As the World Court issued its verdict, the Israeli government rapidly mobilized its representatives in Tel Aviv and Washington to present a united front criticizing the judgment and, in the case of the Israelis, stating that the judgment will be ignored. The Israeli government is now counting on the US to veto any resolution providing for sanctions and reparations to correct the atrocities that have already taken place. We have seen a debate ensue in periodicals and on news shows as to whether the Court (formally known as the International Court of Justice) had jurisdiction to hear the case and whether the Israeli government should obey it. The real question that should be asked is how the rhetoric that is being spewed and the obstruction of legality and the “rule of law” that is supposedly recognized internationally is further destroying the institutions of international law.

The answer to the question of whether Israel was in violation of almost all human rights and humanitarian law that exists is an easy affirmative. The “apartheid wall” or “fence” that was constructed clearly violates the Geneva Conventions, UN Charter, Universal Declaration of Human Rights (recognized as established binding customary law), International Covenant of Civil and Political Rights, legal principles articulated in countless ICJ and regional judicial cases, as well as several UN General Assembly and Security Council Resolutions. The Israeli government was in violation of both positive and negative international law obligations regarding the occupation of Palestinian territory. While it is true that the Palestinian Authority and certain terrorist groups have consistently broken international law throughout the hostilities, this does not in any way remove the obligation of the Israeli government to refrain from oppressive acts and the violation of its obligations. This is clearly stated in the Geneva Conventions. Neither historical complaints nor political maneuvering can excuse the parties from their obligations under international law. The fact also remains that Israeli state terrorism has cost many times more lives and more damage than any amount of Palestinian terror, although all terrorist activity is blatantly illegal and immoral. The right to “self defense” does not apply in terms of the Article 51 UN Charter exception and was rightly rejected by the Court. This is not a bias against Israel, rather it is the recognition that “pre-emptive” oppressive measures violate international law and do not fit under the definition of “self defense” as articulated by Daniel Webster and still accepted as the applicable legal standard. The case was a “slam dunk,” to use the parlance of legal practitioners, as soon as the case got beyond the jurisdictional issue. What is difficult to comprehend is how the public and highly intelligent academics could possibly be lulled into believing that there was even a jurisdictional question in the case?

The International Court of Justice began as the World Court after the development of the League of Nations and formerly became the ICJ after the signing and ratification of the UN Charter after the conclusion of hostilities of World War II. The UN Charter clearly states that all parties who are signatories to the Charter willingly submit themselves to the jurisdiction of the ICJ. The UN Charter also recognizes that there are certain parties that will be recognized as representing legitimate states, in this case the Palestinians that will also be able to bring cases before the ICJ. The ICJ is also able to issue advisory opinions to questions formally requested answered by the United Nations General Assembly. In the particular case, all parties to the case are signatories to the UN Charter, and the General Assembly requested the opinion, thus fulfilling the main jurisdictional requirement.

Certain individuals have argued that the ICJ should not have accepted jurisdiction of the case due to its highly politicized nature. While it is true that the case has a highly charged atmosphere, it is the discretion of the ICJ as to whether the justices feel like accepting a case falling in this category, and there is no legal basis for asserting that the Court has no jurisdiction. Those advocating that the ICJ not decide the case had very little historical precedent to lean on for their arguments, and ended up having to make the argument based on highly ideological grounds. As the decision (14-1) indicates, the jurisdictional issue was also a “slam dunk.” One wonders if those making the jurisdictional argument were trying to save face for their support and inaction in the face of the atrocities taking place. To support the contention that the ICJ had every reason to take the case, one need only look back in history at prior ICJ decisions, and at the mandate of the Court in the UN Charter.

The ICJ has historically heard cases that all have certain similarities to the present case, such as the Chad v. Libya land dispute, Namibia v. South Africa occupation and hostilities case, Nicaragua v. US crimes against humanity case, New Zealand v. France Nuclear Tests case, advisory opinion on the use of nuclear weapons (both in general and in humanitarian law), and cases involving criminal activity and the examination of diplomatic laws involving foreign nationals. Furthermore, the UN charter specifically prescribes that the ICJ has the jurisdiction to hear cases stemming from relevant international law. As human rights law, humanitarian law, sustainable development law, and several other legal areas are invoked in this case, the ICJ surely has the ability to both hear and judge on the matter. The justices have all the materials they could need as well as experts available at their disposal so that they can have the most informed views and detailed information regarding a situation before they decide to take a case and while they are deciding on it. Most are renowned legal scholars in their own nations, except for the politically motivated judges of the U.S. and other members of the P5, particularly France and China.

There have been several “experts” and news sources that have mistakenly claimed that the ICJ’s decision is non-binding. This is absolutely false and owes its existence to the failure of the UN and its member nations to fulfill their obligations under international law to help uphold the decisions of the ICJ. The opinions of the ICJ in advisory opinions are no different than the decisions of the Court in standard State v. State cases. The only difference is that the advisory opinions are requested by the General Assembly. One can play semantics and state that all decisions of the ICJ, or any court in the world for that matter, are non-binding unless individuals or governments are willing to abide by them. As with all courts, the ICJ has no enforcement mechanism and relies on the authority of the “rule of law” and morality to compel states and the UN into supporting its judgments and enacting the necessary sanctions and solutions.

One would be wise to note the part of the ICJ decision where the Court calls notice to those nations who are signatory to the Geneva Conventions to their obligations to uphold those conventions not only within their own sovereign borders, but also internationally. This means that by vetoing any UN resolution sanctioning Israel, the U.S. and any other member of the P5 would necessarily also be in violation of international law. Americans should also always remember that when we speak of any law, treaty, or convention that has been signed by the president and ratified by the Congress, we speak of a legal standard that is then the “supreme law of the land” and is part of our own constitutional law. By violating these conventions, the government then violates our own constitutional framework as established by the Founders.

Since, in the illegal Iraq War and occupation we have seen the U.S. and U.K. governments’ utter disdain for international and their own constitutional law, the question becomes the damage that is being done to the international system that is so necessary in this age of globalization where it is pointless to try and argue that anything is “sovereign” anymore and that we can do things that do not have global effects. We have seen in the Nicaragua case and the Nuclear Weapons advisory opinion the paucity of U.S. and P5 commitments to human rights and the “rule of law” outside of their own interpretation of what they want to follow. Indeed, the U.S. is the only nation to have been ruled guilty of crimes against humanity and then to have vetoed the UN Resolution adopted sanctioning it for those acts. This act of utter hypocrisy and its effect on the authority of international law simply cannot be overstated. Likewise is the hypocrisy of the P5 and other nuclear nations in the Nuclear Weapons case.

Ironically, the ICJ opinions that have been heeded have been those involving many states that would be considered “rogues” or “misguided,” for example the Namibia v. South Africa case where the UN General Assembly was compelled to begin sanctions against South Africa for the illegal invasion of Namibia (which would have been far more effective had the U.S. not supported the apartheid government well into the 80’s), the Nauru environmental law case, the Hungary v. Slovakia dam case (the leading sustainable development law case), and the Chad v. Libya case where the Libyan forces (dastardly at the time, according to the U.S.) abandoned occupied areas of Chad without resistance after the issuing of the opinion. There were, and always are, other contributing factors in all these cases, such as the international boycott of South Africa following the Namibia decision, but this does not lessen the authority of the ICJ or international law, this simply acknowledges that nations were actually heeding that authority and working together to uphold the international system we so dearly need in this day and age.

The international system that we know today has taken over 400 years and three major wars to become somewhat of a reality. Differences in ideology have been the only discrepancies along the way, not differences in legal thought or the basis of the rights recognized. One can even argue that the international system and rights articulated date back thousands of years, as Islamic jurisprudence greatly affected Grotius, and there are what could be called international (for that period) rights recognized in most if not all of the major cultures, including Egypt, Hinduism, Buddhism and all the major faiths, as well as Pacific Island cultures.

U.S. and Israeli actions, along with disrespect for international law globally by Russia in Chechnya, China in Tibet, the Zimbabwean and Sudanese governments, and others are continuing to endanger the international system in a manner that threatens to tear down those laws and rights that have been built up over the ages and return us to a “might makes right” reality. As the lone superpower it is up to the U.S. to actually lead by example for a change and support international legality and the “rule of law.” The U.S. is largely responsible for making the UN the failure it is today, not because others have not contributed to the problem, but because as the superpower and the state with the largest impact globally, the failure of U.S. administrations to respect and obey international law tears down the system and establishes the appearance of a double standard that entices other nations to ignore international agreements as well.

It is true that the UN has many problems, chiefly that of being based on a flawed and outdated nation-state sovereignty principle and of being the result of victor’s justice coming out of WWII that often neglects Middle Eastern, African, and Eastern cultures and viewpoints. How can it possibly be seen as a good thing that the U.S. and developed Western nations ignore their own standards? How does this not qualify as, “one standard for the globe that we get to enforce as we see fit, but do not have to follow?” This thinking smacks of the remnants of colonialism, the desire for US global hegemony, the failure that is sovereign self interest, and legal positivist thinking that somehow places the sovereign above the law.

Let us hope that it becomes clear to those who are still confused that the debate over the ICJ decision should not be couched in legality and jurisdiction, as those questions are easily answered. The real question should be how the U.S. and P5 can uphold the “rule of law” and international conventions that are not only part of international law, but of their own constitutional law frameworks as well. Unfortunately, from the paucity of intelligent and informed discourse currently available, this scholar fears that the ignorance and hypocrisy can only continue, which means grave things for an international structure that cost millions of lives to become a viable reality, as well as for the lives of innocents trying to truly live in peace around the globe who will continue to be caught in the crossfire or oppressed due to our failures.

Peter K. Clarke - 10/9/2007

The above outburst from Mr. Catsam makes me wonder if he is trying to apply for a position as a North American rep for propaganda ministries in Jerusalem. Based on remarks in recent months from Capitol Hill and both U.S. presidential campaigns, it is highly doubtful that there are any open jobs left, even if Mr. Catsam had qualifications beyond those of a jerking knee. From someone with as much time on his hands as he, it might be interesting to know the percentage of his hundreds of earlier HNN postings on the Mideast in which he has been "critical of Israel". Well below 10%, I would not doubt.

Instead, however, I would like to try to rescue the conversation from the descent into spurious ad-hominems into which Mr. Catsam has sought to hurl it, with or without heavy dousings of trendy "hmm" and "gee".

Building a wall very similar to the Berlin Wall physically (not of course, in every political respect) is an obvious admission that the peace process assiduously pursued by the Israeli Labor Party in the 1990s failed. It is also a realistic resort, however, and that is why Sharon, belatedly, with only limited support from his Likud coalition, and after years of needless and horrific bloodshed, now pretends to adopt such a policy of unilateral and extreme border control. I say "pretends", because the glaringly obvious problem with the wall is that it is not on the border. Of course, without a final peace arrangement the border is itself tentative, as has been the case in many other parts of the world throughout the past (as any informed international historian should know). But, what appears in every atlas and map I've ever seen printed after 1948 are the 1948 borders, not those of the earlier partition plan, nor those following the 1967 war. The 1948 line or a NEGOTIATED minor variant of it, is the only sensible border worth discussing. Questions of water rights, the “right of return”, compensation, anti-terrorism policies, etc. etc., are all very interesting and important, but do not undo this fundamental geographic, demographic and political reality.

In their sober moments, most Israelis, and probably most educated Palestinians as well, agree with most objective scholars that "land for peace" has always been and remains the only workable solution for Palestine. In 1948 that meant Arabs giving land up to Israelis, today it means the reverse (e.g. the Camp David Sinai pullback, and now much discussed proposed Gaza withdrawal that Sharon has been finally forced to adopt). A wall not on the border but deep into the West Bank negates the idea of "land for peace". It is a foolish and unworkable pretense at pursuing land AND peace. It would only make sense if there were an overall deal such as that proposed last year in Geneva, and ritually denounced by Sharon, in which unlikely event something less Berlin-like might well suffice. Sharon is pretending (to extremists in his coalition) to pursue not unilateral withdrawal but unilateral partial withdrawal and unilateral partial annexation. He is too intelligent to really believe that this will work in the long run. It amounts to a pitiful stalling maneuver, a needless prolongation of the unfortunate relegation of both Israel and a foolishly rubber-stamping America to international banditry, and a road map to many more years of senseless tragedy in the Mideast.

Of course, Arab governments and Arafat's clique are guilty of worse. That does not sanctify uncivilized behavior by the ruling regimes in Jerusalem and Washington. It is the reckless disregard for both international order and the real security needs of both Israelis and Americans, not the horrors of Arabia, which is the fundamental topic here. The latter subject can be found discussed at great length on many hundreds of previous pages at HNN.

Peter K. Clarke - 10/9/2007

After a gazillion sometimes informative comment posts, we are finally reaching the heart of the matter. It is not "international law" per se, which, in the absence of a global executive government, ultimately amounts to a intricate nexus of gentlemen's agreements weakened each time they are flouted -by Israel, the U.S., Saudi Arabia, or any other country. The main issue is hypocrisy. The civilized international community tries -with varying degrees of genuineness and varying degrees of success- to set up fair and consistent rules of behavior. Hypocrites, most notably in this context the Sharon government, the Palestinian "Authority" and most members of both American political parties, but especially (for reasons I will not take the time to discuss here) the Republicans, instead follow a path of arbitrariness, with a continuously shifting rationale, ala Orwell's 1984, designed to cover up their blatant and endemic inconsistency.

