This site tracks developments in international family law from Richard Crouch and John Crouch of Crouch & Crouch in Arlington, Virginia. Our international practice has grown naturally from our location in our native Arlington, where our clients include many military, diplomatic and immigrant families, international organization employees, IT professionals, etc. This blog's purpose is to comment on the ongoing development of the law, and help other lawyers, journalists and the public understand individual cases. These postings do not provide a comprehensive description of the law. In fact, they will surely contain statements that were true at the time but have become less valid as the law continues to develop.
I spent Holy Week litigating instead of pontificating or politicking. So this weekend, when we commemorate the sectarian/religious killing of a pilgrim to Jerusalem, was my first chance to do the heavy blogging about the Virginia State Bar’s cancellation of its convention there, in response to protests that Israel makes it difficult to travel there for American citizens born in Muslim countries, and especially Palestinian-Americans. That would include dozens, at least, of the State Bar’s members. The Bar's decision was primarily based on information from a U.S. State Department web site.
Usually, if an American says that someone or something else in America, is “discriminatory”, that connotes a violation of the Constitution or at least of American values. But when the State Bar used the word “discriminatory”, (1) it was briefly describing the assertions of those who protested the trip, not making its own assertions, and (2) even if Israel “discriminates” or “profiles”, that doesn’t mean there’s anything wrong with Israel doing what it thinks necessary to protect the people in the country and those traveling to and from it. It just means that the Virginia State Bar doesn’t want to subject its own members to that treatment unnecessarily, by having a convention in Israel. A follow-up message from State Bar President Kevin Martingayle and President-Elect Ed Weiner made that abundantly clear.
The Bar is also especially concerned about security measures that give certain travelers no privacy in their electronic devices and their e-mail and social media accounts, because we’ve just recently debated and enacted changes to the ethics rules emphasizing the duty to protect attorney-client communications from hacking.
Some bar members in my district were disturbed that the Virginia State Bar was spending their mandatory dues to criticize Israel. But now that I’ve had time to look at all the statements from the State Bar officers on the subject, I honestly don’t see anything that does so, as I’ve explained above. If the bar officers’ letters are spreading information about Israel that is not entirely true, well, the jury is still out on that and it’s hard to blame the state bar for referring to information from a U.S. government web site, or for summing up in one sentence what the protestors were claiming, so as to give some context to their decision for those who had not already heard about the protest.
As a member of the State Bar’s governing council, I had to learn a lot about this topic fast, although I still don’t know the whole picture. Arlington’s council members discussed the protests and I tried to verify and gather more information, but then the State Bar moved ahead of our small efforts by canceling the meeting quickly.
Colleagues around the U.S. and the world, and news articles they sent me, confirmed that there are indeed restrictions on people who are originally from certain countries traveling to Israel, even if they are now citizens of the U.S. or other countries, or British subjects. Likewise, many Muslim countries don’t allow travel by Israelis, Israeli-Americans, or anyone whose passport shows that they have traveled to Israel. " At least 17 Muslim countries forbid travel to Israeli passport-holders altogether, with 8 of those countries not allowing travel to those whose passports reflect any prior travel to Israel (but lately Israel no longer stamps passports, but rather stores the data electronically, so this may be irrelevant if the Israel travel is more recent.)" Among others, "Algeria, Iran, Iraq, Lebanon, Libya, Pakistan, Saudi Arabia, Sudan, Syria and Yemen all either deny or delay entry to any traveler whose passport has an Israeli entry or exit stamp or any other indication that they've visited Israel." But apparently no countries bar Jews, as such.
So my initial reaction was that in the future we should generally have a policy of not having our regular meetings in any countries that would make it hard for any of our members to visit, or which would keep them from protecting their clients’ confidential communications. But I thought that whether to cancel this already-planned meeting was up to the bar leaders who knew and could consider all the variables.
