From Fake News To Fake International Law: Claiming Israel Is Apartheid (Daled Amos) ~ EoZ

Wednesday, February 9, 2022

From Fake News To Fake International Law: Claiming Israel Is Apartheid (Daled Amos)

By Daled Amos

It is nothing new for self-described experts in international law to join together to accuse Israel of evil.

A year ago, critics came out of the woodwork to claim that Israel had an obligation, under international law, to provide free Covid vaccines for all of the Palestinian Arabs under the Palestinian Authority. They pointed to Article 56 of the Fourth Geneva Convention, claiming it proved that Israel, as an "occupying power" bore responsibility for public health. In his article, Fake International Law Is the Newest Anti-Israel Libel, Eugene Kontorovich pointed out that those making this claim overlooked -- or ignored -- the Oslo accords, which provide that the "powers and responsibilities in the sphere of Health in the West Bank and the Gaza Strip will be transferred to the Palestinian sides." He went on to explain that even on its own terms, the Fourth Geneva Convention would not apply.

Kontorovich also noted that among those who mistakenly claimed that Israel was obligated to provide Covid vaccines were Human Rights Watch and Amnesty International.

HRW and Amnesty International?

Those are the 2 "human rights groups," along with B'tselem, who are now twisting international law in order to accuse Israel of Apartheid.

But first some context.

This is not the first time we have seen international law weaponized to attack Israel. Far from it. We have seen misleading statements and inaccurate analyses. But we have also seen fake international law, where there is one standard for the rest of the world and a different standard or interpretation when it comes to Israel.

In his 2013 article, Manipulating International Law as Part of Anti-Israeli “Lawfare,” Robbie Sabel -- a member of the law faculty at Hebrew University, found no less than 10 examples where international law is manipulated in order to attack and discredit Israel.

Here is a condensed version of his 10 examples, including the "apartheid wall" (#5):

1. UN General Assembly Resolutions

UN General Assembly resolutions are merely recommendations and are therefore not binding. Just as they are not binding, those resolutions do not create actual international law -- and a state cannot be held to be "guilty" of violating them.

Sabel notes:

the claim is frequently heard that Israel is “violating” General Assembly resolutions. Apparently there is an interpretation of the UN Charter that is applicable only to Israel.

2. UN Security Council Resolutions

Just as with General Assembly resolutions, Security Council resolutions are not binding -- unless the council invokes Chapter VII of the charter, declaring that there has been an act of aggression by a state or that a state’s action is a threat to world peace or security:

The Security Council has never made such a declaration regarding Israel, nor for that matter has it ever made such a declaration regarding Arab aggression against Israel.

The Security Council, like the General Assembly, is a political body. Its resolutions are political statements, not legal judgments.

3. “Illegal” Military Occupation

In armed conflict, international law clearly allows military occupation. That may explain why the UN Security Council has never declared Israeli occupation to be illegal, knowing that occupation is legal in the case of an armed conflict. That was the case with the Allied occupation of Germany and Japan after WWII, and the US occupation of Iraq after the Second Gulf War -- the legality of the latter was explicitly confirmed by the Security Council.

Nevertheless:

The fact that Israel was acting legally has not, however, deterred its detractors from attempts to attach to Israeli activity the invented new international legal concept of “illegal occupation.”

4. The “Right of Return” of Arab Refugees

According to international law, a state's nationals have a "right of return" and the state, therefore, must allow its nationals into its territory. Some believe that right should also apply to permanent residents, but no state seems to have adopted such a position. Governments interpret the rule as meaning that the right applies only to nationals.

There has been an attempt, however, to repurpose this into “a well-established norm in international law and practice” which gives a right to all Palestinian Arab refugees to “return” to Israel, even though they are neither nationals nor permanent residents of Israel.

In the case of Palestinian Arabs, the very term refugee has been redefined to include all direct descendants, to the extent that:

The Arab claim is now that even though the person involved was born in another country as were his parents and grandparents and they may be nationals of another state and permanent residents of another state, nevertheless international law grants them a right to “return” to Israel.

5. "Apartheid Wall"

The separation fence built by Israel as a defensive measure against terrorist attacks is often referred to by critics as being a "wall" -- and by some even as an "apartheid wall." They point to the decision of the International Court of Justice in December 2003 that the fence is illegal according to international law.

What the court did not do, however, was make any reference or analogy whatsoever to apartheid. Neither did the court deny that Israel had the right to build such a fence in the interests of security. What the court criticized was the route along which Israel built the fence.

