Whose International Law Is It, Anyway? (Daled Amos)

By Daled Amos

Not surprisingly, the reaction to Trump's recognition of the legality of the Israeli settlements has led to one more uproar in opposition to his Middle East policy.

But in contrast to the reactions that are either in favor or against the decision, one of the more novel reactions was by Shmuel Rosner, that international law is just a bluff anyway; it doesn't really matter.
He bases this on Secretary of State Pompeo's own statement, that "the hard truth is that there will never be a judicial resolution to the conflict, and arguments about who is right and who is wrong as a matter of international law will not bring peace."

Rosner takes this one step further, that not only does international law have no practical meaning when it comes to the Israeli-Palestinian conflict, but more than that:

Inserting it into the conversation is a disruption. Inserting it into the conversation is a manipulation. It is a tactic aimed at presenting Israel as a pariah state, a state guilty of criminality.

You'd be hard-pressed to argue otherwise.

Social media is full of self-described experts on Israel and international law. They are always available to declare which (if not all) of Israel's actions are in violation of international law.

Either they merely claim this matter of factly.
Or they will claim this is the international consensus.

After the incident of the Mavi Marmara, the UN Security Council, whose members do not not have expertise in international law, declared Israel's blockade of Gaza illegal.

Then along came the Palmer Commission, which had the advantage of having members with expertise in international law:

A long-awaited United Nations review of Israel’s 2010 raid on a Turkish-based flotilla in which nine passengers were killed has found that Israel’s naval blockade of Gaza is both legal and appropriate. [emphasis added]

In another example, this week The New York Times generously offered to explain the legalities of Israeli settlements: Are West Bank Settlements Illegal? Who Decides?

Isabel Kershner gives the background:

Israel captured the West Bank from Jordan in the 1967 war and has occupied the territory ever since. The Fourth Geneva Convention, ratified by 192 nations in the aftermath of World War II, says that an occupying power “shall not deport or transfer parts of its own civilian population into the territory it occupies.” The statute that established the International Criminal Court in 1998 classifies such transfers as war crimes, as well as any destruction or appropriation of property not justified by military necessity.

Israel argues that a Jewish presence has existed on the West Bank for thousands of years and was recognized by the League of Nations in 1922. Jordan’s rule over the territory, from 1948 to 1967, was never recognized by most of the world, so Israel also argues there was no legal sovereign power in the area and therefore the prohibition on transferring people from one state to the occupied territory of another does not apply.

The International Court of Justice rejected that argument in an advisory opinion in 2004, ruling that the settlements violated international law.

In a bait-and-switch, the article starts off talking about Jordan and its questionable rights to the West Bank and just a few paragraphs later is talking about "privately-owned Palestinian land" -- without ever addressing the question of how the Palestinian Arabs acquired sole rights over an area from which Jews were ethnically cleansed by Jordan in 1949.

The article references the argument that Israel violated the Fourth Geneva Convention according to which an occupying power "shall not deport or transfer parts of its own civilian population into the territory it occupies" and volunteers that Israel's defense is "that a Jewish presence has existed on the West Bank for thousands of years and was recognized by the League of Nations in 1922."

There is no mention that the Fourth Geneva Convention is addressing the issue of forced deportations and transfers, something that is not applicable to Israelis who willingly move there on their own.

And the League of Nations did more than just recognize the Jewish presence, it was actually a recognition of legal Jewish legal rights to the land, which formed the basis of the Palestine Mandate similar to the mandates for Syria and Iraq, the goal being the administration of those areas until they had the ability to assume their independence.

This recognition of Jewish rights in then-Palestine was then verified at international conferences in San Remo, Sevres and Lausanne and had the force of international law.

The article, after assuming what Israel's argument should be, then knocks it down: "The International Court of Justice rejected that argument in an advisory opinion in 2004, ruling that the settlements violated international law."

Left unsaid is the fact that:

o As an advisory opinion, it has no legal weight, especially since Israel had no role in the proceedings and did not present its side
o The actual case before the court was the security fence. The court mentioned the legality of the settlements in response to the phrasing of the question brought before them -- without actually deliberating on the issue of the settlements
o One of the judges, Justice Kooijmans, wrote a separate opinion where he says specifically that under the circumstances:

The Court has refrained from taking a position with regard to territorial rights and the question of permanent status

This New York Times is not alone in playing this game of disinterested observer objectively presenting the facts.

This week the BBC agreeably reports

Palestinians have condemned a decision by the US to abandon its four-decades-old position that Jewish settlements in the occupied West Bank are inconsistent with international law.

BBC Watch notes

Secretary Pompeo’s statement marks a return to the policy of US administrations between 1981 and December 2016. In other words, the “position” described by the BBC is three years old rather than “four-decades-old”.

If so, he has good company. The New York Times similarly claims this week:

The Trump administration declared on Monday that the United States does not consider Israeli settlements in the West Bank a violation of international law, reversing four decades of American policy and removing what has been an important barrier to annexation of Palestinian territory.

Ira Stoll points out that in 2017, a New York Times editorial claimed

“The United States, Israel’s strongest military supporter, has consistently held that settlement building in the occupied territories is illegal and detrimental to seeking a lasting peace.”

That was before the New York Times had to issue a correction:

The basis for the short-lived US position that the Israeli settlements are illegal is based on a memo, 4 pages long, written by Herbert Hansell, Jimmy Carter's legal adviser, in 1978.

Eugene Kontorovich this week faulted the memo for a number of reasons. But the biggest problem he found is that the memo by its own logic is irrelevant:

Even on its own terms, the memo’s conclusions no longer apply. Because occupation is part of the law of war, Hansell wrote, the state of occupation would end if Israel entered into a peace treaty with Jordan. In 1994 Jerusalem and Amman signed a full and unconditional peace treaty, but the State Department neglected to update the memo.

The attempts to cow Israel into submission with claims of international law recently went beyond words with the decision by the European Union's Court of Justice that Israeli products from the disputed areas must be labeled.
Rosner sees this no differently than other attempts at disruption, and he sees Pompeo's statement as a specific reaction to it:

Pompeo's declaration is a clear and immediate rebuff of this unwise decision by the court. Again, it is calling a bluff: this is not a judicial decision based on law, it is a political decision expressing Europe's opposition to settlement activity.

Whether resorting to fabricated accusations of illegality or to actual legal measures that have more bite, this is not really an issue of law.

It is politics.

Whether it is coming from social media, mainstream media, politicians or countries -- this is an evasion of the hard work of negotiation, relieving the Palestinian Authority of the need to come to the table and negotiate.

One can argue with the effect of recognizing the legality of the settlements on peace, but it does help put Israel on an equal footing with the Palestinian Arabs and suggest the need for the two sides to talk about "the West Bank" -- perhaps not everyone knows what peace will look like after all.

Maybe that is why some people are so angry.

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