In July 2020, the ice cream makers Ben & Jerry’s announced that they would no longer sell their products in the West Bank and East Jerusalem. Although they made it clear they were not doing this as part of the BDS movement, and that they had every intention of continuing to do business in Israel within its internationally recognised borders, that announcement set off a firestorm of protest from supporters of the Israeli government.
Accusations of anti-Semitism against Ben & Jerry’s, including against is Jewish founders Ben Cohen and Jerry Greenfield, were hurled and threats of boycotts of their products were raised, without a hint of irony. Some states took steps to divest from Unilever, the parent corporation of Ben & Jerry’s.
The public row seemed to fade in the time since Ben & Jerry’s made their declaration, but the anti-Palestinian forces in the US Congress have not let it rest. Recently, it was revealed that a bipartisan letter from four members of the House of Representatives called on the Securities and Exchange Commission—the body which oversees market regulations in the United States—to investigate whether Ben & Jerry’s “misled” their investors, by not fully warning them of the possible retaliatory steps supporters of the Israeli government might take.
That letter, which was sent privately and without media notification in November, was followed in December by a similar letter from three Republican Senators. These letters, taken together, demonstrate the strong appetite in Congress not merely to oppose Palestinian rights but to encourage Israel’s program of “creeping annexation,” a process whereby Israel treats the settlements in the occupied West Bank and East Jerusalem as part of the country and in so doing, convinces people that the illegal settlements are a legitimate part of Israel.
The letters to the SEC mean little in terms of the ice cream controversy, as even if the SEC does exactly what is asked of it, it will change nothing. But the arguments the congress members raise reflect a widespread view in Washington that those parts of the West Bank that Israel claims for its settlements are already as much a part of Israel as any other.
For these members of Congress, Israel has successfully defied the most basic tenet of international law—that the acquisition of territory by force is unacceptable—and is under no obligation to alleviate the apartheid conditions the occupation of those territories have forced upon the Palestinians there.
The House letter states that they understand that “the actions (sic) by Ben & Jerry’s disregards numerous United States’ state laws, which requires a state to divest from companies that participate in such boycotts.”
This reference to state laws is important. The state laws in question were often drafted with language that clearly conflated settlements with 1948 Israel. That point may seem less important now that the two-state solution is no longer on the diplomatic table, but it is more crucial than ever.
The previous Israeli government, which had an eager partner in the US administration of Donald Trump, had been moving toward formally annexing much of the West Bank. The current government holds too thin a majority to be so bold as to object. Instead, Israel is simply continuing with the gradual normalisation of integrating the settlements into the state, both physically and politically.
The Republican Senate letter makes congressional support for those efforts even clearer. Referring to an Israeli law that prohibits “discrimination” based on location within the country (which is just legalese for prohibiting treating the settlements as the illegal, extra-territorial entities they are), the senators wrote, "Effectively, that means Ben & Jerry’s can stay and sell in all of Israel, including the OPT referenced in the firm’s July 19 statement, or it can leave Israel entirely. But it cannot remain in the country in the way it publicly said it would: partially-in, partially-out."
The senators are explicitly saying that any attempt to single out the settlements and treat them as separate from Israel, as required by international law, is against Israeli law and the United States government will uphold that view through its own regulation, despite its own obligations under international law. There is no other way to interpret such a statement than as effective support of annexation of the settlements to Israel.
While the House letter is more circumspect, it, too, implies such thinking. That letter was led by Democrat Ritchie Torres of New York, a representative considered progressive on most issues, but who has already established himself as one of the most enthusiastic anti-Palestinian hawks in the House.
It is telling that, at a time when partisan division in Congress is rampant, and members often stake out opposing positions for no reason other than pure partisanship, legislation aimed at further disenfranchising Palestinians is one of the few areas where Democrats and Republicans can come together.
Torres’ leadership on this letter is also telling and chilling. Since entering Congress, he has staked a claim to becoming its leading PEP, or “Progressive Except for Palestine.” He is a gay, Black, Latino man who rose to prominence championing the cause of housing equality in some of New York City’s poorest areas. For supporters of Israeli policies in Washington, Torres serves as a counter against the rising tide within the Democratic party of criticism of Israel as an apartheid state.
In attacking Ben & Jerry’s so passionately, Torres joined forces with one of the most conservative House Democrats and one of its leading Israel hawks, Josh Gottheimer. Along with the two Republican House members, and the three conservative senators, they formed a symbolic bloc of members that span much of the political spectrum in Congress.
It is a clear signal that Israel will have strong bipartisan support on Capitol Hill when it decides to move forward on annexation and even before, as it normalises, by way of simple, day-today routine, the idea that settlements in the West Bank and East Jerusalem hold the same status as Tel Aviv or any Israeli city.
Some opponents of the two-state solution may see this in a positive light, but it is not. The de facto acceptance of Israeli settlements as part of Israel does not move the situation closer to a single democratic state, but to an even more draconian apartheid reality.
Certainly not all members of Congress support this strategy of creeping annexation. But almost all Republicans would back any legislation meant to support, and a substantial number of Democrats would as well. Even when it comes to so small a matter as these letters to the SEC, it is key for supporters of Palestinian rights to confront the creeping annexation that seeks to make an ever-harsher apartheid regime an inescapable reality.
Mitchell Plitnick is a political analyst and writer. He is the former vice president of the Foundation for Middle East Peace and former director of the US Office of B'Tselem.
Follow him on Twitter: @MJPlitnick
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