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  • 'The Goldstone Report' now belongs to the world
    • If trying to stop Hamas rockets is a “war crime” then international law is a sorry joke.

      Rule 1. War crimes do not stop Hamas rockets. Rule 2. Don't try to change the subject by appealing to fallacies. Rule 3. Read rule 1.

    • this has become a PR war

      Nope, both sides have admitted it is a real international armed conflict to which the rules in IHL and IHRL apply. Neither, PR nor Hasbara constitute grounds for excluding criminal responsibility under Article 31 of the Rome Statute.

    • Was shooting the school bus with an accurate weapon (an anti-tank weapon) and seriously injuring a teenager terrorism or not?

      The answer is quite obviously yes. Israel has circumvented the machinery of international law that could have prevented the incident from happening in the first place or brought the responsible individuals to justice:

      Persons responsible for committing war crimes by the firing of shells and rockets into civilian areas without any apparent military advantage should be apprehended or prosecuted. This applies to Palestinians who fire Qassam rockets into Israel; and more so to members of the IDF who have committed such crimes on a much greater scale. While individual criminal accountability is important, the responsibility of the State of Israel for the violation of peremptory norms of international law in its actions against the Palestinian people should not be overlooked.

      .
      The international community has identified three regimes as inimical to human rights - colonialism, apartheid and foreign occupation. Israel is clearly in military occupation of the OPT. At the same time elements of the occupation constitute forms of colonialism and of apartheid, which are contrary to international law. What are the legal consequences of a regime of prolonged occupation with features of colonialism and apartheid for the occupied people, the occupying Power and third States? It is suggested that this question might appropriately be put to the International Court of Justice for a further advisory opinion.

      .
      The Occupied Palestinian Territory is the only instance of a developing country that is denied the right of self-determination and oppressed by a Western-affiliated State. The apparent failure of Western States to take steps to bring such a situation to an end places the future of the international protection of human rights in jeopardy as developing nations begin to question the commitment of Western States to human rights.

      See A/HRC/4/17, 29 January 2007

      There is no way to end the impunity enjoyed by Hamas without addressing the role played by Israel in this sorry affair. You aren't going to distract anyone here with "finger pointing". Reprisals are always illegal, especially when they are directed toward civilians. That's because civilians aren't the guilty parties to begin with. Read your own newspapers and count the number of times the IDF spokesmen say that Israel has launched a "reprisal". Then remember that each one of those is a war crime.

    • “This means that Judge Goldstone still believes that Israel and the Palestinian authorities committed war crimes during the conflict,”

      Is this what he said? I thought he used the term “may”.

      All of the crimes against humanity and war crimes cited in the report fall under the jurisdiction of the International Criminal Court in accordance with Article 5 of the Rome Statute. All of the permitted defenses are listed in "Article 31. Grounds for excluding criminal responsibility". Most of the arguments made in the comments here regarding a "broken cease fire" or "reprisal" for mortar and rocket attacks are irrelevant.

      Here is a list of some of the "war crimes"metioned in the report. It does not contain the "crimes against humanity":

      "From the facts it ascertained, the Mission finds that there has been a violation of the grave breaches provisions of the Fourth Geneva Convention. Unlawful and wanton destruction which is not justified by military necessity amounts to a war crime." -- page 21

      "The Mission concludes that this practice amounts to the use of Palestinian civilians as human shields and is therefore prohibited by international humanitarian law. It puts the right to life of the civilians at risk in an arbitrary and unlawful manner and constitutes cruel and inhuman treatment. The use of human shields also is a war crime." -- page 23

      "The Mission concludes that this treatment constitutes the infliction of a collective penalty on these civilians and amounts to measures of intimidation and terror. Such acts are grave breaches of the Geneva Conventions and constitute a war crime. -- page 23

      "The Mission also finds that the intentional use as human shields of those whose accounts are presented above qualifies as inhuman treatment of and wilfully causing great suffering to protected persons under the Fourth Geneva Convention. As such, the Mission considers the conduct of the Israeli armed forces in relation to such persons to amount to grave breaches of the said Convention. The use of human shields is also a war crime under article 8 (2) (b) (xxiii) of the Rome Statute." -- page 232

      "The rounding-up of large groups of civilians and their prolonged detention under the circumstances described above constitute a collective penalty on those persons in violation of article 33 of the Fourth Geneva Convention and article 50 of the Hague Regulations. Such treatment amounts to measures of intimidation and terrorism, prohibited under article 33 and a grave breach of the Convention that constitutes a war crime. -- page 249

      "...holding the detainees in sandpits without privacy ...This treatment also constituted outrages on personal dignity, humiliating and degrading treatment contrary to the Geneva Conventions, common article 3, and Additional Protocol I, article 75 (2) (b). The abuse, which required a considerable degree of planning and control, was sufficiently severe to constitute inhuman treatment within the meaning of article 147 of the Fourth Geneva Convention and thus a grave breach of the said Convention that would constitute a war crime." -- page 249

      "The Mission finds, on the information before it, that the treatment of the women in the sandpits, where they endured especially distressing circumstances, was contrary to this provision and would also constitute a war crime. -- page 249

      "The Mission has received information relating to the particular treatment received by some witnesses, such as shackling, severe beatings during detention and interrogation, being held in foul conditions or solitary confinement, which added to their already profound sense of degradation. Such treatment violates article 31 of the Fourth Geneva Convention, which prohibits physical or moral coercion against protected persons, “in particular to gain information from them”. This would also constitute a war crime." -- page 249

  • Dugard: Gaza report's principal accusation was reckless, indiscriminate use of force in densely-populated areas
    • lyn117,

      I'd like to add that the equitable doctrine of unclean hands and broken cease fire agreements are no defense against prosecution for reprisals against civilians. International criminal law is not based on contractual obligations. International humanitarian law creates obligations erga omnes that are binding on all of the parties to this conflict. Reprisals against civilians are always illegal.

    • If your judgement and morality leads you to conclude that Obama is probably a murderer then you really have to examine both. ... My argument is that just as the US does not commit crimes, neither does the Israel. And if you are not happy with this standard, you have to change it in the US which is the world trend setter in these issues.

      Not really. Just to set you straight, it already is a crime to commit murder. So, we don't need to change the standard, just enforce the laws that are "already on the books". I've commented here at Mondoweiss on several occasions about the need to prosecute US and Israeli officials who order extrajudicial killings and the lawsuits that have been brought by the ACLU and the CCR against President Obama and Israeli officials in that connection. Here are a couple of examples here, and here. I put my money where my mouth is a contribute to those organizations, so the Knesset may be interested in investigating me.

      The last time I checked the "President" is just an elected official doing a job that is defined by the Constitution. The Supreme Court has ruled on many occasions that the President and the Congress can't authorize acts to be committed outside of the territorial jurisdiction of the United States if they are prohibited by the Constitution. See for example Reid v. Covert

      The 5th Amendment, the Uniform Code of Military Justice (10 USC Chapter 47), and Common Article 3 of the Geneva Conventions prohibit making an individual answer for a capital or infamous crime without an indictment - or depriving them of life without due process of law. The President really only has one sworn obligation - to preserve, protect and defend the Constitution - and seeing to it that the laws are faithfully executed.

      In accordance with Article 15 of the Rome Statute, the Office of The Prosecutor (OTP) can initiate investigations on its own based upon information obtained from open sources. The OTP report to the UN regarding Palestine's Article 12(3) declaration said it had received over 300 communications from the public. Several of those were submitted by yours truly.

      Many individuals and organizations do file formal complaints against US officials with the ICC. None of us are likely to take lessons on morality or the law from you.

    • No you are getting it all wrong. Once you have wounded civilians - including children - laying everywhere, you don't let them go untreated for days on end and try to pretend that is an appropriate response to rocket attacks in Sderot. The battlefield commanders who created that situation need to be hunted for the rest of their lives and brought to justice.

    • In Grozny many more died in less of a time. ...I am not frustrated that international law is not applied across the board. ...I am angry at the specific conclusions you have reached based on absolute numbers that say nothing.

      In 2009 the UN reported that about 1000 people were killed in Dafur, and that Israel killed more than 1300 in 22 days. 3 Israeli non-combatants were killed.

      Both situations appear to be the result of prohibited acts that come under the jurisdiction of the ICC. The Dafar situation is already being investigated and the Palestinians have requested that the Gaza situation be investigated too.

      The proper thing to do would be to investigate and find out why all of those people had to die and bring criminal charges if that is warranted. Israel's supporters can't exonerate the IDF or government officials by climbing up on a soapbox and comparing Israel to other situations that need to be investigated and prosecuted too.

    • Golden Rule,

      In criminal law two wrongs don't create a right to attack innocent third parties. Years ago, Israel was advised by the World Court that it could not excuse the wrongfulness of its actions in the Occupied Palestinian territories on the grounds of it own security or a state of neccessity - because Israel was contributing to the situation.

      Some of us here want the responsible Israeli and Palestinian officials brought to trial so that the occupation can be ended an normal life restored in both states. Sixty years is long enough to declare an end to impunity and the privilege to commit murder on both sides.

    • But of course, you would understand that reading the UN reports about Fallujah and Grozny.

      The US rules of engagement are based on the same Hague and Geneva Convention rules. Those do not allow assaults to be directed at the civilian population of towns, villages, or built-up areas which are occupied by a combatant military force. So, the exception about "assaults" mentioned in the rules below do not apply to situations involving defended cities like Gaza or Fallujah:

      43. Notice of Bombardment
      a. Treaty Provision.
      The officer in command of an attacking force must, before commencing a
      bombardment, except in cases of assault, do all in his power to warn the authorities. (HR, art. 26.)

      b. Application of Rule. This rule is understood to refer only to bombardments of places where parts of the civil population remain.

      c. When Warning is To Be Given. Even when belligerents are not subject to the above treaty, the commanders of United States ground forces will, when the situation permits, inform the enemy of their intention to bombard a place, so that the noncombatants, especially the women and children, may be removed before the bombardment commences.

      I don't know where you've been hiding, but the UN reports on Fallujah did condemn the use of white phosphorus and violations of international law. The UN has demanded that the US investigate reports that US soldiers violated those rules, used torture, and committed war crimes in Iraq and elsewhere. The UN does report that the US and Israel are countries that employ illegal extrajudicial killings as a tool of national policy. That is why the State Department always claims the UN Human Rights treaty bodies are a flawed system. FYI former Bush administration officials and Obama administration officials are being targeted for investigation and arrest in other countries just like Israeli and Hamas officials.

      But even the UN reports noted that the US put up a loose cordon around the city of Fallujah which allowed over 200,000 of the 250,000 residents to leave before the US offensive started. It set-up refugee camps for them in nearby cities and refused to let them return until basic services and facilities were restored. You can read about that here. Unlike Israel, the US did fund and assist in rebuilding the city, e.g. see U.S. Army Corps of Engineers rebuild essential services in Fallujah

      So, there are some notable differences between the two debacles.

    • The Holocaust was the intentional murder of millions of people. Israel is trying to defend itself and as a consequence kills civilians. But keep trying to make the two equivalent.

      They are equivalent because there was no imminent threat posed by the victims in either case and the objective as to deliberately persecute and destroy members of the group. You don't let wounded civilians lay unattended on the battlefield for days on end by accident.

    • There was absolutely no reason for Hamas to continue firing rockets from there.

      You're either completely delusional or being deliberately dishonest. Israel delayed its withdrawal from Gaza until it could construct a separation fence around Gaza. Then it closed the border crossings 240 days out of the year; turned the Mediterranean ocean into a Jewish lake; and created the worlds largest open air prison. The result was predictable: widespread unemployment, a lower standard of living, and instances of malnutrition among the poor. After the 2006 elections, Israel took an leading role in trying to overthrow the Hamas government by force and in directing any reprisals against the civilians of Gaza instead of the actual guilty parties. Today, there are remotely operated machine guns in hardened pill boxes and tanks or artillery that pick-off hapless victims foolish enough to harvest food, tend flocks, or play a game of soccer together. Attempts to bring shipments of aid to the victims turns out to be an offense that warrants summary execution.

      After the war in Lebanon in 2006, the Israelis bad mouthed the UNIFIL observers for inaction. When the draft resolutions were submitted that would have granted UNIFIL authority to use armed force against the IDF in response to cease fire violations, the government wet its pants and withdrew its complaints. Israel has always refused to demilitarize or allow Chapter VII peacekeepers on its own territory, but it never fails to demand that huge areas of the neighboring Arab states be turned into "buffer zones", "no-mans-land", or free-fire kill zones. The Goldstone report is an attempt to end the impunity and reign of terror. That's why you Israelis don't like it.

    • He expresses no confidence that the individuals responsible for shelling Israeli civilians will be held accountable an iota.

      Here are extracts from one of John Dugard's reports on human rights conditions in Palestine from 2007. Please note that despite the fact that Israel was not included in the terms of his mandate - and has never cooperated with any UN human rights rapporteur on its territory - he nonetheless reported on the war crimes that Palestinians were committing against Israelis:

      Persons responsible for committing war crimes by the firing of shells and rockets into civilian areas without any apparent military advantage should be apprehended or prosecuted. This applies to Palestinians who fire Qassam rockets into Israel; and more so to members of the IDF who have committed such crimes on a much greater scale. While individual criminal accountability is important, the responsibility of the State of Israel for the violation of peremptory norms of international law in its actions against the Palestinian people should not be overlooked.

      .

      The international community has identified three regimes as inimical to human rights - colonialism, apartheid and foreign occupation. Israel is clearly in military occupation of the OPT. At the same time elements of the occupation constitute forms of colonialism and of apartheid, which are contrary to international law. What are the legal consequences of a regime of prolonged occupation with features of colonialism and apartheid for the occupied people, the occupying Power and third States? It is suggested that this question might appropriately be put to the International Court of Justice for a further advisory opinion.

      .

      The Occupied Palestinian Territory is the only instance of a developing country that is denied the right of self-determination and oppressed by a Western-affiliated State. The apparent failure of Western States to take steps to bring such a situation to an end places the future of the international protection of human rights in jeopardy as developing nations begin to question the commitment of Western States to human rights. -- A/HRC/4/17, 29 January 2007

  • Israeli NGO to Goldstone: Your statement is already being used to justify and legitimize future crimes
    • Castle Keep,

      I agree with most of the views you've expressed. I'm sort of like Don Quixote's sidekick, Sancho Panza, when it comes to discussions on just war theory. I'm willing to tag along, but I've never actually seen a just war myself, and I think the whole thing may be just a delusion.

      The idea of just wars was discarded when the great powers signed the Kellogg-Briand pact and wrote the Charter of the Nuremberg Tribunal. At least that's why they all re-christened their "War" departments as "Defense" ministries. That subterfuge seems pretty implausible, since the responsibility for defending the homeland usually resides in some other branch of the government. In the US, legislation governing domestic surveillance and the "Posse Comitatus Act" actually results in the military tasking allied countries, including Israel, to spy on Americans and (supposedly) prevents the DoD from securing the borders.

      That being the case, we really shouldn't be discussing "war crimes" in Iraq and Afghanistan, because war itself is a crime. The notion of stationing “citizen combatants in uniform” outside the country's borders, and then bemoaning the fact that they are somehow "in harms way" is simply mental masturbation to me. It certainly doesn't justify killing the people living there as some sort of perverted act of self-defense.

    • Thomson,

      There have been bomb-throwing anarchists and assassins at work in the Zionist movement from its very inception. Survivors, like Zeev Sternhill, can attest to the fact that this isn't a hypothetical discussion about character assassination.

      Some scholars suppose that Yitzhak Ben-Zvi's orders to the Haganah that directed the assassination Jacob de Haan (1924) was the first example of political fratricide in Palestine. The victim was viewed as a threat to the Zionist state building project. There have been other notable examples and suspicious incidents. The Revisionists are suspected of assassinating Chaim Arlozoroff. It has been reported that when he was serving as a member of Lehi's ruling triumvirate, Yitzhak Shamir ordered the execution of one of his own colleagues, Eliyahu Giladi, for "recklessness".

      It has always been an open secret that the same group ordered the assassination of the UN mediator in 1948. The modern-day leadership likes to publicly flaunt that information and the murder of Prime Minister Rabin as a reminder to supporters of a negotiated settlement. For example:

      At Lehi’s 70th anniversary celebration in Jerusalem, National Union MK Arye Eldad (whose father, Yisrael, had been one of Shamir’s partners in the leadership) said from the podium: “Count Bernadotte wanted to internationalize Jerusalem. In response, Lehi killed him. With his death, the concept of taking Jerusalem away from the Jewish people died with him.”

      See Rattling the Cage: One man’s terrorist

      Iranian President Mahmoud Ahmadinejad has called for the end of Zionist rule in Palestine. The Israeli government treats that as if it is a threat to everyone's physical existence. See for example: Netanyahu wants Iran president tried for genocide

      Two of the most embarrassing incidents happened on PM Netanyahu's watches. The attempted assassination of Khaled Mashal and the elaborate assassination of Mahmoud al-Mabhouh in Dubai.

      Back in 1973, Israeli assassins killed the wrong man (Ahmed Bouchikhiin) in Lillehammer, Norway. Bibi's chief rival, Tzipi Livni, was an agent for Mossad in the early 1980s when it conducted similar operations in Europe carrying-out assassinations of Palestinians. So, assassination has always been an integral part of Zionist philosophy and national policy.

    • Prof. William A. Schabas, director of the Irish Centre for Human Rights at the National University of Ireland, Galway, has a detailed legal analysis up on his PhD Studies in human rights blog titled:

      "Richard Goldstone did not Retract the Report"

      link to humanrightsdoctorate.blogspot.com

      He is the author of An Introduction to the International Criminal Court
      2nd Edition, Cambridge University Press, 2004

  • Goldstone headed to Israel in July, hosted by Israeli minister criticized in Gaza report for advocating collective punishment
    • YNet has another report which indicates that Yishai did not coordinate the invitation with the Foreign Ministry or the Prime Minister's office. A high level spokesman is hopping mad:

      "The reason Israel didn't cooperate with Goldstone in the first place was the fact that unlike other judges he agreed to head a committee whose actual mandate was to blame Israel for war crimes,"

      ...

      "This man has caused unprecedented damage to the State of Israel. Thousands of Israeli soldiers and officers are subject to legal proceedings around the globe thanks to him. His article of regret has no legal bearing which could prevent these proceedings from going on further."

      link to ynetnews.com

      That last part sounds encouraging ....

  • Elliott Abrams says Palestinians must forget about '1967 borders' and make a state with Jordan
    • You then have the royals that originally weren’t from there anyway but from the Arabian peninsula and parachuted onto the bedouin population of what became Jordan in the early 20s and they are there on borrowed time that they are trying to extend by the King’s marriage to a Palestinian.

      Jewish Agency spokesmen (born in Poland) actually complained that it would be a violation of the terms of Article 5 of the Palestine mandate to grant Transjordan independence, because it would entail "placing Palestine territory under the control of the Government of a foreign Power". In reality, the provinces of Aqaba and Ma'an were annexed to Transjordan from Hedjaz in 1925. So, the royals have been "home boys" in those parts all along. They acquired Transjordanian citizenship in the same way that the bedouin did under the 1928 Citizenship Law, through habitually residing in the territory acquired from the former Ottoman Empire under the terms of Article 30 of the Treaty of Lausanne:

      "Turkish subjects habitually resident in territory which in accordance with the provisions of the present Treaty is detached from Turkey will become ipsofacto, in the conditions laid down by the local law, nationals of the State to which such territory is transferred."

