Thursday, December 17, 2009

Human Rights Against International Law

Still mulling over that B'tselem tour to Hebron.

Oren, the B'tselem guide, was very careful to talk about human rights, not politics. At one point he even refused to respond to a question about how the situation in Hebron might be resolved: that's politics, he said. As I wrote already, this wasn't very convincing since he seemed unfazed by the limitations on Israelis in the Palestinian part of Hebron. Yet upon reflection, the problem is deeper.

International law is an expression of the wish to have all nations operate within common limitations. Thus it deals with what countries are allowed to do and what not. Some will tell you they aren't allowed to transfer citizens into occupied territories, since in WWII the Nazis deported people in all sorts of directions so the international community recognized this as an evil to be prevented. You might ask how that is relevant to Israeli citizens moving of their free volition to places they recognize from their daily readings of the Bible or Talmud, or in the case of Hebron, to a town that had a Jewish community until as recently at 39 years earlier, and the response you'd get might not satisfy you. But that's not the bone I want to gnaw on right now.

International law may have something to say about settlers living in Hebron. It has nothing to say about the rights of individuals visiting there to worship, studying there, or even living there. As the champions of human rights will tell you incessantly, human rights are inherent. They don't stem from this political situation, those conditions, or that ethnic identity of victims. The right of a child to life is greater than the politics of who the child is, where she lives, or what the adults around her are doing. That's the whole point of human rights. It's why the ghastly Goldstone Report could overlook almost the entire context of its investigation and focus on the slivers of reality it was interested in: the human rights of the civilians of Gaza. It's why Oren of B'tselem could overlook the entire context of what he showed us in Hebron, and say that how the situation came to be isn't his business, he's interested in the rights of the (Palestinian) townsfolk.

OK. For the sake of the argument, let's take the human rights perspective. Back in 2000-2004 people were getting killed in Hebron. People on both sides, including civilians on both sides. In order to put a stop to that most extreme of all violations of human rights, the IDF put in place a regime that violates minor human rights, yet preserves major ones. It creates inconveniences and saves lives. Without those measures the lives of the settlers were endangered, and their inherent rights were being severely violated.

Whether the settlers are permitted to be there or not under international law is immaterial to the matter of their inherent human rights.

Somehow I don't think most human rights activists see it that way. What does that tell us about them?

Update: This post was re-worked, sort of, here.

14 comments:

zionist juice said...

"As the champions of human rights will tell you incessantly, human rights are inherent. They don't stem from this political situation, those conditions, or that ethnic identity of victims. The right of a child to life is greater than the politics of who the child is, where she lives, or what the adults around her are doing. That's the whole point of human rights. It's why the ghastly Goldstone Report could overlook almost the entire context of its investigation and focus on the slivers of reality it was interested in: the human rights of the civilians of Gaza."


i strongly disagree.
there is a long way between a (human) right and its breach.
for the first thing if you talk about human rights you have to define the right. what is included, which actions and so on. is the specific case a case of the specific right. but each human right, even the right to live has boarders. there might be another right that stands up (take the case: someone has kidnapped somebody. both have a right to life. the victim and the kidnapper. if the police does not shoot the guy he will soon kill the victim. of course by killing him his right to live is affected, but not breached.) or even a mattert of governing the state might be considered against the human right.
hence: that a human right is affected does not mean that it is breached.
so, if the goldstone report looks only upon the human right and does not talk about other aspects that stand against it and might justify the damage of the right, it is not performing a legal diskurs anymore (that is a political diskurs (hence international law becomes international moral)). if the damage of a human right is justified, this very human right is not breached.


the problem is not only human rights watchers who only see their interpretation as the only true interpretation (that i would call fundamentalism at its bets) but also journalists and other people in the public who take the interpretations of the red cross and present it as the only interpretation.
how often do you here the phrase "the israeli settlements are illegal under international law. nobody doubts that."
and that is not true.
i do. and i bet you can find lawyers that do so too. if you enter the diskurs about law than it is a ocean of opinions. and no opinion is a sentence. it is a legal opinion. if coming from a respected lawyer it might be considered more than if it comes form one finkelstein, but it is still his opinion and not more.

to be a right, to be something that could be executed, a court is needed that gives a sentence. and than there would have to be some executive that would execute the sentence.
both do not exist concerning international law. there is not court of international law (the one in the hague is not one, not a court of law) and there is no executive as well.

i would go so far: international law is not law but moral. international moral.

Alex Bensky said...

Curiously enough, no one except a small group regarded as nasty extremists suggests Arabs have no right to live in Israel, but it is taken as read that Jews have no right to live in certain areas of the historic Land of Israel.

