Tuesday, February 5, 2013

ALP Debases International Legal Principle

International Law Expert in Session

che gorilla

Che Gorilla's Bar and Grill  (now incorporating Geoffff's Joint)

Blog Spokesman, Public Relations Director, Minister for Inter-Blog Relations and Political Affairs, Principal Legal Counsel.


The most ubiquitous and egregious allegation against Israel by the legion of its haters and critics in the West is that the country has no regard for international law.

The allegation is as irrational and offensive as antisemitism.  Israel is the only country in the Middle East that has any regard for international law. This is a huge achievement in a world where the organs of international law and order are often themselves effete, capricious and dripping with illegality.

Perhaps the most infamous example of this is the 2004 ruling of  the International Court of Justice that Israel's anti-terrorist barrier is illegal under, you guessed it, Article 49, of the Fourth Geneva Convention. a result that was so predictable that Professor Alan  Dershowitz famously was able to write a rebuttal the day before the Court handed down its decision and did not have to change a word after reading it.

This was an opinion sought by the General Assembly of the United Nations in a resolution that was supported by every tyranny in the world where any concept of the rule of law is a travesty, and opposed by every democracy, from a Court composed of judges from  China, Egypt,  Jordan (a "Palestinian) , Madagascar, Russia, Sierra Leone and Venezuela but specifically and permanently excludes any Israeli ( and only Israeli) judge from appointment and in defiance of its own charter that requires the acquiescence to its jurisdiction of all parties to the dispute.

Any ethical lawyer would have nothing to do with this mockery of justice.

It was a judgement that ignored the terrorist attacks on Israeli civilians that were the reason for the construction in the first place, refused to address the issue of Israel's right to self defence and declined to give reasons for it's conclusion that territory beyond the 1949 armistice lines was  "occupied" within the meaning of the conventions.

What is the law when the judges are crooks and liars or in the grip of politicians?

As Alan Dershowitz said at the time: 

The decision of the International Court of Justice against Israel should harm the reputation of that court in the minds of objective observers rather than damage the credibility of Israel. The Israeli government will comply with the rule of law by following the decision of its own Supreme Court. 

If the International Court of Justice were itself to apply the rule of law instead of the calculus of politics, it might deserve respect. Now -- like the general assembly of which it's a creation and the Mississippi courts of the 1930s of which it's a clone -- all it deserves is the contempt of decent people for its bigoted processes and its predetermined partisan result. 

It has long been the practice of left liberal journalists and others in the West to describe Israel's settlements as "illegal under international law". It is routine and automatic. It is reported as fact. Every pasty faced academic does the same even if they are not lawyers.

With that as a pedigree you might think that any liberal democratic politician anywhere in the West might exercise some caution before condemning Israel as in breach of international law because of the "settlements" if only out of concern for the company they seen to be in.

You might think that they would think twice before citing as their authority for this  an opinion from anyone associated with the UN, especially when that opinion is based on this vile ICJ judgement that should offend anyone with any respect for proper legal process and which incidentally the referral of which was firmly opposed by Australia at the time on the very solid ground that the Court was not an appropriate forum and did not have jurisdiction.

Not a  bit of it as far as Bob Carr, Andrew Leigh, the Federal Government  and the Australian Labor Party are concerned. Their minds are made up as firmly as any dead beat journalist with a deadline and with no patience with nuance at all.

All these settlements are illegal under international law.

Even apparently the ones in Jerusalem and surrounding suburbs. Even the ones that have been accepted in the past as part of Israel under the processes resulting from the Oslo Accords. As far this Government is concerned Jews living in the wrong part of Jerusalem, including the Jewish sector are illegal. Jews born there are illegal. Jews must not live in the wrong side of town. It is against the law.

Che Gorilla was moved to judge as follows:

1.History did not begin in 1967

2.That means the settlements are not illegal under international law. It is disappointing that the Australian role in this is being airbrushed out of history in favour of some PC but utterly baseless alternative narrative that turns more on the psychology of the darker  recesses of the extremist religious mind than on any concept of historical truth..