A hideous wall used to protect Israel's internationally recognized borders would be a legitimate if regrettable tactic. The actual wall, used to protect stolen land and settlements for fanatical zealots, is a hypocrisy. The rationale, I happen to recall, for Israel occupying the West Bank in the first place in 1967 was that there was no other way for it to protect its security. Now there is: peace treaties have been signed with Egypt and Jordan...and a wall is being built. Once it is finished, the last vestige of justification for the occupying settlements vanishes. No amount of hypocritical double-talk and nonsense about how Palestinians must immediately forfeit statehood the moment there is a single act of terrorism (should America turn itself over to the Queen of England because a few Americans were involved with the IRA ?) can undo the obvious affront to basic norms of fairness and justice inherent in a government wall protecting a land grab from other peoples. It is the outrageous hypocrisy of a country which will pursue 80 year old minor Nazi functionaries to the ends of the earth and prosecute them with every known legal instrument in the galaxy for crimes committed 60 years ago, but whose leaders cannot seem to understand that "an eye for an eye" is no longer a civilized policy in international relations that results in 160-3 votes year after year, not some mythical universal anti-Israel bias. (My imprecise average vote tally ignores microscopic Pacific Islands which are not likely to survive global warming).

Peter K. Clarke - 10/9/2007

Selfcenteredness is not hypocrisy. Hypocrisy is using international laws to the nth degree when it suits your purposes while simultaneously flagrantly violating international laws when they don't suit you. Of course, most countries are hypocritical to one degree or another, but partisans of Israel are extreme in their denial of the extent to which the Sharon government has taken hypocrisy to levels unprecedented in Israel's history.

Peter K. Clarke - 10/9/2007

Mr. Vinson, I think if you check your history, you'll discover that Germany never tried to forcibly regain Silesia from Poland after 1945, and officially signed treaties recognizing that border after 1989. Nor can I ever recall Polish troops making sweeps through the Rhineland or Bavaria bulldozing trees and crushing American protesters to death. If the Sharon regime were to come its senses and pursue the Geneva plan, it might have at least a faint chance of keeping some of the West Bank and the settlements there as part of a comprehensive deal. Then your Polish-German analogy might attain a modicum of relevance.

As for your other parallels, I would not go as far as you do in classifying Israel with Saddam's Iraq or China, but under Sharon it has certainly moved further away from the civilized West and closer towards such despotic states.

Peter K. Clarke - 10/9/2007

I have not got time for all of your umpteen weird counterfactuals, and therefore address just one factual:

"We should have put greater pressure on Iraq and China than we’ve put on Israel. Right?"

Right indeed. We did not keep Israel out of the UN for 30+ years (like China), and Paul Wolfowitz has articulated no plan for an American invasion to affect regime change in Jerusalem in order to rid Israel of its weapons of mass destruction (ala Iraq).

There is old maxim, not quite as old as "an eye for an eye", but accepted by civilized people for quite some time: Two wrongs do not make a right. For example, the fact that Israelis used terrorism in 1947-48 to achieve statehood is not a moral justification for Hamas and Al Aqsa to use similar tactics today. I think most Israelis at some level probably understand this moral principle and would like to apply it consistently. Their current government clearly does not, and it is rightfully being called to account by the civilized world. That, and not past wrongs in Silesia or anywhere else, is the subject of this particular page of HNN.

Peter K. Clarke - 10/9/2007

It seems to me that the original topic has been somewhat buried under the many interesting and oft-heated tangents amongst the various comments. The main question raised by Mr. Pettit's original essay is whether the state of Israel, and its sponsor, the USA, might be ready and willing to become full members of the international community of civilized nation-states. The positions of George W. Bush and even more so that of Ariel Sharon, are clearly negative on that issue (as are, incidentally, the stances of Yasir Arafat and the heads of the Arab states which still support his grip on power, regarding their own willingness to adhere to civilized norms).

The interesting longer term historical question here is when the Israeli electorate and the kneejerk American supporters of Israel-right-or-wrong will wake up to their own inconsistencies. How much more Near Eastern tit-for-tat slaughter and mayhem will it take ? The analogous question for the Palestinians (sometimes considered the Jews of the Arab world) is much less interesting because they have rarely displayed consistency regarding civilized behavior. The Israelis did once, however, before common sense was thrown to the winds following the debacles of Ehud Barak and Arafat's subsequent neo-lunacy. And America before G.W. Bush and Cheney was a pillar of civilization.

I agree with Mr. Shcherban, by the way, re the wall. Built on the internationally recognized 1948 frontier, it would be a spectacle but not a catastrophe. Where it is being built now, it is a stupidity and an untenable insult. Even the East Germans did not try to erect their Berlin wall to zig zag THROUGH (rather than along the borders of) the American and British sectors.

Arnold Shcherban - 8/3/2004

Moshe,

For the sake of joke, and at the same time to eliminate your possible doubts about the issue:
I'm ready to bet with anyone $10000 on the following:

Israel will not be required to destroy its enormous (for such a small country) reserve of WMD in any forseeable future.

Do you expect some takers?

E. Simon - 7/26/2004

Chris, Javier Solana agrees with you; he also thinks might makes right.

"The European Union is a very important international *power* and is going to play a role here, *whether you like it or not,*" European Union foreign policy chief Javier Solana said Friday.

Jul. 21, 2004 23:49 Emphasis added.

Arnold Shcherban - 7/26/2004

<So . . . the key fact determining whether you can use violence is having most people agree with you. If the international community says you control a territory, you control it. If they say you don't, you don't.

That's your criteria?>

Yes, that's my criterion, which is called 'democracy' -
this time in international affairs.
Do you (I mean, of course, mankind) know the other, better way to peacefully resolve the territorial conflicts?
How else all laws and regulations are currently instituted in a democratic national and international society, if not through the agreement of the majority?
If you meant that not of them are fair, of course they aren't; it's a real world, not the ideal one.
A couple of words about that fairness issue, concerning
the establishment of countries' borders.
You take any country in the world - you find no or very
little historical legitimacy for any of its territorial possesions, and vice versa - you find miriad of cases
when one or the other country has historical legitimacy (according to the "experts" of that latter country)
for the territory of the first.
Does, eg. USA has a legitimate right for its today's territory, acquired mostly through use of force and consequent peace agreements? The hell it does!
So, following your logical pattern we have to remap the entire world 48 times just to create hundreds of new
territorial conflicts!

<The international community slicing up Africa like a Birthday cake?>

First of all, you (deliberately or not) confuse two scenarios: acquiring/loosing a land through the peace-making deal, i.e. termination of violence and the same result obtained through the use of violence.
Although, the above-mentioned fairness stipulation is quite applicable to any of the scenarios, it's been a general international practice recently, at least, to support the first and maintain it until being renegotiated, while trying to condemn and revert the last (with many big-time exceptions, not consistently so, etc.).

Let me pose a question to you:

So,... the key fact determining whether a country can use violence against the other country is only the first country's own opinion/interests, even if they go against the agreements signed by the first one and respective decisions of international community?
Your positive answer will indentify you as the 'agressor', according to the UN definition.

<Well, seeing as Arafat funds it, does that mean you agree with Israel's actions?>

I've never (and I'm sure either you) seen or heard any serious evidence (except flimsy ones, similar to the ones "presented" by the Western propaganda in relation to the "Soviets organized the assasination attempt on Pope's life") that Arafat signed or verbally ordered to pay a suicide bomber(s) for their future terrorist acts.
Otherwise, he would not be around today, if you know what I mean...
However, I never had any doubt that Arafat has been endorcing and funding some armed groups that he considered to be freedom fighters, the ones that Israel's
and the US goverment are labeled as terrorists.
I also have little doubt that all or some of those
groups do/did ocassionally commit the acts of terrorism,
i.e. kill(ed) unarmed Israeli civilains, but at the same time know (from the statistical reports) they killed those much less than Israelis killed unarmed Palestinians. Therefore, we have to condemn Palestinian
individual and exteremist's group terrorism, but not at the price of ignoring Israeli state terrorism.

<I've missed the part where I say I support Israel killing civilians. Please point it out to me.>

You defensive remark shows you didn't even get the
essense of my question and its hypothetical nature.
Read it again.

I can repeat the same about your Alaska's response.
Germany parted with Silesia on its own accord too, i.e.
it has signed under the deal, though did it, obviously,
against its will, under the pressure of the adversarial
circumstances. But, what if Russia sold Alaska also
under the pressure of adversarial circumstances?
Don't mind that the US did not threaten Russia by
the use of force, or something like that. You say that
at some observers' estimate it was a lucrative deal for Russia. Living in Russia, I, however, heard polar opposite evaluation: according to them they sold Alaska for peanuts under the economical pressures of the time and the US cunning negotiating tactics.
Don't you see: we have a potential conflict on our hands already!
Being a careful political observer you should have known
that nothing is 'very basic' in REAL national and international politics. This is a 'very naive' argument
of yours.

Marc "Adam Moshe" Bacharach - 7/26/2004

Arnold,
First of all, let me express my appreciation for the intelligence and thoughtfulness of your post.

1) "However, does the imperfections in the actual applicationof a law should prevent us to apply it to anyone, i.e. nullifying its existence and enforcement?"

Of course, it depends on the situation. Usually, my answer would be no, the law should not be nullified. However, in this situation, international law is not being used merely unequally, it is being used almost exclusively against one nation. Like the many laws in the Jim Crow South that were applied only to blacks, international law simply does not have the moral credibility to act in this dispute, even if I may disagree with the Israeli policy in question 100%.

Thus, if the option is either to nullify a law, or see it used simply as a gun with which to fire on one nation again and again and again, I should not hesitate to choose the former (often which the greatest criminals pulling the trigger). Would we allow a system in which the law was used to prevent the Democratic party from ever gaining a majority in Congress, while the Republicans were violating it all the time? Who would defend such a system on the grounds that in theory, it applied to all?

The law need not be perfect, and it need not be universally applied. However, it does need to have enough consistency as to be morally credible to those who follow them (either that, or some coercive authority to force it on people). The UN laws have neither.

2) "How about Israel who at the mutual estimate of many experts possesses around 100 nuclear bombs and shells, as well as other types of WMD and continuies to work on WMD programs, never sharing pertaining information with the world? We never heard any demand to Israel coming from the UN in this regard, did we?"

Very true, thankfully (at least not yet), although I would not at all be surprised if Israel was required to destroy its WMD, even while the US, China, Pakistan, India, Britain, and France are all somehow exempt from this requirement, even though the threats to its very existence is by no means as severe. I must also conclude that based on historical events from the UN, if the Palestinians were to develop WMD, the universal law would only require Israeli disarmament.

3) "And where is the UN bias against Israel on this extremely important issue?"

I certainly do not mean to suggest that the UN is bias against Israel in every case (child labor treaties, economic protectionist treaties, trade policy, and so forth and so on). Merely that an overview of international law over the past several decades demonstrated one small country receiving more resolutions, hearings, and condemnations of any other country on earth.

4) "And shoudln't those Arab states who have been made to disclose their WMD secrets (by force, threat of force, or the UN demands) claim the international community bias against them, at the least, on this particular issue?"

Indeed fact, they should. This is why our rationale for such requirements should be our own self-defense, not some vein attempt to attach to our requirements the guise of international law.

You are right, we will have to agree to disagree on this issue, however again I thank you for presenting a thoughtful analysis of the situation without descending into passionate rhetoric or sheer frustration, as is too often the case on some of these posts (and I honestly mean no one in particular).

Marc "Adam Moshe" Bacharach - 7/26/2004

We must agree to disagree, as I find your statement of definition most clearly applied to the Palestinians. I, for one, do not recall Israel ever "using" international laws as they are unable to do so. They only bring it up at all to demonstrate the unfairness with which it is applied.

Furthermore, although the Sharon government is an easy target because it is conservative, no Israeli government has ever or will ever be enough to satisfy the conditions of those bent on the country's destruction.

E. Simon - 7/26/2004

Chris, can Israel vote in a new slate of GA member representatives if its electorate starts dying in greater numbers as a result of implementing the dangerous ICJ ruling? Sounds like the democratic solution to me... that is, assuming accountability figures into your definition of democracy.

So far, you're convincing me that it isn't.

E. Simon - 7/26/2004

Chris,

Israel never democratically decided to pass off responsibility for its own security to the U.N. The other member states decided that one.

Stephen Vinson - 7/25/2004

>Until Israel recognizes the crime that it committed against the Palestinian people from 1948 forward<

Crime in 1948? Please elaborate.

Stephen Vinson - 7/25/2004

>No, Silesia is not a stolen land.
Any land that historically has been taken from one
country and given to another under the agreement endorced
by the majority of the international community can be taken back ONLY thorough peaceful negotiations of the interested parties.<

So . . . the key fact determining whether you can use violence is having most people agree with you. If the international community says you control a territory, you control it. If they say you don't, you don't.

That's your criteria?


Arnold, does the Congress of Berlin ring a bell?

The international community slicing up Africa like a Birthday cake?

Let me get this straight - you, Arnold Shcherban, approve of the Congress of Berlin. The international community was justified in dividing up Africa and should not have been opposed by anything other than nonviolent means?

Is that right?




>However, terrorism is not an excuse for the state
to protect itself by resorting to such unlawful measures as invasion, bombing civilian targets and etc., unless
it is proven beyond the reasonable doubt that the goverment of the country terrorists came from had endorsed terrorist act(s).<

Well, seeing as Arafat funds it, does that mean you agree with Israel's actions?

>Would you be so easily-hearted to support India's ocassional "incursions" onto Pakistan's territory, destroying thousands of the Pakistani's houses, its infrastructure, and intentionally or unintentionally killing thousands of its civilains, plus appropriating part of Pakistani land based on a well-established
fact of Pakistani's goverment support of Kashmirian
terrorists that so far killed more Indians than the number of Israelis killed by Palestinian suicide bombers?<

I've missed the part where I say I support Israel killing civilians. Please point it out to me.

>Otherwise, Russia would have the legitimate right to attack the US to get Alaska back, not mentioning dozens of other much more serious and real land disputes around the globe, that being decided by force would undoubtedly lead to dozens of local wars, that easily can become a global war(not that it can't and didn't happen without that...).<

Russia sold Alaska to the U.S. They parted with it of their own accord. At the time, observes generally suggested we paid far more to them for it than it was worth. There was never a land dispute over it. This is very basic.

