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September 23, 2014 / 28 Elul, 5774
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Posts Tagged ‘International Law’

Iran’s Unhidden Plan for Genocide: A Legal Right to Prevent Genocide? (Second of Three Parts)

Monday, March 25th, 2013

Originally published under the title “Iran’s Unhidden Plan for Genocide: A Legal Assessment (Second of Three Parts).” 

On June 7, 1981, Israel launched Operation Opera against Saddam Hussein’s nuclear reactor outside Baghdad. Officially, this preemptive attack on Osiraq – which ultimately saved a great many American and other lives ten years later, during the first Gulf War, was an expression of anticipatory self-defense. Interestingly, however, because Iraq had always considered itself to be formally at war with Israel, the Jewish state could just as easily and correctly have regarded this essential act of preemptive self-defense as something else.

Back in 1981, taking an alternative legal position, Prime Minister Menachem Begin could have justified Operation Opera as a permissible tactical action in the wider context of a longstanding and ongoing belligerency. Had he done so, Israel could then have pointed out that both of the pertinent legal obligations applying here had also been fully satisfied. These are the always twin obligations of “just cause” (facing an existential threat), and “just means” (minimizing collateral harms). To be acceptable, any act of anticipatory self-defense would have to fulfill classic law of war expectations that the means used to injure an enemy are not unlimited.

Jurisprudentially, it is significant that Begin chose, explicitly, to link Operation Opera to preventing, in his words, “another Holocaust.” Historically, of course, the rationale of including anticipatory self-defense under customary international law had been the prevention of aggression, not genocide. Logically, it was not until 1951, when the Genocide Convention first entered into force, that the legal question of defensive first strikes to forestall such crimes against humanity could even have been raised.

After the Holocaust, and subsequent Nuremberg Trials, it became plain that the prerogatives of sovereignty in world law could no longer remain absolute, and that the once-legitimate cover of “domestic jurisdiction” would now have to exclude certain crimes against human rights. With this very fundamental transformation, individual human life was to be held sacred everywhere, and individual states were no longer automatically precluded from entering into the “territorial sphere of validity” of other states. On the contrary, from then on the traditional norm of “non-intervention” would need to yield to indisputably compelling judgments of “international concern.”

It was now the reasonable expectation that all states, either individually or collectively, would acknowledge a distinct and overriding legal obligation to prevent Nuremberg-category crimes (after 1951, crimes of genocide) in other states, even to the extent of undertaking active intervention within those sovereign states.

This critical obligation was strongly reinforced at Articles 55 and 56 of the United Nations Charter, a core document that has the formal status of a multilateral treaty. Today we speak of all such permissible interventions as “humanitarian.” Sometimes diplomats and scholars prefer the closely related term “The Responsibility to Protect.”

Whichever term is preferred, the international legal order now accepts and expects that all states will feel co-responsible for each other, including the prevention of genocide and certain corollary crimes against humanity. Examples of this collaborative expectation, a concept that makes incontestably good sense in our still-anarchic system of world law – a system that first came into being in 1648, when the Treaty of Westphalia ended the Thirty Years’ War and that has yet to be replaced with genuinely effective supra-national legal institutions – can be found in at least four prominent post-Holocaust cases:

(1) the Tanzania-led invasion of Uganda in 1979, which put an end to Idi Amin’s almost decade-long genocide against the Acholi and Langi tribes;

(2) the Vietnamese invasion of Cambodia in 1979, which put an end to the Khmer Rouge mass murder of almost 2,000,000 people, a genocide that had targeted several diverse populations along many different ethnic, cultural, and tribal lines;

(3) the 1971 genocide against Bengali people, the “Bangladesh Genocide,” which covered an area then originally known as “East Pakistan,” and that was finally stopped by massive Indian military intervention; and

(4) the 1994 invasion of Rwanda by Tutsi rebels who had been “hosted” in neighboring Burundi, and also in the Democratic Republic of the Congo. This genocide, perpetrated largely by Hutu extremists (the interahamwe) produced almost 1,000,000 deaths in ninety-days, making it the “fastest” genocidal mass murder in human history. It is also infamously noteworthy because the European powers, the United States, and the United Nations had all abandoned every shred of responsibility for humanitarian intervention or the responsibility to protect.

