Berman’s Tikkun Article – The Settlement Legality Debate: FAQ -Items of error
By Donald Carr
Revival of legality – debate. There has not been any “revival”. The assertion of legality has been constant and consistent.
Suggesting that the Oslo Accords were responsible for sidelining the “core legal issues” does not make it so in fact. Perhaps, they did so far as Berman is concerned, but the Oslo Accords do not affect International Law one iota. They were agreements between Israel and the Palestine Authority. As Israel was entitled to the lands between the Mediterranean and the Jordan – as a result of International Law – it was entitled to deal with its lands in any way it wished. Thus, it entered into the Oslo Accords. The “death” of Oslo did not “revive” anything other than the status quo ante – namely, the legal rights of Israel to that territory under International Law.
Reference to and reliance on United Nations General Assembly Resolutions ignores totally the fact that such Resolutions are not binding, but are merely advisory. They cannot be relied upon as playing any part in International Law, as Berman alleges and relies upon.
It is clearly wrong to refer to the “Green Line” as a “border”, notwithstanding Berman’s later reference to the contents of the 1949 Armistice Agreements, which make it clear that they were “not decisive as to the parties’ legal claims, including territorial claims”. This demonstrates the polemic nature of the article.
The International Court of Justice’s opinion relating to legal rights is referred to as if it were a binding judgment. It is not binding in any way. It is suggested by the Court, in one of its publications, that the Court’s opinions “in their way, contribute to the elucidation and development of international law…” Nevertheless, they are merely advisory. The opinion dealing with Israel and the Wall – which is referred to generously and relied on by Berman – was given at the behest of the General Assembly. As referred to above, that entity has only recommendatory entitlement. To use the ICJ’s advisory pronouncements as if they were current, binding International Law, is wrong.
The fact of “Occupation”, in the legal sense, is absolutely necessary for any of the Geneva Conventions to have any force. “Occupation”, in this context, at law, can only be on lands belonging to a sovereign State. As Berman is generous enough to recognize that Jordan had no rights to the lands of which it took possession in its illegal invasion, he should, logically, recognize that the only possible sovereign State involved in ownership could have been Israel!
In referring to Yehuda Blum’s 1968 assertion that International Law supports Israel’s rights to all of the territory from the Jordan to the Mediterranean, Berman lays some stress on Blum’s failure to deny the existence of an “occupation”. That is cavelling, for the whole of Blum’s treatise denied the application of the Geneva Conventions under any circumstances, plainly because the territory in question belonged to no other State.
Berman, again, lays stress on the ICJ’s “rejection” of the international legal concept of “missing reversioner”.
Without in any way agreeing with him, or with the recommendation of the IJC, it should be pointed out that Berman pays no heed at all to the accepted doctrine of uti possidetis juris in International Law. He should be referred to the article by Abraham Bell and Eugene Kontorovich in the Arizona Law Review [Vol.58:633.2016]. In the words of the introduction of that article, that doctrine “provides that emerging states presumptively inherit their pre-independence administrative boundaries. Applied to the case of Israel, uti possidetis juris would dictate that Israel inherits the boundaries of the Mandate of Palestine as they existed in May, 1948. The doctrine would thus support Israeli claims to any or all of the currently hotly disputed areas of Jerusalem (including East Jerusalem), the West Bank, and even potentially the Gaza Strip (though not the Golan Heights).”
Berman’s reference to the article by Aeyal Gross, for the novel suggestion of International Law that the “occupation” has become illegal, “due to the manner in which it has been conducted”, conjures up an inversion of the old saying: one cannot turn a silk purse into a sow’s ear!
The reams of Berman’s references to and his exclusive reliance on the Geneva Conventions and the Hague Regulations, become totally irrelevant once there is no “occupation”.
Why Berman refers to “pre-20th Century” international law, is a mystery. The applicable international law is that of the 20th and 21st Century. His meandering into Roman law, while, no doubt interesting, appears to be the setting up of a straw man for him to demolish.
Faced with what is, in fact, existing International Law, Berman was required to deal with the seminal treaties and legal documents which led to Israel’s rights, as the representative of the Jewish People. In his glib dismissal of the real legal basis for Israel’s rights, he sets up yet another straw man by claiming that others assert that the Balfour Declaration was a legally binding instrument. No serious proponent of Israel’s legal rights to the Land has ever made such a claim. It was easy, therefore, for him to destroy his straw man and deny that it was binding. Nobody asserts that it was or is. On the other hand, the San Remo Resolution and the Treaty of Sevres (the latter totally ignored by Berman), followed by the League of Nations’ unanimous adoption of the Mandate for Palestine and its later adoption by the United Nations were and remain a part of International Law. Regardless of Berman’s assertion that these parts of International Law were “written in a radically different time”, they remain the Law.
Berman relies on rebus sic stantibus “a fundamental change of circumstances” as altering whatever treaty provisions (my emphasis) are relied upon. Note that he does not assert that such a “rule” affects anything other than treaties. Thus, the Mandate for Palestine adopted by the League of Nations unanimously (including Arab states which were members) and, in turn adopted by the UN, are not touched by that “rule”. It should also be noted that there are fundamental objections to the application of that “rule”, as outlined by the acknowledged expert, Sir Hersch Lauterpacht, in his detailed criticism of the “rule” [Oxford Scholarly Authorities on International Law, published 14 July 2011]. Berman cavalierly asserts its application in a mere sentence or two, without the necessary analysis.
Berman endeavours to hide his far-ranging political polemic behind a cloak of pseudo-academic legal argument. He gives the show away, however, in his final chapter, which is nothing more than a typical left wing attack on those he clearly abhors. Is anyone surprised that this was published in “Tikkun”?