Washington Discovers the Occupation Is not a Good Thing

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AP Photo/Sebastian Scheiner, File

Dan Shapiro is not just a diplomat, but the U.S. ambassador to Israel. For someone in that politically fraught job, Shapiro made an unusually clear remark this week about Israel's actions in the occupied West Bank.

But before looking at Shapiro's comments, I must tell a story.

On a Friday in March 2014, Abbas Momani-a Palestinian photographer for the AFP news agency-drove to the Jalazun refugee camp near Ramallah to shoot a weekly, virtually ritual confrontation between Palestinian teens and Israeli soldiers and police. Momani was a bit late. The Israeli forces had already broken up the Palestinian protest, which had included throwing rocks at the adjacent Israeli settlement of Beit El. Then they'd had a second face-off with a group of settlers, who'd thrown stones in the opposite direction and attacked journalists at the entrance of the camp.

Momani was driving a car with Palestinian plates and a sign saying "Press" in the windshield. As he came to sharp bend in the road between the camp and the settlement, big rocks crashed down on his car. Photographs taken in those moments show five settlers attacking the car. Some of them appear in photos apparently shot just beforehand, in which they're running toward the car with pistols in their hands. Two are fit-looking men with graying hair.

They didn't use their pistols, but the rocks they threw were big. Momani's windshield shattered; shards cut him. And no more than 30 meters away stood several soldiers, who did nothing to stop the attack.

I don't have a precise account of the immediate aftermath from the photos and documents that I was shown by Israeli human rights lawyer Eitay Mack. But there's testimony, from an army captain who saw the event from a lookout post and arrived on the scene, that Momani identified the attackers to a police officer. Photos show settlers arguing with soldiers and police. Several are easily identifiable as the perpetrators in the earlier shots. One is wearing a T-shirt with the words in English: "Remember you are unique like everyone else." Read that as a motto for an individual who joined in mob fury.

No one was arrested. Instead, Momani was told to go to the nearest Israeli police station and file a complaint. The cops there advised him to file a second complaint, with the military police, against the soldiers who stood and let it happen. Momani did that.

And then he heard nothing. Finally, nearly a year later, he contacted attorney Mack. "It happens a lot," Mack says. "The moment a lawyer gets involved, they finally remember to complete the investigation." Well, sort of. The file from the civilian police somehow got lost on its way to the prosecutor's office and was finally found and delivered in June of last year. The military police finally investigated-and then said they were closing the case for lack of evidence. When Mack decided to appeal that decision, he was allowed to see the file and saw the captain's testimony.

The file revealed that a soldier had been on the scene with a video camera. He was from a part of the Israel Defense Forces spokesperson's unit that documents the military in action. An officer from the unit refused to turn over the footage. First she said doing so make it difficult for the unit to function in future, then that material couldn't be located.

Mack told me that even without the footage, there's evidence enough to court-martial the soldiers. Nonetheless, he says, the spokesman's unit is obstructing justice. This week Brigadier General Moti Almoz, the IDF spokesman himself, told Haaretz journalist Amira Hass that "the documentary unit doesn't exist to incriminate soldiers" and that most footage isn't saved anyway. It's unusual for Almoz to respond personally to a reporter, but the gesture didn't exactly turn this into successful spin.

Mack's appeal on the military case is still pending. But on the same day this week that Ambassador Shapiro spoke in Tel Aviv, at the annual conference of the Institute for National Security Studies, the Jerusalem District Prosecutor announced the indictment of three Beit El residents. One is 48 years old. The indictment refers to a fourth perpetrator "whose identity is unknown."

The main charge is "endangerment of life on a public thoroughfare." It's the same offense for which young Palestinians caught stoning Israeli cars are usually charged. It's a serious offense. Stone-throwing, especially from close-up at a moving vehicle, can kill. I once interviewed a couple whose five-month-old son died after a rock crashed into their car as they drove to their home in the settlement of Shilo. Yes, they were settlers. They were also civilians. (On this, it's worth reading Dahlia Scheindlin's "How to Mourn Terror Victims as a Leftist.") Their son certainly was. So is Abbas Momani, who was lucky enough to only be cut by broken glass.

But if anyone who thinks that Palestinians caught by Israeli police or soldiers while throwing stones at cars would be allowed to walk away, or that police and prosecutors would misplace their file, she is living in a different universe than mine.

Now about Shapiro's speech. In the West Bank, he said, "Too many attacks on Palestinians lack a vigorous investigation or response by Israeli authorities; too much vigilantism goes unchecked; and at times there seem to be two standards of adherence to the rule of law: one for Israelis and another for Palestinians."

In the context of U.S.-Israeli relations, those are singularly harsh words, even with the diplomatic softening of "seems." Shapiro also criticized Israel's land policies, which he correctly said have put 60 percent of the West Bank out of reach for Palestinian development.

The ambassador was giving public testimony that the U.S. administration is fed up.

Except, let's face it, Washington is a bit slow on the uptake.

For example, let's look at what Shapiro called "two standards of ... the rule of law." In 1981, Israel's attorney general appointed his deputy, Yehudit Karp, to head a committee to look into how law enforcement handled cases of settlers attacking Palestinians in the West Bank. The report she wrote the next year is a portrait of non-enforcement: investigations that didn't happen, suspects who weren't questioned, files closed for lack of evidence. I could list more reports, by the government and NGOs, that show the same pattern in years since.

If the soldiers in the Momani case are ever charged, they have one good defense that their lawyers will almost certainly not present: It's not them, it's military occupation combined with settlement.

In international law, the most basic responsibility of an occupying power is to protect the local population. The military commander, as the temporary sovereign, must ensure equal protection.

Yet the natural role of a country's military is to protect its own citizens. From the moment that Israeli settlers live in occupied territory-and do so as agents of government policy-the two roles inevitably conflict. Add the outsized clout of the settlers in Israeli politics, and equal enforcement was doomed from the start.

This isn't news at the State Department. The habits of diplomatic obfuscation and America's own politics have gotten in the way of saying the obvious. What's more, when some form of Israeli-Palestinian negotiations are going on, or seem possible, some of the Middle East hands tend to think that the peace agreement will solve the problems, so why upset the sides now with public criticism? But Prime Minister Benjamin Netanyahu's policy is quite clearly not to seek an agreement, and besides, this has all gone on too long. I'm not sure whether to be pleased at straight talk or despair that it has taken until now.

The problem is that Shapiro's speech shows that straight talk is still scary and action to back it up isn't happening. "We are concerned and perplexed by Israel's strategy on settlements. ... The question we ask is a simple one: What is Israel's strategy?" So Shapiro said. In 1968, President Lyndon Johnson asked that question of Israeli Prime Minister Levi Eshkol honestly. I don't believe that Barack Obama, John Kerry, or Dan Shapiro are perplexed. Nor do I think any of them would regard what happened to Abbas Momani, and to the men who attacked him, and to the men who stood aside and watched, as something new.