Posts Tagged ‘International Law’
(JNi.media) Eugene Kontorovich, a legal scholar whose specialties include international law, on Friday published an op-ed in the NY Times that could stir up a backlash over in Brussels. Titled, “Europe Mislabels Israel,” Kontorovich’s piece rebukes the EU Commission for breaking EU laws in its zeal to attack the Jewish State.
“Diplomats in Brussels and NGOs have made clear that more coercive measures will follow,” Kontorovich writes, suggesting the EU has initiated a “process of building a legal ghetto around Israel, within which a special set of rules applies.”
“The European Union allows Morocco — which has extensive trade ties with Europe, but has occupied Western Sahara since 1975, and populated it heavily with settlers — to export products from its occupied territory labeled ‘Made in Morocco,’” Kontorovich notes, pointing out that, “when challenged, the commission formally declared that labeling such goods as ‘made in’ Morocco is not misleading, and is consistent with European trade agreements.”
But wait, there’s so much more: European courts have already examined and rejected the EU Commission’s notion about extending “consumer protection” to shoppers deciding whether or not to buy Israeli products. “Just last year, the British Supreme Court ruled, in a case involving Ahava beauty products produced in the West Bank, that ‘there was no basis for saying that the average consumer would be misled’ by a ‘Made in Israel’ label.” Just as the EU decided in the case of Moroccon product from occupied Western Sahara, so did the UK court hold that the labeling “was not deceptive as a matter of both British and European Union law,” Kontorovich states.
“The problem is not that the European Union fails to live up to its standards in some cases, like that of Morocco,” he argues, “Rather, in these other cases the union explicitly denies the existence of these standards.”
This, in Kontorovich’s opinion, “is a legal violation in its own right. The European Union’s foundational treaties require regulatory ‘consistency.’ And discrimination against trading partners represents a core violation of the General Agreement on Tariffs and Trade and other treaties of the World Trade Organization.”
How should the US respond to this obvious violation of the EU’s own trade laws, never mind the international trade agreements to which the EU is a signatory?
On Wednesday, Mark C. Toner, US State Department Deputy Spokesperson told reporters: “We understand the objective is to provide EU consumers correct information on the origin of products, as required by EU law. … The EU has made clear that measures are not a boycott, and the EU has also made very clear that they oppose boycotts against Israel. EU guidelines for products that are sold in EU countries are for the EU to determine.”
Not true, writes Kontorovich, who believes “the European Union labeling threatens to establish a precedent that would allow politicization of the system, undermining United States economic interests in broad and unpredictable ways. Thus it is not surprising that earlier this year, the United States passed a law opposing such European Union measures against Israel.”
Indeed, Sen. Benjamin L. Cardin (D-MD) in late June introduced Amendment 20 into President Obama’s Fast Track bill, which reads:
A) IN GENERAL.—With respect to an agreement that is proposed to be entered into with the Transatlantic Trade and Investment Partnership countries and to which section 103(b) will apply, the principal negotiating objectives of the United States regarding commercial partnerships are the following:
(i) To discourage actions by potential trading partners that directly or indirectly prejudice or otherwise discourage commercial activity solely between the United States and Israel.
(ii) To discourage politically motivated actions to boycott, divest from, or sanction Israel and to seek the elimination of politically motivated nontariff barriers on Israeli goods, services, or other commerce imposed on the State of Israel.
(iii) To seek the elimination of state-sponsored unsanctioned foreign boycotts against Israel or compliance with the Arab League Boycott of Israel by prospective trading partners.
(B) DEFINITION.—In this paragraph, the term “actions to boycott, divest from, or sanction Israel” means actions by states, non-member states of the United Nations, international organizations, or affiliated agencies of international organizations that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.
In reading both Kontorovich’s well founded opinion, and the Cardin amendment, it appears that the EU Commission’s ruling is actionable, both in the US and in Europe.JNi.Media
As I noted last week, what is currently taking place in Syria closely resembles what we can ultimately expect in a future “Palestine.”
In principle, and contrary to his beleaguered country’s overriding legal rights and security interests, Israeli Prime Minister Benjamin Netanyahu agreed to a Palestinian state back in June 2009. Yet Mr. Netanyahu, more or less prudently, conditioned this concessionary agreement on prior Palestinian “demilitarization.” More specifically, said the prime minister: “In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel.”
In fact and in law, this published expectation offers no effective obstacle to Palestinian statehood, or to any subsequent Palestinian war against Israel.
