By PETER WERTHEIM, JERUSALEM REPORT
The misuse of international law as a tool of political condemnation is especially unhelpful right now.
For David Kretzmer, “The chickens come home to roost” (August 26), mere legal opinions can harden into established norms in the field of international law if large numbers of eminent lawyers support those opinions, even if other equally eminent lawyers do not. Further, Kretzmer suggests that black-letter norms are also established when a large majority of states repeatedly pronounce certain activities of another state to be illegal, even if the said majority behave in much the same way or worse in analogous situations. Fortunately for Israel, and common sense, binding rules of international law are not made that way.
The hazards of adopting a ‘black and white’ moralistic approach to questions of international law – especially in connection with the Israel- Palestinian conflict – were laid bare by Prof. Michael Curtis of Rutgers University in a groundbreaking article in 1991. To paraphrase Curtis, dogmatic generalisations about the legality or illegality of Israel’s West Bank settlements belong in the realm of polemics, not serious legal analysis.
The basic error is to treat all the settlements alike when commenting on their international legality. For example, settlements that have been built without the authorization of the Israeli government have been held by the Supreme Court to be illegal even under Israeli domestic law. Conversely, Cambridge University Prof. James Crawford, who is one of the world’s most eminent international lawyers and is generally critical of Israeli policies, published a legal opinion in 2012, in which he concluded that some of the settlements, such as those of the IDF’s Nahal outposts are “probably lawful.”
The whole question of the international legality of settlements is fraught with complexity – which is one of the reasons Crawford’s opinion runs to 60 pages. He and others have argued that Article 49, paragraph 6, of the Fourth Geneva Convention (Geneva IV) prohibits civilian settlements. It states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Nobody suggests that the Israeli government has deported settlers to the West Bank. The legal question is whether by sponsoring and financing civilian settlements, the Israeli government has carried out a population “transfer.” In its advisory opinion in 2004, the International Court of Justice (ICJ) answered this question in the affirmative.
The late Julius Stone, an outstanding Australian international jurist, had a contrary opinion. His view was that a population “transfer” within the meaning of Article 49(6) requires a “magisterial act” or fiat by the government of the occupier state. In his view, which is still shared by many eminent international lawyers, mere sponsorship and benefits do not amount to a population “transfer.”
In any event, the ICJ’s advisory opinion was just that – a non-binding opinion. Like the endlessly repeated UN resolutions on the subject referred to by Kretzmer, it has no legally binding effect. In fact, the ICJ’s conclusions were subjected to some serious criticisms, not least because the questions referred to it by the UN General Assembly were so loaded with tendentious assumptions as to prejudice fair determination of the issues.
The ICJ also failed to consider the effect of the original League of Nations Mandate of 1922, which recognized “the historical connection of the Jewish people with Palestine” and authorized “close settlement by Jews on the land, including State lands and waste lands.”
When the UN replaced the League in 1945, the Mandate continued to operate by virtue of Article 80 of the UN Charter. Kretzmer waves this history aside as having been made irrelevant by the establishment of the State of Israel in 1948 as the State of the Jewish people.
He leaves unanswered the opinion of Eugene Rostow, a former Dean of Yale Law School and US Under Secretary of State for Political Affairs, that because the West Bank is an unallocated part of the British Mandate, its terms still apply to that territory and settlements can continue until a new state is created or an annexation takes place.
The misuse of international law as a tool of political condemnation is especially unhelpful right now while Israeli and Palestinian representatives attempt to negotiate comprehensive terms of peace on the basis of “two states for two peoples.” Moralistic polemics about the settlements is the last thing needed by negotiators on either side, and will simply make it politically more difficult for Palestinian leaders to agree to a land swap arrangement, a sine qua non of any final peace agreement.
Attorney Peter Wertheim is the Executive Director of the Executive Council of Australian Jewry
dweller Said:
Well,Sugar, I do fantisize about shopping at Neiman-Marcus in Dallas. Any time you want full fill my fantacies. just whistle.
@ honeybee:
The evidence sugggests otherwise.
The arrogance I was talking about was YOURS.
dweller Said:
All my fantasies have been filled to my satisfaction!
dweller Said:
Oh you do have some small self knowleadge! Darlin
@ honeybee:
But none of the other girlie games apparently. (And I seriously doubt that you’ve abandoned fantasizing either.)
@ honeybee:
Newsflash:
True humility never advertises itself.
Arrogance, OTOH, always does
— and usually by calling itself ‘humble.’
