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Go Home Human Rights Founder Speaks Out Against The Betrayal of...

THE SPINE NOVEMBER 21, 2010

Human Rights Founder Speaks Out Against The Betrayal of Human Rights By Its “Defenders”

BY MARTIN PERETZ

There are a few people who will go down in history as clear-sighted and even heroic founders of the human rights movement which began in the last decades of the twentieth century. Some of them lived in inner exile in the countries that kept them hostage. Some of them lived in external exile longing to go home. A few of them lived in free countries like the United States from which they could carry on their crusades unfettered by cruel regimes and supported openly by the people at home and by their intellectual institutions.

The pre-eminent among these are Andrei Sakharov and Elena Bonner, husband and wife from the old and rotten Soviet Union; Prince Karel von Schwarzenburg, exiled from then Communist Czechoslovakia and now foreign minister of the Czech Republic; Natan Sharansky, "prisoner of Zion" in Communist Russia, now living in Israel; and Robert L. Bernstein, an old-fashion literary and literate book publisher who also happened to be the founder of Human Rights Watch, to which he devoted more than a quarter century of his life. Of course, there are others.

But Bernstein has a certain standing. And he has gotten into a colossal argument with the organization he started. You can read about it in a devastating article, published earlier this year in TNR, by Ben Birnbaum. The odds that the truth will win out here have been considerably shortened by an "ace of spades" $100 million contribution to H.M.W. by George Soros, who knows how to choose the objects of his grandeur and grandiosity when it comes to targeting Israel.

In any case, a speech by Bernstein won't have more power than $100 million. After all, money does talk, and an infinity of cash can clinch an argument.

But it won't hide the truth.

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125 comments

The West keeps yapping about 'human rights" while its global power is in decline. China and other asian powers are on the rise. The don't have much use of "human rights" unless they can use it to make the West feel guilty and make us feel ashamed of ourselves. The future according to Robert Kaplan belongs to China and India. A weakened West, both demographically and militarily, will hardly be able to influence government behavior in Asia. http://www.onpointradio.org/2010/10/kaplan-monsoon-asia All of Soros’ billions for “human rights” causes will hardly make a dent in the way China and other rising powers behaves. The can on the other hand further the West’s decline.

- jdyer

November 21, 2010 at 12:44pm

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England's Chief Rabbi Sachs wrote an interesting piece a couple years ago pointing out that the "human rights arena" has become the most important venue for delegitimizing Israel and the Jews. It's particularly enlightening when the mutations of anti-semitism are considered in historical perspective: - in the age of religion, Jews were cursed because they refused to accept Christian revelation; - in the age of empire, Jews were flawed because they were disloyal subjects and worked relentlessly to undermine the economies of nations; - in the age of science, Jews were deficient because of their demonstrable genetic inferiority. Welcome to the age of international law and human rights. Who is more reprehensible than those same Jews who everywhere show their callous disrespect for the lives of innocent civilians, who commit acts of piracy on the high seas, who use disproportionate force in all their battles, who steal land from indigenous peoples and oppress them mercilessly? Who else but those Jews would deny the poor people of Gaza easy access to missile materials? Who but the Jews would obstruct free passage across the country to suicide bombers? The fulcrum of our collective value systems today is centered in human rights organizations. That's why, as the Ben Birnbaum article documents, all the activist/ Israel-haters have made their way to the NGOs. It's the place where you get the most bang for your buck today. Gerald Steinberg's NGO-Monitor.org does a fine job of exposing what a corrupt, dirty business human rights advocacy has become.

- willjames77

November 21, 2010 at 1:39pm

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willjames77: do you have a link to the Sachs article?

- Stuart Wilder

November 21, 2010 at 2:45pm

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"in the age of religion, Jews were cursed because they refused to accept Christian revelation" And, I would remind you, Islamic "revelation" as well (myths about the Golden Age of Spain notwithstanding). Hershel Ginsburg Efrata / Jerusalem

- ginzy

November 21, 2010 at 3:06pm

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Stuart, I wish I did have a link to it. It's not on the Rabbi Sach's website. I received it from a Rabbi friend via email a couple of years ago, and neither he nor I have since been able to locate a copy. I mentioned it to Gerald Steinberg when I heard him speak recently in Jerusalem and he was familiar with it but didn't have a copy either. You've inspired me to send an email to Rabbi Sachs' office to see if someone can send a copy this way. It's such a strong, well-written piece, and it deserves much wider circulation.

- willjames77

November 21, 2010 at 3:39pm

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willjames77: Is it possible that you are thinking of a June 2009 article in the (London) Times about Sacks: "Chief Rabbi Sir Jonathan Sacks: ‘Self-restraint is the essence of a free society’"? http://www.timesonline.co.uk/tol/comment/faith/article6540466.ece

- JPKatz

November 21, 2010 at 4:42pm

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"Who else but those Jews would deny the poor people of Gaza easy access to missile materials?" And chocolate. Even the Israeli government has refused to pretend that the purpose of its blockade of Gaza is to deny Hamas militarily useful materials, although that is a purpose. Israel has been explicit that its purpose is also political, to discredit and bring down the Hamas regime. Nor does the fact that many attacks on Israel are unjustified and likely motivated by anti-Semitism alter the fact that Israel is a human rights abuser, in violation of its obligations under the Fourth Geneva Convention by settling territory that Israel acknowledges to be "occupied." The bad behavior of Human Rights Watch does not serve to exonerate Israel. "Self-restraint is the essence of a free society." Just not a free society in the grip of religious zealots.

- roidubouloi

November 21, 2010 at 5:14pm

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JPKatz, thanks so much for the link. It's possible that the article I received was based on an excerpt from Rabbi Sacks' Future Tense book. The following paragraph, taken from the article you've linked to, has the core of the argument: “In the Middle Ages [the highest authority] was religion, so you had religious anti-Judaism, and everything that went with it, the inquisitions, the pogroms, the ghettos, the expulsions. In post-Enlightenment Europe the source of authority was science, so German anti-Semitism was predicated on the so-called scientific study of race. In the post-Holocaust world the single greatest source of authority is human rights therefore the new anti-Semitism is constructed in the language of human rights.” It's an insight that helps one grasp why Israel is regularly and relentlessly identified as "a human rights abuser" in the ongoing the war of delegitimization.

- willjames77

November 21, 2010 at 5:41pm

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Israel is identified as a human rights abuser because Israel is a human rights abuser. That it has ample justification for many of its actions grounded solidly in its right of self-defense does not alter the fact that Israel is a human rights abuser. Nor does its right of self-defense license its abuses. The Fourth Geneva Convention, to which Israel is a signatory, makes no exception in the case of occupation that arises from defensive war. It almost goes without saying that those who attempt to defend Israel's violations of the Fourth Geneva Convention cannot actually justify it. Thus, they simply point to anti-Semitism as if that were either the cause or the justification for Israel's violations of international law. Of course, it is neither. This behavior ultimately discredits Israel and the Jewish people. But, never mind. As all people have their burden of those who bend morality to their own selfish ends, so too the Jews.

- roidubouloi

November 21, 2010 at 6:03pm

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roidubouloi "Israel is identified as a human rights abuser because Israel is a human rights abuser. And China, Pakistan, Iran, Egypt, etc. are not identified as human rights abusers because they are not human rights abusers. Are you looking for a bridge? There is one in Brooklyn I'd like to show you.

- jdyer

November 21, 2010 at 6:26pm

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Jackson, I'm not trying to start a fight. I'd inevitably lose. However, I don't think Roid is saying that abuses happen only in Israel. It's simply that Israel, a real democracy, has broken the law. And I'm asking this question because I really want to hear your views: Isn't it possible that both sides of this debate could be right? Isn't it possible that Israel gets unfairly shredded by anti-semitic propaganda while at the same time it breaks international law? I'm not in this to disagree or agree with you. I've learned a lot from you over the years--especially when it comes to positing an argument. It's pretty amazing sometimes to watch you point the flaws in other people's arguments. So please, I'm coming from a place of really wanting to know. I've known you many years and value what I've learned from you.

- MOLLYSIMON

November 21, 2010 at 7:36pm

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Willjames: "The fulcrum of our collective value systems today is centered in human rights organizations. That's why, as the Ben Birnbaum article documents, all the activist/ Israel-haters have made their way to the NGOs. It's the place where you get the most bang for your buck today." Norm Geras, some time ago, explained what was "wrong" with International law: "(i) Centred on accusations against Israel of war crimes, the reaction of outrage with which this post has been concerned might be thought to have been motivated by a respect for international humanitarian law. The arguments set out above show that that isn't so. The outrage is based rather on a cynicism towards international law which I have posted about before and which consists of treating international law as a mere convenience, something to use rhetorically and polemically when it suits you to do so - but only then. If there are war crimes on both sides of a single conflict and you condemn one side alone as in breach of the law, this is not respect for law; it is an unprincipled politicization of it. The development of international law is an important task for present and future generations but it does not benefit from being abused as a partisan political weapon." Michael Ignatieff: “Global human rights consciousness, moreover, does not necessarily imply that the groups defending human rights actually believe the same things. Many ... espouse the universalist language of human rights but actually use it to defend highly particularist causes: the rights of particular national groups or minorities or classes or persons… The problem is that particularism conflicts with universalism at the point at which one’s commitment to a group leads one to countenance human rights violations towards another group.” (Ignatieff, Michael, Human Rights as Politics and Idolatry, 2001 p. 9)

- noga1

November 21, 2010 at 8:53pm

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Molly, Roid is saying that while many of Israel’s accusers are antisemitic the country is guilty of ‘human rights’ abuses. This is odd. It’s like saying before a trial that while those whites who lynched black men were racists, the black men were guilty nonetheless. There ought to be a trial held by an impartial judge and jury (one that is not antisemitic) before the country is pronounced guilty. Moreover, Roid is actually confusing two different charges: first the charge the Israel is illegally, under international law holding on to Arab territory and the charge that Israel is guilty of abusing the rights of its citizens. Some more impartial and moderate person might say that Israel is holding on to territory it captured, after it was attacked, and that it is willing to enter into negotiations in order to divest itself of these lands if and only if the other party accepts its existence under a comprehensive peace agreement. As for the second point, someone equally impartial might say that Israel is defending itself from attacks by organization that wish to destroy the country and kill as many of its citizens as it can. In any case, I object to anyone presupposing a party to be guilty before a valid trial is held. I am not going to enter into another tired set of self defensive comments about where I stand on these issues. I have been posting here long enough for most regular readers to know.

- jdyer

November 21, 2010 at 10:25pm

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"There ought to be a trial held by an impartial judge and jury (one that is not antisemitic) before the country is pronounced guilty." All of the international juridical bodies with responsibility for the Geneva Conventions agree that Israel's settlements are illegal. Israel could of course have this adjudicated, but won't, because it would lose. In the meantime, everyone is entitled to a legal opinion. The facts are not at issue, hence the question of guilt is entirely a question of law. People who understand international law do not find this a difficult case. The language of the Fourth Geneva Convention is quite unambiguous although imperfect. As for opinions, there are not many different ones. Every nation on earth save only three is of the view that the settlements are illegal. The three exceptions are the US and Japan, that express no legal opinion (at present) but oppose the settlements on "policy grounds" and Israel itself. I am not confusing anything at all. I have not questioned the legality of the occupation in the absence of a settlement and secure and recognized boundaries. But the occupation allows Israel only to do what is necessary for security. It is expressly prohibited form settling occupied territory and it cannot impose upon the civilian population burdens that are unnecessary for security. To the extent that illegal settlement necessitates additional burdens on the Palestinians in order to protect the settlements, those additional burdens are also a violation of Palestinian human rights. Israel owes its creation to international law. If there is none, there is nothing that prohibits the Arabs from warring on Israel as and when they please in whatever manner they wish, including by means that we call "terrorism." Impeaching international law thus serves to undermine the legitimacy of Israel. Israel's friends do it no favor when they excuse and dismiss its violations on the grounds that others do worse and get away with it or that some of the accusers are ill-motivated. None of that legitimizes Israel's illegal conduct and the inability to argue to the point fairly betrays the guilty knowledge that the accusers, whatever their motivation, are largely correct.

- roidubouloi

November 21, 2010 at 11:18pm

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It is highly doubtful that the Netanyahu government is indeed willing to enter into negotiations the outcome of which would be the end of occupation and the territory east of the Green Line becoming a Palestinian state, regardless of the security guarantees and arrangements. The Palestinians have recognized Israel's right to exist. At every relevant point, Abbas reaffirms that.

- roidubouloi

November 21, 2010 at 11:25pm

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“All of the international juridical bodies with responsibility for the Geneva Conventions agree that Israel's settlements are illegal. Israel could of course have this adjudicated, but won't, because it would lose.” In other words, Israel has been prejudged guilty by “all” international juridical bodies without a trial. Now, it’s up to that small country to prove its innocence. Btw: have those international courts condemned China’s occupation of Tibet? http://www.friends-of-tibet.org.nz/mistake-of-the-century.html Let’s hear it for international courts of (in)justice.

- jdyer

November 21, 2010 at 11:36pm

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The ICJ properly expressed its view in the context of the case of the separation barrier after considering and holding that it had jurisdiction. In rejecting the argument that the barrier was needed to protect the settlements, the court expressed the view that they were illegal and that the barrier, within the West Bank, could not be defended on the basis of defense of settlements themselves illegal. As I recall, Israel refused to appear but submitted materials in writing. A little late now to complain that there has been no fair trial. In his separate opinion, the Israeli judge, Justice Elaraby, said this: "It is relevant to recall that reading of the reports by the two Special Rapporteurs . . . leaves no doubt that as an occupying Power, Israel has committed grave breaches." Almost everything that constitutes a breach by Israel of its duties as Occupying Power can be traced to the settlements. Indeed, but for the settlements, the occupation would likely have ended by now. It is not its security that Israel is defending in the West Bank, but its illegal settlements. Including Efrata.

- roidubouloi

November 22, 2010 at 12:06am

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More on world wide 'human rights' "The Professors Strike Back" "Yehuda Bauer, writing in Haaretz Nov. 19th, (Hebrew only, and already hidden behind their paywall) enumerates various democratic nation states with large minorities: The Latvians, for example, make up only 59.4% of the population in their nation state (Russians are 27.5%, only 56% of those Russians are Latvian citizens). Estonians make up 69% of their own nation state, while 25.6% are Russians. Kazakhs make up 63% of the population of their nation state, and the lack of democracy there isn't a matter of ethnicity - the country is equally undemocratic for all." "Menachem Lorberbaum and Carlo Strenger, both of Tel Aviv University, likewise take aim at the notion that the Jews can't have a nation state with a Palestinian minority, though near the end they also criticize the direction Israel's right is going. But that's fine. The point isn't that left-leaning professors - as these three all are - need to support Lieberman, rather that prominent left-leaning professors are still more critical of the ideas coming from the far left." http://yaacovlozowick.blogspot.com/2010/11/professors-strike-back.html

- jdyer

November 22, 2010 at 12:37am

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"It's simply that Israel, a real democracy, has broken the law." Simply, eh? If one is genuinely interested (I'm not referring to the "everyone knows that" types), here's an article that might be interesting; or might not....: It's called "The Illegal-Settlements Myth" http://www.commentarymagazine.com/viewarticle.cfm/the-illegal-settlements-myth-15295?search=1

- b_meislin

November 22, 2010 at 5:22am

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Milton, in Paradise Lost, saw the dynamic quite clearly. There is hardly a benevolent initiative that doesn't run the risk of being subverted or perverted by those who "out of good still to find means of evil." Fortunately, those who seek to pervert the good are often so eager, clumsy and stupid that their play-acting becomes an obvious farce. One might mention, for example, the United Nations Human Rights Council which, immediately after being established, issued its first nine resolutions all condemning Israel for--yup, you guessed it--human rights violations.