The New Strategic Environment

Tuesday, March 19th, 2013

The way it looks now, it seems that the regime of al-Assad will not last more than a number of days or weeks. A coalition of Sunni jihad organizations will succeed in toppling the government of an Arab state despite the state having used every weapon in its arsenal – including scud missiles – in order to survive.

During the past two years all of the red lines have been crossed in Syria , and both sides are sunk deep in this dirty, ugly struggle, which is fought with no moral or legal constraints.  Tens of thousands of citizens, women, children and elderly, have been brutally murdered , hundreds of thousands of houses and apartments have been rendered uninhabitable; infrastructures of the country are collapsing; the economy is paralyzed and the organizational framework of the state is falling apart.

The success of the Sunni coalition (Turkey, Qatar, Saudi Arabia, Jordan) in eliminating the heretical Alawite regime, which is supported by a Shi’ite coalition (Iran, Iraq and Hizb’Allah) might trigger a wave of terror in Arab countries, especially in Iraq and Turkey, because oppressed groups in these countries – such as Sunnis in Iraq and the Kurds in Turkey – will be encouraged by the success of the jihad organizations that are fighting in Syria and by the methods that they used in their battle against the regime.

This filthy war taking place in Syria is not a battle of good versus evil, because the regime and the rebels have both used inhumane, illegal and immoral practices. Both sides have committed crimes against humanity by eliminating groups of citizens indiscriminately and both sides have resorted to repressive measures and degrading treatment of helpless citizens.

As soon as the violence began, for example, the rebels understood that every time they show up in an open area, the forces of the regime could easily destroy them with merciless determination, so they transferred their activity to the crowded urban and settled areas. As a result, they turned citizens into human shields, without their having any say in the matter, dragging the cities and the settled neighborhoods into a rebellion that they were not at all interested in.

THE MOST SIGNIFICANT feature of the rebellion in Syria is that it has become a magnet for jihadists from all over the Arab and Muslim world who poured into Syria to take part in the jihad against the heretical ‘Alawites and their tyrannical regime. As of today there are hundreds of combat groups in Syria, and a few tens of them speak non-Syrian Arabic dialects such as Iraqi, Saudi and Moroccan. The linguistic diversity is even more complex because some of the jihadists speak non-Arabic Muslim languages – Turkish, Bosnian, Chechen, Pashtu (Afghanistan), Urdu (Pakistan) and languages from the Caucasus. The problem with having to deal with a multitude of dialects and languages is that the intelligence organizations get a significant amount of information by listening to various means of communication, but their work may have no value, because it is especially the most dangerous groups that speak dialects and languages not understood by the listeners of other countries that exist in the area.

Conventional forces too will have a great problem in dealing with jihadi communication methods. The jihadist organizations – contrary to a regular army- use the internet as a means of passing messages, reports and commands, and it is not easy to detect the communications channels they are using in the civilian network. There are organizations that pass coded messages via the internet, and it is difficult to identify, locate and decode them. Also the way the jihadist organizations use other civilian networks such as cellular telephones, makes it difficult to locate their communications and to keep track of their operatives.

The intelligence problem becomes even more complicated regarding visual intelligence, where the information is collected from observation points on the ground and in the air. Military intelligence gatherers undergo training on the various types of tanks, cannon, and the rest tools of destruction that a regular army has. But how are they supposed to identify jihadists? According to the type of jeans or T-shirt he’s wearing? According to the type of hiarcut or beard? The problem of identification becomes more difficult regarding vehicles in the service of jihadists, which are ordinary vehicles,indistinguishable from many others. How is a drone or someone who sees the material photographed by the drone supposed to identify the vehicle of a jihadist?

The Frum Professor’s Legal Case for Israel: The Video

Tuesday, February 19th, 2013

Do you suffer from International Law Insecurity? Do you stutter incoherently when someone tells you that “Israeli settlements in the ‘West Bank’ are illegal under international law?” What about when they say “the International Court of Justice has judged Israel’s security barrier to be illegal?” Or when they call the area east of the Green Line “occupied Palestinian territory?”

Guess what? It’s all a bunch of crap, to use a technical expression.

As reported yesterday on the JewishPress.com, here, in one 46-minute lecture, is a clear explanation of what international law is and is not, and how it applies to some of the controversies around the Jewish state.

