Misconceptions about Israel, the territories, and international law

This is cross posted by Matthew Ackerman, a Middle East Analyst at The David Project, and represents an excellent primer on the characterization of Israeli control over disputed territories in Judea and Samaria as violations international law.

(See original post at David Project site, here.)

So some might grant that it is unclear whether or not Israeli control of the territories is “illegal.” That same person would probably still hold, though, that clearly the settlements are illegal. And this argument bases itself on the Geneva Accords, kind of like citing the Constitution, so it should be granted that it is a stronger argument.

But again if we look at the actual language we see that the case is not certain. Just as is the case with Israel’s control of the territory of the West Bank, so too if we look at the documents cited to prove that Jewish settlement in the territories is illegal, it is clear that this is far from a definitive conclusion.

The clause most cited to say that Israeli settlements are illegal is an article in the 4th Geneva Convention, signed just after World War II, that says: “The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies.”

On its face, it seems clear how this can be read to prohibit Israeli settlement of its civilians in the territories.

On the one hand, though, it doesn’t however say anything about military installations. That means that even if it says that civilian settlement in the territories is illegal, this clause does not say that it’s illegal for the IDF to set up military buildings, housing all the necessary people there to keep those installations running.

More importantly, a fair reading of the context in which this particular provision was crafted seems to make clear to me that it refers only to involuntary transfers. In other words, to a government moving people into the conquered territory against their will. It was related to specific actions taken by the Nazis – their forcible transfer of ethnic Germans in lands they conquered elsewhere, and their forcible transfer of Jews in Germany to camps – that bear no resemblance to the Israeli settlement enterprise.

So, as was the case with Resolution 242, a deeper consideration of both the language in question and the context in which it was crafted and implemented transform a surface conclusion into at least a debatable manner. Which of course means that, at a minimum, the question of whether or not Israeli control of or settlement in the territories is “illegal” is unsettled. Which means that fair-minded observers should reject the casual depiction of these realities as illegal.

The other very large problem about this notion is that it in the first place assumes that Jews – and only Jews, not say Israeli citizens, which of course includes many non-Jews – have no right to live on the far side of the 1949 lines. This is a very large problem because these include areas, like the entire old cities of Jerusalem and Hebron, that were populated by Jews for thousands of years before those Jews were killed or forcibly removed and the areas they lived in, including their holy sites, destroyed and vandalized, in the first case in 1948, in the second in 1929. To say that the Jewish state must now acquiesce to the permanent  removal of Jews from those areas (irrespective of the question of whether or not Israel need exercise sovereign control) doesn’t seem to me to be a strong grounding for a just international legal system, to say the least.

And that gets us to maybe the biggest problem we face with the casual description of international law that many people use, as well as the incessant focus of international bodies and human rights organizations on Israel to the near exclusion of all else: It undermines the basic principle of international law.

A system applied in this way – capriciously, without intellectually honest references to foundational texts, as a tool to batter the Jewish state for reasons that have very little do with anyone’s notions of international law, without recognizing the currently shaky foundations upon which the international legal system rests – does more than anything else to undermine the confidence on the part of nations and individuals in that an objective, serious international legal system is possible and desirable. As I’ve already mentioned, and I think should be beyond dispute, such a system rests firmly only on the consent of the vast majority of the people who live under its jurisdiction. And why would anyone want to willingly grant authority over some of the most important aspects of their lives to bodies that twist the law to suit moral fashions?

So, there are very large questions regarding what international does or does not say about Israel’s control of the territories, and there is no suitable forum at the moment for deciding what it says. Pretending otherwise is a serious blow to the creation of a just international order, in which all states and all peoples can live in the same warm embrace of the rule of law that we enjoy in America.

What generally happens in discussions of international law and Israel is that everyone makes the wrong assumption – that there is an international legal system like the system we have in democratic countries – and then debates what the implications of the laws that system has created are. For example, there was and is a very strenuous debate over the 2nd Amendment. There was a very important case on this matter that was decided by the Supreme Court over the summer. And immediately following the decision, the debate began. Does the decision invalidate this law or that law, or not? What are the new limits people must abide by? How can states that have laws that now contravene this decision change them to make them suit it? And so on. And the same thing happens just about every time the Supreme Court makes a decision, just most of the time people like me don’t know about it or why it matters.

