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May 27, 2016 / 19 Iyar, 5776

Posts Tagged ‘International Law’

For Israel, Better the ‘Blessing’ than the ‘Curse’

Wednesday, April 10th, 2013

Jewish thought has never been subtle about life and death, the “blessing” and the “curse.” For Israel, the individual Jew writ large, there exists a fixed and overriding obligation to stay alive.

Although this injunction may hardly come as any sort of surprise, and may hardly seem to merit any claim of significant insight, it does stand in notably stark contrast to the worldview of some of Israel’s principal enemies in the region. More precisely, in order to deal gainfully with a still steadily nuclearizing Iran, and with a determinedly sovereign Palestine, Israel will quickly have to understand certain alien points of view.

The sources of danger for Israel are unambiguous. In a readily decipherable hierarchy of threats, Israel now confronts death and destruction from two increasingly plausible directions: (1) the already-constituted state of Iran, which may ultimately decide to act against Israel in presumed conformance with the end-times expectations of a Shiite apocalypse, and (2) the aspiring state of “Palestine,” which, if shaped by jihadist visions of Sunni Hamas, could decide to make a common war cause with Tehran.

Singly, for Israel, the attack dangers from Iran or Palestine that could derive from any religiously based inversion of life and death, of “blessing” and “curse,” would be considerable and daunting.

Together, perhaps in various unrecognized or even unimagined synergies, the interactive effects of these two particular adversaries could portend very serious and possibly existential concerns for Israel.

These regional enemy inversions of life and death, of “blessing” and “curse,” are rendered more worrisome by (1) the international community’s ritualized unwillingness to remove Iran’s illegal nuclear weapons infrastructure; (2) President Obama’s continuing support for a two-state solution; and, (3) Israeli Prime Minister Benjamin Netanyahu’s grudging but official acceptance of a Palestinian state that has been “demilitarized.”

The Palestinian side (Hamas, Fatah, it makes little real difference) seeks a one-state solution. On all their maps, Israel is drawn as a segment of “Palestine.” As for a demilitarized Palestine, it would never actually happen. This is true, in part, because any post-independence abrogation of earlier pre-state agreements to demilitarize, by a now-sovereign Palestinian state, could be incontestably permissible under authoritative international law.

What shall Israel do in this increasingly confusing regional maelstrom? If Obama’s openly expressed wish for “a world free of nuclear weapons” were ever realized, the survival issue would become moot. Without its nuclear arms, Israel could not endure for very long. Fortunately, this presidential wish is not only foolish but plainly unrealistic. Inevitably, of course, Israel will insist upon retaining the critical deterrence benefits of its essential nuclear forces.

The extent of this particular benefit, however, may vary, inter alia, according to a number of important factors. These include Jerusalem’s observable willingness to take its bomb out of the “basement,” that is, to make certain limited disclosures of the country’s usable and penetration-capable nuclear forces. Also relevant is the extent to which Israel might choose to reveal selected elements of Tel-Aviv’s nuclear targeting doctrine.

From the standpoint of successful deterrence, it will make a major difference if Israel’s nuclear forces are recognizably counter value (targeted on enemy cities), or counterforce (targeted on enemy weapons, and related infrastructures). In turn, Israel’s decisions on targeting policy may be affected, more or less, by ongoing regime transformations still taking place across the Middle East and North Africa.

“For what can be done against force, without force?” inquired the Roman statesman Cicero. The use of force in world politics is not inherently evil. To the contrary, in preventing nuclear and terrorist aggressions, force, though assuredly not a panacea, is almost always indispensable.

All states have a fundamental (“peremptory,” in the language of formal jurisprudence) right of self-defense. This right is explicit in both codified and customary international law. It can be found, in part, at Article 51 of the UN Charter; also, in multiple clarifications of anticipatory self-defense, a doctrine I have discussed often on these pages.

Israel has legal right to forcibly confront the expected and possibly mutually reinforcing harms of Iranian nuclear missile strikes, and Palestinian terror.