 Even if history began in 1967 the settlements would still not be illegal. That is because of the circumstances in which the land came into the possession of Israel following the war of aggression launched against her at her most vulnerable point at her most dangerous hour by the autocrat in Amman despite direct appeals to remain neutral.. If you cannot think of any precedent in all of history where the aggressor/loser did not or should not pay some price, even just to ensure security, then you may care to explain what quirk in your mind found an exception for the Jewish state.

3 Certainly since Jordan formally renounced any jurisdiction over the territories Israel would have been within her rights to have annexed the whole kit and caboodle, Jerusalem, Judea, Samaria and all. That is if the concept of "international law" has any worthwhile meaning worth retaining. That Israel has not done that has nothing to do with international law and everything to do with this being repugnant to any idea of Jewish nationhood. Those who insist on a "one state solution" have usually crossed one of the red lines that define antisemitism. Beyond Jerusalem Israel has never made any permanent claim over the territories. It has always been a matter of where to draw the borders. This has been the only issue both before and after 1967. The Israelis want recognised and agreed borders. The Palestinians and the Islamists and especially Iran  want no borders and no Israelis.

And you say Israel is the obstacle to the two state solution?  That it is Israel that must change?

It is at this point international law becomes irrelevant. It has always been a case of people of goodwill helping an essentially peaceful people have their secure state at peace with all.

This more than just legal niceties indeed.

Daphne Anson has just put up this excellent piece in which she quotes at length the eminent Australian jurist Julius Stone.

Born in Leeds, Yorkshire, to immigrant parents from Lithuania, Julius Stone (1907-85), proved a brilliant scholar, graduating from Oxford with first-class honours in jurisprudence, and later becoming a Rockefeller Foundation fellow at Harvard.  Subsequently, he became an academic in New Zealand, where he was president of the League of Nations Union, and afterwards (1942-72), following a controversy in which antisemitism played its dismal part, Challis Professor of Jurisprudence and International Law at the University of Sydney.


A champion of Israel to the end, Stone denied that the "settlements" violate international law:

Irony would...be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that...the West Bank...must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49(6) [of the Fourth Geneva Convention"
She goes on to quote an article by Eli E. Hertz published yesterday on the "Inappropriate Use of the Fourth Geneva Convention"

"The language of Article 49 was crafted in the wake of World War II and the Nazi occupation – an occupation that led to a war of aggression in which Nazi Germany attacked its neighbors with impunity, committing a host of atrocities against civilian populations, including deportation and displacement of local populations in occupied Europe. Millions were sent to forced labor camps and those of particular ethnic origin, most notably the Jews, were sent to their deaths in the gas chambers. The drafters of Article 49 were concerned with preventing future genocide against humanity.
Critics and enemies of Israel, including members of the UN and organs such as the International Court of Justice (ICJ) have come to use the Geneva Convention as a weapon against Israel, even when statements by authoritative analysts, scholars and drafters of the document contradict everything said by those who distort history for politically motivated reasons.

It is common knowledge that from its birth, Israel follows customarily international humanitarian law without being told or forced to do so by outside authorities....
The term “occupied territory,” which appears in the Fourth Geneva Convention, originated as a result of the Nazi occupation of Europe. Though it has become common parlance to describe the West Bank and Gaza as “occupied territories,” there is no legal basis for using this term in connection to the Arab-Israeli conflict.

Che's' Judgement?

Absolutely correct. I could not have put it better myself.

This Government has set aside  any reasonable basis for international law so as to draw a conclusion ultimately founded in nothing more than bare naked bigotry. It is shameful that they have done this. It endangers us all.. It is the law of the jungle and Israelis are within their rights to respond accordingly.  

cross posted Geoffff's Joint


  1. Yup.

    The Israeli government will comply with the rule of law by following the decision of its own Supreme Court.

    If the International Court of Justice were itself to apply the rule of law instead of the calculus of politics, it might deserve respect. Now -- like the general assembly of which it's a creation and the Mississippi courts of the 1930s of which it's a clone -- all it deserves is the contempt of decent people for its bigoted processes and its predetermined partisan result.

    Great diary, geoffff! And Che. :)

  2. Che

    You either love him or hate him. Or you just don't get him.

    A bit like all Jews really.