Monthly Archives: November 2014

WHEN INTERNATIONAL LAW’S THE THING…..

Without question, Israel is currently facing an increasingly coordinated and concerted effort by Europe and the Arab world, to delegitimise and cripple her.

Barack Obama is presiding over seismic shifts in geopolitical alliances instigated by a foreign policy that is foreign to everything America has said they stand for till now.

It is not coincidental that China and India are strenuously courting the tiny Jewish state as it becomes increasingly clear that liberal democrat America does not have Israel’s best interests at heart.

Consider the present administration’s full-throated support of “Palestinian” statehood and its increasingly strident efforts to accommodate a landscape-changing Iranian nuclear deal.
Both developments would seriously affect Israel’s ability to adequately protect itself without using the nuclear option if the Arab world continues to see as its primary foreign policy objective, the removal of the Jewish state from the Middle East.

But are Europe and America barking up the wrong tree? Do the Chinese and Indian governments more accurately evaluate the danger of spreading radical Islam given the chaos Muslim minorities cause in their respective countries? Does Russia, whose propaganda campaign is responsible for much of the European shift towards delegitimisation of Israel, also know what the Israelis know: that radical Islam unchecked today will rapidly convert significant sections of European cities into expanding Sharia-controlled no-go Muslim enclaves? Will Muslim terror stop once the world recognises the illegality of the Zionist enterprise in the Middle East. Is the foundation of the state of Israel illegal under international law?

The short answer is that the formation of the State of Israel is completely legal under international law, even if Arab backed European politically motivated communities would like to revise the fact.

There is a reason, in international law, there has been no “Palestinian” state these past 66 years.

And as long as there are those who would delegitimise a UN member state, there will always be those who will make sure that petty, genocidal, religious dogma neither changes the facts of history nor subverts international law which has at its very core, the objective of limiting the institutionalised violence we call war.

Israel is a sovereign state under international law. International law is a set of rules that are generally accepted in relations between states (Glick, 2014). International law is based on consent, and states follow the rules of international law to which they consent.

International law comprises two strands: treaties and custom. Treaties may be bilateral, based on international conventions like the 1948 Geneva Convention, or they may be multilateral such as is the case with the NATO treaty.

However, while treaties are binding under international law, institutions created by the treaties cannot make new law. Thus international bodies such as the UNGA can only pass resolutions which are recommendations. The UNSC may pass binding resolutions, but exercise of that power is limited to situations that are 1) threats to peace, 2) breaches of peace, 3) and acts of aggression against UN member states. Clearly, in the case of the Israeli Arab conflict as regards “Palestine”, “Palestinian” Arabs, hyperbole notwithstanding, have no legal leg to stand on. They have continuously threatened the peace, breached innumerable ceasefires, and often attacked a UN member state.

On the other hand, treaties do not carry the same weight as legislation, and states only have to obey treaties to which they are parties. In other words, no consent, no law.
Does this mean that a would-be “Palestinian” ‘nation’ could refuse to honour a treaty to which they were not party?

The brief legal answer is no.

International law permits self-determination claims to be satisfied by incorporation into the ruling state, by sovereign independence, or by anything in between.

In order to abide by its international obligations as a member of the family of nations to respect the self-determination rights of “Palestinians”, Israel is required to take good-faith negotiations with the “Palestinians” in a bid to satisfy these self-determination rights.

Nobody would dispute that the two unprecedentedly generous Israeli peace offers to Arafat and Abbas, in attempts to reach a peace settlement over the past 20 years, in addition to the commencement of the Oslo Accords which recognised the PLO as official representative of the “Palestinian” people, do not constitute good-faith efforts by the Israelis to satisfy “Palestinian” self-determination rights. The remarkable Barak and Olmert offers are historically documented proof of that.

Thus, Israel has fulfilled its obligations in this sphere as well.

Unlike Israel, there has never been a polity/state called “Palestine”. Thus not agreeing to international law has never been an option for them, despite their bombast and continuous claims of victimhood over the years.