Again, Cicero understood. Failure to use force against a murderous evil imprints an indelible stain upon all that is good. A similar point can be found in the Talmud, which asserts that by being merciful to the cruel, one may become cruel to the merciful. Any such “mercy” must be firmly rejected by both individual Jews, and by the Jewish state.

Louis Rene Beres

Iran’s Unhidden Plan For Genocide: Israel’s Decision (Third of Three Parts)

Thursday, April 4th, 2013

Published in the print edition under the title, “Iran’s Unhidden Plan For Genocide: A Legal Assessment (Third of Three Parts).” Click here for part one and here for part two.

In the post-Holocaust and post-Nuremberg international system, the right of individual states to defend themselves against genocide is overriding, and thoroughly beyond legal question.

This right does not stem directly from the language of the Genocide Convention, which does not explicitly link genocide to aggressive war, but it can still be extrapolated from (1) the precise legal language of anticipatory self-defense, including an 1837 case known as The Caroline; and (2) all subsequent authoritative reaffirmations of law identifiable at Article 38 of the Statute of the International Court of Justice. The right of anticipatory self-defense to prevent genocide can also be deduced from certain basic principles of self-protection codified at the Vienna Convention on the Law of Treaties, and, more generally, from the confluence of persistently anarchic international relations with now-obligatory norms of basic human rights.

Should Israeli decision-makers finally determine they do have a compelling right to act first against Iran to prevent genocidal aggression, any resultant Israeli resorts to preemptive force would still have to be consistent with the laws of war of international law, or the law of armed conflict. In detail, this would mean, for Israel, respecting the always indisputable primary belligerent requirements of “distinction” (avoiding injury to noncombatants), “proportionality,” and “military necessity.”

What about the future? What happens next concerning a steadily nuclearizing Iran? What about anticipatory self-defense in this particular case?

International custom is one of several proper sources of international law listed at Article 38 of the Statute of the International Court of Justice. Where it is understood as anticipatory self-defense, the customary right to preempt has its modern origins in an incident known in appropriate jurisprudence as The Caroline. During the unsuccessful rebellion of 1837 in Upper Canada against British rule, The Caroline had established that even a serious threat of armed attack may justify militarily defensive action.

In an exchange of diplomatic notes between the governments of the United States and Great Britain, then-U.S. Secretary of State Daniel Webster outlined a framework for self‑defense which did not require a prior attack. Here, military response to a threat was judged permissible, but only so long as the danger posed was “instant, overwhelming, leaving no choice of means and no moment of deliberation.”

Strategic circumstances and the consequences of strategic surprise have changed a great deal since The Caroline, thereby greatly (and sensibly) expanding legal grounds for anticipatory self-defense. Today, in an age of chemical/biological/nuclear weaponry, the time available to any vulnerable state under attack could be only a matter of minutes. From the special standpoint of Israel, soon to face an Iran armed with nuclear weapons, an appropriately hard-target resort to anticipatory self-defense could be both lawful and law-enforcing.

Before the start of the Atomic Age, any justification of anticipatory self-defense would have to have been limited to expected threats of aggression from other states, not genocide. Today, however, the conceivable fusion of nuclear weapons capacity with aggression could transform war into genocide. Although there are no true precedents of resorting to preemption as a law-enforcing means of preventing genocide or “conspiracy to commit genocide” by one state against another, the pertinent right to such pre-attack self-defense is rooted, inter alia, in The Caroline.

After all, if it was already legal, long before nuclear weapons, to strike preemptively in order to prevent entirely conventional aggressions, how much more permissible must it be to strike preemptively to defend against a potentially genocidal nuclear war?

Nonetheless, some legal scholars argue that the right of anticipatory self‑defense expressed by The Caroline has been overridden by the more limiting language of the United Nations Charter. In this view, Article 51 of the Charter offers a far more restrictive statement on self‑defense, one that relies on the strict qualification of a prior armed attack. This very narrowly technical interpretation ignores the larger antecedent point, that international law is never a suicide pact.