- willjames77

November 22, 2010 at 6:00am

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b_meislin, I think that David Phillips' article in Commentary is more than enough to persuade any open-minded person that Israel is hardly an illegal occupier. Unfortunately, for every person who has the patience and intelligence to consider the issues fairly, there are a hundred others who are quickly persuaded by skillful propagandists that Israel is unquestionably evil. Pro-Palestinian spokesmen reflexively refer to the "occupation" and the "illegal settlements" three times in every statement they make. "Have you stopped beating your wife, yet?" While you are thinking about it, "Why is it that you kill innocent children?" With these kinds of manipulations, Israel is constantly put on the defensive. The traditional response has been to issue a definitive rebuttal six weeks after the accusations have already defined the terms of discourse. Here's Michael Oren, one of Israel's best and brightest, barely able to hold his own when the questions themselves are already couched in condemnation: http://www.cnn.com/video/#/video/bestoftv/2010/11/10/ps.oren.housing.jerusalem.cnn?iref=allsearch The only good news in all of this is that there are indications that Israel has come to recognize its shortcomings in this arena, and it has begun to give the PR issues some of the attention that that they deserve.

- willjames77

November 22, 2010 at 6:41am

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I wouldn't have thought that legally speaking, the matter is not quite so clear as roidubouli supposes. The question of whether the settlements are legal centres on four issues: First, does the Fourth Geneva Convention even apply to Israel in the West Bank? Article 2 of the Convention specifies that it applies to territory of another treaty party occupied during armed conflict. The West Bank was not territory of another treaty party. Secondly, assuming that the Convention does apply, does it apply in its entirety? Since there was no prior sovereign power, one might conclude that the portions of the Convention protecting the reversionary interest of a legitimate sovereign, such as 49(6), do not apply. Thirdly, if it does apply in its entirety, does article 49(6) prevent an occupying power from allowing/encouraging voluntary movement by its citizens into the occupied territory? It is arguable that the language of 49(6) ("deport or transfer") refers to forcible population movements; it is clear that Jews living in the West Bank are living there of their own accord. Finally, is article 49(6) overruled by the application of article 43 of the 1907 Hague Regulations regarding occupied territory in conjunction with article 6 of the Palestine Mandate requiring encouraging "close settlement by Jews on the land"? Article 43 of the Hague Regulations requires occupiers to respect "unless absolutely prevented" laws in force in the occupied territory. Eugene Rostow has argued that as mandatory law is still in effect in the West Bank, the occupier is required under Article 6 of the Mandate to encourage "close settlement by Jews on the land." It is certainly true, as roidubouli says, that many international bodies have declared that the settlements are illegal. But whether their decisions have been based on international law as opposed to politics is another matter. roidubouli says that he doesn't question the legality of the occupation. I certainly don't disagree, but I am sure that he is aware that the contrary opinion is widely held. I wonder what the very same international bodies might say. (Addressing Israel in a meeting of the UN Security Council, March 12, 2002, Kofi Annan said: "You must end the illegal occupation." )

- JPKatz

November 22, 2010 at 6:54am

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"Israel owes its creation to international law. If there is none, there is nothing that prohibits the Arabs from warring on Israel as and when they please in whatever manner they wish, including by means that we call "terrorism."" As the Arabs have been "warring on Israel as and when they please in whatever manner they wish, including by ... terrorism", while the world is looking on and going out of its way to appease the Arabs and facilitate their domination over the UN and its many commissions. Is there a better illustration as to the highly selective and sharply-skewed "validity" of "international law" than this record in and of itself? roi believes that the only way to judge Israeli s through the prism of international law. I believe that the only way to judge the justice dispensed by "International Law" is through the prism of Israel. If international law cannot do justice to Israelis then International Law is not worth the paper it is written on. The quality of UN Justice for Israelis can be seen through such resolutions as determine that a thousands of years' Jewish holy site is actually a mosque. It's a bit disingenuous to speak of and have respect for law when the law gives cover to lies, distortions and deliberate explicit discrimination. Isn't there a presumption of decency and fairness that comes before the law and that directs it in its practical applications? The UN, charged with the distribution of just laws, is incapable of doing it justly or reasonably. It is dominated by mafioso countries that have no interest in justice, and relies upon European antisemitism to lubricate their anti-Israeli malfeasance.

- noga1

November 22, 2010 at 7:25am

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Perhaps roi would like to explain why it is "terrorism" and not terrorism, when the subject is Israel?

- noga1

November 22, 2010 at 7:30am

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well, well, someone rises to the question. First, the opinion of David Phillips, which circulates endlessly amongst Geneva Convention deniers is pretty much unique in the legal literature. Any lawyer who bothers to read it, whether expert or not, will find it chock full of logical holes and extraordinary leaps. Prof. Phillips is not himself an expert on international law. Rather, his field is business law: "Professor Phillips has written extensively in the areas of business ethics, foreign trade and investment, commercial law, corporations, the Uniform Commercial Code, the role of legal scholarship and law schools in developing nations and foreign legal systems, and federal restrictions on aviation and foreign investment." No matter. JPKatz raises most of the relevant points. On the matter of the jurisdiction of the treaty, the ICJ took the very reasonable position that the land in question was territory of Jordan at the time of the war, that both Israel and Jordan are High Contracting Parties, and that the convention therefore applies according to its terms. The argument that there was no sovereign should be a very unappealing one for Israel because, if it is the case, then Israel can lay no claim to the portions of the Arab partition taken in the course of its war of independence. The status of Israeli sovereignty there and that of Jordan in the West Bank during the period 1949-1967 have pretty much the same legal status. Or, as they say in the legal game, "You don't wanna go there." The worst argument on behalf of the settlements is that Israel has not been transferring its population. First, the convention is actually quite clear in using both the terms "deport and transfer," one to indicate forcible and the other non-forcible movement. In other provisions nearby where the convention plainly intends only forcible movement, it does not use the word transfer. More important, the notion that the Israeli settlers just appeared like pixie dust rather than through the policy of the Israeli government that affords them logistical support of every kind and even extends to them special law so that they are not required to live under the law that applies to the rest of the inhabitants of the West Bank pretty much shoots down that argument as a matter of fact. To the extent that mandatory law is still in effect, that would include the law of partition. Hence, article 6 of the Palestine Mandate would plainly no longer apply in that portion of the mandate that had been set aside for an Arab state. And, as above, you don't want to go there in any case because, if mandatory law is all that applies in the West Bank, then Israel's claim to any parts of the mandate not accorded it by the UN is in jeopardy. It would also be impossible for Israel to annex anything that is subject to mandatory law as the UN jurisdiction cannot be defeased by war. As for Kofi Annan, well, in part at least, it depends on what the meaning of is is. While Israel came into the occupation legally, in the important respect of the settlements, it is illegal and grossly so. Thus, one could quite legitimately say that the occupation as it exists is illegal. And to the extent that Israel as prolonged the occupation through illegal provocation, that too would render it at least less than legal. If you poke a dog in the eye with a stick and he tries to kill you, you can justifiably kill him to save your life. But you cannot avoid responsibility for poking him in the first place. Actors are presumed to intend the reasonably foreseeable consequences of their actions.

- roidubouloi

November 22, 2010 at 7:41am

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I don't follow roidubouloi's reasoning. It is not clear to me why he thinks the question of whether Jordan's annexation of the West Bank was legitimate is linked to the quesiton of whether Israel's claim to portions of Arab territory taken during the war of independence was legitimate? Is the idea that Jordan had as much right to the territory that it took by conquest as Israel had to the territory that it took by conquest? In fact, there is a prior question worth asking, which is, What is the legal basis for Jordan? When Transjordan applied for membership in the UN in 1946, the Security Council took the view that that Transjordan was part of a joint Mandate. The President of the SC claimed that the Mandate had not been legally terminated and asserted the rights and obligations of the United Nations, adding that the application should not be considered until the question of Palestine as a whole was addressed. (The application for membership was not approved.) In any case, I would have thought that Israel's claim to the territory in question was based on the fact that it took the territory in a defensive war and that it had a prior claim to that territory (the Mandate). Jordan did not have such a prior claim. Moreover, only two countries--the UK and Pakistan--recognized Jordan's annexation of the West Bank. But now I am curious about where roid. wants to go, legally speaking. What in his view is the legal difference between the Israel's claim to the territory it acquired in the War of Independence and, say, East Jerusalem?

- JPKatz

November 22, 2010 at 8:41am

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Like history, "terrorism" is defined by the victors. The serious point (one that I thought I made quite clearly the first time) is that, in the absence of international law governing what is and is not permissible in war, there is no meaning to the word "terrorism." It is just warfare. This is just one of the many reasons why Israel, least of all, ought not cast doubt on the entire enterprise of international law. In the absence of law, Israel has only its power. Its power alone, without the support of other nations, may not prevail indefinitely. Even those who claim indifference to international law and the claims of other nations upon Israel know this, else they would not be anguished about Israel's growing isolation. If military power is all that matters, why would isolation be of any consequence?

- roidubouloi

November 22, 2010 at 8:45am

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And I might wonder where JPKatz wants to go. "Sovereignty" is a mixed question of law and fact. I believe that Jordan issued its passports to the citizens of the West Bank, and I believe they were recognized. The legality of a border, and international recognition of a particular border, is a separate question from that of sovereignty. To quote the handiest source, wikipedia: "Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided." There is not much doubt that Jordan was sovereign in fact in the West Bank between 1949 and 1967. Whether there was basis for continuing legal contest, as most of the world thought, or not, as the UK and Pakistan accepted is a different matter. If international recognition of an annexation is to be considered the main indicium of sovereignty, then Israel is not sovereign in Jerusalem the annexation of which is not recognized anywhere. So, again, you perhaps do not want to go there. Jordan, itself a part of the mandate no less than Israel, had at least as much claim to the portion of the partition outside of what the UN gave it as Israel does, maybe more as the West Bank was part of the Arab section, not part of the Jewish section. Indeed, the argument advanced by JPKatz above, that Trans-Jordan remained subject to mandatory jurisdiction, is a powerful one against the splitting of the Arab portion into two pieces with a separate sovereignty. But no one buys that. Jordan was admitted to the UN in 1955, despite any dispute about the status of the West Bank. There is a further obstacle to Israel's claim of a legal right to settle, the fact that Israel itself governs the territories under "military occupation government." If Israel did not take these territories from another sovereign, then from whom? It can only be the UN mandate, and that cannot be defeased by war, defensive or otherwise. Israel refuses to recognize and UN jurisdiction. For example, again from wikipedia: "United Nations Security Council Resolution 446, adopted on March 22, 1979, concerned the issue of Israeli settlements in the "Arab territories occupied by Israel since 1967, including Jerusalem".[1] This refers to the Palestinian territories of the West Bank, East Jerusalem and the Gaza Strip as well as the Syrian Golan Heights. In the Resolution, the Security Council determined: "that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East" The Resolution was adopted by 12 votes to none, with 3 abstentions from Norway, the United Kingdom and the United States of America." More from wikipedia" "Israel's argument against the applicability of the Convention was formulated by Meir Shamgar and is based on an interpretation of Article 2, which reads: "In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance." [3] The government's argument (first made by Moshe Dayan in a speech to the UN in 1977) is that neither the West Bank nor Gaza were the territory of a "High Contracting Power" at the time they were occupied by Israel and that therefore the Convention does not apply.[4] [5] In 1993 the UN Security Council "acting under Chapter VII of the Charter on the United Nations" approved a report by the Secretary General which concluded beyond doubt that the law applicable in armed conflict as embodied in the Geneva Conventions of 12 August 1949 and the Hague Convention (IV) of 18 October 1907 had become part of international customary law. Breaches of the principles contained in the conventions were subsequently placed within the competence of international criminal tribunals, including International Criminal Tribunal for the former Yugoslavia and International Criminal Court.[6] The Israeli MFA says that the Supreme Court of Israel has ruled that the Fourth Geneva Convention and certain parts of Additional Protocol I reflect customary international law that is applicable in the occupied territories.[7] Gershom Gorenberg has written that the Israeli government knew at the outset that it was violating the Geneva Convention by creating civilian settlements in the territories under IDF administration. He explained that as the legal counsel of the Foreign Ministry, Theodor Meron was the Israeli government's expert on international law. On September 16th, 1967 Meron wrote a top secret memo to Mr. Adi Yafeh, Political Secretary of the Prime Minister regarding "Settlement in the Administered Territories" which said "My conclusion is that civilian settlement in the Administered territories contravenes the explicit provisions of the Fourth Geneva Convention." [8] Moshe Dayan authored a secret memo in 1968 proposing massive settlement in the territories which said “Settling Israelis in administered territory, as is known, contravenes international conventions, but there is nothing essentially new about that.”[9]" The inescapable reality is that Israel has not annexed the West Bank because it is unwilling to grant the rights of citizenship to its inhabitants, as it did to all inhabitants of land it occupied in 1949. It thus wishes to maintain that the territories are not Israel. If they were, then Israel would be at grave risk of being held to be committing the crime of apartheid, a much graver matter as the settlements are illegal but not a crime against humanity. Apartheid is. Having made its bed thusly, Israel cannot then escape the conclusion that it is transferring its population to occupied territory unless you believe the argument that there is no "transfer" occurring. I don't think any serious lawyer would give that argument even a scintilla of a change of succeeding. _______________________ There is not much difference in my opinion between Israel's claim to the territory it acquired in the War of Independence and East Jerusalem. If there is any, it would be found in the intervention of Resolution 242 and its plausible interpretation to prohibit any changes in status not agreed upon by the parties. Changes of sovereignty are not, however, a human rights violation. There are millions of people living in parts of the globe in which a power other than the one they would like to be sovereign is none-the-less sovereign. If Israel had limited itself to settling in areas formally annexed, even if other states do not consider the annexation itself to be legal, there would not be a human rights problem. There would be a border dispute. By settling in occupied territory, Israel has made an enormous tactical and strategic mistake that jeopardizes its invocation of the right of self-defense, the legitimacy of its occupation, and its hold on Jerusalem. Israel would now like its settlement in Jerusalem to be recognized as "different" from what it does in the West Bank. But as Israel has settled without regarded to whether the territory it settles is incorporated, it is in a singularly poor position to make this claim stick. Withal, there is no respectable body of legal opinion, beyond one David Phillips, that Israel is not settling the West Bank in violation of the Fourth Geneva Convention. It is no defense that some of the people who make that accusation are anti-Semites. Nor is it a defense that other human rights violations in the world go on with little objection. The entire enterprise serves to delegitimize Israel and its otherwise justified claims to be defending itself. There will be a price to pay for this fecklessness.

