Australia/Israel & Jewish Affairs Council

Distortion of International Law in the Arab-Israel Conflict

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Update from AIJAC

January 14, 2010
Number 01/10 #03

This Update features some recent pieces on ways in which international law is being misused and distorted in the context of the Arab-Israel conflict, often to the detriment of the development of an international legal order.

The first entry comes from an Australian lawyer and academic expert of human rights law, Harry Reicher, who is now based in the US. He specifically focuses on what critics are claiming that international law says about Israel's right to self-defence - namely it does not have one that can justify any use of force whatsoever. He characterises the arguments as examples of the attitude that the law is anything I can cite with authority, however bizarre, a position which can "support any proposition you want to put." For Reichers analysis and response that the key is interpreting the law with common sense and realism,  CLICK HERE.

Next up, noted American political theorist  and former Law professor Peter Berkowitz looks at the international law implications of the UN's Goldstone Commission report. He points to obvious absurdities in its basic analysis,  blatant methodological flaws, and places the whole process in the context of a situation where, he argues, Israeli forces had done more than almost any other military in history to protect civilians, and yet was subject to arguably the most denunciations. He also concludes that the "International Law"posited by Goldstone could have dramatic effects on the ability of all nations to respond to terrorism. For his complete argument, CLICK HERE. Also taking on the implications of the Goldstone report, and discussing her own argument with Goldstone himself, is American writer Elizabeth Samson. 

Finally, Washington Post columnist Jackson Diehl criticises as probably unrealistic recent statements by US Middle East envoy George Mitchell that he hopes to set a 2-year deadline for a final Israeli-Palestinian peace deal. Diehl calls this goal "hugely ambitious", and says that while the US has some limited achievements from its peace efforts so far, there is no indication that the fundamental obstacles to peace have in any way lessened. He reminds Mitchell that it is the parties themselves that must be ready to make peace, and Mitchell's e experience mediating in northern Ireland may not be applicable. For a fuller exploration of Diehl's scepticism, CLICK HERE. Also sceptical of a two-year timetable, but arguing that peace still must be pursued vehemently regardless, is Aluf Benn, veteran diplomatic correspondent of the left-leaning Israeli daily Haaretz.

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Strange effects - Israel's right to self-defense

Harry Reicher

THE JERUSALEM POST,  Jan. 10, 2010

There is something about the Arab-Israeli conflict that does strange things to people. Even otherwise distinguished personalities, who in every other context are rational, sensible thinkers, become unrecognizable. The international law of self-defense is a case in point.

It is trite to say that the first and most basic human instinct is that of self-preservation. Article 51 of the United Nations Charter, which enshrines "the inherent right" of self-defense, emanates from this. The occurrence of "an armed attack" triggers the right.

In the context of Israel's incursion into Gaza last year, in response to several thousand rockets which had been fired from there into Israel over a period of years, a letter appeared in The Times of London, exactly a year ago today, signed by 31 lawyers. The lead signatory was Sir Ian Brownlie, professor emeritus of public international law at Oxford University, undoubtedly one of the world's preeminent international law authorities. The letter asserted, in so many words, the astonishing proposition that the thousands of rockets which landed in Israel (and were aimed at civilian populations and centers) "do not, in terms of scale and effect, amount to an armed attack entitling Israel to rely on self-defense."

ONE IS tempted to wonder what Prime Minister Gordon Brown would say to the notion that thousands of missiles lobbed into England would not, of themselves, constitute an armed attack. To this, one should add the International Court of Justice which, in its 2003 opinion arising out of the construction of Israel's security fence, concluded, by a vote of 14-1, that suicide bombers wreaking havoc on the country did not justify exercise of the right of self-defense, because they were not "armed attack[s] by one state against another state."

To get to this result, the court (a) wrote into Article 51 words that simply do not exist, requiring the attack to come from another state; and (b), in any event, disregarded the fact that suicide bombers are recruited, indoctrinated, trained, financed and dispatched from outside Israel.

And then there is Richard Falk, professor emeritus of international law at Princeton University, who issued a statement during the Gaza war, against the background of Hamas shamelessly, callously and cold-bloodedly embedding military personnel, arms, munitions and other military equipment in the heart of civilian populations (which international law expressly outlaws). Despite the fact that this made it well nigh impossible to distinguish between civilian and military targets, Falk declared that even in these circumstances, "launching [an] attack is inherently unlawful and would seem to constitute a war crime of the greatest magnitude under international law."

