On Law, Lies and Propaganda

There are two matters that are playing out in this part of the world right now that have captured some attention.

One is the sudden emergence of the “legality” of the “settlements” as an issue for national debate. Or non-debate. Whatever. It is difficult to even appreciate how much this is progress. Up until very recently it was simply taken as a given that the “settlements” were “illegal” under “international law”.  Everybody knew that.  Everybody said so. It was said every time the “settlements” were in the news.  The BBC (and therefore the ABC) sometimes added the faintly condescending and misleading rider “although Israel disputes this”.  Journalists such as John Lyons of The Australian didn’t even bother to do that.

I will return to this issue because of its importance but here’s a snapshot to go on with. It started last week with an article in The Australian by  Bob Carr, former Foreign Minister – Never Again (File Stamped: Do Not Employ) still smarting from being thwarted from what he saw was to be the overarching achievement of a grey and mediocre career by any standard — the de-legitimisation of Jews who live on the wrong side of the “Green Line” by declaring them as “illegal”, thus in his mind paving the way for the two state solution as the only show in town.

It’s all so easy in Bob’s imagination. Once you imagine the “Green Line” dividing Jerusalem and the “West Bank” from Israel then everything else falls into place. The Jews have to be rescued from themselves and it is his job to help. This “nudges” the parties towards peace. This is what he says. What a stupid man.

Carr was answered comprehensively, elegantly and far more politely than I could ever manage in a piece by Mark Leibler of AIJAC however I saw something during the week that might have included some free and fair advice for people like us and that I think deserves a response.

Here it is:

THE contention of Bob Carr (”West Bank settlements always illegal”, 12/2) that “all” Israeli settlements are illegal and have “always” been illegal goes beyond any reasonable view.

International lawyers who are generally critical of the settlements, and even the PLO, have conceded that some of the settlements are built on land that was privately purchased by Jews before Israel was established and to which the current occupants have full and proper title.

Politicians, lawyers and others are entitled to their opinions about the legality or illegality of the settlements, but should not be presenting their views as incontrovertible truths.

There has never been a legally binding determination of the issue by the International Court of Justice or any other court.

Further, Carr’s opinion is at odds with the common view that the major settlement blocs will become a part of Israel in any peace deal, in return for equivalent land within pre-1967 Israel that will become part of a state of Palestine.

The debate about the legality or illegality of the settlements will therefore not decide the issue. 

Peter Wertheim, Executive director, Executive Council of Australian Jewry, Sydney

I agree the debate about the legality or illegality of the “settlements” will not decide the issue. That is why it is so important. There should not even be a debate. Or if there is it should be even handed and both sides should be heard.

With respect I am going to decline Peter Wertheim’s advice to not present my views on this with some force and the reason for that is not just because I have a strong view on it but also because I have not lost all hope in the two state solution. It is because I think there is still a chance and it should not be thrown away. Even if the two states in the solution turn out to be Egypt and Jordan.

Those who fret over this even being raised need to ask themselves why. We ignored it after Oslo because we thought it was moot. Why even talk about it. It can only do harm. Let them have their fantasies. We know its a crock but then again so is the whole “Palestinian” story really so let it slide. There’s about to be a deal and then everyone will be nice.

Instead we got the Second Intifada and everyone got very ugly. Especially them. At least around here they did. And that was just the politicians like Bob Carr and the journalists like … let’s give John a pass for now … pretty much all of them really except Greg Sheridan also of The Australian.

  “The occupying power shall not deport or transfer parts of its own population into the territories it occupies.”

 Come on. A break needed at this point please. The first time I read that this line was being interpreted to deem people acting on their own volition as “illegal” based on what a liberal democratic”power” did not do, could not do and legally did not even have the power to do, in regard to “territories” that are not even “occupied” within the context, and therefore those same people are actually liable for deportation or transfer, I thought I was inside some legal parody from hell. A Kafka story come to haunt us. That this “legal” principle was to be applied only once and for the first time in all of history only to Jews living in Jerusalem, even born in Jerusalem, not even to mention Judea and Samaria, could only be a script written by something very strange and sinister indeed.