- roidubouloi

November 22, 2010 at 9:22am

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International Law cannot and does not deal with definitions of terrorism. Fact is that the UN doe not even try to deal with it. It seems to treat terrorism as a God given, a force of nature that has to be accomomdated, not confronted. " “Who is a terrorist?” we increasingly hear. The despot or invader says: Terrorists are all those who take part in irregular warfare, led by nonuniformed combatants against those in uniform. This was Napoleon’s definition as he engaged Spanish and Russian guerrillas; and the Nazis’ as they hunted down resistance movements. A better definition of terrorism is a deliberate attack by armed men on unarmed civilians. Terrorism is aggression against civilians as civilians, inevitably taken by surprise and defenseless. Whether the hostage-takers and killers of innocents are in uniform or not, or what kind of weapons they use—whether bombs or blades—does not change anything; neither does the fact that they may appeal to sublime ideals. The only thing that counts is the intention to wipe out random victims. The systematic resort to the car bomb, to suicide attacks, randomly killing as many passersby as possible, defines a specific style of engagement. When, after Saddam Hussein’s fall, terrorist attacks multiplied in Iraq, they spared no one, especially not Iraqis: schoolchildren in buses or on sidewalks, men and women at the market, the faithful at prayer. When the naive, the falsely naive, and the downright evil blur categories in support of their ideological prejudices and christen the killer of innocents a “resistance fighter,” more lucid minds disclose a different landscape. Consider an editorial published in a Lebanese paper on August 20, 2003, the day after a bomb-laden cement truck destroyed the United Nations’ center of operations in Baghdad: “Yesterday’s operation against the Baghdad headquarters of the United Nations exemplifies this mentality of destruction. Expel all mediators. Banish every international organization. Let things collapse. Let electricity and water be cut off, and the pumping of oil cease. Let theft prevail. Let universities and schools close. Let businesses fail. Let civic life cease. And at the end of the day the occupation will fail. ‘No!’ protests Joseph Samara, ‘at the end of the road, there will be a catastrophe for Iraq. . . . The attack against the United Nations’ headquarters in Baghdad belongs to another world: it is a form of nihilism, of absurdity, and of chaos hiding behind fallacious slogans, which proves the convergence among those responsible for this action, their intellectual limitation and their criminal behavior.’ ” http://www.city-journal.org/html/17_4_modern_terrorism.html Anyway the definition of terrorism cannot be left to the likes of those who serve the UN. It's like entrusting the definition of antisocial behaviopir in the hands of the likes of either Lucky Luciano and Al Capone or their more respectable minions, corrupt politicians and law-enforcers. (I've been watching Boardwalk Empire so these examples are still fresh in my mind after last night's episode...).

- noga1

November 22, 2010 at 9:24am

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JPKatz is bound to find out that conversing with roi about Israel's infamy yields all the pleasures to be derived from chewing sawdust with no water in sight.

- noga1

November 22, 2010 at 9:26am

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Another couple of issues that deserves some discussion: Even if Jordan was the sovereign power in the West Bank at the time of the 1967 war, it has since relinquished all claims to that territory. International law certainly permits annexation of territory under certain conditions. (Article 47 of the Fourth Geneva Convention does not does not bar annexation of occupied territory; it simply preserves rights of residents of the territory in the event of annexation.) There is now general agreement that military conquest by itself is not sufficient to justify annexation. But it is arguable that conquest would justify annexation were the military action consistent with article 2 of UN Charter (eg, where it is justified as self-defense). Moreover, cession, occupation, accretion and prescription are still recognized as grounds for annexation. One can argue that since there is no--or at any rate, no longer--any prior sovereign claim, Israel has the right to annex the West Bank as a result of occupation. Another point is that the settlements--even if they are illegal--are not really a human rights issue. The vast majority of the land on which the settlements have been built was public land. (Doubtless, there are cases where Arab land has been requisitioned by the Israeli government, but this involves a very small portion of the territory in question.) The Palestinian claim against Jewish settlements in the West Bank is based, not on perceived displacement of Palestinian private property rights, but on a perceived right not to have Jewish immigration to the area. On second thought, maybe it is a human rights issue, though not the one that roid. was bruting.

- JPKatz

November 22, 2010 at 9:38am

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Oh, poor baby. It is so much more comfortable to be able to repeat nonsensical right-wing tropes endlessly without being challenged. Wouldn't it be nice if no one disagreed and everyone disposed to just fell down in awe? Wouldn't if be lovely if you could say any foolish, self-serving thing you wanted to without anyone mustering serious arguments to the contrary? Real argument is so tedious. And that is why I bother with this. So that readers other than the Likud et alia True Believers can see that these tendentious right-wing claims and Peretz-grams are difficult, often impossible, to defend once they are challenged. More often than not, the defenders are quickly reduced to hysterical shrieking and imprecations, although I must in fairness acknowledge that this thread is, thus far, a welcome exception to that sorry history. ____________________ "International Law cannot and does not deal with definitions of terrorism." But of course it does. If it were not for the law of war, then there would be nothing to say that the tactics of terrorists constitute illegal warfare. And they do. If they were legal, they would not be terrorism. That is not to say that all illegal warfare is terrorism, but illegality is a sine qua non for what we understand terrorism to be. "A better definition of terrorism is a deliberate attack by armed men on unarmed civilians." No, this is a terrible definition standing alone as it criminalizes much of what states, including Israel, do in the course of war. There needs to be a caveat, such as, "without adequate military justification under the law of war." And then one is into the whole question of what is and is not a military objective and whether it is being pursued be means disproportionate in their harm to the objective sought.

- roidubouloi

November 22, 2010 at 9:40am

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"Another point is that the settlements--even if they are illegal--are not really a human rights issue." A human rights issue is exactly what they are because the Fourth Geneva Convention makes it so. It is precisely the right of a conquered people to be free of colonization that is the point of the relevant provision of the convention. It is annexation, rather, that is a legal and not a human rights issue. In my opinion, there is no human rights violation entailed by the annexation and administration of east Jerusalem as part of a a unified city and as Israeli sovereign territory. But there is quite clearly an ongoing dispute as to the legality of this annexation and I don't know of a definitive source for an answer to this question. The Security Council has certainly expressed its view to the contrary. Is territory occupied and then annexed in the course of defensive war annexed illegally? My own inclination is to say no, and to point to the usage and practice of nations in that regard. But we have no agreed upon convention or treaty, such as the Geneva Conventions or the UN Charter, that seems to me by itself to answer that question. In the case of the settlements, we do.

- roidubouloi

November 22, 2010 at 9:49am

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JPKatz "International law certainly permits annexation of territory under certain conditions. (Article 47 of the Fourth Geneva Convention does not does not bar annexation of occupied territory; it simply preserves rights of residents of the territory in the event of annexation.)" No matter what international law says, annexation of the West Bank is not in the Jewish States' interest.

- jdyer

November 22, 2010 at 10:03am

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And I believe this statement by JPKatz is also technically incorrect. The Geneva Convention protects the inhabitants of occupied territory, whether the occupying power came into possession legally or illegally. Once annexed, the territory is no longer occupied. If the inhabitants are accorded the same rights as the rest of the citizenry of the integrated territory, there is no human rights violation per se, although it may be the case that there are violations of the human rights of everyone living there. If there is a different legal status for the inhabitants of the annexed territory, then there is the possibility that there may be a crime against humanity, apartheid.

- roidubouloi

November 22, 2010 at 10:17am

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"No, this is a terrible definition standing alone as it criminalizes much of what states, " Don't be ridiculous, roi. Glucksmann does not end the definition there so why do you pretend that he does? Here is the definition he offers (again, for the benefit of readers too lazy to check up the earlier comment): "A better definition of terrorism is a deliberate attack by armed men on unarmed civilians. Terrorism is aggression against civilians as civilians, inevitably taken by surprise and defenseless. Whether the hostage-takers and killers of innocents are in uniform or not, or what kind of weapons they use—whether bombs or blades—does not change anything; neither does the fact that they may appeal to sublime ideals. The only thing that counts is the intention to wipe out random victims" You can't just pretend that this is the definition when clearly it is not, when he goes on to provide the conditions that make an act a terrorist act, regardless of international law. Actually Goldstone understands this definition extremely well, because he has gone to a lot of trouble to claim that Israeli armed forces DELIBERATELY targeted innocent civilians for no other reason than they were innocent civilians. He needed to insert that "deliberately intended" in order to accuse Israel of state terrorism. According to Glucksmann's definition, the kidnapping of Gilad Shalit is a terrorist act even if he was wearing a uniform. According to this definition, the hanging of the three sergeants by the Etzel was a terrorist act even if these were uniformed soldiers in the British army. INTENTION matters a great deal in law. I imagine even in International Law.

- noga1

November 22, 2010 at 11:16am

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Here is a timely example on how "International Law" works: "On November 10, 2010, the UN "Human Rights" Council was engaged in another of its infamous "universal periodic reviews" - this time about human rights protection by Lebanon. For the occasion, Lebanon had produced a report objecting to the creation of the state of Israel. Israel pointed out that, contrary to protecting human rights, Lebanon was actively hosting and collaborating with a terrorist organization. But here is how the UN "human rights" world responded: http://www.youtube.com/watch?v=vIlnAUafdZ4 " ( From "Eye on the UN")

- noga1

November 22, 2010 at 11:25am

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Although it appeals to the emotions, and is designed to, it is a crummy legal definition of terrorism. There are plenty of times when civilians are targeted by lawful combatants because it is necessary to achieve a legitimate military objective. They are inevitably surprised and defenseless. Even the caveat that the "intention is to wipe out random victims" does not suffice as, in law, one intends the obvious consequences of one's acts and plenty of random victims will be the inevitable result of many military operations. The distinction between legal war and terrorism has to do more with the objective, the purpose, than the means. If the purpose is to eliminate the ability of the enemy to wage war then the question becomes whether the harm to civilians is disproportionate to the military objective and whether the means are such as will cause unnecessary suffering. Some means, such as poison gas or other chemical or biological warfare, are regarded as so hideous that they are considered to be disproportionate to any legitimate military objective. Glucksmann adds nothing but confusion to the law of war which is actually pretty well thought out in this case. I cannot see how Glucksmann's notion addresses the kidnapping of Shalit. Glucksmann is referring to whether the attackers are in uniform, not whether the victim is in uniform. If the victim is in uniform, it is more than likely within the bounds of law on the conduct of war. Whether the combatant has any legitimate claim to be making war in the first place is a different question. Israel has a lot of prisoners of war. They weren't all captured with a gun in their hands on a battlefield.

- roidubouloi

November 22, 2010 at 11:34am

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More, from Eye on the UN: "On November 15, 2010 the General Assembly’s Fourth Committee adopted nine more resolutions condemning only Israel. In the course of the feeding frenzy, here is what passed for acceptable language in the heart of the UN. Obama administration representatives made no objection to anything said during this verbal assault on the Israeli diplomat - and on the purposes and principles of the United Nations. SYRIA: “the Palestinian people, and its legitimate struggle to liberate itself…” "the rights under occupation to resist the occupier…” “the occupying power…and its apartheid practices…” “The violation by Israel of international law is…a provocative act which repeats black pages in the history of modern humanity, particularly that it reminds us of what happened at the beginning of the Second World War in Europe.” “There is no other terrorism on the surface of the planet like the terrorism committed by Israel. This entity was established on the basis of terrorism.” “Israel…threatens to use nuclear weapons.” “The leaders of Israel…are war lovers. They are teachers in provocation. They oppress others. And they send messages of apartheid and racism.” “Lebanese resistance is not terrorism.” “There is one single terrorism in the Middle East. It is the Israeli state terrorism.” LEBANON: “Hezbollah was only a resistance movement that had the honor to resist the occupation.” http://www.eyeontheun.org/

- noga1

November 22, 2010 at 11:39am

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"I cannot see how Glucksmann's notion addresses the kidnapping of Shalit. Glucksmann is referring to whether the attackers are in uniform, not whether the victim is in uniform." Glucksmann is a philosopher and thinker. He is not tethered in his ethical evaluation by narrowly defined laws that are made AFTER a catastrophe has taken place. You are of course incapable of understanding him because you are not equipped to deal with these kinds of ideas. That's what I meant with the sawdust metaphor. Which you of course couldn't understand. But it wasn't meant for you.

- noga1

November 22, 2010 at 11:48am

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And Lebanon responds that it is resisting the illegal occupation which it claims is itself a human right, the right of resistance. It is not so clear that Lebanon is wrong about the right to resist illegal occupation. It is also unclear whether the illegal settlements render the occupation as a whole illegal. This is the greatest tragedy of the settlements. They render questionable what would otherwise be a clearly, unambiguously legal occupation in the course of legitimate self-defense until such time as the Arabs agreed to cease their violence accompanied by practical measures to ensure security. Now Israel cannot accept security as the legitimate subject of peace, it insists on territory as well. You keep expecting the world to ignore the illegal colonization of the West Bank and are "shocked, shocked" that no other nation in the world shares the Israeli view. Rather than concede that Israel just may be wrong, and that that is why no other nation including the United States concurs, you attribute it all to anti-Semitism. While anti-Semitism is real and may explain much of the world's outrage, it does not change the reality that Israel is colonizing the West Bank and its inhabitants in violation of international law and norms for the conduct of war. This is appalling in and of itself, that a Jewish state should behave this way. Worse, it threatens the security of Israel by isolating it and affording a measure of legitimacy to continued warfare against it. If one were truly concerned about the safety and security of Israel, rather than messianic claims to all of biblical Israel (minus the people who live there of course), it is difficult to imagine a stupider, more dangerous policy. Hence, it is Netanyahu's policy. Stupid and dangerous is his forte.

- roidubouloi

November 22, 2010 at 11:49am

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Glucksmann's thinking on this point is ill-informed and garbled. None of us is tethered in our thought. Sometimes that leads to confusion. I understand his confusion perfectly well. On the subject of Shalit, you have simply misread Glucksmann's words and inferred something that clearly is not there. Am I surprised?

- roidubouloi

November 22, 2010 at 11:52am

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I know this is hard for you to imagine, but being a philosopher and thinker does not magically imbue one with the understanding of all subjects, including law, a subject in its own right that requires a great deal of thought and education about meaning and practice. Fine legal minds thought about these things for a couple of centuries before Glucksmann showed up. He should educate himself about what they achieved or he risks making simple mistakes. His moral fervor will not protect him.

- roidubouloi

November 22, 2010 at 11:56am

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Mon Roi, I have to run, but before I do, so I haven't had time to read the whole thread, but I seem to remember a distinction you made to MacJewHater between war crimes and human rights abuses. I was impressed and convinced by your argument. Might it apply here?

