Ben and Jerry’s: The cherry on top of the sundae

Ben and Jerry’s: The cherry on top of the sundae

It isn’t about Ben and Jerry’s. It’s about decades of history.

In 1967, then Israeli Prime Minister Levi Eshkol asked Theodor Meron, the legal advisor to the Foreign Ministry, whether it would be legal under international law to establish settlements in the West Bank. Meron advised him that it would not. Eshkol, like every subsequent Israeli Prime Minister, ignored him, and authorized settlements anyway.

Michael Sfard, an Israeli human rights lawyer, explains, “International law does not designate occupation as something that is illegal. It acknowledges that occupations happen in times of war and it desires to regulate it and also to push the parties into ending the occupation…. An occupation is a kind of trusteeship where the beneficiaries are the occupied people…. One of the only prohibitions under international laws of occupation, which knows no exception, is the prohibition on establishing settlements, on transferring parts of your own population into the occupied territory.”

So the settlements have been illegal under international law from the beginning, and they are still illegal. This stands in stark contrast with the State of Israel itself, whose formation was sanctioned by the United Nations, and whose pre-1967 borders are accepted by the international community, including the PLO and the Arab states.

Israel’s right to exist within internationally recognized borders is based not only on law, but also on ethical and practical considerations. Nations that do not have their own countries do not fare well in the world. That was the insight that Herzl had while covering the Dreyfus trial, where anti-Semitic forces were able to run roughshod over the stateless Jews. It also could be seen when country after country turned away the St. Louis, a ship carrying Jewish refugees from Nazi Germany, sending many to their deaths.

The same can be said of other stateless nations. Consider, for example, the world’s treatment of the Kurds and the Roma. This is why the Palestinians, no less than the Jews, are entitled to their own country.

But one need not sympathize with the rights of the Palestinians to see the benefit of their having a state. Ending the occupation of the West Bank in favor of a Palestinian state would release Israel from the demographic dilemma it now faces. By occupying the West Bank, Israel finds under its control a great many people to whom it does not wish to grant citizenship. Granting citizenship would make Israel no longer a Jewish state. Withholding it while absorbing the territory, in addition to being illegal as discussed above, would make Israel no longer a democracy. Deferring the decision indefinitely by trying to maintain an unstable status quo is denying reality.

The occupation and the settlements create unbearable hardships for the Palestinians, and they stand in the way of a negotiated two-state solution, which, despite widespread skepticism, remains the only viable solution to the problems of the Israelis and the Palestinians.

So what does all this have to do with Ben and Jerry’s? It is in the light of this history that Ben and Jerry’s made the decision to stop selling its products in the settlements, while continuing to offer them within the internationally recognized borders of the State of Israel. But let it be clear: Ben and Jerry’s did not create this problem. They are the cherry on top of a sundae that has been built up, layer by layer, for decades, or, depending on your point of view, for centuries.

Now, the government of Israel is leaning on various U. S. states, many of which have passed laws calling for government action against those who boycott Israel or the settlements, to invoke these laws against Ben and Jerry’s. Courts have found some of these laws unconstitutional; others have not yet been challenged in court. In addition to their possible violations of the First Amendment, these laws are seriously troubling by lumping action against illegal settlements in with action against the State of Israel.

I do not advocate boycotting Israel, although I don’t think governments in a free society ought to try to prevent it. However, Ben and Jerry’s definitely is not boycotting Israel; it is boycotting illegal settlements.

The settlements are not Israel. Israel is not the settlements. Israel cannot wave a magic wand and make what is illegal under international law legal. (By the way, a negotiated agreement could make some settlements legal, but no such agreement currently exists.) Nor should Israel be allowed to do what we went to war against Iraq to prevent when Saddam Hussein illegally annexed Kuwait. The de facto annexation Israel practices by expanding settlements and other actions is still annexation. And if the settlements are Israel, then why don’t the Palestinians living among them have the legal rights that Palestinians have in Israel proper? Israel is a democracy, if a flawed one. The occupied territories are not. If Israel wants to pretend that they are part of Israel, then it is foregoing the right to proclaim Israel a democracy.

This is the problem. The problem is the occupation and the illegal settlements that jeopardize the future of the Palestinians and also that of the State of Israel. Ben and Jerry’s are merely responding to it. Let’s not shoot the messenger. Let’s listen to the message.

Martin J. Levine of Maplewood is a volunteer leader of J Street and a member of its New Jersey chapter’s steering committee.