Sensibly, law can never compel a state to wait until it has absorbed a devastating or even genocidal first strike before acting to protect itself. Both the Security Council and the General Assembly correctly refused to condemn Israel for its 1967 preemptive attacks. Incorrectly, however, whether or not it had then accepted the existence of a formal state of war between Israel and Iraq – a condition of belligerency openly insisted on by Baghdad – the UN did condemn Israel for Operation Opera in 1981. Of course, this legally incorrect condemnation was the direct result of regionally recurrent circumstances, conditions wherein an exterminatory power politics or geopolitics trumps law.

Louis Rene Beres

Iran’s Unhidden Plan for Genocide: A Legal Right to Prevent Genocide? (Second of Three Parts)

Monday, March 25th, 2013

Originally published under the title “Iran’s Unhidden Plan for Genocide: A Legal Assessment (Second of Three Parts).” 

On June 7, 1981, Israel launched Operation Opera against Saddam Hussein’s nuclear reactor outside Baghdad. Officially, this preemptive attack on Osiraq – which ultimately saved a great many American and other lives ten years later, during the first Gulf War, was an expression of anticipatory self-defense. Interestingly, however, because Iraq had always considered itself to be formally at war with Israel, the Jewish state could just as easily and correctly have regarded this essential act of preemptive self-defense as something else.

Back in 1981, taking an alternative legal position, Prime Minister Menachem Begin could have justified Operation Opera as a permissible tactical action in the wider context of a longstanding and ongoing belligerency. Had he done so, Israel could then have pointed out that both of the pertinent legal obligations applying here had also been fully satisfied. These are the always twin obligations of “just cause” (facing an existential threat), and “just means” (minimizing collateral harms). To be acceptable, any act of anticipatory self-defense would have to fulfill classic law of war expectations that the means used to injure an enemy are not unlimited.

Jurisprudentially, it is significant that Begin chose, explicitly, to link Operation Opera to preventing, in his words, “another Holocaust.” Historically, of course, the rationale of including anticipatory self-defense under customary international law had been the prevention of aggression, not genocide. Logically, it was not until 1951, when the Genocide Convention first entered into force, that the legal question of defensive first strikes to forestall such crimes against humanity could even have been raised.

After the Holocaust, and subsequent Nuremberg Trials, it became plain that the prerogatives of sovereignty in world law could no longer remain absolute, and that the once-legitimate cover of “domestic jurisdiction” would now have to exclude certain crimes against human rights. With this very fundamental transformation, individual human life was to be held sacred everywhere, and individual states were no longer automatically precluded from entering into the “territorial sphere of validity” of other states. On the contrary, from then on the traditional norm of “non-intervention” would need to yield to indisputably compelling judgments of “international concern.”

It was now the reasonable expectation that all states, either individually or collectively, would acknowledge a distinct and overriding legal obligation to prevent Nuremberg-category crimes (after 1951, crimes of genocide) in other states, even to the extent of undertaking active intervention within those sovereign states.

This critical obligation was strongly reinforced at Articles 55 and 56 of the United Nations Charter, a core document that has the formal status of a multilateral treaty. Today we speak of all such permissible interventions as “humanitarian.” Sometimes diplomats and scholars prefer the closely related term “The Responsibility to Protect.”

Whichever term is preferred, the international legal order now accepts and expects that all states will feel co-responsible for each other, including the prevention of genocide and certain corollary crimes against humanity. Examples of this collaborative expectation, a concept that makes incontestably good sense in our still-anarchic system of world law – a system that first came into being in 1648, when the Treaty of Westphalia ended the Thirty Years’ War and that has yet to be replaced with genuinely effective supra-national legal institutions – can be found in at least four prominent post-Holocaust cases:

(1) the Tanzania-led invasion of Uganda in 1979, which put an end to Idi Amin’s almost decade-long genocide against the Acholi and Langi tribes;