      Abrams is forgetting that "Jordan" was originally formed as a union between Arab Palestine and Transjordan. The United States was a party to the "Tripartite Declaration Regarding the Armistice Borders: Statement by the Governments of the United States, The United Kingdom, and France, May 25, 1950".

      The State Department published an official "Memorandum of Conversation, between Mr. Stuart W. Rockwell of the Office of African and Near Eastern Affairs and Mr. Abdel Monem Rifai, Counselor, Jordan Legation in Washington, June 5, 1950 which documented the US recognition of the union between Arab Palestine and Transjordan and Jordanian sovereignty over the territory. See Foreign relations of the United States, 1950. The Near East, South Asia, and Africa, Volume V (1950), Page 921

      It also published a letter from President Truman to King Abdullah which said

      "I desire to recall to Your Majesty that the policy of the United States Government as regards a final territorial settlement in Palestine and as stated in the General Assembly on Nov 30, 1948 by Dr. Philip Jessup, the American representative, is that Israel is entitled to the territory allotted to her by the General Assembly Resolution of November 29, 1947, but that if Israel desires additions, i.e., territory allotted to, the Arabs by the November 29 Resolution, it should offer territorial compensation.

      On page 7 of her 'Security Council Resolution 242 at twenty-five' JCPA fellow Prof. Ruth Lapidoth spelled out the need to determine in each case whether the Security Council is exercising its responsibility for the maintenance of international peace and security. That is one of the stated purposes of the "Repertoire Of The Practice Of The Security Council" and the "Repertory of Practice of United Nations Organs". Both of those documents cite resolution 242 as an example of an occasion when the Security Council was exercising those responsibilities and acting on behalf of the members in accordance with article 24 of the Charter. The Security Council Repertoire contains an analytical table of Security Council decisions (Chapter 8) for 1966-1968. Pages 4-5 say that the preamble of resolution 242 contains “substantial measures that govern the final settlement” According to the ICJ one of those is the UN Charter prohibition against the threat or use of force and the other is the prohibition on any territorial gains resulting from war:

      "IV Measures for Settlement"

      "A." Call for compliance with principles and purposes of the Charter
      Situation in the Middle East(II)
      Decision of 22 November 1967 (resolution 242 (1967)) preamble, para 1(ii), second part para 2(c)"

      “E. Provisions bearing on issues of substance including terms of settlement”
      * “1. Enunciation or affirmation of principles governing settlement”
      **”(a) Inadmissibility of acquisition of territory by war,
      Situation in the Middle East(II): Decision of 22 November 1967 (resolution 242 (1967)) preamble”

      The impact of jus cogens norms on Security Council resolutions has been reiterated by Paul De Waart, John Dugard, Enrico Milano, Stefan Talmon, Giuliana Capaldo, Alexander Orakhelashvili, David Schweigman, Erika De Wet, Jeremy Farrall, and the ICJ. The United Nations is unconditionally bound by customary norms, including the prohibition against territorial acquisition as a result of threats or use of force. That being the case, Israel should slouche back to the Armistice borders.

  • U.S. State Dep't concludes Goldstone found no evidence of Israeli war crimes
    • The Assembly of State parties recently adopted an amendment to enable the Court to exercise jurisdiction over the crime of aggression. The US lobbied against it but lost the battle.

      It may actually help turn the Security Council back into a political body. Unlike UN subsidiary organs, the Court is not legally bound by a non-judicial determination by the Security Council that an act of aggression has occurred. If the Security Council fails to act to protect one of the member states, the Court can start an investigation and prosecute individuals on its own behalf.

    • The reality is that international law is highly politicized, and, as currently interpreted by most, does little to acknowledge the problem of non-state terrorism.

      Here we go again. The Oslo Accords and the Gaza-Jericho agreement provided that Israel would exercise its jurisdiction through its military government, which, for that end, shall continue to have the necessary legislative, judicial and executive powers and responsibilities, in accordance with international law. *Note that does not say in accordance with only those international laws that Israel chooses to accept.

      The "right to life" is guaranteed by Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR):

      Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

      Many years ago the government of Israel claimed that it cannot be held internationally responsible for human rights, including the right to life, in the Palestinian territories. It said that Palestinian National Authority had that responsibility:

      The fact that the Palestinian Council does not represent a State, does not, in itself, preclude its responsibility in the sphere of human rights protection. In fact, this is also evident under Article XIX of the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, according to which the Palestinians have taken it upon themselves to exercise their powers and responsibilities “with due regard to internationally accepted norms and principles of human rights and the rule of law”. Similarly, under Article II(C)(4) of the Wye River Memorandum, the Palestinian Police is obliged “to exercise its powers and responsibilities with due regard to internationally accepted norms of human rights and the rule of law, and be guided by the need to protect the public, respect human dignity and avoid harassment”.

      See paragraph 8(3) in CCPR/C/ISR/2001/2, 4 December 2001

      In the 2004 Wall case the ICJ ruled that the ICCPR applied to the occupied territory and that Israel:

      is under an obligation not to raise any obstacle to the exercise of such rights in those fields where competence has been transferred to Palestinian authorities."

      See paragraph 112 of the Advisory Opinion

      The Israeli Supreme Court subsequently ruled that the prohibitions contained in customary international law applicable to international armed conflicts apply. The Court said:

      "that between Israel and the various terrorist organizations active in Judea, Samaria, and the Gaza Strip (hereinafter "the area") a continuous situation of armed conflict has existed since the first intifada.

      ...

      Within that framework, suspects are not to be killed without due process, or without arrest or trial. The targeted killings violate the basic right to life, and no defense or justification is to be found for that violation. The prohibition of arbitrary killing which is not necessary for self defense is entrenched in the customary norms of international law. Such a prohibition stems also from the duties of the force controlling occupied territory toward the members of the occupied population, who are protected persons according to IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention), as well as the two additional protocols to the conventions signed in 1977. All of this law reflects the norms of customary international law, which obligate Israel.

      See the subsection of the ruling under the heading "The General Normative Framework, A. International Armed Conflict"

      In civilized legal systems one man's right is another man's legal obligation. When Anat Kamm revealed that Palestinians were still being denied the "right to life" without due process of law, the Court said it

      was satisfied that the killings were properly authorized by the military chain of command and in compliance with the law and previous High Court rulings.

      There is a legal maxim that for every right, there is a remedy; where there is no remedy, there is no right.

      As the guardian of the right to life, the PNA, made an Article 12(3) declaration accepting the jurisdiction of the International Criminal Court for crimes committed by both sides since July of 2002. Israel and a few supporters have objected. Former Ambassador Dore Gold claims that Palestine is not a State. See ICC: Can PA complain of crimes on 'Palestinian territory'?

      Palestine is member state of the the Group of Asian States, the Group of 77 and China, the Economic and Social Commission for Western Asia, the League of Arab States, and the Organization of the Islamic Conference. The UN has 192 members and 130 of them are in the so-called "G77 and China". So, the majority of existing states have accepted the international legal personality of Palestine as that of another State. 169 UN member states have adopted resolutions stating that the purported annexation of the Holy City of Jerusalem by Israel is null and void and recognizing the "permanent sovereignty" of the Palestinian people over the resources of the occupied territory - including East Jerusalem.

      The codification of the "Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal" said that certain acts were punishable as crimes under international law when they were committed against "any civilian population" - including communities of stateless Jews.

      In 1948, Israel was recognized by less than a dozen other states. Syria wanted the question of Israel's statehood submitted to the ICJ for an Advisory Opinion. Abba Eban explained:

      the theory that the Charter forbids acts of aggression only against States is utterly without foundation. Indeed, neither Chapter VI nor Chapter VII, in defining threats to the peace or acts of aggression, shows the slightest interest in the juridical status of the victim. The word "State" does not occur in either of those chapters. There is no provision whatever that the attacked party must be universally recognized as a State before an armed attack upon it can be determined as an act of aggression. Article 2, paragraph 4, of the Charter forbids the use of force not only if it is directed against the integrity of a State but also if it is used "in any other manner inconsistent with the purpose of the United Nations". Whether you admit what all the world knows, that there does exist the State of Israel in the full exercise of governmental functions, or whether by an enviable flight of the imagination, you can convince yourself that no such thing exists, the Security Council's functions are entirely unaffected.

      That same year one of the permanent members of the Security Council reminded the members that deliberately casting doubts upon the statehood of your neighbors is a early warning sign of aggression:

      the attempts of some delegations in the Security Council to assert that the State of Israel did not exist; and that it had no territory, no people, no frontiers, and no Government. He said At the same time, it is impossible to disregard a strange theory advanced here by the representative of Syria and supported, if I am not mistaken, by the representative of France. The substance of that theory is that inasmuch as the territory and frontiers of the State of Israel and its right of existence are contested by some of its neighbor States, the State of Israel does not exist as a sovereign State and cannot be recognized as such. That theory is not only strange but also dangerous. It is reminiscent of the "theories" which, as we all know, were once upon a time preached by the fascist aggressors who claimed world mastery. According to those theories, it was enough for Hitlerite Germany to cast doubt on the existence of one of its neighbor States for that State to cease to exist, and for its territory to be seized and absorbed into the territory of Hitlerite Germany. Such claims were made by the fascist aggressors in respect of Austria, Czechoslovakia and a number of other European countries, including France. In that connection, all kinds of expansionist theories were advanced concerning the inferiority of the people of certain countries, and were used as justification for seizing those countries. History has given the lie to all such wild theories and their authors have paid a cruel price for their aggressive plans."

      See the Minutes of the 386th meeting of the UN Security Council, S/PV.386, 17 December 1948, pages 12-13

      It is a standard hasbara technique to claim that the majority viewpoint on legal issues is "politicized", while trumping every political discussion with comments about Israel's legal and historical rights. I just thought I'd give you the treatment to show you how it's done.

    • Universal jurisdiction is the "dead horse" of international law. It is much too great of a threat to the impunity of the political leaders of the major powers. The Security Council always had a veto over prosecution in the ICC:

      Article 16, "Deferral of investigation or prosecution": "No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions."

      The African Union, the Arab League, and the Organization of Islamic Conference States have noticed that the new Court is not prosecuting obvious cases of western war crimes. So, they have adopted their own veto powers in cases like Al Bashir.

      The ICC was established outside of the UN organization due to the difficulties involved in amending the UN Charter. It has its own legislative organ, the Assembly of State Parties which can (and has) adopted amendments to its own statute without UN consent. So, the situation may improve over time. If not, it will end-up on the scrap heap of history like the League of Nations and other attempts at international cooperation and organization.

  • Goldstone Report commissioner Jilani says nothing can 'invalidate the UN Report'
    • The Security Council adopted a binding Chapter VII resolution in 1993 that established the ICTY, and the criminal statute that governed its jurisdiction. The same resolution ordered all UN member states to cooperate with the tribunal. As the breakup evolved the new states, were admitted as UN member states, with the exception of Kosovo.

      The ICTY had to demand that Bosnia, Serbia, Croatia, and the other states either investigate and bring persons alleged to have committed crimes subject to the jurisdiction of their own courts to trial, or to enter into extradition treaties with the ICTY so that they could be prosecuted by the tribunal. There were objections, notably from Serbia and Montenegro, that allowing extradition to the ICTY would be unconstitutional. Many of the EU countries had the same "conflict of law" problems and preferred to put fugitives on trial in their own national courts.

      The ICTY cited the fact that it was a UN organ and, in accordance with Article 104 of the UN Charter, the member states had granted the organization "such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes." It also cited the customary principle reflected in Article 27 of the Vienna Convention on Treaties "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty."

      Nearly a decade later, the headlines were still reading U.N. tribunal demands extradition of Milosevic" and the EU was still signaling that prosecution in Serbia would be an acceptable alternative.

      By way of comparison, the ICC does not have universal or compulsory jurisdiction. It cannot exercise its complementary jurisdiction until the states with territorial or in personam jurisdiction prove they are unable or unwilling to prosecute the responsible individuals. So, it customarily invites them to investigate themselves and acts in cases of failure to cooperate.

      When the Security Council attempted to refer the situation in Sudan/Dafur to the ICC, it had to accept a compromise to avoid a US veto. Because Sudan was not an ICC member state, a clause which noted the existence of Article 98 immunity and extradition agreements had to be included in the resolution. As a result, many state parties to the Rome Statute are not even obliged to comply with the ICC request to arrest and surrender Al Bashir until he no longer remains a sitting Head of "a third State". Such a request does not conform with Article 98 of the Rome Statute. See Resolution 1593 (2005); and Article 17 "Issues of admissibility" & Article 98 "Cooperation with respect to waiver of immunity and consent to surrender" of the Rome Statute

      The situation gets even more far fetched when you are dealing with an entity that is recognized and has OIC and Arab League immunity and extradition agreements, but is treated by the west as a non-state for political reasons. Legal scholars who say that the laws of armed conflict are the same for states and non-state actors are usually glossing over a multitude of jurisdictional problems. For starters, Hamas is not one of the State parties to the UN Charter, so it has not agreed to accept the decisions of the Security Council "acting on its behalf" in accordance with Articles 24 and 25 of that treaty.

      The Goldstone report named several "Palestinian armed factions" that are not part of Hamas, and stated that they were launching mortars and rockets from the Gaza Strip. They include the al-Aqsa Martyrs’ Brigades, the Islamic Jihad, the Abu Ali Mustafa Brigades, and al-Naser Salah ad-Din Brigades. Those aren't states either. Hamas cannot at "one and the same time" have the obligations of a "member state" under the terms of the UN Charter, the Rome Statute, the Geneva Conventions, & etc. and also be considered a non-state entity that is ineligible to ratify or accede to those same treaties on its own behalf. It cannot confer jurisdiction on the ICC and the Security Council won't (because of you know who). No UN organ can adopt a resolution that creates legal obligations for a third party, non-member, non-state entity to conduct criminal investigations "meeting international standards" regarding other belligerents that happen to operate from the same territory.

      It was alleged that Kosovo had violated a UN Security Council resolution when it unilaterally declared its own statehood, but two of the Permanent members of the Security Council would not agree with the proposition that the Security Council can even bind third-party non-State actors as a matter of general principle. The United States expressed doubts. The United Kingdom said it might, but only with explicit language as to the actors addressed and the substantive content of their obligations. See the footnote on pdf file page 44 of 93 in CR 2009/24

      So far the Security Council has refused to take action on the Goldstone report. The General Assembly has employed circumlocutions like "the Palestinian side" and "the de facto authorities". The Goldstone report cites hearsay reports from Fox news, the Guardian, The Humanitarian Monitor, and the London Times. Hamas, naturally enough, has promised to cooperate but has not volunteered any information about its members or investigated the other groups.

      The preponderance of evidence and a suspect's name are all that the Prosecutor needs to get an arrest warrant, but it still takes "proof beyond a reasonable doubt" to secure convictions. In cases where the Prosecutor can't enter into agreements to perform on-scene investigations on the territory in question or obtain access to witnesses the perpetrators are going to continue to enjoy impunity.

  • The documented record still stands: Israel intentionally targets civilians and civilian infrastructure
    • Richard Witty,

      The members of the Assembly of State Parties pay for the International Criminal Court, not the UN, and certainly not the US administration or Congress. The countries that DON'T belong have no say in how the Court is operated. That is something that may eventually come back to haunt those US officials. Iraq, Afghanistan, Yemen, and the plot to overthrow the elected Hamas government involve crimes that were committed after the Court came into existence. There is no statute of limitations going forward from 2002.

    • Some believe that only One is holy and no person, place, or thing is holy unless God is present with it. So, for example God told Adam that the ground was cursed on account of his transgression, but Moses was told that the ground where the glory of God was being made manifest was holy. It was also manifestly evident that God was not with Herzl, Weizmann, or Ben Gurion.

    • When a crime is committed do those holding those accused of the crime accountable present what the alleged criminals stated policy is or their actions and results of those actions?

      You asked a good question, the answer in many instances can be either the stated policy or the situation that results in actual practice.

      For example, the crime of apartheid is defined in article II of the Convention as both "policies and practices" and "Any legislative measures and other measures". Article III stipulates that international criminal responsibility shall apply, irrespective of the motive involved. So, officials would still be liable if the necessary material elements of the offense were committed with intent and knowledge - even in the absence of a formal written policy or law - and despite any claim regarding security or self-defense.

      Lebanon cited a "resulting situation" in the 2004 Wall case:

      "The construction of the wall and the resulting situation correspond to a number of the constituent acts of the crime of apartheid, as enumerated in Article 2 of the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the General Assembly on 30 November 1973: that is to say, the denial of the liberty and dignity of a group, the deliberate imposition on a group of living conditions calculated to cause its physical destruction in whole or in part, measures calculated to deprive a group of the right to work, the right to education and the right to freedom of movement and residence, the creation of ghettos, the expropriation of property, etc. Such actions constitute measures of collective punishment." See Written Statement of Lebanon

      The ICJ findings included many of those acts in paragraphs 132-134. It said that Israel could not rely on the right of self-defense or on a state of necessity in order to preclude the wrongfulness of those actions (paragraphs 140-142). The Court also noted that the interested state parties had contended that Israel is under an obligation to search for and bring before its courts persons alleged to have committed, or to have ordered to be committed, grave breaches of international humanitarian law resulting from the construction of the wall (paragraph 145). That situation invites ICC action since Israel has never taken any action.

      The Goldstone report contains references and analysis concerning that situation and the 2004 Wall case on pages 18, 72, 73,74, 78, 79, 80, 279, 334, 335, 401, 402, and 412. The mission reported on the impunity enjoyed by settlers carrying out attacks on Palestinians; the dual legal system and entitlements for “persons of Jewish race or descendency"; and a violation of the right not to be discriminated against on the basis of race or national origin in the movement and access policy. The report also said that a Court might reasonably find that the crime of persecution has been committed. That is an aggravated offense, like a hate crime, that requires a finding of some other crime against humanity - like the crime of apartheid.

      The bottom line is that the ICC Prosecutor would have to review the ICJ exhibits and findings from the Wall case. So, the crime of apartheid would come into play regardless of the fact that it might not be a stated public policy.

    • Apparently Israel did not understand the ICJ opinion on Legality of the Threat or Use of Nuclear Weapons

      Here is an article about Netanyahu calling together 70 foreign diplomats to listen to his suggestion that the President of Iran should be prosecuted for genocide because he might be trying to acquire some nuclear weapons:
      *See Netanyahu wants Iran president tried for genocide

      Here are some links to articles which say (now former) US Ambassador to the UN John Bolton was a firm supporter of the 2003 invasion of Iraq for the very same reason. They say he also agreed with Netanyahu's proposal that President Ahmadinejad should be tried for genocide :
      *Move to bring genocide case against Ahmadinejad as Iran president repeats call to wipe out Israel
      *Bush installs Bolton as US ambassador to UN

      Here is an article which says that Ahmadinejad is not operating under the influence of the Grand Ayatollahs with regard to any ambitions for Iran's nuclear program:
      *Grand Ayatollah Montazeri attacks Ahmadinejad - 'We have lost international trust'

      Here is a report that was turned over to the ICC prosecutor explaining that some Palestinians may have been killed by soldiers acting under the influence of rabbis who had encouraged them to believe that the Holy Land should be cleansed of non-Jews:
      *No Safe Place. – League Of Arab States

      Here are some examples of Israeli Military Rabbinate and other Rabbinical Authorities inciting soldiers or citizens to commit acts of genocide:
      *Breaking the Silence- Military Rabbinate
      *”IDF rabbinate publication during Gaza war: We will show no mercy on the cruel
      *IDF Chief Rabbi: Troops who show mercy to enemy will be ‘damned’"
      *The King's Torah: a rabbinic text or a call to terror?

