Response to ASUC Presidential Veto of Senate Bill 118A

UC Berkeley Divestment Task Force

UCB Students for Justice in Palestine

Introduction
The following document is a response to ASUC President Will Smelko’s veto1 of Senate Bill 118A, “A Bill in
Support of ASUC Divestment from War Crimes.” SB 118A called on the UC Berkeley student government (the
ASUC) and the University of California (UC) Regents to divest funds from companies enabling war crimes in the
Occupied Palestinian Territories, among other places where war crimes take place. It was passed by the student
senate in a 16 to 4 vote. President Smelko justified his veto with a number of misleading or mistaken claims.
We discuss and rebut them in detail below, but generally speaking President Smelko’s justifications either: (a)
mischaracterize the content of SB 118A or (b) unfairly hold the bill to a higher standard than any other senate bill.
We rebut the following claims by President Smelko:

1. SB 118A singles out Israel.

2. SB 118A is perceived as “a symbolic attack on a specific community of our fellow students.”

3. SB 118A may be used as a tool to delegitimize the state of Israel.

4. There was not sufficient or adequate discussion and/or deliberation on the bill.

5. The bill does not examine “the likely or probable impact of mandatory divestment” on existing or future UC
and ASUC funds.

6. It does not consider “the likely or probable effect on the safety or security of human beings in Palestine and
Israel.”

7. A divestment bill must address the “effectiveness of a blanket divestment policy in achieving the aims of peace
and security.”

8. The debate around SB 118A compares Israel to South Africa, but this analogy is “contested” and South African
divestment strategies “were not introduced and agreed upon after mere hours of discussion, but involved
lengthy and serious deliberation and analysis.”

9. For SB 118A to pass it must provide “adequate” or “important historical context and understanding.”

10. SB 118A calls for “immediate divestment from specific countries or regions.”

11. The veto is justified by the moral obligation “to promote peace, harmony, honesty, and academic freedom,”
and the duty to insure that ASUC decisions “are fair to people concerned and to all sides of an issue.”
1 ASUC Presidential Veto II, March 24th 2010 http://asuc.org/newsite/assets/ASUC-Presidential-Veto-II.pdf

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1 SB 118A singles out Israel
The question that the ASUC should ask itself is not whether SB 118A singles out Israeli human rights violations,
but whether it does so unfairly.
The supporters of SB 118A believe in one universal standard of human rights. SB 118A does not privilege one
state, organization, person, or people over any other. However, anyone who refuses to hold the state of Israel to
the same standards we hold Sudan, South Africa, Iran, or any other country that commits human rights violations,
suggests that Israel stands alone, unlike all other states, and should never be held accountable for violating those
norms. The supporters of this bill would support the application of the same internationally recognized human
rights standards that underpin SB 118A to any other country found to be engaging in war crimes or other human
rights violations by credible international institutions, and, in fact, the bill itself calls for such a universal and
comprehensive divestment policy to “keep university investments out of companies aiding war crimes throughout
the world.” This mandate is sweeping and not at all focused exclusively on Israel. As a means to address global
injustices, divestment is a powerful tool in the hands of responsible and ethical investors for playing a positive role
in the world and we must use it.
In addition, given that Israel has received, to date, over $114 billion in aid2 , it enjoys a singular relationship
with the US and therefore it is absolutely appropriate to ensure that Israel’s actions reflect the values and ideals
of justice. For countries such as Iran and North Korea, which also continue to flaunt human rights laws, US law
prevents investment and support; a resolution such as SB 118A targeting these countries is unnecessary. However,
we cannot, as US citizens, stand by while huge amounts of our money goes to support an ally that continues to act
in defiance of international norms and laws.
SB 118A focuses on human rights violations by the Israeli government that have been internationally docu-
mented and condemned by organizations like the United Nations, Amnesty International, Human Rights Watch, the
International Committee of the Red Cross, and Physicians for Human Rights-Israel, all of whom are cited in the
bill as authorities. Additional authorities on the matter include the International Court of Justice34 and Israeli hu-
man rights groups such as B’tselem5 , the Israeli Committee Against House Demolitions6 , and Adalah – The Legal
Center for Arab Minority Rights in Israel7 . There is no shortage of documentation by credible and experienced
international, Israeli, and Palestinian institutions.
Given extensive, persuasive, and credible documentation showing the persistence of Israeli human rights viola-
tions, we cannot say that a bill focusing primarily on Israel is unfair. Those human rights violations are real. They
are not made up, they are not fabricated, and they are not exaggerated. They have real victims. So egregious were
similar human rights violations in South Africa and Sudan that the ASUC then felt its moral duty was to respond
with divestment8 . The same standards that the ASUC has acted on in the past should apply here as well.
It should also be noted that while SB 118A is based on Israeli actions, it does not actually divest from a sin-
gle Israeli company or from the state of Israel. It only singles out United Technologies and General Electric for
manufacturing weapons that have been used to kill and endanger unarmed civilians.
2 http://ifamericansknew.org/stats/114bill.html
3 UNRules against Israeli barrier, http://news.bbc.co.uk/2/hi/middle_east/3879057.stm
4 Five
years on, Israel continues to disregard the International Court of Justice’s Advisory Opinion on the Wall, http://unispal.un.
org/UNISPAL.NSF/0/9749ED6FD4607A4F852575ED00666DB2
5 http://www.btselem.org/English/Freedom%5Fof%5FMovement/
6 http://www.icahd.org/eng/articles.asp?menu=6&submenu=2&article=402 and http://www.icahd.org/eng/
campaigns.asp?menu=4&submenu=2
7 http://www.adalah.org/eng/jnf.php
8 SB83, passed Nov 2005. See http://www.asuc.org/documentation/view.php?type=bills&id=471.