- MOLLYSIMON

November 22, 2010 at 12:20pm

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"I know this is hard for you to imagine, but being a philosopher and thinker does not magically imbue one with the understanding of all subjects" Of course not. But it is a different kind of thinking that aims to get at the truth, which is not a concern for someone of your narrow legalistic thinking. Your sneering asides to me only illustrate how limited your actual wisdom is. It's the kind that does not make rain at all. I'm not even sure "wisdom" is the correct name for it. Maybe skill. Yes, that's it, the skill of the "semi-pro politician".

- noga1

November 22, 2010 at 12:50pm

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"Roid is saying that while many of Israel’s accusers are antisemitic the country is guilty of ‘human rights’ abuses. This is odd. It’s like saying before a trial that while those whites who lynched black men were racists, the black men were guilty nonetheless." JD, I think this is a misreading. What roid is saying is more like "while the United States fought the Nazis and the Empire of Japan in WW2 and thus saved the world, at home it treated Japanese American communites, including many U.S. citizens, as enemy agents upon no evidence whatsoever, and stuck whole families in internment camps." The achievement and the crime can co-exist.

- ironyroad

November 22, 2010 at 12:53pm

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A question for roid: other than Jordan's '49 conquest, what defines the rights to which the Palestinians are entitled? If Jordan's '49 conquest is supreme, why isn't that superseded by Israel's '67 conquest? If some other principle governs the Palestinians' privileges, what determines the boundaries of what that principle entails?

- sighthnd

November 22, 2010 at 1:23pm

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ironyroad: I can't make head or tail of your analogy. What achievement is there in "while many of Israel’s accusers are antisemitic" or "those whites who lynched black men were racists"?

- noga1

November 22, 2010 at 1:48pm

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I would also like to know which human rights Israel abuses that people here find are arbitrary, irrational and intended to intimidate and oppress? roi mentioned somewhere that Israel's blockade of Gaza included chocolate entering Gaza from the Israeli side. Do Gazan kids have a natural, inalienable human right to eat chocolate that comes from Israel?

- noga1

November 22, 2010 at 1:58pm

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Noga, none. That wasn't the analogy, but rather an interpretive comment. The actual analogy was as follows: U.S. in WW2 is to Israel [as] internment of Japanese Americans is to abuses in the Occupied Territories.

- ironyroad

November 22, 2010 at 2:06pm

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In other words, a definite blot on the record, but not an indicator of universal malice.

- ironyroad

November 22, 2010 at 2:08pm

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roid: "First, the opinion of David Phillips, which circulates endlessly amongst Geneva Convention deniers is pretty much unique in the legal literature." Nice way to address Phillips' arguments, just attack the arguer's credentials and then ignore the arguments. Since legal discourse tends to ignore legislative history, I'll leave out Phillips' arguments on the history of Article 49(6). The question is, what case law points to your conclusion? Have any of the instances of population movement into occupied lands since the adoption of Article 49(6) (China in Tibet, Morocco in Western Sahara, etc.) become subjects of international adjudication? If so, what standards to those case establish? If not, wouldn't that make Article 49(6) an arbitrary system to be applied only when it suits one's tastes? Also, was the eradication of the Jewish communities in Hebron and Etzion in '49 a legitimate act? If not, is any redress permitted? If Israel's settlements in the West Bank are so offensive of international law that they must be uprooted, why doesn't the same apply to Jordan's ethnic cleansing of Hebron and Etzion?

- sighthnd

November 22, 2010 at 2:14pm

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"And chocolate." Wow roi, you want to tell me that Israel is depriving Ismail Haniye of chocolate? You are suggesting that Mahmoud al-Zahar cannot enjoy a piece of chocolate after a busy day of planning and executing the murders of Israelis? That Hamas rank and file cannot celebrate a suicide attack on an Israeli bus with a well deserved tablet of Elite Marrir? That indeed is a war crime, (worse than a war crime actually, it is a crime against humanity!) and should be punished severely and adequately!

- rmakover@swbell.net-OLD

November 22, 2010 at 2:27pm

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I'm not very familiar with the internment of Japanese Americans in WWII. Did they commit terrorist acts and sought to bring about the end of the USA?

- noga1

November 22, 2010 at 2:36pm

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No, they did nothing. Some of the younger men were even trying to join up at the recruiting office after Pearl Harbor.

- ironyroad

November 22, 2010 at 2:42pm

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"No, they did nothing." Then I suppose interning them was indeed a moral blot on American history. Still, where do you see the analogy between Palestinians and Japanese-Americans? Or between Israel's actions and the American administration's actions? What exactly is the "moral blot" you speak of when you refer to the Occupied Territories? Are Jewish settlements a moral blot? Is the fence a moral blot? Are checkpoints a moral blot? (If any moral blot exists anywhere it is within some actions taken by a very few Jewish settlers against some Palestinian individuals. But that is a moral blot that is instantly exposed and prosecuted and the perpetrators publicly shamed and denounced).

- noga1

November 22, 2010 at 3:07pm

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Hmm, so many tangles. Sophia, There were some posters who claimed that the settlements are a war crime. I finally decided to look at that question. In reading the entire Fourth Geneva Convention, not just the particular section about population transfer, it becomes clear that there are only certain actions that are subject to criminal jurisdiction under the convention and they do not include the transfer of one's own population into occupied territory. My conclusion is that this is a human rights violation but not a war crime or a crime against humanity. Apartheid, on the other hand, is a crime against humanity. This is the vice in which Israel has trapped itself. If the territories were incorporated and became sovereign Israeli territory, then the prohibition against settlement would not apply because the territories would no longer be "occupied" within the meaning of the convention. However, to do this, Israel would have to accord the Palestinians there the rights of citizens which would be the one-state solution that the Palestinians want and Israel does not, so that it can remain a Jewish state. But if it incorporated the territories and the population and did not accord them equal rights, it would more than likely be guilty of the crime of apartheid which would make Israel a pariah state and make it impossible for any of its leaders ever to leave Israel. Rather the risk either demographic suicide or a crime against humanity, Israel has chosen to maintain the status of the West Bank as occupied territory and settle it in defiance of the convention, a human rights violation. What seems to elude so many here is that it is possible to fight a just, defensive war or series of wars and still commit human rights violations. The fact that Israel has been the victim of aggression by Arab states does not in any manner free it from its obligations under the Fourth Geneva Convention. The fact that the Arab states commit the crime of aggression does not free Israel from its obligations under the Fourth Geneva Convention. The fact that Israel remains threatened does not relieve it of its obligations under the Fourth Geneva Convention. In like manner, the fact that the US was fighting a just war in WWII does not mean that it did not also violate the human rights of its citizens of Japanese origin and ancestry, particularly noteworthy since no similar action was taken against citizens of German origin and ancestry. There is no conflict between the convention and the bona fide requirements of security because the convention itself makes clear in multiple places that actions that would otherwise be prohibited are permitted for bona fide security purposes. If there were some argument that the settlements were necessary for security reasons, they would be permitted. But there isn't. They exacerbate the security problems. ____________________ noga of course is doing the sneering and then attacking me for sneering back. This is the standard course of events. Confronted with facts and arguments that she does not know how to address, she resorts to one sort of ad hominem or another. In light of past practice, this is actually quite mild. You, noga, don't even understand what the word "legalistic" means or how one would distinguish it from "law." The best definition would be the observance of the form of law without regard to its substantive ends or even in frustration of them. Nothing that has been discussed here about the law of war or human rights law is legalistic in that sense. To the contrary. An example of inappropriate legalism is the claim that Israel is not "transferring" its population into the territories because the settlers go of their own free will. This is patently absurd not least because it employs a tendentious reading of the convention to frustrate its clear purpose: to prevent conquered people from being colonized. That is legalism. So little do you understand the meaning and purpose of law that even pointing out that it is the law of war that makes terrorism illegal makes you irate. You want Israel to be bound by laws of its own devise and choosing. But it did choose to sign the Fourth Geneva Convention. It just doesn't want to live up to its responsibilities, and there is nothing to excuse this other than a fog of words and truly silly legalisms. Despite the plea somewhere up above for some analogy to what Israel has done, it is difficult to find one. For example, Tibet is treated by China as an incorporated part of its territory, not as occupied territory. I cannot think of any modern example other than the Israeli settlements in the West Bank that falls under the prohibition of the Fourth Geneva Convention. This has something at least to do with the fact that Israel is increasingly regarded as an outlaw. The point about Israel's prohibition against the import against chocolate is not, of course, the inalienable right to eat chocolate, but that this renders farcical the claim that the purpose of the Gaza blockade is to prevent Hamas from obtaining materials useful in war. The purpose of the blockade, or was until the essentially successful effort to break it, aided and abetted by the inevitable stupidity of Netanyahu, is to immiserate the populace in the hope that this will lead to the political ruin of Hamas. It is, need one say, a stupid tactic in that it is achieving, predictably, the opposite of what was intended. Rather than discrediting Hamas, it has discredited Israel. As well, there is serious question whether the economic blockade, particularly against exports, is justified by any military necessity. ______________________________ "A question for roid: other than Jordan's '49 conquest, what defines the rights to which the Palestinians are entitled? If Jordan's '49 conquest is supreme, why isn't that superseded by Israel's '67 conquest? If some other principle governs the Palestinians' privileges, what determines the boundaries of what that principle entails?" The Fourth Geneva Convention defines their rights so long as they are occupied. I happen to think that land occupied in defensive war can be legally annexed, at least if international practice and usage is the guide, as it is in matters of international law not reduced to positive, written law. If Israel incorporated the West Bank, it could settle there. But it would have to accord the inhabitants equal political rights. In this sense, the Six Day War is a superseding event. But Israel cannot have it both ways, settling the territories while denying equal rights to the inhabitants. It really is not all that complicated. Regardless of my view of prior international practice regarding annexation, of which World War II and Israel's War of Independence are both examples -- territorial change accepted as the outcome of war -- there is a decent argument that resolution 242 prohibits any unilateral change in the status of the territories. The Security Council has subsequently taken this view explicitly as quoted by me above. It is this that distinguishes the status of occupied territory after the Six Day War from the status of territory occupied, both by Israel and by Jordan, in the course of Israel's War of Independence.

- roidubouloi

November 22, 2010 at 4:19pm

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Israeli settlements in the West Bank in defiance of the Fourth Geneva Convention are indeed a moral blot on Israel and the Jewish people. Worse than that, they are also a security threat to Israel.

- roidubouloi

November 22, 2010 at 4:27pm

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And it is not the case that crimes committed by settlers against Palestinians are routinely prosecuted. Israel will not even remove settlements that are illegal even under Israeli law.

- roidubouloi

November 22, 2010 at 4:29pm

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roi can't really fully understand the difference between "moral blot" and a "legal breach" if he claims that "Israeli settlements in the West Bank in defiance of the Fourth Geneva Convention are indeed a moral blot on Israel and the Jewish people." Slavery is a moral blot. Genocide is a moral blot. Imprisoning a man for no reason except that of paranoia is a moral blot. Israeli settlements in the West Bank, even if they are in defiance of the Fourth Geneva Convention can at worst be a legal breach but not a moral blot. Killing a man, enslaving him, maligning him, framing him, slandering him, that is a moral blot. Building a house next to another man's house, even if he doesn't like you to build there, is not a moral blot. Can never be a moral blot. Not unless someone decides that morality can actually be legislated. As it is done in Sharia law.

- noga1

November 22, 2010 at 4:56pm

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Sophia did not make a comment on this thread, yet, roi. How could anyone mistake Sophia for Molly defies comprehension.

- noga1

November 22, 2010 at 5:03pm

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ironyroad “JD, I think this is a misreading. What roid is saying is more like "while the United States fought the Nazis and the Empire of Japan in WW2 and thus saved the world, at home it treated Japanese American communites, including many U.S. citizens, as enemy agents upon no evidence whatsoever, and stuck whole families in internment camps." Irony, it is you who are off base. The internment of Japanese American during WW2 may have been due to racism, Germans and Italians were not interned. However, it is neither and example of a war crime nor a human rights violation. There was at the time a genuine if erroneous fear that the Japanese Americans would in case of an invasion join the enemy. Moreover, the camps while no picnic were not comparable to concentration camps either in Europe to those run by Japan in the Pacific. http://www.historyonthenet.com/WW2/japan_internment_camps.htm “In 1943 all internees over the age of seventeen were given a loyalty test. They were asked two questions: 1. Are you willing to serve in the armed forces of the United States on combat duty wherever ordered? (Females were asked if they were willing to volunteer for the Army Nurse Corps or Women's Army Corps.) 2. Will you swear unqualified allegiance to the United States of America and faithfully defend the United States from any or all attack by foreign or domestic forces and forswear any form of allegiance or obedience to the Japanese emperor, to any other foreign government, power or organization?” Most internees in Japanese and German concentration camps could only have dreamed of merely being given a “loyalty” test and while some Slavs and Gypsies were allowed to join the German army no Jews were. Ina nay case, your analogy would make sense if you stated the obverse: that the US and much of the world incarcerated Japanese people and only later was a trial held that determined their innocence. This is what most anti Israel NGO vigilantes do vis-à-vis Israel and Jews. WE are all guilty of being something or other unless we take a loyalty oath against the Jewish State.

- jdyer

November 22, 2010 at 5:04pm

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noga1 "Sophia did not make a comment on this thread, yet, roi. How could anyone mistake Sophia for Molly defies comprehension." You are all women, aren't you hence you are all alike. And yet Roi and his ilk complain about Marty treating all Muslims as if they were terrorists (which he doesn’t). This reminds me of the comment Cynthia Ozick made about Lionel Trilling who mistook her for another female students. It seemed to her that for Trilling all female students are alike.

- jdyer

November 22, 2010 at 5:08pm

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Colonization is a moral blot, as is the train of disruption of the lives of the inhabitants necessitated by the security requirements for the settlements. It is barely distinguishable from apartheid particularly since Israel has no intention of annexing the territory and according the inhabitants equal political rights -- ever. Thus, Israelis live in the West Bank as a privileged caste, their own law, their own army, and command over the lives of the inhabitants, no different than any imperial colonists since time immemorial. If that isn't morally repulsive, I don't know what is. There was a time when slavery too was regarded as perfectly morally acceptable. Then the world changed. Colonization is no longer morally acceptable even if it once was. Moreover, the Fourth Geneva Convention is not the tax code. It is a human rights convention, drawn to codify those actions by states that offend against what we have come to regard as the innate rights of human beings. Something is not immoral because it offends against the Fourth Geneva Convention. It is prohibited by the Fourth Geneva Convention because it offends against the common morality of humanity, including what used to be the morality of Israel if we are to credit its signature to that convention. This would not have been the case 200 years earlier or even 100 years earlier. But it was the case by 1949.