      Here is a link to an article about MKs from Shas and United Torah Judaism joining with MK Michael Ben-Ari of the National Union (Ichud Leumi) to sponsor a bill that would grant Jewish leaders immunity from prosecution for incitement to commit genocide so they can continue to use responsa in Jewish law, whether verbal or written, in line with their current religious practices. See the subsection: "MKs: Rabbis Must be Protected" in:
      *Rabbis to Explain 'Torat HaMelech' Controversy

    • Witty the Op-Ed does not say there were no widespread or systematic attacks against civilians. It says there was no official policy on the part of the Israeli government to target civilians. If you think that is a "get out of jail free card" for everyone involved, you're mistaken.

    • “Simply put, the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies.”

      I read that, but attributed the error to the fact that the Washington Post Op-Ed was not peer-reviewed in advance of publication.

      Judge Goldstone was the Prosecutor in the case of "The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-T (Rule 98 bis test - Deportation, forcible transfer and cross border transfer – Definition of a State)". He knows better than to conflate the laws of armed conflict and international human and humanitarian law (IHL and IHRL). See for example paragraphs 303-307 of the Goldstone report. The Amici Curiae motion in the Milosevic case argued that all Geneva Convention "grave breaches" counts in the Croatia indictment before January 15, 1992, had to be dismissed because the Prosecution failed to establish that Croatia was a state before that time, making the conflict one of a non-international nature. That meant there might not have been any forced transfer across international borders. So, the Appeals Chamber had to determine when Croatia came into existence as an intermediate question.

      Israel has used the same argument for years to claim that the Fourth Geneva Convention does not apply to the Occupied Palestinian Territories and that it can hold Palestinians in Israeli prisons, & etc. Israel claims that it is free to target the unrecognized communities living in Palestine with all sorts of measures under military directives that international law would prohibit if the victim were a "state".

      All of the rules of armed conflict contained in the Geneva Conventions have been recognized as part of the body of customary international law, but only Common Article 3 applies to non-international armed conflicts involving "non-state actors". You can compare other differences between international and non-international rules of armed conflict (IAC/NIAC) in The ICRC List of Customary Rules of International Humanitarian Law

      In similar fashion, Israel has objected that the Palestinian National Authority is not a state and therefore cannot accept the jurisdiction of of the International Criminal Court in accordance with Article 12(3) of the Rome Statute. There is no question that Israel could accept the Court's jurisdiction with regard to Hamas attacks on the territory of the state of Israel.

      So, it is remarkable that a expert with Judge Goldstone's first-hand experience would say that the law of armed conflict applies equally to all of the actors.

    • If you trust the man, then you listen first, shoot later.

      If you only care about the man because he is a weapon for you, then your movement is something less than humane.

      Sorry, if you only care about the facts and the law, then resorting to either Argumentum ad hominem or Argument from authority is irrelevant. That is why judges sometimes overrule defense or prosecution motions to dismiss or reduce the charges.

      The scope of the treaty monitoring functions of the UN Human Rights Committee is not limited to war crimes or crimes against humanity. The UN fact finding mission submitted an official report to an intergovernmental treaty monitoring body. It contained summaries of testimony given by witnesses, reliable published reports, and the on-scene observations of the mission. It provided a detailed legal analysis regarding violations of the applicable international humanitarian and human rights laws - and international criminal law. Only a few of the many law violations that were cited included the material elements of war crimes or crimes against humanity.

      The Op-Ed is nothing like that. It indicates that the Judge is of the opinion that Israel has submitted some evidence to the UN which establishes that there was no official government policy of targeting civilians for attack. The WaPo Op-Ed doesn't provide a link or UN document number, so there is no way of knowing what evidence, exactly, it might be that he has in mind.

    • “I respect the man. I will consider his comments.”

      I do too, but I think you are reading much more into his comments than is warranted.

      The jurisdiction of the international criminal court is strictly limited by Article 25 to "natural persons". That means it does not put legal persons like "states", "terror organizations", or "corporations" on trial in the first place.

      The fact that the report described "widespread and systematic" attacks that targeted a civilian population or massacres of groups carrying white flags does not automatically mean that the Prosecutor can put all of the members of the Israeli cabinet on trial. A person will only be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if the material elements of the crime are committed "with intent and knowledge". It is still quite possible for individual ministers or commanders to be held liable for those acts without it entailing any intent or knowledge on the part of others within the government of Israel. So targeting of the civilians may not be a joint criminal enterprise involving the government of the State of Israel.

      The fact that the State of Israel didn't have a policy of deliberately targeting civilians still might not relieve it of criminal or state responsibility for wrongful acts mentioned in the report. Those matters can still be referred to the ICJ.

      The ICJ (vs the ICC) has inherent jurisdiction to determine "state responsibility for wrongful acts of state" or "genocide". It is clear that internationally wrongful acts were committed by Israel during operation Cast Lead and that the Goldstone report mentions the findings of the ICJ in connection with the Wall and settlements in the West Bank.

      The Arab League report cited many of the same incidents mentioned in the Goldstone report. That mission concluded that Israel did not have a deliberate policy of destroying the population of Gaza in whole or in part. However, it noted that Israel may have failed to take appropriate action to prevent rabbis from engaging in deliberate incitement to commit genocide and acts of settler violence. Those findings were based in part "on the brutality of some of the killing and reports that some soldiers had acted under the influence of rabbis who had encouraged them to believe that the Holy Land should be cleansed of non-Jews". See for example Breaking the Silence- Military Rabbinate and paragraphs 30-34 (page 6) and 607-608 (page 148) in No Safe Place. - League Of Arab States

      If individual members of the armed forces committed acts of genocide, Israel could be held responsible under the Genocide Convention for failure to prevent incitement or to punish those acts after the fact.

      One of the landmark genocide cases that I've discussed elsewhere on Mondoweiss involved an attack on a group of 22 people. Some of the attacks in Cast Lead involved similar groups. See for example, Article 6 Genocide (a) "Killing members of the group;" & Article 8 War Crimes (2)(b) (xii): "Declaring that no quarter will be given;"IDF rabbinate publication during Gaza war: We will show no mercy on the cruel and IDF Chief Rabbi: Troops who show mercy to enemy will be 'damned'

      The government of Israel is considering legislation that would grant immunity to rabbis who make similar statements.

    • Michael Adam, Publish It Not: The Middle East Cover-Up, Signal Books, 2006, ISBN 1904955193

    • How absurd was it for Goldstone and other members of that investigative team to request both Israel and Hamas self investigate?

      That was actually a pro forma requirement to start the clock ticking. Even in cases where the Security Council refers a situation to the ICC it is inadmissible in accordance with Article 17 of the Rome Statute unless the responsible state is unwilling or unable to prosecute. The things that trigger the Court's jurisdiction for unwillingness are:

      (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

      (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

      (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

    • Article 15 of the Rome Statute allows the Prosecutor to initiate investigations proprio motu on the basis of information from open sources on crimes within the jurisdiction of the Court. So, it is probably a bit too late for either the Hamas or Israeli leadership to "withdraw the Goldstone report"

      According to reliable reports from the Ma'an News Agency both of the Palestinian Justice Ministers (e.g. the one in Gaza and the one in Ramallah) have asked for the UN to follow-up on the Goldstone report. The UN was already going to do that anyway. So, who am I to disgree? The only thing necessary to trigger ICC jurisdiction is for the Prosecutor to have an Article 12(3) declaration in hand and to obtain a determination from the Pre-Trial Chamber that the regular authorities are either unwilling or unable conducted independent and impartial proceedings in a manner which, in the circumstances, is consistent with an intent to bring the persons concerned to justice.

      In the case of Prosecutor v. Katanga and Chui, the Appeals Chamber held that the Court’s ability to act is limited by the principle of complementarity only if national proceedings have been, or are being conducted. In the absence of any domestic activity, there is, in the Chamber's view no impediment to case admissibility. The Court also ruled it is sufficient for only one of the two criteria (‘unable or unwilling’) to be satisfied, with the intention of the State concerned assessed on a case-by-case basis. So, the lack of a credible effort by Hamas invites ICC action.

      FYI there are reliable reports that provide prima facie evidence connecting Hamas leaders to war crimes and crimes against humanity, but the Goldstone report isn't really one of those. In many instances it doesn't name the Palestinian armed groups that have launched rockets and mortars from Gaza. It lists a lot of incidents, but only a few of those constitute war crimes. The report didn't connect those particular attacks to the Hamas groups or the Hamas leadership. The report certainly gave the Prosecutor more than enough information to trigger an investigation.

      Goldstone proposed that launching mortars and rockets that fall harmlessly into the desert qualifies as an illegal terrorist act. Even if that is true, the ICC only has jurisdiction over certain of the most serious crimes and acts of terrorism. I don't believe that incidents without some direct linkage to a civilian population or object would fall within the scope of the ICC's jurisdiction.

    • Palestine, Jordan, and Comoros are all full members of the League of Arab States. Comoros and Jordan are members of the International Criminal Court Assembly of State Parties.

      The League Commissioned its own Independent Fact Finding Mission headed-up by former ICJ Justice John Dugard. It turned over a very detailed report, "No Safe Place", to the Office of the Prosecutor which contained an analysis of the blockade, and Cast Lead - as well as the 2004 Wall case and the illegal situations in the West Bank.

      The West Bank was controlled by Jordan from 1948 to 1967 under the terms of the UN armistice agreement. After Israel signed the Oslo Accords with Palestine, it signed a Peace Treaty with Jordan which contained a safeguarding clause, Article 3(2), with respect to the status of the territory that came under Israeli military control in 1967. The Mavi Marmara was flagged in Comoros. So, either of those two states could join in Palestine's request and make a State Party referral of one or more of those situations to the ICC Prosecutor.

      The Goldstone report was only one of the investigations that was conducted under the auspices of Human Rights Council resolution S-9/1. The United Nations High Commissioner for Human Rights, Navanethem Pillay, is a former Justice of the Appeals Chamber of the International Criminal Court and President of the International Criminal Tribunal for Rwanda. She submitted a separate report The grave violations of human rights in the Occupied Palestinian Territory, particularly due to the recent Israeli military attacks against the occupied Gaza Strip" UN Document A/HRC/12/37

      Special Rapporteur Richard Falk has renewed the call of the former Special Rapporteur on the occupied Palestinian territories, John Dugard, for a referral of the situation to the International Court of Justice for an authoritative decision as to whether, “elements of the [Israeli] occupation constitute forms of colonialism and of apartheid."

      The UN HRC probe of the flotilla raid was headed-up by Karl Hudson-Phillips, a former International Criminal Court judge and former Trinidad and Tobago attorney general. The report found the blockade, the interception, and disproportionate levels of "totally unnecessary and incredible violence" directed toward the passengers were illegal.

      So there are way too many "irons in the fire" for Israel to start breathing easy at this point.

    • GuiltyFeat, the Article 12(3) Declaration made on behalf of the Palestinian government simply accepted the jurisdiction of the International Criminal Court for crimes committed on the territory of Palestine since 1 July 2002.

      The declaration doesn't limit the jurisdiction of the Court to the crimes committed by the IDF. Only Israel and its supporters have objected to the ICC Prosecutor investigating both sides.

      Despite the fact that the ICC is a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples, Article 31 of the Rome Statute, "Grounds for excluding criminal responsibility" does NOT include tu quoque arguments. So, the fact that an enemy is committing similar crimes or that everyone else is doing it would not be a valid defense. Here are some references that help explain that principle:

      The accused cannot rely on the fact that allegedly there were also atrocities committed by the opposing force. In international law there is no justification for attacks on civilians carried out either by virtue of the tu quoque principle (i.e. the argument whereby the fact that the adversary is committing similar crimes offers a valid defence to a belligerent’s crimes) or on the strength of the principle of reprisals.

      *Judgment of the Trial Chamber in Case Kupreškić et al., (January 2000), para. 765;

      As the Defence was reminded many times during the trial, the fact that the Muslim side may have committed similar atrocities against Serb civilians, an argument brought up mutatis mutandis by almost every Serb accused and Defence counsel before the Tribunal, is irrelevant in the context of this case.

      *Judgment of the Trial Chamber in Case Kunarac et al., (February 2001), para. 580;

      As noted by the Trial Chamber, when establishing whether there was an attack upon a particular civilian population, it is not relevant that the other side also committed atrocities against its opponent’s civilian population. The existence of an attack from one side against the other side’s civilian population would neither justify the attack by that other side against the civilian population of its opponent nor displace the conclusion that the other side’s forces were in fact targeting a civilian population as such. Each attack against the other’s civilian population would be equally illegitimate and crimes committed as part of this attack could, all other conditions being met, amount to crimes against humanity.

      *Judgment of the Appeals Chamber in Case Kunarac et al., (January 2002), para. 87;

      Before turning to consider the KLA’s conduct, the Chamber would emphasise at the outset that the existence of an attack from one side involved in an armed conflict against the other side’s civilian population does not justify an attack by that other side against the civilian population of its opponent. The tu quoque principle has no application. Nevertheless, the Chamber is conscious of the operations of the Serbian forces in Kosovo, which deployed tactics that included the razing of villages and the expulsion of civilians from villages, and which caused considerable and widespread civilian suffering.

      *Judgment of the Trial Chamber in Case Limaj et al., (November 2005), para. 193.

      For an exhaustive overview of the subject of tu quoque arguments in the proceedings of international criminal tribunals See:
      *Sienho Yee, "The Tu Quoque Argument as a Defence to International Crimes, Prosecution or Punishment", Chinese Journal of International Law (2004) 3(1): 87-134;

      I hope that explains why Israeli lawyers do so much of their arguing in the Op-Eds.

    • The article highlights the kafkaesque absurdity of the situation when a published report available from an open source, like Yedioth Ahronoth, contains sufficient information to trigger a criminal investigation anywhere else in the world, yet the international community quibbles over the details of drafting a mandate to deploy a "fact-finding" mission to go to Israel and read it. Inevitably, the Israel government vilifies the messengers when they return home and present us with a copy of the evidence for the circular file.

      For example, in 2002 Yedioth Ahronoth published an interview with a D9 Caterpillar Operator who admitted he spent three days "erasing and erasing" the middle of the Jenin refugee camp in a state of whiskey-fueled drunken rage:

      "Do you know how I held out for 75 hours? I didn't get off the bulldozer. I had no problem of fatigue, because I drank whiskey all the time. I had a bottle in the bulldozer at all times. I had put them in my bag in advance. Everybody else took clothes, but I knew what was waiting for me there, so I took whiskey and something to munch on.
      ...

      "I had no mercy for anybody. I would erase anyone with the D-9, just so that our soldiers won't expose themselves to danger. That's what I told them. I was afraid for our soldiers. You could see them sleeping together, 40 soldiers in a house, all crowded. My heart went out for them. This is why I didn't give a damn about demolishing all the houses I've demolished - and I have demolished plenty. By the end, I built the 'Teddy' football stadium there."
      ...

      "I didn't see, with my own eyes, people dying under the blade of the D-9. and I didn't see houses falling down on live people. But if there were any, I wouldn't care at all. I am sure people died inside these houses, but it was difficult to see, there was lots of dust everywhere, and we worked a lot at night. I found joy with every house that came down, because I knew they didn't mind dying, but they cared for their homes. If you knocked down a house, you buried 40 or 50 people for generations. If I am sorry for anything, it is for not tearing the whole camp down."

      See "I made them a stadium in the middle of the camp"

      While that headline was being trumpeted in the Israeli press for all the world to see, the Security Council canceled plans for its own fact finding mission and held an open debate instead. The United Nations Commission on Human Rights decided to send Nobel Laureate Desmond Tutu on its own fact finding mission, but he was threatened and branded an anti-Semite before he ever arrived in the Middle East. He was subsequently vilified for questioning Israel's "purity of arms".

      We really didn't need to send in Tutu or Goldstone. We already had a more than sufficient number of reports in our possession that would have triggered a criminal investigation and perhaps the establishment of an ad hoc criminal tribunal if they had occurred anywhere else. For example, during the 2nd Intifada in 2000, the UN Commission on Human Rights fact finders reported "widespread, systematic and gross violations of human rights perpetrated by the Israeli occupying Power, in particular mass killings and collective punishments, such as demolition of houses and closure of the Palestinian territories, measures which constitute war crimes, flagrant violations of international humanitarian law and crimes against humanity." See E/CN.4/RES/S-5/1 19 October 2000

      The pattern was depressingly familiar. During the first Intifada, the occupation was already twenty-four years old. My shelves were full of UN fact finding reports by then that cataloged war crimes and crimes against humanity committed by Israeli settlers and their armed forces. The reports explained that the acts committed were "prohibited at all times" and "give rise to individual criminal responsibility under international law regardless of the motive involved or any local statutory limitations". But nothing has ever come of them (yet).

      It has been necessary for the State Department to ignore all of those reliable reports and to submit perjured ones to lawmakers which claim that the government of Israel does not commit political killings, commit abductions, hold hostages as bargaining chips, torture prisoners, and etc. See for example the yearly Joint Committee on Foreign Relations "Country Reports" on Israel submitted in accordance with Sections 116(d) and 502B(b) of the Foreign Assistance Act of 1961 as amended. Even the Government of Israel has published reports which admit that serious criminal cases involving violence against Palestinians are routinely closed without investigations. See "The Karp Report : An Israeli Government Inquiry into Settler Violence Against Palestinians on the West Bank", reprinted by the Institute for Palestine Studies, ISBN 0-88728-141-9, 1984

      There was also a steady stream of scholarly works and journal articles on the first Intifada, but some of the experts took time off from serving on the International Law Commission or on the faculties of various universities to compile a criminal dossier and database that cataloged some of the evidence, e.g. M. Cherif Bassiouni & Louise Cainkar eds., "The Palestinian Intifada December 9, 1987-December 8, 1988: A Record Of Israeli Repression", the Database Project On Palestinian Human Rights, 1989 It makes for pretty grim reading when there are pages and pages of tables listing Palestinian children, many as young as 3-5 years of age, who in too many instances had been shot multiple times; "father shot 4X while pursuing children kidnapped by settlers"; and reports of people being stoned, imprisoned, burned, electrocuted, hit or run over by vehicles, and otherwise maimed, tortured, and killed.

      It is perfectly clear that the Israeli persecution of Palestinians documented in thousands of other sources can't be washed-away by a single editorial in the Washington Post.

  • The current 'one state' reality in Israel/Palestine
    • Re:the question whether the Israel/Palestine relationship is fundamentally an oppression or fundamentally a conflict.

