Friday, July 20, 2012

Berman's Post-Modernist Cultural International Law

We have an anti-Levy Report opinion that seeks to undermine the "international law" approach.

It's here, penned by Nathaniel Berman, a professor of  International Affairs, Law, and Modern Culture at Brown University’s Cogut Center for the Humanities.  (And I think "culture" is the key term there)

His op-ed at The Times of Israel is entitled -

San Remo in Shiloh: 

The settlements 

and legal history

Here are his salient points

... I will refrain from giving an overall analysis, and will focus only on those aspects that set it in the context of legal history. The Commission’s report operates in something of a parallel legal-historical universe, one in which legal evolution stopped sometime in the 1920s and in which the majority of international lawyers writing after that era simply do not exist.

Is he a post-modernist?  Is there such a thing as that in international law?  Is so, when do the 1949 Geneva Convention human rights law principles get "stopped"?  Or, on the other hand, when does a law professor have the right to deny the existence of historical international law?

...two of the report’s assertions stand out. First, that Israeli rule in the West Bank cannot be considered an “occupation” in the legal sense because the land was not conquered from an internationally recognized sovereign (what Blum calls the “missing reversioner” theory), and that international law applicable to occupations, including the Geneva Conventions, does not, therefore, apply. Second, that Jewish settlement activity today is legally authorized under the 1917 Balfour declaration calling for the “establishment in Palestine of a national home for the Jewish people;” the Four-Power 1920 San Remo Resolution that, among other things, adopted the Balfour Declaration; and the 1922 British League of Nations Mandate for Palestine...

The report’s conclusion – that there is “no doubt that, from the point of view of international law, the establishment of Jewish settlements in the region of Judea and Samaria does not suffer from illegality” – actually understates its case: its logic is that such settlement is strongly encouraged by international law.

So, what's his problem?

Ah, here it is:- the first place, from the fact that its international legal arguments have virtually no support within the discipline, beyond the narrow circles of former or present Israeli government officials and a handful of non-Israeli Jews associated with staunchly right-wing views on Israel. It would not be an exaggeration to say that at least 90% of international lawyers – including the International Court of Justice – firmly reject the position that the report announces as representing the “point of view of international law.” Of course, one can argue that the overwhelming majority of international lawyers are wrong, either legally or morally or both.

Remember the "silly proof" of his argumentation line?  If one million flies alight on a piece of rotting meat, does that mean it's a good thing, for humans that is?

Berman calls this opinion an "oddity"

...even more so in international law, where “legal opinion,” known to lawyers under the Latin phrase “opinio juris,” plays such a large role in the determination of legal rules. It is as though the Commission were operating in an alternative legal universe, populated only by a handful of pro-settler lawyers. The notion that there is no “occupation” due to the absence of a recognized pre-occupation sovereign (the “missing reversioner”), and that Jewish settlement in the West Bank is legally justified by a string of early 20th century documents, suggests that the report is operating in a parallel temporal universe – much in the way that its seeming ignorance of the quasi-consensus of legal opinion against its views suggests that it is operating in a parallel disciplinary universe. 

He then deals in particulars:

...The Balfour Declaration...was simply of no legal significance; it was a statement of British policy in relation to territory over which, at the time, it had neither control nor any legal claim. 

But its wording was adopted and included in all subsequent acts of international law despite this claim:.

The San Remo Resolution...however, was not a treaty and not formally binding; it was a statement of intent by its signatories to embody its conclusions in a treaty.

But it was included in the League of Nations decision to grant Great Britain the Mandate and formed the basis of all future reports and deliberation thereon in the League of Nations Mandates Commission

...By contrast, the Mandate instrument granting Palestine to British rule, obliging the British to pursue the goals of establishing a “national home for the Jewish people,” 

Er, Prof. Berman, you under-quoted.  "Reconstituting" is the operative word you left out from the next paragraph in the preamble:

Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country:

That recognition, even better than international law, sinks your approach.  You cannot now try to alter a framework of international law agreements, understandings and contracts that on based on history by saying that history doesn't count.

And Berman continues ,

and encouraging “close settlement by Jews on the land,” was a clearly legally binding international treaty. The ultimate basis for the Palestine Mandate was the Covenant of the League of Nations...

Thank you for that, sir.  And he nevertheless attempts to trump us:
...what has developed in international law in the intervening century has been precisely a powerful current rejecting the notion that the interests and intentions of powerful states are the alpha and omega of legal analysis. The two key principles of this current – the self-determination of peoples and the human rights of individuals – have considerably diminished the legal import of minute analyses of imperial memoranda and pronouncements. Rather, this current has elaborated the principle articulated by Woodrow Wilson in 1918 that “peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game.” This current ultimately led to the delegitimation of classical colonialism and the emergence of the view, expressed by a judge of the International Court of Justice, that institutions such as the League Mandate system...

