Laws that Bind

Washington Report on Middle East Affairs, July 2009, pages 32-33

United Nations Report
Granted Impunity From International Law, Israel Continues to Build, Bomb and Kill
By Ian Williams

“JUSTICE DELAYED is justice denied,” notes the old maxim. It has now been five years since the International Court of Justice (ICJ) ruled on Israel’s building of its wall through the West Bank. While it certainly broke no new legal ground, the ICJ reaffirmed the binding decisions of the U.N. Security Council on the status of the occupied territories and the application to them of the internationally accepted Geneva Conventions. The construction of the wall on Israel’s side of the Green Line would have been legal, but building it on occupied land violates international law.

It is interesting to recall that many of the news outlets immediately passed on the Israeli take on the ruling—that the court’s opinion was “not binding.”

This is as preposterous now as it was in 2004. The world’s most definitive international juridical body states the international law on the case, based on flawless precedents and Security Council judgments—of course it is binding! The real problem is the lack of political will to enforce the law, which is an entirely separate issue.

When I drive, I wear a seat belt, not because I am scared of the minimal chances of a fine from the N.Y. State troopers, but because it is a sensible thing to do. When I see defenseless old ladies out on their own on quiet streets, I refrain from mugging them, not because I might get caught, but because mugging is wrong. What makes a civilized society, globally as well as nationally, is the acceptance by the overwhelming majority of people that the rule of law is something we apply to ourselves without the need for coercion. It is not the fear of arrest and punishment that keeps us law-abiding, but our own commitment to civilized society.

Israel, of course, has defense in depth, but of flimsy substance, against the Court’s conclusions—something along the lines of “the dog ate our attorneys’ brief.” It does not consider the ICJ ruling binding and, in any case, disagrees with its conclusions. Despite the clear decisions of the U.N. and opinions even of Israel’s closest ally that the territories are undisputedly occupied, Israel insists that they are not occupied, but “disputed.” It is as if Bernie Madoff denied that the law prevented him from making off with his clients’ money.
The real problem is the lack of political will to enforce the law.

Indeed, even before the ICJ ruling, in 1993 at Oslo, Israel pledged that “negotiations on the permanent status will lead to the implementation of Security Council Resolutions 242 (1967) and 338 (1973).” And, regardless of its reservations about everyone else’s interpretation of law, at its commitment to the Quartet “road map” Israel renewed its promise to not expand settlements and to close “illegal” outposts. In fact, the “outposts”—with their electricity, water, roads and security provided by government departments—are no more or less illegal than the settlements themselves. In any case, apart from a few token towings of trailers, the promises on outposts have been flouted, while each successive Israeli government continues to expand settlements and build new ones around Jerusalem.

Perversely, the response of the international community, or at least the Western component thereof, to Israel’s breach of promise and law has been to boycott the legally elected Palestinian Hamas government and to treat Israel as the victimized party even as it breaks repeated promises to allow goods transit into Gaza.
Another Opportunity for Impunity

That sense of impunity resurfaced for the Gaza invasion. Quite apart from any alleged war crimes against Palestinians, the U.N. inquiry team documented extensive violations of the United Nations status in Gaza. This should have come as no surprise, since it followed similar depredations against the U.N. post and staff at Qana in 1996. In each case, one is led to the conclusion that such crimes were the result of IDF personnel who a) were incompetent and unfit to handle weaponry, b) were acting vindictively, confident of their impunity, or c) were obeying the orders of superior officers.

Israel dutifully investigated itself, and gave itself a spotless record. Under intense Israeli—and, sadly, U.S.—pressure, the U.N. secretary-general decided to issue only an executive summary of his own organizations’ report, shorn of the substantial evidence backing it up, and declare an end to the matter.

In the media, the denuded U.N. report now must compete with a detailed, albeit tendentious, Israeli version. Guess which one will be cited in all future news reports? Under pressure from the press, Ban Ki-moon mentioned seeking compensation from Israel for damaged U.N. facilities. It would, if ever it came off, be a good precedent for the EU and U.S., whose aid money so often ends up as Israeli targets. But it would be surprising if Israel ever paid.

The real reason for Israeli impunity is not that it has better lawyers, but Washington’s blanket pre-emptive pardon for all Israeli actions, added to the anti-terrorist hysteria of many of its Western allies, which has ensured that its defiance of international law has had little or no consequences. In contrast, neither Russia nor China behaves as if it had a dog in the Middle Eastern fight.
Durban II

Some of that became apparent in the much-reviled Durban II conference in Geneva on racism. International conferences are often characterized by sanctimoniously tedious rhetoric, but considering that most international human rights organizations and bodies like the Congressional Black Caucus testified in Geneva, this one was important. Darfur, Rwanda and indeed Bosnia demonstrate that racism goes way beyond the amount of melanin in peoples’ skins. And of course, as a rule of thumb, any conference excoriated by Benny Netanyahu and John Bolton deserves a degree of sympathy.