Notice that isn't "under a Jewish government" but no right at all. The right of residence apparently is malleable depending on who is claiming it.

Joe in Australia said...

Your position is that the admittedly severe interference with normal life in Hebron is because it preserves a more fundamental human right: the right to life. But your argument doesn't show that the interference is justified, only that it is justifiable. Of course this interference would be justified if it were the only option. But in fact there are other options - for one, the Jews could leave, and life in Hebron would presumably be at least normal-ish.

Let me generalise your argument. I think it implies that military intervention to protect civilians is warranted even if the civilians are only there because of your military activity. But that would mean that, e.g., an expansionary country might encourage its citizens to infiltrate a border region in order to create a pretext for invasion. Or, having conquered it, it might resettle its citizens in the conquered territory in order to justify rule by martial law. I suspect that B'tzelem would view Jewish life in the West Bank as being part of this sort of plan. The security of the world demands that human rights are not used as a pretext by expansionist governments. Human rights in themselves do not distinguish between domestic activities and cross-border ones, and that is why the use of force must ultimately come down to international law.

After saying all that, I should say that I am in sympathy with you. My point is that interference with civil life in Hebron needs to be justified by something other than protecting settlers. I would rather say that the interference actually protects civil life by permitting Jews to live in Hebron and visit their shrine in safety. It may seem odd that the right of pilgrimage ought to be more persuasive than the right to life in itself, but the right to life can be exercised within the Green Line without imposing on Palestinians. In contrast, I believe that Jews do have a civil right to live, worship, and visit Hebron, and that the only way to protect that right is through physical separation of these communities.

Victor said...

Joe, can you name another community of people that is asked to leave their homes, because securing their right to life creates discomfort?

I think Yaacov is trying to drill down to the base argument. If preservation of the right to life, absent of context, is the sole consideration, then it should be the sole consideration for all involved, Jews and Arabs.

I think the implicit argument the internationalists make is that there is no Jewish right to life when it conflicts with Palestinian cultural and religious sensibilities. In other words, if the Jews don't like being killed, they should leave, but they certainly have no right to defend themselves.

Joe in Australia said...

Joe, can you name another community of people that is asked to leave their homes, because securing their right to life creates discomfort?

That's basically the idea behind Partition. Jews and Arabs couldn't live together amicably; it was impossibly difficult to preserve order; so the decision was made to divide what was then the British Mandate of Palestine. It was a pragmatic decision, not a moral one. But that isn't really my point: Yaakov says that interference with civilian life is reasonable in order to preserve higher values, like human life itself. My point is that it doesn't necessarily follow that the interference is justified. There are other solutions, even though they have their own problems.

Anonymous said...

Before we get into all this legalize couldn't we agree on the basic premise that even the vaguest utterance of a wish for a juden- or otherwise -rein (clean) environment is unacceptable?

Wherever separation seems to be necessary for pragmatic reasons it should be regarded as an evil but one should never help the ones who want it "rein" with pleading it as thus.

That said legal finesse (Sptzfindigkeiten) may come in useful to finding a pragmatic solution but only after the basic premise that "rein" is unacceptable has been firmly established and agreed upon by both parties.

My gut says that If one of the parties doesn't agree to forfeit the rein-argument it implicitly agrees to forfeit its right to participate in polite negotiations and thus welcomes its own "oppression".

I guess this puts me firmly into the international moral crowd albeit by claiming via my gut-feeling that there are alienable rights. After that is clear compassion may or may not take over.

rgds,
Silke

zionist juice said...

@ joe

"That's basically the idea behind Partition. Jews and Arabs couldn't live together amicably; it was impossibly difficult to preserve order; so the decision was made to divide what was then the British Mandate of Palestine."

i recommend you to look closer on how the mandate would have been devided.
the plan was not to devide it in a part for jews only and a part for arabs only.
the part of the jews would have had a very large arab minority. even after the war of independence and a large part of these arabs left there are about 20% arabs in the jewish state of today.

Gavin said...

Joe. I translated Yaacovs musing as following Orens perspective to a logical conclusion. The point of the discussion is that human rights is being promoted as an absolute value which is not influenced or altered by external factors such as politics. Under that B'tselem scenario the settlers have exactly the same human rights as the arabs, ie the right to life. Whether the settlers are there legally or not, it changes nothing on their human rights scales because their presence is politics not human rights. Yaacov was just pointing out the inability of those people to follow their own simplistic reasoning.

Well that's how I saw it... Yaacov?