And finally in this section about the legality of the Israeli negotiating position under international law, the prospect of the PA unilaterally approaching the UN for membership and thus statehood, would be a grave violation of the PLO’s signed agreement with Israel, under international aegis, which specifically barred such unilateral actions. Under international law, this agreement was witnessed by outside parties including the United States, Russia, Norway, the EU and so on.

This means that any material violations of agreements that were witnessed by the EU or similar, would irreversibly jeopardise the worth of such agreements in international law and the worth of such witnessing, and would free Israel to act in its best interests without fear or favour. A scenario fraught with potential for untold violence anyway you care to look at it.

Custom in international law, on the other hand, is different in that it results from general and consistent practice of states followed by them from a sense of legal obligation.

International law requires states to follow customary law even when the states have not explicitly consented to the custom (Glick, 2014). However, because customary law is also based on implied consent, a state that consistently objects to an international custom, is not bound by that custom.

Once again, in the absence of there ever being a sovereign “Palestinian” state to even invoke customary law and thus invoke consistent objection to the legal establishment of the State of Israel, in the light of the point blank refusal of three offers of “Palestinian” statehood 1947-2014 thus abrogating its rights to sovereignty in PA controlled “West Bank”, and in the absence of any codification of rules and charters minimising violence against Jews by the current “unity” government as per the requirement of an intending member of the United Nations, “Palestinian” claims that they are a people living in a non-self-governing territory and thus have a right to self determination is belied by the fact that the “Palestinians” have been exercising self rule over inhabited parts of Judea and Samaria since 1994 when PA was formed…….

Thus, the PA’s invocation of even this tenet of international law is baseless.

In light of the above, understanding “Palestinian” Arab violence towards the State of Israel becomes even more difficult to accept in any form, because of the documented incidents of a violent minority which proffers its own apocalyptic Islamic interpretation of how the world should be, and what should replace western interpretations of law and order.

In Gaza, and further afield, the rebirth of Islamic imperialism and violence post 9/11, from the World Trade Center, to a discothèque in Bali, to beheadings in the barren stony lands around Dabiq and Raqqa point to what Buruma and Margalit (2004) have termed Occidentalism.

Like Orientalism, which was perceived as a general patronizing Western attitude towards Middle Eastern, Asian and North African societies, Occidentalism sees the West as something less than human, something to be destroyed, something that goes beyond Wall Street, Hollywood, capitalism or the all-too-convenient catch-cry of “US imperialism”.

The current crop of jihadis see western liberalism as a threat to their religious fundamentalism, self-appointed caliphs and religiously inspired “pure” and “authentic” cleansing of the kuffar through blood letting, because it deflates the pretensions of their own brand of heroic Islamic utopianism.

Wherever it occurs, this Occidentalism is fed by an inflated Muslim perception of humiliation, of defeat.

The current wave of Islamic Occidentalism seeks to right a perceived historical wrong. And nothing matches the perceived Arab Muslim sense of failure and humiliation as much as the perception that a once glorious civilization has been left behind in every respect by the post-Enlightenment West.

This over-indulged perception of humiliation, historically redolent of the Arab psyche, can easily turn into a self-aggrandising cult of the pure and the authentic. And it is when “purity” or “authenticity”, of faith or race, leads to purges of the supposedly inauthentic, of the allegedly impure, that mass murder begins. The fact that anti-Americanism, anti-Zionism, anti-Semitism, and a general hostility to the West currently overlaps is no coincidence. (Buruma & Margalit, 2004).

However, in a modern world dominated by the spread and take up of western values of business and culture, copied and practised skilfully by the very people who would kill you for it, international law remains the final fragile red barrier “authenticity” and “purity” of Islamic thought must breach in order to imprint its brand of religious fundamentalism on a wide swathe of the world’s peoples.

To that extent, I submit that Muslim violence today against the west is not the fault of anyone else except irrational, inverted Muslim Quranic interpretation and thought, and a willingness to shed as much blood (of others) as it takes to spread a violent, radical brand of Islam.