Arnold Shcherban - 7/25/2004

Replying to your questions, Stephen:

No, Silesia is not a stolen land.
Any land that historically has been taken from one
country and given to another under the agreement endorced
by the majority of the international community can be taken back ONLY thorough peaceful negotiations of the interested parties. Any attempts to take it back by force are illegal, historically unjustified and, therefore, must be condemned.
Otherwise, Russia would have the legitimate right to attack the US to get Alaska back, not mentioning dozens of other much more serious and real land disputes around the globe, that being decided by force would undoubtedly lead to dozens of local wars, that easily can become a global war(not that it can't and didn't happen without that...).

The Arab's lands that Israel appropriated in the result
of 1967 war victory are the STOLEN LANDS, since the international community(including the US) has never accepted them as the Israel's lands and they never have been negotiated to become Israel's possesssion through any peaceful agreement with the respective Arab states. If this is a factual and legal difference that can be easily neglected from your point of view, then there is no logical, or factual, or legal basis to continue this polemics. If however, you recognize the importance and
legal bearance of the difference, then all the consequent
question you posed using Silesia, are irrelevant, since
the analogy chosen is BAD by itself.

I have all of us have to agree here beforehand that we
all CONDEMN terrorism, as it is defined in a dictionary, i.e. use of violence or intimidation in political or ideological purposes or in narrower definition - intentional killing of unarmed civilians.

However, terrorism is not an excuse for the state
to protect itself by resorting to such unlawful measures as invasion, bombing civilian targets and etc., unless
it is proven beyond the reasonable doubt that the goverment of the country terrorists came from had endorsed terrorist act(s).

Would you be so easily-hearted to support India's ocassional "incursions" onto Pakistan's territory, destroying thousands of the Pakistani's houses, its infrastructure, and intentionally or unintentionally killing thousands of its civilains, plus appropriating part of Pakistani land based on a well-established
fact of Pakistani's goverment support of Kashmirian
terrorists that so far killed more Indians than the number of Israelis killed by Palestinian suicide bombers?
I bet - you would not.
I can summon a couple of more examples from the international terrorism saga to extract your "no" in
the sense just mentioned.

So, why the "right" answer is always and overwhelmingly "yes" in Israeli case?

The answer is very simple, indeed, but the one that the
US has never admitted and will never admit, despite
its definite applicability and unmatched explanatory power: Israel is the US closest and most loyal ally
in the one of the most(economically and geo-politically) important regions of the world - oiled Mid-East.
All purported on this board pro-Israel-no-matter-what explanations and arguments stem directly or indirectly from that one evaluation(whether its right or wrong it is a different matter) of the Israel's position in the world, unless - from the the pure religious and Sionist views.
The rest is just usual political cosmetics.

Stephen Vinson - 7/25/2004

>I have not got time for all of your umpteen weird counterfactuals,<

No problem. Just pick this one.

“If Germans suicide bomb Poles for the return of Silesia . . .”

Yes or no.

It's one question. It's a very simple question. It's a one word answer.

And you're dodging it.


>We did not keep Israel out of the UN for 30+ years (like China), and Paul Wolfowitz has articulated no plan for an American invasion to affect regime change in Jerusalem in order to rid Israel of its weapons of mass destruction (ala Iraq).<

Wolfowitz, weapons of mass destruction, and keeping countries out of the UN are fun.

Now refresh my memory what all this has to do with Tibet and the Kurds.

Are we declaring Kurdistan an independent state? Was Tibet becoming a sovereign nation a sine qua non of China getting back in the U.N.? I missed this

>For example, the fact that Israelis used terrorism in 1947-48 to achieve statehood is not a moral justification for Hamas and Al Aqsa to use similar tactics today.<

Here, I'll start this off:

Were any Israelis justified in targeting a civilian in 1948?

No


See, now was that so hard?

Stephen Vinson - 7/25/2004

>I have not got time for all of your umpteen weird counterfactuals,<

No problem. Just pick this one.

“If Germans suicide bomb Poles for the return of Silesia . . .”

Yes or no.

It's one question. It's a very simple question. It's a one word answer.

And you're dodging it.


>We did not keep Israel out of the UN for 30+ years (like China), and Paul Wolfowitz has articulated no plan for an American invasion to affect regime change in Jerusalem in order to rid Israel of its weapons of mass destruction (ala Iraq).<

Wolfowitz, weapons of mass destruction, and keeping countries out of the UN are fun.

Now refresh my memory what all this has to do with Tibet and the Kurds.

Are we declaring Kurdistan an independent state? Was Tibet becoming a sovereign nation a sine qua non of China getting back in the U.N.? I missed this

>For example, the fact that Israelis used terrorism in 1947-48 to achieve statehood is not a moral justification for Hamas and Al Aqsa to use similar tactics today.<

Here, I'll start this off:

Were any Israelis justified in targeting a civilian in 1948?

No


See, now was that so hard?

Stephen Vinson - 7/25/2004

That's three

. . . and if doesn't do much to change the fact:


Israelis don't kill people and withhold oil when you disagree with them.

Their adversaries aren't as amenable to debate.

Stephen Vinson - 7/25/2004

Wow

In any other topic, at any other debate, I would have expected the question:

“Should Germans suicide bomb Poles for the return of Silesia?”

to elicit a short, simple “no.”

Well . . . I would have expected it to at least solicit a “no” . . . somewhere

>I think if you check your history, you'll discover that Germany never tried to forcibly regain Silesia from Poland after 1945, and officially signed treaties recognizing that border after 1989.<

Hence the “if.”

>Nor can I ever recall Polish troops making sweeps through the Rhineland or Bavaria bulldozing trees and crushing American protesters to death.<

Though, as you can imagine, I would have been hard pressed to feel much sympathy for the protester under the circumstances.

BTW, I do suggest checking up on the history of the region. I can recall a lot more than you here - and if the Israelis had done something to the Palestinians along the lines of what Russians and Poles did to the Germans in Silesia at the end of World War II, I don’t think it would take much to jog your memory.

>If the Sharon regime were to come its senses and pursue the Geneva plan, it might have at least a faint chance of keeping some of the West Bank and the settlements there as part of a comprehensive deal. Then your Polish-German analogy might attain a modicum of relevance.<

Exactly what part of my analogy supposed any respect for international law?

Better question: exactly what part of the PLO’s track record supposes any respect for international law? [Is it their actions in Jordan or Lebanon?]

Is the idea of whether Germans should suicide bomb Poles really contingent on one of these factors?

Do the Poles get to keep their settlements too or do they need to wake up and come to the bargaining table if they want Sagan?

>I would not go as far as you do in classifying Israel with Saddam's Iraq or China,<

. . . which makes it all the more odd that the international community should show greater deference to the PLO than the Kurds or Tibet.

So, Iraq and China have been worse than Israel, . . .

Thus, we should have put greater pressure on Iraq and China than we’ve put on Israel. Right?

We were negligent in merely focusing weapons and embargoes. We should have gone all out. We should have declared to Hussein that Kurdistan is a sovereign country . . . Right?



Of course there’s a much simpler question -one that's pretty black and white - really easy to answer

“If Germans suicide bomb Poles for the return of Silesia . . .”

Arnold Shcherban - 7/24/2004

Hi, Adam

The essence and pathos of your arguments is quite familiar to me, and I second them 100%. In the IDEAL,
PERFECT world a law must be applied equally to all people or nations - yes, yes and yes again.

But as people and nations live in REAL world in constantly changing conditions and circumstances(in any aspect of those), we cannot help recognizing the miriads
of real differences and difficulties often preventing
us from the strict adherence to the desired equality
principle.
I allow myself (asking the apology, in advance) to use pretty elementary and routine tirade, as the explanation tool.
You know, as well, as anyone on this board, that no law, ever, in any country has been applied equally to all
people on all occassions. One can forward dozens of different hypotheses or theories why, but the FACT persists: it has not. (And it looks like never will).
Another words - people are NOT PERFECT. Neither are
any of the laws and institutions created by them.
However, does the imperfections in the actual application
of a law should prevent us to apply it to anyone, i.e.
nullifying its existence and enforcement?
If that were the conclusion, society would end up in
chaos and anarchy; no law whatsoever would make any practical sense. I think this is crystally clear.

Now, do we have to strive for perfection? Most of us will, probably, agree that we do.

Thus, it is no doubt (and factual evidence is abound) ICJ and UN did let many nations and individuals (Arab countries and leaders, inclusive) get away not only with a minor violations of international principles, laws and agreements, but - with major crimes against their own people and other nations.
So, if you say those institutions have to stop letting
the violators get away, who will disagree?
The UN institutions have actually TRIED to aplly the equality pinciple to some international problems and conflicts from the very start of its formation, only
to be stopped short by the Cold War adversaries or,
by the absence of political and financial will on the part of its contributors.

Now, forget for a minute about "the wall" issue.
Let's say the UN start doing that. As we all know, one of the major (many say - the most urgent) problems facing international security nowadays is the WMD profiliation. Since (or provided) we all acknowledge
the problem, we have to act on it, don't we? Moreover,
in the view of the subject of our discussion (equality
of the approach to any nation) we MUST demand ALL states suspected of possessing or developing WMD and their means of delivery, those who has not made that info accessible to the international community, do so, must we not?
And international community, mostly under the US
pressure, did so towards Iraq (even at the tragical cost
of the wide-scale invasion, regime change, and occupation), North Korea, Iran, Pakistan. But, wait a minute! How about Israel who at the mutual estimate of many experts possesses around 100 nuclear bombs and shells, as well as other types of WMD and continuies to work on WMD programs, never sharing pertaining information with the world? We never heard any demand to Israel coming from the UN in this regard, did we?
Moreover, as any Arab or any other nation, merely touches that undoubtedly sensitive and important for THEIR security issue, even more or less serious DISCUSSION of it has been immediately denied, not speaking about any resolutions on the issue.
So, where is the EQUALITY we so adamantly strive for in
resolving such a serious problem as the WMD proliferation? And where is the UN bias against Israel
on this extremely important issue?
And shoudln't those Arab states who have been made to disclose their WMD secrets (by force, threat of force,
or the UN demands) claim the international community bias against them, at the least, on this particular issue?
Don't you see that you fell into the dangerous and anti-productive ideological pattern a-la-Cold-War, according
to which THEY threatened US, but we merely defended ourselves, so they didn't have any legitimate rights
to match or exceed our defensive capabilities, therefore
deciding on the issue, by the very premise of your reasoning?
I think it it goes without saying now that the conclusion of ICJ about the wall that goes through
the Palestinian territory (and to me the latter is the
main and only argument against the wall, otherwise, as I mentioned already, I'm for it) is the legal and correct one, regardless of the existence, or non-existence of the alleged anti-Israeli bias.

You and me agreed on many points previously, but here
we apparently agreed to disagree.

Steve Brody - 7/24/2004

“150-6 GA resolution supporting the ICJ opinion and have Israel tear down the wall to claim that this universally supported resolution is biased is ridiculous. When the score is 150-6,…” chris petit, 7/21/04

Translation: There is no bias in the passage of the resolution because it passed overwhelmingly.


“even if bias exists in a few nations, take them out and it is still at least 100-6.”… chris petit, 7/21/04

Translation: even though no bias could possibly exist (because it passed so overwhelmingly), just select some arbitrary number, like 50, to subtract from the “yes” votes and then you’ve certainly eliminated any bias (even though bias could not possibly exist, because it passed so overwhelmingly).


“It just belies common sense to wonder why some would [suspect bias] (and I am sure will try to) do so…chris pettit 7/21/04

Translation: Israel must be wrong. Everyone says so.

Chris, stop worrying about other people’s logic. Try to understand your own.

Marc "Adam Moshe" Bacharach - 7/24/2004

1) "A hideous wall used to protect Israel's internationally recognized borders would be a legitimate if regrettable tactic. The actual wall, used to protect stolen land and settlements for fanatical zealots, is a hypocrisy."

First, Israel's borders are not recognized by its neighbors, and thus provide no defense. Second, if Israel moves the wall to its 1967 borders, it will have successfully make political concessions without any guarantee of peace and at the cost of greater security.

Furthermore, you claim another border would have been legitimate. To whom? Not to Hamas, who claims the entire land as their own.

2) "The rationale, I happen to recall, for Israel occupying the West Bank in the first place in 1967 was that there was no other way for it to protect its security. Now there is: peace treaties have been signed with Egypt and Jordan...and a wall is being built. Once it is finished, the last vestige of justification for the occupying settlements vanishes."

I agree, and sincerely hope that upon completion of the barrier, all settlements beyond it are immediately dismantled.

3) "It is the outrageous hypocrisy of a country which will pursue 80 year old minor Nazi functionaries to the ends of the earth and prosecute them with every known legal instrument in the galaxy for crimes committed 60 years ago, but whose leaders cannot seem to understand that "an eye for an eye" is no longer a civilized policy in international relations that results in 160-3 votes year after year, not some mythical universal anti-Israel bias."

Why is that at all hypocritical for a country to pursue those who have massacred their people, and who also wish to defend themselves against others who would massacre its people? I find both acts entirely consistent.

Marc "Adam Moshe" Bacharach - 7/24/2004

1) "You want to argue that the law is USED against Israel...i cannot contest that...but it applies as the wall is in violation of international law. I would support the use of international law against any illegality...and do every day in my work.

As I have said before, this is commendable of you but you will never really get the chance as the Palestinians have never (and likely will never) be the target of international law, no matter what they say and do.

2) "So the law was definitely not established to be aimed at Israel or persecute Israel...that claim is absurd."

I do not believe such a claim is absurd at all. Simply because the law was not designed to be abused, it is incapable of becoming so? I do not subscribe to this thought at all.

3) "hence the reason I can say that Adam...i would gladly go into how the wall and power politics decry Jewish or Christian morals and values if you like"

Indeed, since the legal arguments fail to convince me, I would indeed like.

4) "If you choose the law...there is not a defense of US or Israeli action...if you choose power, there is no room for legal, ethical or moral claims."

Indeed, if you choose the law, many would argue that there is no defense of Israeli existence at all, and Palestinian terrorism should be either ignored or rewarded. Thus I choose the other option, whatever it may be. I would argue that there is more than enough room for ethical and moral claims under the "power" argument.