@ yamit82:
“We”? — no.
Correction: SOME of us allow them their fantasies.
It’s quaintly called “humoring” them — but only users do it.
Rest my case.
dweller Said:
Self-awareness is certainly not your “strong suit”.Sweetheart!!!!!!!!!!!!!! Just one humble woman’s opinion!
yamit82 Said:
I gave up foolish fantasies years ago.
yamit82 Said:
What pray tell??????????///Darlin Nothin you can’t do for yourself. You said you do your own cooking.
dweller Said:
What,Sugar Pie, isn’t wasted on you?????????????/
@ yamit82:
Sloppy, but people do get away with using it that way these days.
Audacity without implicit & extreme impudence is not chutzpa.
Classic chutzpa suggests strongly that the plight over which the chutzpadik individual complains is entirely his own doing:
— e.g., the young man found guilty of killing both his parents, pleads for mercy because he is an orphan.
Audacious I am; chutzpadik, I am not.
Nor do you want to try discussing the peculiarly Jewish affinity for law as applied to Jewish gangsters with an acquaintance who will take the matter for an instant, ready-made opportunity to play “GOTCHA!” over the difference between “derekh eretz” & “dina de-malkhuta dina”
— thereby diverting the conversation away from the arc of discourse and into similar puerile variations on the theme of “mine is bigger than yours.” PEDANTRY.
honeybee Said:
That’s because we allow them their fantasies, women control two necessary requisites men depend on.
@ honeybee:
Couldn’t be any sadder than I already am for the fact that you want so little for yourself. . . .
@ honeybee:
I should tell you: where I am, I don’t use sound, as a courtesy to the others online. So if your YouTube clips aren’t captioned, they’re wasted on me.
dweller Said:
A parting thought: http://youtu.be/z0ZMj5RksbE
dweller Said:
Big Ego: http://youtu.be/hbnPkK76Ask
dweller Said:
You will be sad if I do: http://youtu.be/5wojgGSKsKw
@ honeybee:
Then buzz off, little fly.
Come back when you want to learn to FLY.
@ yamit82:
Pure projection, pancho.
I repeat: you are a USER. You exploit women’s weaknesses for the sake of your own gain.
ROFLMAO.
Actually, I’ve no need to be envious, because I know — within myself — specifically what is wrong ABOUT it.
Most people know it’s unseemly and all that. But they don’t really understand what’s wrong with it; not really. So they’re stuck with it.
And stuck — as well — with having to hide it.
Dunno what that is. (Doubt that you do either, only that it sounds funky; so why not use it.)
No, but you’ve come to wish I had such ‘preferences.’ It would make it so much easier to write off what I say.
The truth is, men can be every bit as imbecilic as women, and my criticisms are “equal-opportunity” based.
In fact, if anything, my criticisms of men are MORE ascerbic than those aimed at women. (The posting record on this blogsite certainly bears that out, in spades.)
The Messiah had no need for sex, Shmendrick — as he was clean to the core: had no need to reproduce himself (which is only a pale substitute for immortality).
The idea that he had “preferences for the male gender” reflects only on the pathology of a mind that would draw such ‘conclusions.’
yamit82 Said:
@ DWELLER: http://youtu.be/qDQpZT3GhDg
yamit82 Said:
Women think ALL MEN are pendantic!!!!!!!!!!!!!!! Sugar
dweller Said:
A pedant is a person: who is excessively concerned with formalism and precision, or who makes an ostentatious and arrogant show of learning.
unimaginative, pedestrian. Overly concerned with formal rules and trivial …
pedantic makes a big display of knowing obscure facts and details.
Pedantic means “like a pedant,” someone who’s too concerned with literal accuracy or formality. It’s a negative term that implies someone is showing off book learning or trivia, especially in a tiresome way. You don’t want to go antique-shopping with a pedantic friend, who will use the opportunity to bore you with his in-depth knowledge of Chinese porcelain kitty-litter boxes.
NU?
I stand by my comment that you are audacious and the pendantic.
yamit82 Said:
Sounds like a plan,says Tex.
yamit82 Said:
He who can do, does. He who can’t,whines!!!!!!!!!
a href=”#comment-289055″ title=”Go to comment of this author”>dweller:
dweller Said:
I won’t bother replying point on point but will only say you are a very sick cuckoo.
