Monday, August 06, 2018
Elder of Ziyon
One of the most powerful objections one could raise to the critique
I’ve been making regarding Israel and international law would be that it is a
“shooting the messenger” – style argument.
“So what if the institutions condemning Israel as being in violation of
international law are flawed or even corrupt?” the argument goes. “If Israel is guilty of what they say, then
it shouldn’t matter who is making the accusations.”
This is actually a strong argument, which also implies another one that
says it doesn’t matter if other nations (including Israel’s accusers) are
guilty of even greater human rights “crimes,” since the question under
discussion is Israel’s guilt (or innocence) of the charges.
Israel’s supporters need to treat this argument with respect since
Israel does not stand alone with regard to the developing framework of
international institutions and rules, so should not be quick to dismiss the
entire edifice as illegitimate.
In order to counter this argument, one would need to demonstrate that
there exist objective standards for judging whether these accusations are
unfair or not. And fortunately, we can
go back to our original discussion of the nature of law to find such standards.
If you recall, this analysis began by describing the rule of law based
on consent and enforcement representing a pact between generations to believe, and
raise their children to believe, that the law is fair and thus worth preserving. And there are some situations which have
reasonably shaken this belief, regardless of the societies in which these situations
have emerged.
The first is inequality before the law.
After all, the law is meant to be impartial (and blind), applying
equally to rich and poor, aristocrat and worker, well-connected and
isolated. But if can be demonstrated
that law is applied unequally on a systematic basis, that is a strong
foundation for challenging its legitimacy.
Inequality before the law can take two forms: a law that can clearly be
applied to many instead being applied to just an unfortunate few. Alternatively, law can be written so
selectively and precisely that it is designed to prosecute just a few specific
individuals or groups. The non-stop (and
systematic) condemnation of Israel by international bodies made up of nations far
more guilty of the crimes they accuse Israel of committing falls into the
former category. And the increasingly
narrow definitions of “Occupation” (something we saw in the Irish boycott
example that kicked off this series) is an example of the latter.
The other principle that can be used to demonstrate the fairness vs.
unfairness of law is the notion of selectivity, in this case selectively
enforcing parts of a law while ignoring important components (such as context,
qualifiers or additional obligations) found elsewhere in the same law.
For example, Israel’s accusers routinely claim the Jewish state is in
violation of United Nations Resolution 194 which states that "refugees
wishing to return to their homes and live at peace with their neighbors should
be permitted to do so at the earliest practicable date," to support the
so-called “Right of Return” of Palestinian refugees. But even within this sentence, 194 is meant
to apply only to those refugees wishing to “live at peace with their
neighbors,” which immediately highlights that it might not apply to refugees who refuse to this day to acknowledge their
neighbor’s (Israel’s) right to exist (much less live at peace with her). The resolution also does not indicate a
specific set of refugees, meaning it could be used as the basis for Jews kicked
out of their West Bank homes after the 1948 war having a legitimate right to
move back there (not quite what the BDSers have in mind, no doubt).
Similarly, Article 13 of the UN’s Universal Declaration of Human Rights
(which states that "(1) Everyone has the right to freedom of movement and
residence within the borders of each state; and (2) Everyone has the right to
leave any country, including his own, and to return to his country") is
also frequently invoked to “prove” Israel is in violation of the law by not
allowing Palestinians an unlimited right of return. But, again, the legal ambiguity of the
territory under dispute in the Arab-Israeli conflict (coupled with the fact
that “Palestine” is not a state, and thus cannot be a party to the Declaration),
means that this freedom of movement and return can equally be applied to both
Jews and Arabs, rather than selectively applied to Arabs alone.
Both strands of unfairness (inequality and selectivity) come together
when you look at the aforementioned Declaration of Human Rights in its
entirety. For reading through all 30
articles of the Declaration, one is struck by how one region in the world more
than any other: the Arab Middle East, exists in contravention to almost every
one of these principles: from freedom of the individual to representational
government to freedom of religion, peaceable assembly, and equal rights before
the law. Yet those who most aggressively
flog the distorted reading of just one article of the Declaration are the most
passive with regard to the clear meaning of the Declaration as a whole applied
outside of Israel's borders.
BDS advocates making this or that accusation of illegality are free to
use their free speech rights to do so, as long as they don’t mind other people
using their free speech rights to point out the BDSers inaccuracy and
hypocrisy. But accepting newly-devised
or newly-developing international law that is supposed to transcend the laws of
nation states requires that evolving legal framework prove itself to be at
least as good as the national law (especially national law based on the twin
pillars of consent and enforcement) it is meant to replace.
Israel, its friends and supporters obviously have their work cut out
for them ensuring that new laws are not invented or selectively enforced at
their expense. But those who truly
believe the emergence of international law to be a positive trend have an even
greater obligation to fight the exploitation of this emerging field by ruthless
state actors. For if international law
turns out to be just another means by which the powerful and numerous can
torture their smaller and less powerful rivals, it will join the League of
Nations as an even greater and costlier noble failure.
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