Simply stated, there was absolutely nothing Israel could do to protect itself.

IN REFLECTING on these examples, it is important not to lose sight of something fundamental. The question is not whether a particular proposition, however bizarre, can be supported by authority. As a senior queen's counsel told me in my first year out of law school, as we sat in his book-lined chambers: "You see these books? In these books, you can find authority for any proposition you want to put."

In an adversarial situation, that makes perfect sense. It is, after all, the role of counsel to forcefully advance his or her client's interests: You give me the conclusion, I'll give you the argument!

Wisdom and sound objective judgement, on the other hand, require an altogether different line of inquiry. It involves standing back, and asking objectively: Does this make sense? Is it realistic? In the present context, does it make sense, and is it realistic, to expect a country - any country - to sit passively and not respond as thousands of missiles rain down on it or as suicide bombers wreak their ghoulish horror? And does it make sense to give terrorist organizations carte blanche to use civilian populations as human shields with impunity, secure in the knowledge that that is enough to prevent a military response? And is all of this consonant with the most basic human instinct of self-preservation?

To articulate these questions is sufficient. They really answer themselves. Sadly, though, the Arab-Israeli conflict continues to weave its spell.

The writer, an Australian barrister, lives in the US, where he teaches international human rights at the University of Pennsylvania Law School and is scholar-in residence at Touro Law Center.


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Blaming Israel First

Business as usual at the U.N.

 Peter Berkowitz

Weekly Standard, January 18, 2010, Vol. 15, No. 17

Tel Aviv- With the possible exception of the U.S. armed forces, no military in the history of warfare has made greater efforts in the face of grave national security threats to avoid the use of force or has tried harder, when obliged to fight, to protect noncombatants than the Israel Defense Forces. With the possible exception of the U.S. armed forces, no military has investigated itself as rigorously as the IDF. With the possible exception of the U.S. judiciary, no courts have done more to hold their military accountable than Israel’s. And with the possible exception of America, no democracy has gone further in wartime to legitimise dissent than Israel.

It is therefore a bitter irony, fraught with consequences for the legitimacy of international law, that—with the same possible exception—no country’s military, judiciary, and democracy have been the target of greater vilification for alleged human rights violations, war crimes, and crimes against humanity than Israel’s.

The continuing controversy over the Goldstone Report is a case in point.

In April 2009, the Geneva-based U.N. Human Rights Council appointed Richard Goldstone, judge of the Constitutional Court of South Africa and former prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, to head a mission to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.

 On September 15, the mission released its 575-page report. The bulk was devoted to alleged Israeli misconduct in Operation Cast Lead, which aimed to stop the more than 12,000 rockets and mortars fired over eight years by Hamas and other armed Palestinian groups at civilian targets in southern Israel. The report firmly and in vivid detail accused the Jewish state of human rights violations, war crimes, and “actions” that “might justify a competent court finding that crimes against humanity have been committed.” Tentatively and briefly, the report also found that “it may be that the Palestinian combatants did not at all times adequately distinguish themselves from the civilian population” and that Palestinian rocket and mortar attacks on Israeli civilians “would constitute war crimes, and may amount to crimes against humanity.”

The document recommended that the Security Council require Israel and Palestinian authorities to report, within six months, on the investigations and prosecutions international law obliged them to carry out. Should Israel fail to make good progress, the report recommended that the Security Council refer the mission’s allegations to the prosecutor for the International Criminal Court. The report’s recommendations concerning the Palestinian authorities were decidedly more tepid.

On November 3, the U.S. House of Representatives, by a vote of 344-36, passed a nonbinding resolution rejecting the report as “irredeemably biased.” Two days later, the U.N. General Assembly, by a vote of 114-18, adopted the report and sent it to the Security Council.

The Security Council has declined to take action. But damage has been done. By pervasively insinuating that Israel is no better than, and in some respects worse than, the terrorists it battles, the Goldstone Report hands Islamic extremists another propaganda victory. Credulous European and American intellectual and political elites have already casually imbibed the opinion that Israel deliberately attacked civilian targets to terrorize Palestinians and destroy the foundations of civilian life in Gaza.