5) "By the way I eagerly await those answers to supposedly prove bias..."

To me own satisfaction, I believe I have. What I am unable to do is answer precisely why such a bias exists, a charge that you made earlier. As for the proof of bias, my reasons remain posted above.

Marc "Adam Moshe" Bacharach - 7/24/2004

1) You ask who is stronger: "the first and fourth largest militaries in the world who have been perpetrating state terrorism, or a collection of terrorist organisations who don't represent an entire people?"

The answer depends on how you mean by "strong." The US is the strongest country on the planet in military terms, and yet it did not prevent a large attack on its cities, nor can it bring the perpetrators to justice. It could not get any UN vote for its war, nor even the other great powers to come aboard, and those countries whose support it did get, it had to pay for in bribes. Israel has a powerful military but it compel the UN to stop using it as a scapegoat for all of the world problems. I say again then, the answer to who is stronger depends on how you mean. In certain ways, both the US and Israel are very very weak.

2) "In addition, what about the institutional abuse and oppression of the innocents in Palestine (punishment of the innocents...also illegal under international law) and those in Israel (can be handled under international criminal law)."

If you could provide some examples, I would be happy to address them. I personally believe that some Israeli policies in the occupied territories are reprehensible, unjustified, and morally repugnant, and I would be happy to share in your denunciation of them. Other policies I find inflict terrible inconveniences on innocent people, but are justified under certain conditions.

3) "And the strong are breaking and making the rules...the US and Israel. The weak are the ones trying to uphold the international law that applies to everyone."

I must include the critical caveat, that the weak are trying to uphold international law only when it helps them, and they ignore it when they wish. The Palestinians are but one excellent example.

4) "But please don't give me "institutionalisation" as a cop out. Give me the best case you can make...maybe I will agree. I did my best with your fantastic points above and really appreciate the scholarship that you are offering for my benefit. let's keep the conversation going without resorting to such statements as "it has been institutionalised."

If you wish, I will no longer make that argument to you if it upsets you or you simply dismiss it. However (and you may disregard the following claim), there are many examples of bias that have simply become dogma, such as the treatment of Cuba by Congress, even those who do not represent any Cuban constituents. Also, the relatively negative view many Americans have of the French, even before the Iraq war. There are certain people, or countries, to whom which the world has become very comfortable forming their narrow ideology around. You may dismiss the point, or call it a cop out, or whatever you like. I am not here to convince you or anyone else of anything; Merely to express my thoughts on this issue.

5) "Are you telling me that if the US insisted on upholding international law and the decisions of the ICJ in relation to itself and others, the rest of the world would not have to fall inline knowing that there is no legal foothold or hypocrisy to fall back upon?"

I have little doubt we have that power of legitimacy, but why would we choose to exercise it? So long as international law is simply a political tool and rhetorical device unfairly and inconsistently applied, why would I support the US endorsing it? Iraq is a case in point: Many people were strongly against a war, but were also strongly against economic sanctions against the country. American endorsement of these things did nothing to get the world aboard.

Arnold Shcherban - 7/24/2004

I've got one word for Stephen:

Ha, Ha, Ha, ...!

Stephen Vinson - 7/24/2004

>No one of the apologets of bias against Israel at the UN,
never explained why the overwhelming majority of non-Arab
countries in the world, on many occasions - the 14 members of the Security Council out of 15 (except USA)
have been voting against Israel.<

Israelis don't kill people and withhold oil when you disagree with them.

Their adversaries aren't as amenable to debate.

Stephen Vinson - 7/24/2004

Question:

Is Silesia stolen land?

If the Germans started suicide-bombing Poles to get it back, would you support them?

If Poland put up a wall on the current German border, would you castigate them?

Would you say the only legitimate wall the Poles should put up bealong the earlier borders?

Should we not wait for the suicide bombing and just return Silesia to Germany right now?

If you’d like to - replace the parties with Kurds/Iraq, Tibetans/China. We could go really far back and use Louisiana Cajuns thrown out of Nova Scotia/Canada. We could use Puerto Ricans/U.S., but they keep voting to stay. However, unlike the Palestinian government, these groups aren’t blowing up civilians. Among these groups, I don’t give Palestinians priority.

chris l pettit - 7/24/2004

What is happening with the GA is that states are voting to actually uphold binding international law as was articulated by the ICJ in a 14-1 decision. As I have illustrated...and no one has actually taken up the challenge...there can be absolutely no bias shown within the ICJ, other than the bias of the pro-Israeli US judge. So where is your argument? The ICJ did not decide the case "simply because everyone thinks so." They decided it on the legal merits. Why don't you read the opinion? The GA vote is simply to uphold the opinion and international law.

The argument you pose was not made. When I am in court, I argue the legal matter...that is the point you seem to miss in all of this.

So if you can answer the challenge, go right ahead. if not, I would advise refraining from making yourself look foolish with such inane comments.

By the way...I guess democracy only is allowed when it suits the US and Israeli positions, eh? Especially since the vote that is being illustrated is a democratic vote of the nation states of the UN...

Hypocrisy, mr. brody...maybe you should try a little harder next time...

CP
www.wicper.org

mark safranski - 7/23/2004

Well....we can reach agreement on the point that we cannot even agree on the most basic premises on which to conduct a discussion. Or even what constitutes the meaning of the word " violation " so further argument is probably moot. We are just talking past one another.

Arnold Shcherban - 7/23/2004

Mark,

You are right: some of my reasoning was written in
a convenient for my arguments style.
But, generally, it's not at all one of the characteristics of my style.
I intentionally simplified and shortened the
reasoning approach, just because I mistakenly (as it's become clear to me now) assumed that both of us had acknowledged the fact that since the Gulf War I coalition
was multi-national (34 countries involved), i.e. international one, by definition, the international laws
and principles were automatically applicable to it.
And although specific announcement in this regard on the part of the participants is legally redundant, the major contributing to coalition countries - US and UK - repeatedly stated their adherence to the international laws and agreements at the time.
For example, if they commited war crimes, they legally
would be the subjects of the International Court prosecution for those crimes whether they previously declared their adherence to the war crimes laws or not.
Since, the cease-fire agreement was a part of the War
developments (I hope you won't object to the latter Axiom) there was/is no plausible legal or logical excuse to exlude that agreement from the domain of the respective international laws and principles.
Therefore, if "bilateral agreement" in your response
meant the agreement between the US and the Iraq, then
it wasn't factually, but if you recognized that it factually was the agreement between international community and Iraq, then the members of the coalition had to comply with the corresponding laws, principles, and other agreements.
Moreover, as soon as the US(and the UK) voted for
the other UN resolutions that have overwritten some part(s) of the previous cease-fire arrangements, that/those part(s) legally(according to the respective international law) ceased to exist and the voting parties automatically forfeited their rights to execute the violations of that/those part(s) in the manner it
was previously designed, as opposed to the new, voted
for, UN resolutions' provisions.
And this country did vote for the UN resolutions, like the mentioned ones, after the cease-fire agreements and therefore, should have followed the actions authorized by the UN in regard to the renewal of the active hostilities.
Indeed, as long, as this country had followed the internationally accepted legal actions against Iraq,
the temporary renewal of active hostilities included, (which I pointed out in my last response, unfortunately having received no acknowledgement of the fact from you)
the international community legally had no say in the matter, and actually did not make any anti-American
statements in reaction to the steps taken.

Thus, whatever requirements one considers - political or/and legal - you case, Mark, doesn't have even pre-requisites for being taken seriously.

And YES, Iraq did meet the major terms of the original
cease-fire agreement and, eventually, of the numerous subsequent UNSC resolutions regarding the Gulf War and weapons inspection (not coincidental you did not comment
on the respective specific facts I pointed out in my last response).

Since, we obviously can't and won't agree on the issue
of the duscussion, I drop the latter, regardless of your future response.

Steve Brody - 7/23/2004

Chris, you seem very impressed by the 150-6 vote by the GA against Israel. Here’s a challenge to you:

Next time you’re in court, tell the Judge “ Your Honor, Mr. X must be guilty. Everyone says so”

See how far you get with that argument.

chris l pettit - 7/23/2004

the first and fourth largest militaries in the world who have been perpetrating state terrorism, or a collection of terrorist organisations who don't represent an entire people?

In addition, what about the institutional abuse and oppression of the innocents in Palestine (punishment of the innocents...also illegal under international law) and those in Israel (can be handled under international criminal law). this is why the decision is so important...it addresses state oppression and terror that is illegal and cannot be dealt with except through the UN...individual acts of terrorists are in the realm of both state and international criminal law.

And the strong are breaking and making the rules...the US and Israel. The weak are the ones trying to uphold the international law that applies to everyone.

By the way...i would hope the "insititutionalization" argument is above you. It is almost the opposite of the more extreme positions of Said's orientalism argument that all Westerners see Arabs as sand heads and the like. The fact that you cannot show the bias is enough...one of the reasons I asked the question is to prove that point. But please don't give me "institutionalisation" as a cop out. Give me the best case you can make...maybe I will agree. I did my best with your fantastic points above and really appreciate the scholarship that you are offering for my benefit. let's keep the conversation going without resorting to such statements as "it has been institutionalised."

In addition...these treaties become part of states individual constitutional systems as well...as can be illustrated by the bringing of cases in several states, including the UK and states one would call despotic or undemocratic, such as Egypt and Libya. This does not mean much. Are you telling me that if the US insisted on upholding international law and the decisions of the ICJ in relation to itself and others, the rest of the world would not have to fall inline knowing that there is no legal foothold or hypocrisy to fall back upon? Give me a break...humanitarian intervention and peacekeeping may actually come to have some meaning. instead we insist on might makes right and power politics in the name of exploitation and self interest. Things won't change until this stance does.

CP
www.wicper.org

chris l pettit - 7/23/2004

Give me a break guys...

You want to argue that the law is USED against Israel...i cannot contest that...but it applies as the wall is in violation of international law. I would support the use of international law against any illegality...and do every day in my work.

As far as I know, customary international law is universal and applies to all, and states have the choice as to whether to sign and ratify a treaty or not. So again it comes back to...if you don't like it...get out. In the case of the ICJ, I have already discussed the jurisdictional issue.

So the law was definitely not established to be aimed at Israel or persecute Israel...that claim is absurd. Which returns us to the ideological and political aspects of the debate. in other words...there is still no legal argument, as the same laws apply to everyone else as apply to Israel, and my questions above still go as well. what do you choose? might makes right, denying all law, morality and ethics...as inalienable human rights are taken from multi cultural and universal moral and ethical standards (hence the reason I can say that Adam...i would gladly go into how the wall and power politics decry Jewish or Christian morals and values if you like)...or apply and accept the authority of the law that applies to everyone. relatively easy question...I just want to know if I can call you on your hypocrisy everytime you make a moral, ethical, or legal argument against someone other than the US or Israel or whether I can call you on your hypocrisy when you try and make a legal, ethical or moral argument supporting the US or israel. If you choose the law...there is not a defense of US or Israeli action...if you choose power, there is no room for legal, ethical or moral claims. Your choice. I know it is a tough spot to be in...but imagine if everyone were able to realize and make that decision...with the guts to actually back it up without making hypocritical claims to morals, ethics, or law if they chose the power component.

Since the law is not aimed at Israel, but at the global community, why don't we actually respect it and apply it equally to all instead of our own self interest.

By the way I eagerly await those answers to supposedly prove bias...

CP
www.wicper.org

Marc "Adam Moshe" Bacharach - 7/23/2004

1) "seeing as though the vote on the resolution was 150-6...my challenge is for you to name for me the "biased" parties of the UN, and then tell me why they are biased and their votes should not count..."

A fair request but I cannot offer it. The anti-Israeli bias has become so institutionalized, the reason is the same that many authoritarian rulers have signed human rights treaties: because they know it will be popular, ignored, and unenforceable. A similar request can be made by any government body, be it Congress, or the UN to go through each and every country but the honest truth is that I have no intention of investing the research since frankly, I doubt my explanations would be excepted by you.

2) "Then tell me how the rule of law and universality has anything to do with the self interest of states and why that self interest should cause me any concern."

The rule of law should have nothing to do with the self interest of states, and it does not. You should be concerned because that means the strong will either be making the rules or breaking the rules.

Marc "Adam Moshe" Bacharach - 7/23/2004

The idea of Israel and apartheid can only be described of as ignorant as best. Where to begin?

Apartheid:
A minority controlling the majority
The majority had no voting rights
Blacks had no right to hold office
Blacks had no right to participate in political parties
Blacks could not attend the same schools as whites
Blacks could not attend the same restaurants as whites
Blacks could not attend the same movie theaters as whites
I could go on and on and on, but I think you get the idea.

Israel:
Jews are the majority in Israel, not the minority
Israeli Arabs have full voting rights
Israeli Arabs hold seats in the Knesset
Israeli Arabs have several political parties
Israeli Arabs are not legally discriminated from attending public schools, movies, restaurants, and so on.

Thus, you may call Israel an Apartheid state, and while you are at it, I suspect you might want to include: Nazi/Racist/Genocide/Ethnic Cleaning/Slavery/Illegal/Illegitimate/Apostasy/and any other silly term one has picked up as being something "bad" and thus must ascribe to Israel. I would be happy to explain the differences between Israel and any of the above. Just ask.

chris l pettit - 7/23/2004

even more important...

since there are those claiming the ICJ is biased, lets see it:

show me in the writings or opinions of those on the Court there is a hint of bias or prejudice against Israel

I can point out the pro-Israeli bias of the US judge...does that mean he should be off the Court as well?

and remember that Israel was entitled to have an ad hoc judge on the Court for the decision

a person's nationality is also not a good enough reason to claim bias...as that shows your own bigotry ascribing a certain trait to an entire group of people

Lets see it mighty scholars...heat is on!

CP
www.wicper.org

chris l pettit - 7/23/2004

...although I would like to discuss a couple of them.

