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September 18, 2014 / 23 Elul, 5774
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Posts Tagged ‘law’

Palestinian Statehood, Terror, And The U.S. Presidential Election (First of Two Parts)

Wednesday, October 17th, 2012

President Obama and Governor Romney strongly disagree on many issues but the daylight between them is especially great in the imminent matter of Palestinian statehood. For his part, the president still believes in a two-state solution, and in a corollary willingness of the Palestinian side to negotiate fairly. His opponent is unambiguous in a fully contrary insistence that the Palestinians are not interested in peace.

One thing is certain. Jurisprudentially and strategically, Romney’s position here is substantially more compelling. After all, both the Palestinian Authority and Hamas are clear in their continuing commitment to use force for “self-determination” and “national liberation.” For these two contending factions, this belligerent commitment would make sense even after a formal granting of Palestinian sovereignty. This is because, in their view, and on their maps, all of Israel proper would still remain “Occupied Palestine.”

What would be the legal status of any such post-independence expressions of Palestinian violence against Israeli citizens (noncombatants)? In broad terms, these expressions would be determinably criminal. More narrowly, they would constitute terrorism.

Under binding international law, a fully constituted or at least a UN-birthed state of Palestine would be unable to justify any linguistic transformations of an impermissible insurgency into permissible “self-defense.”

Terrorism, as I have pointed out in the past, is a codified and customary crime under international law. Its explicit criminalization can be discovered in all of the authoritative sources of international law listed at Article 38 of the Statute of the International Court of Justice. Now, though unacknowledged by President Obama, whenever Palestinian “militants” claim the right to use “any means necessary” against an alleged Israeli “occupation,” their arguments are legally unsupportable and crudely contrived.

Both Obama and Romney should always be prepared to look behind the news. Even if Palestinian claims for “national self-determination” should soon be supported at the UN, most likely, it seems, as a non-member state, there will still remain ascertainable and firm limits on the allowable targets of insurgent violence, and on the permissible levels of such violence. This is the case even though any post-independence Palestinian resorts to force would now be more or less state-supported.

Both candidates should understand: Palestine’s most probable future is written in its well-documented and bloody past. The strictly limited rights of insurgency under international law can never include the use of nail-filled bombs directed at children and other innocent noncombatants. (Sometimes these projectiles have first been dipped painstakingly in rat poison.)

Under even their most generous definition in jurisprudence, these particular and restricted rights to the use of force can never supplant the settled or peremptory rules of humanitarian international law. More popularly, these rules are known as the law of war, or the law of armed conflict.

At its heart, of course, international law intends to “make sense.” Nowhere is it written that certain political goals are so flagrantly worthy of implementation that their satisfaction can ever allow the deliberate incineration of infants in their cribs, or of children in school or at play. One doesn’t need to be a professor of international law to understand such an elementary expectation of human decency. Further, under international law, it won’t matter at all if such conspicuously murderous strategies are launched by a now recognized sovereign state.

From the beginning, supporters of Palestinian terror against Israelis have argued, disingenuously, that the desired end of their “sacred” insurgency (Palestinian independence) automatically justifies their adopted means (willful and indiscriminate attacks on Jewish civilians). Leaving aside the everyday and ordinary ethical standards by which any such argument must be manifestly unacceptable, the ends can never justify the means under conventional or customary international law. Never.

For more than two thousand years, the binding principles of world law have stipulated that intentional forms of violence that are directed against the innocent are always repugnant. Hence, prima facie, these forms are always prohibited.

One person’s terrorist can never be another person’s freedom fighter. Though it’s fashionable to insist at university or embassy cocktail parties that one person’s terrorist can indeed be another person’s freedom fighter, this popular expression is utterly facile, a thoroughly empty witticism devoid of any meaningful legal content.

While it is true that certain insurgencies can be judged per se lawful (after all, the idea of “just cause” can be found, inter alia, in the Declaration of Independence of the United States), these residually permissible resorts to force must nonetheless conform to the longstanding laws of war.