      If there is a curfew, and you can't leave your house to get food or water; to seek emergency medical treatment; or to bury your dead; and there are also some Israeli soldiers dropping by from time to time to hold you at gunpoint point while they defecate on all of your possessions - at first blush I'd say you are being oppressed by some real troglodytes and that if there isn't an armed conflict there damn sure ought to be one.

    • Phil Palestine has been recognized as a state in the same way Israel and every other state is recognized.

      I think that a single state would be the best possible solution, but there are armed belligerents with a few battalions on both sides who are still soldiering on. I still don't see why the case for Palestine is too much different from the case for Namibia. The latter was occupied long before 1919 and remained that way even after Palestine was partitioned in 1948. It was destined to become part of a Greater South Africa that had imposed a brutal apartheid regime on it. South Africa violated the same rights and UN obligations that Israel is violating on both sides of the Green line. The UN established a theoretical government of Namibia as a subsidiary organ of the organization in about the same way it has given Palestine free run of the place and a permanent committee on the exercise of its "inalienable rights". Civil society pursued BDS in that case, and we still ended up with a two-state, South African-Namibian solution.

      I'm not so fatalistic as to believe that the 500,000 illegal settlers have more weight in the equation than the 3.7 million Palestinians living in the occupied territories; the 1.4 million waiting in Syria and Lebanon; the 2.7 million living in Jordan; or the 300,000 living in Egypt. Israel can and probably will be ordered to withdraw its armed forces from the territories and the Palestinians can be allowed to establish majority rule there under UN protection. The Palestinians living in Israel have also asked for international assistance with their government. The pressure on Israel is going to keep mounting over the lack of equal rights under a constitution. I don't know if we will end up with one polity or three. All I know is that Israel and its supporters no longer have enough clout to sustain the current situation.

    • Phil most laymen do not understand that the 2004 Wall case was founded upon the proposition that Israel's measures amounted to a regime of population transfer, illegal settlement, and apartheid that:

      "give rise to criminal liability by the Government of Israel for violations of human rights and some prima facie grave breaches of the Fourth Geneva Convention."

      -- See Annex II, "Summary legal position of the Palestine Liberation Organization" in "Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13"

      With the exception of a provision in the Genocide convention that permits the ICJ to assign state responsibility for that crime, it does not exercise jurisdiction over any criminal matters. The Statute of the Court only permits States to participate in proceedings. From the moment that the Court invited Palestine to take part, Israel enlisted allies in an attempted to portray the matter as a "contentious case". Australia argued that it was a "dispute between two states" which according to the rules of the Court could not be settled without the consent of Israel. During oral arguments, Prof. James R. Crawford explained that it was really a multilateral dispute and that the Court had given advisory opinions in many cases without the consent of all the interested states. See "This is a dispute between two States: the principle of consent" on pdf file page 34 in CR 2004/1

      The 64Mb Written Statement of Palestine elaborated on the charges by citing Article 49(6) of the Geneva Convention (pdf file pgs 215-216 & 462-463); Additional Protocol 1, Art. 85 (4)(a) & Rome Statute of the International Criminal Court, Article 8(2)(a)(iv), (b)(viii) - (pdf file pgs 170 & 261); and the definition and legal test employed by the Court regarding South Africa's policy of apartheid in the Namibia case (Chapter 10 in its entirety - pdf file pgs 244-277) . Many states submitted written statements pointing out the history of ethnic cleansing, illegal settlement, and apartheid. They included Jordan, Egypt, Syria, Cuba, Guinea, and several others. For example, Lebanon observed

      "The construction of the wall and the resulting situation correspond to a number of the constituent acts of the crime of apartheid, as enumerated in Article 2 of the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the General Assembly on 30 November 1973: that is to say, the denial of the liberty and dignity of a group, the deliberate imposition on a group of living conditions calculated to cause its physical destruction in whole or in part, measures calculated to deprive a group of the right to work, the right to education and the right to freedom of movement and residence, the creation of ghettos, the expropriation of property, etc. Such actions constitute measures of collective punishment."

      --See pdf file page 8 Written Statement of Lebanon

      The dossier and fact finding reports of the Secretary General, and officials on mission for the UN, including Special Rapporteurs Zeigler and Dugard also mentioned constituent acts of apartheid. The Secretary-General described instances of malnutrition and the inability to harvest crops. Dugard described the pass system and various forms of collective punishment. Zeigler cited reliable published reports that the government of Israel was pursuing a policy of Bantustanization that consisted of the creation of separate reserved areas or enclaves for the Jewish settlers and Palestinians. Unless rebutted, the latter is prima facie evidence of the crime of apartheid. See the Human Rights Commission, Study Concerning
      the Question of Apartheid from the Point of View of International Penal Law, E/CN.4/1075, 15 February 1972, pp. 51 – 52.

      Israel is NOT a party to the Rome Statute, the Additional Protocol, or the Apartheid Convention. The latter is merely a "suppression" convention.

      Israel is however a party to the Geneva Conventions of 1949; the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Covenant on Civil and Political Rights (ICCPR) ; and the United Nations Convention on the Rights of the Child". The Court cited Israel's violations of its obligations under those conventions and drew on the fact finding reports while reciting its own findings in paragraphs 132-134 of the advisory opinion. The Court stated that with the notable exception of Israeli citizens, Israel was systematically violating the basic human rights of the inhabitants of the Occupied Territories. The Court cited illegal interference by the government of Israel with the Palestinian's national right to self-determination, land confiscations, house demolitions, the creation of walled enclaves, and restrictions on movement and access to supplies of water, food, education, health care, work, and an adequate standard of living. The Court also noted that Palestinians had been displaced in violation of Article 49, paragraph 6, of the Fourth Geneva Convention. If all of that sounds like the definition of the crime of apartheid contained in Article II of the Apartheid Convention, it was certainly no accident.

      Several reports submitted to the ICC Office of the Prosecutor after Operation Cast Lead (and the Goldstone report) incorporate, by reference, all of those ICJ findings. The Goldstone report cites several more prima facie examples, e.g. 19 members of a popular movement, including 11 children, were killed while demonstrating against "the Apartheid Wall of Annexation" according to information cited in footnote 721 on page 296. Article II(f) of the Apartheid Convention says that "Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid." is one of the constituent acts of the crime of apartheid.

      The bottom line, frankly speaking, is that 14 of the best jurists in the world and the former prosecutor of the international criminal tribunal for Yugoslavia have already finished most of the necessary preliminary work for Luis Moreno-Ocampo and the ICC Pretrial Chamber to prosecute Israeli officials for the crime of apartheid.

    • This thread is a little reminiscent of some of the media discussions aimed at warning hourly workers about the dangers of labor unions. After a long and bloody struggle, the citizens of the West Bank and Gaza have been legally recognized as an occupied, yet independent and sovereign state by the majority of other existing states. States, like corporations, are "legal entities" with rights and obligations that are determined by international law.

      Since the first intifada, more than 111 other states and dozens of intergovernmental organizations have extended belligerent recognition (aka "premature recognition") to Palestine indicating their acceptance of its statehood - despite strong objections from an adversary, the State of Israel.

      Israel was created by its own acts of belligerency and secession in part of the territory of the Mandated State of Palestine. Israeli policies and practices on both sides of the international armistice line include many, if not all of the constituent acts of the crime of apartheid. It would only be necessary to establish one of those as an element in a court proceeding to secure the conviction of one of the responsible state officials. Unfortunately, there is no international court today that can exercise compulsory jurisdiction over the territory of Palestine in the absence of a complaint from the "victim state" submitted in accordance with Article 12(3) of the Rome Statute.

      The Apartheid Convention was the first international treaty that required the establishment of a permanent international criminal court. So, there was no such thing as an international criminal court with jurisdiction over the crime of apartheid in the days when the autonomous states of Transkei, Bophuthatswana, Venda and Ciskei (a.k.a the "TBVC states") were established. In the meantime, the international community of states fell back on the colonial era doctrines of the "constitutive theory" and virtually nullified the existence and statehood of the TBVC through a collective regime of non-recognition. Civil society pursued the adoption of stiffer sanctions through the BDS movement. Notwithstanding all of that, the TBVC states were legal entities that manifested the tangible evidence of sovereignty, i.e. jurisdiction. Even the UN's specialized agencies (e.g. WIPO) are forced to deal with the lingering legal consequences of their existence and South Africa had to tidy-up the loose ends through the laws of state succession. See for example the "Intellectual Property Laws Rationalisation Act, 1996"

      The greatest doctrinal concern from pursuing those courses of action today is the proposition advanced by advocates of the constitutive theory that an unrecognized community has no rights or duties under international law. Gaza obviously does not enjoy a freedom from the San Remo Manual's rules of blockade that govern the conduct of states. So, why does Israel enjoy the freedom to abuse Gaza in ways that international law would prohibit if the target were a neighboring apartheid victim state?

      It would be supremely ironic if Palestine's supporters ignored the victory of the declarative doctrine of statehood embodied in the jus cogens norm of self-determination and assisted Israel in its efforts to derail the Palestinian pursuit of non-violent political and legal remedies created precisely for states that have been victimized by the apartheid policies of a stronger neighboring state.

      I strongly disagree that there is no existing State of Palestine today. Neither the existence of apartheid nor the continued presence of South Africa in the territory of Namibia effected the juridical status of the victims. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)

      Even under the outdated 19th century laws and customs of war, it was considered a necessary evil to recognize belligerent communities and allow them to exercise the same rights as other states with respect to the laws of war and commerce. That helped them to secure the means of self-defense and put an end to conflicts much more quickly. We can't ask the belligerent communities of Gaza or the West Bank to pursue a non-violent solution, while at one and the same time denying them the belligerent recognition needed to access the really effective non-violent remedies.

      No one in the "enemy entity" of Gaza has the capability today to negotiate a one state solution with Fatah or Israel. They are living under a cold, calculated policy of isolation, siege, and blockade. The U.S. State Department has a web page which explains that blockades have historically resulted in belligerent recognition, because they are "a weapon of war between sovereign states." Wikileaks recently revealed that Israeli government officials had advised US officials they would be “happy” if Hamas took over Gaza because the IDF could then deal with Gaza as a HOSTILE STATE (emphasis added). The Restatement (Third) of The Foreign Relations Law of the United States §201.(h) says “Determination of Statehood: Whether or not an entity satisfies the requirement for statehood is ordinarily determined by other states when they decide whether to treat that entity as a state.” Folks, Israel is giving Gaza the "full treatment". The Knesset has adopted statutes designating Gaza an "enemy entity". Israel routinely lodges formal complaints against Gaza in the UN. The IDF has imposed a years-long blockade on Gaza's inhabitants. Any of those things should entitle Gaza to the rights of other states, including an invitation to membership in the UN, the ICJ, the ICC, and other non-violent remedies. That is also true of their beleaguered brethren in the West Bank.

  • Zionism's history, real and imagined
    • pjdude,

      Under the international rules that are in effect today, all children are entitled to a nationality and an unqualified right to return to their own country of origin. It is difficult, if not pedantic, to label indigenous native-born Jews "voluntary invaders". That is why the process of altering the demographic balance over time is called "creating facts on the ground". It makes the establishment of a viable Palestinian State more difficult, but not impossible.

      The process of reversing cheap metropole-subsidized settler housing in other cases has been for the newly emancipated states to levy the appropriate property and income taxes on colonist communities to compensate the other inhabitants for their past losses through expropriation of state and private property. It is an obligation under the International Convention on the Elimination of All Forms of Racial Discrimination that past discrimination be redressed through affirmative action. Once the 500,000 settlers become a source instead of a sink for revenues, many of them may choose to move on to "greener pastures". Mr Fayyad's work at the World Bank in Washington from 1987-1995 and on the receiving end of the occupation regime should have taught him the necessary lessons regarding expropriation and privatization.

    • I haven't read the latest installment, but Slater's original article a while back contained some of the disturbing elements that you mentioned in the summary here. I've heard many others take Slater's starting point and arrive at the same destination (i.e. the necessity of a Jewish State) without attempting to justify anything that transpired in 1948. Unlike Slater, I don't believe that is defensible or that being a "Zionist" meant you automatically accepted the Basle, Biltmore, or UNSCOP proposals. In the over-simplified worldview of the UN, if you lived in Palestine or anywhere else and supported the Revisionists the UN considered you to be a Zionist. If you lived in Palestine and supported "The Five" (Judah Magnes, et al) or the Communist Union of Palestine the UN still considered you to be a Zionist. However, if you lived in the US or anywhere else and opposed partition (for the very same reasons as Magnes and the Communists), the UN considered you to be "opposed to Zionism".

      The UNSCOP report said:

      The opposition to the creation of a Jewish State is represented by a minority. In Palestine, the Ihud (Union) Association and the Hashomer Hatzair Workers' Party are in favour of a "binational" State in which the two communities would have equal status and political parity. The Communist Party proposes a democratic Arab-Jewish State which might be binational or federative. In the United States, opposition to Zionism is voiced by the American Council for Judaism, which opposes proposals to establish a Jewish State. In its view, such proposals are a threat to the peace and security of Palestine and its surrounding area, are harmful to the Jews in Palestine and throughout the world, and are also undemocratic.

    • Leaders like Hitler and Ben Gurion simply adopted legislation that revoked the citizenship of those they wanted to dislocate. So, citizenship is considered irrelevant under the norms regarding the "right of return" contained in the "Universal Bill of Rights" (i.e. the "Universal Declaration of Human Rights"; the "International Covenant on Economic, Social and Cultural Rights"; and the International Covenant on Civil and Political Rights)

      Article 2 of the Universal Declaration of Human Rights says that:

      Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

      Article 13(2) of the Declaration says that

      Everyone has the right to leave any country, including his own, and to return to his country.

      Israel is one of the 167 State Parties to the International Covenant on Civil and Political Rights. It submitted a reservation which stated that it had declared a state of emergency in accordance with Article 4 and in so far as any of its measures are inconsistent with article 9 of the Covenant, Israel thereby derogates from its obligations under that particular provision. Article 2(1) of the Covenant says that:

      Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

      Article 12(4) of the Covenant provides that

      No one shall be arbitrarily deprived of the right to enter his own country.

      Israel and Palestine have both submitted declarations in line with a minority protection plan in UN resolution 181(II) that says:

      No discrimination of any kind shall be made between the inhabitants on the ground of race, religion, language or sex. All persons within the jurisdiction of the State shall be entitled to equal protection of the laws. The family law and personal status of the various minorities and their religious interests, including endowments, shall be respected.

    • Not so much. Jerry Slater is just doing his job as a political scientist. It reminds me of the arguments in my household when I was a child growing up, and the arguments here on Mondoweiss against intervention in Libya today.

      The Jewish community used to have two groups of political activists in the late 19th Century. One embraced Zionist-Westphalian "Statism" and the other championed the rights of Jews living elsewhere to live as nationally protected minorities under an international system of guarantees. They both were successful in achieving their goals. Starting with Serbia, Montenegro, Romania, and the Treaty of Berlin 1878, treaty-based protection of minority and religious groups became an integral part of public international law. Recognition and grants of territory were conditioned upon acceptance of minority rights obligations.

      The Paris Peace Conference continued that practice when it created new states through a "The Committee on New States and for The Protection of Minorities". All of the new states in Eastern Europe were required to accept minority treaties which placed the rights of Jews and other minorities under League of Nations guarantee. The report on "Minority Rights in Albania", by the Albanian Helsinki Committee, September 1999 contains an small overview on the establishment of that system under the League of Nations. French Prime Minister Clemenceau noted in an aide-memoire attached to the Polish treaty that the minority protections were consistent with existing diplomatic precedent:

      This treaty does not constitute any fresh departure. It has for long been the established procedure of the public law of Europe that when a State is created, or when large accessions of territory are made to an established State, the joint and formal recognition of the Great Powers should be accompanied by the requirement that such States should, in the form of a binding International convention undertake to comply with certain principles of Government. In this regard I must recall for your consideration the fact that it is to the endeavors and sacrifices of the Powers in whose name I am addressing you that the Polish nation owes the recovery of its independence. It is by their decision that Polish sovereignty is being restored over the territories in question, and that the inhabitants of these territories are being incorporated into the Polish nation.... ...There rests, therefore, upon these Powers an obligation, which they cannot evade, to secure in the most permanent and solemn form guarantees for certain essential rights which will afford to the inhabitants the necessary protection, whatever changes may take place in the internal constitution of the Polish State.

      The utter failure of the League of Nations to observe its treaty obligation to the Jews of Poland and elsewhere is highlighted by the Bernheim Petition

      Jews, like Jacob Robinson, who had been active in the minority rights movement continued to press for international guarantees. Like Lemkin, and Lauterpacht, Robinson worked for the International Military Tribunals after the war. He went to work for the Jewish Agency and eventually became the legal counsel for Israel's UN delegation. Termination of the mandate and recognition of the new states in Palestine was conditioned on the acceptance of a minority protection plan contained in the UN resolution. The rights of Arabs in the Jewish State and Jews in the Arab state were placed under UN guarantee. Recognition of the new states in the former Yugoslavia were also conditioned on the acceptance of minority protection guarantees.

      The UN and NATO have played an active role in creating the new states in Yugoslavia and in establishing an international criminal tribunal. The utter failure of the UN to honor its obligations to the Palestinians is evident in the no-state solution. Palestinian attempts to have the International Criminal Court investigate war crimes and crimes against humanity in the territory of Palestine have been unsuccessful, because Palestine's "statehood" is "disputed".

      Despite the establishment of human rights treaty bodies and the adoption of the "Responsibility to Protect" international law norm, the UN is not responding to the persecution of Shia's in Bahrain or the slow moving genocide against the Palestinians. There are many who (rightly) question the motives behind its selective intervention in Libya.

      So, until something better replaces the current state-based international order, many good political scientists and international lawyers are probably going to keep-on advising us that having our own "State" is still indispensable.

  • On land day, don't stop boycottin'
    • Annie these things are usually only the tip of the iceberg. It would be impossible to pass along all of the significant details. However, the hatred for others that makes-up the heart of standard Zionist doctrine and dogma is so ugly that no sane intellect needs to have their clumsy and conceited historical fabrications exposed and debunked.

      I just feel the need to chime in sometimes when the difference between what I know and what I read in the comments becomes too great.

    • Unfortunately I come by much of my wealth of information by way of family members who went to work in the Political and Arab Departments of the Jewish Agency for Palestine when "non-Zionists" were brought in after 1929-30.

      It is unacceptable for me when the man in charge of writing the Universal Declaration of Human Rights is falsely portrayed as one of the Arabs who refused to recognize Israel and tried to drive the Jews into the sea. That is a classic example of psychological projection. Israel's plan for its own Arab citizens and the population of Lebanon living south of the Litani river was non-recognition and expulsion.

      The Zionists like to complain that the Jews needed a safe haven after the Holocaust. They blame the Arab victims for refusing the de facto principle of apartheid contained in the establishment of separate Jewish and Arab countries under UN auspices. They claim that Israel and the United States share common values. What they don't tell you is that Israel created the plan of partition and gave it to the UNSCOP Committee. It had also planned - all along - to start a civil war in neighboring Lebanon in order to occupy it and destroy its constitutional democracy and western institutions. Worse still, "The Lobby" and the Jewish Agency worked overtime to obscure the fact that they had defeated Mr. Malik's efforts in the UNSCOP and Ad Hoc Committees to establish Palestine as another constitutional democracy in the Middle East.

