Posts Tagged ‘international law’

Preface

Monday, September 15th, 2008

The development of this reference book grew out of the demand by a very determined young lady, Ms. Rona Hart. The proposition she proffered was that the public debate concerning the Israel-Arab dispute demanded that someone with a legal background and expertise respond in a competent and professional manner to press allegations that Israel has been acting illegally and contrary to international law in occupying the West Bank and Gaza Strip captured by Israel after the 1967 Six Days War.

My response at that time was that I was now retired and that in any case my legal expertise had been confined to international commercial law. This I told her did not extend to international public law about which I knew too little to be able to argue the case at a reasonable professional level. Her blithe response was simply – “Why can’t you study it? I’ll phone you in six months to see how you’re getting on.” With that she put down the phone.  That was five years ago! Not only she, but others have jumped on the wagon- including Rev. Geoffrey Smith. All have expressed the need for a resource, in a concentrated and compact form, which would enable students of the Middle East conflict and pro-Israeli advocates to respond more effectively to Arab propaganda and to correct biased or factually unsubstantiated criticism directed at Israel. While its size and scope has gone well beyond what I originally intended, I hope that this collection of material goes some way to fulfilling the needs of those who pushed me into preparing it.


I have long been of the opinion, however, that international law is really an amalgam of international relations, political science and social anthropology with a bit of ‘hard’ law thrown in to bind it together. And so it proved to be.  It became clear to me that the legal aspects of this conflict had to be placed in a historical and political context and that under examination the boundaries between the disciplines were very blurred. As a commercial lawyer used to dealing with law within definable limits, I have tried to integrate them. Whether I have succeeded remains to be seen.

For the most part, the non-legal material contained in this handbook is of a secondary nature, being based neither on unpublished documents nor on interviews with those who participated in the events described herein


In the process of preparing for this project I learned that an analysis of the legal aspects of Israel’s occupation of the West Bank, Jerusalem and Gaza, did not make sense if I just started from 1967. I had to go back to 1948. But even that was insufficient. In the end I opted- quite arbitrarily for the late 1800’s with the advent of something quite prosaic – a railway- because out of such small events, bigger movements can be seen to develop.


The next issue in writing, or – to be more accurate – in “compiling” this collection since very little in it is original, was to determine a potential target readership in addition to those who had dragged me into this mire in the first place.  I concluded that my work could best be used by those who advise opinion and decision makers as well as editors, their sub-editors and reporters in the visual and written news media for whom context and balance are crucial. All of them work under tremendous time constraints and pressure such that they frequently have neither the time, nor sometimes the inclination or energy, to go below the surface of an issue to a depth greater than is absolutely necessary to satisfy their immediate demands.

I have tried to provide the reader with a relatively short description and analysis of the main legal issues arising out of the long conflict within its historical and political context so that the events are logically linked and their relative importance is expressed in the paragraphing of the text. For example- the massacre of Sabra and Shatilah gained international prominence and a public figure – Ariel Sharon – was designated by the media as the villain of the event. I have placed the subject as being one of relatively minor importance at the fourth level of indentation. In reality, the massacre was just one of a number of such dreadful acts committed between warring militants in Lebanon. The real and actual commander of those who perpetrated the killing – was a Christian Philangist, controlled and manipulated by Syria. This personage has been either ignored or conveniently forgotten both by the media and those who are bent upon seeing Israel as the cause of, and an obstacle to, peace in the Middle East.


While this work was originally intended to view the conflict from an essentially Israeli perspective, during its composition I have naturally had to learn and understand the Palestinian position. This has caused me to view the situation somewhat differently from when I originally embarked on this project and to reconsider my opinion on a number of issues. I have therefore tried to bring into my analysis a fair balance of the claims made by both Israelis and Palestinians if my efforts are to be utilised by those for whom it is intended.