I must admit that there is a lot of information out there that calls the conclusions of the State Department, the State Bar, and the protestors into question:
Some members in my district knew of Palestinian-Americans who travel to Israel frequently for youth-peacemaking programs, and of conferences there attended by people from Arab countries.
Some commenters on news stories and blogs on the subject questioned the State Department’s spin and selectivity, on the grounds that the current State Department is relatively pro-Palestinian and anti-Israel.
Several said that the Israeli government and private services will work with international event organizers to shepherd groups through security and avoid the worst of it. But others say that that is not a sure thing, and the bar officers said that “An embassy official expressed a desire to facilitate the trip but acknowledged that security protocols are strict and could lead to exclusion or restriction of some VSB members.”
Many colleagues who had traveled to Israel said that their security procedures are incredibly harsh on everyone – “That’s why they’re so safe”, said one. But it’s certainly possible that Americans who go through that seemingly harsh process may not realize that for Arab-Americans, the process is considerably worse, or practically prohibitive.
Other choice comments I received:
"I am Palestinian-American. I practice in the NJ/NY area. I still have family in Palestine. Every time I travel it takes me between 3 to 6 hours before I am allowed to leave the airport. The interrogation is ridiculous. They make you wait for hours. Then you get interrogated and told to wait. Then a new interrogator. Then they tell you to wait and so on. This applies to anyone Palestinian or Arab. It is demeaning and stressful. If you are Jewish, this does not happen. It would be worthwhile for the Bar Association to take the initiative to stop such discrimination and targeting of Americans of Arab background."
"Having traveled to Israel a number of times (one of my children lives there), there is no question that Israeli security differs from that in this country. While we do not permit racial profiling, we live in a geographic area protected by two oceans and we do not have, larger, richer and well-armed neighbors who pledge to destroy us. As a result of being a tiny nation with Hamas on one side, Hezbollah on another and ISIS quite nearby - not to mention Iran - Israel takes security quite seriously. As a result, yes, a person traveling to Israel with Arab ethnicity may be treated differently by Israel security than I am as a dumb American tourist. Is this profiling? Yes, of course it is. And undoubtedly, there are times Israel goes too far. But its history of suicide bombs, terrorist attacks and missiles lead it to err on the side of security. That being said, Israel is still - amazingly - a free democratic country with far more freedoms for its Arab citizens than enjoyed by Arab citizens anywhere else in the Mideast. To single out Israel - while ignoring the substantially higher degree of repression in Arab countries (and elsewhere in the world) - is anti-semitism. That being said, should the meeting still occur there? That is up to the organizers. To me, an additional level of security to ensure safety would be well worth it. But, if they choose to live in a perceived Utopia as opposed to the real world, they should probably just stay home."
"I believe it is unfortunately true that perfectly law-abiding Arab-American travelers may have a hard time entering Israel because of her very real existential security issues."
"In 2012, Israel denied entry to 0.023% of US Citizens who sought to enter Israel (the raw numbers were 142 denied out of about 626,000 total). For some perspective on those numbers, The United States refused Class "B" visas [entry for up to 120 days for tourism or business] to 5.4% of Israeli citizens who applied to enter the United States during the same period of time."
"Amazing how sometimes diplomacy (or the lack of it) hits our daily routines, isn't it? All I can say is that Swiss citizens who travel to Israel and Arab countries need two different Swiss passports (one of them to be deposited at the respective public office) because you are not able to enter countries like Lebanon, Egypt, Dubai or similar (or at least enter without hours of useless interrogation) if you have an Israeli stamp in your passport, and vice versa. Your State Bar didn't apply the pragmatic part of daily diplomacy used by the Israelis themselves. When they want to avoid all the hassle or meet their Arab friends the fly over to Cyprus (and vice versa). I'm sure the persons organizing the event didn't act in bad faith, but perhaps underlined their lack of international savoir faire. I understand the persons protesting very much, and it all calls for a compromise: Hold your meeting in Switzerland!"