This vision radical Islam has of itself as an antidote to “Westoxification”, is a mixture of the universal and the pure: “universal” because all people can/should, in the eyes of the believers, become orthodox Muslims; and “pure” because those who refuse the call are not simply lost souls but savages who must be removed from this earth.

Thus the “pure” and/or “authentic” Occidental hero is the one, whether he is a Nazi or an Islamist, who is just as ready to destroy those who sully the purity of his race or creed. It is indeed his duty to do so. When the West is seen as the threat to authenticity, then it is the duty of all “holy warriors” to destroy anything to do with the “Zionist Crusaders,” whether it is a U.S. battleship, a British embassy, a Jewish cemetery, or a Bali discotheque; even unto the extreme of beheading well-meaning western aid workers and journos in Dabiq and Raqqa as a terror tactic to induce compliance (Buruma & Margalit, 2004).

But, whatever the rest of the world might be comfortable acceding to in appeasing Muslim violence by permitting Sharia police no-go zones in European cities and towns, with regards to the Israeli- “Palestinian” conflict, there is always the question of international law.

It is the source of greatest frustration to large hostile bodies such as the Arab League and their enablers in the European Union that, since their inception in 1945, they have never been able to either militarily extract a territorial concession from Israel in all the wars they have initiated, nor circumvent the rule of international law in their efforts to financially and socially/legally cripple the sovereign Jewish state these past 66 years….

The sovereignty of the Jewish state became a legal issue in 1917 with the demise of 400 years of Ottoman Muslim rule in the Levant.

Whereas the Levant Arabs, now freed from the oppressive yoke of the Ottomans, agreed to League of Nations mandates to create Muslim entities in Iraq, Syria, Lebanon, Jordan and Gaza in return for supporting the British and the French, those self-same Arabs did not see their way clear to the same League of Nations establishing the Jewish state of Israel in what was called the British Mandate for Mesopotamia……

Thus, with the disintegration of the despotic Ottoman rule in the region, the Arabs accepted international law in the creation of five more Muslim entities along national ethno-religious lines, but just not a single Jewish one.

Fortunately for Israel, its creation has always been anchored in international law both through treaty and through custom as described above. For example, Israel is well within its international legal rights in building as it sees fit in Judea and Samaria. Yehuda and Shomron were always included territory in the intended Jewish state under both the League of Nations and the legally approved British Mandate, despite the illegal invasion and occupation of the area (euphemistically called the West Bank [of the Jordan]) by Jordan in 1948. In 1967, Judea and Samaria were returned to Jewish sovereignty in a defensive war where Egypt, Syria, Jordan and Iraq combined to try and wipe out (again) the tiny Jewish state.

Forty years previously, the 1937 Peel Commission succumbed to Arab violence and recommended the partition of the remainder of the Mandate, now not including Jordan, into a further division of Jewish and Arab land. The Jews were now to receive a mere 19% of the truncated Mandated lands, with 81% going to the creation of yet another Muslim Arab state. The Jewish Agency accepted even this disappointing breach of promise. The Arabs rejected the compromise.

The records will always show the facts of the matter: Arab intransigence and religious racism are the only reasons there is no “Palestine” today. The Arab-Israeli conflict never had anything to do with land. It was always a war of religion.

Clearly, as it has always done since 1917, international law will always back up the Israeli position on any future negotiated settlement.

International law (and an innate sense of fairness in other nations around the world that is difficult to legislate for) remained the major stumbling block in MENA and the EU preventing the dismemberment of the Jewish state.

But, in the end, all of history shows that people do not like continuous change or violent upheaval. The average person in the street does not approve of murder and mayhem, be they from Dubai or Donetsk. The average person just wants to get on with life and make the most of their time while alive.

For this reason alone, the current orgy of Islamic violence will splutter and die as the internet continues to interleave the commonality of the human condition, race, religion or creed notwithstanding.

And because of this, the State of Israel will continue to survive and prosper.

Because of this, and international law……….