Gerald  M. Adler,
Haifa and Hove, August 2008

4. Emerging Issues flowing from Arab Cultural Characteristics

Friday, September 12th, 2008

The above brief introductory discussion on Arab cultural characteristics, tribal spirit and loyalties, the unifying force of Islam and that of Palestinian identity raises a number of important issues which will emerge with greater prominence as the historical, political and legal aspects of the Arab-Israeli conflict develop.

  • Palestinian Identity and Interest Differentiated from other Arabs
    Under Ottoman, British and Jordanian rule, the Palestinians had not displayed any characteristics significantly different from those of the Arab population in Jordan and Syria. It was only after the Six Days War that a significant Arab population came under Jewish-Israeli control and Arabs living in Judea and Samaria directly confronted the “other”- the Jews. The issue is whether without destroying the territorial integrity of the State of Israel, the Palestinians are a sufficiently differentiated people not only from the Israelis but also from the populations of the other neighbouring Arab states to justify and sustain a claim in international law for self determination as an independent viable state politically and economically.
  • Concentration of Power
    As been shown above, in Arab society honour and power are intertwined and the exercise of power is decentralised. In the West, by way of contrast, the exercise of power is not only the exclusive preserve of state governments but in international conflicts, there are political moves towards extending the centralisation of the exercise of power in the hands of the United Nations or under the auspices. Such tendency appears to be at odds with Arab–Islamic values as seen recently in Afghanistan, Chechnia and Iraq.
  • Arab Customs in the Initiation and Conduct of War Diverge from those Pertaining in the West
    Even if the resolution of the conflict between Israel and the Palestinians is unattainable by negotiation, and the parties continue to resort to violence, given their cultural and religious differences, it is necessary to review afresh whether contemporary rules and customs of international law in relation to war and the pacific settlement of international disputes can be truly applied to a clash between Islam and the West.
    As will be shown in Chapter VI and subsequent Chapters, the movement to establish the League of Nations and its successor, the United Nations, as new international institutions dedicated to pacific resolution of international disputes were led by Western statesmen. Although the customs and norms in relation to the initiation and conduct of war may now be seen as secular they nonetheless developed out of Christian western values, namely,
    • maintaining a distinction between combatants and non-involved ‘civilians’
    • military necessity, and
    • proportionality.

These values form the bedrock of western military culture but they have no express parallel in Arab tribal ‘military’ culture and tradition. There, the bearing of arms is considered a sign of masculinity in the protection of personal, family and tribal honour, as are their women and children.

However, in confronting a non-Muslim enemy, war -  Jihad – expresses a religious rather than a nationalist objective. Persons who do not submit to the dominance of Islam may become legitimate targets: combatants do not appear to be differentiated from non-combatants; males are slain while females are taken into captivity for purposes of reproduction to maintain the strength of the tribe or clan.

A recent Arab declaration on the subject of Jihad declares

“the sanctity of the blood of women, young children, and elderly infidels is not absolute. There are cases under which it is permitted to kill them, if they are part of a nation of war….[I]f only one of these circumstances holds true, then he must permit the operations because the circumstances are not conditional upon fulfilling all of them, but only one will suffice. …
Muslims are permitted to kill infidel innocents reciprocally; if the infidels are targeting the women, the young children and the elderly Muslims, then it is permissible for the Muslims to act reciprocally, and kill just as they were killed. in Jenin, Nablus, Ramallah, and other places”
(
Communique from Qu’idat al- Jihad Concerning the Testaments of the Heroes and the Legality of the Washington and New York Operations, April 24, 2002, in David Cook, Understanding Jihad, U of California Press, 2004, pp 175 et seq.)