Eugene Kontorovich is Professor of Law at Northwestern University and an expert in international law.

Visit Fresno Zionism.

Pillar of Defense: Separating Appearance from Reality

Wednesday, January 23rd, 2013

This article appeared in the print version as After Pillar of Defense: Separating Appearance From Reality (Part II)

Editor’s note: This is part two of an article published last week. Click here for part one.

Terrorism is always more than bad behavior. Terrorism is a distinct and codified crime under international law. When terrorists represent populations that enthusiastically support such attacks, and where these terrorists can also find an easy refuge among hospitable populations, responsibility for ensuing counterterrorist harm must lie with the criminals.

In law, truth can sometimes be counterintuitive. Understood in terms of an inevitably still ongoing cycle of Palestinian terrorism and Israeli self-defense, the Palestinian side must bear full legal responsibility for Arab civilian casualties in Gaza. After all, without their premeditated attacks on Israeli civilian populations, there would have been no Palestinian casualties.

International law, as I have repeated so many times in this space, is not a suicide pact. Unambiguously, it offers an authoritative body of rules and procedures that permits states to express their inherent right of self-defense. When terrorist organizations openly celebrate the “martyrdom” of Palestinian children, and when Palestinian leaders unashamedly seek religious redemption through the mass murder of Jewish children, the terrorists understandably have no legal right to demand sanctuary.

Under international law, these criminals are hostes humani generis, “common enemies of humankind.” Significantly, in law such murderers must be punished severely wherever they are found. Concerning their arrest and prosecution, jurisdiction is now, after Nuremberg, universal.

Palestinian terrorism, even during its very occasional slow periods, has become all too familiar. In addition to rockets, the killers – using bombs filled with nails, razor blades, and screws dipped in rat poison – seek to maim and burn Israeli civilians. Generally this objective is sought with cheers and abundant blessings from the leading Islamic clergy.

Why do they feel this way? In the precise words of a major Hamas leadership figure, “The Jews [not “the Israelis”] lack sanctity.”

There is also considerable irony here. Those arrogant Palestinian commanders who directly control the suicide-bombers’ mayhem always cower fearfully in their towns and cities, taking meticulous care to find personal safety amid densely packed Arab populations. In addition to assorted Israel Air Force (IAF) units, other special IDF counterterrorism and commando elements meticulously identify and target only terrorist leaders in order to minimize any collateral harm. Such harm can’t inevitably be avoided by the self-defending party, even by the IDF, which actually follows its obligatory purity of arms code more stringently than any other army on earth.

Deception can be legally acceptable in armed conflict, but the Hague Regulations disallow placement of military assets or personnel in heavily populated civilian areas. Further prohibition of perfidy is found at Protocol I of 1977, additional to theGeneva Conventions of 1949. It is widely recognized that these rules are also binding on the basis of customary international law.

Perfidy represents an especially serious violation of the Law of War, one identified as a “grave breach” at Article 147 of Geneva Convention IV. The critical legal effect of perfidy committed by Palestinian terrorist leaders in Gaza was to immunize Israel from any responsibility for unintended counterterrorist harms done to Arab civilians. Even if Hamas and Fatah and Islamic Jihad and their sister terror groups did not deliberately engage in perfidy, any Palestinian-created link between civilians and terrorist activities would have granted Israel full legal justification for appropriately defensive military action. Operation Pillar of Defense was an obvious case in point.

Again, international law is not a suicide pact. All combatants, including Palestinian insurgents, are bound by the Law of War. This requirement is found at Article 3, common to the four Geneva Conventions of August 12, 1949, and at the two protocols to these Conventions.

Protocol I applies humanitarian international law to all conflicts fought for “self-determination,” the stated objective of all Palestinian fighters. A product of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1977), this protocol brings all irregular forces within the full scope of international law.

In this connection, the terms “fighter” and “irregular” are conspicuously generous in describing Palestinian terrorists, fanatical criminals who target only civilians and whose characteristic mode of “battle” is not military engagement, but religious sacrifice.

In the final analysis, virtually all Palestinian terrorism is rooted in a culture-wide search for immunity from personal death. It follows that there can be no greater cowardice than what is expressed by this form of terror.