Israel should have every right to sit on the Security Council and why this is not the case is beyond me. you are right that it is a blatant violation of the Charter. I would be curious to see the reasoning behind this and why it has not been challenged, as Israel has the ability to challenge. How much do the present atrocities and violations of international law play into this? If they do, why are others guilty of the same atrocities allowed to sit on the SC? Indeed, if this disqualifies, why are Russia, China, the US, and the UK allowed to sit? If, as many like to claim, spots on the HR Commission and the SC should be reserved for those not violating international law, shouldn't Holland, South Africa, Finland, Sweden, Norway, and a bunch of tiny island states have control over everything? Again, I point to the paucity of having nation states involved as well as the veto power of the SC as the problem. If we stick to the nation state principle, there should be no reason for Israel to be denied a seat.

You cite 17 years and 27 years for the Commissions. Well, Israel has been in violation of the Geneva Conventions since the 1967 Conflict due to the illegal settlements (recognized by even the US until this last year)and for neglecting its duties as an occupying power. The UN is obligated to have its commissions investigate these matters. If you look at the commission reports, you will find that, at least in the case of the UNHCHR and UNESCO, there are plenty of condemnations of Palestinian authorities as well as the Israelis. One thing that EVERYONE seems to forget in this conflict is that you are dealing with one state and one actor with semi-sovereign status. Because the UN is a nation-state based organisation, there will naturally be more detailed reports regarding the state, as opposed to a Liberation Organization (the legal term...not mine). Maybe you will join me in acknowleging the problems created by the nation state system after hearing this? As it is...there are several NGO's who have "observer" status (the same that the PLO/PA hold) that blatantly support the Israeli cause and there is plenty of Israeli support. The contention regarding the Commissions would be a non-sequiter in my opinion. The Commissions also have operated in Egypt, the former Soviet states, Jordan, Syria, etc, for several decades...my point is that if there is violations taking place, one can expect the commissionst to be looking at the problems as is mandated by their founding documents and the UN CHarter.

When you speak of emergency sessions and the lack of them for Rwanda and the Balkans, I must remind you that the Balkans was a NATO action not supported by the UN...the action which first opened the door to Bush's illegal pre-emptive war in iraq. That being said, the UN recognized that the conflict in the Balkans was not one-sided, as portrayed by the US, and that there were problems from both sides. The "genocide" claimed by the US and western media was recognized as being crimes against humanity perpetrated by both sides, and US action was seen as being one sided and accelerating the killings in a harmful fashion. The UN is actually in the right on the Balkans. In term of Rwanda, you will remember that the US and France were the major forces involved in stalling UN action on the topic. Why the US has not made this effort to stall regarding Israel I cannot answer. Rwanda was seen as an intra-state conflict, while the Israeli problem is seen as threatening the entire globe due to the importance of the region. In my opinion, there is not difference between the two situations, but it can hardly be claimed to show bias.

Resolutions have been passed condemning terrorism. I again return you to the state/state actor difference. You cannot find resolutions condemning the LTTE, FARC, UNITA, or several other organisations with quasi-state status either. There is a legal procedure answer to the point that is not very satisfying...the UN Charter does not allow the practice because the "state actors" are not member states of the UN and therefore cannot be condemned by UN Resolutions (which only bind or censure state members). I am not happy with this fact, as I could definitely go for more resolutions, but for me this still does not show bias without background information regarding the negotiations about the resolutions and evidence of widespread bias. i guess this would end up in my game below...show me how universality results in bias and not paranoia and assumption and I will concede the point. i just don't see it in cases where the vote is 150-6. To continue the point...now that the ICC is in force, if the US and Israel would actually come to their senses and join, Arafat would be one of the first individuals who it would be nice to see in the dock. Since he is not the head of state, he cannot claim that all state remedies have not been exhausted, and cannot claim that he does not submit to the jurisdiction of the Court, which allows universal jurisdiction and individual culpability. The problem is that 2nd and 3rd in the dock would be Sharon and Kissinger, so power politics rears its ugly, law denying head once again.

Never quote Kirkpatrick...widely discredited internationally

The other quotes are bigoted and inflammatory...as well as from governments that I cannot be surprised at. They should be retracted from the record. Should we not be asking why there has never been an attempt to retract them by the EU, US, UK or Israel? It seems as though there would be near universal support. Again, this fails to convince me of bias of the majority of the UN, as all the states named I have no doubt that they are biased. I would note that the US is an ardent supporter of Saudi Arabia. I would also note that these statements are made by individuals who do not bind their governments (being from dualist states). If you are showing that bigots exist in Syria, Saudi Arabia, and Libya, of that I have no doubt. We have our share in the US and Israel...Negroponte in Iraq is only the latest example.

If you are saying that in toto these facts and statements indicate bias on behalf of the UN, I would again have to disagree, largely due to the reasons articulated above. Could there be more done? Absolutely, both in condemnation of ALL parties involved as well as support for all those suffering. But bias against israel? I think a better case will have to be made.

CP
www.wicper.org

Marc "Adam Moshe" Bacharach - 7/23/2004

True, but such insecurity came mostly from state actors, such as Egypt. I would also remind you since you bring it up that while under ZERO Israeli occupation, the Palestinians did not have a home state at this time, nor did anyone on the planet care.

Marc "Adam Moshe" Bacharach - 7/23/2004

1) The "Arafat's rejection at Camp David" myth has been authoritatively refuted by this point.

I found the NY Times book review to be particularly interesting, thank you for it. However, I do not see how either of them "authoritatively refute" anything, other than one advisor. President Clinton was the mediator, and ther person most intimately involved. Both he as well as another mediator, Dennis Ross, agree that Arafat was the problem. Do not forget that there is no shame in rejecting an offer to you. The shame is walking out on the negociations rather than, say, provide an alternative or counter-offer. In other words, Arafat did not just reject the offer, he left! And what was that offer anyway? What could the Palestinians have had?

"Israeli Prime Minister Ehud Barak offered to withdraw from 97 percent of the West Bank and 100 percent of the Gaza Strip. In addition, he agreed to dismantle 63 isolated settlements. In exchange for the 5 percent annexation of the West Bank, Israel would increase the size of the Gaza territory by roughly a third.
Barak also made previously unthinkable concessions on Jerusalem, agreeing that Arab neighborhoods of East Jerusalem would become the capital of the new state. The Palestinians would maintain control over their holy places and have "religious sovereignty" over the Temple Mount.

According to U.S. peace negotiator Dennis Ross, Israel offered to create a Palestinian state that was contiguous, and not a series of cantons. Even in the case of the Gaza Strip, which must be physically separate from the West Bank unless Israel were to be cut into non-contiguous pieces, a solution was devised whereby an overland highway would connect the two parts of the Palestinian state without any Israeli checkpoints or interference.

The proposal also addressed the refugee issue, guaranteeing them the right of return to the Palestinian state and reparations from a $30 billion international fund that would be collected to compensate them.
Israel also agreed to give the Palestinians access to water desalinated in its territory.

Arafat was asked to agree to Israeli sovereignty over the parts of the Western Wall religiously significant to Jews (i.e., not the entire Temple Mount), and three early warning stations in the Jordan valley, which Israel would withdraw from after six years. Most important, however, Arafat was expected to agree that the conflict was over at the end of the negotiations. This was the true deal breaker. Arafat was not willing to end the conflict. "For him to end the conflict is to end himself," said Ross.30c

The prevailing view of the Camp David/White House negotiations – that Israel offered generous concessions, and that Yasser Arafat rejected them to pursue the intifada that began in September 2000 – prevailed for more than a year. To counter the perception that Arafat was the obstacle to peace, the Palestinians and their supporters then began to suggest a variety of excuses for why Arafat failed to say "yes" to a proposal that would have established a Palestinian state. The truth is that if the Palestinians were dissatisfied with any part of the Israeli proposal, all they had to do was offer a counterproposal. They never did."

3) "I know that Israel's partisan's would rather that the damning facts of Israel's origins be swept under the rug, but the unfortunate fact is that those memories are very much a factor in Palestinian life. Asserting that they "change nothing" is callow and disingenuous."

My very statement demonstrates that I have not "swept them under the rug," as you charge, but acknowledge them. You seem to be under the impression that since Jewish zealots blew up British industries, Israel should have no right to exist, or not right to protect itself? I hope I am wrong on that conclusion.

During the 1948 war, if that is what you are referring to, hundreds of thousands of Jews were kicked off their lands they had held for centuries in numerous Arab countries, many were murdered. Ditto for ethnic Germans after WWII, and for Hindus living in the newly formed Pakistan. Of course, the world cares not for THOSE victims, as their persecutors was not Israel.

Nevertheless, I would be more than happy to entertain suggestions for a more humane or as you seem to prefer, a more ingenuous solution. What do you propose Israel do about this reality?

4) "That is true, unfortunately I'm sure the attacks will continue as long as the occupation continues."

And I am sure it will get progressively worse if the occupation ends without assurances. That is the predicament isn't it? Polls in Israel show an overwhelming majority who want to end the occupation but not without some assurances of security.

5) "It's amazing to me that you cannot see the reverse of your argument. As long as the occupation continues, as long as the destruction of Palestinian homes, the expropriation of land, and the daily brutalization of Palestinian men, women, and children continues, Israel will not have security."

No, but it will have freedom to defend itself as best it can. With the occupation over and the Palestinians ruled by an organization who pledges the total destruction of Israel, Israel will have no way of preventing swarms of terrorists through its large and border, and certainly without that buffer zone, Israeli cities would be far more open to missile attack and shelling. End the occupation, you will not end the terror. End the terror, on the other hand, and you will end the occupation.

Marc "Adam Moshe" Bacharach - 7/23/2004

1) "If you want to take the power position...go ahead. just NEVER claim that you have any sort of moral ethical or legal base and I don't want to hear anyone bitch about Israeli state terrorism or Palestinian terrorism because it is irrelevant since both sides are then using their power to enforce their political ideas."

I do not agree with that statement. It would be more accurate to say that anyone rejected the law when it comes to Israel should reject it when it comes to anyone. However, the moral and ethical standards can still apply. As I have said before, if someone wants to make a moral argument against the barrier, I am open to it. It is only the legal issue, which as I have said is used almost exclusively against Israel, that I cannot agree with.

2) "will you choose international law for all and equity based on inalienable human rights and the global community or will you choose might makes right, we apply our standards when we want, where we want, forget about all law and return to an animal power mentality? This is what it all boils down to."

Unfortunately, I do not see that choice since option A is simply not available. The real question is should Israel obey laws that are only enforced against it, even if it is to the detriment of its own people and security, or should they only follow international law if and when such law is used to bring peace and stability to both sides?

3) "I choose law and the belief that it applies to all...and that all have the obligation to obey it no matter what. You choose as you wish..."

I choose as you do. However, since it currently does not apply to all (or even most), I would sooner have it apply towards none.

chris l pettit - 7/23/2004

Adam has already demonstrated some of the failings (although I would claim a couple are legitimate) of the UN in regards to bias against Israel.

Let's play a game...

seeing as though the vote on the resolution was 150-6...my challenge is for you to name for me the "biased" parties of the UN, and then tell me why they are biased and their votes should not count...if you want to claim coercion took place (economic incentives, etc) that is fine, but then you will have to explain why US coercion in the UN, threat of a veto, veto, economic extortion through the IMF, WTO and WB is okay and yet this coercion is not. For the record, this is another reason why the nation-state sovereign principle fails in terms of the UN and I oppose coercion of all sorts.

I want to see if you can do this without looking abosolutely hypocritical and one sided since I would claim you are talking out both sides of your mout at the moment.

Then tell me how the rule of law and universality has anything to do with the self interest of states and why that self interest should cause me any concern.

And why whine about democracy and then suppress it when it does not suit you? Only some are equal? More equal than others? An Orwellian trend is developing...

This is not to take anything away from Adam's fine points, which I will discuss my problems with above.

CP
www.wicper.org

chris l pettit - 7/23/2004

Mark, I see that you are quoting some of the mistaken arguments regarding the legality of Iraq...here are the articles I promised...UK position and US position...

forgive the length...

UK ANALYSIS

[Attorney-General's statement appears in italics, commentary in bold.]

"Authority to use force against Iraq exists from the combined effect of resolutions 678, 687 and 1441. All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security."

The first point to note is that most of the legal justifications which have been suggested by UK government ministers are implicitly ruled out. This rules out for instance the justification of self defence.

And it rules out the argument that resolution 1441 itself authorises the war. The Attorney General is relying on what he says is the "combined effect" of past resolutions. This is how he attempts to make that argument:

"1. In resolution 678 the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area."

Resolution 678 was adopted over 12 years ago on the 29th November 1990.
It is the only UN resolution passed about Iraq which expressly authorised the use of force against Iraq. This is why the Attorney General has tried to resurrect it.

That resolution was about the restoration of Kuwait's borders after the Iraqi invasion.

Paragraph 2 of that resolution

"2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area."

This argument that this authorises the use of force today is unsupportable since resolution 1441 (2002) was passed some eleven years after 15 January 1991. Obviously Iraq could not possibly comply with a 2002 resolution by 15 January 1991. The preamble of resolution 678 (1990) reads 'Noting that, despite all efforts by the United Nations, Iraq refuses to comply with its obligation to implement resolution 660 (1990) and the above-mentioned subsequent relevant resolutions, [being the list of resolutions immediately before] in flagrant contempt of the Security Council.' The use of 'above-mentioned' clearly means that 'subsequent relevant resolutions' are those 1990 resolutions listed. Operative paragraph 1 of resolution 678 (1990) likewise "Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions?" It is clear from the text of resolution 678 (1990) that "all subsequent relevant resolutions" must mean that list of resolutions listed at the beginning of the resolution. It is not arguable that resolution 678 (1990) provided the use of force for all resolutions after that date. Furthermore, resolutions 660 (1990) and 678 (1990) refer to the question of the Iraqi invasion and occupation of Kuwait, and did not deal with the question of WMD, which is the primary subject of resolution 1441 (2002).