- roidubouloi

November 22, 2010 at 5:12pm

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there is a decent argument that resolution 242 prohibits any unilateral change in the status of the territories SC Res. 242 does require withdrawal from territory. However, there is a dispute as to the extent of the territory from which Israel must withdraw, therefore there is just as decent an argument that Res. 242 makes no such prohibition. You also did not address the ethnic cleansing that took place in Hebron and Etzion during '49. Or are they acceptable acts because the international community saw nothing to complain about?

- sighthnd

November 22, 2010 at 5:15pm

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You see, noga, I make all sorts of mistakes. But I own up to them. There was something recently by Sophia on another thread concerning income equity and with the S's and all I inadvertently substituted one for the other. Didn't recall correctly who was writing on which thread. Why, there was even a time when I mis-recalled the timing of American supply of Phantoms to Israel, recalling it being prior to the Six Day War rather than the Yom Kippur War. If you think this sort of thing undermines the substance of what I have to say, more power to you. That is indeed about the strongest argument you are able to muster. "Oh yes, he wrote Sophia instead of MollySimon. If that doesn't prove the morality of Israeli colonization of the Palestinians, what would?"

- roidubouloi

November 22, 2010 at 5:19pm

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I did not say, sighthnd, that resolution 242 compels Israel to withdraw from all territory occupied in 1967. There has been dispute about this and I think the better argument based on the contemporaneous history of the negotiations is that it does not. There is a much stronger argument that resolution 242 prohibits unilateral changes in status not agreed to by the parties, and that is indeed how the Security Council itself has subsequently interpreted it in resolution 446. What is the relevance of ethnic cleansing to the question of West Bank settlement? If Israel incorporated the territory and accorded the inhabitants full political rights -- as it did with territory it occupied in 1949 -- there would not be a human rights issue. Apolitical and legal issue, but not a human rights issue. There was also a massacre of Arabs at Deir Yassin and many more Arabs left Israel and even Arab partition territory than did Jews in the West Bank. Not all left because they expected to come back in triumph as the myth would have it. Does that mean that they are entitled to come back now? Are you proposing a Palestinian right of return? The human rights problem is colonization, not settlement per se. But there can be no settlement that is not colonization so long as the territories are held as occupied. It really is very simple, just that the truth is very uncomfortable for Israel, both that it has done something shameful and that it has landed itself in a terrible mess by doing so. The biggest obstacle to peace right now is the inability of Netanyahu and Likud to admit that they made a colossal error, as would be obvious if there were peace. Sharon was able to, but he alone was a bigger human being than the entire Israeli right. The man made huge mistakes, but he was a patriot to the core who would not put protecting himself from criticism above the safety of the nation. Netanyahu and Likud? Feh!

- roidubouloi

November 22, 2010 at 5:29pm

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I'm sorry roi but your mistake about the IAF's equipment in the Six Day war indicates much greater ignorance and bias about Israel's history than just the plausible memory lapse you try to make it. "Oh yes, he wrote Sophia instead of MollySimon. If that doesn't prove the morality of Israeli colonization of the Palestinians, what would?" Who could argue with the rationality of this argument? A very persuasive knock-out, roi.

- noga1

November 22, 2010 at 5:37pm

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Roid, I would also point out that your insistence on the illegality of the settlements works AGAINST the interests of peace. Allow me to explain. A peaceful settlement will require the creation of a Palestinian state. One of the requirements for such a state will be control of the major Palestinian population centers and the lines of communication between them. Many of the smaller settlements constitute a threat to these lines of communication, and together cut up the territories into a set of cantons that would be difficult to unify. Israel will have to withdraw from those settlements, there is no way around that fact. However, raising the legal argument about the settlements conflates settlements which cut off Palestinian lines of communication, like Tzofim and Alfei Menashe on the highway connecting Qalqiliya with the rest of Samaria, with those which have no such effect at all, like the Etzion bloc in northwestern Judea which does not sit on the path from any two Palestinian population centers in Judea. When you do that, Israelis will just dig in their heels and assert something along the lines of what I said that about Jordan's '49 conquest not creating a right that requires no further question. However, if you put it in terms of facilitating Palestinian lines of communication, you can convince a good number of Israelis to turn on the ultra-nationalists who don't care about reaching a deal. So, what's your priority? Do you want to work constructively towards a solution of do you want to thump your chest in righteousness?

- sighthnd

November 22, 2010 at 5:38pm

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So, sighthnd, we are to understand that if there is a question upon which Israelis "will just dig in their heels" then doing other than giving them what they want is an "obstacle to peace?" Does this logic apply to the Palestinians too? Anything about which they are adamant must, for that reason alone, be conceded to them? It is my belief that Israeli insistence on the legitimization of the illegal settlements renders peace impossible. I think the best outcome Israel can expect is to have them remain in place as part of Palestine. I am, however, more than willing to be persuaded otherwise. But the mere fact that Israelis want some other outcome is not particularly persuasive. Although, that does support the claim I have made here repeatedly that Israel does not want peace, it wants peace on its own terms, no different in that regard than the Palestinians, and Israel, or rather the Likud, places a higher value on keeping the land and the settlements than it does on the peace treaty and recognition it has been claiming to long for these last 60 years.

- roidubouloi

November 22, 2010 at 5:52pm

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Suit yourself noga. If this is the best argument you can make, have at it. I find this sort of thing ridiculous in the extreme, and I rather doubt you will persuade anyone this way other than yourself and maybe jdyer. Both achievements of which you can be very proud.

- roidubouloi

November 22, 2010 at 5:55pm

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The reason, noga, I love to bring up my own mistake about the IAF equipment in the Six Day War is that I know I can rely on you to insist this is a grave error, and I get a good laugh out of it every time. Push the button, there you are!

- roidubouloi

November 22, 2010 at 5:57pm

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What is the relevance of ethnic cleansing to the question of West Bank settlement? A substantial part of the settlements, in terms of population, is on territory that was ethnically cleansed. If Israel incorporated the territory and accorded the inhabitants full political rights -- as it did with territory it occupied in 1949 -- there would not be a human rights issue. But you said Israel can't do that unilaterally, ie. without consent of the Palestinians' representative. Therefore, by your reasoning, as long as Fatah insists, nothing can be done legally to undo Jordan's ethnic cleansing from '49. Also, does incorporating and granting full political rights mean that you recognize Israel's right to settle in all parts of municipal Jerusalem? and many more Arabs left Israel and even Arab partition territory than did Jews in the West Bank. Not all left because they expected to come back in triumph as the myth would have it. Does that mean that they are entitled to come back now? Are you proposing a Palestinian right of return? I'm aware that there were expulsions of Arabs from Israel during the Independence War. I don't know the numbers. One thing that should be noted is that many of the villages where the expulsions took place were involved in facilitating attacks on the Israeli army, particularly on the convoys supplying the forces and settlers in Jerusalem. Deir Yassin was likely an exception and there may have been others. However, the ethnic cleansing from Hebron and Etzion came after the cessation of hostilities, which completely eliminates that justification.

- sighthnd

November 22, 2010 at 6:00pm

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"Suit yourself noga. If this is the best argument you can make, " I wasn't making any argument. I merely pointed out that you mistook Sophia, an elegant and thoughtful poster for Molly. You made it into an argument about colonization. frankly I couldn't be bothered to figure out the connection. "The reason, noga, I love to bring up my own mistake about the IAF equipment in the Six Day War is that I know I can rely on you to insist this is a grave error, and I get a good laugh out of it every time. Push the button, there you are!" Don't be absurd, roi. You get into a tizzy every time I mention that gaff.

- noga1

November 22, 2010 at 6:16pm

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It is my belief that Israeli insistence on the legitimization of the illegal settlements renders peace impossible. Go ahead, thump your chest in righteousness. I'd rather force the defenders of the settlements deeply embedded in Samaria to defend their position of deeply embedding settlements in Samaria than allowing them to fall back on defending Beitar Illit or the Western Wall. As for obstacles to peace, a greater one is that the Arabs have a sensitivity towards Jews having dignity of a scale like Abu Ishaq's. Does this logic apply to the Palestinians too? Anything about which they are adamant must, for that reason alone, be conceded to them? What demands are being placed on them that actually makes that relevant?

- sighthnd

November 22, 2010 at 6:17pm

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"What demands are being placed on them that actually makes that relevant?" To recognize Israel as a Jewish state. They are adamant about refusing to do so.

- noga1

November 22, 2010 at 8:34pm

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“"Islamophobia" Not Reflected in FBI Hate Crimes Statistics” http://www.investigativeproject.org/blog/2010/11/islamophobia-not-reflected-in-fbi-hate-crimes “There were nine times more anti-Jewish hate crimes reported in 2009 than those against Muslims, new statistics released by the FBI show. The 2009 hate crime report released by the FBI Monday also showed that about slightly more than one-third of the 6,604 incidents were race related. There were 2,284 anti-black incidents, the FBI reported. Despite concerns voiced by some Muslim groups that "Islamophobia" is on the rise and fueling anti-Muslim attacks, those fears were not demonstrated in the latest report. Of the 1,303 religion-related incidents, 931 were against Jews while 107 were called anti-Islamic. The 2009 statistics mirror those of earlier years, in which anti-Jewish hate crimes far outpaced those against Muslims. In 2006, for example, there were 967 anti-Jewish incidents compared to 156 anti-Muslim crimes, FBI statistics showed. There were about 8,300 hate crime victims in 2009, the FBI said, compared to 9,700 in 2008.”

- jdyer

November 22, 2010 at 10:31pm

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Islamophobia is not as chic or politically correct as antisemitism. This interesting report is not really related to the subject of this thread but still ... "Appoximately 5,000 pupils attending weekend Muslim religious schools to learn that Jews were transformed into pigs and apes, and that stoning is an accepted punishment or that those who do not believe in Islam will be condemned to “hellfire” in death. Another text for 15 year-olds teaches that thieves who break Sharia law should have their hands cut off for a first offence and their feet amputated for a subsequent crime. Teenagers are presented with diagrams showing where the cuts should be made. " http://yidwithlid.blogspot.com/2010/11/muslim-school-in-britian-teaches-how-to.html Brave new world...

- noga1

November 22, 2010 at 11:31pm

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http://yidwithlid.blogspot.com/2010/11/muslim-school-in-britian-teaches-how-to.html It's a brave new world we are looking forward to.

- noga1

November 22, 2010 at 11:32pm

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"'What demands are being placed on them that actually makes that relevant?' To recognize Israel as a Jewish state. They are adamant about refusing to do so." Israel demands that the Palestinians surrender any claimed right of return and agree to an exchange of territory that will leave major settlement blocs in Israel, though they should never have been built. If the Palestinians "dig in their heels," sighthnd, does this mean that Israel must concede on these points? Or is that indeed a meaningless standard to apply. The matter of Palestinian recognition of Israel as "a Jewish state" is typical sabotage and bad faith on the part of Benjamin Netanyahu. There is no such thing in diplomatic practice as recognition as "a Jewish state," an Islamic state, or any other flavor. States recognize other states as sovereign within a territory. Period. As Abbas has recently said, the Palestinians have recognized Israel and Israel is free to call itself whatever it wants. It is not for the Palestinians to recognize or not recognize the particular claims that Israel wants to make about its identity. It is indeed bizarre that Israel thinks that its identity depends on Arab recognition. Beyond that, Michael Oren has patiently explained on the Op-Ed page of The New York Times that what Israel means by this is that the Palestinians must surrender their claimed right of return. But the status and claims of refugees is a matter that, by mutual prior agreement going back to Oslo, has been consigned to final status talks. Thus, what Israel is actually doing is trying to upend prior agreements about the structure of talks by demanding that the Palestinians concede in advance one of their major claims, with nothing in return. Netanyahu is a slimeball, a sleezy, lying creep. Honest people will recognize him for what he is. The dishonest will continue to credit this subterfuge. Either way, no one is fooled and eventually Israel will have played out its string. The major sin of Netanyahu is not his dishonesty or his illicit designs. It is his overwhelming stupidity. _____________________ Up above, we see the inevitable evolution of these threads as the discussion grows too uncomfortable for the self-declared friends of Israel. Suddenly, we are no longer discussing the question of whether Israel is abusing the human rights of Palestinians. Rather, we are discussing the ravings of anti-Semites. Inevitably, noga and company will try to draw attention away from the appalling behavior of the State of Israel to the appalling behavior of anti-Semites. Israel's settlements and human rights abuses are indefensible. Thus, sooner or later we will be asked to consider instead various acts of anti-Semitism. The tactic is so crude, so transparent, so morally debased that there is nothing more to say. The theory of Israeli hawks is that, as long as Israel's conduct does not live down to the level of Yemen, or Saudi Arabia, or some other country not yet out of the dark ages, we should be sanguine. Yet Israel expects to be accepted as a western democracy. It is really quite disgusting.

- roidubouloi

November 22, 2010 at 11:46pm

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Roid: "Up above, we see the inevitable evolution of these threads as the discussion grows too uncomfortable for the self-declared friends of Israel. Suddenly, we are no longer discussing the question of whether Israel is abusing the human rights of Palestinians. Rather, we are discussing the ravings of anti-Semites. Inevitably, noga and company will try to draw attention away from the appalling behavior of the State of Israel to the appalling behavior of anti-Semites. Israel's settlements and human rights abuses are indefensible...." What a stupid rant. I am not an extremist and I keep saying that Israel needs to give up the settlements on the West Bank but hold on to the territory till the PA agrees to negotiate in good faith. In other words, the fact that there is need for peace in the Middle East doesn't mean that we should tolerate Muslim antisemitism here. I would guess that once Roid is attacked by some Muslim for being a Jew he will wake up to the disgusting reality of Jew hatred which is being legitimated and spread by Muslims all over the West. We are after all speaking of human rights.

- jdyer

November 23, 2010 at 1:07am

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"In other words, the fact that there is need for peace in the Middle East doesn't mean that we should tolerate Muslim antisemitism here." Of course not. And no one, certainly not me, suggested that we should. But anti-Semitism does not justify human rights abuses by Israel and it is appalling that it is routinely trotted out by the self-appointed friends of Israel as if it did. Immediately above, we see the standard diversionary tactic.

- roidubouloi

November 23, 2010 at 7:39am

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Roid, you still never mentioned a single case of case law aside from Israel regarding Article 49(6), the part dealing with transfer of population to occupied territory. Without other case law, wouldn't using that provision just be using law as a tool with which to disparage a disfavored party. If the Palestinians "dig in their heels," Could you at least honestly represent my arguments? Did I anywhere say that Israelis' digging in their heels would justify their not conceding? The point is a practical one that if you conflate demands that one party would see as reasonable with ones that that party would not, that you might wind up sacrificing the attainable concession for the principle that you should have the right to the unattainable one. The matter of Palestinian recognition of Israel as "a Jewish state" is typical sabotage and bad faith on the part of Benjamin Netanyahu. Beyond that, Michael Oren has patiently explained on the Op-Ed page of The New York Times that what Israel means by this is that the Palestinians must surrender their claimed right of return. As for the right of return, it gets to the very reason that so many so that a two-state solution is necessary and that Israel can't just annex all the territory and grant everyone equal privileges--demographically the area would eventually cease to be majority Jewish. With the right of return, the result is that it would be impossible to draw any boundaries around which the majority population would be Jewish. That is most likely the point, a Palestinian demand for the dissolution of Israel by means of demographics. This, and other aspects of Palestinian actions, is why Israel raises the demand for recognition as a Jewish state. For instance, you have broadcast on PA TV, "Haifa is a well-known Palestinian port." PA TV regularly teaches that history connecting Jews to the land of Israel is a fabrication, that there was no Temple on the Temple Mount etc. Recognition as any type of state is not part of diplomatic practice because no one except Israel's enemies refuses to recognize its interlocutors as requested.