(2) the Vietnamese invasion of Cambodia in 1979, which put an end to the Khmer Rouge mass murder of almost 2,000,000 people, a genocide that had targeted several diverse populations along many different ethnic, cultural, and tribal lines;

(3) the 1971 genocide against Bengali people, the “Bangladesh Genocide,” which covered an area then originally known as “East Pakistan,” and that was finally stopped by massive Indian military intervention; and

(4) the 1994 invasion of Rwanda by Tutsi rebels who had been “hosted” in neighboring Burundi, and also in the Democratic Republic of the Congo. This genocide, perpetrated largely by Hutu extremists (the interahamwe) produced almost 1,000,000 deaths in ninety-days, making it the “fastest” genocidal mass murder in human history. It is also infamously noteworthy because the European powers, the United States, and the United Nations had all abandoned every shred of responsibility for humanitarian intervention or the responsibility to protect.

Louis Rene Beres

The New Strategic Environment

Tuesday, March 19th, 2013

The way it looks now, it seems that the regime of al-Assad will not last more than a number of days or weeks. A coalition of Sunni jihad organizations will succeed in toppling the government of an Arab state despite the state having used every weapon in its arsenal – including scud missiles – in order to survive.

During the past two years all of the red lines have been crossed in Syria , and both sides are sunk deep in this dirty, ugly struggle, which is fought with no moral or legal constraints.  Tens of thousands of citizens, women, children and elderly, have been brutally murdered , hundreds of thousands of houses and apartments have been rendered uninhabitable; infrastructures of the country are collapsing; the economy is paralyzed and the organizational framework of the state is falling apart.

The success of the Sunni coalition (Turkey, Qatar, Saudi Arabia, Jordan) in eliminating the heretical Alawite regime, which is supported by a Shi’ite coalition (Iran, Iraq and Hizb’Allah) might trigger a wave of terror in Arab countries, especially in Iraq and Turkey, because oppressed groups in these countries – such as Sunnis in Iraq and the Kurds in Turkey – will be encouraged by the success of the jihad organizations that are fighting in Syria and by the methods that they used in their battle against the regime.

This filthy war taking place in Syria is not a battle of good versus evil, because the regime and the rebels have both used inhumane, illegal and immoral practices. Both sides have committed crimes against humanity by eliminating groups of citizens indiscriminately and both sides have resorted to repressive measures and degrading treatment of helpless citizens.

As soon as the violence began, for example, the rebels understood that every time they show up in an open area, the forces of the regime could easily destroy them with merciless determination, so they transferred their activity to the crowded urban and settled areas. As a result, they turned citizens into human shields, without their having any say in the matter, dragging the cities and the settled neighborhoods into a rebellion that they were not at all interested in.

THE MOST SIGNIFICANT feature of the rebellion in Syria is that it has become a magnet for jihadists from all over the Arab and Muslim world who poured into Syria to take part in the jihad against the heretical ‘Alawites and their tyrannical regime. As of today there are hundreds of combat groups in Syria, and a few tens of them speak non-Syrian Arabic dialects such as Iraqi, Saudi and Moroccan. The linguistic diversity is even more complex because some of the jihadists speak non-Arabic Muslim languages – Turkish, Bosnian, Chechen, Pashtu (Afghanistan), Urdu (Pakistan) and languages from the Caucasus. The problem with having to deal with a multitude of dialects and languages is that the intelligence organizations get a significant amount of information by listening to various means of communication, but their work may have no value, because it is especially the most dangerous groups that speak dialects and languages not understood by the listeners of other countries that exist in the area.

Conventional forces too will have a great problem in dealing with jihadi communication methods. The jihadist organizations – contrary to a regular army- use the internet as a means of passing messages, reports and commands, and it is not easy to detect the communications channels they are using in the civilian network. There are organizations that pass coded messages via the internet, and it is difficult to identify, locate and decode them. Also the way the jihadist organizations use other civilian networks such as cellular telephones, makes it difficult to locate their communications and to keep track of their operatives.