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2 SB 118A creates a “perception” that it is a “symbolic attack on a specific com-
munity or our fellow students”
President Smelko does not explain how SB118A attacks, symbolically or otherwise, any group of students on cam-
pus. His claim is extremely vague. The only way this claim can make sense is if President Smelko is aware of a
community of students on campus who are employed by either GE or UT. But that is not the case. If one believes
this claim, their perception is not based on fact: the bill criticizes war crimes in general and the Israeli government’s
policy of occupation, collective punishment, and attacks on civilians in particular.
President Smelko may be suggesting (though he does not say it, so we can only presume) that SB 118A can
be perceived as an attack on Jewish or Israeli students on campus. We find this suggestion to be offensive. It
homogenizes Jewish and Israeli students on campus, many of whom spoke in favor of SB 118A at the Senate
meeting (many also spoke against it). It diminishes the voice of the co-author of the bill, who is Jewish and Israeli,
and the voice of one of the primary speakers in favor of the bill, who is an American Jewish woman. In privileging
the feelings of some students over others, President Smelko disregards and isolates the majority of students and their
representative senators who agree with the spirit and letter of SB 118A.
UCB faculty, staff, and doctoral instructors, both Jewish and otherwise, have expressed support for this bill,
including Rutie Adler, Daniel and Chava Boyarin, and Irene Siegel, as well as faculty from other institutions such
as Evalyn Segal from SDSU. The national and Bay Area chapters of the organization Jewish Voice for Peace,
which is locally based in Oakland, CA, strongly supported the bill, after JVP members came to the senate meeting
and witnessed the discussion. The organization, which includes 100,000 members, issued a formal statement of
support9 , and reported more than 650 emails sent from its servers to President Smelko before the veto, in support of
the bill, and hundreds more since then.
Lastly, to describe legitimate criticisms of a foreign government’s actions as an “attack” is contrary to the spirit of
democracy, free speech, and a university setting, where we must have the freedom to openly criticize all governments
when they merit criticism.

