Readers of this column know that, in March, I decried the Virginia State Bar’s participation in the anti-Israel BDS movement. [See here and here to bring yourself up to speed, if needed.] Recently, during a legal training session in Jerusalem with many high-ranking Israeli jurists, I was struck by how many Israelis knew about the scandal — the mere mention that I worked in Virginia was enough to elicit sighs of dismay. No other American Bar association has singled out Israel in this way, I was told.
Upon my return, I was made aware of a remarkable letter sent on April 15, 2015 to Kevin Martingayle (then-President of the VSB) by Col. David Yahav, who retired from Tzahal (the Israeli Defense Forces) after 27 years of service. Because Martingayle (I am told) never responded to Col. Yahav’s letter, I have concluded that it merits wider publicity.
Yahav begins his letter by summarizing his legal qualifications. He served as General Counsel of the IDF in Gaza and Northern Sinai, as well as in the Judea and Samaria region (a.k.a. the West Bank — see here for a discussion of “occupied territories” as the term relates to international law). He served as the Head of the International Law Department of Israel’s JAG office, and was Deputy Judge Advocate General. His responsibilities included serving as Counsel to government ministries on matters involving legal issues relating to the territories in general, and to crossings and checkpoint entries with Israel in particular. As part of his responsibilities, he frequently dealt with procedures related to entry and departure through these crossings and checkpoints. He also happens to have graduated from the United States Army JAG school at the University of Virginia. Perhaps as much as any other human being in the world, Col. Yahav is familiar with the legal provisions and procedures governing entrance into Israel.
Yahav’s letter to Martingayle quotes from the petition signed by 36 members of the VSB, which served to justify the Bar’s decision to boycott Israel by canceling a seminar planned there. The petition made the following claim:
“Furthermore, any person deemed by Israel to be a Palestinian national (including those with U.S. citizenship) is outright refused entry into Israel. Thus members of the Bar deemed to be Palestinian nationals are inexcusably banned from the 2015 Midyear Legal Seminar.”
Yahav’s letter establishes, in the Colonel’s words, that “This claim is unreservedly and totally false.” If made knowingly the claim would be a Big Lie. Legal provisions dealing with entrance to Israel apply to all passengers entering into and departing from Israel. The claim of discrimination based on race, religion or nationality related to incoming or departing passengers is baseless and fundamentally contrary to law and to practice. Indeed, the security policies employed byIsrael are similar to the policies employed by every democratic country, including the United States. Entry is barred for NO group. Individual examinations and interrogations are carried out in a respectful, careful and polite manner. Israel, like the United States, is entitled to perform a security check on anyone who enters the country, especially as Israel is the preferred target for various organizations who desire to harm it and to engage in acts of terror.
[I personally add that any human being who has spent time at Ben Gurion International Airport, or on any plane headed to that airport, knows full well that Arabs use Ben Gurion as their point of ingress and egress to and from Israel. Israel even accommodates them by issuing detachable entry slips instead of stamping their passports, since so many Arab countries themselves discriminate by refusing to admit those whose passports are “tainted” with an Israeli stamp.]
Colonel Yahav adds an interesting note that may not be currently understood by American readers. The complainants who successfully sought the VSB boycott on the grounds of alleged discrimination sought support in a State Department communication that originally emanated from the U.S. Consulate in Jerusalem. What is not widely known is that that consulate sees itself as a liaison to Palestinian interests, and is not in contact with any government body in Israel. [This is a perpetual insult to Israel, by the way — the U.S consulate in Jerusalem, Israel’s capital, behaves as if it were not in Israel, and refers all Israeli questions to the embassy in Tel Aviv.] As Colonel Yahav notes, the Jerusalem consulate frequently relies on unverified complaints lodged by those who wish to delegitimize Israel. ”Regrettably,” he writes, “my experience has shown that “factual determinations” detailed in the State Department reports are only partial, and often lack any legal or factual basis.”
By the way, the Colonel adds that any group denied entry to Israel on ethnic or national grounds would have immediate and direct recourse to the Israeli Supreme Court, which does not hesitate to intervene via rapid-fire injunction if needed.
It’s remarkable that the Virginia State Bar chose not to pursue its investigation much further than reading the complaint letter and the State Department message. An interview with Israeli government officials would quickly have contradicted the claim of bias — I think due process would have at least required that. Due process would have revealed to the VSB that the Oslo peace accords included a provision whereby Israel agreed to the Palestinian Authority’s request that Palestinians with dual citizenship, listed in the official Palestinian Authority population registry, must enter the West Bank via the Allenby Bridge crossing from Jordan and not via Israeli territory. Israel had therefore prevented many Palestinian-Americans who wished to visit both Israel and the West Bank from entering the country via Ben-Gurion Airport, not because it wanted to ban them but because the Palestinian Authority insisted on snubbing Israel by denying its legitimacy in this way. In any case, in early 2014, almost a year BEFORE the VSB cancellation and after protests from the U.S. that American citizens were being treated differentially because they were of Palestinian descent, Israel chose to exempt Palestinian Americans from the Oslo clause and to allow them to enter Israel at Ben Gurion even if they were headed to the West Bank. [Those headed only for Jerusalem or elsewhere outside the West Bank never had any issue.] In other words, the PA alone was responsible for the old policy, which didn’t cover Jerusalem anyway, and Israel determined to end it even at the risk of violating the Oslo accords. The VSB could have found this all out had it accorded due process to Israel before announcing the cancellation of the meeting.
The BDS movement relies heavily on public ignorance to make its claims persuasive, as former Ambassador Freddy Eytan recently noted. By succumbing to a letter that was either misinformed or malicious, the State Bar has corroborated Ambassador Eytan’s claim. In so doing, the VSB furthered the facile and ultimately anti-Semitic effort to reject the only liberal democracy in the Middle East.
Colonel Yahav called upon the Virginia State Bar to reverse its decision to cancel its Midyear legal seminar. The VSB did not comply or, apparently, even respond. The State Bar now has a different President. Mr. President, I respectfully suggest that an apology is in order.
