Wednesday, March 2, 2011

Politics and International Law

Robin Shepherd last week wrote a delightful article at the Jewish Chronicle about how Obama has weakened the notion that Israeli settlements are illegal. His thesis is that if the UN Security Council is an important legislator of International law, and it just refrained from declaring the settlements to be illegal, apparently they aren't, or at least the case is murky.

Of course, anyone committed to the idea that the settlements are illegal will brush this aside by saying that the American veto which forged that outcome was pure politics, not legality, but that's precisely the point. If you operate in purely legal mode, you've got to accept the manner in which decisions are made and the tools defined for making them. If the decisions aren't to your liking or the tools malfunction according to your lights, you can go back to the sovereign (the electorate) and try to change things until you get to the result you'd like, and you may or may not succeed. Until then, however, you can't say the law is illegal, or the legal situation is illegal, or what have you. In the realm of international law there is no sovereign, which is an enormous problem, but there are rules and the position of the Security Council is pretty strong; there's no legal methodology to say that when the UNSC makes "wrong" decisions, they don't apply. Can't do that.

Of course, some of us find the entire discussion proves its own futility. International conflicts can only be resolved through politics (or war, a continuation of politics). There will be cases where the parties to the conflict agree, for political reasons, to arbitration by legal entities of rules. That's fine for them. (Israel and Egypt disagreeing over Taba, in the early 1980s, is a local example). There will be cases when they won't agree that way, but some other way - say, by ethnically cleansing respective regions until they can bridge the remaining gaps by negotiation, as in the former Yugoslavia. Or they may resolve the matter by one side winning and the other side losing, as between Tibet and China, for example. (In the Sakhalin Islands, the side that won didn't even do anything, except take advantage of the loss of the other side). Sooner or later conflicts end, when the parties decide they're over; international law and institutions can be useful tools, or not, but they aren't the reason the conflicts end.

Normblog, who probably has a higher opinion than mine of the role of international law, notes that the crimes of Gaddafi are rapidly re-awakening the humanitarian interventionist instincts which supposedly died out forever after the invasion of Iraq, a mere 8 years ago. Words like "forever" and "never" rarely mean what they're supposed to mean.

Finally, since I'm on the topic, Human Rights Watch yesterday published two admonishments to Israel and Hamas. Hamas, they pontificated, must stop firing rockets at Israeli civilians, because it's a crime. In a show of perfect balance, they also pontificated that Israel must investigate why when it responds to Hamas fire, civilians sometimes get hit. Now of course, no-one on either side decides what its interests are according to the lights of HRW, nor should they. Governments should be accountable to their electorates (this many not be the case in Gaza, it's hard to know), not to unelected and unaccountable individuals in New York. Yet the imbalance not mentioned in HRW's fake act of impartiality is that when Hamas tries to kill Israeli civilians this is a fundamental element of what Hamas is all about; when IDF actions cause civilian causalities among Palestinians, the Israelis investigate. They don't always investigate with alacrity, and often the results of the investigations indicate greater caring for Israelis and the troops that defend them than for the civilians of the enemy, and sometimes they need to be prodded, but that's the thing about legal systems: they are flexible enough to take account of political considerations, and the sovereign has to ensure they don't stray too far.

Just like international law can't. There's no sovereign, but also no such thing as fully objective impartial truth to be applied in advance to any situation.

Oh, and by the way, the HRW declaration about the bad things Israel does includes that ridiculous canard about how the 300-meter security zone Israel is enforcing along the border of Gaza covers one third of the arable land in Gaza. Some anti-Jewish libels never die, and they don't fade away, either.

Update: in January 2011 the United Nations Human Rights Council announced it was about to adopt a resolution praising Libya for its human rights record. I spoof you not.


AKUS said...

I sincerely hope that the US, for once stays out of the problems in Libya. As it happens, it looks at this time that Gaddafi will get the upper hand. We can rely on the Euros to do nothing but crawl to the eventual winner, be it gaddafi or the others, and the US for once might as well join the crowd. Unfortunately, egged on by the press, the administration has already started taking sides.

So if Gaddafi wins, the US loses, and if the other crowd win, and the US has not helped, it will be condemned, and if the US does intervene against Gaddafi the usual left nut jobs now calling for the US to help "their" side will promptly turn on the US like a pack of hyenas for its imperial lust for oil.

NormanF said...

Jewish rights under the Palestine Mandate cannot be revoked even by adverse UN Security Council majorities or by a decision of the Israeli government to no longer insist on upholding them.

International law only acknowledged a right the Jews already had; it did not bestow it upon them.

Metternich said...

The legal rights of Jews to settle the West Bank (Judea and Samaria) stem also from the 'San Remo Convention of 1920', which also authorized the creation of Iraq. So if you want to disable these rights, you have to un-establish Iraq as well.

Whether acts of the Security Council are 'International Law' rests at least partly on whether they are under the authority of Chapter 6 or Chapter 7 of the UN Charter. To make the game more challenging, the Security Council rarely, if ever, tells us which chapter is being used.

Menachem Mendel said...

Whether the US votes for or against a UNSCOR is based upon politics and context, and not upon what it thinks is the proper interpretation of international law. The US has voted for Security Council Resolutions in the past that have described settlements as a violation of the Geneva Convention. See e.g. UNSCOR 465. It has also abstained or voted against others, seemingly depending on the political context and the entire text of the resolution.