Neither Hamas, now subtly closing ranks with its once more powerful Muslim Brotherhood mentors in post-Morsi Egypt, nor Fatah, whose “security forces” were recently trained by American General Keith Dayton in nearby Jordan at very great American taxpayer expense, will ever negotiate for anything less than full sovereignty. Why should they? Supporters of Palestinian statehood can readily discover authoritative legal support for their stance in binding international treaties.
Easily misrepresented or abused, international law can generally be manipulated to serve virtually any preferred geo-political strategy, a jurisprudential twisting sometimes referred to as “lawfare.” For example, pro-Palestinian international lawyers, seeking to identify self-serving sources of legal confirmation, could conveniently cherry-pick pertinent provisions of the (1) Convention on the Rights and Duties of States (the 1933 treaty on statehood, sometimes called the Montevideo Convention), and/or (2) the 1969 Vienna Convention on the Law of Treaties.
Israel, as an existing sovereign state, has a basic or “peremptory” right to survive. From the standpoint of the government’s responsibility to assure citizen protection, a responsibility that goes back in modern political thought to the 16th century French philosopher, Jean Bodin, and also to the seventeenth-century English theorist, Thomas Hobbes, this right is also a fixed obligation. It was, therefore, entirely proper for Netanyahu to have originally opposed a Palestinian state in any form, an opposition, incidentally, once shared by Shimon Peres, himself the proudest Israeli champion of a “two-state solution.”
To wit, in his otherwise incoherent book, Tomorrow is Now (1978), Peres had said the following about Palestinian statehood:
The establishment of such a state means the inflow of combat-ready Palestinian forces into [Judea and Samaria]: This force, together with the local youth, will double itself in a short time. It will not be short of weapons or other military equipment, and in a short space of time, an infrastructure for waging war will be set up in [Judea, Samaria] and the Gaza Strip…. In time of war, the frontiers of the Palestinian state will constitute an excellent staging point for mobile forces to mount attacks on infrastructure installations vital for Israel’s existence.
In writing about “time of war,” this former prime minister had neglected to mention that Israel is already locked in a permanent condition of war. The war, not “tomorrow” (whatever that was intended to signify) is now. Pertinent target “infrastructure installations” could include Dimona, and also a number of other presumably vulnerable Israel nuclear reactor facilities.
Any Israeli arguments for Palestinian demilitarization, however vehement and well intentioned, are certain to fail. International law would not even expect Palestinian compliance with any pre-state agreements concerning the right to use armed force. This is true even if these compacts were to include certain explicit U.S. guarantees. Moreover, per the Vienna Convention on the Law of Treaties, because authentic treaties can only be binding upon states, a non-treaty agreement between the Palestinians and Israel could prove to be of little or no real authority.
What if the government of a new Palestinian state were somehow willing to consider itself bound by the pre-state, non-treaty agreement? Even in these very improbable circumstances, the new Arab regime could have ample pretext to identify relevant grounds for lawful treaty termination.
A new Palestinian government could withdraw from the treaty-like agreement because of what it regarded as a “material breach,” a reputed violation by Israel that allegedly undermined the object or purpose of the agreement. Or it could point toward what Latinized international law calls Rebus sic stantibus. In English, this doctrine is known as a “fundamental change of circumstances.”Louis Rene Beres
British rocker Roger Waters published an open letter calling on fellow musicians to join a boycott of Israel.
“I write to you now, my brothers and sisters in the family of Rock and Roll, to ask you to join with me, and thousands of other artists around the world, to declare a cultural boycott on Israel,” Waters wrote in the letter dated Aug. 18. The letter was previously drafted in July.
The former Pink Floyd front man said he was inspired to release the letter after British violinist Nigel Kennedy at a recent promenade concert at the Albert Hall in London called Israel an apartheid state. The BBC said it would remove his remarks in rebroadcasts of the concert.
Waters, who has been active in the Boycott, Divestment and Sanctions, or BDS, movement for at least seven years, referred to the boycott of apartheid South Africa, saying that first a trickle of artists refused to play there, leading to a “flood.”
He singled out Stevie Wonder’s canceling of a performance for the Friends of the Israel Defense Forces as a recent success story. Wonder quit his participation in the December fundraiser at the last minute under pressure from many corners.
“Please join me and all our brothers and sisters in global civil society in proclaiming our rejection of Apartheid in Israel and occupied Palestine, by pledging not to perform or exhibit in Israel or accept any award or funding from any institution linked to the government of Israel, until such time as Israel complies with international law and universal principles of human rights,” Waters wrote.