Nostrums And Clichés

Wednesday, July 18th, 2012

The New York Times greeted the release of the Levy Report with a not unexpected shrill editorial that captured the sentiment of the Arab world, the consensus of international opinion, and the view of not a few Jewish organizations here in the U.S.

They should all calm down and actually read the report, a closely reasoned exposition on international law and the meaning of “occupation” and why Israel’s presence in East Jerusalem and the West Bank does not constitute the same. While many will no doubt disagree with its conclusions, they will no longer be able to drone on, mantra-like, in support of the Palestinians – at least not with a straight face.

We do not delude ourselves into hoping the political situation will change, but now there is something supporting an alternative point of view for those interested. A new framework for discussion, we believe, is upon us.

In an editorial last Tuesday entitled, “Wrong Time for New Settlements,” The Times said in part:

Palestinian hopes for an independent state are growing dimmer all the time. Israel is pushing ahead with new settlements in the West Bank and asserting control over new sections of East Jerusalem, which the Palestinians claim as their capital. Meanwhile, peace talks – the best guarantee of a durable solution – are going nowhere.Now comes another, potentially disastrous, blow. An Israeli government- appointed commission on Monday issued a report asserting that Israel’s 45-year presence in the West Bank is not occupation. The commission endorsed the state’s legal right to settle there and recommended that the state approve scores of new Israeli settlements…. Although non-binding, the commission’s recommendations are bad law, bad policy and bad politics. Most of the world views the West Bank, which was taken by Israel from Jordan in the 1967 war, as occupied territory and all Israeli construction there as a violation of international law.

As the details of the Levy Commission analysis become better known it will not suffice for the Times and others to simply fall back on traditional nostrums and clichés. It’s certainly telling that the Times attempted no discussion of the merits of the report.

Separate and apart from its merits in terms of legal analysis, the report can serve as an incentive for the Palestinians to get back to the negotiating table. If the Palestinians sense a hardening of Israeli resolve in terms of refusing to accede to the Palestinian narrative, perhaps they will return to the negotiating table without preconditions.

The Times doesn’t mention Palestinian recalcitrance as being any sort of impediment to resumed talks – only Israel’s settlement policy. Really helpful would be a Times editorial that for once eschewed condemnation of Israel and instead implored the Palestinians to at long last embrace reality and make a deal.

After 45 years, Judea and Samaria are not ‘occupied’

Wednesday, July 11th, 2012

http://fresnozionism.org/2012/07/after-45-years-judea-and-samaria-are-not-occupied/

News item:

Retired Supreme Court Justice Edmond Levy, who heads a committee tasked with examining the legality of Jewish construction in Judea and Samaria, declared on Tuesday that Israelis have a legal right to settle the region.

“According to international law, Israelis have a legal right to settle all of Judea and Samaria, at the very least the lands that Israel controls under agreements with the Palestinian Authority,” Levy stated. “Therefore, the establishment of Jewish settlements [in Judea and Samaria] is, in itself, not illegal.”

The committee was established by Prime Minister Benjamin Netanyahu in efforts to determine and cement the legal status of the outposts in Judea and Samaria, with an emphasis on communities that were not built on privately owned Palestinian land but their status was still in doubt due to legal bureaucracy.

The committee issued its report on Tuesday, which was subsequently handed over to Attorney-General Yehuda Weinstein. In the report, Levy wrote that “upon completing the committee’s tasks, and considering the testimonies heard, the basic conclusion is that from an international law perspective, the laws of ‘occupation’ do not apply to the unique historic and legal circumstances surrounding Israel’s decades-long presence in Judea and Samaria.”

“Likewise,” the report said, “the Fourth Geneva Convention [relative to the Protection of Civilian Persons in Time of War] on the transfer of populations does not apply, and wasn’t intended to apply to communities such as those established by Israel in Judea and Samaria.”

None of this is actually ‘news’. Legal scholars like Eugene Rostow and others have argued for years that the proper status of Judea and Samaria is as disputed territory, to which Israel has a prima facie claim.

Unfortunately, the official Israeli position has been that it is a ‘belligerent occupation.’ Such an occupation is defined as temporary, arising from a war between nations, one of which occupies the territory of another. It must be ended by a peace treaty between the parties, since acquisition of land by conquest is forbidden by the UN charter.