The Australian Greens for example. They don’t come much stranger and more sinister than that. From the Greens national policy:

The Australian Greens will work for:

2.1 the removal of Israeli settlers and Israeli security and military forces from the Palestinian territories

 the immediate and unconditional withdrawal of the Israeli military from all Palestinian cities, towns, refugee camps, surrounding areas and transport routes, allowing freedom of movement of Palestinians within the West Bank and Gaza

 the immediate freezing of all Israeli settlement activity in the occupied territories (including natural growth) and the simultaneous commencement of the repatriation of the Israeli settlers from the Palestinian territories

● an associated withdrawal of Israeli security and military forces from the areas evacuated by the settlers

 the immediate dismantling of the separation wall

So when Jews exercise their right to live lawfully and peacefully where they choose, this is the “deportation or transfer” of part of the population of an occupying power. But their dispossession and forcible eviction (Greens policy)  is “repatriation”. This is where this leads. Buying or renting in a Jewish neighbourhood of Jerusalem is “deportation or transfer” (provided you are Jewish. It is not if you are an Israeli Arab.) What happened in Gaza however was “repatriation”. That is probably a fair summary of “elite progressive opinion” on this subject through out the West.

How do you “freeze natural growth” by the way? Are the Greens advocating compulsory contraception as an interim measure?

What on earth are you thinking, Bob Carr? Where is your head at, John Lyons?

Bob Carr and others emphasis the illegality of the “settlements”, and others are nervous about this even being forcefully challenged, because they believe that the “settlements” are an obstacle to peace and that their “apologists” (Carr’s word) necessarily have an agenda that includes destroying any prospect of a two state solution. “Settlements” make “Palestine” harder or even impossible.

But why? Why is the presence of Jews such anathema to those who say they are striving for an independent sovereign “Palestine”? It’s almost as if the very thought for some of Jews living among them even as a minority with equal and full rights as citizens is repulsive at its very core. Of course its illegal.

Oh wait…

It’s not the “settlements” that are the problem here. It is not their “illegality”. It is not “international law” at all, which is largely irrelevant.  After all no one talks about international law when it comes to racist incitement and indoctrination by the PA and Hamas, the use of children in insurrection and war or the indiscriminate targeting of Israeli civilians. The problem is a deep seated and carefully nurtured fear and hatred of Jews everywhere and especially in their own homeland.

Unless that is addressed there will be no peace. It does not help at all to concede or leave unchallenged the notion that Jews are illegal if they live outside of their part of the city. We know about those laws. We can do without them.

And that is the whole point. We are better off without any international law than “international law” such as this. It may come to that.

Bob Carr, John Lyons, the BBC, the ABC, the Greens and all the rest should shut up about international law and it is not just because they do not know what they are talking about. It is because there can only be peace between peoples if they deal with each other with mutual respect and as equals. Not if one side is see as a people that are “illegal” by their very presence on the land as if it was some kind of divine curse that passes from generation to generation.

Oh wait …

I say again I agree with Peter Wertheim that the illegality or legality of the “settlements” will not determine the issue. That is why it is important to blast this perverse notion out of the water with all guns. Then maybe the way might be cleared for real negotiations for a genuine two state solution. At least the view from the West on what is going on might be a little clearer without all the mud in the water.

Which brings me to John Lyons, the ABC and the other matter being played out around here.

To be continued …

cross posted Geoffff’s Joint

                      Israel Thrives

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  1. One must admire Geoff’s style and passion.I’d go as far as imagining Geoff taking part and WINING my current favourite TV show, MKR !

    Once compliments paid, seriously, considering how apt the Greens are in articulating any policies which do not grow with the aid of “organic” fertilisers ( as per their original call), what amuses me is the way Greens formulate their desiderata. By putting the donkey, let’s call them asses, before the rickety cart, the nominally refer to a certain Palestine” well before the actual entity is practically “there”.

    Simple rationale, once those people shall demonstrate that they can be trusted with the formation and the running of a State – nota benne, particularly with a legitimate armed force-then those charged with its acceptance, primarily ISRAEL, will also come to some agreements, also ratifiable by Israeli interests, as what shape and tangible territory it shall acquire.

    Bob Carr included, a plethora of irrelevants seem to be making a pretty good lieben of speculating between drinks on stuff which, to be brutally honest, does not concern them at all.

    This sudden interest in the ME politics at Bob Carr have a lot to do with an ego so badly rattled by successive failures and menial post political life incursions, that one can imagine that our Bob imagines himself as bona fide international political appointment material!

    And since he reckons that the pro-Palestinian cam has the decisive word, Bob has thrown his lot with them. He cannot conceive rational concepts in politics, simply because he has managed to craft a string of titles to his name, an impressive CV which he thinks that speaks for itself. Well, it does not. Bob himself speaks for himself and the rhetorical confetti he is parting with ain’t gonna impress anyone. I just loved the way Labor announced with Bob Senatorial sinae cure that “intellect” has entered the room. He really , really believed it ! How soon did that phenomenon exit the same room? Just in time to restore commonsense.