3 SB 118A may be used as a tool to delegitimize the state of Israel

Criticizing the policies and actions of a state is not delegitimizing it; to speak against the US’ use of torture is not
delegitimizing our country, just as speaking against specific Israeli actions (including the indiscriminate killing of
civilians10 , the illegal use of weapons like white phosphorus11 , and the demolition of innocent people’s homes in
order to build settlements12 ) is not delegitimizing the Israeli state.
When human lives are on the line, it is absurd to shift the terms of discussion so that they prioritize abstract
notions of statehood and legitimacy over the concrete and inherent rights of human beings. Divestment from GE,
UT or any company that manufactures weapons used for collective punishment and the indiscriminate killing of
unarmed peoples is not only morally legitimate, it is the right thing to do.
No one who chooses to engage in war crimes and human rights violations should expect the complicity of people
around the world. We do not say that Israel is illegitimate, only that we cannot support documented human rights
abuses by any country, including Israel. It does not matter that here the victims are Palestinian and the offender is
Israel. Similar divestment would be justified in any other case involving any other parties because the acts would be
just as wrong.
9 http://www.jewishvoiceforpeace.org/publish/article_1276.shtml
10 Amnesty International http://www.amnesty.org/en/library/asset/MDE15/012/2009/en/5be86fc2-994e-4eeb-a6e8-3ddf68c28b31/

mde150122009en.html#4.0.4.Aircraft%20and%20Helicopters%7Cou
11 The United Nations http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/FactFindingMission.htm
12 Israeli Committee Against House Demolition http://www.icahd.org/eng/articles.asp?menu=6&submenu=2&article=402 and

http://www.icahd.org/eng/campaigns.asp?menu=4&submenu=2

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4 There was not sufficient or adequate discussion and deliberation on the bill
Deliberation about SB 118A lasted over 6 hours on March 17th –18th in a senate meeting that was one of the most
widely attended and diverse in history. Many differing points of view were adequately represented at the meeting by
over 75 guest speakers, many of whom reinforced one another’s points.
Ignoring the open and educational discussion that took place that night, President Smelko holds SB 118A to
a higher standard than any other bill that comes before the senate. In addition, it is not President Smelko’s role
or place to determine what length of discussion is adequate; such a determination falls under the purview of the
senate, which, after considering the bill for several hours, felt that more deliberation could not add to the process
and decided to call a vote. If the senate had felt more deliberation and discussion was necessary, it could have tabled
the bill, but instead voted to pass SB 118A with a supermajority of 16 votes for and only four against. President
Smelko did not explain what more deliberation and discussion would add to the bill, nor what would constitute, in
his opinion, “adequate” discussion.

5 SB 118A does not examine the “likely or probable impact of mandatory divest-
ment” on existing or future UC and ASUC funds
The ASUC Senate and President have a fiduciary duty to the members of the ASUC to ensure that its investments
are managed according to their interests, which are determined by investment policies and profitability. SB 118A
does not breach that fiduciary duty in any way.
First, the ASUC has a fiduciary duty to ensure that its investments comply with its own advocacy of a socially
responsible investments policy, adopted in SB227 (Spring 2009)13 .
Second, a call for divestment from GE and UT cannot adversely affect the ASUC or create additional risk to
its investments because the ASUC currently has no shares in those companies. Because ASUC currently earns zero
profits from those companies, SB 118A cannot cause any profit loss.
Finally, even if the ASUC did have investments in those companies, it is implied that divestment would be
implemented in a way consistent with the ASUC’s fiduciary duty. The senate bill does not effectuate an immediate
divestment; it merely states the ASUC Senate’s investment preferences. It then becomes the responsibility of the
appropriate officers to use their discretion to pursue those preferences in a way that does not violate their fiduciary
duty by searching for alternative investments that provide equal or more profitable gains.
With regards to UC investments, it is beyond the ASUC’s ability to make determinations about all UC invest-
ments, because many of them are managed by external agencies. However, as it did with Sudan, South Africa,
tobacco companies, and in SB 227A from Spring 2009, the ASUC can urge the UC Regents to adopt similar respon-
sible investment policies and highlight particular investments that should be dropped.