Well, first, Wilson came out in favor of a Jewish National Home in Palestine.  Harding, too, in 1922.  Second, the US Senate and House passed declarative resolutions in 1922 affirming America's backing for the Mandate, based on the Balfour Declaration and confirmed that in the Anglo-American Treaty of 1924. All this is post-1918.  But he's post-modernist so he commands us not to ignore

the legal consensus that emerged gradually over the past century, but particularly since 1960,

Yes, law approaches can move on but they cannot erase what went before.  For example, the 1947 UN Partition recommendation included this stipulation

The Security Council determine as a threat to the peace, breach of the peace or act of aggression, in accordance with Article 39 of the Charter, any attempt to alter by force the settlement envisaged by this resolution;

My thinking would be that the moment the Arabs launched their war of aggression on November 30th, 1947, this recommendation was a dead letter.  We are left with a void.  And in going to a war of terror between 1949-1967, the Arabs, for a second time, renounced all claims to assistance from international law, leaving Israel in place with the better claim to administer the territory of Judea, Samaria and Gaza if only on the basis of ad victorem spolias.  And 1967 was post-1960.
And let's not forget that the President of the ICJ between 1997-2000 very much disagrees with Berman, supports the Levy Report in essence/  And this was also post-1960s.  All Berman's examples from the 1990s then are irrelevant to genuine legal opinion about Israel's just rights.

His harping on this

...a change in circumstances – known to international lawyers as “rebus sic stantibus,” can nullify a treaty provision. It is hard to think of a clearer case for the application of this doctrine than here. The policy of encouraging “close settlement of Jews” was aimed at furthering the establishment of a “national home” and can hardly be relevant when not only a “national home” has been established, but an internationally recognized state, a UN member for 64 years.

caused me to leave this comment at his op-ed:

I am not an expert or academic diplomaed lawyer though I have read a lot and think I am a rational-thinking person - but if the argument goes that things change and the law should change, what do I do with the fact that Arabs not only never recognized what the world did, did not accept what the world - all the civilized world at that time which was the Jewish national home had to be reconstitituted in Palestine - decided and moreover acted violently from 1920 onwards, never agreed to any compromise nor any partition, constantly went to war, engaged in terror, etc. That negation and refusal never altered. So, should that approach be awarded? If you discount Zionists depending on a 90-year old situation, why should we kowtow before a 90-year old plus policy of violence? They get rewarded for sticking, literally, to their guns but we Jews, sticking to international law, are punished? Does that make sense? If I signed a contract with you Prof. Berman that your pension rights belong to me and 50 years go by (well, we are living longer nowadays) can that contract be abrogated? Or reverse, I am a millionaire and we signed that my fortune goes to you after 120 of my years? Can a cancel it for changed circumstances? Nu?

When your argument is weak, get nasty and so he overextends himself:

But the “change of circumstances” goes more deeply, to the core legal values at stake. The Mandate system, based on the racially paternalist, if not simply racist, notion of “peoples not yet ready to stand up under the strenuous conditions of the modern world,” cannot be used today to deem the wishes of a population to be of no legal weight. On the contrary, current international law requires that, to the extent that the Mandate system continues to be relevant to a particular territory, it must be reinterpreted to dictate the implementation of self-determination for the population...It is the Levy Commission’s seeming ignorance of such decisive legal developments which enables it to have recourse to such dusty artifacts of imperial history as the San Remo Resolution.

Hello?  The Mandate system of the League of Nations provided for the local population by establishing countries, well, mandates for the same, in Syria and Lebanon (one unit; now there's a historical joke) and Mesopotamia, i.e., Iraq, with knowledge that other Arabs countries already existed.

Prof. Berman, international jurists, lawyers, diplomats, etc. all ignored the right of self-determination for "Palestinians" because there was no such people.  They even admitted so and denied their existence, demanding into the 1920s to be united with Syria.

And so, to apply retroactively and anachronistically a concept of post-modern cultural creationism, that there is or even was a "Palestinian people" that should have then or even now benefit from the 1918-1922 deliberations, and ignoring the Feisal-Weizamnn (temporary) agreement, is, well, a bit of a sleight-of-hand illegality.  And, as a Jew, to snidely slip in "racism" is immoral as well.