Goldstone’s mission was suspect in Israel’s eyes from the outset. The Human Rights Council that commissioned it is disreputable. It includes among its 48 members China, Cuba, Egypt, Pakistan, and Saudi Arabia; notwithstanding the gross violations of human rights of which many of its members are guilty, it has made a priority of condemning Israel. In addition, statements about Operation Cast Lead and the Israeli-Palestinian conflict made before their appointments by two of Goldstone’s three mission colleagues—Christine Chinkin, professor of international law at the London School of Economics, and Hina Jilani, advocate of the Supreme Court of Pakistan—could reasonably be seen as prejudging Israel’s guilt. And from the General Assembly’s 1975 resolution declaring Zionism a form of racism to the International Court of Justice’s 2004 ruling that Israel’s security barrier violated international law and must be dismantled, Israel has learned to expect from international bodies hypocrisy, slander, and scorn for its security.

Consequently, the Israeli government’s decision not to cooperate with Goldstone, while still controversial in Israel, was understandable. The mission’s mammoth report, written in unseemly haste, confirmed Israel’s doubts.

A careful reading thoroughly discredits the Goldstone Report. So demonstrated Hebrew University philosophy professor and New York University law professor Moshe Halbertal, a distinguished man of the Israeli left who helped draft the IDF’s ethics code, in a devastating New Republic critique. Here, three examples of the report’s biased and unscrupulous analysis must suffice.
  • First, it presents as settled that, despite completely withdrawing from Gaza in 2005, Israel remains under international law an occupying power with attendant obligations because it controls Gaza’s borders. In reality, the legal question is very much in dispute. Israel’s famously progressive and activist Supreme Court has ruled that the country no longer occupies Gaza. And as Col. (Ret.) Daniel Reisner, former head of the IDF’s International Law Department, pointed out to me, even the International Committee of the Red Cross considers the question to be difficult and unresolved.
  • Second, the report blames Israel for causing humanitarian suffering by imposing a blockade on Gaza. In the process it dismisses the heroic efforts the IDF made in the midst of last winter’s military operation that increased food, medicine, and fuel entering Gaza. Nor does it examine Hamas’s theft of these humanitarian supplies or exploitation of Israel’s daily humanitarian pauses to launch rockets at civilians in Israel and attack the IDF in Gaza. And the report fails to note that Egypt controls Gaza’s western border, imposing restrictions more severe than Israel’s—this although the mission itself entered Gaza through the Egyptian-administered Rafah crossing.
  • Third, the report accuses Israel of violating the laws of war by killing more than 200 civilian Palestinian police officers. In so accusing, the report relied heavily on Palestinian testimony and ignored or dismissed openly available information showing that Hamas also assigned the police a military role and ordered them, in the event of a ground operation, to fight the IDF.
More generally, the Goldstone Report suffers from fatal methodological flaws. While subjecting Israeli accounts of wartime operations to hyper-exacting scrutiny and relentless skepticism, it routinely accepts Palestinian testimony of alleged Israel crimes at face value, rarely if ever wondering whether Gazans regarded representations to the mission as acts of resistance. This is of a piece with the report’s systematic failure to give due attention, as the laws of armed conflict direct, to military necessity, which in this case means the precautions feasible for reasonable IDF commanders to make in the harsh conditions of urban warfare against an enemy relentlessly striving to blur the distinction between civilians and combatants.

Finally, while the Goldstone Report goes to extravagant and irrelevant lengths to put Israel’s Gaza operation in context by discussing the larger sweep of the Israeli-Palestinian conflict, it barely mentions Hamas and glosses over the terrorism to which it is devoted. To understand Israel’s operation, however, it is crucial to grasp Hamas’s frequently reiterated determination to wage jihad to destroy Israel. It is also vital to appreciate that Hamas blatantly violates the laws of armed conflict by deliberately transforming Gaza City and other densely populated areas into military bases. From these locations, using its own people as human shields, Hamas launches its rockets and mortars at Israel’s civilian population—ensuring that Israeli operations aimed at ending those attacks will make Israel a killer of Palestinian civilians.