…To Be Continued Next Week

Expressing Ourselves Inside And Outside The Walls

Wednesday, October 17th, 2012

Editor’s Note: In our July 13 front-page essay, “Birth of a Leather-Kippah Jew,” Mordecai Bienstock described his personal journey on the path to becoming what he called a “Leather Kippah Jew.” Here he elaborates on that vision.

Two centuries ago Napoleon’s armies swept through Europe, tearing down ghetto walls along their way. A river of Jewish souls flowed out, washed out to sea in the roiling waters of enlightenment and assimilation.

Today we have rebuilt those walls. They stand strong. From the simple brick of Brooklyn and Lakewood to the gold and platinum of Long Island and Northern New Jersey, the new ghetto walls provide not only shelter from the excesses of modern society but also space for us to develop, create, and express our own values.

Life within the walls is a model of modesty, virtue and justice.

But all of us travel, in one way or another, outside of those walls. We vote, we pay taxes, we earn our daily bread. We read the newspapers, travel the buses and drive the highways. We search the Internet.

Some of us find ourselves, entirely by accident, walking alone and late at night outside of the walls’ protection. Others willingly seek the world outside, feeling trapped by the walls around them.

On the other hand, many millions of Jews live entirely outside the walls, with no means of understanding or accessing the wonders within. In a generation, these millions will be entirely lost to the Jewish people.

I do not propose that we change the world within the walls. The opposite is true. I propose that we channel the same zeal and dedication that has invigorated our lives within these walls to shine brightly to the world without, so that it infuses our broader relationships with society.

I do not propose that we reduce the role of Torah in the world. I propose that we expand it, using established Torah models to express our values as citizens and members of society.

Orthodox Judaism it today triply blessed.

First, we have created extraordinary institutions of Torah study and observance. The depth of Torah learning and quality of Torah observance in the frum community is unprecedented on this continent.

Second, we live in a unique period of history in which Orthodox Jews are unusually welcome to participate fully in American society. Orthodox Jews have served as leaders across every avenue of society – including as a vice-presidential candidate and a White House chief of staff.

They hold these positions not because of their religious identity and not despite it, but rather because of the kind of people their religious identity has enabled them to be.

Thus, the second pillar is that, as Rabbi Samson Raphael Hirsch taught, living a life of Torah and mitzvahs can create Jews who are the greatest of citizens; Jews who participate in society at the highest levels.

Third, we live in a period in which Orthodox Jews are free to pursue professions and trades and interests that are particular to their own identities. We can be truly ourselves in all of our pursuits, expressing the wonderful individualistic neshamahs Hashem has granted us through the application of our special natures in the physical world, what the Ba’al Shem Tov and his disciples discovered as the basis for avodah b’gashmiyut.

In other words, we live in a world where one can combine the learning and diligence of the Lithuanian yeshiva with the social consciousness of the German-Jewish tradition and the spiritual intensity of chassidus. We can be Litvish chassidish Yekkes.

We live, as the Chinese curse has it, in interesting times. A technological revolution is increasingly bringing the world outside to us, even as challenging economic conditions are forcing us back out into the world.

We live in danger of discovering one day that our walls are not really built of bricks or stone or precious metals at all; they are only virtual walls. No army will be needed to breach them – only a few clicks on a smart phone or some suddenly insolvent fathers-in-law.

As the walls are threatened, it may perhaps be useful to have at our disposal a more fully developed model for expressing our Torah values as part of society, not only apart from it. That, in my view, is the role of the Leather-Kippah Jew.

The Way It Really Was: George W. Bush Pushed For A Palestinian State

Thursday, October 11th, 2012

Today, conventional wisdom maintains that the George W. Bush administration had been a good friend to Israel and, unlike the Obama administration, had fought mightily against the creation of a Palestinian state. With this “wisdom” in mind, I ask readers to consider the following column of mine that originally appeared in The Jewish Press in August 2007.