      During the General Assembly deliberations on Palestine, Malik offered a compromise proposal for establishing a single federal union with Jewish and Arab states, based upon the US Constitution and the constitutions of the individual States of the Union.

      Both the UNSCOP and Ad Hoc Committee reports were initially held-up in the General Assembly by states that had been told to wait and raise their objections in that body. The representative of Lebanon (Malik) offered a compromise proposal which read in part:

      "Principle number five: The Constituent Assembly, in defining the powers of the federal state of Palestine, as well as the powers of the judicial and legislative organs, in defining the functions of the cantonal governments, and in defining the relationships between the cantonal governments and the federal state, will be guided by the provisions of the Constitution of the United States of America, as well as the constitutions of the individual states of the United States of America.

      -- Yearbook of the United Nations for 1947-48.

      It is a matter of record that the US representative stated that a similar proposal had already been considered and had been rejected because it (the US Constitution!) had not been acceptable to the representatives of the Jewish Agency.

      So, the next time you hear someone say the Mufti rejected apartheid, just remember the Zionists and their supporters rejected constitutional democracy and equal rights.

    • I feel like I’m bogged down in a conversation with conspiracy theorists who want to parse what the meaning of ‘is’ is.

      Here we go again. You can speak Hebrew all that you want, but it won't change the provisions of public international law regarding the rights of the other national and religious groups that inhabited the territory of Palestine. Self-determination doesn't include the right to setup a new state in the middle of an existing one with a large indigenous population and insist on a privileged status for only one of its ethnic groups. The Zionist movement had to agree to accept those terms and conditions regarding the rights of others in exchange for a cession of territory in Palestine and recognition of sovereignty over that territory.

      Eli Likovski wrote an essay on the Status of the Jewish Agency and WZO which explains that when the Zionist Congress said "to create for the Jewish people a home in Palestine, secured under public law" that meant "public international law". See page 32 of Daniel Judah Elazar, Alysa M. Dortort (editors) "Understanding the Jewish Agency: a handbook, Jerusalem Center for Public Affairs, 1984

      A dispute regarding the belligerent communities of Palestine was a significant contributing factor in the outbreak of the Crimean War. As a consequence, the 1856 Treaty of Paris declared that the Sublime Porte of the Ottoman Empire had been admitted to participate in the Public Law and System (Concert) of Europe. All of the Ottoman communities were placed under the protection of the public international law of Europe at that time. See for example International law: achievements and prospects, UNESCO Series, Mohammed Bedjaoui (ed), Martinus Nijhoff Publishers, 1991, ISBN 9231027166, page 7

      The communities of Lebanon and Palestine were given additional protections under the Reglement organique of the Lebanon vilayet, dated June 9, 1861 and September 6, 1864 and Article 62 of the Treaty of Berlin 1878. The latter introduced the practice of conditioning recognition and grants of sovereignty over territory on acceptance of minority treaties which dictated the terms of government regarding the political, civil, religious, and property rights of national minority and religious groups that "come with the territory". See for example the discussion about Serbia, Montenegro, and Romania in Defending the Rights of Others, by Carole Fink, on page 37 Paragraph 129 of the ICJ Wall Opinion explains how the "existing rights" of the Palestinians under Article 62 of the Treaty of Berlin were the subject of safeguarding clauses in Article 13 of the Mandate and an entire Chapter in the Partition plan. The Court also mentioned the reference to the "immunity" of the Muslim Holy Places in Palestine under Article 13 of the Mandate. Immunity is always an attribute of sovereignty. The Holy Places in Hebron and elsewhere had been excluded from the territory of the Brown, "International Enclave", shown on the map attached to the Sykes-Picot Agreement in accordance with the Government of India's Proclamation No. 4 to the Arab and Indian Sheikhs and the Sherif of Mecca. See for example paragraph 4 (c) on pp 4 (pdf page 5) and paragraph 6 (a), (d), & (e) on pp 8-9 (pdf page 9-10) CAB 24/72, "The Settlement of Turkey and the Arablan Peninsula" (Former Reference: GT 6506) , 21 November 1918 and the collection of small and large detailed maps of Palestine in CAB 24/72 "Maps illustrating the Settlement of Turkey and the Arabian Peninsula", (Former Reference: GT 6506A) 21 November 1918

      Accepting a minority treaty and making a declaration regarding those guarantees was a standard condition for terminating Palestine's mandate regime and granting the Zionists and Arabs their independence. See See Luther Harris Evans, "The General Principles Governing the Termination of a Mandate", The American Journal of International Law, Vol. 26, No. 4 (Oct., 1932), pp. 735-758, American Society of International Law,

      Charles Malik (Lebanon) served as Rapporteur for Eleanor Roosevelt's Commission and presided over the General Assembly Third Committee when it drafted the Universal Declaration of Human Rights. Contrary to Zionist propaganda he did not refuse to recognize Israel's existence. During 45th meeting of the hearings on Israel's application for membership in the UN he pointed out that Israel had been created by the United Nations and that it was violating the terms of the partition plan regarding the lives and safety of its Arab citizens and the criteria pertaining to expropriation of their properties. He pointed out the obvious. That the UN did not intend to grant Israel the right to rid itself of its Arab citizens and that its membership in the UN could only be premised on its compliance with resolution 181(II):

      The General Assembly had to determine first of all the criterion on which to base its decision to admit Israel. Ordinarily, applicant States were merely required to comply with the conditions laid down in Article 4 of the Charter. However, in so far as Israel had actually been created in November 1947 by a resolution of the General Assembly (181 (II)), the Assembly had first to consider the cardinal question of whether the new State in its present structure conformed to the previous decisions affecting it which had been adopted by the United Nations itself

      In that connexion, Mr. Malik quoted from section F, part I of the Assembly's resolution of 29 November 1947, which stated that sympathetic consideration should be given to the application for membership of either the Jewish or the Arab State, when the independence of either as envisaged in the plan had become effective and the declaration and undertaking as envisaged in the plan had been signed by either of them.
      ...

      The State of Israel, in its present form, directly contravened the previous recommendations of the United Nations in at least three important respects: in its attitude on the problem of Arab refugees, on the delimitation of its territorial boundaries, and on the question of Jerusalem.

      The United Nations had certainly not intended that the Jewish State should rid itself of its Arab citizens. On the contrary, section C of part I of the Assembly's 1947 resolution had explicitly provided guarantees of minority rights in each of the two States. For example, it had prohibited the expropriation of land owned by an Arab in the Jewish State except for public purposes, and then only upon payment of full compensation. Yet the fact was that 90 per cent of the Arab population of Israel had been driven outside its boundaries by military operations, had been forced to seek refuge in neighbouring Arab territories, had been reduced to misery and destitution, and had been prevented by Israel from returning to their homes. Their homes and property had been seized and were being used by thousands of European Jewish immigrants.

      During the 48th session of the Ad Hoc Political Committee that was considering Israel's application for membership, the representative of Cuba asked if Israel had supplied the required declaration? He noted that the rights were under United Nations guarantee. See pages 2-3 of the .pdf A/AC.24/SR.48 Mr Abba Eban said he could answer in the affirmative and needed a little time to produce the documents, but said that a declaration had been made by the Foreign Minister to the Secretary General on 15 May 1948.

      At the 51st session Mr Eban said that the rights stipulated in section C. Declaration, chapters 1 and 2 of UN resolution 181(II) had been constitutionally embodied as the fundamental law of the state of Israel as required by the resolution. See The Palestine Question, Henry Cattan, page 86-87 and the verbatim UN record, A/AC.24/SR.51

      Mr. Eban’s explanations and Israel’s acknowledgment of those undertakings were specifically noted in the text and footnotes of General Assembly Resolution 273 (III) “Admission of Israel to membership in the United Nations”, 11 May 1949.

      The Minority Protection Plan was cataloged in a list of legal instruments compiled by the UN Secretariat in 1950. Only the post-WWII agreements were still considered valid at that time. E/CN.4/367, Date: 7 April 1950 (see Chapter III The United Nations Charter And The Treaties Concluded After The War, resolution 181(II) of 29 November 1947, "The Future Government of Palestine", pages 22-23) and the entry for UN General Assembly Resolution 181(II) in the "Table of Treaties" in Thomas D. Musgrave, Self-determination and National Minorities, Oxford Monographs in International Law, Oxford University Press, 1997, ISBN 0198298986, Page xxxviii

      Li-ann Thio, a professor of international and human rights law at the National University of Singapore noted that many international law norms and customary practices developed in the inter-war years by the League of Nations are still in use today. She specifically cited the cases of the Bosnian and Palestine partition plans. The UN partition plan contained each of the procedures developed by the League for managing intrastate and inter-ethnic issues: International supervision; regional economic integration; minority protection; plebiscites; and a partition. She cited the Palestine Partition Plan as an example of conditioning recognition of statehood on human rights, democracy, and minority protection guarantees. See the discussion on pages 97-98 and footnote 353 in Li-ann Thio Managing Babel: The International Legal Protection of Minorities in the Twentieth Century, Martinus Nijhoff Publishers, 2005, ISBN 9004141987.

      Adam Keller explains why Israel is singled out - because it, and it alone, is in obvious default of a fundamental obligation, an obligation which was the condition for Israel coming into being in the first place:

      In effect, Zionism can be seen to have signed a contract with the international community. Fair treatment of the Palestinians and respect of (at least some of) their rights as the clear condition for the recognition of its own national aspirations.
      ...
      Yes, there are many countries whose conduct fully deserves condemnation – but none was given such a unique privilege as the Zionist movement was given, none had made such a binding obligation in return for being given such a privilege, and which it failed to keep.

      See "Is Israel singled out – and why?"

    • The American States do recognize a states right to exist, but the International Law Commission (ILC) did not feel there was enough support for that position elsewhere, so it did not include the principle in the Draft Declaration on the customary Rights and Duties of States. If you want to see the results in practice read the written submissions from interested states in the Kosovo case on the ICJ website. Half say that customary international law and self-determination support the right of secession, while the other half claim the territorial integrity norm and the permanent sovereignty norm forbids the practice when the group is adequately represented. The Court only answered the question the General Assembly had put to it, and left those issues for a later time. In any event the Palestinians didn't secede, Israel did.

      The 1933 Montevideo Convention says that even before it is recognized by other states, a state has the right to defend itself and look after its preservation. The 1948 Bogota Charter of the Organization of American States, clarified that a bit by explaining "the right of each State to protect itself and to live its own life does not authorize it to commit unjust acts against another"

      The final version of the ILC's codification of the Responsibility of States for Internationally Wrongful Acts", 2001 is relevant since the ICJ cited Article 25(2)(b) in the 2004 Wall opinion. The Court said Israel could not cite its own security and a state of necessity to preclude the wrongfulness of its actions, since Israel had contributed [I'll say] to the state of necessity. In other words Israel's own actions helped provoke the international armed conflict in the first place.

    • My posts above have some links that don't work. Here is a another attempt to provide them

      Secretary of State for India Montagu's memo on Zionism at the UK National Archives (free download):
      *CAB 24/28 (Former Reference: GT 2263) “Zionism, 9 October 1917

      The Permanent Court of International Justice definition of the term "communities" see page 11 (pdf file 17 of 41)
      *Advisory Opinion of 6 April 1935 Minority Schools in Albania

      Link to the text of the General Assembly Plan for the Future Government of Palestine:
      *UN General Assembly resolution 181(II)

      Jewish rejection of Trustesship
      * Jewish Agency Response to the Trusteeship Proposal

      Israeli Supreme Court Rulings that determined Israel was not a successor to Palestine and that rights in the Mandate ended in 1948. See paragraphs 211-214 on pp 119 (pdf file page 26)
      *Digest of decisions of national courts relating to succession of States and Governments: Study prepared by the Secretariat

      Dr Jessup's remarks about the meaning of the word "state" in the UN Charter see page 12
      *S/PV.383, 2 December 1948

    • Representation in the United Nations is not exactly the same thing as recognition of statehood. The United Nations does not play a collective role in recognizing states. It would require an amendment to the UN Charter in order for it to do that. UN document S/1466, 9 March 1950, Subject: Letter Dated 8 March 1950 From the Secretary-General to the President of the Security Council Concerning “Legal Aspects of Problems of Representation in the United Nations”, explains that situation more completely.

      In any event, the name of the organization is the "United Nations", not the "United States". Many countries have been admitted despite objections regarding their qualifications, e.g. Syria, Lebanon, Jordan, India, the Philippines, SSR Belorussia, SSR Ukraine, Indonesia, Bhutan, & etc.

      When Israel applied for membership in the UN, some members objected that it did not satisfy the criteria of a "peace-loving state" in accordance with Article 4 of the UN Charter. During the 383rd meeting of the Security Council, U.S. Ambassador (and future Judge of the ICJ) Dr. Phillip Jessup said:

      'we already have, among the members of the United Nations, some political entities which do not possess full sovereign power to form their own international policy, which traditionally has been considered characteristic of a State. We know however, that neither at San Francisco nor subsequently has the United Nations considered that complete freedom to frame and manage one's own foreign policy was an essential requisite of United Nations membership.... ...The reason for which I mention the qualification of this aspect of the traditional definition of a State is to underline the point that the term "State", as used and applied in Article 4 of the Charter of the United Nations, may not be wholly identical with the term "State" as it is used and defined in classic textbooks on international law."

      see page 12 of S/PV.383, 2 December 1948

      Apparently classic textbooks were not consulted when defining the meaning of "peace-loving" either.

      FYI, when the Peace Conferences of Versailles and Lausanne provisionally recognized the "communities" as independent nations no one knew how many future states that would entail. The original 10 "mandates" had already split into 15 states by 1925.

      The so-called "Mandate instruments" were just draft resolutions that were adopted by the Council of the League of Nations (LoN). In the 12th of its Series B cases, on "Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne" the Permanent Court of International Justice had ruled that decisions adopted by the Council in a resolution were non-binding recommendations, unless the parties concerned agreed to accept and carry them out. That was affirmed in the 42nd of the A/B Series cases in "Railway Traffic Between Lithuania and Poland". In principle, acceptance of LoN recommendations by Great Britain and France, could never create binding international obligations for third parties, such as the Arabs of Palestine or the UN. That is why a safeguarding clause concerning rights under mandates with very limited scope was added to the Charter. In practice the British legal system held that its own international agreements, including the Mandate, were not self-executing. So, the mandate was really only enforceable in the courts of Palestine in so far as its provisions had been incorporated in the Order in Council of 1922 or some other ordinance. The Permanent Court of Justice and the International Court of Justice ruled on the provisions of the Treaty of Versailles (Article 22 of the Covenant). The subjects of international law mentioned there were once again the (plural) "communities".

      At the time, the ones that we lump together under the label "Jewish" considered each of their communities (edah) autonomous and coequal. Each community had its own spiritual leadership, courts, schools, and charitable societies. Many of the British officials mistakenly viewed them in European terms as members of the same "race". To say that the majority of them had no intention of ever turning over the task of their own "self-government" to a joint rabbinate or secular Zionist organization would be a very guarded understatement. The so-called "non-Jewish" communities also represented several autonomous ethnic groups in addition to the ones we lump together under the label "Arabs".

    • clenchner,

      Article 1 of the ICCPR guarantees that

      All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

      Entire volumes have been written which explain in great detail why the legal term of art "peoples" does not translate into "members of national minority groups". See for example Thomas D. Musgrave, "Self-determination and National Minorities", Oxford Monographs in International Law, Oxford University Press, 1997, ISBN 0-19-829898-6

      In the United States, you may speak Hebrew until the cows come home, but the 14th amendment to the Constitution guarantees that you cannot establish a state on US territory that deprives anyone of their US citizenship. In a letter to Rabbi Elmer Berger of the American Council for Judaism dated 20 April 1964, Assistant Secretary of State Phillips Talbot said "it should be clear that the Department of State does not regard the “Jewish people” concept as a concept of international law.” See Volume 8, of the U.S. State Department’s “Digest of International Law”, Whiteman ed., page 35.

      A week before the Balfour Declaration was released, Privy Council President Lord Curzon, War Cabinet Secretary Hankey, and Secretary of State for India Montagu wrote memorandums explaining that the term "Jewish National Home" had no agreed upon meaning to Jews or supporters of the Zionist movement. See CAB 24/30, "The Future of Palestine" (Former Reference: GT 2406), 26 October 1917; CAB 24/4, "The Zionist Movement"(Former Reference: G 164), 17 October 1917; and CAB 24/28 (Former Reference: GT 2263) "Zionism, 9 October 1917.

      The scope of Article 22(4) of the Covenant of the League of Nations was limited to "Certain communities formerly belonging to the Turkish Empire". In a contentious case involving the equal treatment of the Minority Schools of Albania, the Permanent Court of International Justice reaffirmed the definition and legal status of "communities" from its Advisory Opinion of July 31st, 1930, concerning the Greco-Bulgarian Communities (Opinion No. 17). On that occasion the Court stated that a community is:

      a group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by this identity of race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other."

      So, Hebrew speaking Russian Jews were definitely not members of the same "communities" as the Yiddish or Arabic speaking Jews. See page 17 of the ruling from the ICJ website

      Article 434 of the Treaty of Versailles stipulated that the disposition of the former territories of the Ottoman Empire would result in the establishment of "new States". A Court of Arbitration established by the Council of the League of Nations in accordance with the terms of Article 47(4) of the Treaty of Lausanne determined in 1925 that those new states were Palestine, Transjordan, Iraq, Syria, and Lebanon. Article 52 of the Treaty made them responsible for shares of the Ottoman Public debt effective from the 1st day of March, 1920. The decision (in French) is available from the UN Treaty Organization in Volume 1 of the Reports of International Arbitral Awards, Affaire de la Dette Publique Ottomane. Bulgarie, Irak, Palestine, Transjordanie, Grèce, Italie et Turquie. Genève, 18 avril 1925" pp 529-614 *Note: the International Law Commission lists "The Reports of International Arbitral Awards" as one of the sources of customary and conventional state practice the International Court of Justice can apply in its decisions in accordance with Article 38 of the Statute of the Court

      In 1932 the Chairman of the League of Nations Permanent Mandates Commission said that, although he had assisted in the supervision of the mandatory administration of Palestine for eleven years, he had always found it extremely difficult to ascertain whether, as was required by Article 2 of the mandate, the development of self-governing institutions was assured for all the inhabitants, seeing that, under the terms of the same article, the mandatory Power had long since set up the Jewish National Home".

      The Peel Commission of 1936-1937 found the mandate was unworkable and recommended a plan of partition which included Transjordan. The US Consul General at Jerusalem advised the State Department that all Arabs accepted the finding and that all Jews rejected it. He said the Mufti refused the principle of partition and declined in practice to consider it. He said the Emir Abdullah of Transjordan urged acceptance on the ground that realities must be faced. The Consul also noted that Nashashibi side-stepped the principle, but was willing to negotiate for favorable modifications. The Jewish Agency publicly rejected the plan, and contacted the Permanent Mandates Commission regarding their desire for a Jewish Commonwealth in all of Palestine. The Commission advised them that the Mandate could not be implemented according to their wishes, so the Agency staffed their own internal commission to develop a plan of partition more to their liking. The Agency's supporters in the Parliament voted down the Peel proposal. See David Ben-Gurion, "Letters to Paula and the Children", translated by Aubry Hodes, University of Pittsburg Press Edition, 1971, pages 134-135 and Yossi Katz, "Partner to Partition: The Jewish Agency's Partition Plan in the Mandate Era", Routledge, 1998.

