposals and approaches on the diplomatic parquet and they might use economic pressure if bi- or multinational treaties are not preventing them from doing so to guide negotiating partners on their way, yet they are not allowed to dictate terms of a peace agreement on sovereign states. This is basics of International Law.

4.)             And another basic Mr. Solana must have forgotten: A state is not created by dubbing it a state. Under international law a new state comes only into existence if there is state territory, state authority and a people creating a nation. Even though one might become impatient during the long process of negotiations and apparent setbacks it’s in the end the only way to lasting achievements. It’s not happening in a court room and not under one sided pressure, it’s only happening through inner growth and inner conviction of both sides of a conflict.

Me, Waiting for Godot, Citizen Duties and the Case of Yaniv David Harel

Estragon: Come on, we leave!
Vladimir: We can’t.
Estragon: Why not?
Vladimir: We are waiting for Godot.
Estragon: Oh yeah.

Estragon (a little later): But we might interrupt the wait?
Vladimir: Can we dare it?
Estragon: Yes, we can.
Vladimir: But Godot stays our first objective?
Estragon: Sure, he does.

Vladimir: Didn’t you have the feeling too, Godot tried to call yesterday?
Estragon: Uhhmmm, well, maybe.
Vladimir (mocking Estragon): “Uhhmmm, well, maybe”???? Can’t you express yourself a little bit clearer?
Estragon: Maybe means just that – it is possible. I admit that we had an unanswered call during work.
Vladimir: And what about the number?
Estragon: We didn’t recognize it. But admittedly again, it looks quite similar to one of Godot’s. Yet…
Vladimir: Yet? What is it?
Estragon: You tried to phone back, didn’t you?
Vladimir: Yes, sure I did. After all, we are waiting for Godot, aren’t we?
Estragon: And?
Vladimir: Well, the voice in the phone said that the number I called was temporarily unavailable…
Estragon: Hence, Godot is still unavailable, isn’t he? And we are still waiting.

Estragon (very depressed looking): I really set my hope into yesterday’s letter, didn’t you too?
Vladimir (walking up and down, wringing his hands): Sure I did! Who thought, they – who are so close (stopping in his steps and pointing out a tiny distance between his thumb and finger), so close to Godot – wouldn’t at least deliver a short message of him.
Estragon: I would have been satisfied with a single word…
Vladimir (talking himself into a rage): Just a little note so that we now they know we are waiting.
Estragon (absent minded): What are we waiting for again?
Vladimir (looking worried at his companion): For Godot. We are waiting for Godot.
Estragon (mumbling): Oh yeah, Godot.

Vladimir: You know, I didn’t like this stare into infinity you indulged yourself in lately. So, guess what I did?
Estragon (sighs): Well? I hear.
Vladimir: I called Godot.
Estragon (if he were a cat his ears would stand at point): Oi, YOU did WHAT?
Vladimir: I was weary of waiting, sick of being drained of my energy by our limbo existence, I was bored with filling my days counting daisies while my sheer existence might have not even been acknowledged by the Great Zampadu, less the effort we put in our long fight for patience; I… –
Estragon (impatiently exploding): Get to the point!
Vladimir: Godot has now the amiableness to take notice of us.
Estragon: Is it improving our situation?
Vladimir: It has a dualism to it.
Estragon: How is this?
Vladimir: Once Godot approaches finally, he might reject us…
Estragon: Well, then we better leave before he comes.
Vladimir: No, we mustn’t.
Estragon: Why not?
Vladimir: Because we are still waiting for Godot. It’s has become part of our lives.
Estragon: Oh yeah, sure.

Vladimir: Estragon?
Estragon (polishes the display of his cell phone): Vladimir?
Vladimir: Estragon? What is it? What’s wrong?
Estragon: How many installments of Dr. House did we watch since your call?
Vladimir (swallows a handful of pain reliever and limbs with a stiff leg to the TV to switch it off): Not that many, really.
Estragon (looks at Vladimir now leaning at a non-existing cane in an impossible angle in disbelief): Might have been one too many. – Anyway, are we still waiting?
Vladimir: patiently, uncomplaining, longanimous, tenacious, persistently, perseveringly, doggedly, adamantine, obstinately, pertinaciously, stubbornly, enduringly, stiff-necked…
Estragon:…stiff-legged, and this might only be from watching too much Dr. House…
Vladimir: …unfalteringly, unyieldingly, unbendingly, brassboundly…
Estragon: Who do you want to impress – the editorial department of the Thesaurus? Honestly, why can’t we just leave?
Vladimir: Because we are waiting – for Godot. Just today, when I called again Godot’s friends told me to call back next week as Godot hasn’t yet decided what to do concerning our request.
Estragon (exasperated): And why didn’t you tell me this earlier? Talking to you is sometimes like getting blood out of a stone!
Vladimir: The question is, is the blood you got from the stone any good?
Estragon: I would say, Godot didn’t reject us straight away. He didn’t take the easy way out.
Vladimir: Hence, you deem it good news, right? Well, then we wait on.
Estragon: It seems like it, doesn’t it?