6 SB 118A does not examine the “likely or probable effect on the safety or security
of human beings in Palestine and Israel”
The implication of Smelko’s statement is that ASUC and UC divestment from companies that manufacture weapons
used against civilians will somehow make human beings unsafe. It is not clear how divesting from companies
that manufacture weapons used in well-documented non-defensive attacks on civilians makes anyone unsafe or less
secure. Any assertion that divesting from such companies could make Palestinians—or any target of the Israeli
military—unsafe is absurd. Any assertion that Israeli security relies on attacks against civilians misunderstands the
term security and the defensive measures allowed to state actors under international law.
13 http://www.asuc.org/documentation/view.php?type=bills&id=1687

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 Furthermore, once again President Smelko is holding this bill to a higher standard than any similar bill passed
by the ASUC: nowhere in the text of the Sudan divestment bill SB 83 passed in Fall 2005 is there mention of such
considerations.

7 A divestment bill must address “the effectiveness of a blanket divestment policy

in achieving the aims of peace and security”
Divestment is a tried and true strategy for achieving peace, justice, and security through nonviolent means. Historical
precursors at UC Berkeley include divestment from Apartheid South Africa, divestment from corporations operating
in Sudan and exploiting Darfur, divestment from tobacco corporations, among many other examples worldwide.
South African Archbishop Desmond Tutu has said that “the end of apartheid stands as one of the crowning accom-
plishments of the past century, but we would not have succeeded without the help of international pressure - in
particular the divestment movement of the 1980s14 .”
Furthermore, it is unclear what Smelko means by or fears from a “blanket divestment policy.” The anti-tobacco
investment policy of the UC Regents is a “blanket” policy towards tobacco companies, and welcomed by most stu-
dents. The policies against investing in Apartheid South Africa or Sudan grouped together, or blanketed, companies
doing business in these countries as potential targets, and are seen without controversy. The current bill does not
argue for divestment from all Israeli companies or all companies operating in Israel, but instead advocates a small,
restricted set of criteria outlining which national and international actors to divest from. It is far less wide-ranging
than policies accepted in the Sudan divestment bill of SB 83 from Fall 2005 . Again, Smelko’s objections ignore
precedent.

8 The debate around SB 118A compares Israel to South Africa, but this analogy is
“contested” and South African divestment strategies “were not introduced and
agreed upon after mere hours of discussion, but involved lengthy and serious
deliberation and analysis”
SB 118A does not make any comparison between Israel and South Africa; Smelko is criticizing the debate around
the bill instead of the bill itself. The fact is that divestment strategies have been used in countless campaigns against
both state and corporate actors.
Apartheid South Africa is not the only country targeted by divestment: as noted, the ASUC passed a similar bill
(SB 83 Fall 05) divesting from Sudan in response to its atrocities in Darfur. Berkeley Toyota was the target of a
boycott by the ASUC as well15 . The Regents voted to enact a policy against investment in tobacco companies16 , as
well as the policies against investment in Apartheid South Africa. The ASUC and UC have a history of divestment
and/or economic boycott resolutions which does not solely consist of the boycott of Apartheid South Africa, and this
bill merely follows in that tradition and does not make any claims about similarity between South Africa and Israel.
Smelko’s assertion that past divestment decisions by the ASUC observed a higher standard of scrutiny does
not hold true for either South African divestment or divestment from Sudan. Both were indeed passed with far
less debate than this bill. In addition, Smelko’s characterization of the current divestment strategy as occurring after
“mere hours of discussion” and not involving “serious deliberation and analysis” is flawed and offensive. The current
bill draft did not appear overnight. Before the March 18 vote a year of scrupulous research was done by the UCB
Divestment Task Force looking into the details of UC investments, international law, human rights reports, and the
14 https://www.msu.edu/~divest/apartheid.html and http://www.counterpunch.org/tutu1017.html
15 SB149 (Fall 2005). See http://www.asuc.org/documentation/view.php?type=bills&id=947
16 https://www.dailycal.org/article/4250/regents_to_vote_on_issue_of_tobacco-free_investmen

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tactic of divestment, with student researchers making trips to the Middle East. Additionally, ASUC Senators were
met with individually for more than a month prior to the ASUC vote to solicit feedback and to provide balance and
context, resulting in a bill that a 4/5 majority felt comfortable supporting, including half of President Smelko’s own
party.
Additionally, divestment research at UCB has been informed by years of research and discussion at other uni-
versities and institutions. Student governments at respected universities, such as the London School of Economics,
have enacted similar divestment initiatives targeting companies supporting Israel’s human rights abuses. Religious
organizations such as the United Church of Christ, the US Presbyterian Church, and the Church of England have
enacted similar resolutions divesting from companies profiting from Israeli war crimes and breaches of international
law.
As for the seriousness of the deliberation that took place in the six hour debate the night of the vote, since Smelko
did not attend the meeting, he cannot make any such judgment.