  • The objectives of fundamentalist Islam are in conflict with the Western notion of the illegality of resorting to war except in self defence or in accordance with UN Security Council resolutions. For Islam, a higher value is the submission of all peoples to the will of Allah which is to be achieved by jihad if necessary.
    (
    Muhammad And The Treaty Of Hudaybiyya, http://www.answering-islam.org/Silas/hudaybiyya.htm; Holy Prophet’s Life, Joint Conspiracy of Qoraish and Jews and Ghazwah Ahzab http://www.anwary-islam.com/prophet-life/holly-p-13.htm ;see also http://www.historyofjihad.com/ )
    See particularly David Cook, Understanding Jihad, University of California Press, Berkley
  • Even the accepted Western principle that agreements and international pacts are to be observed by all parties is in conflict with Islamic tradition and values. Islamists who, for the time being, may be unable to overcome stronger infidel opponents and decide therefore, for strategic reasons, to enter into a truce or even a peace agreement with such opponents, are permitted by Arab cultural and religious tenets to breach that agreement if at some later date the earlier Islamists’ position of weakness is reversed to one of superiority. See Treaty of Hudabeya http://www.witnesspioneer.org/vil/Articles/companion/19_ali_bin_talib.htm;
    Denis MacEoin, Tatical Hudna and Islamic Intolerance, Middle East Quarterly, Summer pp.39-84 http://www.meforum.org/article/1925 )

Thus, to what extent should Israel rely on Arab promises and solemn undertakings?

Assuming that the European and Western powers see themselves as possessing a unified western-orientated cultural system and identity and wish to differentiate themselves from other peoples in the Middle and Far East – a questionable assumption today – they view Israel as a Western oriented nation and expect her act as such. In so doing she in direct confrontation with the cultural norms of the Arab peoples and is the European vanguard against Islamic expansion. In a regional and local military confrontation with Arab states and with the Palestinian population in the Territories, she is expected to abide by Western international customary and conventional laws of war even if her enemies do not.

Given the above factors it is difficult to fathom why Israel encounters so much opposition from a number of Western states. It may be due to an unfounded naïve belief and myth that all the conflict between the West and the Arabs is due Israel’s illegitimate birth and her continued existence. Perhaps most of the answer can be found in the West’s voracious need for Arab controlled oil the necessity for securing untrammelled access to its sources.

Israel, as a small and western-oriented Jewish state lying within dar Islam but dependant to a large extent for her continued security on the support of the United States, seems to constitute an impediment to the realisation of Western interests and can therefore be sacrificed in the arena of public opinion

In contrast to Arab society, public opinion in Western democratic societies exercises a powerful influence in governmental and non-government organisational decision-making. Public opinion is moulded by public relations, information and propaganda campaigns operating overtly and covertly in Western civil society. “Acting contrary to international law” has become a mantra in media communications employed by one antagonist to advance its political platform or objectives and to malign or destroy those of its opponents. Initially dominated by the ‘fourth estate’ comprising newspapers, radio and television, this arena is slowly being eclipsed by emergent interactive internet websites and linkages. They have the potential to exert a major influence on national decision-making not only in western democratic states but have even more potential in promoting the free flow of information in non-democratic states.  On the other hand both news media and cyberspace activists are not accountable to any institution or constituency for the veracity of their communications.

In evaluating an assertion that a State, such as Israel, is “acting contrary to international law,” the addressee must be in a position to know not only the factual background on which the accusations are based but also what provisions of international law are allegedly being violated. It is often the case that the specific international legal proposition in question is inapplicable in the territory where an apparent violation has occurred or that the State alleged to be in violation has not acceded to the treaty or Convention in which the norm or principle was formulated; thus opening the way for uninformed and unjustified condemnation.

With the foregoing considerations in mind, Chapter VI is designed to assist and hopefully enable the reader to assess the validity of what is alleged to be in accordance with or contrary to international law or, if this is impossible, it is hoped that the material presented may place the reader at least in a better position to question the assertion being advanced.

However in order to assess the legality of subsequent Israeli actions, it is still necessary to examine in a little more detail the political, demographic and economic conditions which prevailed in Palestine prior to the end World War I and to assess their effect upon Palestinian Arab claims of the being dispossessed of their land by early Jewish land acquisition and immigration. These claims are examined in the Chapter IV following next.