Guardian article suggests Yasser Arafat abandoned terrorism after 1990

UK Media Watch

A nearly 5000 word haliographic profile of Yasser Arafat by Hussein Agha andAhmad Samih Khalidi in the Guardian characteristically obfuscated the decades-long record of planning and carrying out terror attacks against innocent Israelis by the late Palestinian leader and groups under his control.

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Here’s the key passage in the Guardian’s ‘long-read’ (Yasser Arafat: Why he still matters, Nov. 13) concerning the man known to some as the “father of modern terrorism.”

Without armed struggle the Palestinian awakening heralded by Fatah was unlikely to have occurred, yet Arafat and his colleagues knew both the value and limits of force. They were aware of the need to modulate or discard force entirely when necessary. Their political programme developed accordingly, from an emphasis on armed action as the sole means of struggle in 1968 to its eventual disappearance from the PLO’s political programme altogether after 1990.

However, the…

View original post 1,788 more words

Propaganda in the Service of Untruths

The recent rush to recognise “Palestine” by the British Parliament and the Government of Sweden fails to take into account several anomalies and illegalities which can’t but be viewed as biased anti-Jewish animus.

The State of Israel was, of course, just one of many new or recreated nations that, in the wake of World War I, were carved out of the former German, Austro-Hungarian, Czarist and Ottoman empires.

These included, for example, Finland, Lithuania, Latvia, Estonia, Poland, Czechoslovakia, Mandate Syria and Mandate Iraq. All of these states entailed the granting of sovereignty, or promised sovereignty in the case of the Mandates, to previously largely disenfranchised peoples, and all also encompassed other ethnic groups within their borders that chafed at the new national arrangements. Yet, 66 years later, none have stirred anything like the animosity displayed by a mainly liberal-left elite in Europe, in thrall to a rampant radical Islamism, to the fact of a recreated Jewish national home.

Rather, a vocal anti-Jewish lobby in Europe and Britain today has opted instead for a smug and casual hatred of the Zionist project, under a transparently ludicrous veneer of moral superiority.

It is not to be forgotten that the medieval blood libel that Jews kill Christians, particularly children, to use the blood of Christian innocents for Jewish rituals, was first introduced in England with the earliest recorded such claim involving the death of one William of Norwich in 1144.

And it should also be remembered that the blood libel was exported from England to the continent, where over eight centuries it provided a rationale for the murder of thousands of Jews. It’s most gruesome and horrific iteration was the Final Solution proposed by an amoral German Nazi regime, but since the end of World War II it has enjoyed its greatest popularity in the Arab world.

Today, Britain and Europe, with enthusiastic backing from a demographically significant European Muslim migrant population together with financial muscle from Arab Muslim kings, emirs and other petty but monied ME tyrants, join in the markedly racist and illegal call for the creation of a Judenrein “Palestinian” state, while still others call for the Jewish state to be subsumed into a binational (read: Arab majority) “Palestine”.

Indeed, with the renewed anti-semitic upsurge in Ireland, long a PLO/Fatah/Hamas backer from the time of the now-sanitized, re-invented Sinn Fein leader Gerry Adams, together with official political bodies in the UK and Sweden, there is a concerted European push calling for the recognition of “Palestine”, claiming that such recognition would “contribute to securing a two-state solution.”

Nothing could be further from the truth.

Any unilateral moves and declarations by Europe to recognise “Palestine” are based on questionable legal, historic and political premises since no Palestinian state exists, and the issue of the status of the territories is subject to negotiation.

In fact, the European and British claim that recognising “Palestine” would “contribute to securing a two-state solution” is the antithesis of what it purports to be by pre-judging the outcome of the very negotiations, under international law and several UN resolutions, they purport to support.

One does not need a degree in international law or political history to see what is the real aim of the parties concerned.

Furthermore, those aims rely on illegal interpretations of international rulings and a willingness to manipulate the law to produce a Final Solution by other means.