Bashi is the executive director of Gisha] 

...While predictably, progressive jurists and many from the intellectual left inside Israel vilified the report (see this editorial by Israel’s respected Haaretz daily), others, myself included, appreciate the report’s revolutionary potential. Well, maybe revolutionary is too strong a word, but for those of us troubled by the transfer [Sari, there was no transfer - YM] of 350,000 Jewish settlers into the West Bank (exclusive of east Jerusalem)...the de facto annexation of large swaths of the West Bank, the report unmasks the comfortable lie that Israeli government lawyers have told the courts and the rest of the world for decades, namely that Israel’s presence in the West Bank is temporary and that measures designating Palestinian land and natural resources for Israeli use are motivated by security concerns...

...I enthusiastically endorse its candor......The Levy Committee tells it like it is. And in telling it like it is, it pushes Israelis to decide: Do we want to adopt the committee conclusions, which endorse exercising sovereignty over the West Bank while denying its 2.6 million Palestinians not just the rights of citizens but even – the basic protections of the Fourth Geneva Convention? Or do we want to preserve Israel as a democratic state by ending four and half decades of control over 4 million Palestinians, in the West Bank and Gaza, who have a right to freedom from foreign rule?

Sari, first sovereignty, then, better than the Pal. Authority, the Arab residents, as citizens or not, will be better treated.  More rights, freedoms and liberties in all spheres of life.




From Dore Gold:-

Levy's committee has restored Israel's legal narrative about its rights in the West Bank. There are those who charged that in rejecting the application of the term "occupation" to the Israeli presence in the West Bank, the Levy committee's report will set the stage for eventual Israeli annexation of the territories. Of course these concerns are baseless. The report of the Levy committee says absolutely nothing about what political solution for the future of the West Bank is desirable. 

Israel is not going to persuade its international critics to change their views on the status of the territories. Nonetheless its conclusions are still important for one diplomatic scenario, in particular: a negotiated end of the Israeli-Palestinian conflict in the future. For at the end of the day, there is a huge difference in how a compromise will look if Israel's negotiating team comes to the peace table as "foreign occupiers," who took someone else's land, or if they come as a party that also has just territorial claims. The Levy Report is first of all for Israelis who need to understand their rights which unfortunately have been forgotten since the days of Abba Eban and Chaim Herzog.

Levy's discourse is relevant for the Palestinian side in one important respect. If the Palestinians are constantly fed by the international community the "occupation" narrative, their propensity to consider making a real compromise, which is critical for any future agreement, will be close to nil. In fact, this false narrative only reinforces their mistaken belief in the delegitimization campaign against Israel as an alternative to seeking a negotiated settlement of the conflict. Rather than creating a setting for diplomacy to succeed, it only makes a real Middle Eastern peace more remote than ever.



Anonymous said...

The points you raise are good. However, Prof Berman points a weakness in the Levy Commission Report: while faithfully restating the Rostow-Stone analysis of Israel's legal rights in Judea & Samaria, the report largely fails to address the countervailing scholarship and advisory case law on this issue.

Ignoring these authorities weakens the case for Jewish settlement. There definitely are good arguments to refute what is now the overwhelming consensus among international jurists. It was a mistake for Alan Baker to have ignored these authorities. Note that on the domestic Israeli law sections of the report, its authors did not hesitate to rebut the contrary opinions.

Anonymous said...

this, too, from Gold:-

the International Committee of the Red Cross (ICRC) in Geneva published a study on the subject of occupation in April 2012 that concluded that the term had unquestionably acquired a "pejorative connotation." Experts attending the meetings of the ICRC recommended replacing the term with new legal nomenclature to get wider adherence to international humanitarian law by those who were occupying foreign territory but wanted to avoid the occupation label.

Bernard Ross said...

First "The policy of encouraging “close settlement of Jews” was aimed at furthering the establishment of a “national home” and can hardly be relevant when not only a “national home” has been established, but an internationally recognized state, a UN member for 64 years." The settlement was mandated west of the jordan river. due to the JOrdanian occupation, and subsequent GOI negligence, the duty to facilitate the settlement was ignored. Although there is a jewish nation and a jewish national home the mandate has not been fulfilled in the srea where the state of Israel is not currently soverign. It is incumbent upon the state of Israel as successor to the Trusteeship,as administrator of the area mandated for Jewish settlement to fulfill its legal obligation under the UN Charter, and its antecedents, to encourage the settlement of jews west of the jordan river. I go further to state that the GOI should be liable to suit if it does not "encourage" close Jewish settlement west of the JOrdan river.

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