Waters recently came under fire for using at in his concerts a huge inflated balloon in the shape of a wild boar with a prominently visible Star of David, as well as a hammer and sickle, crosses and a dollar sign, among other symbols. It is a gimmick he has used for several years.JTA
On Friday, I signed a contract to buy an apartment in Israel. I will be returning to live here again after 25 years. I am very happy about it for various reasons, including the fact that as an Israeli Jew I will be a member of a tiny minority of huge importance to the rest of the world.
We flew to Israel from Los Angeles. At the gate we were met by several buses which took us to a remote terminal where we boarded the plane. The buses were escorted by two airport police cars and an El Al security car, which also followed the plane as it taxied from the terminal to the runway from which it took off.
As far as I know, no other airline gets this special treatment. In a way, it is flattering to know that I am so important that many people want to kill me.
Israel is special at the UN, too, where the Human Rights Commission and the General Assembly devote so much time, effort and (mostly Western) cash to condemning it and pretending that the ‘Palestinians’ are a nation in any sense other than as a negation of the Jewish nation. They pretend that the Palestinian Arabs are important, but everybody knows that it’s all about us, especially the Palestinians themselves (this is one of the reasons that they are so angry and frustrated all the time).
There is also the special treatment we get from Europe. Did you know that one thousand legal scholars and jurists recently delivered a petition to EU foreign policy head Catherine Ashton explaining that contrary to the EU position, Jewish settlements across the Green Line are legal under international law? The EU doesn’t boycott, for example, Turkish ‘settlers’ in northern Cyprus, but we are more important, so a special policy is implemented for us.
Then there is the clever US State Department which prefers ‘illegitimate’ to ‘illegal’. Somehow this is supposed to be a meaningful distinction in this context, but all I can think of is that someone’s parents were unmarried. They include Israel’s capital, which has been the seat of its government since the founding of the state in the illegitimate part. No other nation is so honored!
I am even more proud of the fact that the great United States finds it necessary to spit on us by forcing Israel’s government to release more than a hundred terrorists, all of whom were either convicted of murder (sometimes multiple murders) or of crimes related to murders. Some of these murders were remarkably evil and gruesome, and it’s unimaginable that the US would do something similar in its own homeland. But we are really important and special, so we are required to accept this.
I understand also that the US and EU were ‘furious’ that Israel’s Prime Minister recently announced that perhaps a thousand new homes for Jews would be built someday in places that they consider illegal or illegitimate. The argument is that this construction would create facts on the ground that would prejudice a future peace agreement. Of course, not a peep was heard a few months ago when Israel announced that it would build housing for Arabs in the same area. What else does this prove except that Jews are more important than Arabs?
Speaking of Arabs, Israel’s neighbors Egypt and Syria are presently displaying their truly shocking barbarism by engaging in vicious religious/ethnic civil wars, bombing, gassing, shooting and raping each other with abandon. The status quo in Israel is peaceful, and the economy — both of Israel and the Palestinian Authority — is excellent. So you would think that the focus would be elsewhere rather than Israel.
Nope — our importance is illustrated by the fact that the ‘international community’, led by President Obama, thinks it’s worthwhile to destabilize us also!
Visit Fresno Zionism.Vic Rosenthal
International law today paralyzes civilized nations in their war against terrorism. In fact, Israel’s former Supreme Court Chief Justice Aharon Barak once bragged that “we fight against the terrorists with one arm tied behind our back.” But in my view, phony liberals who warn that we shouldn’t “sink to the level of the enemy” are pretentious, racist, and hypocritical.
Few among us understand that the most ancient foundations of international law are supposed to bolster, not weaken the war against terrorism. The historic parallel to today’s terrorist organizations are the pirates, those gangs of outlaws who instilled fear in the hearts of passengers on land and sea, and were defined as early as the time of the Roman Empire as “enemies of humanity.”
In the Paris Declaration of 1865, the political powers of the time outlawed the pirates. The UN conventions of 1958 and 1982 defined piracy as an international crime. The purpose and the method of today’s terrorists are identical to those of the pirates.
This means that by the very fact that they’re fighting against the law itself, they are not entitled to the protection afforded citizens of countries, nor the protection of international law as soldiers of a sovereign state. Therefore international law permits any person any place to attack and capture or kill pirates. The very membership in a gang of pirates excludes the members from the law and removes all their legal rights.
Jurist Douglas R. Burgess Jr. (The Dread Pirate Bin Laden, Legal Affairs, 2005) has argued that, like piracy, the crime of terrorism should be “defined and proscribed internationally, so that terrorists would be properly understood as enemies of all states.” Consequently it should become the law that anyone who offers terrorists shelter or congregates near them must also be considered a criminal and the enemy of all of humanity.
Whatever step that needs to be taken in pursuit of the war against terrorists will hence be considered legal.
Terrorists must understand that any law that they break ceases to exist for them and will no longer offer them protection. If they intentionally attack a civilian population, they must understand that the attacked party will intentionally attack their civilians. If they kidnap people for ransom, they must understand that their own peaceful civilians will be kidnapped in return.
For this matter, anyone who participates in a demonstration supporting Hezbollah, Hamas, the PLO or any other terror organization must understand that he or she will become a legitimate target for elimination or arrest.
The international establishment must change the rules of engagement regarding terrorists, and start acting against them and their communities using their methods. This is not only the righteous and moral thing to do, it is also a legitimate policy based on the foundations of international law.
Legal experts in the west in general and in Israel in particular must cease protecting the enemies of civilization and the law and devote their skills to the defense of the free society that nourishes them.Ehud Tokatly
Many readers have probably seen the film “Sarah’s Key,” a powerful 2010 movie that reminds its viewers of overwhelming French collaboration with the Nazis. Even today it seems widely believed that France carried on more or less heroically under the German occupation, and that the 1942 roundups of Jews in occupied France must have been carried out by the SS or Gestapo directly. In fact, however, as “Sarah’s Key” instructs in understated yet utterly hideous detail, these roundups were executed, more or less enthusiastically, by the regular French police.
What is even less well known is that France, after the war, only rarely prosecuted Nazi war criminals for crimes committed during the occupation, and that these prosecutions often dishonored the Jewish victims – victims of the insidious French collaboration in deportation and mass murder – as much as of France’s wartime German masters. Nowhere was this more apparent than in the French trial of Klaus Barbie, the notorious “Butcher of Lyons.” The Barbie trial took place between May 11 and July 4 1987.
Though found guilty and sentenced to life in prison (there was no death penalty in France), Barbie succeeded, with undisguised prosecutorial complicity, in blurring the Nuremberg-based charge of “crimes against humanity.” This distortion continues to defile the very memory of justice.
Believing that crimes of war have a statute of limitations, and that crimes against humanity contain no such statute, the French authorities decided to indict Barbie only on the latter charge. This was a big mistake, however, and their elementary factual error led them to treat all of the defendant’s cruelties – deportation-related crimes, and crimes against the Resistance – as qualitatively indistinguishable. According to the authoritative Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity: “…there is no period of limitation for War Crimes and Crimes against Humanity.”
There is an irreducible specificity to crimes against humanity; hence, France’s fusion of such crimes with crimes of war had the effect of diminishing the terribly unique fate of French Jews during the Holocaust. After the war, France received survivors and victims of the Resistance as heroes, but generally tried to ignore those who had been known simply as the “racially deported.” These were the ones in “zebra” clothes, the Jews.
This stark dichotomy had substantial consequences. Indeed, on November 11, 1945, Jewish victims were excluded from the mortal remains symbolically reunited around the flame of the Unknown Soldier. It was not until 1954 that a national day was even declared to memorialize “The Deportation.”
An implicit hierarchy of pertinent criminality arose in post-war France, one that elevated the victims of war crimes, i.e., the Resistance, to substantially higher status than that accorded to victims of crimes against humanity. In this vaguely obscene competition of memories, the Barbie trial reinvigorated the hierarchy. Because the French prosecutor believed, erroneously, that crimes of war were bounded by a statute of limitations while crimes against humanity were not so constrained, the magistrate in charge retained only the crimes inflicted upon the Jews.
As for Nazi actions against the fighters of the Resistance, against France’s “authentic heroes,” these were declared off limits to criminal prosecution. Never mind that in 1943, in German-occupied Poland, a tiny handful of beleaguered Jews had held off the extinction of the Warsaw Ghetto, and for an even longer period of time than it had taken France to surrender its entire armies.
First, the grand jury in Lyons confirmed the magistrate’s opinion. But when certain Resistance organizations objected strenuously, the criminal court of appeals, on December 20, 1985, accepted an interpretation of crimes against humanity that was less restrictive. This interpretation, it was agreed, would include crimes committed against the Resistance.
Thereafter, the French definition of crimes against humanity included “inhuman acts and persecutions that, in the name of a state practicing a politics of ideological hegemony, have been committed in a systematic way not only against people by reason of their belonging to a racial or religious group, but also against the opponents of this political system, whatever the form of their opposition.”
This greatly expanded definition of crimes against humanity was very troubling. The French authorities could have avoided blurring the lines between crimes of war and crimes against humanity by recognizing that both penal categories had been unaffected by those statutory limitations pertinent under international law. Failing such recognition, however, they came to sully the memory of the deported French Jews, and trivialized the indisputably core meanings of “humanity.”Louis Rene Beres