And those Supreme Court decisions matter because whether or not we agree with them, we all agree that they do in fact constitute practically the last word on what the law is. Ultimately of course those decisions are backed up by the force of the police and even the military. Only 50 years ago we saw dramatically in this country that this is so, when President Eisenhower used the Armed Forces to enforce a Supreme Court decision in Little Rock, Arkansas. This is an important issue, and I want to return to it later.

But what makes the system of law work so well in the United States is that force is nearly always unnecessary, because we all agree that the Supreme Court has the authority, basically and near ultimately, to determine what is legal and what is not. Now we debate very strongly whether or not the decisions they make are correct, and these debates get very hot and will likely only get hotter. But they are so hot precisely because we all agree that even when we think the Court has gotten something completely wrong, they have the authority to be wrong, and we all have to go along with it until or unless we can change the Constitution or get the Court to rule on the matter again and change their mind.

This to me was the big lesson of Bush v. Gore. [The Supreme Court case which ended the 2000 Presidential election.] Forget about the intricacies of the argument. Forget about whether the Court at the time got it right or wrong. What was important, what really mattered, was that the entire country went along with the decision, whatever they felt about its merits, because they recognized the power of the Supreme Court to say what is legal and what isn’t, even for such a weighty matter as who the president will be.

And even beyond that there is a recourse. Power rests not with the credentialed determiners of law who sit on the Supreme Court. Not ultimately. That power rests with the people, “We the people,” who wrote the Constitution that the Supreme Court bases its decisions on. And if the people don’t like what the Supreme Court has to say, well, they can get elect leaders who will put people there who will say what they want it to say, and they can change the Constitution to make clear that it says what they want it to say.

That natural foundation for law – on the people as sovereign, as the ultimate locus of power – is what makes the American legal system so strong and so wonderful.

We can’t say any of the same things about international law because it lacks some of the basic attributes of a national legal system, and this lack is very important when thinking about what exactly international law has to say about all kinds of matters, the situation in the territories included.

It lacks:

  • A system for determining what is legal and what is not. There is no system that has been put in place that is designed to and has the authority to play the same role that the Supreme Court plays in the US.
  • An effective enforcement arm. There are of course UN peacekeepers, but, and I think this is in many if not most cases a sad thing, they are known for their ineffectiveness as opposed to their effectiveness. This is something that Israelis have come to understand well, whether in the case of the UN monitoring force that was put in Sinai to serve as a buffer between Egypt and Israel after the 1956 war or UNIFIL in Lebanon which has watched almost entirely mutely as Hezbollah has rearmed since 2006 far beyond what they had before the war the group fought with Israel that year. UNIFIL was in fact placed there specifically to disarm Hezbollah, so the failure has been even more stark. It’s also been true in other cases as well, such as the capitulation of the UN forces in Rwanda in the face of the genocidaires in 1994.
  • Perhaps most importantly, the consent of the governed. As I said earlier, maybe the most important thing about the system of law in the US and other established democracies is that it is respected by nearly the entire citizenry. Needless to say we have nowhere near the same case as regards many facets of international law, where governments have not signed on to the jurisdiction of the international criminal court. Even when governments have signed on to specific agreements, it is a stretch to say that the governments see them as truly binding beyond what they perceive to be their own interests. And certainly far too much to say that individuals agree with the authority of international bodies. In the US, opposition even to membership in the United Nations remains a minority but strong position in certain sectors. John McCain even floated the idea of quitting the UN to establish a competing boding of democracies as recently as the 2008 election.

All this means that international law is not a system of law like we are used to in the US. Which means it makes no sense – it is to me an illicit intellectual move – to portray international law as settled, “facts,” when it is not.

There are agreements (chief in importance in my mind being the Geneva Accords, the NPT, and the charter of the UN) but the interpretation of those agreements is not settled, because there is no one with the authority to say, as in the case of the Supreme Court and the 2nd Amendment: This is what the text means. Now go deal with it.