      The Mandatory administration declared the National Home an established fact in 1939 and adopted Jewish immigration quotas and the 1940 Land Transfer Ordinance which effectively partitioned Palestine and set limits on the final scope of the national home in a way that was not to the Jewish Agency's liking.

      Article 80 of the UN Charter was developed as a "status quo" agreement with respect to the Palestine mandate. It was included in the Charter at the insistence of the Arab League. They were afraid the 1939 White Paper policy would be altered. See the discussion on this page and the following page of the Foreign Relations of the United States under the heading "Palestine".

      The Yalta Conference recommended that the mandates be abolished or established under new rules as UN trusteeships. So, the Jewish Agency began planning for independence. It also wrote a memo to the San Francisco Conference of the UN requesting a safeguarding clause in the Charter which would say that no trusteeship agreement could alter the Jewish right to nationhood secured by the Balfour Declaration and the Palestine Mandate. However, the conference rejected that suggestion and stipulated in article 80 of the Charter that the UN COULD conclude trusteeship agreements that altered rights under a mandate. See Jacob Robinson, Palestine and the United Nations: Prelude to a Solution, Greenwood Press, 1971 Reprint (1947), page 2-3

      The UNSCOP report stated that the distressed Jews of Europe were an international problem, not a Palestinian one. See VI. International responsibility for Jewish displaced persons" It also said that the national home was not a matter of international law:

      The notion of the National Home, which derived from the formulation of Zionist aspirations in the 1897 Basle program has provoked many discussions concerning its meaning, scope and legal character, especially since it has no known legal connotation and there are no precedents in international law for its interpretation. It was used in the Balfour Declaration and in the Mandate, both of which promised the establishment of a "Jewish National Home" without, however, defining its meaning. The conclusion seems to be inescapable that the vagueness in the wording of both instruments was intentional. The fact that the term "National Home" was employed, instead of the word "State" or "Commonwealth" would indicate that the intention was to place a restrictive construction on the National Home scheme from its very inception.

      The partition plan terminated the rights of Jews living in Israel to move to Arab Palestine and Arabs living in Arab Palestine to move to Israel. Part I - Future Constitution and Government of Palestine, "C. Declaration, "Chapter 1: Holy Places, Religious Buildings and Sites" and "Chapter 3: Citizenship, International Conventions and Financial Obligations" together with Part II "Boundaries" and Part III - "City of Jerusalem" in UN General Assembly resolution 181(II) established the rules for state succession regarding treaties, public debts, citizenship, and the establishment of an international regime for Jerusalem and the Holy Places in strict accordance with the terms of Article 28 of the British Mandate for Palestine. It also stipulated that after the termination of the mandate

      "that no Arab residing in the area of the proposed Arab State shall have the right to opt for citizenship in the proposed Jewish State and no Jew residing in the proposed Jewish State shall have the right to opt for citizenship in the proposed Arab State."

      The Jewish Agency rejected trusteeship proposals and insisted that the mandate be terminated. See the statements of Rabbi Silver to the Security Council and Mr Ben Gurion's comments to the Press available from the MFA website

      The first constitutional act of the Provisional Government of Israel after the British mandate was terminated was a proclamation intended to repeal the 1939 White Paper, the immigration quotas, and the 1940 Land Transfer Ordinance.

      In 1949 an international conference was held in Tel Aviv regarding the public debts of Palestine; its treaty obligations; and demands for payment from Arab account holders in Palestinian Banks. The Government of Israel adopted the position that it was in no sense a successor of the Government of Palestine or the obligations contained in Article 28 of the Mandate and the UN Partition Plan. Afterward, the Israeli Supreme Court affirmed that position in the cases of Shimshon Palestine Portland Cement Factory Ltd. v. Attorney-General and Sifri v. Attorney-General. The Court said Israel was a completely new entity with no connection to the Palestine Mandate. The Court also affirmed that the mandate had been terminated in 1948 and that

      When the Mandate came to an end the appellant's right also came to an end. If there is doubt how far a successor State is bound by the contracts and concessions of its predecessor, how much the more is this so as regard a State which is not a successor. Even if Israel was the "successor " of Mandated Palestine, another of the Justices said, even then it would not be burdened by obligations acquired in relation to any part of Palestine or its inhabitants who remained outside the boundaries of the State; but now that Israel is not the successor, how much the more is it not encumbered, except to the extent of its own volition, by rights acquired outside the present area of the State.

      See paragraphs 211-214 on pp 119 (pdf file page 26) in Digest of Decisions of National Courts relating to Succession of States and Governments" at the UN Treaty Organization & D.P. O'Connell author "The Law of State Succession", Volume V of the Cambridge Studies in International and Comparative Law, 1956, Hersh Lauterpacht editor, pages 10-11, and 178

      I hope that fills in some of the gaps in your education.

  • False choice: Netanyahu says Abbas must choose peace w/ Hamas or Israel
    • The Palestinians should refuse to participate in any mediation except as a full UN member state participating in an international peace conference conducted solely under UN Organization auspices. No more backdoor/back-channel unofficial "Quartet" B.S.

    • The Jerusalem Post article 'J'lem to cut ties with PA if Hamas added to unity gov't', said that "Israel’s objection to Hamas inside the PA government would evaporate, the official added, if the organization accepted the Quartet’s three conditions for acceptance: forswearing violence, recognizing Israel, and accepting previous Israel-Palestinian agreements. "

      But Netanyahu has never observed the conditions of acceptance laid down by the Quartet for the Israeli side:

      "GOI [government of Israel] takes no actions undermining trust, including deportations, attacks on civilians; confiscation and/or demolition of Palestinian homes and property, as a punitive measure or to facilitate Israeli construction; destruction of Palestinian institutions and infrastructure; and other measures specified in the Tenet work plan.

      Netanyahu demanded that Sharon build a perimeter fence around Gaza prior to the unilateral withdrawal. That was an integral part of his policy of 'Separating Judea and Samaria from Gaza", while designating it an "enemy entity" and blockading the inhabitants. All of those measures violate the terms of the previous agreements Israel signed with the Palestinians.

      It has been widely reported that repeating those particular Quartet demands to Hamas was the first step in the Bush administration plans to scuttle the previous talks about establishing a"unity government". The US delivered an ultimatum demanding the dissolution of the Hamas government that triggered a civil war in Palestine.

      Article IV of the Oslo Accords stipulates that "The two sides view the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved during the interim period."

      The Department of State advised the other executive branch agencies on January 13, 1997 that it "considers the West Bank and Gaza Strip to be one area for political, economic, legal and other purposes."

      UN Security Council Resolution 1860 (2009) stressed that the Gaza Strip constitutes an integral part of the territory occupied in 1967 that will be a part of the Palestinian state.

  • Cairo 2
    • Avi,
      Your assistance is greatly appreciated.

    • Hu Bris,

      I'm pretty confident that the CIA is probably "in country" by now, and that it is not "a foreign occupation force of any form".

    • Hu Bris the provisions regarding the "No-Fly-Zone" were contained in operative paragraphs 6 & 7 of UN Security Council resolution 1973. The resolution mentioned two earlier ones - which follows the normal pattern. "Situations" usually do morph after the Security Council's gets involved with them.

      Paragraph 4 of the resolution:

      Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council.

      The minute the armed forces of the member states undertake planning for combat operations their obligations under international humanitarian law, including distinction, proportionality, care for the wounded, & etc., are normally considered to be engaged.

      Military occupation only occurs when control and authority over a territory passes to a hostile army. Authorizing a foreign-controlled "No-Fly-Zone" over the territory of Libya would ipso jure be considered an occupation, unless the UN just signaled us that it has tacitly recognized the rebels as the legitimate government.

      I believe the US, UK, France, the GCC states, and the Arab League have already taken steps that are incompatible with non-recognition of the rebels or with neutrality. If that is the case, the NATO members are probably not considered a "hostile army". The tactical use of forces on the ground to protect the civilian population and civilian areas under threat of attack was already authorized (e.g. all necessary measures), the resolution specifically ruled out any authorization for them to control territory, i.e. impose martial law. So long as the ground forces defer to and take direction from the local rebel authorities and are merely assisting the local civilians, the two-pronged test that triggers the Hague and Geneva rules of occupation do not go into effect.

      FYI, the fact that "control and authority over a territory" have not been authorized in advance, has never stopped the Security Council from issuing a mandate to that effect after-the-fact. That is exactly what happened in Iraq.

    • Kathleen I was only trying to stress the underlying role of the UN Charter in the foreign relations law of the United States. It should come into consideration any time that the Congress is engaged in deliberations regarding the use of the armed forces beyond our borders. Members of Congress were deliberately included in the US delegation that participated in drafting the UN Charter during the San Francisco Conference. So, President Wilson's blunders with Article 10 of the League of Nations Covenant regarding mutual defense were avoided. The US Congress had a hand in defining, limiting, and ratifying the war powers that were conferred on the UN Security Council.

      The Congress can annul that treaty and remove the President from office at any time for failing to faithfully execute its laws. In historical perspective, attempts to get the Article III Courts involved in curtailing the executive powers vested by law and the Constitution in the President or the Security Council have been viewed as a violation of the separation of powers doctrine. The Courts do not have a role in settling political disputes between the other branches of the government.

      Portions of the War Powers Resolution have been considered unconstitutional since the day it was adopted. Attempts to amend the implementing public law to remove the offending portions have been unsuccessful (so far). In many instance neither the President, the Congress, nor the Courts have been willing to trigger its mechanism. In 1999 the President employed military forces in Yugoslavia without obtaining congressional authorization. Representative Tom Campbell unsuccessfully attempted to get the Courts to intervene and order the President to comply with the terms of the resolution. The Constitution gives the Congress the power of the purse; to organize and discipline the military; to annul statutes and treaties; and to convene military courts or courts of impeachment. That is why AIPAC concentrates it efforts on controlling the Chief Executive and the Congress instead of the Courts.

      The Supreme Court has ruled on several occasions that treaties and statutes have the same force and effect under the Supremacy clause of the Constitution. FYI, the methods of amending the Constitution do not include either a statute or treaty, so neither can authorize something that the Constitution forbids. The Congress can adopt a statute to annul the UN Charter, but so far, it has not done that.

      The Constitutional powers of the Congress "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water" have been either been rendered moot by customary international law or deliberately surrendered via the adoption of international treaties that govern or outlaw such practices.

      Many of us fail to recall that it is the Congress, not the DoD, that has the constitutional responsibility for laying down the laws used in raising, arming, organizing, and disciplining the armed forces. Congress has an active role in areas well beyond the budget. For example it codifies the rules contained in The Uniform Code of Military Justice. So, the armed forces are not simply a "Praetorian Guard". In many cases the Courts have ruled that members of the armed forces who obey unlawful orders - even from the President - do so at their own peril. See for example, Little v. Barreme, 6 U.S. 2 Cranch 170 170 (1804). You probably recall that the same principle was applied to the orders given by Central Intelligence Agency Director William Casey, National Security Advisers Robert C. McFarlane and Admiral John M. Poindexter to Lt. Col. Oliver North.

    • The President is not legally allowed to engage in military action without the express approval of Congress.

      In several cases, the Supreme Court has labeled that situation a "political question". Essentially that means it is the task of the Congress to impeach the Commander-in-Chief, and they can't pass the buck to the Article III Courts.

      In any event the Supreme Court has declined to hear cases in which members of the Armed Forces have refused to participate in UN peacekeeping missions on Constitutional grounds, e.g. U.S., ex rel. New v. Rumsfeld, 06-691.

      The Senate ratified the Kellogg-Briand pact and the UN Charter. Those treaties only permit the Congress to "declare war" in very limited circumstances. In fact, UN Secretary-General Kofi Annan said that the Congress and the President had acted illegally when they authorized the invasion of Iraq. The UN Charter authorizes the Security Council to decide those matters on behalf of the US government. According to the "supremacy clause" of the US Constitution, those treaties are part of "laws of the land". They are both listed in the latest electronic edition of the US State Department Treaties in Force (TIF)

      Article 24 & 25 of the Charter stipulate that "Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. ...The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter."

      Articles 42 & 43 say the Security Council "may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. ...All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities"

      Article 104 says "The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes."

      Article 2(5) says "All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action."

      The US tends to ignore that last bit with respect to Israel, e.g. the Basic law Jerusalem, the Golan Heights Law, etc.

  • Noura Erakat: Constructing the prototypical terrorist in America...Guess who?
    • If the "deligitimazation of the Palestinian people" hasn't already become the raison d'être of the "Jewish people", it's at least become the national pastime. In some so-called "religious" communities it is among the more important mitzvot.

    • The bottom line is that only "states" enjoy real legal status and effective protections under international and national law. The criteria are political, not legal. Any entity can be considered a state under international law.

      The author is correct. People like Furkan Dogan do not enjoy the rights of first class citizenship. Palestinians are not going to get to trial very often; US judges are not going to question Israeli court decisions; the State Department is going to ask that current and former Israeli officials be granted immunity for "acts of state" committed in-line with their official duties; and many jurors will simply have their minds made-up before the trial ever begins.

      The only reason that western governments are withholding recognition from the Palestinians right now is so that Israel can commit war crimes and crimes against humanity with relative impunity. Asian, Eastern European, and Latin American states have started to apply pressure for full UN membership come September. They may finally start indicting Israeli officials in their own national courts if certain countries attempt to derail or delay the process once again.

      I think that Israelis with dual citizenship can once again be criminally prosecuted here in the US under the provisions of the 1996 War Crimes Act, but the Attorney General has to request the indictment. There is no private right of action.

      The Supreme Court may have cleared the way, in Samantar v. Yousuf et al., for non-citizens to file civil lawsuits against current and former foreign government officials for violations of customary international law. That is done under the provisions of the Alien Tort Claims Act. Major Jewish groups (i.e. the American Jewish Congress (AJCongress), the Zionist Organization of America (ZOA), the Orthodox Union (OU), and Agudath Israel) had jointly filed a "friend of the Court" brief in support of the Somali war criminal. So, they were certainly worried about the statute's implications for Israeli officials.

      The United States Court of Appeals, Second Circuit, in Kiobel et al. v. Royal Dutch Shell, upheld a September 2010 judgment that the Alien Tort Claims Act cannot be applied to private corporations. However that ruling may not be directly applicable to "parastatal" corporations like the WZO, JNF, JAFI, & etc.

    • While the ATA’s definition of international terrorism does not limit terrorist actions to non-state actors, Section 2337 of the statute prohibits suits against any state actors.

      Articles 6, 7, and 8 of the Rome Statute of the International Criminal Court criminalize acts directed against: "any national, ethnical, racial or religious group"; "any civilian population"; and "persons or property". Article 25 limits the court's jurisdiction to "natural persons", e.g. non-state actors. Article 12 only permits "states" to accept the jurisdiction of the court. So, victims have no standing if they are merely "national, ethnical, racial or religious groups"; "a civilian population"; or "persons".

      Until the 111 countries that recognize the State of Palestine demand that the Security Council treat it like other occupied states, Israel can legally get away with murder. That is why recognition of Palestinian statehood terrorizes the Zionists.

  • 'Washington Post' uses Liz Taylor's fidelity to Israel to bash boycott movement
    • Burstein went well off the beaten path to criticize unnamed celebrities who support the movement to cut ties with Israel. Given his long wind-up, it was something of a letdown when he didn't (or couldn't) quote any criticism Taylor had ever leveled at those celebrities or the Palestinian civil society calls for boycott, divestment, and sanctions against Israel.

  • What is your question for Benjamin Netanyahu?
    • If we want to make the agreement smaller, can we just drop some of these issues? Like international law, this will make the agreements easier.

      But Livni knows she can't do that and still have a valid final agreement. That's why she doesn't like international law.

      Vienna Convention on the Law of Treaties 1969:
      Article 52
      A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.
      Article 53
      Treaties conflicting with a peremptory norm of general international law (“jus cogens”)
      A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

      Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949:

      Article 7
      No special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them.
      Article 8
      Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.
      Article 49(6) admits no exceptions
      The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

      Declaration On Principles Of International Law Friendly Relations And Co-Operation Among States In Accordance With The Charter Of The United Nations (1970):

      No territorial acquisition resulting from the threat or use of force shall be recognized as legal.

    • You have repeatedly invited Abbas of the PA to unconditional negotiations.

      Yes we know:
      *The Palestinians must unconditionally accept a "partial settlement freeze" that does not include East Jerusalem.
      *Palestinians must unconditionally accept that Israeli "negotiators" cannot touch Palestinian proposals, since that would immediately topple the Israeli government.
      *Palestinians must unconditionally accept the annexation of the settlement blocks to Israel under any future peace agreement.
      *Palestinians must unconditionally recognize Israel as the state of the Jewish people under any future peace agreement.
      *Palestinians must unconditionally accept Jerusalem as the undivided eternal capital of Israel under any future peace agreement.
      *Palestinians must unconditionally accept a permanent Israeli military presence in the Jordan Valley under any future peace agreement.
      *Palestinians must unconditionally accept a ban on foreign military alliances and permanent demilitarization under any future peace agreement.

      Does he expect to achieve his goals rather through war and terrorism?

      Fayyad and Abbas intend to achieve their goals by pissing off fewer allies than Obama, Bibi, Tzipi, and Yvette. That shouldn't be too difficult.

  • Marqusee: democracy development and great power intervention are at odds
    • The wave just stops when it comes to the I/P issue

      That is nothing new. The western powers have always deployed the racialist concept of a "standard of civilization" to virtually control the existence of the "Palestinian state". All along they've claimed to be tutoring or helping to develop its "institutions of government". From the very beginning, the Secretary of State for the Colonies secretly reported that Great Britain had recognized the independence and statehood of others that were viewed as less civilized or less capable and that the Palestinians were "influenced" by that:

      "The situation in Palestine is greatly influenced also by any event which affects the Moslem world as a whole. The victories of Mustapha Kemal over the Greeks, and the prospect of a revision of the Treaty of Sevres between the Allied Powers and Turkey, had a marked effect in stimulating the Arab opposition in Palestine. The achievement of independence by Egypt, the Khalifat movement in India, the establishment of an Arab Kingdom in Iraq and of an Emirate in Trans-Jordan, all have had their influence here.

      Furthermore, the Arabs of Palestine are in constant communication with King Hussein of the Hejaz. The relations between them are the resultant of different forces. On the one hand King Hussein is regarded by many as a very incompetent governor; he is looked upon also as a Beduin King of a Beduin State, which is much below Palestine in its level of civilisation. On the other hand, he is recognised as the principal leader of the Arab national movement, and his family are generally considered the natural heads of any combination of Arab States which the future may bring forth. See CAB 24/165, Former Reference: CP 136 (24), "Palestine", Secretary James H. Thomas, 25 February 1924

      So, while France, Great Britain, the US, and the other western governments have already formally or tacitly recognized the rebels in Libya as the legitimate government, they cling to the nonsensical proposition that the Palestinians are "not quite there yet" - "but it's a definite possibility" someday.

      So, this has been going-on for nearly a hundred years, and thirty years from now people will be reading the declassified reports about the US government's attempts to prolong the occupation and veto Palestinian independence yet again.

  • The muzzling of Israel critics in European universities
    • The "Statement by Judge Eli Nathan, Head of the Delegation of Israel United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court" illustrates that he knew Article 8, Paragraph 2(b), sub-para. viii was a war crime and that it was applicable to the illegal situation that Israel had created through its settlement enterprise.

      At the time, about a 190 states were parties to the Geneva Conventions of 1949 - and 169 were parties to the 1st Additional Protocol of 1977. Nonetheless, the Judge still had the chutzpah to pretend that it was news to him that the other states at the conference considered colonizing another country at gunpoint and deporting or transferring its population to be serious war crimes.

      Since then, the Conventions of 1949 have been universally ratified; the Conference of the High Contracting Parties to the Geneva Conventions declared the settlements illegal; the ICJ found Israel was violating article 49(6) of the Fourth Convention; the Rome Statute of the ICC has entered into force; and the EU Framework Decision on Racism and Xenophobia made it a prosecutable criminal offense in most cases to publicly condone or trivialize violations of Article 8 of the Rome Statute of the ICC.

      P.S. the Framework criminalized Islamophobia, not just Antisemitism.

    • Huh?

      They might be pleasantly surprised if they asked me for some legal advice. Even the laws dreamed-up by the Israel Lobby are capable of novel applications. I've always thought that it was self-evident that the EU Framework Decision makes it a crime to publicly condone or trivialize illegal Israeli settlement in the Occupied Palestinian territory; or the illegal deportation or transfer of Palestinians out of the territory in order to imprison them on the Israeli side of the Green Line. Article 8(2)(b)(viii) of the Rome Statute codifies Article 49(6) of the Fourth Geneva Convention and Articles 85( 4)(a) and 85(5) of the 1st Additional Protocol. It says that these acts are a war crime:

      The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

      In 2004, a competent international court exercising its general jurisdiction determined that

      "since 1977, Israel has conducted a policy and developed practices involving the establishment of Settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6 [of the Fourth Geneva Convention], just cited. ...The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law. ...Article 49 reads as follows "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. ...Lastly, the construction of the wall and its associated régime, by contributing to the demographic changes referred to in paragraphs 122 and 133 above, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the Security Council resolutions cited in paragraph 120 above."

      Extracted from paragraphs 120-134 of the ICJ Advisory Opinion in the Wall Case.

      It was also contended that "Israel is under an obligation to search for and bring before its courts persons alleged to have committed, or to have ordered to be committed, grave breaches of international humanitarian law" in paragraph 145(3) of the ruling.

      The Palestinian Central Bureau of Statistics says that there are over 7,000 prisoners in Israeli jails. The Israeli High Court of Justice (HCJ) recently rejected a petition to order the State to refrain from holding Palestinian prisoners and detainees in facilities located in Israeli territory within the Green Line. The HCJ held that since national legislation overrides the provisions of international conventions to which Israel is party, including conventions that reflect customary international law, the petition should be rejected.

      Israel cannot adopt a statute that makes a war crime legal. The international courts have stated time and again that it is a universal principle of international law that a State cannot invoke its municipal law as the reason for the non-fulfillment of its international obligations (or a get out of jail free card). Any attempt to excuse non-fulfillment of an international obligation on the basis of municipal law constitutes a breach of those obligations. See for example André Klip, Göran Sluiter, Annotated leading cases of International Criminal Tribunals: The International Criminal Tribunal for the former Yugoslavia 1997-1999, Intersentia nv, 2001, ISBN 9050951414, page 134, paragraph 39

      The EU Framework Decision on Racism and Xenophobia actually says:

      "Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable: ...(c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;

      Publicly condoning, trivializing, or denying war crimes when they are committed against Palestinians is likely to incite them and their supporters. Publicly condoning, trivializing, or denying that those acts are illegal has resulted in violence against Palestinians in the form of forced transfer, deportation, and crimes committed by the settlers. The latter can be confirmed from open sources such as the Government of Israel's inquiry into Settler Violence against Palestinians (aka "The Karp Report"(1982)); the reports of officials on mission for the United Nations including the UN Fact Finding Report on Gaza (aka The Goldstone Report); and newspaper accounts of "price tag" raids on Palestinian villages.

      If there is a "genuine dispute" about the material facts that could effect the outcome under governing law, a complaint against the Zionist societies probably would not be summarily dismissed.

      Sometimes a spoonful of your own medicine is the best cure....

  • Israel's racist response to Itamar murders would be unthinkable in the U.S.
    • It’s a census term. It’s how we are to be tabulated.

      Just to be clear "White" is one of the census terms, not "Caucasian". The government has dozens of NHI-funded genetic studies which prove there is no scientific basis for the discrete racial categories the government employs. Those notions hearken back to the days when self-appointed bigots thought they needed to protect the "purity" of different races through anti-miscegenation laws. It is insulting that the government still requires its citizens to self-report this nonsense. They no longer require you to believe this crap, e.g. The question was changed from “What is this person’s race? Mark one or more races to indicate what this person considers himself/herself to be” in 2000 to “What is this person’s race? Mark one or more boxes” for 2010.

      The US Census bureau lists the American Jewish Committee, and United Jewish Communities/Jewish Federations of North America as current "Census Partners", but doesn't collect any information about "Jewish" ethnicity.

    • when you refer to a sovereign country as a “project” you look like a bit of an ass.

      GuiltyFeat the participants who attended the Basle Congress called the implementation of their program - the "Zionist Project". Here is an extract from Publications of the American Jewish Historical Society, Volume 8, American Jewish Historical Society, 1900:

      "SOME EARLY AMERICAN ZIONIST PROJECTS.

      By Max J. Kohlbr, A.M., LL.B., New York.

      The great interest the Zionist Congress, held at Basle recently, has aroused in the idea of the establishment of a Jewish State, renders timely a consideration of some earlier Zionist projects. The scope and aims of our society have suggested a limitation of this subject to this continent, but both schemes formed on this continent for the establishment of a Jewish State, and schemes formed elsewhere, designed to be executed in America, will be discussed. Of course, this paper does not even claim to exhaust all the projects that were formed. The attempt has been made throughout this article to avoid any controversial matter bearing on the Basle Congress project. I use the term "Zionist Project" here in a sense as broad and comprehensive as was given to it by the Basle Congress, so as to include all projects for assuring to the Jews "a publicly, legally assured home," with some degree of autonomy. Probably the inclusion of projects for the establishment of a Jewish State elsewhere than in Palestine, makes our use of the term "Zionist Project" broader than it is in the official declaration of purposes of the Basle Congress, but as the latter repudiated almost wholly a religious purpose, the idea of a Jewish State, wherever to be located, is the important element."

    • Israel’s racist response to Itamar murders would be unthinkable in the U.S.

      I'm afraid I would have to disagree. In the days following 9/11 there were mass round-ups, detentions, and deportations across the US. Only people from certain Asian, Middle Eastern and African countries were targeted. Many of them were here legally and had valid petitions pending with the now-defunct INS. I remember the atmosphere was reminiscent of the irrational response to the attack on Pearl Harbor that led to the internment of the Japanese-Americans.

      The Bush administration used the attacks as a justification to invade and subjugate two countries half a world away.

  • Israeli Foreign Ministry sent 'spy' to report on Gideon Levy speech in Dublin
    • Israel is warping into East Germany

      Zionists working in the Abteilung fur Jiidische Fragen (Division of Jewish Affairs) in the German Foreign Office and Committee for the Liberation of Russian Jews gathered intelligence and conducted propaganda campaigns from the very early days of the movement. The Socialist and Communist wings had their own political intelligence and propaganda people too. They have always sown the seeds of hate and discontent against anyone who opposes them. So, the tactic is not something new that Lieberman has introduced.

    • When it all falls apart, the WZO might be able to get those same four countries to hold a reunion in San Remo to recognize "the historical connection of the Jews to Moldova" - it being clearly understood, of course, that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Moldova;-)

  • AP publishes calumny of Palestinian attitudes re Holocaust
    • Like most crappy hasbarists you only dig a deeper hole for yourself when you are confronted with the facts.

      Wikipedia provides citations to reliable published sources which explain that it was NOT pretty clear at that time, and that plenty of people in the Jewish community condemned the bombing because the victims had not volunteered to participate in the underground's conflict with the British authorities:

      The role of the Haganah was not publicly revealed and a story was put out that the deportees, out of despair, had sunk the ship themselves (the version recounted, for example, by Arthur Koestler [Koestler, Arthur. Promise and Fulfilment - Palestine 1917-1949, p. 60]). For years the British believed that the Irgun was probably responsible. Ha-Po'el ha-Tza'ir, a newspaper of the ruling Mapai party, unaware that all of the persons responsible were Mapai leaders, lamented that "On one bitter and impetuous day, a malicious hand sank the ship." The article led Ben-Gurion's son Amos to physically assault the newspaper's editor.

      Meanwhile, a bitter debate over the correctness of the operation was raging in secret within the Zionist leadership. The decision had been made by an activist faction, without consulting more moderate members according to normal procedure, and this caused serious internal divisions that persisted for many years. An effort was made to enshrine the incident as an icon of Zionist determination, but this was largely unsuccessful.[Meir Chazan, The Patria Affair: Moderates vs. Activists in Mapai in the 1940s. Journal of Israeli History, Vol. 22, No. 2 (2003), pp 61-95.] Some leaders of the Jewish community in Palestine, the Yishuv, argued that the loss of life had not been in vain, as the Patria's survivors had been allowed to stay in the country. Others declared that the Haganah had had no right to risk the lives of the immigrants, as they had not decided of their own free will to become participants in the underground Jewish conflict with the British authorities.[Dalia Ofer, "A Dual Perspective: Yaakov Shabtai and the Historian's Account of the Deportation to Mauritius", in Ronit Lentin, Re-presenting the Shoah for the Twenty-first Century, p. 95. Berghahn Books, 2004. ISBN 1571818022]

      The Haganah conducted its own investigation but still publicly blamed the British:

      The Haganah also put up an investigative body to find out why such a relatively small amount of explosives could create such a huge hole in a large ship. That the entire ship would sink within fifteen minutes was incomprehensible. It came to the conclusion that the superstructure was in extremely poor condition and that it was unable to withstand the pressure.

      As for the justification that caused the damage to be inflicted in the first place the Haganah blamed the government of the Mandate. They announced that victims of the Pataria were the sole responsibility of the Mandate and the British Empire. link to jewishmag.co.il

      So, yes the Patria Affair belongs right up there with the Lavon Affair as one more dishonest and sleazy chapter in Zionist history.

    • I mention the Patria, because decades afterward Moshe Shertok's diary revealed that "whoever placed the explosives" (as you deceptively put it) was the Jewish Agency's militia - the Haganah.

      Despite the fact that the Jewish Agency had ordered the bombing in the first place, it initially suggested that the passengers themselves had taken part in bombing the ship, and that they were acting out of despair and desperation. The Agency also joined the public outcry for a government Commission to inquire into and report on responsibility for the sinking of the Patria; the adequacy of security arrangements before the blast; and the efficiency of the rescue operations. Afterward the Agency facilitated lawsuits for personal injuries and items that were "deliberately damaged" while in the custody of the Palestine government and its officers. Scroll down to "Patria Refugee's Test Cases"

      Within the Jewish community it was widely suspected that the Jewish Agency Executive was responsible. They responded by planting hasbara in the Palestine press that the real problem was the design of the Patria or the materials used in its construction.

      So, there certainly was deception involved. It is the height of dissimulation for you to have suggested otherwise.

    • The attacks against them and the laws passed against them began before the founding of the state of Israel

      Shlaim and others have spilled much ink writing about the emergency ordinances and other repressive measures employed against the Arabs before the founding of the state by officials like Gen. Montgomery, Orde Wingate, and the Special Night Squads. For example:

      In November 1938 Major General Bernard Montgomery arrived in Palestine. His task was to crush the revolt. “Monty” was a short-tempered professional soldier with no inclination to study the details of the conflict in Palestine. He gave his men simple orders on how to handle the rebels: kill them. This is what his men did"

      See the The Balfour Declaration And its Consequences, Avi Shlaim

      The Mossad LeAliyah Bet were operating before the founding of the state. The ordinances that allowed for collective persecution of the Arabs were a formal part of Herbert Samuel's plan by no later than 1924:

      "Sir H. Samuel's proposals would enable District Governors to enforce the principle of collective responsibility upon tribal sections and villages in tribal areas, and, where necessary, to impose collective punishment (whether by fine or otherwise) for the misdemeanours of individuals. It is important that the High Commissioner should be authorised as soon as possible to proceed in the manner proposed."

      See CAB 24/165 (formerly CP 121 (24)), Palestine, James H Thomas, 19 February 1924

      The French adopted similar measures. In Palestine, "The Collective Punishments Ordinance, 1926, was applied to towns and villages whose inhabitants had taken part in concerted attacks on Jews." It is described in CAB 24/270 (formerly CP 163 (37)), "Palestine: Report of the Royal Commission, 1936", William Ormsby-Gore, 22 June 1937

      France and Great Britain bombed Middle East mandate populations during periods of unrest or rebellion. Villages sympathizing with insurgents were fined, bombarded, and their male inhabitants sometimes executed. The RAF leveled entire villages in Palestine during the Arab Revolt. In response, the members of the Permanent Mandates Commission did little more than complain about it publicly:

      Yet, once these commissioners had vented their spleen–and, incidentally, made clear that the League too thought bombing civilians hard to reconcile with trusteeship–they got to work on damage control and re-legitimation. -- Susan Pedersen, 'The Meaning of the Mandates System: an Argument', Geschichte und Gesellschaft, Oct-Dec. 2006, page 20

      The atrocities committed by the Jewish militias against the Palestinians before the founding of the state were widely publicized.

      I provided you with a long list of authors, besides Avi Shlaim, who have written about the Mossad's involvement in the Jewish exodus from Arab countries.

    • Reuven,

      You are engaging in verbal sleight of hand and linguistic evasion. In HCJ 630/70 Tamarin v. State of Israel [1970] IsrSC 26(1) 197, the plaintiff demanded that the government register his nationality as "Israeli", rather than "Jewish". The Court held that if it agreed to Tamarin’s demand, it would lead to a schism in the Jewish people. The Supreme Court President, Justice Shimon Agranat, said that “the wish of a handful of Jews to break away from the nation and create a new concept of an Israeli nation was not a legitimate aspiration. There is no Israeli nation separate from the Jewish people. ...The Jewish people is composed not only of those residing in Israel but also of Diaspora Jewries."

      So, "Arab Israelis" are ipso jure the "Jewish Arabs" under another name. There is no such thing as an "Arab" nationality outside of Israel. The government uses that label to strip the Palestinian citizens of their national identity. All of the indigenous Palestinians should have their nationality registered as such - in accordance with article 30 of the Treaty of Lausanne - until the final legal status of all of the territory is determined through a negotiated or adjudicated settlement. Much of this has already been explained before. See for example "A racism outside of language: Israel's apartheid", by Saree Makdisi, in the Pambazuka News, 2010-03-11, Issue 473

    • Jews around the world insist on advancing the extermination as a unique Jewish event, or more accurately an event that is uniquely Jewish.

      I agree that the event was one of mind boggling proportions and that the Jews were specifically targeted for destruction. But the genocide perpetrated by European settlers against the indigenous peoples of North, Central, and South America was just as cold, calculated, unrelenting, and broad in its scope of application as the Holocaust that was visited upon the Jews.

      In many cases the survivors of that tragedy are just as opposed to cultural assimilation as the Zionists, but they do not claim that their right to exist entitles them to commit unjust acts towards others in order to protect and preserve that existence. The younger generation of Jews in the diaspora feel that way too. The Zionist response is sometimes to simply say that people who think like that are no longer part of the Jewish community.

    • P.S. Avi, I haven't read any in-depth analysis of Israeli textbooks since Elie Podeh wrote an article and book on the subject several years ago. I haven't seen anything on the content of Palestinian textbooks since about that same time. Is your work published, or do you know of any detailed up-to-date source of information on the topic?

    • Many Israelis and a few former CIA operatives say that Mossad operatives were responsible for the campaign of bombings, violence, and mass hysteria that preceded the mass exodus of the Jews from Arab countries. Here is a brief list: Uri Avnery, Wilbur Eveland, David Hirst, Abbas Shiblak, Ella Shohat, Marion Wolfsohn , Rafael Shapiro, and Naeim Giladi.

      After the disclosures regarding the Patria and Lavon Affairs, most intelligent people treat anything the government of Israel says about these matters with a healthy degree of skepticism. Despite the fact that many of the refugees never went to Israel in the first place, the government has tried to leverage their assets to offset the compensation it owes to the Palestinians. That sort of deal would make Bernie Madoff green with envy.

    • The US has taxpayer-funded secondary school history and university Native American Studies programs that teach about the policies of genocide and dispossession of the indigenous people by its settlers; about the injustices of slavery; and about the civil rights movement.

      You seem to be unaware of the fact that the State of Israel doesn't fund Arab sector education on an equal basis, despite the fact that Israeli Arabs pay taxes. See page 5 of the Concluding observations of the Committee on the Elimination of Racial Discrimination Let's not forget that, for a number of decades, the State of Israel siphoned-off billions of shekels from Palestinian workers wages and that the Palestinian Authority has stepped-in to fund schools in East Jerusalem.

    • The holocaust was not a unique event. Governments have murdered hundreds of millions of people under their control. The only things that change are the methodology and the date on the calendar. Browse around the excellent "Democide: Murder By Government" website at the University of Hawai'i.

    • Surveys show sixty four percent of Israeli teens aged 15 to 18 say that Arab Israelis do not enjoy full equal rights in Israel, and from that group, 59 percent ("most") believe that they should not have full equal rights.

      So, what are Israeli children being taught in their schools today? According to Haaretz:

      It is not "just" state-funded Rabbi Shmuel Eliyahu inciting against the Arabs and it is not "just" the leader of the racist world in Israel, Rabbi Dov Lior, who enjoys a respectable amount of funding and a variety of official posts. It is not even "just" the fact that most first-graders in Israel who are defined as Jews receive religious and ultra-Orthodox education in which it is self-evident that a non-Jew is not a human being. & etc.......

      Now the AP is trying to incite their readers against the Palestinians using the shopworn holocaust denial trope.

  • Israel lobbyist blames Palestinians for Israel's killing of 4 civilians
    • DBG,

      Be careful what you ask for and don't bring a ham sandwich to a feast. I was raised by folks who worked for the Political Department of the Jewish Agency for Palestine. I know crappy hasbara when I see it. Israel and its friends blocked the Goldstone report from being referred to the International Criminal Court for a good reason. You don't waste that much political capital for nothing. Reuven's attempt to blame Goldstone and the Arabs for the current situation doesn't alter the criminal responsibility of the leaders on both sides who are responsible for the cycle of violence. It's just a cheap attempt to shift the burden of guilt somewhere else (everywhere else). Mentioning Goldstone, at all, is a patent example of impotent rage and mental masturbation that characterizes the "too fervent" branch of Zionist propagandists. It may make you and Reuven feel good while you are "doing it" to yourselves, but it's embarrassing for the rest of us to have to watch the spectacle.

      The reports say that the family playing soccer in Gaza were killed by an anti-personnel shell fired from a tank. That would mean the gunner and commander were watching them on TV the whole time - exactly like the crew in the infamous Wikileaks helicopter attack. Here is some info on the Merkeva tank sighting system:

      The tank is equipped with a modern fire control and sighting system which includes computerized ballistic calculations and compensations, a dual axes stabilized gunner sight and a dual axis stabilized commander panoramic sight, both equipped with an advanced Forward Looking Infra Red (FLIR) and TV channels for day and night operation. The system is equipped with an improved tracking system which enables tracking of moving targets, such as tanks, helicopters, vehicles or soldiers. It also enables locking the sight and gun on targets when the tank is on the move, utilizing the ultra-fast gun stabilization and electrical turret drive system.

      We ordinarily indict the criminals on both sides to let them know that, even if they don't answer for their crimes, they'll be hunted for the rest of their lives. In that particular case, the surviving members of the Palestinian family don't need another Ghandi, they have plenty of those to spare. They need their own Simon Wiesenthal.

      What scares the current Zionist leadership about "delegitimation", is that there are fair minded people in the Jewish community, like Goldstone, who are willing to give the Palestinians a hand in that department.

    • It is definitely an undeniable hallmark of Jewish culture. In light of the Divine injunction in Devarim 23:13-15 (Deuteronomy 23:12-14), I'm always fascinated by the reports about the haredim who routinely desecrate the Kotel by hurling soiled diapers at the "Women of the Wall" whenever they read from the Torah or sing praises there.

      It seems fairly obvious that they are a bunch of misogynists who don't really care about the religious significance of the locale.

    • No, and he did a disservice to the editors and authors who worked so hard producing those hasbara fellowship talking points. Next time he should just cut and paste, instead of trying to recite them off the top of his head.

  • US activists respond to IDF spying on internationals
    • I explained the process at Tikun Olam a few months ago. Israel uses "Alice-in-Wonderland" accounting principles and pretends that it is actually buying the weapons systems, although the US stopped pretending that it would ever get re-paid decades ago. So, they charge our private contractors FMS offsets which require them to source part of their goods and services from Israel. That way their "large purchases" from the US won't harm the locals so much, because part of the money gets "returned" to the Israeli economy. The late Under-Secretary of State George Ball condemned the practice in his book "The Passionate Attachment: America’s Involvement With Israel, 1947 to the Present, W. W. Norton & Company, in 1992. So Americans have been getting fleeced for a long time. Israeli firms can also bid directly on DoD purchase contracts.

  • 'JPost' says Israel is US's only constant ally in shifting Middle East
    • The US had to utilize an abandoned Russian-built Air Base in Wadi Qena, Egypt for the C-141s that were employed during the Iranian hostage rescue attempt.

      The "only constant ally" has never supported the US in a single armed conflict. I believe the only time the US even bothered to ask was during the war in Vietnam. President Johnson was looking for more allied participation. The DoD suggested that Israel should contribute some token medical or peace corps-type teams, but the Israeli's were not interested.

      So, there is only an intertwining with the private defense industry and few of their counterparts in the defense procurement agencies who act as Israel's buyers. In so far as the major military operating commands are concerned, Israel is pretty much "a waste of life". Lt. Col Ollie North did employ Shimon Peres in the illegal Iran-Contra arms deal.

  • To my beloved Palestine, I am sorry. I love you.
    • The device of the "State" is used to deny victims of war crimes and crimes against humanity legal standing (locus standi) to file criminal complaints with international courts or to prevent victims from benefiting from the protections contained in the UN Charter. Those prohibit any threat or use of force against the independence or territorial integrity of - let's read it- "any state".

      So, states are indispensable, but perfect unity is not, e.g. the capital of West Virginia was never reconstituted in Richmond. Two semi-autonomous municipal authorities governing in a loose "Confederation of Palestine" would be perfectly acceptable if they would agree to stop killing and persecuting one another.

  • Louis Armstrong, Duke Ellington and Ralph Bunche's achievements didn't make Jim Crow kosher
    • A High Court of Justice decision, however, ruled that one may interpret from the text that it upheld the principle of equality.

      Not in reality. Article 10 of the Basic Law on Human Dignity and Freedom stipulates: "This Basic Law shall not affect the validity of any law (din) in force prior to the commencement of the Basic Law.

      For example, the Women’s Equal Rights Law of 1951 specifically excluded marriage and divorce laws from its guarantees of "equality for women". It can't be challenged on the basis of the principle of equality. Note: Ben Gurion owed that piece of legislation to the religious parties under the terms of the June 19, 1947 “Status Quo Agreement” between the Jewish Agency and the World Agudat leadership.

      The same "safeguarding clause" locked-in constitutional protections against judicial tampering with any of the existing discriminatory laws on citizenship, abandoned property, immigration, land, & etc.

      Article 8 of the Basic Law permits the Knesset to adopt new discriminatory legislation such as the 2009 Israel Lands Authority Law and the 2010 amendment of the Land Acquisition Law: There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.

      So, "one may interpret from the text that [the Basic Law on Human Dignity and Freedom] upheld the principle of equality", but your lawyer had better remember that Palestinians, members of other religious groups, and women do not fall within the scope of the basic law regarding humans - thanks to the draft constitution "befitting the "democratic and Jewish" values of the State of Israel.

    • Several years ago the Jewish Agency for Israel ran an article about the Ka'adan case in which one of the members of the community admitted that neither Arabs nor Haredim were suitable candidates:

      "They won't fit in. We're different, Arabs and Jews. We have different holidays and different customs. In communities like ours, people should have the same values and customs.

      I don't think that haredim should live here, either. Arabs and Jews should live next to each other, in mutual respect, with equality, but separately."

      I think "next to each other, in mutual respect, with equality, but separately" is a very obtuse or round-about way of saying hatred and loathing. Only a few years ago the Chairman of the Jewish Agency, Sallai Meridor, was furious and slammed the German government for enticing Jews to immigrate to Germany.

      Nowadays even Lieberman's settlement bars Russian-Israeli families from buying homes. So, tribal hatred is dished out on an almost non-discriminatory basis.

    • You are correct. I was having a "senior moment". The forced labor cases were reported in Volume II of the Yearbook of the International Law Commission for 1963. They usually involved non-Jewish civil servants who were held-over until they could be replaced. They were then let go without pay or pensions - usually based upon some minor technicality such as where they originally entered the service. Article 28 of the Mandate and the UN Partition plan both required the successor governments to assume responsibility for the public debts and treaty obligations of the mandatory government. Like everything else, the Jewish leadership's "acceptance" of the partition plan didn't include that part:

      Following the decisions in Shimshon Palestine Portland Cement Factory Ltd. v. Attorney-General (see para. 416 below) and Sifri v. Attorney-General (see para. 310 below), the Court proceeded from the proposition that Israel is not the successor of the Government of Palestine.

      Upon the establishment of the State of Israel, one of the Justices stated, a new personality was created. This retains no signs of identification with the previous political body, which completely disappeared as May 14 1948, drew to its close. When the Mandate came to an end the appellant's right also came to an end. If there is doubt how far a successor State is bound by the contracts and concessions of its predecessor, how much the more is this so as regard a State which is not a successor.

      Even if Israel was the " successor " of Mandated Palestine, another of the Justices said, even then it would not be burdened by obligations acquired in relation to any part of Palestine or its inhabitants who remained outside the boundaries of the State; but now that Israel is not the successor, how much the more is it not encumbered, except to the extent of its own volition, by rights acquired outside the present area of the State. To be precise, that is what was decided in Shimshon v. Attorney-General.

      So according to the parastatal WZO, if you were an Arab, your rights under the mandate were terminated when it ended. However, if you were Jewish, your legal rights and equitable interests in all of Palestine were subsequently preserved by article 80 of the United Nations Charter.

    • Annie,

      A while back we discussed Connex line 322 in Tel Aviv and in connection with Macy Gray's visit to that city. I mentioned that women ride in the back; made a reference to the laws of Kol Isha (e.g. Berachos 24a & Kiddushin 70a) which are cited in order to forbid a woman from singing in public; and noted a news report about a woman who was assaulted on one of the segregated buses in Jerusalem. Women have also been brutally assaulted for wearing sleeveless blouses, cutoffs, or walking shorts on hot summer days, e.g. Girl stoned for 'immodest dress'

      A few years back the same thing nearly happened to Natalie Portman. She was shooting a scene for a film near the Western Wall. The stars and crew were chased away for kissing in public. Ynet reported the Haredim screamed "Immoral! Immoral!" (but the Hebrew versions of the account said it was Whores! Whores! IIRC).

    • The 1947 UN resolution on the partition of Palestine contained a minority protection plan that required Israel to adopt a constitution that would guarantee women and minorities equal rights and protections under the law. Abba Eban lied and claimed Israel had adopted those guarantees during the hearings on Israel's application for membership in the UN. Since that time, whenever the subject comes up the official response has always been not no, but Hell no! (despite 60 years of armed conflict).

      Compare that with Egypt, where Under Secretary of State Bill Burns was dispatched to conduct hasty consultations with authorities regarding the constitutional amendments that are being voted on ... ...this weekend.

    • Are you speaking about the status of non-Jewish citizens of Israel, or of Palestinians on the West Bank and Gaza?

      The crime of apartheid applies to any de facto "policy or practice", not just legislation. Nonetheless, in actual policy and practice Israel uses its legislation to discriminate against all Palestinians regardless of where they live. Refugees are barred from returning. Their lands and their properties have been stolen. The Palestinians in Gaza and the West Bank have been forced into isolated racial enclaves and have been living under an apartheid regime for decades. Palestinians in Israel were kept under martial law and frequently recruited for forced labor. That regime lasted until 1963 and was used to prevent them from returning to their own so-called "abandoned properties". All of the existing laws that discriminated against non-Jews and made them second class citizens in the areas of access to land; family reunification and freedom to choose one's spouse; unequal funding of infrastructure and education; prohibitions against political parties that promote equality for Arabs and the abolition of "the Jewish state" were all grandfathered under the terms of Article 10 of the Basic Law: Human Dignity and Liberty. Any new law that befits the values of a racist regime can be adopted under the terms of Article 8 of the same basic law.

      Hope that clears up your confusion.

  • Israeli flag is dropped off at Colo. legislator's office in the nick of time
    • There is an old (but true) saying: "Israel doesn't want to be the 51st State in the union, because they would have to give up all but two of their Senators."

    • It used to be that Israel denied having committed ethnic cleansing

      The other day, there was an article here about the Forward's "Top Genocide Scholars Battle Over How To Characterize Israel’s Actions". Readers may not have noticed, but even the apologist for the Israeli side admitted ethnic cleansing had taken place and that forced population transfer or deportation is a serious war crime. The scholars only disagree over whether or not that constitutes the crime of genocide when the intent is to destroy a society in whole or in part. The original journal article "The question of genocide in Palestine, 1948: an exchange between Martin Shaw and Omer Bartov" is available as a pdf file from this page

      The argument that the crime of genocide only includes acts that result in the physical destruction of members of the group is simply not unsupportable, since two of the constituent acts of genocide listed in the international convention can be committed without killing any victims at all:

      (d) Imposing measures intended to prevent births within the group;
      (e) Forcibly transferring children of the group to another group.

      A report on international criminal law and the defense of the rights of indigenous peoples has just been issued by the Special Rapporteur appointed by the United Nations Permanent Forum which discusses "cultural genocide" (aka politicide & etc.) consisting of non-violent acts that are included in the definition of the crime of genocide in the international convention. He discusses the fact that the use of the term "ethnic cleansing" has been a tactic to avoid responsibility for genocide:

      The recent tendency to define as “ethnic cleansing” policies that could prove to be genocidal under the definition of “genocide” established in international law has been a way of escaping responsibility, and even of fostering impunity. “Ethnic cleansing” may the ideal term for journalistic and even scientific purposes because of its emotional content, but its ineffectiveness makes it a poor choice in the field of law. The same may be said of “ethnocide” and “cultural genocide” as fully separate terms distinct from “genocide” as defined in criminal law. Use of one or both of these expressions is frequently a way of circumventing the legal effects of use of the word “genocide” even in the face of the evidence.

      The European Court of Human Rights upheld a criminal conviction for the crime of genocide in the case of Jorgic v. Germany based upon destruction of the group as a social unit:

      The court also found that the applicant had acted with intent to commit genocide within the meaning of Article 220a of the Criminal Code. Referring to the views expressed by several legal writers, it stated that the "destruction of a group" within the meaning of Article 220a of the Criminal Code meant destruction of the group as a social unit in its distinctiveness and particularity and its feeling of belonging together; a biological-physical destruction was not necessary. It concluded that the applicant had therefore acted with intent to destroy the group of Muslims in the North of Bosnia, or at least in the Doboj region.

      That has interesting implications on the limits of the sanctions that can be legally employed against a civilian population to accomplish "regime change".

      Those helpful "New Historians" provided footnote citations to the official document numbers in the Israeli State Archives that detailed the ethnic cleansing operations in 1948 and 1967.

      That sort of evidence is every lawyer's dream. So, in the 2004 ICJ Wall Case, Jordan devoted 68 pages to of its Written Statement to "Annex 1 Origins And Early Phases Of Israel's Policy Of Expulsion And Displacement Of Palestinians". They pointed out that, in Israel, it's all a matter of public record:

      It is evident from the public record that from the earliest days of its existence Israel has been driven by an overriding policy to secure for the State of Israel the whole of the former mandated territory of Palestine, and to drive out of that territory the vast bulk of the indigenous Arab population in order to make room for an incoming Jewish population. The consistency of this purpose is apparent from the extracts from the public record set out at Annex 1 to this statement.

      Annex 1 starts on pdf page 163 of 227 in the written statement.

  • 'NYT' commenters rationalize attacks on Rabbi Lerner for backing Goldstone
    • Fascism may have been an integral part of the community decision making process that laid down the racist ground rules. Some religious zealots still use those rules today to govern their relations with Gentiles.

      There's the example of Phinehas the son of Eleazar who took a spear and drove it through the Israelite man, and the Midianite woman.

      Many think that the "Eighteen Matters" that Beit Shammai is said to have decreed despite the objections of Beit Hillel were measures adopted during the revolt against Rome which severed all relations and mandated complete separation between the Jews and Gentiles, e.g. link to bookrags.com

      "The disciples of the school of Shammai stood below, slaughtering the disciples of the school of Hillel. Six of them ascended, while the rest threatened them with swords and spears."

      link to biu.ac.il

      "Five misfortunes befell our forefathers on the 17th of Tammuz," ... ..."The second is also from the Talmud, tractate Shabbat 13b and 17a": A count was conducted, and it was found that the sages of Shammai were more numerous than the sages of Hillel. Eighteen ordinances were enacted on that day... and that day was as difficult for the people of Israel as the day on which the Golden Calf was made.

      link to chabad.org

      So, the "hatred without a cause" that led to the destruction of the Temple can be ascribed to a violent intra-communal conflict. But it may have also resulted from a disagreement over Gentiles and the massacre of those who taught that there ought to be friendly relations with them.

    • It is forward or surrender There is no historical support for the idea of surrender. The motto of Jabotinsky's Jewish Legion was קדימה Kadima (forward).

      The notion that Begin was more willing to kill fellow Jews than the Left-Wing Zionists is completely unhistorical. The Haganah assassinated Jacob Israël de Haan in 1924 for his anti-Zionist political activities and contacts with Arab leaders. The Haganah also blew-up the S.S. Patria with 1,800 Jewish refugees on board and killed about 260 of them and injured more than 170 others. Then they put out propaganda that the passengers had blown themselves up and sank the ship out of despair.

      The Haganah staged terror attacks in the territory designated for the Corpus Separatum after the UN Partition plan was adopted. They bombed movie houses, market places, and the Semiramis Hotel and in many cases blamed their attacks on the Revisionists. Later, during a debate in the Knesset, Ben Gurion was berating Begin and claiming credit for averting the danger to the State of Israel presented by the Altalena Affair and for putting an end to the armed insurrection in Jerusalem. The Haganah Commander, Moshe Sneh, interrupted Ben Gurion and reminded him "You sent me the cable not to harm the IZL!". MK G. Meyer responded by threatening him (ala Anat Kam/Uri Blau) : "Moshe Sneh, don't threaten us with publication!" -- See the Minutes of the 8th Sitting of the First Knesset, 8 March 1949, in Netanel Lorach, "Major Knesset Debates, 1948-1981" Volume 2, JCPA/University Press, 1993, page 445.

      So, the major Zionist parties on both the left and the right did not hesitate to kill or threaten fellow Jews and have suppressed the publication of embarrassing information about themselves. Not that they ever fooled anyone in the Jewish community.

  • Jewish orgs excommunicated 'JVP' for heckling Bibi and refusing to swear by 'Jewish, democratic state'
    • Advocating for the elimination of Israel, for the forced removal of 550,000 if not 6 million, is not dissent pjdude, its something else.

      Witty you and eee are arguing for the maintenance of a status quo that resulted from the forced removal of three quarters of a million Palestinians + the human rights of 550,000 illegal settlers. If you want to do that, then as a bare minimum Israel would have to readmit a corresponding number of Palestinians to their own territory. That is a principle of diplomacy called "reciprocity" not "dissent" or anything else of the kind.

      For years I've been sickened by the extravagant measures Zionists employ to include "anyone but Arabs" or Jews who want Peace in their Jewish Community. One of the most shocking examples was this one "90 Peruvians became the latest Jewish settlers"

      I don't see any reason why it would be "wrong" for Israel to ask this group of South American Indian citizens to live on land that Abraham gave them in Israel, preferably some that isn't stolen. If they insist on staying they should pay property taxes that amortize the costs they represent to the Palestinian state and its own people. A redistribution of wealth is going to happen. Israel is simply trying to postpone its day of reckoning.

    • Jews claim descent from Judah and Benjamin, not from the ancestral tribes of Samaritans.

      The Tanach says the king of Assyria brought people from Babylonia, Cuthah, Avva, Hamath, and Sepharvaim and placed them in the cities of Samaria instead of the children of Israel. The Talmud simply refers to them as "Kutim". But Y-chromosome studies have demonstrated that Samaritans and Jews had a common male ancestor about 80 generations ago. The matriarchs are something of a mystery: "Fourteen of the 16 Samaritan females [studied] carry either of two unique mitochondrial haplotypes not found among any other ethnic groups represented from the five continents." So, they are not closely related to any other identifiable ethnic group and have not married outside the group in an incredibly long time. link to evolutsioon.ut.ee

      Your other conclusion about the line of descent through only Judah and Benjamin is not correct. Our legends claim that some of the ten tribes returned:

      "Since the kings of Israel and the kings of Judah reigned, all Israel did not perform a Passover sacrifice in Jerusalem, because the kingdom had been divided in two since Jeroboam, and they would go to the calf in Bethel and in Dan until now that the ten tribes were exiled, Rashi says: "and Jeremiah brought them back, and Josiah reigned over them, and they all came to Jerusalem.". -- Melachim II (II Kings) - Chapter 23:22 from Rashi's Commentary and the Judaica Press Tanach

      The Talmud says that the remainder of the 10 tribes will not be returning. I hope that helps explain the historical details. I'm at a loss to explain the present day relations between all of the so-called peoples of Israel - so don't ask;-)

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