"2. In resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution 687 suspended but did not terminate the authority to use force under resolution 678."

Here the Attorney-General acknowledges that in resolution 687 the Security Council took back the responsibility from the Member States after its earlier authorization in resolution 678. However the claim of that this merely was a 'suspension' is completely unsupported in the resolution.

However nowhere in resolution 687 is there any suggestion, let alone explicit reference to any 'suspension' of resolution 678. Quite the opposite: the resolution makes it clear the military presence is to be brought 'to an end'.

The Security Council in its preamble reads:

"Affirming the commitment of all Member States to the sovereignty, territorial integrity and political independence of Kuwait and Iraq, and noting the intention expressed by the Member States cooperating with Kuwait under paragraph 2 of resolution 678 (1990) to bring their military presence in Iraq to an end as soon as possible consistent with paragraph 8 of resolution 686 (1991),
and
6. Notes that as soon as the Secretary-General notifies the Security Council of the completion of the deployment of the United Nations observer unit, the conditions will be established for the Member States cooperating with Kuwait in accordance with resolution 678 (1990) to bring their military presence in Iraq to an end consistent with resolution 686 (1991); and finally

33. Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990);

"3. A material breach of resolution 687 revives the authority to use force under resolution 678."

This statement is completely unsupported. Nowhere is this claim contended by the UK stated explicitly or implicitly in resolution 687. Quite to the contrary:

The final operative paragraph of resolution 687 (1991) reads that the Security Council

34. Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.

It is the Security Council and not the individual Members that are authorized to take further steps under resolution 687.

This argument has been succinctly dealt with by Rabinder Singh QC and Charlotte Kilroy in their opinion dated 23rd January 2003.

"In our view, it is clear from the terms of Resolution 687, and from the context in which it was adopted that the formal ceasefire, once effected, terminated the authorisation to use force in Resolution 678, and that any steps to be taken for the implementation of Resolution 687 and to secure peace and security in the region were now once more a matter for the Security Council and not for the Member States."

"4. In resolution 1441 the Security Council determined that Iraq has been and remains in material breach of resolution 687, because it has not fully complied with its obligations to disarm under that resolution."

Adopting 1441 was the Security Council's method of dealing with the disarmament issue. The Security Council also determined that it - not individual States - would deal with the matter. It did so by setting up the enhanced inspection regime.

Operative paragraphs 1 of rresolution 1441 stated that the Security Council:

1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991);

Resolution 1441 (2002) specifically decided that Iraq was in material breach of its obligations under resolution 687 (1991), granted Iraq a final opportunity to comply, and set up the enhanced inspection regime. It did not authorize the use of force by individual Member States. That is of course why the UK and the USA specifically sought a further Security Council resolution which did authorize the use of force by individual member States. They tried to do so and failed.

"5. The Security Council in resolution 1441 gave Iraq "a final opportunity to comply with its disarmament obligations" and warned Iraq of the "serious consequences" if it did not."

The selective quotations from operative paragraphs 2 and 13 of resolution 1441 is misleading. The full paragraph reads that the Security Council

2. Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council; and accordingly decides to set up an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process established by resolution 687 (1991) and subsequent resolutions of the Council.

The enhanced inspection regime was established to give Iraq 'the final opportunity'.

In operative paragraph 13 the Security Council "Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations" and in the final operative paragraph 14. "Decides to remain seized of the matter."

"Serious consequences" could mean a range of options, including sanctions. The point is that those options would be imposed by the Security Council, not member States. The Security Council decided to remain seized of the matter. It had not finished dealing with it. Again, the UK and US tried subsequently to obtain authorization for the use of force. They failed to do so. The UK asked for a further resolution authorising force because it knew it needed it, but failed to gain approval of the resolution.

"6. The Security Council also decided in resolution 1441 that, if Iraq failed at any time to comply with and co-operate fully in the implementation of resolution 1441, that would constitute a further material breach."

This is another selective and misleading quotation of the resolution.

The full paragraph read that the Security Council

4. Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below;

Any further material breach was to be reported to the Council for assessment. There is no automaticity in resolution 1441. It does not authorise the use of force. Another resolution would be necessary.

"7. It is plain that Iraq has failed so to comply and therefore Iraq was at the time of resolution 1441 and continues to be in material breach."

This is a judgment made by the UK. However it is not for them to make that decision but it is a decision solely for the Security Council. Furthermore, even if there is a material breach, the consequences of that breach are a matter for the Security Council, not individual member States.

"8. Thus, the authority to use force under resolution 678 has revived and so continues today."

This simply does not follow. It is legal nonsense.

As stated above: Resolution 687 decided that the Security Council is seized of the matter and that the Security Council shall decide what steps to take in the event of a breach.

The matter is in the hands of the Security Council, and there is authorisation for member States applicable in this situation. The authorisation to use force was with respect to the borders of Kuwait under the specifically cited resolutions, and expired once that had occurred. There is nothing to revive. There is nothing in Resolution 1441 stating the authority has 'revived'. The authority was a product of its time, and is finished.

"9. Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended."

This is not only more nonsense; it misstates history. Resolution 1441 operates within the terms of the UN Charter itself. The UN Charter states that it is for the Security Council alone to sanction force. Those are the rules and they do not need to be restated in every resolution.

Draft provisions for the use of force were originally requested and were withdrawn when it was clear they were not supported.

The US and the UK originally tried to draft resolution 1441 so that military action could automatically be taken by a member state following a breach. That proposed wording was "?such breach authorises member states to use all necessary means to restore international peace and security in the area." Following widespread opposition to this wording, the US and the UK dropped it and inserted instead "?false statement or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations?" So the US and UK failed to gain such authority in 1441.

"Thus, all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq's failures, but not an express further decision to authorise force. "

The UN Charter itself bans the use of force (in Article 2(4)) except in narrowly proscribed situations, being self defence under Article 51 (which is not claimed here) or collective action under the UN Charter under Article 42.

It is for the Security Council itself to take action under Article 42, not for Member States. The UK tried but failed to obtain the authorization.

US ANALYSIS

Analysis of the US Legal Position on the Use of Force Against Iraq US justification of the use of force against Iraq is without legal foundation.

March, 2003

A number of international lawyers have written legal opinions stating that it would be a violation of international law if the United States, United Kingdom and other States were to use military force against Iraq without specific, new Security Council authorization. This opinion will not reiterate the arguments supporting the conclusion that such use of force would be illegal. These arguments have been adequately made in those earlier opinions to which reference is made.1 Furthermore, on March 11, United Nations Secretary-General Kofi Annan said that, "If the U.S. and others were to go outside the Council and take military action it would not be in conformity with the Charter."2 Briefly stated, it is clear from Article 2(4), Article 42 and Article 51 of the UN Charter that Member States are to refrain from the threat or use of force against the territorial integrity or political independence of any State. Force may only be used if specifically approved by the Security Council or proportionate force may be used in self defence when a threat is imminent. In the latter case, in the words of the Nuremberg Tribunal, "preventive action in foreign territory is justified only in case of 'an instant and overwhelming necessity for self-defense, leaving no choice of means, and no moment of deliberation'". The United States and United Kingdom have sought unsuccessfully, up until the date of this Note, to have a further resolution passed which they intend would authorize the use of force against Iraq.3 However, now that it appears that no such resolution would be approved by the Security Council, they have sought legal justification for the use of force in earlier resolutions passed in 1990 and 1991. It is the conclusion of this Note that this justification is without legal foundation. On Thursday 14 March, White House Press Spokesman Ari Fleischer read a formal statement setting out the administration's formal legal position as follows:

MR. FLEISCHER: The United Nations Security Council Resolution 678 authorized use of all necessary means to uphold United Nations Security Council Resolution 660, and subsequent resolutions and to restore international peace and security in the area. That was the basis for the use of force against Iraq during the Gulf War. Thereafter, United Nations Security Council Resolution 687 declared a cease-fire, but imposed several conditions, including extensive WMD related conditions. Those conditions provided the conditions essential to the restoration of peace and security in the area. A material breach of those conditions removes the basis for the cease-fire and provides a legal grounds [sic] for the use of force.4 This makes it clear then that the United States administration relies on resolution 687 (1991), and before that resolution 678 (1990), to provide legal grounds for the use of force. Mr Fleischer has implied that the authorisation to use 'all necessary means' in resolution 678 (1990) extends to the later resolution 687 (1991). Clearly it is earlier in time and does not. The second operative paragraph of the earlier resolution 678 (1990) states that the Security Council:5

2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.

The final operative paragraph of resolution 687 (1991) reads that the Security Council 34. Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.

Quite apart from this confusion of the two resolutions, even if Iraq has committed a material breach of the cease-fire resolution 687, it does not follow that a Member State such as the United States or United Kingdom is authorized to use force. It is the Security Council and not the individual Members that are authorized to take further steps under resolution 687. As has been noted by Professor Vaughan Lowe, 6 when resolution 687 was passed on 3 April 1991, the force that the Security Council had earlier authorised in resolution 678 in 1990 to restore the borders of Kuwait had effectively expired as the matter was back into the hands of the Council. It is clear from this resolution that the Security Council, and not individual Member States, is to take further steps as may be required. This is entirely consistent with the prohibition on the use of force under Article 2(4) of the UN Charter, and the provision that enforcement action is to be taken "by the Security Council" under Article 42 of the Charter.

Of course, some eleven years later, resolution 1441(2002) was passed by the Security Council to address the issue of weapons of mass destruction, which is the principal justification for the proposed invasion. The passage of that resolution and the fact that the United States has sought and failed to gain Security Council authorization for the use of force in Iraq following resolution 1441 (2002) in fact imply that the United States implicitly accepted that further authorization of the Security Council was required for the use of force. Operative paragraphs 1 and 2 of resolution 1441 (2002) stated that the Security Council: 1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991);

2. Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council; and accordingly decides to set up an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process established by resolution 687 (1991) and subsequent resolutions of the Council.

In operative paragraph 13 the Security Council 13. "Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations" and in ô
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D D è of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;

This argument that this authorises the use of force today is unsupportable since 1441 (2002) was passed some eleven years after 15 Jan 1991. Iraq could not possibly comply with a 2002 resolution by the 15 January 1991. The preamble of resolution 678 (1990) also uses the term 'all subsequent resolutions': 'Noting that, despite all efforts by the United Nations, Iraq refuses to comply with its obligation to implement resolution 660 (1990) and the above-mentioned subsequent relevant resolutions, [being the list of resolutions immediately before] in flagrant contempt of the Security Council.' The use of 'above-mentioned' clearly means that 'subsequent relevant resolutions' are those 1990 resolutions listed.8 Operative paragraph 1 of resolution 678 (1990) likewise "Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions?" It is clear from the text of resolution 678 (1990) that "all subsequent relevant resolutions" must mean that list of resolutions listed at the beginning of the resolution, being those subsequent to 2 August 1990 (when resolution 660 (1990) was passed but before 29 November 1990, the date resolution 678 (19901) was passed. It is not unarguable that resolution 678 (1990) provided the use of force for all resolutions after that date. Furthermore, resolutions 660 (1990) and 678 (1990) refer to the question of the Iraqi invasion and occupation of Kuwait, and did not deal with the question of WMD, which is the primary subject of 1441 (2002).

2. Finally, sSome may argue that resolution 1441 (2002) somehow incorporates resolution 687 (1991) so the use of force will be legal according to resolution 1441 (2002).

This argument is unsupportable as well. Resolution 678 (1990) authorised the use of force to restore Kuwait's border, and is not applicable to the proposed attack on Iraq s. This fails for two reasons:

1. There's no authorisation for the ongoing use of force, as explained earlier in this note.

2. There is no mention of weapons of mass destruction in resolution 678 (1990). Resolution 687 (1991) was the ceasefire resolution where the Security Council took the matter back to itself and addressed weapons of mass destruction. As explained earlier, there is nothing in either resolution 687 (1991) or 1441 (2002) which authorises Member States to use force themselves. It is the Security Council that is authorized to take steps.

Resolution 1441 (2002) referred to Resolution 687 (1991) to the following extent (as well as in the preambles)

1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991);

2. Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council; and accordingly decides to set up an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process established by resolution 687 (1991) and subsequent resolutions of the Council;

There is no further reference to resolution 687 (1991) in the later operative paragraphs. The Security Council addressed the material breach of 687 (1991) by setting up the inspection regime.

The Security Council, finally in operative paragraphs 13 and 14, stated that it
13. "Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations;

14. Decides to remain seized of the matter."

Warning Iraq that it will 'face serious consequences' is far short of specifically authorizing individual member states to use force. Those serious consequences could include further sanctions, for instance, or even a specific authorisation of the use of force.

Additionally, the Council decided to remain seized of the matter. The matter is still within the hands of the Security Council, not individual Member States.

References

1 "The United Nations Charter and the Use of Force Against Iraq", October 2 2002, at http://www.lcnp.org/global/iraqstatement3.htm; Rabinder Singh and Charlotte Kilroy, "In the Matter of the Potential" 15 November 2002, at http://www.cnduk.org/briefing/opinion.htm; "An Appeal to Law - IALANA Statement on the Threat of War Against Iraq," November 24, 2002; at http://www.lcnp.org/global/AppealtoLaw.htm, and "International Appeal by Lawyers and Jurists against the "Preventive" Use of Force", February 2003, at http://www.lcnp.org/global/LawyersandJuristsAppeal.htm.
2 See CNN, "Annan targets U.S. stance", March 11, at http://www.cnn.com/2003/WORLD/meast/03/11/sprj.irq.un/
3 Rabinder Singh and Charlotte Kilroy have argued persuasively that the draft resolution would not be effective in so doing. "In the matter of the Potential Use of Armed Force by the UK against Iraq and the draft US/UK Resolution Published on 24 February 2003", 3 March 2003.
4 Press Briefing by Ari Fleischer, March 13 2003, at http://www.whitehouse.gov/news/releases/2003/03/20030313-13.html.
5 Mr Fleischer quoted the latter part of this paragraph in the formal US legal position quoted above. Resolution 660 concerned the invasion of Kuwait and "authorises Member States to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area"
To quote as the formal US legal position did from resolution 678 (1990), rather than the later resolution 687 (1991), to justify the use of force is misleading, since the earlier resolution does not address weapons of mass destruction, but the invasion of Kuwait.
6 See the judgment of Professor Vaughan Lowe following a hearing of legal arguments by Nicholas Grief, international law professor at Bournemouth University and Professor Tony Aust, Deputy Director of the British Institute of International and Comparative Law and visiting professor at University College London, arranged by BBC Radio 4, at http://www.bbc.co.uk/radio4/today/reports/international/iraq_judgement.shtml.
7 Footnote 1 above.
8 Resolutions 660 (1990) of 2 August (1990), 661 (1990) of 6 August 1990, 662 (1990) of 9 August 1990, 664 (1990) of 18 August 1990, 665 (1990) of 25 August 1990, 666 (1990) of 13 September 1990, 667 (1990) of 16 September 1990, 669 (1990) of 24 September 1990, 670 (1990) of 25 September 1990, 674 (1990) of of 29 October 1990 and 677 (1990) of 28 November 1990.