- sighthnd

November 23, 2010 at 9:20am

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If the Palestinians "dig in their heels," . . . I don't think I have misrepresented your argument, sighthnd. Your point, as I understand it, is that Israel is willing to abandon its outlying settlements, and should, if it is given the settlement blocs and that Israelis will "dig in their heels" (your words) if they are not given the settlement blocs. Hence, peace requires that Israel get the settlement blocs. I don't see that as much of an argument. It implies that, if the Palestinians dig in their heels about not ceding any of the territory east of the Green Line, all or virtually all of which is part of the Arab section of the partition, that Israel must then concede. In fact, despite the declaration by various people that an offer of land exchanges is a wonderful deal that the Palestinians should accept, must accept, will accept, they have several times rejected it. Thus, they have dug in their heels which means, by your reasoning, that their position should prevail for that reason alone. If I were in their shoes, I would do exactly the same thing. I would not in essence concede to Israel all that it wants (including the abandonment of the claimed right of return) in exchange for the independence to which I am entitled in any case. It is a fool's deal. As for the Palestinian right of return, I don't think for a moment that a final settlement is going to bring significant numbers of Palestinian refugees and descendants back to Israel. And I don't think the Palestinians believe this either. Quite obviously, Israel is not going to agree to its own demographic destruction. That changes nothing about the bad faith of Netanyahu's insistence that Israel be recognized, today, as a "Jewish state" particularly as Oren explains that this means abandoning the right of return. This is a matter that is supposed to be settled as part of the final bargain. That much has already been agreed upon. Demanding that the Arabs concede one of their major claims in advance of the final settlement is sabotage and bad faith, typical of that scummy liar Netanyahu, that undermines the structure of bargaining as has been agreed to. Exactly why should the Arabs concede in advance of a deal that which Israel most covets? In exchange for nothing? Despite all the pissing and moaning about how much Israel is willing to concede, it is basically willing to concede almost nothing. It wants the major settlements, it wants the abandonment of the right of return. What does it offer? Some land the Palestinians don't want. This is not a plausible deal, it has been rejected three times, as one should rationally expect, and yet the Israeli public has been told time and time again how generous Israel is willing to be for peace. This is hogwash. Worse, now comes the demand that the Palestinians concede their single major claim in advance of the negotiations. Now, if you believe, as I do, that people's actions are a better guide to what they intend than what they claim about what they intend, it seems perfectly obvious that the Netanyahu government has no interest in making peace. Its objective is to hold onto the settlements and covertly expand them indefinitely. As I think Chait pointed out here, settlements before peace has been the entire arc of Netanyahu's career. It would be foolish to expect otherwise from him. Leaving aside any issues about the man's honesty, this is a strategic disaster for Israel because there is no end game in which Israel wins. It cannot absorb the West Bank for demographic reasons. The chance that it will be able to keep the settlements as little islands within a sovereign Palestine is, in my opinion, nil. So where does this go? In the end, the settlements will either be abandoned or become part of Palestine, a Jewish minority in a Moslem Arab Palestine. If Netanyahu would agree to that today, then he at least has the opportunity to bargain for sound security measures and some kind of unified Jerusalem and presence in Hebron. If he wastes the opportunity to agree to what is in any case inevitable, sooner or later the matter will be taken out of Israel's hands. Something will be imposed by an impatient world that believes not a word Israel says (and why should it?) that is almost sure to be less advantageous for Israel than what it could obtain by negotiations. The man is a fool, a nasty, lying fool who jeopardizes the security of the State of Israel. ____________________ "Recognition as any type of state is not part of diplomatic practice because no one except Israel's enemies refuses to recognize its interlocutors as requested." This makes no sense at all. There simply is no such thing in diplomatic practice as "recognition as a this state, that state the other state." The Palestinians have recognized Israel and Abbas, far from repudiating it, affirms it at every opportunity. That by itself has not ended hostilities. But, if I were being colonized, I would be hostile too, as would you, as would anyone. The Palestinians engage in verbal incitement because that is about all they can do, other than the suicide bombers who are withal a tiny fraction of the population. Israel engages in extremely provocative, and illegal, behavior on the ground. Not just wild claims on TV, but actual, oppressive occupation that is far more intrusive and burdensome by virtue of the illegal settlements than it would be if it were limited, as international law requires, to what is necessary for Israeli security. And Israelis wonder why the Palestinians are not pacified. "Here. Let me just keep punching you in the face and doing what I can to humiliate you while I demand that you cease to resent me for it and to express that resentment by those limited means available to you." Very generous indeed.

- roidubouloi

November 23, 2010 at 10:43am

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Sorry for the tardy response, but I had a long day yesterday. I would like to address several claims of roidubouloi that are, I believe, mistaken. roidubouloi asks, “If Israel did not take these territories from another sovereign, then from whom? It can only be the UN mandate, and that cannot be defeased by war, defensive or otherwise.” The West Bank is, indeed, an unallocated portions of the British Mandate for Palestine. The Mandate provides for the right of Jewish settlement throughout Palestine (with the qualification of Article 25, which allows the Mandatory, with the consent of the Council of the League, to "withhold" this right in the part of Palestine east of the Jordan River). Article 6 of the Mandate encourages "close settlement by Jews on the land, including State lands not required for public use." Israel and Jordan are now independent states, and have been recognized as such by the international community; accordingly, the provisions of the Mandate no longer apply to their territories. But until the territory of the West Bank has been allocated, either through the creation of a new state (or states) or through its incorporation into an existing state (or states), the rights created by the Mandate remain in force. Article 80 of the UN Charter says: “nothing in the [U.N.] Charter shall be construed . . . to alter in any manner the rights whatsoever of any states or peoples or the terms of existing international instruments” Presumably, this would include the right of Jews to settle in the whole of the Mandated territory. The claim that a UN mandate “cannot be defeased by war” etc. would be relevant to the question of annexation, not to the exercise of pre-existing rights. roidubouloi says: “There is not much difference in my opinion between Israel's claim to the territory it acquired in the War of Independence and East Jerusalem. . . . If Israel had limited itself to settling in areas formally annexed, even if other states do not consider the annexation itself to be legal, there would not be a human rights problem. “ I agree that there is a distinct moral and political difference between settlements in territory formally annexed and territory simply under occupation. But the same bodies that roidubouloi points to in support of his view that settlements are illegal take a dim view of the construction of Jewish homes in East Jerusalem and the Golan as well as the West Bank. He cites the 1979 UN Security Council Resolution 446 in support of the view that the settlements are illegal. But 446 concerns the issue of Israeli settlements in the Arab territories occupied by Israel since 1967, including Jerusalem and the Golan. Evidently, he thinks these bodies are authoritative just when he agrees with their decisions.

- JPKatz

November 23, 2010 at 10:53am

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The argument you make, JPKatz, is unsupportable. First, mandatory land and "unallocated land" are not the same thing. The former is under the sovereignty of the League of Nations or its successor the United Nations. The later has no sovereign. There is no plausible argument whatsoever that any part of Mandatory Palestine is now or has ever been "unallocated." Moreover, it was specifically "allocated" by the United Nations, the sovereign as the Mandatory Power (the UK) is but the agent of the UN, to the Arabs. Therefore, whatever might be said about the right of Jews to settle in this land prior to the partition, it is quite clear that that right has been terminated by the legal sovereign. You cannot cite mandatory law as authority for the Jews to settle and just pluck out the bits of mandatory law that suit your purpose while blithely ignoring its single most important aspect, the partition. If the land was Jordanian prior to 1967, and it was in practice recognized to be, then it is occupied. If it was not Jordanian prior to 1967, it was not unallocated but remained subject to UN jurisdiction and sovereignty, regardless of how the UN exercised its authority whether or not occupied or purportedly annexed. In an analogous manner, you cannot obtain adverse possession of land against the sovereign, a government or local government, as you can against a private person. Had Israel formerly annexed this land, I am quite clear that that would not necessarily be a legal act. It would, however, have changed the status in such a manner that the violation of international law would not have been a violation of the Fourth Geneva Convention and human rights law. There is a difference. I cited resolution 446 for the expression of the views of the Security Council, which it surely is. I didn't express my own opinion about everything in it. But, since you asked, I think that the most sensible interpretation of resolution 242 is that it bars any unilateral changes in status. The rest of the world, including the US, agrees with this interpretation. Hence, the annexation of east Jerusalem is illegal and one can then say that Israeli construction there is illegal. But, as explained in excruciating detail above, this does not mean that that construction is a human rights violation or a violation of the Fourth Geneva Convention. I don't think it is because I don't think the convention applies any longer to east Jerusalem. It is in large part because of the legal jeopardy of Jerusalem that I think Netanyahu is supremely stupid (god I wish I could think up a word strong enough to convey my contempt for Netanyahu's intellect) for avoiding a settlement. This is not a matter of agreeing with authoritative bodies only when they agree with me. And even authoritative legal opinions, such as those of the US Supreme Court, may be criticized. I happen to think that everything Antonin Scalia writes is tendentious, politicized garbage that bears no relationship to legal reasoning as I understand it. But I recognize that the US Supreme Court is the final arbiter of matters of US law.

- roidubouloi

November 23, 2010 at 11:29am

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ironyroad "JD, I think this is a misreading. What roid is saying is more like "while the United States fought the Nazis and the Empire of Japan in WW2 and thus saved the world, at home it treated Japanese American communites, including many U.S. citizens, as enemy agents upon no evidence whatsoever, and stuck whole families in internment camps." The achievement and the crime can co-exist." Given the behavior and ethic of the time the Japanese Americans were not severely treated as I showed above. Moreover we were at war and had no way of knowing how it would turnout. While we were morally wrong to intern the Japanese on our soil, I don't believe that we were guilty of war crimes here. Now, Israeli society is daily attacked by Palestinian terroirsts who kill innocent civilians. It's not against any law that I know to defend oneself from attack.

- jdyer

November 23, 2010 at 11:29am

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Settling mommies and their eight or ten babies in the West Bank is not self defense.

- roidubouloi

November 23, 2010 at 11:33am

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The discussion has since left our exchange earlier behind JD, but I in no way implied that we had committed a war crime in interning Japanese Americans. "Blot on the record" was my strongest formulation. It was an unjust act informed by little more than racism in which Japanese immigrants were seen as more untrustworthy than immigrants who came from the European fascist countries we were at war with.

- ironyroad

November 23, 2010 at 12:37pm

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"...in which Japanese immigrants were seen as more untrustworthy than immigrants who came from the European fascist countries we were at war with." US's European allies were no less paranoid during WWII. In the UK, Brits of German descent, as well as recently arrived Jewish refugees from Germany, were interned, some of whom in camps located as far as Australia.

- noga1

November 23, 2010 at 12:57pm

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I know.

- ironyroad

November 23, 2010 at 1:23pm

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I didn't understand you, irony, to be saying that internment was a war crime. And I didn't say that anti-Semitism should be condoned or ignored either. What was most noteworthy was the disparate treatment of those of Japanese descent and those of German or Italian descent. But since Germans are the largest ethnic block on the US, Germans and Italians were probably half the US population at the time if not more. Interning them would have been a bit of a problem. Despite the obvious impossibility of treating them in this manner (who would have been left to fight the war? Eisenhower would have been in an internment camp), one wonders exactly why the Japanese Americans were pursued in this manner. I think it is too simple to chalk it up to racism, although there was plenty of that. I think rather that it was because Germans and Italians are part of the same European culture as we and hence seem familiar. Asian culture does not seem familiar, certainly not then, hence it was easy to see the Japanese Americans as aliens.

- roidubouloi

November 23, 2010 at 1:29pm

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roidubouloi "Settling mommies and their eight or ten babies in the West Bank is not self defense." Killing Israeli mothers and babies is murder, not resistance.

- jdyer

November 23, 2010 at 2:54pm

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If you consider that "Settling mommies and their eight or ten babies in the West Bank" is just a pretext of "self defense", then their murder is just a form of "resistance" (an ethical theory already much favoured by the Indecent Left, not to mention Arab-Muslims for whom killing Jews is a pleasurable way of serving God anyway) and will be justified with much teeth gnashing and hand wringing from the saintly roi, blaming it on Netanyahu's absurd demand that the right of these people to their homeland be recognized before any irreversible concessions are made.

- noga1

November 23, 2010 at 3:49pm

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The usual non-sequiturs and confusion, moral and logical, from the self-appointed friends of Israel: Murdering Israeli mommies and babies is murder, not resistance. Ergo, settling them in the West Bank is not colonization and a violation of the human rights law that Israel, in common with the rest of the world, has agreed to uphold. That makes a great deal of sense. The barely concealed implication, of course, is that I am supposed to hold the view that, because Israel abuses the human rights of Palestinians in gross disregard of its treaty obligations, it is therefore legitimate to murder mommies and babies. Of course, I hold no such view and have never expressed anything that might be construed that way even by some of the morally debased people who post here. But let the record show that far more Arab mommies and babies have been killed by the IDF in the last decade than Israeli mommies and babies have been killed by Arabs. Regardless of its right of self-defense, Israel bears moral responsibility for perpetuating the war. Its claims to be the party that wants peace are hollow. It wants land. It wants to colonize. It wants to claim the fruits of its illegal settlement far more than it wants peace. It wants to perpetuate a state without peace indefinitely if that is what it takes to maintain its grip on the West Bank settlements. The Palestinians have recognized the State of Israel. They have not conceded their claimed right of return. That was the deal negotiated by Yitzhak Rabin as Prime Minister of the State of Israel. The matter of the Palestinian right of return was to be resolved as part of a final settlement. Netanyahu, also the elected leader of the people of Israel, now repudiates that agreement. Nothing he does or says is trustworthy, least of all his professions to want peace. His demand IS absurd in the context of Israel's prior agreements and, other than a bunch of sneering and irrelevancies, his defenders have absolutely nothing to offer, nothing that is that could possibly persuade an honest, moral, rational person that Netanyahu and his demands are meant to do anything other than perpetuate war. Israel bears the responsibility for Netanyahu as every nation must bear the responsibility for its leaders, at the very least those who approve of his conduct. The false claim is made above that the Palestinians must do this that or the other before "irreversible concessions" are made. The shoe is on the other foot. It is Netanyahu who demands concession of the Palestinians major claim in advance of final settlement. Lies can only be defended with more lies. They flow freely here at the Spine. Whatever lie is necessary to cover the previous lie will be provided.