While the ultimate aim of a “negotiated two-state solution” correctly acknowledges the present legal situation in which the issue of final status of the territory is a distinct negotiating issue between Israel and the “Palestinians”, pursuant to the Oslo Accords, it is clear that the issue of the permanent status of the territory remains an open negotiating issue, yet to be agreed-on, and one may assume that upon resumption of the negotiating process, it will be duly addressed by the parties as one of the central agenda items.

Thus, imposing an agreement by outside parties will not further a “negotiate” peace process one iota.

The British House of Commons, the Irish Upper House and the Swedish prime minister would appear to contradict themselves by recognizing that negotiations are still pending, while at the same time prejudging the outcome of the very negotiation they purport to support, by calling for recognition of the state of Palestine.

Clearly no such Palestinian state or sovereign entity exists and thus cannot logically be recognized or acknowledged by the Irish Upper House or others.

Similarly, no international treaty, convention or binding international resolution or determination has ever been adopted or entered into, that determines that the territories in dispute are indeed “Palestinian”.

Further, the Palestinian leadership itself is committed, pursuant to the Oslo Accords, to negotiate the issue of the permanent status of the territory.

Article V of the Declaration of Principles on Interim Self-Government Arrangements signed by Yasser Arafat and Yitzhak Rabin on September 13, 1993 states as follows:
“2. Permanent status negotiations will commence as soon as possible, but not later than the beginning of the third year of the interim period, between the Government of Israel and the Palestinian people representatives.
3. It is understood that these negotiations shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.”

Clearly then, the ultimate status of “Palestine”, whether as a state or any other sovereign entity agreed-upon by the two sides, cannot be arbitrarily imposed by external parties, including the UK, Irish or Swedish parliaments, or the UN.

It can only result from a genuine negotiating process in accordance with accepted norms and requirements of international law regarding the characteristics of statehood.

The 1933 Montevideo Convention on the Rights and Duties of States clearly determines that:
“The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.”

Clearly, the “Palestinians” do not meet the requirements set out in this convention.

Thus, the attempt by House of Commons, the Irish Upper House of Parliament and the Swedish prime minister to recognise a “Palestinian” state clearly pre-empts the outcome of any negotiation the trio above are themselves legal signatories to through a one-sided determination that totally ignores legitimate legal and historic claims to the territory by Israel, including those based on historic and legal commitments to which the United Kingdom itself is bound. They would, therefore, appear to be intervening in a bona fide negotiating process (in international law) by supporting one side only.

That these three groups do not see the bias, animus and disregard for international law when it suits them, in holding such a position, strains credulity.

If the “Palestinians” do not meet internationally codified definitions of statehood, what about the claim by “Palestinians” that Israel occupies the West Bank.

Article 42 of the Hague Regulations, primarily because it actually falls under a category titled, “Military Authority Over the Territory of the Hostile State,” unequivocally explains the type of territory in question. The West Bank was never/is not a state; it is disputed territory taken in a defensive war after an illegal occupation so-named by all but 2 nations in the world and subject to negotiation under that same international law that Ireland, Britain and Sweden would today conveniently ignore.

In international law, as in any type of law, one should look to an interpretation only if the wording of the original is somehow unclear or vague. The wording of Article 42 is blindingly clear.

Pursuing this theme of Eurabian anti-Jewish animus, in 1967, the ICRC quickly branded Israel’s acquisition of the territory as an “occupation,” but made no such finding during the 19 years of illegal Jordanian rule. In fact, one would be hard-pressed to find any ICRC assertions that a territory is “occupied” by a particular nation in the dozens of other territorial disputes that have yet to find a resolution…..

In addition, the legality of Israeli settlement in Judea and Samaria including Jerusalem beyond the 1949 armistice lines is clearly addressed in Article 49 of the Fourth Geneva Convention. Taken from the ICRC’s own website, it states that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Here, the terms “deport” and “transfer” are active, meaning that civilians are not acting on their own behest.