The more things change, the more they remain the same. In Washington, the president and his secretary of state [George W. Bush and Condoleezza Rice] have recently reinvigorated their incomprehensible “Road Map/Quartet” call for a Palestinian state. Such a polarized political entity would be manifestly unstable and viscerally anti-American, but our leaders persist in fashioning a Middle East foreign policy that indefatigably patronizes itself.

Don’t these leaders realize that this 23rd Arab state would unhesitatingly allow its territory to become a base of operations for al Qaeda and kindred jihadist groups? Aren’t they at all apprehensive that unconventional weapons fabricated in “Palestine” would eventually find their way not only to Tel Aviv, but also to Washington, Los Angeles and New York? Even a cursory glance at the official maps of the Palestinian National Authority would reveal the futility of any proposed “two state solution.”

On these maps, a cartographic rendering of the 1974 “Phased Plan” codified in Cairo, Israel simply does not exist. Is anyone looking?

President Bush and Secretary Rice would be well advised to consider the valuable insights of Zalman Shoval. Already back on February 14, 2006, in an opinion column for The Jerusalem Post (“Put Palestinian Statehood on Hold”), Israel’s former two-term ambassador to the United States argued unassailably that a Palestinian state remains contrary to “Israel’s supreme interest.” Because of the then-recent Hamas victory in the Palestinian elections, he pointed out, Israel had a timely and unique opportunity to make this clear and compelling. After all, said Ambassador Shoval, “Hamas’s very raison d’etre is the destruction of Israel, replacing it with an Islamic state reaching from the Mediterranean to the Jordan River, and beyond.”

Then, as now, the Palestinian authorities, busily engaged in internecine slaughter whenever they were not firing rockets at Israeli civilians, could make no authentic claims for peace. We still should not reasonably expect Israel to be complicit in its own Palestinian-planned annihilation.

Both legally and factually, the distinguished Israeli diplomat was (and still is) on the mark. In the best of all possible worlds, Shoval’s wisdom would already have been heeded. In the best of all possible worlds, the so-called Quartet – not just the United States – would already have taken seriously its own unambiguous and codified conditions for Palestinian statehood.

But national leaders, lest we forget, are generally politicians, not logicians, and even the reign of Hamas seems to have had little effect on the global momentum for a two-state solution. Lest anyone think that joint U.S.-Israeli support for Fatah against Hamas now represents a more prudent path to a stable and productive Palestinian state, a path that circumvents Hamas terrorism, incontestable facts would suggest otherwise. In essence, Fatah and Hamas are two sides of the same coin. Before anything more positive could emerge from a Fatah-led “Palestine,” a gravedigger would have to wield the forceps.

There are substantial ironies to the present situation. Assorted governments of Israel are hardly blameless. For the most part, from the Oslo Agreements to the present policy expressions of a Middle East “peace process,” the plausibility and legitimacy of a Palestinian state have often been encouraged, more or less, by Jerusalem. From Rabin to Olmert, self-delusion about Palestinian “moderation” has played a large part in sustaining Washington’s foolish mantra about statehood.

For Bush, Rice and Olmert to change course now, however imperative, will be problematic. First, Israel’s narrowly technical legal objections will have absolutely no effect on Palestinian intentions, or even on worldwide sympathies for a Palestinian state. Second, and somewhat less obviously, Israel’s formal legal objections will be countered easily at the technical jurisprudential level.

The first problem with Israel’s perfectly valid denial of the Palestinian “right” to declare a state needs little discussion. As was the case before Hamas’s electoral victory and before the slide of Fatah and Hamas into open warfare, the entire Palestinian side is firmly and irreversibly committed to sovereignty and independence. In this commitment it will not be influenced by anything Israel might offer in the way of objections.

The Supreme Court and Sholom Rubashkin

Thursday, October 4th, 2012

We know we speak for many in our community when we express sadness at the news that the United States Supreme Court on Monday decided not to review the 27-year sentence meted out to former Agriprocessors chief executive Sholom Rubashkin.