    After all this, it just occurred to me to pose the question: why are we bothering at all with a double has-been?

    Otherwise, I have a funny inkling that the Palestine so many are going into bat for without a ball to hit, may not end up being at all the entity we are talking and writing about.

    I want to live a long life, play eventually with me grand kids, first dance at me Son’s wedding, be forced to assume the Presidency of the ECAJ, NSWJBD, Life President of the Aust. Zionist Council, Chief Rabbi of Australia AND Romania and still dream NOT see a Palestinian state take any shape at all!

    The way things are going now, Bob Carr in the picture or not, there is no bloody way the criminal minds pretending to be respectable Palestinian statesmen and women shall have their venom laced cake.

    We did not give our blood, lives, dreams to create a medinat Israel, to see and touch the Zionist dream only to have it jeopardised by some falsely concocted pernicious mob.

  2. Leon Poddebsky

    The lie of “illegality” is a slander, the disseminators of which use with the purpose of demoralising the Jewish People.
    The Geneva Convention argument is false / inapplicable not only because the Jews in Judea/Samaria live there voluntarily, but also because that Convention is applicable only to “the high contracting parties,” that is, the signatory states. The disputed territories have not been a state since the destruction of the Second Temple in 70 CE.

    Carr and cohorts pretend that the following documents of international law do not exist, which support the legality of the hitnachluyot:
    1. the League of Nations Mandate for Palestine- this legislation, in effect, should, if justice ruled on this planet, have settled the matter, so that no international court of any integrity should even entertain a case brought by the enemy.
    2. Security Council Resolution 242 (binding) clearly implies Israel’s territorial rights beyond the green line.
    3. the 1949 armistice agreements clearly do likewise.

    Carr and cohorts pretend that all this body of international law does not exist.
    They must think that Jews are idiots or illiterates.

  3. Leon Poddebsky

    It is quite likely that the confederates of the “Palestinians” have to date not litigated in the International Court of Justice about the hitnachluyot because they know full well that they don’t have much of a leg to stand on; otherwise does anyone imagine that they would not have done so?

    • I think that once these talks fail, as we know the will, all hell will let loose. You mark my words.

      The whole thing is a joke. Abbas who is in the 10th year of a 4 year Presidency, has no legal right to be involved in any talks. He certainly cannot speak for Gaza, Hamas has said as much.
      Even if by some totally unimaginable chance a peace agreement is reached, how could one half of the “State of Palestine” be involved without the other?

      Does Kerry seriously believe they want peace, when as his plane touches down at Ben Gurion Airport, a rocket ‘touches’ down in Israel?

  4. You can expect pretty anything from the International Court of Justice but it would be a mistake to assume it will be justice.

    I don’t know who the current judges are but at the time of the security barrier ruling it included judges from Brazil, China, Egypt, Jordan (a “Palestinian”), Madagascar,, Russia, Sierra Leone and Venezuela. The whole procedure was a politicised stunt from the GA resolution to the “ruling”.

    The ICJ accepts judges appointed from every country in the world except one.

    As Alan Dershowitz more or less said at the time the ICJ has about as much authority on these issues as a court in Alabama trying a black man on the word of a white witness, circa 1955.

  5. Leon Poddebsky

    If I’m not mistaken, the court’s assertion regarding the security barrier was not a judgement, but merely an opinion. The difference is critical: a judgement can be delivered only after evidence is heard from BOTH SIDES. In this particular case only one side approached the court and made a submission, and it was only for an advisory opinion.

    That means that the court did not have the opportunity to weigh the evidence for the case that the hitnachluyot are legal.

  6. Matt Levinson

    Geoff, I don’t read Peter Wertheim’s letter as advice not to present one’s views forcefully. He was reminding people that legal opinions are just that, opinions, until a court with authority to do so makes a legally binding decision. People are entitled to express their opinions as forcefully as they like, but it is dishonest and arrogant to present a mere opinion as an established fact, or a legal opinion as settled law. This was one of the things he was criticising Carr for. A telling point. Tanya Plibersek has not thus far embraced Carr’s legal dogmatism regarding the settlements.

    Peter Wertheim expressed his views about the settlements – very forcefully, I might add – in a journal article in the Jerusalem Report in September 2013. It can be accessed at: http://www.jpost.com/Jerusalem-Report/Israel/The-complex-legality-of-settlements-326156. You will notice that Mark Leibler’s arguments reprise those of Peter Wertheim in that article.