President Mahmoud Ahmedinijad of Iran did wonders for the neocon and Israeli cause by making a grandstanding speech aimed more at his impending election contest than improving the lot of the Palestinians. He gave a handful of Western states the excuse they wanted to follow Israel’s boycott call. (The U.S. had already gone.) The same states seemed unconcerned by Israel’s actions in Gaza against the U.N. and Palestinians. To its credit, the UK remained, withstanding the tendentious fury of the Likud lobby, whose views on boycotts and embargoes in general are demonstrably, to use their favorite accusation, “one-sided.” Germany, the Netherlands and what could be called settler states—Australia, Canada, New Zealand and the United States—all joined the boycott.

Barack Obama’s administration practiced a form of diplomatic coitus interruptus, defying the calls for boycotts, engaging in face-to-face intercourse with other delegates—and then withdrawing at the last moment, giving cover to the sycophantic settler states to pull out as well. It was sadly reminiscent of Clinton-era prevarication, when the U.S. would dilute international conventions to homeopathic proportions and then refuse to accept the result.

Fortunately the delegations that stayed in Geneva defeated the attempt to introduce into international law the concept of blasphemous libel that the British government tried to get through Parliament a few years ago. Luckily no one called for a boycott of the House of Lords, whose wisdom threw out the bill, but the Organization of the Islamic Conference (OIC) was persuaded to withdraw its international equivalent. More worrisome, every reference to Israel was purged from the final text.

A rare voice of sanity was the Nicaraguan president of the General Assembly, Miguel d’Escoto Brockmann, whose statement was a sober and realistic assessment, more in sorrow than in anger, of how much principle had been bent to defend the conference from Israeli-inspired attacks. It is worth quoting, since its palpable truth and sincerity is such a rebuke to all those who pretended that criticism of Israel is ipso facto anti-Semitic.

While welcoming the final document, d’Escote Brockmann wrote, “he regrets that the focus on the victims that was overwhelming at the Durban Conference of 2001 has been diminished in the current text.

“He also regrets that the reference contained in the Durban 2001 text recognizing the human rights of the Palestinian people, including the right to an independent State, was also left out of the current text.

“The U.N., and in particular the General Assembly, having passed Resolution 181 more that 60 years ago, continue to bear specific obligations in regards to the creation of the State of Israel and the still unrealized State of Palestine.

“It is a fundamental principle of International Law, and in particular, International Human Rights Law, that once a right is recognized, it cannot be denied or rescinded. U.N. Member States are obligated to respect, protect and promote human rights.

“It is the responsibility of the international community as a whole, and in particular of the United Nations, to progressively move forward the agenda in the defense, promotion, codification and implementation of these rights.”

Whether over the wall, Gaza, settlements or the occupation, the international community in general, but the U.S. and the West in particular, has certainly failed that responsibility.

pIt is surely significant that the Israeli government was lobbying around the world for countries to stay away—not to instead attend and resist any language or concepts it considers untenable—and it continued its campaign even when the conference conclusions dropped any reference to Israel. That is understandable. The conclusions of any international conference or convention on racism will put Israel’s behavior in the dock whether it is singled out or not. As if to celebrate Durban II, in April Israeli railways sacked 40 Israeli citizens—for being Arab!
Human Rights Council Elections

Shortly after the Durban II conference, the U.S. more definitively broke with Bush practice and the Bolton era, and stood for election in the Human Rights Council. It is generally accepted that one of the major flaws in the Council is the failure to hold competitive elections. Indeed, when it was being redesigned, human rights advocates fought long and hard to avoid the regional groups nominating simply as many candidates as there were seats. But the local cabals keep reverting to old U.N. practices of rotating seats and offices in predetermined order. This year was worse than usual—and ironically made even worse by Washington’s decision to run for a seat. Some quiet but hard words with New Zealand led the latter to fall on its diplomatic sword and drop out, leaving the U.S. a clear run in the Western group of states.

In the East European group, there was a contested election, in which Hungary beat Azerbaijan—which, based on relative human rights records, was as it should be. Russia won election, which is a mixed blessing. Traditionally members try to keep the permanent five Security Council members like Russia or China on board even if their human rights records do not merit it, and both Moscow and Beijing were returned. One pragmatic justification is that since they are part of the process, it can be cited against them if necessary. Also winning uncontested for an Asian seat was Saudi Arabia, whose record leaves even more to be desired—but, as a close U.S. ally, is unlikely to get much criticism from Washington.

The Latin Americans, with overwhelmingly democratically elected governments with impressive recent human rights credentials, also closed ranks and returned Cuba unopposed.

The Council has been under heavy pro-Israel attack, and its membership has done its best to put truth to the accusations. Attacking Israel’s human rights record is totally justifiable—but not while giving a free pass to other oppressive regimes. The Obama administration has shown some tentative signs that it will not necessarily dissipate its moral capital by giving Israel a get out of jail free card. However, if it maintains previous U.S. double standards, it will then give free rein to all the assorted kleptocrats and tyrants to claim that human rights are a hypocritical Western concept.

Over to you, Mr. President.