- roidubouloi

November 23, 2010 at 5:06pm

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http://www.youtube.com/watch?v=wIh0uIauvsc&feature=player_embedded

- noga1

November 23, 2010 at 7:49pm

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Irony, Germans (I have no idea whether they were naturalized or not) were sent to internment camps. I recently read one of the internees, a child at the time, talk of his time there. I wish I could find that original article.

- MOLLYSIMON

November 23, 2010 at 8:45pm

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Look! Noga has found more cows for everyone to admire.

- roidubouloi

November 23, 2010 at 8:51pm

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A dear friend of mine has a daughter who joined her school's debate team. My friend volunteered to be a judge at the last competition. She explained that the team who is most convincing is the team who wins. It doesn't have to be based in truth. Unfortunately, there are too many "defenders" of Israel that don't realize that not living in the "fact-based" world is not a game, a competition between a few armchair warriors, but rather a prescription for disaster. What I like so much about Roi's arguments is that he often relies on primary resources; quotes from Israeli generals, former prime minsters, international treaties, the Hague--as well as never misrepresenting the truth of the historical record. This sort of fact-based reasoning is always the safer course. I admire him for avoiding for the usual hackmeister partisan pundits and so called "philosphers."

- MOLLYSIMON

November 23, 2010 at 9:01pm

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Actually, roi, I intended to show who your best admirers would be. As usual you miss the point. The thread is about exposing the perfidy of HRW which you managed to distract from by pointing to some of those cows over there. (The settlements that are a moral blot on Israel's record...)

- noga1

November 23, 2010 at 10:23pm

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Oh, right . . . Spine threads never go off topic. Good thing you're here to enforce the rules.

- MOLLYSIMON

November 23, 2010 at 10:48pm

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You actually believe you have a point to make, noga? Or that you would know how to make it if you did? After all this time? Incredible. But, you are soooooooooo right in this case. No point in discussing the substance of what is in dispute at HRW. That there is a dispute there about Israel is much more important and interesting. And it goes without saying that Peretz never intended to imply anything about the substance of that dispute of which anyone should take notice. Very perceptive of you.

- roidubouloi

November 23, 2010 at 11:21pm

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I'm contented with your reaction which is always the same, and therefore always predictable and conveniently triggable, roi. You make a lot of noise, the kind of noise that one coin in an empty glass makes when slightly shaken. Or, if you like another kind of metaphor, you are like a very low quality light bulb, generating 1% of light and 99% of wasted heat that means, totally wasted energy. But then, as a semi-professional politician you must be used to generating a lot of noise and heat but no substance. If you were even minimally successful you would not be here, trying so desperately to peddle your merchandise to people who are not interested in low-quality light bulbs or are interested only in low-quality light bulbs.

- noga1

November 24, 2010 at 6:47am

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Sorry. I meant: "conveniently triggerable" of course.

- noga1

November 24, 2010 at 6:49am

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Still trying your armchair psychologist angle, noga? The very reason your efforts at insult are always a failure is that you are so lacking in psychological insight. You just flail about. Noise? Lightbulbs? Pfft. We do see, however, that, sooner or later, your OCD gets ahold of you and, try as you might, you always return to personal insult. Have a nice day! :-)

- roidubouloi

November 24, 2010 at 7:27am

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What psychology are you talking about, roi? Aren't you revealing your own very discernible anxieties by calling psychology what are clearly metaphors borrowed from the language of Physics, to describe your sawdust effect on discussions? Sawdust: "The main by-product of sawmills, unless reprocessed into particleboard, burned in a sawdust burner or used to make heat for other milling operations, sawdust may collect in piles and add harmful leachates into local water systems, creating an environmental hazard. Questions about the science behind the determination of sawdust being an environmental hazard remain for sawmill operators (though this is mainly with finer particles), who compare wood residuals to dead trees in a forest." (edited from wiki)

- noga1

November 24, 2010 at 7:51am

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Furthermore, roi, you are quite mistaken that I am trying to insult you. I don't do insults. I speak as I see. I leave the art of vulgarity, venom and demonization to your ilk, the "semi professional politician" of the species, I presume.

- noga1

November 24, 2010 at 7:55am

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On the wisdom of reliance on "International Law": Recent news stories illustrate some of the difficulties in the development of international law. On the one hand: "The war crimes trial of the Congolese politician Jean-Pierre Bemba opened on Monday at the International Criminal Court in The Hague, with prosecutors building the case that a militia under his command conducted a devastating campaign of rape, murder and torture in the Central African Republic in 2002 and 2003. Geoffrey Robertson discusses the significance of the trial here. On the other hand, there's been this infamous decision at the UN: The United Nations General Assembly has voted to remove sexual orientation from a key resolution that calls on member countries to investigate extra-judicial, summary or arbitrary executions that are motivated by prejudice." http://normblog.typepad.com/normblog/2010/11/one-step-forward-one-step-back.html Note please how Prof. Geras refers to the status of "Internation Law": "the development of international law". While roi here would have us believe (because he does) that the meaning and spirit of International Laws are carved in stone, we find from a genuine scholar (not some semi-professional politician) that it is a work in progress. To me it suggests that roi would LIKE International Law to be what he says it is, a kind of legal iron-cast bed not given to much liberality of interpretation, in the service of justice.

- noga1

November 24, 2010 at 8:33am

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"I don't do insults. I speak as I see." And you have a fabulous sense of humor! I suppose in some perverse way I should be flattered. I talk about politics, strategy, international relations, the future of Israel and you talk about . . . me! I don't find you nearly so interesting, noga. Indeed, you are boring and your thoughts (being nice here) are banal in the extreme. But don't think of that as an insult. I simply speak as I see. If you reflect on how you came to be this way, there may be hope of improvement. A good start would be to stop talking when you really don't have anything relevant to say, which, if you do stop to think about it, is most of the time. Be good! :-)

- roidubouloi

November 24, 2010 at 9:13am

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"While roi here would have us believe (because he does) that the meaning and spirit of International Laws are carved in stone, we find from a genuine scholar (not some semi-professional politician) that it is a work in progress." All law is a work in progress. And, as I have explained several times, in international law there is a difference between positive law and customary law. The former is written down and agreed to in the form of treaties, conventions, executive agreements. The latter evolves with international practice. The purpose of writing down law and agreeing to it is so that the meaning will be considerably less fluid and the application more certain. The Fourth Geneva Convention is one of the most important instances of positive international law. It has been agreed to by almost every nation on earth, including Israel. Positive law takes precedence over customary law as one might expect, otherwise it would serve little purpose. And because it takes precedence, it generally expresses only those principles about which there is broad agreement and that are considered of the highest importance. This of course does not preclude interpretive difficulties in the future as is the case with all law. In the matter of Israeli settlements in the West Bank, there is no body of legal opinion that supports the Israeli view. There is no other nation that supports the Israeli view. All authoritative legal bodies reject the Israeli view. While it is the nature of law that it can never be interpreted with absolute certainty, it is about as close to certain as it gets that Israel is in violation of the Fourth Geneva Convention. This does not require that the law be an "iron bed." To the contrary, to view the settlements other than as a violation would be to render the entire notion of law meaningless. Bluntly, if the settlements are not plainly prohibited and thus a violation of the Fourth Geneva Convention then there is no possibility of anything being a violation. I cannot imagine what possible "liberality of interpretation in the service of justice" could construe the Fourth Geneva Convention so as to condone the colonization of the Palestinians by Israelis. This is a concept of justice that is unrecognizable.

- roidubouloi

November 24, 2010 at 9:28am

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"And you have a fabulous sense of humor!" A colour blind person cannot criticize shades of red, roi. And for someone whose sense of humor tastes like sawdust, it seems very presumptuous to opine about another's sense of humour.

- noga1

November 24, 2010 at 10:00am

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"I cannot imagine what possible "liberality of interpretation in the service of justice" could construe the Fourth Geneva Convention so as to condone the colonization of the Palestinians by Israelis." No, you couldn't. Because you are stuck inside an Arab false narrative and cringe to Arab power in the UN. Cringing is what you do best. http://video.google.com/videoplay?docid=-3768009958921103114# Oh, to be stuck inside a mobile...

- noga1

November 24, 2010 at 10:10am

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One need not know anything whatsoever about the "Arab narrative," false or not, or about the functioning of the UN to understand that the Fourth Geneva Convention prohibits colonization by an Occupying Power. They are both quite irrelevant to the subject at hand, as would be cringing. What one requires is some knowledge of history, a rudimentary understanding of law and how to read legal documents, and a sense of morality, none of which you possess. By "cringing" I understand you to mean failing to behave like a proper fascist by condoning or rationalizing, by whatever bizarre, convoluted, corrupt lies are necessary, morally repellent behavior by one's own country or people. You should read the opinion of the Israeli justice in the separation barrier case before the ICJ. There's a real cringer for you. If you need help with any of the vocabulary or legal reasoning, just holler.

- roidubouloi

November 24, 2010 at 11:21am

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Roid, if you have time, could you please give me a basic read on what the Israeli Justice's opinion of the separation wall? I'm curious.

- MOLLYSIMON

November 24, 2010 at 11:54am

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Molly, I promise to do this at the first opportunity. But right now I have to pack and get out of town and I need to re-read the whole opinion, including the separate opinion of the Israeli judge. Happy Thanksgiving to you and yours.

- roidubouloi

November 24, 2010 at 11:59am

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Happy thanksgiving Roi.

- MOLLYSIMON

November 24, 2010 at 12:38pm

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"like a proper fascist" Really? Those who are in no rush to destroy Jewish settlements in Judea and Samaria exhibit fascist behaviour?

- noga1

November 24, 2010 at 2:03pm

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Just about every claim that roidubouloi makes about the interpretation of the Fourth Geneva Convention seems dubious to me. First, there is the question of whether the Fourth Geneva Convention even applies to Israel’s control of the West Bank. A natural reading of Art 2 is that its terms apply only "between two or more of the High Contracting Parties." “In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. “Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.” Though Jordan exercised de facto sovereignty over the West Bank between 1948 and 1967, it was not recognized as the de jure sovereign power. It certainly had no more claim to the West Bank than Israel has now. And in any case, Jordan has now relinquished all claims to the West Bank. So the territory in question is not the territory of another High Contracting Party. To take the view that under these circumstances, the Convention protects the collective rights of the inhabitants of the West Bank, one has to read Art 2 as saying that the Convention applies to all conflicts, not just between High Contracting Parties. Perhaps it would be a good thing if the Convention did apply in that manner. But it seems to me an implausible interpretation of the foregoing text to suppose that it does say this; indeed it seems implausible in the extreme to suppose that the contracting parties would have entered into such an agreement. Israel has indeed committed itself to following the Fourth Geneva Convention regarding the West Bank (and contends that it is doing so). But this has no bearing, legally speaking, on whether Israel is legally obliged to obey the Fourth Geneva Convention. Nor does the text of Art 49 support roidubouloi’s interpretation. It says: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." What exactly does that mean? Why does it say "deport or transfer" instead of just "transfer?" And what exactly does it mean for an Occupying Power to "transfer parts of its own civilian population in the territory it occupies?" Does this mean that no citizen of the Occupying Power, under any circumstances, is permitted to move to the territory? And what does "parts of its own civilian population" mean? To my mind, the presence of the word “parts” suggests that something more is intended than simply "members of its own civilian population." A natural interpretation would take it as saying that the Occupying Power is not allowed to transfer (whatever exactly that means) a kind of cohesive subpopulation of its larger population. So, e.g., Israel would not be allowed to transfer Arab citizens of Israel into the West Bank. If that’s correct, it has little to do with colonization It seems to me that most of the opinions about whether the Fourth Geneva Convention in general, or Art 49 in particular, does, or does not, apply are based on political rather than legal considerations. The expressed policy of the US government, e.g., seems to vary according to the occupant of the White House. The Carter Administration was adamant that the settlements were illegal. The Reagan Administration reversed this opinion, contending that they are not illegal but they are not conducive to peace. And, contrary to what roidubouloi claims (viz., that no government supports Israel’s view that the settlements are legal) this seems to have been American policy since Reagan.