TO tie this in to the present context...Israel is now illegally assisting the Kurdish sector of Iraq, in violation of both customary and international treaty law...DC I would assume would argue that since Iraq may become a "threat" to the 4th largest military in the world, it would be justified...as usual, the "might makes right" argument...anyone want to try and make an actual legal argument that does not involve self interest?

CP
www.wicper.org

Jonathan Dresner - 7/23/2004

Now who sounds religious?

Seriously, though, you're right in that we need to see how things play out. On the other hand, I'm not above pushing a bit in the direction I think things should go.

mark safranski - 7/23/2004

Arnold, you have a most convenient style of reasoning. For example, you wrote:

"There was no legal cause under the cease-fire agreement for the renewal of active hostilities in the form of the wide-scale invasion and regime change, in its interpretation by the wide international community."

A cease-fire agreement is a) bilateral between belligerents and b)the renewal of hostilities is presumed upon the breaking of the agreement by either high contracting party and therefore c) your premise that a specific legal clause is *required* for the United States to be legally able to respond with force to Iraqi violations of the cease-fire agreement is as false as the claim that d) the " international community " has the legal authority to determine the scope of the subsequent American military response.

Unpopular does not equal illegal and essentially your argument begins with the evasion of the basic fact that Iraq had the legal responsibility to meet such conditions in order to obtain and *maintain* a truce.

You then proceed to again equate political requirements with legal ones which are not, as I pointed out, the same thing and are in any event, irrelevant to the question of whether or not the war in Iraq was legal. You cannot jump ahead and ignore the legal foundations of your alleged chain of reasoning, such as it is. Either IL is to be specific to the letter as you maintain or it's an ambiguous, amorphous thing of no great weight that can be dismissed when inconvenient. You can't have it both ways Arnold. Which is it ?

And no, Iraq never met the terms of the original cease-fire agreement or any of the numerous subsequent UNSC resolutions regarding the Gulf War and weapons inspection. For a complete listing of Iraqi violations go here:

http://www.state.gov/p/nea/rls/01fs/14906.htm

Derek Charles Catsam - 7/23/2004

To add to Ephraim's question --
How does one deal with an immediate threat? You have said that Israel ought to have gone to some world body in 1967. Yet troops were amassed along its borders and one of the heads of state of those nations was calling for the eradication of Israel.
Should the Tutsis in 1994 have gone to the world court? Is it their fault that they did not? Would you have blamed the US for intervening absent of UN action (UN action that actually prevented US intervention, at least by the "international law" you so venerate?)
Inquiring minds want to know just how much genocide you're willing to accede to in the name of international law. My guess is we're going to hear rationalization. The reality is, the UN actively worked to prevent troops from going in on the ground in Rwanda. We know Israeli lives do not matter to you. By your own matrix, neither do those of Africans. This is a fine little soup of indifference to murder you've embroiled yourslf in. Me? I want US troops in the Sudan now. Not when the UN decides to act, hundreds of thousands of bodies later. Right now. The voices of dying children are wondering about UN fecklessness. Or they would had the UN even been a viable option. For shame. The bigger shame will be that the US won't react. Even bigger than that is that if they did without UN mandate, we'd have Chris Pettite here to lecture us about the fine points of a body that has never much cared about body counts. Oh yeah -- isn't the Sudan still on the UN Human Rights Commission? Anyway, you were talking about legitimacy?
dc

Derek Charles Catsam - 7/23/2004

And why repeat the fact, other than that it has been ignored (oh, and that it is true), that in 1967 the Gaza Strip was not Palestinian, but Egyptian, and the West Bank was not Palestinian, but Jordanian? So again, who stole what from whom in the light of nation state declarations and acts of war? Damn, facts are stubborn things.
dc

E. Simon - 7/23/2004

You've stated that if Israel has a problem with, say for instance, Palestinian terrorism and its infrastrucure throughout the Near East, then it should litigate. But I'm not sure how you've assumed that a nation of a few million people would (or should) have the resources to simultaneously and successfully defend itself from not only military and political onslaught (yes, the U.N. is biased), but legal (considering the effort in filing dockets) onslaught as well. Your faith in the ICJ is as comforting to me as that of the prosecutors of African American males who are currently on death row due to a disparity in legal resources (both financial and forensic). You're adding to the burden for military and legal self-defense by presuming that the responsibility for providing it should automatically emanate from the accused.

It's also not culturally sensitive given the historical likelihood of a stronger power actually protecting Jews (which was low) instead of persecuting them (which was high).

E. Simon - 7/22/2004

The E.U. looks to me like the most promising as well as ideologically coherent and politically well-constructed, although all are interesting. What they seem to have in common is regional integration, which seems like the most logical next step. India and China do, of course, have a history of integration, even if of the imperial sort. Jared Diamond has written on some interesting geographical theories on why Europe for the most part did not (at least not to the same degree).

I'm not sure if the pro-Beijing statements of the current administrator in Hong Kong match his people's sentiments when it comes to free press and speech, for instance. I doubt the mainland's gains are quick enough to satiate the peninsula's desire to avoid the current regression to which it has been subjected. India's corruption is probably more easily overcome than China's repression.

Again, let's let these regional models work their course before jumping to a globally coherent system. There's no reason to suggest that they won't be at least as stable, and just.

And as I've stated elsewhere, I think the all the agglomeration talk is missing the point. Justice has not been proven conclusively to be linked to the size of a polity or to that of its demography. I look at the history of the tiny Swiss confederation and contrast its civil sensibilities against those repeatedly revoked in the larger nation states of the continent over the last few hundred years. We should remember that justice starts with morally justifiable behavior on an individual level, and then move outward numerically, if at all.

E. Simon - 7/22/2004

Mr. Pettit,

I appreciate what you've said about different starting points, and believe that, with that in mind, anything can be resolved.

The only thing you've said that still bothers me is when you refer to "impos(ing)" Israel's position "on the... international community." I see the reverse situation as being the case, particularly since I don't understand how the current situation affects anyone in the international community other than many Arab states that deprive the Palestinians of their human rights in an effort to keep the conflict aflame. Apart from these countries, the only stake the international community has is political (and perhaps moral, although in a perversely misguided sense) in seeking to avoid the offense and alienation of a 21(+)-state voting bloc. The jurists, on the other hand, and for that matter and by extension the international community as well, do not deal with the issues on a sufficiently personal and comprehensive manner to allow themselves the right to pass judgment on them. They are the ones who are imposing their will on others. It is tyranny by the majority.

E. Simon - 7/22/2004

I'm not sure he knows whether he is seeking a defeat over persistence or reason. My guess is the latter.

Derek Charles Catsam - 7/22/2004

Wait -- I am still waiting for our self-proclaimed not anti-Jew, but definitely anti-Israel friend (a distinction without a difference in the cafes and bus stops of tel Aviv, I'm afraid) to explain the "crime of 1948" since the main event of 1948 with regard to this debate was the actual establishment of Israel.

E. Simon - 7/22/2004

If Israel is not the nation in which a higher percentage of citizenship is held by Jews (80%) than in any other, then it sounds to me like you're arguing in favor of their unfettered immigration and settling the West Bank and Gaza Strip. The converse of your argument is that by not doing so you are "conflating" a Palestinian state with a population of almost exclusively Arabs. Your internal contradictions are not boring to you because you haven't yet figured them out.

Matt Duss - 7/22/2004

I do, I do!

E. Simon - 7/22/2004

Ok - if you say so!

E. Simon - 7/22/2004

5) Nor did it have security between 1948 and 1967.

Matt Duss - 7/22/2004

One more thing, Mr. Simon. I suppose it was inevitable that you would accuse me of "blaming the Jews," this is to be expected whenever anyone has the temerity to suggest that Israel is anything other than a blameless victim, but understand this: Israel does not equal "The Jews." The two are not the same, though of course treating them as if they were is a valuable tool for defaming Israel's critics. Frankly, you only embarrass yourself when you try and conflate them for the sake of winning an argument.

E. Simon - 7/22/2004

You conveniently stop at 1948 (and not 1967) because that is the point where it is unresolvable - just like your arguments.

E. Simon - 7/22/2004

The right is not based necessarily on a biblical covenant, just the same right to self-determination as every other one of the nearly 200 member states of the U.N.

E. Simon - 7/22/2004

How about the right to employment, citizenship and housing of the Palestinian refugees in any of the Arab countries in which they have lived for over the past 50 years other than Jordan? You're right Matt. Better to make the Jews pay for what the Arabs have perpetuated than to give justice where one can.

Matt Duss - 7/22/2004

Incessantly reaching back? No, I'm happy to stop at 1948. I do find it odd, though, that you have such a problem with me referring to the tragedy of 1948, only 56 years ago, yet Israel's partisan's expect to be taken seriously when they claim the land based on a biblical "covenant" from over 2000 years ago.

E. Simon - 7/22/2004

I can think of games that are much more fun than fueling an insatiable need to have the last word. If incessantly reaching back further into history at every step so that you can find some way to ultimately blame the Jews for their predicaments is what interests you, why not go all the way to the beginning? Or are the Jews also to blame for the fact that if the Romans had not kicked them out of Palestine two thousand years ago none of this mess would have occurred in the first place?

Derek Charles Catsam - 7/22/2004

By the way, "occupation" is not in and of itself a bad thing, unless there are folks here who think the North ought not to have occupied the South and engaged in reconstruction, however ill-fated. others declared their intent to destroy israel. israel made sure that did not happen. israel took land from those who made the threats -- other nation states who then turned around and pretended that israel was robbing the land from palestinians. Rich, that.
dc

Derek Charles Catsam - 7/22/2004

Actually, Mr. Clarke, it might first behoove you to learn what an ad hominem is. An ad hominem is an attack quite literally "against the man." If I call one of your ideas colossally stupid, or the equivalent, I am quite intentionally not attacking "the man" but I am attacking "the argument." Please learn the difference.
Second, as for time on my hands, the implication being that I somehow do not do anything else with my life, I'll gladly compare volume and quality of other writings that I've done outside of HNN in the last two years with yours if that will somehow have anything to do with what is going on here. I'll also compare accomplishments in a whole range of life areas, if you'd like -- sports? dating? talents, say musical or otherwise? If you want to imply that I'm pathetic, do so at your peril. But then let's be fair and open about our respective lives. And have the balls to stand behind it in a face to face. What I am is productive, reasonably bright, and passionate. And I'll take you on in any particular challenge you might want to make. Or I'll just let you name the conference bar where you want to make your personal innuendoes. You decide. If the implication is that my participation on HNN, a site where I have written several articles (about Africa, sports, race in America, terrorism, and, yes, Israel) and where I have a reasonably successful blog is prima facie evidence of what the caliber of my life is like, then I will take back something I said earlier. Because THAT is the stupidest thing I've read on HNN.

In any case, no, I guess it should not be shocking that less than 10% of my posts have involved criticizing a side I see as fundamentally right. I have in many places argiued that I believe in a two state solution, and were I Israeli, or even Jewish, I would be a member of the Labor Party. I am in Amercan terms a liberal Democrat. I criticize my political party too, but perhaps it will be some sort iof revelation to Mr, Clarke that i spend more time defending the party I support and criticizing that I don't than I do criticizing my own side. I know that sounds crazy. I know that most people here spend most of their time criticizing their own side here. Oh, wait. no they don't. That would be pretty retarded. Never mind.

OK. Maybe we have gotten the idiotic issues out of the way -- how pathetic I am, how I don't make arguments against sides I fundamentally support, how the only ad hominems here, amongst people who actually care that words have what some of us quaintly like to call "meaning" are coming from Mr. Clarke. Now let's get to the substance.

Because many here either do not pay attention, or don't bother to care, the whole idea of the wall (actually not similar in any particular politcal respect other than that it is a wall, which hardly makes for a strong analogy independent of the other almost unfathomable aspects of the analogy as conveyed in your earlier posts) is not a construct of wither the israeli right or their American supporters. the idea of this allegedly nefarious wall in fact comes from the Israeli peace left. Sharon has tinkered with, maybe even bastrdized the border, although the resolution of that border and what it should be is not clear, in fact. Why has he done so? Because every effort at peace has led to the loss of Israeli lives. And so the territory that Israel gained when it fought off those who would destroy it (no one ever, ever, ever responds to my invocations of Nasser's rather clear quotation about driving the Jews to the sea. Funny that.). A wall does not have to be permanent. And if the palestinian people can find a leader who actually cares about peace a wall can be torn down. Corpses blown to bits however cannot be raised from the dead. Israel is responding to its own court and is changing the course of the wall. In other words, the idea that the Israelis are the intransigents here is dumbfounding.
I've no problem with some sort of land for peace deal. Never have. But not until the Palestinians stop the campaign of murder. This includes Hamas, Hezbollah and the myriad other groups acting in the name of the Palestinian people.