A. Jay Adler said...

I think several issues are being confused here. Let’s take it as a given, in Silke’s terms, that the Palestinians wish a Jew-free environment. They say, of course, that Jews would be welcome to live as a minority in Palestinian-majority one-state Palestine. Never mind what that really means. However, even in its disingenuously theoretical form, such a situation is not the current one of an existing Israel and no existent Palestinian state. Again, leaving aside all of the Palestinian disingenuousness – in any comparable situation, the party without the state would not be sanguine about a present and growing population of those who already possess a state, and which they perceive as diminishing the chances of, and the future nature of, their own state.

This is not a one-to-one correspondence. In this case, Jew-Palestinian is not the same as Israel-Palestine (Israeli-Palestinian).

What Joe is, I think, correctly challenging is Yaacov’s logic regarding the human rights context. The right of Israelis to live in Hebron is what is challenged politically (the political purpose of achieving a Palestinian state) by Palestinians (and others) though they confidently frame that challenge in legal terms that are not as unassailable as they claim. But nations and peoples do not war over legal disputes; they do so over political disputes, and the modification of behavior is ultimately going to be politically, not legally based. Again, in any comparable situation, the parties are likely to come to conflict in the same context, and, indeed, do elsewhere in reality. One party, let’s say, just for the argument, the Israeli party, could be demonstrably, legally and in any other way you wish, in the wrong, and still justify the violation of lesser human rights through the claim of protecting the greater right to life, or as Joe puts it, “even if the civilians are only there because of your military activity.” And, of course, the other party in this comparable situation is going to view the civilian settlement as essentially military in nature, i.e. to reverse Clausewitz, state policy as an extension of war by other means.

This whole argument is averted if you believe the settlers have a right to be in Hebron, because then there is no obligation to consider removal, as Joe hypothesized, in order to protect their human right to life. Even if the right is in dispute, it can still be claimed – one need not accede to the counterargument one believes wrong – but that is often the case in political disputes. And so parties resort to self-defense, which involves conflict, and the party with the greater military power (right or wrong, however you wish to define those terms) may suppress the weaker, in whatever severe or modest way, and so defend itself. However, to cast that as acting out of international law to protect an inherent human right to life, rather than proceeding from a law of nature, to protect oneself until the political dispute is ended, is, I think, a logical error.

Metternich said...

The Jewish right to places in the West Bank doesn't just reside in the Bible, which, after all, is not universally accepted.

International law created Palestine as the homeland for the Jews at the San Remo Conference of 1920 and the Palestine Mandate. In theory, international law is accepted by all nations.

There is, of course, the theory that international law is just expensive toilet paper, and it just tags along after history like a puppy.

But if you're thinking about Rights, it's worth learning about the San Remo Conference. Jewish National Rights extend from the river to the sea.

Gavin said...

A.Jay. I doubt you'll get many arguments from people here, but that's not the position being taken. Yaacov opened with the observation that the B'tselem spokesman was specifically excluding politics from the human rights framework in Hebron. He also explored how the human rights movement in general held a similar perspective. When that position is taken the logical path leads right where Yaacov followed it.

I'll also point out that the concept of human rights is for it to transcend politics. If the two are inextricably linked then it follows that human rights violations can't be remedied without a political solution. The basic idea was to provide a universal law of 'rights' that protected people while the political issues were being resolved. As Yaacov demonstrated, it's a complex issue that looks good in theory and isn't working in practice.

Gavin

A. Jay Adler said...

Gavin, I take your – and what I now perceive more clearly to have been Yaacov’s – point. Oren was excluding political (contextual) consideration. Accordingly, I agree that reasoning from that premise would lead to Yaacov’s conclusion. I think it worth noting, though, that for human rights to “transcend politics,” as you put it, or to be “inherent,” as Yaacov put it to frame his hypothetical, is not the same as to ignore context, which law generally takes into account. In national criminal matters, there is an enforcement arm to separate parties until the consideration and resolution of both law and context can take place. The greater problem regarding Israel and the human rights community, as I’ve argued elsewhere myself, is not that the community is divorcing its considerations from context, but that it has accepted a Palestinian narrative – the Palestinian view of the context, e.g. disputed territories are “occupied,” settlements are “illegal.”

Gavin said...

Yep can agree with you there A Jay. Next step is... how does one deal with it? The Palestinian narrative isn't a manuscript or book, it's not something you can grab & tear up. It's a deliberate effort to combine all the anti-Israel, anti-Zionist anti-Jew narratives into one seamless (fictional) history that makes out Israel to be bad and Palestinians innocent victims who have never done anything wrong. It's a very clever piece of work, how does one unravel it?

Yaacov said...

Hi All!

Thanx for the fine discussion. I think Gavin's reading was the closest to what I was trying to say, but since I didn't formulate things very well, lots of you responded to what they thought I'd said. Anyway, I've responded here-
http://yaacovlozowick.blogspot.com/2009/12/primacy-of-politics.html