You seem to be a misogynist with an ego as big as Obama’s. To make things worse you are envious with a Jesus complex, with none of the complexities except in your own warped sick mind, I have always suspected your preferences for the male gender just like your messiah.
honeybee Said:
The dog got rabies after dweller bit him and it died. Read that somewhere??
dweller Said:
Seems to me you might take your own advice to heart wrt to HB??? 😉
dweller Said:
dweller Said:
http://youtu.be/WJFXRXpF4_k Now I have wasted enough of my morning on you,love!!!!!!!!!
Salubrius Said:
At that time in history, Mexico was in no condition to enter a war a against the USA. More “Remember the Main” and”Gulf of Tomkin” nonsense use to start a war.
dweller Said:
He didn’t hurt you, did he? Sweetie
dweller Said:
But, you waste so much space bantering about my bantering,sugar. ” Methinks you doth protest to loudly”.
dweller Said:
But Sweetie ,Darin, you spend so much time ansering me,makes Silly Me think you like it. But then again I don’t think you have it IN you!!!!!!
dweller Said:
Is the lit’le ol’whinemaker drunk on his whine again.
yamit82 Said:
Did you read that Colorado is being washed away?
@ Salubrius:
Well, yes, that was the reason offered at the time, and the shocking nature of it certainly had the capability of exciting popular sentiment.
The Lusitania was actually a BRITISH ocean liner; when the Kaiser’s u-boats torpedoed it, some 1200 passengers died — 128 of them, Americans.
The ship was also carrying a hefty cargo of rifle ammo — over 170 tons of it — bound apparently for France. (Lotta turkey shooting in those hedgerows, no doubt. . . .)
No.
But I do question the characterization of one “side” as aggressive and the other defensive — especially when the various ELEMENTS of each side entered the war at widely staggered times, and most of them long after the first Declaration of War was issued — and longer still, after the first shot was fired.
Certainly you can say that one country or another was ‘allied to the aggressor’ — ‘or allied to the defender’ — in a conflict.
But to speak of the “aggressive” side and the “defensive” side seems to me problematic. Things get murky pretty fast. Murky and, IMABHO, ultimately meaningless.
Then there’s the related question:
If all (or even most) of the battles of a war are fought on one side’s home turf, do they not get to call their effort “defensive” and the invading forces, the “aggressor”?
Quick: Who was the aggressor — and who, the defender — in the Trojan War?
(See what I mean?)
How about the US Civil War? (To this day there are those, South of the M-D Line, who designate the Rebellion as the “War of Northern Aggression.”)
Another related question:
If one party has a legitimate CASUS AD BELLUM (howsoever “legitimate” may be defined, in context)
— and then that party proceeds to ACT on that legitimate cause, by Declaring (and going to) War, is his act then aggressive or defensive?
Then too, if I taunt, needle, entice, or cajole you into knocking a chip off my shoulder, which chip I had carefully & precariously balanced on that shoulder (perhaps even while you watched me putting it there!) — and I then proceed to haul off & deck you for knocking it off — who’s the aggressor, who’s the defender?
At a certain point in all this (usually fairly early in the game), these kinds of questions leave me dizzy.
We didn’t.
That’s one of the reasons why the USA couldn’t sign or ratify the Versailles Treaty, ending the war among all the parties.
The state of war between America & the Central Powers—viz., Imperial Germany & Austro-Hungary, specifically — was INSTEAD ended by the Knox-Porter Joint Congressional Resolution of July 1,1921, signed by Pres. Warren G. Harding the next day.
@ yamit82:
Not only is this extremely rare — but the remark, boychik, is also entirely DISINGENUOUS on your part. (That’s the polite word for it.)
It’s amazing just how high you pile those cow patties when you mean to patronize somebody. . . .
But then, that’s how you lay down markers, incurring an obligation on the person’s part to return the support later on.
When there is more to say, I use more words. When there is less to say, I use fewer.
If you don’t like my style, skip my posts.
It’s ok; they aren’t “required reading.”
You ARE loaded with envy, that’s clear enough. But all you’re doing here is patronizing HB, and for the reason I stated above.
You’re as transparent as a guy out on a third date — flattering, minding his manners & saying all the “right” things: maneuvering for a piece of ass at the end of the evening.
Yuck. Gag me.
More of the above.
Now, be sure not to leave out Dove, and any others from the distaff side that may be on-board these days; you get three shots for your quarter, so step right up, boychik, and take that third shot.
The truth of the matter, Yamit, is that you’re a user. You exploit women’s weaknesses for the sake of your own gain
— when you COULD be challenging them to be better than they are.
But some of them KNOW it, or sense it.