No doubt, like all armies, the IDF made errors in Operation Cast Lead. And in the infernal smoke and fire of asymmetric urban warfare its soldiers and officers may have committed crimes. In the short term, Israel’s Military Advocate General’s Corps continues to investigate allegations and to pursue substantial ones. A military task force established to examine the Goldstone Report’s allegations headed by Brigadier General Yuval Halamish expects to publish its findings at the end of January.

The long-term stakes, according to General Halamish, are high: “The fundamental problem applies not just to Israel but to all democratic nations—if they accept the Goldstone Report’s approach and conclusions, they will not be able to fight terror.”

Peter Berkowitz is the Tad and Dianne Taube senior fellow at the Hoover Institution, Stanford University.


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U.S. ambition alone won't forge Mideast peace

By Jackson Diehl

Washington Post,  Monday, January 11, 2010


Give George Mitchell points for perseverance, at least. Last year the attempt by President Obama's Middle East envoy to relaunch Israeli-Palestinian peace talks, with an ambitious two-year deadline, was an embarrassing flop. Neither Israelis nor Palestinians showed much interest in new negotiations. As the world watched, Israeli Prime Minister Binyamin Netanyahu forced the administration to retreat from its demand for a complete freeze on settlement building, while Saudi King Abdullah directly rebuffed Obama after he traveled to Riyadh to ask for a gesture to Israel.

So what is Mitchell's plan for 2010? A "comprehensive peace in the region," he said last week, "is the objective set forth by the president and the secretary of state." "The way to move forward," he told PBS's Charlie Rose, "is an Israeli-Palestinian agreement, Israel and Syria, Israel and Lebanon, and full implementation of the Arab peace initiative," in which every state in the Arab League would recognize Israel. This negotiation, he added "should last not more than two years" and "personally I think it can be done in a shorter period of time."

One way of interpreting this is that Mitchell and his boss have refused to be deterred by the resistance they've run into. Another is that they have learned nothing from their mistake-ridden first year. Either way, the administration has once again publicly set for itself a hugely ambitious goal in a part of the world where diplomatic failure is punished harshly.

Mitchell's sang-froid is not completely unfounded. The administration's opening offensive did succeed in getting Netanyahu to commit, for the first time, to Palestinian statehood, and to a partial, 10-month settlement freeze outside Jerusalem. An even bigger achievement, begun under the Bush administration, has been the professionalization of Palestinian security forces in the West Bank, which has largely prevented violence and allowed Israel to pull back some troops and roadblocks. That, along with a rebound of economic activity, is the beginning of what could be the most promising development in decades: a serious, Palestinian-led effort to build the institutions of a viable state from the ground up.

The fundamental obstacles that tripped up Mitchell nevertheless remain. Netanyahu's vision of Palestinian statehood is a non-starter: It rules out shared sovereignty in Jerusalem, for example. Mahmoud Abbas, the weak and aging Palestinian leader in the West Bank, has already rejected a far more generous offer from Netanyahu's predecessor. Arab states, which spent last year waiting for Obama to crack down on Israel, have recently begun nudging Abbas to resume negotiations. But they still aren't willing to take political risks of their own.

Netanyahu's ambassador in Washington, Michael Oren, told me that Israel doesn't like Mitchell's two-year timetable, which he said "is unrealistic and might prove counterproductive." "We know from our experience that state-making takes a long time," he said.

Mitchell's response to such objections is to recall his brokering of the 1998 Irish peace accord -- which, he pointed out to Rose, took him just under two years. "One thing I learned in Northern Ireland is, you don't take the first no as a final answer," he said.

Fair enough. But Mitchell has a way of brushing off the lessons his many predecessors acquired the hard way. For instance: Breakthroughs in the Middle East don't start with the United States but with the parties themselves. And: Big, ambitious attempts to settle the whole conflict in one set-piece negotiation not only fail but often are followed by violence -- such as the Palestinian uprising after Bill Clinton's Camp David summit, and the war in Gaza after George W. Bush's Annapolis process.

Another lesson Mitchell says he learned from the Irish is that "timing is everything in life. What constantly happens is when one side is ready, the other side is not." At the moment, the United States is ready in the Middle East -- something that hasn't always been true. But it's not clear that any of the other parties -- Palestinian, Israeli or Arab -- are. As Mitchell himself put it, "what we have to do is find the formula that gets them both ready at the same time on all these fronts." If he does that in two years, he'll prove me and most other Middle East watchers wrong.

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