This position never made a lick of sense. In addition to ignoring the rights accruing to the Jewish people under the Mandate, it could not explain how Israel could be ‘occupying’ something whose last owner was the Ottoman Empire.

Not only did it not make sense, it provided a door through which Israel’s enemies have entered. For one thing, it means that Israel can’t annex any of it without a peace treaty. But with whom could such a treaty be concluded — the Ottomans, who don’t exist; the Jordanians, who illegally invaded it in 1948; or the PLO, which never ruled the area?

If the Israeli conquest of Judea and Samaria in 1967 and its expulsion of the Jordanian Army did represent an ‘occupation’, then that implies that the Jordanian presence was legitimate, and that the heirs of the Jordanians, the ‘Palestinians’ — represented by the PLO, a terrorist gang that should have zero legitimacy — now have some kind of ‘right’ to the area.

This is too incoherent to be even half-convincing. But what happened is that the PLO conflated the idea of rights granted by international law, which it did not have, with political claims — Palestinians are ‘indigenous’, theirs is a struggle for ‘national liberation’ against an ‘oppressor’, it’s ‘Arab land’, etc.

Those who would prefer that there be no Jewish state found these ideas congenial, and soon accepted the idea of a Palestinian ‘right’ to Judea and Samaria. They began to say “settlements are illegal under international law,” and that they are on “Palestinian land,” despite the fact that this is nonsense.

Unfortunately, Israeli governments did not take the correct line from the beginning. By not vehemently opposing Arab claims, insisting that the territory was disputed rather than occupied, and asserting Israel’s own rights under the Mandate, they allowed the PLO — with the willing connivance of anti-Zionist forces throughout the world — to make its point of view part of the conventional wisdom.

So we have statements like this one, from US State Department spokesman Patrick Ventrell:

…the U.S. position on settlements is clear. Obviously, we’ve seen the reports that an Israeli Government appointed panel has recommended legalizing dozens of Israeli settlements in the West Bank, but we do not accept the legitimacy of continued Israeli settlement activity and we oppose any effort to legalize settlement outposts.

It may be too late to change worldwide perceptions, but I hope Netanyahu’s government will adopt the report and realign its policy — not just about settlements, but its overall position regarding the ‘peace process’ and the Palestinians in keeping with the findings of the committee.

Obama, Netanyahu And Palestine: A Partnership In Futility And Dishonor

Tuesday, September 27th, 2011

All people, Jews or gentiles, who dare not defend themselves when they know they are in the right, who submit to punishment not because of what they have done but because of who they are, are already dead by their own decision; and whether or not they survive physically depends on chance. If circumstances are not favorable, they end up in gas chambers.

Bruno Bettelheim, “Freud’s Vienna and Other Essays”

Bettelheim, like the Greek poet Homer, understands that the force that does not kill, that does not kill just yet, can turn a human being into stone, into a thing, even while it is still alive. Merely hanging ominously over the head of the vulnerable creature it can choose to kill at any moment, poised lasciviously to destroy breath in what it has somehow “graciously” allowed, if only for a few more moments, to breathe; this force indelicately mocks the fragile life it intends to consume.

As for the pitiable human being who stands helplessly before this force, he or she has effectively already become a corpse.

Israel, in some respects, is this “pitiable human being” in macrocosm, now at the threshold of becoming a thing. Still called upon by U.S. President Obama and Secretary of State Hillary Clinton to negotiate with unrepentant terrorists, Prime Minister Netanyahu has agreed to accept certain forms of Palestinian statehood, at least in principle. Strongly hoping not to be identified as an “obstruction to peace,” Mr. Netanyahu has somehow managed to discover reassurance in his openly-stated expectations for Palestinian demilitarization.

There is no chance, of course, that any Palestinian state would ever consent to its own demilitarization. Any such refusal to demilitarize would be entirely consistent with authoritative international law. This is the case even if the Palestinian negotiators, in their pre-independence form, had formally agreed to such a limiting condition.

Several years ago, in a burst of presumed strategic ingenuity, Israel decided to arm Hamas against Fatah. Islamic fundamentalists, they reasoned in Jerusalem and Tel Aviv, must surely be “better” than Yassir Arafat and his likely successors. Now, in Jerusalem, Prime Minister Netanyahu operates on the very opposite understanding. In both cases, Israel’s leaders, pressured by an American president, have missed an overriding point: Both Hamasand Fatah, even as they intermittently fail to achieve any true reconciliation with each other, still remain fully committed to Israel’s annihilation.