Some of the discussions by people who claim that settlements aren't against international law don't even address the opinion of Yoram Dinstein. Here's what he said in his article "Belligerent Occupation and Human Rights" in the Israel Yearbook on Human Rights, vol. 8, p. 107:

"[The] Fourth Convention is applicable to all the areas occupied by Israel in the Six-Day War which are still under occupation. The Government of Israel, from the outset, took the position that it does not concede the applicability of the Convention to these areas, inasmuch as it had never recognized the rights of Jordan and Egypt to any part of Palestine. But this position is based on dubious legal grounds, considering the Fourth Convention does not make its applicability conditional on recognition of titles."

Regarding settlements, Dinstein wrote (p. 124):

"In the specific case of Israeli settlements in areas occupied in the Six-Day War, it is necessary to take into consideration-apart from this distinction between private (and permissible) settlement of Jews across the 'Green Line'...and (impermissible) transfer of population-that there is nothing wrong in the establishment of Nahal...settlements where regular soldiers are engaged, for part of the time, in agriculture...Illicit transfer has to do with civilians and not with combatants entrusted with the security of the occupied territory, however they spend their time."

Metternich said...

Prof Dinstein is indeed a formidable intellect on these subjects. The text of the provided quotes, however, provides little support to the idea that "Settlements" in Samaria are any different than settlements in Tel Aviv.

1. "...considering the Fourth Convention does not make its applicability conditional on recognition of titles."

How else can we recognize whether an act or a transfer is within a country or across borders? Movement of people and acts of Eminent Domain are subject to the sovereignty of the nation, not international law.

2. Referring to a migration as "illicit" merely presumes that the 4th Convention applies. It fails to show how or why it applies to territory that is inside of Israeli sovereignty.

Menachem Mendel said...

Israel refuses to annex the West Bank so it is under Israeli control, but not necessarily Israeli sovereignty. Just a few weeks ago the government affirmed that decision. The status of the West Bank is different from East Jerusalem and the Golan Heights which Israel formally annexed. It is interesting that even though Israel has annexed the Golan Heights, it has also said that it is willing to negotiate with Syria over it's sovereignty. That Israel rules over the West Bank, doesn't make it the sovereign.

According to International Law: A Dictionary, "Belligerent occupation as such need not, and in contemporary international law, may not, lead to acquisition of sovereignty. It must be distinguished from the now unlawful conquest followed by annexation and transfer of sovereignty by means of a treaty of cession, but sometimes by unilateral annexation resulting in subjugation." Part of it can be found here.

So if Israel refused to annex the area, then what is its legal status? Occupation isn't illegal, although some have argued that Israeli's occupation of the WB is b/c of the time span, but it does govern what the occupier can and cannot do. The Law of Conquest may have been workable for areas that Israel conquered during the War of Independence beyond the Partition Plan, but applying that to 1967 does not seem like a workable option, no matter how much some in Israel may wish it to be so.

Yaacov said...


You're right that Israel never annexed the WB. It's also the case the Israel has suggested swapping territories from within the Green Line - clearly under Israeli sovereignty - for some parts of the WB. In any case, even the areas Israel did annex (East Jerusalem) aren't recognized as such by the rest of the world. SO I don't think that's the issue in any case.

On the other hand, the applicability of International Law to prohibit voluntary settlement of Jews in those areas, as against forced resettlement by Nazis in Eastern Europe, which was the point of the 1949 4th Geneva Convention, was never mooted before 1972 (in response, perhaps, to Israeli actions and in attempt to proclaim the illegal post factum?), and in any case seem to be quite flimsy.

Menachem Mende said...


I think that the claim could be made that government subsidies and promotion for living in the West Bank are probably the reasons that most of the settlers are living there. The intention of these actions was to change the demographic reality of the West Bank, something which Article 49 was trying to prevent.

Also, it is clear that the private property rights of Palestinians are sometimes ignored, whether to build settlements or infrastructure supporting them. One can argue about how much land we are talking aobut, but I think that it would be hard to argue that this phenomenon doesn't exist and isn't illegal and the government seemed to either support it or not care about it.

Jerusalem is an interesting case, since it was never intended to be part of a Jewish or Palestinian state, its status is different. As a result of this, our kids' American passports say that they were born in Jerusalem and not Israel.

Sharon Korman's book The Right of Conquest seems to address some of these issues. It's expensive and checked out of the library at the moment, so Google Books will have to suffice for now.

An irony of history is that if the head of a certain Va'adat Kabbalah at a Yishuv Kehillati in the West Bank hadn't told us that she didn't think a Conservative rabbi (me) wouldn't be compatible with the nature of the settlement, I might be living there myself.

Menachem Mendel said...

I apologize for the double negative in the last paragraph of my comment. It should be:

"An irony of history is that if the head of a certain Va'adat Kabbalah at a Yishuv Kehillati in the West Bank hadn't told us that she didn't think a Conservative rabbi (me) would be compatible with the nature of the settlement, I might be living there myself."

Ibrahim Ibn Yusuf said...

Clueless as usual. UNSC Resolution 446 of 22 March 1979 stated:

The Security Council,(...)

1. Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East[.]

I.e., the Security Council established more than 30 years ago that the settlements are illegal. This resolution is valid to this day, and the fact that a new resolution is not passed in no way invalidates the former one.

Yaacov said...

You forgot to sign your name, Alberto. People might get confused.

Metternich said...

Yusuf argues, in effect, that rights granted to a people can later be taken away. In fact, there is no legal theory or practical mechanism behind this. Israel is not less of a state than Peru or France. Rights granted by the League of Nations are, in fact, absorbed by the UN Charter.

It is pointed out that the Israeli government has refrained from annexing the West Bank. This only underscores that Israel has, in fact, the legal authority to annex anything in Mandate Palestine. Practical limitations are not the same as legal limitations.