The dishonesty of the anti-settlement crowd

From Think Progress, about the Levy Report that said that the Judea and Samaria are not legally considered occupied:

The difference here, said Israeli human rights lawyer Michael Sfard, who has brought dozens of cases against settlements in Israeli courts, “is that this is a supposedly committee of jurists, and this is a legal position that they are taking,” not just a political position. “It’s one thing to be a politician and to hold certain views about what ought to be. That’s fine and legitimate. It’s a completely different matter to make legal assertions.” Many countries have territorial demands and disputes with other countries, Sfard said, “but they don’t simply ignore the legal consensus about the status of these territories. They conduct their disputes diplomatically in international affairs.”

According to Sfard, while Israel may have legitimate territorial aspirations in the West Bank — “I don’t agree, but it’s legitimate” — it tries to materialize those aspirations though negotiations with Palestinians and other countries. “Holding negotiations is legitimate, and it’s legitimate for a government to say ‘here’s what we want,’” Sfard said. “It’s a different matter to simply deny the legal framework that applies.”

“International law is based on consensus,” Sfard continued, “and if most of the jurists of international law, all U.N. organs, the International Court of Justice, multiple U.N. Security Council and General Assembly resolutions, the International Committee of the Red Cross, all agree that [the West Bank] is occupied territory, it is highly immodest for this committee to say otherwise, and for the government of Israel to even reflect on adopting this, sorry, but bizarre position.”

Upon first glance, this seems reasonable. Isn't international law based on consensus?

Well, yes it is. But Sfard is being deceptive both on the definition of "international law" and on the definition of "consensus."

The Geneva Conventions are "international law." The reason that they are international law is because all the countries at the time got together and hammered them out, sentence by sentence, sharpening or watering down articles and paragraphs until they all agreed. That was the "consensus."

The statement "Israeli settlements are illegal" is not a statement of international law; it is an opinion on applying international law to a specific circumstance.

By definition, "consensus" means that everyone agrees. (There are some specific exceptions, but the statement is generally accurate.)

So Sfard is purposefully misrepresenting international law in order to achieve his own political goal.

As a legal scholar told me:

The "international consensus" about Israeli settlements cannot possibly be a rule of customary international law. Customary international law is the result of common international practice combined with "opinio juris" (the belief that the practice is required by international law). By the nature of things, there cannot be a common international "practice" concerning Israeli settlements. That is something that only Israel can have a "practice" concerning. There can be a customary law about allowing one's citizens to settle in territory one has captured, not one about the specific case at hand.

As to whether there is an international customary law concerning practices of this type, more generally (i.e., allowing one's citizens to settle in territory captured in international conflict), there is not. Many states have allowed citizens to settle in such territory, and even encouraged them to do so. In some cases (e.g., Morocco and Western Sahara), the practices have been considered illegal, and in others (e.g., India and Goa), the practices have been considered obviously legal. There is no principled line on which to draw the bounds of a rule. In any event, in no case has the world reacted the way it does to Israel. For instance, the EU does not discriminate against products from Western Sahara "settlements" in its free trade agreement with Morocco. The international anti-Israel consensus certainly exists, but it is just as clearly not an expression of customary international law. It is not even a principled application of a rule of law. It is very clearly a singular standard applied to the Jewish state.

Another known expert in international law mentioned this:

I would add, the Bush Letter is in tension with the "everyone agrees it is an illegal position."

Indeed, other US statements over the years also confirm that the US position has been that Israel would never be forced to return to the 1949 armistice lines.

Not only that, but the entire Oslo framework is based on the idea that at least some of the land is disputed - if not, what is there to negotiate?

Beyond that, UNSC resolution 242 specifies "secure and recognized boundaries" which means that the Green Line is not what the final borders of Israel should be - the phrase is meaningless otherwise.

Here is one small but representative example about how anti-Zionists will twist facts to fit their agenda. The irony here of course is that it is Sfard who is politicizing the legal process, not the Levy Commission.

I am still trying to get the specific legal arguments advanced by Levy translated into English, but so far I have not seen any substantive arguments against them, just a lot of hand-waving masquerading as real analysis going on the presumption that they must be wrong, even though very few have read them.