At bottom we believe that nothing in the public record concerning Mr. Rubashkin’s crimes can justify a man in his early fifties being sent away to federal prison for more than a quarter of a century.

While we certainly believe that those convicted of crimes should pay a penalty, we believe that from the run up to his trial through this apparently final phase of the judicial process, his case fairly reeked of a sense of injustice: his prosecution was accompanied by an extraordinary level of negative publicity rarely seen in modern judicial proceedings; the list of charges lodged against him, though facially legitimate, was uncommonly inflated in number and degree and, in criminal law parlance, “piled on”; the presiding judge, by any measure, at least raised serious questions of impropriety with her highly unusual ongoing contact with the prosecution team; and the sentence of 27 years stood out among those imposed on others convicted of similar crimes.

In permitting such obvious issues to go unaddressed, the appellate courts failed not only Mr. Rubashkin but also others who may at one time or another find themselves enmeshed in the vagaries of our federal judicial system that do not always account for a possibly compromised trial judge and where formal review procedures are sometimes allowed to trump basic humanity.

We share the comments his lawyer, Nathan Lewin, one of the foremost criminal defense and appellate attorneys of our time, gave to The Jewish Press:

The Supreme Court’s refusal to consider the Rubashkin case – which is the greatest injustice that I have seen in more than 50 years of law practice – was very distressing. But the legal battle is not over. There are, in American legal history, a few famous cases “that will not die.” The Rubashkin case is in that league. The Torah teaches that tzedek does not come easily; it must be pursued. Even at this juncture, there are legal avenues for overturning a fundamentally unfair trial.

Germany Initiating Pro-Circumcision Legislation

Thursday, September 27th, 2012

A spokesman for German Justice Minister Sabine Leutheusser-Schnarrenberger said his office is working on an outline for new legislation that will permit circumcision of minor males after a controversial court decision in the summer that criminalized the rite.

The new law will allow circumcision with some provisos, including that it be carried out with the “most effective pain relief possible,” the spokesman said, according to AFP. Parents must also receive a full explanation about the procedure, which may not be carried out in cases where the child is ill or suffers from hemophilia.

The outline also states that, as a rule, circumcisions are to be conducted by doctors but can also be done on babies younger than six months by someone chosen for their religious credentials. That person must be as skilled at circumcision as a doctor, according to the new bill.

“Circumcision remains permitted in Germany,” the spokesman said, referring to the outlines for the new law.

Chairman of the Committee for Immigration, Absorption and Diaspora, MK Danny Danon, sent a message to German ambassador to Israel Andreas Michaelis, saying: “Germany’s commitment to the Jewish people and the State of Israel has been tested – and I’m glad that Germany passed successfully.”

Ayşe Demir, deputy director of the Turkish community in Germany, also welcomed the new bill. “If circumcision is banned, the practice will go underground and prompt circumcision tourism,” she said in a statement. “We approve of the proposal,” she added.

The president of the Central Council of Jews in Germany, Dieter Graumann, said that the draft met many of the expectations of the Jewish community, Deutsche Welle reported. “For this the justice ministry deserves respect,” he said.

The Frankfurter Allgemeine said the ministry had sought submissions of reactions from interest groups by Oct. 1, ahead of a parliamentary debate.

Israel, ‘Palestine,’ and the Law Of War (First of two parts)

Tuesday, September 25th, 2012

For the moment, at least, a state of Palestine does not exist. Historically, of course, such a country has never existed. Nonetheless, current supporters of Palestinian statehood (sometimes Jews as well as Arabs) have discovered substantial practical benefit in persistently referring to Israel and “Palestine” as if there were some existing legal equivalence between them. Indeed, repeated again and again, ritualistically, as if it were an incantation, such propagandistic usage is already transforming “Palestine” into a jurisprudential fait accompli.