Vladimir (is down on his knees and knocks his head hard onto the floor): No, no, no, no!
Estragon: Eh … Vladimir? Will you be alright?
Vladimir (throws his cell phone against the next wall where it smashes): Arrrghhhhhhhh!
Estragon: Vladimir, my friend, remember – breathe in, breathe out, in, out, in, out and ohmmmmmmmmmmmmm. And now, tell me what is wrong – ohmmmmmmmmmmmmmm.
Vladimir: ‘What’s wrong?’ you ask me! (clenches his teeth and presses the next words through them) Godot! Godot is wrong!
Estragon: Remember, in and out, in and out and ohmmmmmmmmm. What has he done this time? – in and out, in and out, this is right.
Vladimir (speaks in between breaths of air): He must suffer of amnesia! After all the time spent waiting, after all the calls and promises of a decision – he didn’t reject us or accepted our request. (the breathing becomes gasping, the eye bulge, the voice becomes gradually louder until he shouts) He couldn’t remember us and so, asked us to start the process all over again, to jump to start but don’t get the 2000 Euro, to send our request again!!!!!!!!!!!!!!
Estragon (voiceless and pale looking): You’re kidding?
Vladimir: When I tell you! I wrote a complain already criticizing the internal flow of information and the handling of client contact. But would you believe it!? Others try to avoid Godot at any cost and are forced by courts to associate with him. And we try to keep his company and are ignored. (shakes his head)
Estragon: It’s a strange, strange world after all… Well, taking all this into consideration I would say we leave, come on.
Vladimir: No, we can’t.
Estragon: You don’t say we are still waiting for Godot, do you?
Vladimir: Yes, we do. Now more than ever!

I warn you. I am not a good company right now. For one thing my voice sounds like a rasp if I can get a sound out of my mouth at all that sounds like speech. And I cough like a 90 year old chain smoker though his coughing might be a little more productive than mine. And for another thing I would love to bang my head on every wall I see as I had never imagined how hard it can be to get into an organization other people try to avoid at all cost.

Just today I read an article on Haaretz  about a young man called Yaniv David Harel who takes all legal actions possible to get an exemption from the army for just a few more years until he finishes medical school. Well, to be more precise he takes the legal action to regain a passport so that he can continue his studies abroad and the issuing is denied to him on reasons of draft-dodging.

The latest decision in this case was handed down last week by Jerusalem District Court Judge Noam Sohlberg. Sohlberg said that the linkage of the right to obtain a passport and the fulfillment of military duty as mandated by law is both logical and reasonable because “individual existence is not separate from public [life]; rather, they are intertwined. This relationship is one of give-and-take, which we cannot do without.” Further, the judge wrote that “the discourse about rights and the constant striving to optimize them sometimes overshadows the fact that no society can be established without individuals carrying out their responsibilities to public institutions.”

I once already published here an article about citizenship, rights and duties and deprivation of citizenship. And just as judge Sohlberg I am of the opinion that one mustn’t only fight for the rights coming with a citizenship but must fulfill the duties as well as this is the only way a society can work (though I think the duties have to be spread on all shoulders belonging to the society as far as they can carry them). I deviate with the people responsible for the decision not to allow him to finish his studies before he starts his service as they could easily have done a deal with him whose service could be even more valuable for his comrades as soon as he has finished his school.

What really rankles me however is the inequality of handling of cases in a way. Harel and I can’t be compared as far as Harel seems to be of sole Israeli citizenship while I hold a dual citizenship. Yet, when I once applied for my first passport I wasn’t even asked if I would be willing to serve. With my passport I got a sheet of paper in Hebrew with a post it glued to it saying ‘This is your exemption from the army.’

At that time I was just a bit younger than Harel now and had started with law school. I might have reacted like Harel though I wouldn’t have depended on a passport as much as he does right now. One will never know as I wasn’t asked. But what has grown over the time since then in me is the feeling that I failed a duty. I have accumulated skills over the time I now want to apply in service for my country. And funnily enough just as Harel has the hardest time to get (temporarily) out of the service I have the hardest time to get in as I am getting the runaround.

The latest? After being told two weeks ago that my request had finally reached them I was told to call back for a decision a week from then. I did it and was told that they regret that they are not able yet to tell me a decision in my case and that I need to call back a week later again. I did so again. On Tuesday nobody cared to answer the phone though I called all of the three main phone numbers the consulate in Berlin gave me as they didn’t see themselves fit to help me on. On Wednesday I reached yet another female soldier who apparently looked my file up in her computer, asked her supervisor and returned to tell me that she doesn’t know my case at all but that her supervisor had told her that she thinks I need to return to the consulate in Berlin to formally apply again. *bangs her head at the wall just remembering the call*

Sorry? Isn’t this the place I started from? Hadn’t we yet proceeded to a point in all the calls and emails I always started where we were talking about a decision? Hadn’t the last time I called the girl answering the phone even remembered me when I just said my name? Does the right hand know what the left hand does? Hadn’t I asked right in the beginning if I would need to do or write anything else and was told my stuff sent in so far was sufficient? Can it really be so hard to be granted the right to be taken serious and talked to in a proper way? Can it really be so hard to get into an army while others who are almost in the same situation fight for some kind of only temporary exemption?

Sorry, but I can’t understand it. But now I am in a ‘now more than ever’ mood.