I was asked a few weeks ago why International Law matters
when working on Israel issues. I confess
to being very taken aback by the question.
Why wouldn't International Law matter?
Why should Israel be exempted from the norms that are supposed to guide,
inform, and yes restrict, the actions of all states? The more I thought about the question the
more it dawned on me that there were three underlying issues: 1) Why does law of any kind matter? 2) What exactly is international
law? and 3) Are the UN and all international human rights bodies
inherently and blatantly anti-Israel?
I'm not sure how to answer number one. I'm not an anarchist. I think that the vast majority of the time it
is important to have a legal system. To
be sure, that system should be as fair, just, and unbiased as possible, and
often people have to struggle against unjust laws and legal system. But I think laws matter, and if that is
really the core issue then there is not much more I can say to assuage the
fears that underline the original question about Israel.
Number two is much more complex. Yes, I took five international law classes in
grad school, and perhaps therein lays my problem. I know just enough about international law to
understand how little I really know, and yet I know a great deal more than
most. The challenge of how to distill
five classes of knowledge down into a short and simple answer is a great one
indeed, but I will try. International
Law has many constituent pieces including: customary law, conventions and
protocols (multi-lateral treaties), and treaties (bi-lateral agreements, usually
between two states). Some of these laws
are trade agreements like NAFTA, others attempt to regulate the way that wars
are fought and civilians are treated during armed conflict like The Hague
and Geneva
Conventions, while still others like Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW) and United
Nations Convention Against Torture (CAT)
seek to protect individuals from specific human rights violations.
Traditionally, International Law referred to the set of laws that
govern the conduct of states in their relationships with one another, where
state actors were considered to be the only actors on the international
stage. This makes traditional
International Law different from what one generally thinks of a legal system as
being; a set of laws that is primarily concerned about the relationship between
a state and its citizens. However, as
international relations have evolved so too has International Law. International Law is now beginning to cover
state relations with international institutions and other non-state
actors. Additionally, in some instances
individual people, under the emerging principle of universal jurisdiction, are
now being held directly accountable to international criminal laws. But the laws that seeks to protect human rights
is most often what people think about when they hear term International Law.
The shift in International Law to protect the rights of
people beyond the battlefield began in 1948 with the Universal
Declaration of Human Rights and the Convention
on the Prevention and Punishment of the Crime of Genocide, in response to
World War II and the Holocaust. While The Hague
and Geneva
Conventions address rights directly relating to wars and combat situations,
subsequent human rights conventions have sought to cover the full range of
human rights. International human rights
law is just one part of International Law but is nevertheless derived from a
verity of sources, both international and national. One of the most important sources of human
rights law is the UN
Charter itself.
Including the UN Charter, to which Israel's own Declaration of Independence says that Israel
will be faithful; there are a large number of conventions and treaties that are
relevant to discussions of International Law in relation to Israel. Though Israel was not established until 1948,
International Laws such as The Hague
and Geneva
Conventions (the first three of which were ratified proir to 1949) are applicable to Israel. Isreal is bound by them because they
are now a part of Customary International Law and are binding on all states. In addition to binding Customary
International Law, Israel is also a signatory party to the eight major human
rights conventions.
This brings me to
number three. My short answer is no, the
UN and other international human rights bodies are not all inherently and blatantly
anti-Israel. Within the UN structure
there are numerous bodies that are charged with monitoring and adjudicating
human rights issues; the Human Rights Commission being just one of seven bodies
that were established under human rights conventions, in addition to the two
permanent courts and several ad hoc courts and tribunals that have also been
established. International Law, the UN, and International human rights law are
much more than just the Human Rights Commission. It is important to state that because many casual
followers of human rights and the UN frequently point out the bias of the Human
Rights Commission, as if that one body were the totality of the UN's efforts on
human rights and representative of a monolithic position on Israel. It is not and does not.
I would love to elucidate the human rights implications of
Israeli policy on a number of specific cases or issues. I could write entire graduate level papers
about why the ICJ ruling on the Separation Barrier was legally sound and not biased
against Israel. I have written a paper
on why many of Israel's interrogation methods violate the CAT. One issue that I can give a brief answer is
that of the Settlements. Quite simply,
the Settlements are a violation of the Fourth Geneva Convention, Section III,
Article 49: "The Occupying Power shall not deport or transfer parts of its own
civilian population into the territory it occupies." The law itself is clear, and in the case of
Israel means that a state policy that supports Israeli citizens moving into
occupied territory constitutes a violation of this law.
In addition to the straight forward meaning of Article 49, the
Geneva Conventions as a whole lay out the obligations that an occupying power
has to the population being occupied. That's
right; according to the law by becoming an occupying power Israel becomes responsible
for upholding the rights of the people under its control. Let me put it another way, under international
law Israel is responsible for the safety, security, and protecting the rights
of the Palestinians living under occupation.
In my mind the core issues are not if International Law
matters, if it should be applied to Israel, or if applying International Law to
Israel somehow makes one anti-Israel. International Law matters. It should be applied to
Israel. And while one UN body is clearly
biased in its dealings with Israel that does not negate the rest of the UN, or International Law, and Israel's responsibilities under those
laws. The real issue is that Israeli
policies like the Settlements and the Separation Barrier clearly violate International Law and many Jews and Israelis are afraid to own up to those
violations and their ramifications. It
is important to be honest about how and where Israel falls short of the ideals
it laid out for itself and that many of us hold it to. As painful as it is that Israel violates international
law, it cannot be ignored that it does, and those of us who care about Israel
have a responsibility to help it do and be better.
In his State of the Union address Wednesday night, President Obama assured the American people that he would continue to aggressively pursue his domestic agenda in 2010. He summed up his determination at the end of the speech with a rousing, "I don't quit" guarantee.
The Meretz party has 