Neither terror organization should ever be expected to serve Israel’s security interests.

Neither Hamas nor Fatah could ever become a willing subcontractor for Jewish national survival.

Oddly enough, until very recently the United States, similarly confused, in a program begun under President George W. Bush, and continued under President Obama, spent several hundred million dollars giving advanced military training to Fatahforces in Jordan.

Now, Hamas terrorists in Gaza, aided by Iran, are able to fire substantially upgraded military-issue rockets into southern Israel. When Israel retaliates, as it must, not only Hamas, but also Fatah, cheerfully and systematically exploit the indispensable reprisal for specifically propagandistic benefit. Ironically, the more Arabs who die as a consequence of the Israeli counter-terrorism operation, the (presumed) better for both Hamas, and for Mahmoud Abbas’ Fatah/Palestinian Authority. After all, if only there were a Palestinian state, Israel could be prevented, in the future, from inflicting such further harms upon innocent Gaza populations.

From the standpoint of international law, the Abbas plan is a textbook case of perfidy. The Arab side is committing multiple violations of the law of war, or the law of armed conflict, for the express purpose of eliciting deliberate harm to its own civilians. Moreover, in addition to deliberately placing Gaza civilians in harm’s way, Hamas steadfastly refuses to acknowledge that the obligatory IDF self-defense actions are always scrupulously discriminate, conforming not only to the law of war, but also to its own even-stricter national code concerning “Purity of Arms.”

Arguably, the Arab world ought to at least be grateful to Netanyahu for neglecting to emphasize the core contrast between its own purposefully provocative criminal excursions into terror, and Israel’s reciprocal and carefully-measured efforts at counter-terror. Similarly, both Hamas and Fatah should be very pleased that Mr. Netanyahu has not flatly ruled out a Palestinian state under all circumstances. Significantly, such a broad-based exclusion could be altogether correct, morally and jurisprudentially. It would also certainly be in Israel’s overall survival interests.

International law is not a suicide pact. Nonetheless, the Arab world does not willingly play the gentleman. In this respect, at least, it is an honest world.

Even today, even while Netanyahu still agrees to follow the road map, the Palestinian Authority map of Palestine remains undisguised. On this unhidden bit of cartography, Palestine still includes all of Israel. There are no two-states on the maps of “moderate” leader Mahmoud Abbas, the ungrateful beneficiary of huge amounts of money “donated” by unsuspecting American taxpayers. There is only one.

However unintentionally, and under all of its prime ministers since Begin, Israel has more-or-less come to accept a deformed image of itself, an image spawned not in Jerusalem or Hebron, but in Washington, Ramallah and Gaza. Degraded and debased, this is the view not of a strong and righteous people, determined to stand upright in its own land, forever, but of an already-deceased victim, resigned, a conspicuously-lacquered corpse-in-waiting. To be sure, large majorities of Israelis have always fought courageously against precisely such an intolerable view, against the endlessly hapless visions of disengagements, realignments, and peace processes,” but this demeaning image is still very much alive. In certain quarters in Israel, it is plainly fashionable; in these circles, it is even de rigeur.

The moral confusion of so many Jewish intellectuals emboldens Israel’s enemies. Writing several years ago about Israel’s Oslo Agreements, precursor of the road map, Israeli novelist Aharon Megged had observed: “We have witnessed a phenomenon which probably has no parallel in history; an emotional and moral identification by the majority of Israel’s intelligentsia with people openly committed to our annihilation.” Bewilderingly, this unique identification has taken poisonous root in a succession of Israeli governments, and shows no real signs of abating.

For nation-states, as for individual human beings, there can be no hope for survival in the absence of true and unapologetic conviction. Bruno Bettelheim would have understood.

 

LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Professor of Political Science and International Law at Purdue. He is the author of many books and articles dealing with Israeli security issues. In Israel, he was Chair of Project Daniel. Professor Beres is Strategic and Military Affairs columnist for The Jewish Press.

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/obama-netanyahu-and-palestine-a-partnership-in-futility-and-dishonor/2011/09/27/

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