Noting how the various apartheid laws In South Africa were based on racial segregation, Sabel wrote at the time that

The crux of the accusation against Israel lies in the often-repeated charge that its racism “is symbolized most clearly in Israel’s Jewish flag, anthem and state holidays.” The accusers have not a word of criticism against the tens of liberal democratic states that have Christian crosses incorporated in their flags, nor against the numerous Muslim states with the half-crescent symbol of Islam as their state symbol. Again, there appears to be a special legal definition of apartheid where Israel is concerned. [emphis added]

6. The Legal Status of The "Green Line"

The 1949 Israel-Jordan Armistice Demarcation Line, known as the “Green Line,” is often used as the basis for negotiating a border between Israel and a future Palestinian state. But it is only an Armistice Demarcation Line, and when Israel and Jordan signed their peace agreement in 1994, the two countries mutually acknowledged the termination of the Armistice Agreement.

In accordance with international law, international boundaries survive the demise of the treaties that established them. This, however, is not true of ceasefire or armistice-demarcation lines. The temporary nature of a ceasefire or armistice line is such that their validity expires with the expiration of the ceasefire or armistice. Therefore, formally, there is no longer any legal validity to the Green Line.

Yet the "Green Line" is often manipulatively presented as a legally binding border.

7. Commissions of Inquiry

When the US, UK or any other democratic state establishes a judicial committee of inquiry to investigate their armed forces, world opinion views it as a reflection of that countries democratic values.

Nevertheless, when Israel sets up such a judicial commission of inquiry, it nearly automatically encounters demands that the commission must include non-Israeli participation. Thus, apparently, there is one international rule for Israeli commissions of inquiry and a different one for the rest of the world.

8. “Occupied” Gaza

Noting that Gaza is completely under Hamas control and subject to Hamas-created laws, Sabel points out that according to international law, for Gaza to be considered under Israeli occupation, it would have to be placed under its authority -- something it clearly is not. The blockade, which is in place for security reasons to prevent arm shipments from entering Gaza, does not constitute occupation.

Even according to the International Committee of the Red Cross (ICRC):

occupation could not be established or maintained solely through the exercise of power from beyond the boundaries of the occupied territory; a certain number of foreign ‘boots on the ground’ were required.

And yet the ICRC continues to contradict itself and maintain that Gaza is in fact occupied -- proving, according to Sabel:

Again, there appears to be a unique definition of “occupation” applicable only to Israel.

9. Laws of Armed Conflict

Here, there are 2 areas where international law depends on whether or not Israel is involved:

(1) Disproportionate Force

There are 2 requirements of proportionality in armed combat according to international law:

1. It is prohibited to attack a military target if it will cause civilian casualties that are excessive in relation to the military advantage to be obtained.
2. Measures of self-defense must be proportionate to the threat.

And then there is the third requirement.
The one that applies only to Israel:

3. Israel must not use weapons that are not proportionate to the weapons used by terrorist groups

For every other army on the planet, it is understood that they will use superior force and arms against the enemy.

(2) Civilian casualties

Although civilian casualties are practically unavoidable in times of war -- especially when weapons are kept in civilian areas, as is the practice of both Hamas and Hezbollah -- deliberately targeting civilians is a violation of international law.

However, as far as Israel is concerned, any enemy civilian casualties are presented as the result of a “war crime,” even though it is acknowledged that Israel takes immense steps to try and prevent and minimize civilian casualties.

10. Self-Defense Only against Attacks from States

Article 51 of the UN Charter, recognizes the “inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”

But in the context of its decision on the separation fence, mentioned above, the ICJ came to the conclusion that Article 51 required that an attack must originate from a foreign state itself and not from terrorists operating from a foreign state -- although there is no mention in the UN Charter of such a requirement.

Sabel writes:

This strange dictum of the court has not been followed by other states, and one academic writer notes that “State practice strongly suggests that the international community has recognized a right to use force in self-defense targeting nonstate actors in foreign territory to the extent that the foreign state cannot be relied on to prevent or suppress terrorist activities.

These examples show a clear and consistent pattern of reinterpreting international law when it comes to Israel.

When NGO's like B'tselem, Human Rights Watch and Amnesty International recently attacked Israel as an apartheid state, they again resorted to the fake international law, even going beyond the accusation of apartheid that Sabel addressed.