The intelligence problem becomes even more complicated regarding visual intelligence, where the information is collected from observation points on the ground and in the air. Military intelligence gatherers undergo training on the various types of tanks, cannon, and the rest tools of destruction that a regular army has. But how are they supposed to identify jihadists? According to the type of jeans or T-shirt he’s wearing? According to the type of hiarcut or beard? The problem of identification becomes more difficult regarding vehicles in the service of jihadists, which are ordinary vehicles,indistinguishable from many others. How is a drone or someone who sees the material photographed by the drone supposed to identify the vehicle of a jihadist?

Dr. Mordechai Kedar

The Frum Professor’s Legal Case for Israel: The Video

Tuesday, February 19th, 2013

Do you suffer from International Law Insecurity? Do you stutter incoherently when someone tells you that “Israeli settlements in the ‘West Bank’ are illegal under international law?” What about when they say “the International Court of Justice has judged Israel’s security barrier to be illegal?” Or when they call the area east of the Green Line “occupied Palestinian territory?”

Guess what? It’s all a bunch of crap, to use a technical expression.

As reported yesterday on the JewishPress.com, here, in one 46-minute lecture, is a clear explanation of what international law is and is not, and how it applies to some of the controversies around the Jewish state.

Eugene Kontorovich is Professor of Law at Northwestern University and an expert in international law.

Visit Fresno Zionism.

Vic Rosenthal

Pillar of Defense: Separating Appearance from Reality

Wednesday, January 23rd, 2013

This article appeared in the print version as After Pillar of Defense: Separating Appearance From Reality (Part II)

Editor’s note: This is part two of an article published last week. Click here for part one.

Terrorism is always more than bad behavior. Terrorism is a distinct and codified crime under international law. When terrorists represent populations that enthusiastically support such attacks, and where these terrorists can also find an easy refuge among hospitable populations, responsibility for ensuing counterterrorist harm must lie with the criminals.

In law, truth can sometimes be counterintuitive. Understood in terms of an inevitably still ongoing cycle of Palestinian terrorism and Israeli self-defense, the Palestinian side must bear full legal responsibility for Arab civilian casualties in Gaza. After all, without their premeditated attacks on Israeli civilian populations, there would have been no Palestinian casualties.

International law, as I have repeated so many times in this space, is not a suicide pact. Unambiguously, it offers an authoritative body of rules and procedures that permits states to express their inherent right of self-defense. When terrorist organizations openly celebrate the “martyrdom” of Palestinian children, and when Palestinian leaders unashamedly seek religious redemption through the mass murder of Jewish children, the terrorists understandably have no legal right to demand sanctuary.

Under international law, these criminals are hostes humani generis, “common enemies of humankind.” Significantly, in law such murderers must be punished severely wherever they are found. Concerning their arrest and prosecution, jurisdiction is now, after Nuremberg, universal.

Palestinian terrorism, even during its very occasional slow periods, has become all too familiar. In addition to rockets, the killers – using bombs filled with nails, razor blades, and screws dipped in rat poison – seek to maim and burn Israeli civilians. Generally this objective is sought with cheers and abundant blessings from the leading Islamic clergy.

Why do they feel this way? In the precise words of a major Hamas leadership figure, “The Jews [not “the Israelis”] lack sanctity.”

There is also considerable irony here. Those arrogant Palestinian commanders who directly control the suicide-bombers’ mayhem always cower fearfully in their towns and cities, taking meticulous care to find personal safety amid densely packed Arab populations. In addition to assorted Israel Air Force (IAF) units, other special IDF counterterrorism and commando elements meticulously identify and target only terrorist leaders in order to minimize any collateral harm. Such harm can’t inevitably be avoided by the self-defending party, even by the IDF, which actually follows its obligatory purity of arms code more stringently than any other army on earth.

Deception can be legally acceptable in armed conflict, but the Hague Regulations disallow placement of military assets or personnel in heavily populated civilian areas. Further prohibition of perfidy is found at Protocol I of 1977, additional to theGeneva Conventions of 1949. It is widely recognized that these rules are also binding on the basis of customary international law.

Perfidy represents an especially serious violation of the Law of War, one identified as a “grave breach” at Article 147 of Geneva Convention IV. The critical legal effect of perfidy committed by Palestinian terrorist leaders in Gaza was to immunize Israel from any responsibility for unintended counterterrorist harms done to Arab civilians. Even if Hamas and Fatah and Islamic Jihad and their sister terror groups did not deliberately engage in perfidy, any Palestinian-created link between civilians and terrorist activities would have granted Israel full legal justification for appropriately defensive military action. Operation Pillar of Defense was an obvious case in point.

Again, international law is not a suicide pact. All combatants, including Palestinian insurgents, are bound by the Law of War. This requirement is found at Article 3, common to the four Geneva Conventions of August 12, 1949, and at the two protocols to these Conventions.

Protocol I applies humanitarian international law to all conflicts fought for “self-determination,” the stated objective of all Palestinian fighters. A product of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1977), this protocol brings all irregular forces within the full scope of international law.

In this connection, the terms “fighter” and “irregular” are conspicuously generous in describing Palestinian terrorists, fanatical criminals who target only civilians and whose characteristic mode of “battle” is not military engagement, but religious sacrifice.

In the final analysis, virtually all Palestinian terrorism is rooted in a culture-wide search for immunity from personal death. It follows that there can be no greater cowardice than what is expressed by this form of terror.

Louis Rene Beres

Nostrums And Clichés

Wednesday, July 18th, 2012

The New York Times greeted the release of the Levy Report with a not unexpected shrill editorial that captured the sentiment of the Arab world, the consensus of international opinion, and the view of not a few Jewish organizations here in the U.S.

They should all calm down and actually read the report, a closely reasoned exposition on international law and the meaning of “occupation” and why Israel’s presence in East Jerusalem and the West Bank does not constitute the same. While many will no doubt disagree with its conclusions, they will no longer be able to drone on, mantra-like, in support of the Palestinians – at least not with a straight face.

We do not delude ourselves into hoping the political situation will change, but now there is something supporting an alternative point of view for those interested. A new framework for discussion, we believe, is upon us.

In an editorial last Tuesday entitled, “Wrong Time for New Settlements,” The Times said in part:

Palestinian hopes for an independent state are growing dimmer all the time. Israel is pushing ahead with new settlements in the West Bank and asserting control over new sections of East Jerusalem, which the Palestinians claim as their capital. Meanwhile, peace talks – the best guarantee of a durable solution – are going nowhere.Now comes another, potentially disastrous, blow. An Israeli government- appointed commission on Monday issued a report asserting that Israel’s 45-year presence in the West Bank is not occupation. The commission endorsed the state’s legal right to settle there and recommended that the state approve scores of new Israeli settlements…. Although non-binding, the commission’s recommendations are bad law, bad policy and bad politics. Most of the world views the West Bank, which was taken by Israel from Jordan in the 1967 war, as occupied territory and all Israeli construction there as a violation of international law.

As the details of the Levy Commission analysis become better known it will not suffice for the Times and others to simply fall back on traditional nostrums and clichés. It’s certainly telling that the Times attempted no discussion of the merits of the report.

Separate and apart from its merits in terms of legal analysis, the report can serve as an incentive for the Palestinians to get back to the negotiating table. If the Palestinians sense a hardening of Israeli resolve in terms of refusing to accede to the Palestinian narrative, perhaps they will return to the negotiating table without preconditions.

The Times doesn’t mention Palestinian recalcitrance as being any sort of impediment to resumed talks – only Israel’s settlement policy. Really helpful would be a Times editorial that for once eschewed condemnation of Israel and instead implored the Palestinians to at long last embrace reality and make a deal.

Editorial Board

Printed from: http://www.jewishpress.com/indepth/editorial/nostrums-and-cliches/2012/07/18/

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