And with time, a lot more will.
@ dweller: There were two sides. One side commenced the war and therefore was aggressive. It was a war in which the Germans and the Austrians wanted to dominate Europe. The French and the British were on the defensive side. We entered the war, to my recollection, because a German submarine sank one of our passenger ships. The Ottomans were on the aggressive side. Do you claim they were on the defensive side?
In asking the Congress to declare war, Wilson cited Germany’s violation of its pledge to suspend unrestricted submarine warfare in the North Atlantic and the Mediterranean, and its attempts to entice Mexico into an alliance against the United States, as his reasons for declaring war. On April 4, 1917, the U.S. Senate voted in support of the measure to declare war on Germany. The House concurred two days later. The United States later declared war on Austria-Hungary on December 7, 1917. I don’t think we ever declared war against the Ottomans.
@ yamit82:
Of course. In small amounts. It’s all a matter of perspective.
As salt & pepper: to season a dish, it has its place.
But when it amounts to the meat & potatoes of the meal, then something’s wrong.
Your point is irrelevant.
I pause for banter myself, from time to time.
What’s more, I’ve defended the use of banter here (and for precisely the relief from heavy-duty stuff that you refer to) — I defended banter sometimes on occasions in the past when Ted (and not only he) was fed up with it.
But that is strictly beside the point here, because the issue is not the objective value of banter OR teasing or any of the OTHER myriad games that HB plays online here.
The issue is the fact that that stuff overwhelmingly dominates her presence here
— SO much so that in the rare instances when she actually DOES have a straight comment to make, it communicates the same kind of novelty that the headline, “MAN BITES DOG!!!” offers.
The issue is the fact that she can’t let go of it; teasing is her crutch, and you’re content to humor her over it.
I’d like to see her strengthen her legs, so she doesn’t need crutches.
@ Salubrius:
Yes, but that’s my point.
The Ottomans entered the conflict well AFTER the struggle had been joined. (In fact, it was an open question, for some time, as to which side they would ultimately enter on.)
So how may the war against them, in their theatre of action, be said to have been “defensive”?
yamit says:
YOURS-TRULY read those links — and having done so, it’s clear to me that if I had BEEN shooting from the hip (I wasn’t, but even if I had been), that even my hip would be FAR more reliable in such matters than your bloated ego
— which once again, as so often in the past, has diverted the thread away from the point in contention: in this case, whether the Jew needs to know himself to be lawful when it comes to setting himself against the stream in a matter & fighting over it.
Instead, PresentCompany wants to squabble over the definition of derekh eretz.
It figures.
It doesn’t take chutzpa to call you pedantic. A pair of eyes trained to read — together with a mind accustomed to reasoning — will do quite nicely.
BTW, while you’re all excited about definitions of words, you might take a moment to look up BOTH “chutzpa” AND “pedantic.” You could be in for a surprise.
@ dweller:
Rebuke, putdown and finally the challenge!!
WoW!!!
Ever occur to you dweller that being teased might be attractive.
Light banter diversion a relief from some of the heavy stuff discussed here and above all when HB wants to be serious she is as capable as any in making her points and analysis at least as good if not better than yours and with fewer words to wade through….
I envy her ability to say in a few words that which takes me many more. Laura also has such an ability…. You certainly don’t.
insect said:
Impossible. The absurd presumptuousness of your comment had me rolling on the floor laughing my arse off.
— Can’t do that when it ‘stings’ there.
The truth is, you’re largely a distraction, HB; a moment’s diversion.
And that’s all you’ll ever be until you’re willing to set aside the girlie games, including your over-prolonged adolescent proclivity for teasing for the sake of the brief moments of attention it gets you.
If you want to EVER be taken seriously, then the tease trip will have to be put out to pasture.
The question is whether you have it IN you to do that. . . .
@ dweller:
Just as I already knew you are full of shit. (an example of not showing derech eretz)
From your comments it’s obvious to any who read my links that you were shooting from the hip with no knowledge of what you were talking about. Your misapplication of terms is clear to any interested enough to check you out. You enjoy dishing it out but can’t stand to have it shoved back at you.
You have the chutzpa to call me pedantic? Pedantic is your middle name, your MO, that’s who you are above all else. 😛
If you happen to dwell on a geological fault, near large bodies of water, (streams oceans, rivers and lakes) forested or woodlands, on the sides or bottoms of mountains, in areas known for hurricanes and tornadoes I suggest you move because things are beginning to impact more than at any time in the past and they will come in abundance together or one after the other.
