Donald Carr holds Berman’s international law article to account

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”?

May 16, 2017 | 6 Comments » | 80 views

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6 Comments / 6 Comments

  1. I cannot wait for Nissan to reply.
    But you should know he replied to me on that “Usi…”:

    “7) “Uti posseditis” is a presumption about territorial units that emerge from colonialism. It doesn’t say who will control those units – the principle of self-determination does. I really don’t think you want to foreground “uti posseditis.” If applied to the territory of the Palestine Mandate, it would harm the cause of Israel very seriously. It would mean that Palestine should have become independent as one state – and the principle of democracy and self-determination would have meant that that State in 1947 would not have been a Jewish State. There are reasons why “uti posseditis” can be said not to apply in the case of the Palestine Mandate – and the arguments in favor of it applying are extremely harmful to Israel and Zionism more generally.”

    https://www.israpundit.org/archives/63623122#comment-63356000187752

  2. An effective revival of International Law from the cobweb of academic and international politics.

  3. I don’t think that Berman really understands the concept of uti posseditis juris any more than he understands the major limitations in rebus sic stantibus.

  4. Thank you, Mr. Carr, for replying to my article. I would hope the readers of this page would read my original article (not the inaccurate reporting of it on this website) and judge for themselves whether you have effectively rebutted it or not. Most of what I would have to say in response to your comment would simply be a repetition of the arguments I made in my article and there’s no point in doing that here. Readers should do so for themselves. I limit myself to a few points here:
    1) my point about Oslo putting a temporary brake on legal argumentation was not part of my legal analysis, but a sociological observation. I am not wedded to this point, though I think I am correct, as a matter of fact. If it can be empirically shown that legal argumentation continued unabated, then I am happy to concede the point. As I say, this is not part of my legal argument in any way, as readers can see if they read my original article.
    2) On “uti posseditis”: I express my appreciation to Yisrael Medad, who points out in his comment that I already responded to this. Although Yisrael and I disagree about almost everything, I want to express my admiration for his honest interest in an actual exchange of ideas by not only mentioning that I had replied to this, but by cutting-and-pasting my reply. Sruli, thank you. That was a menschlich thing to do. I stand by the brief comment that Yisrael has copied here. “Uti posseditis” is not an argument that anyone who values the sovereignty of the State of Israel should be stressing. And this is not only a matter of tactics: I think there are good legal arguments against its application to Mandatory Palestine, but I do not have time to lay it all out here. You should know, however, that if I were opposed to the sovereignty of the State of Israel from its inception (chas v’shalom), I would be foregrounding “uti,” as indeed some anti-Israel lawyers do.
    3) on the ICJ: yes, Mr. Carr, of course, I know the formal legal status of the various kinds of ICJ opinions. This is international law 101. For the non-lawyers among the readership, some ICJ decisions are binding between the parties to the case (in “contentious cases”); others, the “advisory opinions” are not formally binding. However, as you should know, Mr. Carr, the decisions of courts play an important role in the ripening and determination of rules of customary international law. In the U.S., this was famously stated in the “Paquette Habana” case of 1900. This is especially true of international tribunals – and it is most especially true of the International Court of Justice, whose nickname “the World Court” is not accidental. Ignoring the authority of the ICJ is just not a plausible tactic for anyone interest in serious international legal argumentation. You know this.
    4) General Assembly Resolutions: yes, Mr. Carr, of course, they are not binding in and of themselves. But, as any international law treatise will tell you, they often play a crucial role in the ripening of rules of customary international law. This, again, is international law 101. I encourage readers to take any standard international law treaties and study the doctrines about the sources of law.
    5) my reference to pre-20th century international law: I made that reference in order to show the historical antecedents of the notion of the “missing reversioner.” It is a direct descendant of the notion of “terra nullius.” The legal doctrine of “terra nullius” has been thoroughly rejected by 20th century international law, as discussed in detail in the Western Sahara Case. The same principles underlying the rejection of “terra nullius” also serve to negate the “missing reversioner” idea. The key legal articulation of those principles is the right of self-determination of peoples. The ripening of self-determination into a firmly established international legal right is one reason (but by no means the only reason) why all of the pro-settler arguments about “there can’t be an occupation because there was no legitimate prior sovereign” are incompatible with contemporary international law. The pro-settler arguments would, indeed, have had some weight in the 19th century. But not today.
    6) Aeyal Gross’s new book, “The Writing on the Wall,” is an important contribution to any current discussion of the law of occupation. I cannot re-state this entire book here. I encourage anyone interested to read it for themselves and form their own judgment.
    As to Mr. Carr’s other points, I leave it to the readers of this page to re-read my article in its original form. I believe all his other points are answered there.

  5. Nathaniel Berman Said:

    I would hope the readers of this page would read my original article (not the inaccurate reporting of it on this website) and judge for themselves whether you have effectively rebutted it or not.

    This is not the first time you suggested we weren’t reading your article. Please note that at the top of this post is a link to you article which was posted in full on May 12/17.

    Most of the comments were under the Vanderpass post and he too linked to your article.

    The article I posted was copied in full from Tikkun at this url http://www.tikkun.org/nextgen/the-settlement-legality-debate-faq

    Is that not the correct article because the one I posted is a copy of it.

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