A key issue, of course, is to first define what actually constitutes apartheid.

The challenge facing these groups is that South Africa has served as a model for what apartheid looks like, but that makes apartheid into a matter of racial discrimination, which would not apply to Israel's dealing with Palestinian Arabs.

So, as Elder of Ziyon illustrates, B'tselem fudged the definition in a leading question when it foisted their definition in a poll:

“A regime in which one group controls, and perpetuates its control over another, through laws, practices and coercive/forced means is considered an apartheid regime. In your opinion, does this description fit or it doesn’t fit Israel?”

This definition is of B'tselem's own invention, neatly sidestepping the Rome Convention, according to which

"The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; [emphasis added]

According to B'tselem, that definition applies to everyone else. But for Israel, international law can be fabricated so that it bypasses the inconvenient issue of race.

Human Rights Watch goes a step further. In addition to the Rome Statute, HRW includes The Convention on the Suppression and Punishment of the Crime of Apartheid (the Apartheid Convention) which defines apartheid

“which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa” – as covering “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them”. [emphasis added]

But HRW then claims an expanded definition of "race" based on The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which defines "racial discrimination" in Article 1(1) as “any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin" [emphasis added] -- which would then apply to the Palestinian Arabs.

This is where Elder of Ziyon notes that HRW deliberately omitted Article 1(2) which immediately follows:

This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens. [emphasis added]

The point is that the expanded definition of racial discrimination according to ICERD itself does not apply to the distinctions/restrictions that a country makes between their own citizens and non-citizens, something that countries around the world commonly do. In Israel's case, this applies to Palestinian Arabs living under the Palestinian Authority who are not citizens of Israel. Under ICERD, Israeli distinctions and restrictions on Palestinian Arabs would not automatically qualify as apartheid.

Amnesty International tries its hand as well to shoehorn Israel into being an apartheid state.

Like HRW, Amnesty International refers to ICERD too, but deserts HRW, admitting "it does not explicitly define apartheid." Instead, they claim that they are the ones that have found the law that proves Israel is Apartheid:

The public international law prohibition of apartheid is best found in an advisory opinion by the International Court of Justice relating to South Africa’s presence in Namibia, where the violation is defined as “distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights.”

The problem is that the ICJ was addressing the issue of apartheid -- it was addressing whether South Africa was in violation of the UN Charter or not:

130. It is undisputed, and is amply supported by documents annexed to South Africa's written statement in these proceedings, that the official governmental policy pursued by South Africa in Namibia is to achieve a complete physical separation of races and ethnic groups in separate areas within the Territory...

131. Under the Charter of the United Nations, the former Mandatory had pledged itself to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter. [emphasis added]

The ICJ found not that those racial distinctions were apartheid, but rather that there was a violation of the UN Charter.

Once again, as it did in the case of Israel's separation fence, the ICJ again did not call the issue before it a case of "apartheid."

This difficulty that B'tselem, Human Rights Watch and Amnesty International have in finding a straightforward definition of apartheid that they can apply to Israel may explain odd comments they make on just what they are trying to do.

Eugene Kontorovich writes that what Btselem claims clinched the deal, actually did anything but:

Btselem says what has sent Israel over the brink to Apartheid is the Nation State Law and political discussions about applying Israeli law to the West Bank (“annexation”). This is perhaps their most ludicrous statement.

Kontorovich's reasoning is that first of all, the Nation State Law was not an apartheid law. Its provisions relating to national identity are similar to those in many European democracies and secondly, "annexation" has nothing to do with apartheid.

Meanwhile, HRW claims their report

does not set out to compare Israel with South Africa under apartheid or to determine whether Israel is an “apartheid state”—a concept that is not defined in international law. Rather, the report assesses whether specific acts and policies carried out by Israeli authorities today amount in particular areas to the crimes of apartheid and persecution as defined under international law.

It is not at all obvious that HRW avoids comparisons to South Africa out of principle or simply because any comparison to South Africa invalidates their argument.

Amnesty International also makes a point of insisting they are not comparing Israel to South Africa:

Amnesty International notes and clarifies that systems of oppression and domination will never be identical. Therefore, it does not seek to argue that, or assess whether, any system of oppression and domination as perpetrated in Israel and the OPT is, for instance, the same or analogous to the system of segregation, oppression and domination as perpetrated in South Africa between 1948 and 1994. [emphasis added]

To which Elliot Kaufman of the Wall Street Journal responds: