Frankfurter professor of law at Harvard Law School.
Opinion page, Harvard Crimson, Sept. 23, 2002
In my 38 years of teaching at Harvard Law School, I don't recall ever
writing in praise of any action by a Harvard president, but this time
I
must congratulate President Lawrence H. Summers for his willingness
to
say out loud what many of us in the Harvard community have long believed:
namely, that singling out Israel, among all the countries in the world,
for
divestment, is an action which is anti-Semitic in effect, if not in
intent.
A recent open letter by one of the signatories [of the boycott petition]
made it clear that he regards Israel as the "pariah" state, a word
historically used by anti-Semites to characterize the Jewish people.
As an advocate and practitioner of human rights throughout the world,
I
can confidently assert that Israel's record on human rights is among
the
best, especially among nations that have confronted comparable threats.
Though far from perfect, Israel has shown extraordinary concern for
avoiding civilian casualties in its half-century effort to protect
its
civilians from terrorism. Jordan killed more Palestinians in a single
month than Israel has between 1948 and the present.
Israel has the only independent judiciary in the entire Middle East.
Its
Supreme Court, one of the most highly regarded in the world, is the
only
court in the Middle East from which an Arab or a Muslim can expect
justice,
as many have found in winning dozens of victories against the Israeli
government, the Israeli military and individual Israeli citizens.
There is no more important component in the protection of human rights
and civil liberties than an independent judiciary willing to stand
up to
its own government. I challenge the proponents of divestment to name
a
court in any Arab or Muslim country that is comparable to the Israeli
Supreme Court. Israel is the only country in the region that has virtually
unlimited freedom of speech. Any person in Israel whether Jewish, Muslim
or
Christian can criticize the Israeli government and its leaders. No
citizen of any other Middle Eastern or Muslim state can do that without
fear of
imprisonment or death.
Israel is the only country that has openly confronted the difficult
issue of protecting the civil liberties of the ticking bomb terrorist.
The Israeli Supreme
Court recently ruled that despite the potential benefits of employing
non-lethal torture to extract information, the tactic is illegal.
Brutal torture, including lethal torture, is commonplace in nearly every
other Middle Eastern and Muslim country. Indeed, American authorities
sometimes send suspects to Egypt, Jordan and the Philippines precisely
because they know that they will be tortured in those countries. Nor is
Israel
the only country that is occupying lands claimed by others.China, Russia,
Turkey, Iraq, Spain, France and numerous other countries control not only
land, but people who seek independence. Indeed, among these countries
Israel is the only one that has offered statehood, first in 1948 when the
Palestinians rejected the UN partition
which would have given them a large, independent state and chose instead
to invade Israel. Again in the year 2000 Palestinians were offered a state,
rejected it and employed terrorism.
There are, of course, difficult issues to be resolved in the Middle
East. These include the future of the settlements, the establishment
of
Palestinian self-governance and the prevention of terrorism. These
issues will require compromise on all sides.
Members of the Harvard community must be free to criticize Israel when
they disagree with its policies or actions, as they criticize any other
country in the world whose record is not perfect. But to single out
the
Jewish state of Israel, as if it were the worst human rights offender,
is bigotry pure and simple. It would be comparable to singling out
a
black nation for de-legitimation without mentioning worse abuses by
white nations.
Those who sign the divestment petition should be ashamed of themselves.
If they are not, it is up to others to shame them.
Among those who signed this immoral petition was Winthrop House Master
Paul Hanson. I wrote to Prof. Hanson challenging him to debate me in
the
Common Room of Winthrop House about his decision to sign the petition.
He refused, citing "other priorities." I can imagine few priorities
more
pressing than to justify to his students why he is willing to single
out
Israel for special criticism.
Accordingly, I hereby request an invitation from the students of
Winthrop House to conduct such a debate, either with Hanson present
or
with an empty chair on which the petition which he signed would be
featured. Universities should encourage widespread debate and discussion
about divisive and controversial issues. A House master who peremptorily
signs a petition and then hides behind "other priorities" does not
serve
the interests of dialogue and education. I hope that Hanson will accept
my challenge, and that if he does not, that I will be invited by his
students to help fill the educational gap left by the cowardice of
those
who have signed this petition and refuse to defend their actions in
public debate.
Let me propose an alternative to singling out Israel for divestment:
let
Harvard choose nations for investment in the order of the human rights
records. If that were done, investment in Israel would increase dramatically,
while investments in Saudi Arabia, Egypt, Jordan,
Philippines, Indonesia, the Palestinian Authority and most other
countries of the world would decrease markedly.