"Sadly, racial profiling at Ben Gurion Airport is a well chronicled and very embarrassing fact. I have sent you several articles attesting to this practice and more importantly, two articles referring to a very long winded recently adjudicated Israeli Supreme Court Case on the subject. Sadly, the highest Court in Israel, copped out as you will see, offering little more than sympathy but nevertheless sending a signal of mild disgust to the security authorities. It seems that some of the really abhorrent behaviour by airport security has been "tamed" but the general policy remains in place."
"My advice to the State Bar Association would be to advise their counterparts/organizers in Israel of the sensibilities. Forewarned is forearmed in this case. There are several VIP and Protocol Services available at a cost, at Ben Gurion serving both in and out bound passengers. They operate very smoothly and conduct passengers through the security maze. This would assist. Remember, Security Profiling operates both ways. I once sat on a Business Class seat next to a blond Danish Businessman out of Tel Aviv. He had been through the mill and they had even scanned his computer files."
"I would suggest waiting and listening to more of the arguments before reaching that conclusion. If Israel had a policy that individuals with American passports would be searched less vigorously, what do you think would be the result? What would a terrorist do? Boycotting Israel because it is allergic to its citizens being blown up is itself discrimination. Serious discrimination."
The meeting and the group are looking at all issues in international marriage and divorce, not just custody and not just support as various headlines say. I really think that small groups of interrelated nations can sometimes address these issues better than by simply joining a worldwide treaty. The EU has several multilateral family-law treaties, and I wish that South Asian nations and their diaspora countries had a customized treaty on their unique family-law issues.
The Japan Timesreported in December that two Hague Convention cases had already resulted in children's return overseas. The first was after litigation and an appeal to the Osaka High Court; the second, after mediation in a program offered by the Tokyo Bar Association and funded by the Foreign Ministry; part of a worldwide effort to institutionalize mediation of Hague Convention cases, led by international family-law attorneys Melissa Kucinski in Washington, Kerstin Bartsch in The Hague, and Mikiko Otani in Tokyo, among others. I'm a lesser part of that effort, having been trained as one of the mediators for Hague cases.
1600s polymath Blaise Pascal wrote, “There are truths on this side of the Pyrenees that are falsehoods on the other.” Cultural competence is attitudes, practices, and policies that help people and institutions work well with others across cultures. Cultural sensitivity, transcultural skills, diversity competence, and multicultural expertise are closely interrelated topics. What defines a culture? What barriers might block successful communication between individuals or agencies of differing cultures? How can those barriers be understood and navigated to enhance intercultural communication and understanding? These topics and questions and more are explored in:
There is nothing in Western countries' laws that discriminates against Muslim marriages, but many immigrant wives -- 90%, says a new study -- are legally unmarried because there was no civil license or celebration, or because they are second, third or fourth wives. And that non-recognition is very convenient for the husbands, because as legal strangers the wives have no occupancy, property or maintenance rights under most Western countries' laws. Often, the women know nothing about this until it is too late. But does this mean that there should be less, or more, recognition of, and legal accomodation to, these marriages and Shari'a generally?
The ABA Journal says, "The measure bars courts, arbitrators, administrative agencies and other adjudicators from applying or enforcing foreign law 'if doing so would violate any state law or any right guaranteed by the Constitution of this state or of the United States.' ... [and] 'No Alabama court shall be required by any contract or other obligation entered into by a person or entity to apply or enforce any foreign law.' That language could mean choice-of-law contractual provisions are invalid in Alabama courts ..."
However, there are other situations where foreign law could otherwise apply, such as in a suit about a tort committed in a foreign country. And part of the impetus for such legislation is the prospect of foreign countries' notions of human rights being used to interpret the U.S. Constitution to reverse state laws or court judgments.
There are other unintended consequences that could flow from these efforts, discussed in my earlier article, "State legislation would bar foreign & religious law from American courts". Unlike most of the legislation discussed there, this latest Alabama amendment does not affect religious law, at least not expressly. Of course, especially in family law, some foreign law is religious law.