At some point, perhaps sooner than later, Hamas and the Palestinian Authority will be able to agree on the basic boundaries and parameters of an independent Palestine. Though Prime Minister Netanyahu has insisted that any such twenty-third Arab state must immediately be demilitarized, Palestinian leaders will be under no actual legal obligation to comply. This is the case even if they should initially agree to demilitarization in their pre-independence compacts with Jerusalem.

What will happen next? Once it is formally established, a new state of Palestine will quickly become a staging area for incrementally expanding terror and war against Israel. More than likely, this transformation will take place while Hizbullah escalates its own rocket operations against Israel from Lebanon. Depending on the still uncertain outcomes in Syria, and also in Iran, the ferocity of such aggressions could compel Israel to launch renewed forms of self-defense in several theatres of conflict, and at the same time.

Israel’s indispensable efforts to defend its citizens from mounting threats will be met with a sanctimonious barrage of assorted international criticisms. Though international law naturally allows any similarly imperiled state to use necessary force preemptively, Israel’s expected efforts to stave off existential harms will assuredly be singled out for special condemnation. Ironically, the condemners could include the United States, even as Washington would continue to accelerate its daily drone attacks that kill and wound noncombatants in Afghanistan, Pakistan, and Yemen.

Humanitarian international law, or the law of war, requires that every use of force by an army or by an insurgent group meet the test of “proportionality.” Drawn from the core legal principle that “the means that can be used to injure an enemy are not unlimited,” proportionality stipulates, among other things, that every resort to armed force be limited to what is necessary for meeting appropriate military objectives.

This important principle of both codified and customary international law applies to all judgments of military advantage, and also to all planned reprisals.

Proportionality does not mean that the defending state, here Israel, must limit its use of force to the “amount” being used by the other side. Also, proper determinations of proportionality need not be made in a geopolitical vacuum. Instead, these legal decisions may always take into consideration the extent to which an adversary has committed prior or ongoing violations of the law of war.

In the frequently interrelated examples of Hamas/Islamic Jihad/Fatah terrorists in Gaza, and the Hizbullah terrorists in Lebanon, there is ample evidence that all of these belligerents have repeatedly been guilty of perfidy.

In law, deception can be acceptable in armed conflict, but the Hague Regulations expressly disallow the placement of military assets or military personnel in any heavily populated civilian areas. Further prohibition of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of 1949. These rules are also binding on the basis of an equally authoritative customary international law.

Perfidy represents a very serious violation of the law of war, one that is even identified as a “grave breach” at Article 147 of Geneva Convention IV. The legal effect of perfidy committed by Palestinian or Hizbullah terrorists, especially their recurrent resort to “human shields,” has been to immunize Israel from legal responsibility for any inadvertent counter-terrorist harms done to Arab civilians. But even if Hamas and Islamic Jihad and Fatah and Hizbullah have not always engaged in deliberate violations, that is, even if there was no consistent mens rea, or criminal intent, any terrorist-created links between civilians and insurgent warfare bestowed upon Israel an unambiguous legal justification for military self-defense.

This is not to suggest that Israel should be given jurisprudential carte blanche in its defensive applications of armed force, but only that the reasonableness of these applications must always be appraised in the specific context of identifiable enemy perfidy. Israel should be treated as any other state under the law of war, no better but also no worse.

(Continued Next Week)

Israel’s UN Envoy Leaves Session in Protest When A-Jad Takes Podium

Tuesday, September 25th, 2012

Israel’s UN envoy Ron Prosor left a UN session on Monday in protest when Iranian President Mahmoud Ahmadinejad took the podium.  Ahmadinejad was present to speak about the rule of law in a session on the subject.

Prosor said inviting the Iranian leader to speak on the subject is like “appointing a pyromaniac as fire chief,” saying he is “a serial violator of the fundamental principles of the rule of law”.

“It is a shame and disgrace to give someone like him the opportunity to speak on such an important topic,” Prosor said.  “There is no justice and no judge.”

Printed from: http://www.jewishpress.com/news/israels-un-envoy-leaves-session-in-protest-when-a-jad-takes-podium/2012/09/25/

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