As the ICRC itself acknowledges, Article 49 was drawn up in the wake of the Nazi policy of forcibly transferring parts of its own population into territories it occupied before and during the war. The most infamous of these forcible transfers or deportations was the masses of Jews who were sent to occupied territories to be murdered en masse in Poland and elsewhere.

This provision of the Geneva Convention regarding forced population transfer cannot possibly be viewed as prohibiting the voluntary return of individuals to the cities, towns and villages from which they, or their ancestors, had been ousted.

In 1970, regarding Israel’s case, former State Department legal adviser Stephen Schwebel, who later headed the International Court of Justice in The Hague, wrote: “Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.”

In 1980, Julius Stone, professor of jurisprudence and international Law, wrote: “Because of the ex iniuria principle [unjust acts cannot create law], Jordan never had, nor now has, any legal title in the West Bank, nor does any other state even claim such title. Article 49 thus seems simply not applicable. Even if it were, it may be added that the facts of recent voluntary settlements seem not to be caught by the intent of Article 49, which is rather directed at the forced transfer of the belligerent’s inhabitants to the occupied territory, or the displacement of the local inhabitants for “other than security reasons”(emphasis mine).

And finally, in 1991, Prof. Eugene Rostow, former US undersecretary of state for political affairs, wrote: “The Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there.”

Attempts to impose a state of “Palestine” on Israel by Britain, Ireland and Sweden rest on very shaky legal grounds.

There is a reason there has been no “Palestinian” state these past 66 years.

The Arab leadership refusal to accept the Partition Plan, the repeated attempts to bend international law through waging war, the three “Nos” of Khartoum which precluded legal negotiations, the rejection of three peace initiatives by the “Palestinian” ‘leadershp’ in the past twenty years, all point to an oft-stated goal by the very people Israel is supposed to be negotiating with for its continued safety and survival: an Arab Muslim state from the river to the sea.

The willingness of Britain, Ireland and Sweden to unilaterally press for a “Palestinian” state on the basis that Israel has to end its “occupation” of the West Bank despite the fact that Judea and Samaria did not belong to any state before 1948, flies in the face of any reasonable application of Article 42 of the Hague Regulations to which the trio above, as EU members, are signatories.

And finally, the willingness of Britain, Ireland and Sweden to wilfully ignore the last provision of Article 49 of the Fourth Geneva Convention, which states that an active transfer or deportation of its own citizens has to be undertaken by the state occupying the area, something that has clearly never happened in the history of Israel’s control of the territories in question, merely serves to strengthen the perception that the new/old anti-semitism is prepared to sacrifice Jewish lives again for the sake of new-found “friends” and short term expediencies.

There may yet be a “Palestinian” state in one form or another. But any iteration of that state will have no choice but to take Israel’s security needs into consideration given the neighbourhood it lives in. “Palestine” will come into being through negotiation.

In the meanwhile, the European trio’s rush to recognise “Palestine” will always come up against legal precedent and international law against which it has no recourse now nor in the foreseeable future.

There is a sense of Arab-Muslim privilege which exists today that makes anti-Semitism “okay,” acceptable in academic discourse, and even politically correct. It enables impressionable college students looking for a cause to question a Jew’s very identity, to challenge their ancient history, and therefore allows them no future.

This type of prejudice will be fought against in all the relevant arenas.

It is one thing to be perceived as trying to right a wrong. But no wrong has been committed; a dispersed people have fought for, and earned the right for their very noisy, opinionated, fractious, democratic, cultured, lawful survival.

It needs to be understood that the current Arab-Muslim sense of “entitlement” are ethnically and religiously biased variations of the old European libels that manifested themselves in racist anti-Jewish laws for centuries in Western Europe, and which culminated in the Holocaust.

The politics of internal national voting patterns and demographic demagoguery will never create a ‘nation’ state. International law will see to that.

 

This article is a synthesis of the intellectual property of Yair Shamir, Alan Baker, Jacques Gauthier, Howard Grief and essential principles from Anthony Cullen’s book: “The Concept of Non-International Armed Conflict in International Humanitarian Law”.