    I will finish this post with some historical irony. Ten years ago, the International Court of Justice (ICJ) published an Advisory Opinion in which all 15 judges (including the US) concluded that the settlements violate Article 49 of the Fourth Geneva Convention. Israel did not appear in the main part of the hearing before the ICJ. Israel did not express its views forcefully (as you recommend) but instead confined itself to making technical written submissions about jurisdiction and admissibility. Some commentators said at the time that this was a strategic mistake by Israel. Peter Wertheim was among the most prominent in urging Israel to appear before the ICJ and use it as a platform to get stuck into Israel’s critics. Many of his warnings about what would transpire if Israel did not go onto the offensive have sadly come to pass. His article was published in ‘Midstream’ in the US: http://www.thefreelibrary.com/_/print/PrintArticle.aspx?id=118542848

    • “Ten years ago, the International Court of Justice (ICJ) published an Advisory Opinion in which all 15 judges (including the US) concluded that the settlements violate Article 49 of the Fourth Geneva Convention.”

      I’m not sure if this is correct. My memory is that the American and the Dutchman dissented and the Englishman sat on the fence. It was a case of art imitating life.

      In any event I’m not going to look it up now and that is because I don’t care.. I do not regard this Opinion as authority for anything. It’s only value is to cast grave suspicion on anyone, including international law “experts”, who cite it as authority on Israel.

      If that sounds dishonest and arrogant, so be it. Please remember that the law is not the property of judges and lawyers. It belongs to all of us. If judges and lawyers screw it up they deserve to be told. .

  7. Leon Poddebsky

    But just a moment; doesn’t the following body of international law make it clear that there is no illegality:

    1.The Mandate for Palestine- Mediterranean Sea to Jordan River.
    2 Security Council Resolution 242- “secure and recognised boundaries”- ( i.e., pre-June ’67 they were not such.0
    3. 1949 armistice agreements state that the boundaries at end of War of Arab Aggression 1947-49 are subject to negotiations for final status.

  8. While not contesting that the legal aspects and respective UN and other fora decisions are relevant, one must consider that the very perverse attitude the hard-core partisans for a farcical palestinina cause are taking is predicated on politcal strategies, tendentious public opinion campaigns not only foreign to ANY legal argument, but intently obfuscating them and replacing conventional reason with a mannic and highly prostituted set of rhetorical strategies meant to compromise ANY legitimate claims by Israel.
    To this extent, any intelligent contribution attempting to redress reason is relegated to the crude and seemingly efficient world of splitting the world of decency into camps which can only rely, in true practical terms, on the presuasion of brute force. It may sound irrational, but, as long as Israel shall evince the strong PHYSICAL preparedness it is in against any possible attempts by its dedicated enemies, her cause shall be well……defended.
    Iran is the very case in point. Israel is the only expected entity which could deliver the necessary blows to a country which treats with masked defiance a world which is trying so hard to install geopolitica order of the civilised kind. The entire West relies on Israel to get stuck eventually into a defiant Iran. Israel has everything to gain from a a decisive strategy cum action, something the rest of its “critical frinds’, the same West, are counting on.
    In the world of tachles Israel has the strongest, most dependable”voice”.

  9. It is worthwhile keeping in mind that not only is “illegality” hereditary, that is it can be passed from generation to generation as if it was UNWRA “refugee” status, it is also potentially infectious.

    If Jews living on the wrong side of the “Green Line” are “illegal”, even in Jerusalem, then why not Jews living in Israel outside of the 1947 partition plan? Article 49 of the Fourth Geneva Convention dates from 1949. But it has been resolved that the Convention is part of “customary law” and therefore binding on non-signatories to the Convention. And if “customary” international law means anything, it also means it has always been the “law”. Including in 1948.

    • Leon Poddebsky

      No; the 1947 partition plan was just that, a PLAN.
      It was a NON_BINDING RECOMMENDATION of the UN General Assembly, not even the Security Council.
      Once the Arabs rejected it and started a war, it lost even any tenuous authority that it had originally had.

      With regard to the “customary law ‘ of the Geneva Convention, are you saying that it has RETROACTIVE application?
      As I understand it, in any enlightened legal system the law must be accessible to all( even if not accessed by all) within the jurisdiction. How can a future law have been accessible to people before it was legislated?

      • Leon Poddebsky

        …but, given the egregiously unfair and outrageous treatment to which Israel is subjected daily by the Western “intelligentsia”, anything is possible.