So at best we have a system of competing interpretations. And there is no way to say whose interpretation beats another interpretation. The best you can do is get a UN Security Council resolution, which, since UN General Assembly resolutions have been thoroughly discredited (this was not always the case. The General  Assembly resolution on Palestine was thought in its day to be a very big deal, and for some years after that the press in the US treated the decisions the GA made as weighty, kind of like how they cover the G7 today) seems to me to have achieved a kind of gold standard quality in international law. And even that of course then becomes the topic of competing interpretations, again with no one to decide which is right or wrong, because no one agrees who gets to say what “the law” is. And even if you could do that, there is no way to enforce the law if it’s not followed. And even if you could do that, the people the law is directed at, in not accepting the law as binding, would make impossible the creation of a binding rule of law that would benefit all people.

So, as regards international law and the status of the West Bank and other territories controlled by Israel but not annexed to the country, the chief important document seems to be UNSC resolution 242. And you will find people who will say that this is unequivocal proof that Israel’s control of the territories is illegal. And you’ll find others who say it says no such thing.

If you actually read the document (which is quite short), you will see that it calls both for “withdrawal of Israeli armed forces from territories occupied in the recent conflict” and “termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.”

On the one hand it is easy to see how this language is read to mean that Israel must immediately quit all territories beyond the 1967 lines. But a crucial word is missing, and that is the word “the.” It is no accident that the word is missing – its absence was the result of months of negotiations, and found its way into the text through a recognition by the people who wrote it that Israel’s exact boundaries from 1949-1967 were untenable over the long-term and adjustments would have to be made.

Taken in tandem with the second clause I cited, which calls for states to be free “from threats or acts of force,” it is not hard to argue that Israel, in returning 90% of the territory it won in 1967 when it gave the Sinai back to Egypt is fully in accord with the resolution while neighboring Arab states like Syrian and Lebanon are not, due to their housing of terrorist groups directed against Israel on their soil.

This is in fact the exact argument that Eugene Rostow, the undersecretary of state for the United States in 1967, who was intimately involved in writing the resolution, made in 1991. Rostow felt the case was so good that the text was not at all “ambiguous” or open to interpretation.

And personally, I agree with him. I don’t think the resolution is ambiguous. I don’t think it makes Israel’s presence in the territories “illegal,” and it does appear that Israel has done more to fill the terms directed at it than Arab states have done to fill the terms directed at them. The refusal by most Arab states to grant even the point that Israel has a right to not be physically attacked puts them much more in breach of the language of this resolution than Israel is.

But of course it doesn’t really matter if I say it’s ambiguous or not. And it also didn’t matter that Rostow said it, and he was certainly much more important than I am. And it also doesn’t matter if my fellow panelists disagree and say no it says clearly that the resolution says that Israel’s continued control of the West Bank and Golan are illegal. Because there is no forum for us to decide these matters. There’s no body that can say, as a final matter, this is how it is, and then we’ll know that everyone will abide by that decision. And that of course is my point.

And that gets us to maybe the biggest problem we face with the casual description of international law that many people use, as well as the incessant focus of international bodies and human rights organizations on Israel to the near exclusion of all else: It undermines the basic principal of international law.

A system applied in this way – capriciously, without intellectually honest references to foundational texts, as a tool to batter the Jewish state for reasons that have very little do with anyone’s notions of international law, without recognizing the currently shaky foundations upon which the international legal system rests – does more than anything else to undermine the confidence on the part of nations and individuals in that an objective, serious international legal system is possible and desirable. As I’ve already mentioned, and I think should be beyond dispute, such a system rests firmly only on the consent of the vast majority of the people who live under its jurisdiction. And why would anyone want to willingly grant authority over some of the most important aspects of their lives to bodies that twist the law to suit moral fashions?

So, there are very large questions regarding what international does or does not say about Israel’s control of the territories, and there is no suitable forum at the moment for deciding what it says. Pretending otherwise is a serious blow to the creation of a just international order, in which all states and all peoples can live in the same warm embrace of the rule of law that we enjoy in America.

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