9 For SB 118A to pass it must provide “adequate” historical context and under-
standing”
President Smelko’s assertion that the bill does not provide “adequate” historical context and understanding is pre-
posterous. The bill does indeed provide ample context, cites a number of respected human rights groups both within
and without Israel, and specifically cites instances of Israel violating international law. It is absurd to expect that any
opposing “context” could be used to justify the violation of international law. We cannot excuse UC funds being
used to support the use of military force against civilian populations no matter what the justification given by any
government.
Furthermore, it does not require reams of historical context to determine what constitutes a war crime, nor is
it the ASUC’s role to make such determinations. Instead, we can rely on bodies such as the International Court
of Justice, the office of the Secretary General of the United Nations, the United Nations Human Rights Council,
the International Committee of the Red Cross, the reports of Amnesty International and Human Rights Watch, and
human rights organizations within Israel such as Adalah and B’tselem, all of which have pointed out instances where
Israel is violating international law.
Lastly, again Smelko is holding this bill to a higher standard than any similar bill. ASUC resolutions calling for
divestment from Sudan and South Africa were not filled with analysis of hundreds or thousands of years of history:
they called for divestment in response to specific actions by those states.

10 SB 118A calls for “immediate divestment from specific countries or regions”

President Smelko mischaracterizes the bill. SB 118A does not call for divesting from any “specific country or
region.” The bill calls for ensuring divestment from two companies supporting Israel’s well-documented illegal
occupation and use of weapons against civilians; this is not a call for divesting from Israel or any other region or
country. If other military apparatuses, organizations or regions are using weapons or technologies manufactured by
GE and United Technologies, the UC will also be divesting from those apparatuses, organizations and regions as
well. Furthermore, ASUC precedent, as shown in SB 83 from Fall 2005 demonstrates that naming a specific country
or region is not grounds for vetoing a bill. In fact, SB 83 demanded divestment from “any company operating in the
Republic of Sudan,” a far more specific naming of a country for divestment purposes.

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11 The veto is justified by the moral obligation “to promote peace, harmony, hon-
esty, and academic freedom,” and the duty to insure that ASUC decisions “are
fair to people concerned and to all sides of an issue.”
These statements are insulting, given that there was an open, informed vote following a 6 hour open forum, a record
turnout of advocates on both sides, and more than 1,000 emails both for and against the bill. To say that such a
vote was not “fair to people concerned and to all sides” really means the following: the decision, in favor of the
majority-winning argument, should be rescinded because it may upset and alienate the losing side. That majority
vote may alienate the minority is basic democracy.
Undoing the outcome of the super-majority Senate vote with this veto did alienate and betray the confidence of
numerous students, many of whom also belong to the Jewish community, in addition to hundreds of others. Smelko’s
veto is what is suppressing harmony and fairness, given that the representatives chosen by the students voted in favor
of this bill, yet he feels it is his right to singlehandedly block its passage.
President Smelko’s assertion that this bill somehow violates “academic freedom” is ludicrous, and he makes no
effort to explain how a bill promoting responsible investment somehow restricts academic freedom.

Conclusion
ASUC President Smelko’s inexplicable decision to veto SB 118A despite its unprecedented support in the ASUC
senate is disappointing, given that the arguments in the veto lack substance or any basis in fact. Most are rooted in
basic misunderstandings of the bill, rhetoric in opposition that ignores the actual text of the bill, or in misleading
issues that have nothing to do with SB 118A as passed by a 16-4 majority in the ASUC senate. We, the supporters of
this bill, who come from an incredibly wide range of backgrounds and points of view, are disappointed that Smelko
has chosen to be on the wrong side of history, to be remembered as the president who vetoed a bill against war
crimes.