- JPKatz

November 25, 2010 at 12:07pm

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Let's call this a good faith effort by JPKatz, but still one that falls far short. As to the application of the Fourth Geneva Convention and the status of the West Bank as territory that is subject to "belligerent occupation" and not a part of corporate Israel, the Supreme Court of Israel disagrees with Mr. Katz: From wikipedia, "In two cases decided shortly after independence, in the Shimshon and Stampfer cases, the Supreme Court of Israel held that the fundamental rules of international law accepted as binding by all "civilized" nations were incorporated in the domestic legal system of Israel. The Nuremberg Military Tribunal determined that the articles annexed to the Hague IV Convention of 1907 were customary law that had been recognized by all civilized nations.[43] In the past, the Supreme Court has argued that the Geneva Convention insofar it is not supported by domestic legislation "does not bind this Court, its enforcement being a matter for the states which are parties to the Convention". They ruled that "Conventional international law does not become part of Israeli law through automatic incorporation, but only if it is adopted or combined with Israeli law by enactment of primary or subsidiary legislation from which it derives its force". However, in the same decision the Court ruled that the Fourth Hague Convention rules governing belligerent occupation did apply, since those were recognized as customary international law.[44] The Israeli High Court of Justice determined in the 1979 Elon Moreh case that the area in question was under occupation and that accordingly only the military commander of the area may requisition land according to Article 52 of the Regulations annexed to the Hague IV Convention. Military necessity had been an after-thought in planning portions of the Elon Moreh settlement. That situation did not fulfill the precise strictures laid down in the articles of the Hague Convention, so the Court ruled the requisition order had been invalid and illegal.[45] In recent decades, the government of Israel has argued before the Supreme Court of Israel that its authority in the territories is based on the international law of "belligerent occupation", in particular the Hague Conventions. The court has confirmed this interpretation many times, for example in its 2004 and 2005 rulings on the separation fence.[46][47] In its June 2005 ruling upholding the constitutionality of the Gaza disengagement, the Court determined that "Judea and Samaria" [West Bank] and the Gaza area are lands seized during warfare, and are not part of Israel: The Judea and Samaria areas are held by the State of Israel in belligerent occupation. The long arm of the state in the area is the military commander. He is not the sovereign in the territory held in belligerent occupation (see The Beit Sourik Case, at p. 832). His power is granted him by public international law regarding belligerent occupation. The legal meaning of this view is twofold: first, Israeli law does not apply in these areas. They have not been "annexed" to Israel. Second, the legal regime which applies in these areas is determined by public international law regarding belligerent occupation (see HCJ 1661/05 The Gaza Coast Regional Council v. The Knesset et al. (yet unpublished, paragraph 3 of the opinion of the Court; hereinafter – The Gaza Coast Regional Council Case). In the center of this public international law stand the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations). These regulations are a reflection of customary international law. The law of belligerent occupation is also laid out in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention)." Does Mr. Katz want to argue that the opinion of the Supreme Court of Israel is based on political rather than legal considerations? I should think that the Court would be rather surprised. ____________________ Although Mr. Katz correctly quotes the jurisdictional provision of the Fourth Geneva Convention correctly, he fails to note that it is stated in the alternative. It applies to cases of armed conflict between High Contracting Parties and ALSO to occupation of land of a High Contracting Party. These are alternative bases of jurisdiction. Thus, even if the sovereignty were disputed, the occupation is still a belligerent occupation arising out of armed conflict between High Contracting Parties, Israel and Jordan. This is also the view taken by the ICJ in the separation barrier case. To construe the provision as Mr. Katz does would lead precisely to an outcome plainly the opposite of what is intended - that if the occupation were under claim of right, it would not be subject to the convention. This is the very argument advanced by Mr. Katz and one that is not supported by the language of the convention. Rather than split legal hairs, the legalistic approach that noga so deplores, the Supreme Court of Israel forthrightly recognizes the territory as subject to belligerent occupation. The court also observes exactly the distinction I have made here several times, between occupied territory and annexed territory. If it is annexed, as with east Jerusalem, it is no longer occupied, no longer subject to military jurisdiction, and becomes a part of the municipality. The annexation may be disputed, but it is not occupation. The annexation by Jordan thus stands in exactly the same position as the annexations by Israel and suffices to trigger the jurisdictional provision as to territory of a High Contracting Party. According to Katz's theory, an invasion of east Jerusalem, or any other invasion or war upon Israel to recover territory not legally annexed would itself by legal. This is surely not the case. As to the meaning of transfers, first Article 49 says this: "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive." Then it says, "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." Note first of all that the second clause does not say "forcibly transfer" as does the first. So much for the argument that a violation only occurs in the event of a forcible transfer. When the drafters meant forcible they said so. The normal rules of construction are that when it omits the qualifier it is intentional. Katz's construction that the convention does not apply to colonization at all but only to transfer of some corporately identifiable portion of the population is simply fanciful. It finds no support in the negotiating history of the convention. No distinction like this was ever discussed and it is almost impossible to imagine a context in which it would have been. As far as I know, there is not even a suggestion in the literature of an interpretation such as that advanced by Katz. He just made it up. Regarding the US legal position, from the Jerusalem Center for Public Affairs, the legal view abandoned by Reagan was not just that of the Carter administration: "In his June 4, 2009, Cairo speech, President Barack Obama continued to focus U.S. policy on Israel's construction practices in the West Bank, which he forcefully criticized: 'The United States does not accept the legitimacy of continued Israeli settlements. This construction violates previous agreements and undermines efforts to achieve peace. It is time for these settlements to stop.'" If Reagan could reverse the legal view of the Carter administration, the Obama administration can reverse that of Reagan. From Foundation for Middle East Peace website: "The United States considers that the part of Jerusalem that came under the control of Israel in the June war, like other areas occupied by Israel, is governing the rights and obligations of an occupying Power. Among the provisions of international law which bind Israel, as they would bind any occupier, are the provisions that the occupier has no right to make changes in laws or in administration other than those which are temporarily necessitated by his security interests, and that an occupier may not confiscate or destroy private property. The pattern of behavior authorized under the Geneva Convention and international law is clear: the occupier must maintain the occupied area as intact and unaltered as possible, without interfering with the customary life of the area, and any changes must be necessitated by the immediate needs of the occupation. I regret to say that the actions of Israel in the occupied portion of Jerusalem present a different picture . . . " Charles Yost, U.S. Permanent Representative to the United Nations, UN Security Council, July 1, 1969 "On the general question of constructing housing and other permanent civilian facilities in the occupied zone, including Jerusalem, our policy is to call for strict observance of the Fourth Geneva Convention of 1949, to which Israel is a party. This Convention prohibits an occupying power from transferring parts of its own population into occupied territory. We interpret this to include undertaking construction of permanent facilities which have the intent of facilitating transfer of Israeli population into the occupied territories." Department of State spokesperson, Press conference, June 9, 1971 "We regret Israel's failure to acknowledge its obligations under the Fourth Geneva Convention as well as its actions which are contrary to the letter and the spirit of this convention." U.S. Permanent Representative to the United Nations George Bush, UN Security Council debate on Resolution 298, September 1971 "Israel, as occupant of the territories seized during the fighting in 1967, is bound by the Fourth Geneva Convention--that for the protection of civilians--but Israel refuses to apply the convention." The State Department's deputy legal adviser, George H. Aldrich, April 1973 “Clearly, then, substantial resettlement of the Israeli civilian population in occupied territories, including East Jerusalem, is illegal under the [Geneva] Convention and cannot be considered to have prejudged the outcome of future negotiations between the parties on the location of the borders of States of the Middle East. Indeed, the presence of these settlements is seen by my Government as an obstacle to the success of the negotiations for a just and final peace between Israel and its neighbors.” President Gerald Ford’s UN envoy William Scranton, March 23, 1976 "This matter of settlements in the occupied territories has always been characterized by our Government, by me and my predecessors as an illegal action." President Jimmy Carter, News conference, July 28, 1977 “On the basis of the available information, the civilian settlements in the territories occupied by Israel do not appear to be consistent with these limits on Israel’s authority as belligerent occupant in that they do not seem intended to be of limited duration or established to provide orderly government of the territories and, though some may serve incidental security purposes, they do not appear to be required to meet military needs during the occupation.” Statement of Herbert J. Hansell, Legal Adviser, Department of State, Concerning Legality of Settlements in the Occupied Territories, April 21, 1978 "...We regard settlements in the occupied territories as illegal under international law, and we consider them to be an obstacle to the successful outcome to the current negotiations which are aimed at a comprehensive, just, and lasting peace in the Middle East..." U.S. UN Ambassador Donald F. McHenry, after voting on UNSCR 465 "… As to the West Bank, I believe the settlements there—I disagreed when, the previous Administration refereed to them as illegal, they’re not illegal. Not under the U.N. resolution that leaves the West Bank open to all people—Arab and Israeli alike, Christian alike. I do think perhaps now with this rush to do it and this moving in there the way they are is ill-advised because if we’re going to continue with the spirit of Camp David to try and arrive at a peace, maybe this, at this time, is unnecessarily provocative." President Ronald Reagan’s statements in an interview with the New York Times, February 02, 1981 ". . . the question isn't whether they [settlements] are legal or illegal; the question is are they constructive in the effort to arrange a situation that may, in the end, be a peaceful one and be one in which the people of the region can live in a manner that they prefer. [President Reagan's] answer to that is no, expansion of those settlements is not a constructive move." Secretary of State George Shultz, news conference following President Reagan’s statement on the PLO departure plan, September 05, 1982 ________________________ One would have to agree with Katz that Reagan manipulated the US legal position for political purposes. No explanation is offered, only that Reagan, deep legal thinker, declared the settlements "not illegal." Then Schultz has to cover up for him by evading the question of legality while stating that the US opposed the settlements on policy grounds. This has been the US position until the Obama administration. But even during the Reagan administration, we still have this: “We also share the view expressed in the draft resolution that the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949 are applicable to the territories occupied by Israel. The United States Government has stated this position on numerous occasions, and I affirm it again today. Israel, as the occupying power in the West Bank, is bound by the terms of the Fourth Geneva Convention." Statement by Ambassador Charles M. Lichenstein, Deputy United States Representative to the United Nations Security Council, August 02, 1983 "Since the end of the 1967 war, the U.S. has regarded Israel as the occupying power in the occupied territories, which includes the West Bank, Gaza, East Jerusalem, and the Golan Heights. The U.S. considers Israel's occupation to be governed by the Hague Regulations of 1907 and the 1949 Geneva Conventions concerning the protection of civilian populations under military occupation." Thomas Pickering, US Ambassador to the United Nations, November 27, 1989. “The Israeli people also must understand that . . . the settlement enterprise and building bypass roads in the heart of what they already know will one day be part of a Palestinian state is inconsistent with the Oslo commitment that both sides negotiate a compromise.” President Clinton’s farewell address to the Middle East -- January 7, 2001 "Settlement activity must stop. And it has not stopped to our satisfaction." Secretary of State Colin Powell, September 21, 2003 “Israel must continue to work with Palestinian leaders to help improve the daily lives of Palestinians. At the same time, Israel should not undertake any activity that contravenes its road map obligations, or prejudices the final status negotiations with regard to Gaza, the West Bank, and Jerusalem. This means that Israel must remove unauthorized posts and stop settlement expansion.” President Bush speaking with PA president Mahmoud Abbas, October 20, 2005 "With respect to settlements, the President was very clear when Prime Minister Netanyahu was here. He wants to see a stop to settlements – not some settlements, not outposts, not natural growth exceptions. We think it is in the best interests of the effort that we are engaged in that settlement expansion cease. That is our position. That is what we have communicated very clearly, not only to the Israelis but to the Palestinians and others. And we intend to press that point." Secretary of State Hillary R. Clinton in a joint press conference with Egyptian Foreign Minister Ahmed Ali Aboul Gheit. If Reagan could reverse the legal view of the Carter administration, the Obama administration can reverse that of Reagan. Again from the Jerusalem Center, "In his June 4, 2009, Cairo speech, President Barack Obama continued to focus U.S. policy on Israel's construction practices in the West Bank, which he forcefully criticized: 'The United States does not accept the legitimacy of continued Israeli settlements. This construction violates previous agreements and undermines efforts to achieve peace. It is time for these settlements to stop.'" If Reagan could reverse the legal view of the Carter administration, the Obama administration can reverse that of Reagan. ___________________ The US has been consistent that the Fourth Geneva Convention applies to the occupied territories, even through the Reagan administration. Prior to Reagan it was explicit that the settlements were illegal. Reagan, without explanation, stated that they were "not illegal" but the US made no effort to reconcile this with its view that the convention applies and repeated its opposition thereafter while studiously evading the legal question. Obama has declared the settlements "illegitimate." Unlike Reagan, he at least understands what he is saying. Rather obviously, for political reasons, the US does not want to be in the position of failing to enforce the Fourth Geneva Convention. But it also does not want to deploy the power of the UN against an ally. Hence, the evasion of the legal issue. But illegitimate will suffice. Despite Katz's efforts, he is mistaken on the jurisdictional issue, has invented sua sponte his own interpretation of the substantive provision. Contra his claims, I have not misstated the US position which has been since Reagan to avoid expressing a legal view while opposing the settlements as contrary to the interests of peace.

- roidubouloi

November 26, 2010 at 12:25am

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"like a proper fascist" "Really? Those who are in no rush to destroy Jewish settlements in Judea and Samaria exhibit fascist behaviour?" asks noga. Not necessarily, but certainly those who lie in order to rationalize and justify what they cannot otherwise justify. But then, we weren't talking about fascism, but about "cringing" which appears to mean failing to act like a fascist, that is being unwilling to lie for the cause, failing to adhere to the Israeli false narrative.

- roidubouloi

November 26, 2010 at 12:35am

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according to roi: Fascists - those who lie in order to rationalize and justify what they cannot otherwise justify. __________ According to the wikianswers: "Fascist - one who believes in a one party state that has one supreme leader leader. a tightly controlled economy that works closely with the corporate leadership and upholds the interests of private capital." Someone who goes on record saying things like these: "What Obama was most unprepared for is the reality that the enemies of America are not just the Iranians, Moslem terrorists, the Chinese, and such, but the entire American right." "Every last one of them is an enemy of the United States of America, happy intentionally to damage the nation for the purpose of unseating Obama, happy to side with our enemies and make our problems, such as unemployment, worse for the purpose of unseating Obama, even willing to declare that the purpose of power in the hands of the Republican party is not to address the problems of the nation but to unseat Obama. And what they will do for personal greed is unspeakable. They are enemies. We are in a life and death struggle with them for the future of our nation, or whether it even has much of a future. Traitors, scoundrels, liars and thieves one and all."

- noga1

November 26, 2010 at 9:24am

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What I said, noga, is: "What Obama was most unprepared for is the reality that the enemies of America are not just the Iranians, Moslem terrorists, the Chinese, and such, but the entire American right." "Every last one of them is an enemy of the United States of America, happy intentionally to damage the nation for the purpose of unseating Obama, happy to side with our enemies and make our problems, such as unemployment, worse for the purpose of unseating Obama, even willing to declare that the purpose of power in the hands of the Republican party is not to address the problems of the nation but to unseat Obama. And what they will do for personal greed is unspeakable. They are enemies. We are in a life and death struggle with them for the future of our nation, or whether it even has much of a future. Traitors, scoundrels, liars and thieves one and all." ___________________ Nice try on fascism, but way too simplistic and indifferent to the context. We are not talking about lies for the purpose of selling real estate and used cars, now are we? Does every single little thing need to be spelled out for you in excruciating detail? Do you never understand the context in which words are used? Try this definition for starters: Paxton wrote that fascism is: "a form of political behavior marked by obsessive preoccupation with community decline, humiliation or victimhood and by compensatory cults of unity, energy and purity, in which a mass-based party of committed nationalist militants, working in uneasy, but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion." Now doesn't that sound uncomfortably familiar? As for the relationship of lies to the nationalist enterprise, there is this: "Card Stacking" is a device in which the propagandist employs all the arts of deception to win our support for himself, his group, nation, race, policy, practice, belief, or ideal. He stacks the cards against the truth. He uses under-emphasis and over-emphasis to dodge issues and evade facts. . . . On the other hand the régime has freedom to give publicity to falsehoods. Hitler approves such publicity in Mein Kampf (deleted from the English translation) which he writes: "Propaganda . . . does not have to seek objectively for the truth so far as it favors an opponent . . . but exclusively has to serve our interests." It must adopt every device of slander that ingenuity can suggest: " Now doesn't that sound uncomfortably familiar too? You greet pretty much every claim of fact that is uncomfortable for your political agenda with slander. You seldom engage on the basis of the argument advanced, with counter-arguments or other facts not considered. And needless to say your slander extends to anyone who endeavors to marshal facts with which to make an argument. Check the mirror, noga. Not a pretty sight.

- roidubouloi

November 26, 2010 at 2:31pm

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You really are a sad sack, roi. Almost illiterate, I would say. Not the tiniest crack to let in the thinnest ray of light into that benighted mind of yours.

- noga1

November 26, 2010 at 5:43pm

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There we go. The standard course of events: 1. Noga picks a fight with a witless remark. 2. Noga loses fight because she has nothing with which to substantiate said witless remark. 3. Noga resorts to limp ad hominem to vent her frustration. 4. Noga regrets that she cannot make witless remarks in peace with no response. You are never going to win an argument with me, noga. You simply do not have the tools. But if you weren't constantly enraged, and didn't insist on picking stupid fights that you cannot win, you might learn something.

- roidubouloi

November 26, 2010 at 10:39pm

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"But if you weren't constantly enraged, and didn't insist on picking stupid fights that you cannot win, you might learn something." Hmm. Here is something to brighten your day: http://www.latma.co.il/Latma/Templates/showpage.asp?DBID=1&LNGID=2&TMID=99&FID=469&PlayListId=8B99644BD8FE4070

- noga1

November 27, 2010 at 7:24am

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