He is near!!! “Rav Nachman asked Rav Yitzhak, ‘have you heard when Bar Nafli will come? ’Rav Yitzhak asked, ‘who is Bar Nafli’…Rav Yitzhak said, the Messiah “[Sanhedrin 96b]
dweller Said:
Your it!!!!!!!!! Sweetie Sofar, Yamit 82 is winning!!!!!!!!!!!Silly
yamit says:
Some readers will — yes, you betcha. (Given the general decline in civilization, Jewish included, however, even derekh eretz may be more of a mystery even to Jews.)
Derekh eretz is FAR less obscure in some Jewish circles than Dina de-Malkhuta Dina.
I used to hear the former with some regularity, even from secular & assimilated adult Jews, when I was growing up.
— The only times I ever heard references to the latter, however, were in kheder, Hebrew School.
I understand them quite well, thank you very much — and you are simply being pedantic, as is your habit.
Wikipedia is never my source for ANYTHING (as I’ve told you many times in the past), and nothing in your link refutes what I’ve already said above
— get a life, Yamit.
@ Salubrius:
Most people will not understand the nuances. They do know that governments of Israel did not annex any of the liberated territories from the 67 war except the Golan and Jerusalem. Not a single world government have recognized the two annexations. The governments of Israel never in word or deed expressed the view that the territories Liberated in 67 belong to Israel. Almost from day 1 after the war they were offered back to Jordan and Egypt for a real peace.
The only serious demand made by any of the governments of Israel were for secure borders and recognition.
The subsequent negotiations (bargaining) were always over the price but never the principle of ownership claims by Israel. The Sinai return to Egypt set the precedent for Land for Peace, which essentially not only set the principle but locked Israel into a corner of returning or giving up 100% of her gains of 67. Syria and the Palis will accept nothing less than what was awarded to both Egypt and Jordan.
In 2000, Israeli Prime Minister Ehud Barak offered to withdraw from 97 percent of the West Bank and 100 percent of the Gaza Strip. In addition, he agreed to dismantle 63 isolated settlements. In exchange for the 3 percent annexation of the West Bank, Israel said it would give up territory in the Negev that would increase the size of the Gaza territory by roughly a third.
Barak also made previously unthinkable concessions on Jerusalem, agreeing that Arab neighborhoods of East Jerusalem would become the capital of the new state. The Palestinians would maintain control over their holy places and have “religious sovereignty” over the Temple Mount.
According to U.S. peace negotiator Dennis Ross, Israel offered to create a Palestinian state that was contiguous, and not a series of cantons. Even in the case of the Gaza Strip, which must be physically separate from the West Bank unless Israel were to be cut into non-contiguous pieces, a solution was devised whereby an overland highway would connect the two parts of the Palestinian state without any Israeli checkpoints or interference. The proposal also addressed the Palestinian refugee issue, guaranteeing them the right of return to the Palestinian state and reparations from a $30 billion fund that would be collected from international donors to compensate them.
After losing the 1999 election, BB confirmed reports that he had engaged in secret talks with Syrian President Hafez Assad to withdraw from the Golan and maintain a strategic early-warning station on Mount Hermon. Publicly, Assad continued to insist on a total withdrawal with no compromises and indicated no willingness to go beyond agreeing to a far more limited “non-belligerency” deal with Israel than the full peace treaty Israel has demanded.
Intensive negotiations between Israeli and Syrian negotiators were held in 2000 and 2008, but the discussions did not result in any agreements.
In 2008, Israeli Prime Minister Ehud Olmert extended a peace proposal to Abbas that would have created two nation-states. Under the plan Israel would have withdrawn from almost the entire West Bank and partitioned Jerusalem on a demographic basis. Abbas rejected the offer
Add to the above the road Map Agreement and Sharon ceding all of Gaza to Hamas.
Begin set the principle of not only giving up Territory for agreements he set the principle of settlement demolitions as well. I call it internal political ethnic cleansing.
Even though the Arabs are said to have refused the terms of the offers listed above the principle still stands and has never been refuted nor abandoned by any Israeli government. Tell me how you turn back the clock and erase the perfidious actions by all Israeli governments since 1967? I say the damage has been done and it seems to be compounded by what I suspect BB has in mind.
Only war I believe can reset the accepted world and Israeli group think about Land, Peace, Sovereignty and indigenous rights. Only after if we win can you raise your legal arguments but only if Israel annexes the territories.