Or I'd more than happily make this deal: Israel gives back every inch of the West Bank and Gaza. Every single inch. And then after they do so, if there is so much as one dud firecracker that goes off in Tel Aviv or Haifa or Jerusalem aimed at one Israeli, and it can even vaguely be traced to anyone advocating the Palestinian cause, the IDF rolls like thunder and the Palestinians never see that land again. Then we'd see who really believes in Israel's right to exist.
So I hope the act of responding was not too pathetic for you, Mr. Clarke, and that when you read this, during your very full and satisfying and clearly-more-exhillerating-than-mine life, you can find a way not to pity me for what clearly is a dreary and loathsome existence. In any case, you name the conference and maybe we can hash this little issue out. otherwise I'd appreciate you keeping your slimy little innuendoes to yourself. Or else sack up and say what you really mean.
dc

Matt Duss - 7/22/2004

1) “Joseph Weitz was the director of the Jewish National Land Fund...On December 19, 1940, he wrote: ‘It must be clear that there is no room for both peoples in this country...The Zionist enterprise so far...has been fine and good in its own time, and could do with ‘land buying’ — but this will not bring about the State of Israel; that must come all at once, in the manner of a Salvation (this is the secret of the Messianic idea); and there is no way besides transferring the Arabs from here to the neighboring countries, to transfer them all; except maybe for Bethlehem, Nazareth and Old Jerusalem, we must not leave a single village, not a single tribe’...There were literally hundreds of such statements made by Zionists.”
-Edward Said, “The Question of Palestine.”

2)“Ben-Gurion clearly wanted as few Arabs as possible to remain in the Jewish state. He hoped to see them flee. He said as much to his colleagues and aides in meetings in August, September and October [1948]. But no [general] expulsion policy was ever enunciated and Ben-Gurion always refrained from issuing clear or written expulsion orders; he preferred that his generals ‘understand’ what he wanted done. He wished to avoid going down in history as the ‘great expeller’ and he did not want the Israeli government to be implicated in a morally questionable policy...But while there was no ‘expulsion policy’, the July and October [1948] offensives were characterized by far more expulsions and, indeed, brutality towards Arab civilians than the first half of the war.”
-Benny Morris, “The Birth of the Palestinian Refugee Problem, 1947-1949”

3)“In internal discussion in 1938 [David Ben-Gurion] stated that ‘after we become a strong force, as a result of the creation of a state, we shall abolish partition and expand into the whole of Palestine’
-Noam Chomsky, “The Fateful Triangle.”

4)In 1948, Menachem Begin declared that: ‘The partition of the Homeland is illegal. It will never be recognized. The signature of institutions and individuals of the partition agreement is invalid. It will not bind the Jewish people. Jerusalem was and will forever be our capital. Eretz Israel (the land of Israel) will be restored to the people of Israel, All of it. And forever.”
-Noam Chomsky, “The Fateful Triangle.”

5)“Menahem Begin, the Leader of the Irgun, tells how ‘in Jerusalem, as elsewhere, we were the first to pass from the defensive to the offensive...Arabs began to flee in terror...Hagana was carrying out successful attacks on other fronts, while all the Jewish forces proceeded to advance through Haifa like a knife through butter’...The Israelis now allege that the Palestine war began with the entry of the Arab armies into Palestine after 15 May 1948. But that was the second phase of the war; they overlook the massacres, expulsions and dispossessions which took place prior to that date and which necessitated Arab states’ intervention.”
-Sami Hadawi, “Bitter Harvest.”

re: Apartheid. Well, Nelson Mandela calls it apartheid. But maybe you know better, huh?
http://www.neighborsforpeace.org/Mandela.htm
"Perhaps it is strange for you to observe the situation in Palestine or, more specifically, the structure of political and cultural relationships between Palestinians and Israelis, as an apartheid system. This is because you incorrectly think that the problem of Palestine began in 1967. This was demonstrated in your recent column "Bush's First Memo" in the New York Times on March 27, 2001.

You seem to be surprised to hear that there are still problems of 1948 to be solved, the most important component of which is the right to return of Palestinian refugees.

The Palestinian-Israeli conflict is not just an issue of military occupation and Israel is not a country that was established "normally" and happened to occupy another country in 1967. Palestinians are not struggling for a "state" but for freedom, liberation and equality, just like we were struggling for freedom in South Africa. In the last few years, and especially during the reign of the Labour Party, Israel showed that it was not even willing to return what it occupied in 1967; that settlements remain, Jerusalem would be under exclusive Israeli sovereignty, and Palestinians would not have an independent state, but would be under Israeli economic domination, with Israeli control of borders, land, air, water and sea.

...Apartheid is a crime against humanity. Israel has deprived millions of Palestinians of their liberty and property. It has perpetuated a system of gross racial discrimination and inequality. It has systematically incarcerated and tortured thousands of Palestinians, contrary to the rules of international law. It has, in particular, waged a war against a civilian population, in particular children.

The responses made by South Africa to human rights abuses emanating from the removal policies and apartheid policies respectively, shed light on what Israeli society must necessarily go through before one can speak of a just and lasting peace in the Middle East and an end to its apartheid policies."

Val Jobson - 7/22/2004

Maybe a more dispassionate argument could be made by clarifying what the occupied lands contain and why both sides consider the lands worth killing and dying for.

I have read that Israel gets 40% of its water from the occupied territories; the statement was not documented; does anyone know if it is accurate? Do the occupied lands and/or the additional lands to be enclosed by the fence contain water or other desirable resources? Who benefits from those lands?

Derek Charles Catsam - 7/22/2004

that's a great statement Chris, that all should follow international law, or any law. Huzzah. Except that the law is being aimed at israel, not at the Palestinians. Israel facxes the burden moreso than Hamas. All should follow laws presuming that the laws are carried out and prosecuted justly. But what the ICJ does is selective prosecution. It is a prosecution predicated on an intense hatred for and bias against Israel (see Adam's post above for details of the UN's wretched record on Israel) and that blames them for the terror on its soil, if it recognizes that tyerror at all.
Beyond the fact that it is not actually a complete sentence, what does the attempted second sentence in your last paragraph even mean? Power can be used to enforce good as well as to prevent evil. So, your use of the caps lock key notwithstanding, I shan't be told by you that I can never claim a moral ethical or legal base just because my base disagrees with yours. You "moral athical or legal base' sits back and watches the slaughter of jews and then blames Israel for responding. you may think you are the final word on all things moral or ethical or legal. Fortunately the rest of us realize that this is sophistry, and that the selective appication of you beloved intellectual law reveals where the real hypocsrisy lies. Evil laws and evil court pronouncements are and should be denied, ignored, and fought. This goes for Nuremburg laws, Apartheid laws, Jim Crow laws. (Finally, a relevant invocation of apartheid!) So too does it apply when an international court decides to make pronouncements that are wrong. But unlike with the Nazis in Nuremburg, the National Party in South Africa and the police in the Deep South, all of whom had the power over the onerous laws they were enforcing, this time the power of righteousness can stop the onerous laws from enforcement. This time the jackboots who want to deny the rights of Jews to protect themselves face a far greater force lined up against them. Try to enforce the court's pronouncements if you want. But this time the good guys are saying never again. Not here. Not now.
dc

Derek Charles Catsam - 7/22/2004

This would seem damning. Good work Adam. I look forward to the Hate Israel crowd's rationalizatiopn for why this body's court should be seen as legitimate in the face of such scurrilousness.
dc

Derek Charles Catsam - 7/22/2004

Matt --
In point of fact the Zionist endeavor has not been the destruction of Palestinian society. Cite a source, given that Adam is 100% right about the major political parties in Israel. Come on, cite an actual source.
And no, honest people do not call it "apartheid." Not smart honest ones, anyway. People who understand neither South African nor Israeli history might. As a scolar whose area is primarily race, politics and social movements in the US and South Africa, and who also has a background with Israel, I can damned well tell you what apartheid is and what it is not.
dc

Matt Duss - 7/22/2004

1) The "Arafat's rejection at Camp David" myth has been authoritatively refuted by this point.
http://www.guardian.co.uk/israel/comment/0,10551,1263416,00.html
"In the first place it was not Arafat who blew up Camp David. Robert Malley, Clinton's adviser at the conference, and others have long since exhaustively debunked this for the almost ludicrously partisan myth it was. In their view, Barak himself contributed more to the collapse than Arafat."

This should also help:
http://www.nybooks.com/articles/14380

2) see above
3) I know that Israel's partisan's would rather that the damning facts of Israel's origins be swept under the rug, but the unfortunate fact is that those memories are very much a factor in Palestinian life. Asserting that they "change nothing" is callow and disingenuous.
4) That is true, unfortunately I'm sure the attacks will continue as long as the occupation continues.
5) It's amazing to me that you cannot see the reverse of your argument. As long as the occupation continues, as long as the destruction of Palestinian homes, the expropriation of land, and the daily brutalization of Palestinian men, women, and children continues, Israel will not have security.

Arnold Shcherban - 7/22/2004

Your latter "technical legal argument" is also misplaced and factually false.
There was no legal cause under the cease-fire agreement for the renewal of active hostilities in the form of the wide-scale invasion and regime change, in its interpretation by the wide international community.
Otherwise, the US would not be unwilling to bring this decision to the Security Council vote, or facing the huge protests all over the world, including on its own territory and in the UK.
Not one of the White House representatives, not mentioning this nation's political leaders has never mentioned that France or Germany or Russia or China
were in VIOLATION of any international law or agreement
based on their refusal to support pro-war coalition US-UK. And you, as everyone of us, know too well, that if that were so, the pro-war coalition would pound this
binding legal argument into its opponents ground.
Iraq withdrawed from Kuwait, Iraq did allow the UN
inspectors in and at every site they wanted to go and
check, Iraq was well on its way to dismantle the missiles that had been determined as a violation of the
existed agreement, Iraq had been already under the active military hostilies coming from the US and the UK planes, that bombed everything they would one-sidedly determine as a shadow of violation of the non-fly zone agreement and the air-defence on the part of Iraqis.
What the US was doing before the invasion is to piling
new and new demands onto Iraqis, the demands that never been part of the past agreements and resolutions
you refer to, in order finally to make it impossible for
them to comply with them all at the time. One of such demands, and most hostile and ridiculous (as it has been commented on numerous occasions by the observers from all over the world), was a demand to show they didn't have WMD's. (By the way, according to the latest information available, the Iraqis were ready to comply even with that outrageous demand, but this country somehow "missed" the opportunity to get its own demand satisfied.)
No one can show what they do not have.
This was the real legal and factual pre-agression situation.
But, I never expected to get you flipped on my side of
the polemics, or you even partially admitting the validity of my argumentation(as I mentioned before),
so I end my part of the exchange right here.

Matt Duss - 7/22/2004

In point of fact, the Zionist program since the 1940s has been the destruction of Palestinian society and the dominance of an invasive Jewish minority over the land's Palestinian inhabitants. Call that what you will. Honest people call it apartheid.

Matt Duss - 7/22/2004

Well, if you just want to play games, I can ask whether you think Israel's support for Hamas in the 1970s as an alternative to Arafat and the Fatah didn't help lead to the current situation?

Arnold Shcherban - 7/22/2004

I understand your maneuvre to avoid DIRECT response to
my last comments; alas, my understanding doesn't make
it ethically legitimate in honest polemics.

However, nothing I like more than to capitalize on my opponents allegedly strong argument (everyone can do it
on the weak one).
First of all, I've never ASSUMED in my reasoning on this board that either ALL UN or ICJ resolutions against Israel have been right or that ALL of them have been wrong.
If you can show me/us the opposite, I'll be very obliged.
Let me express the main point I was making in more concentrated form.
Everyone who knows something about UN and its institutions is aware of its voting make up: some of the countries tend to vote in more, so say, pro-Western sense, some - against it, some - alternate in their votes between Pro-western and another one, then again, some may vote more or less on the merits of the case in question, since they have no particular interest in the
voting results. On top of that every one of the members
of the UN and its institutions sometimes base their decisions purely on the national interests, ignoring the common interests of the international community.
So, statistically we have wide spectrum of the UN voting strategy and tactics.
The stated statistics considering, it comes as a great surprise, i.e. very difficult to explain, a clear and big voting slant towards anti-Israel UN decisions
and resolutions on the part of those traditionally pro-Western (what we call "democratic") voters (France, Germany, Austria, Sweden, Netherlands, Norway, Japan,
Spain, Portugal, Italy, even Great Britain; the latter just ocassionally so).
Now, everything(including the latter situation), as I already mentioned in my previous comments,
can be explained, if one doesn't care about the logical, factual and historical validity of their arguments, or
uses far-fetched logical constructions.
But my explanation route that does care about those things has always been consider as much more valid analytical alternative by unbiased historians.
Thus, your last argument against my explanation doesn't stand much of a chance.

chris l pettit - 7/22/2004

And we have to keep calling out ALL of those hypocrites on both sides of the issue who apply it when it suits them and ignore it when it does not...including the US, Israel, the PLO, the PA, etc.

The US is the world's superpower...lead by example.

By the way...all these agreements everyone is citing...they are non-binding on the parties...hence the term ACCORDS and not treaty. However...international law and human rights law still apply to all parties.

Here are the choices...everyone obey the inalienable rights of all humanity and buy into the international global community and then criticise and sanction those hypocrites who speak one language and act another...or we continue to do what most if not all posters here suggest...keep waiting for the other party to respect international law...enforce our political positions with power and might, therefore leaving law, morals, and ethics completely irrelevant in the conversation.

If you want to take the power position...go ahead. just NEVER claim that you have any sort of moral ethical or legal base and I don't want to hear anyone bitch about Israeli state terrorism or Palestinian terrorism because it is irrelevant since both sides are then using their power to enforce their political ideas. For that matter, all condemnation of bin Laden and his terrorists, Iran, and North Korea are out. you can't have it both ways gentlemen...will you choose international law for all and equity based on inalienable human rights and the global community or will you choose might makes right, we apply our standards when we want, where we want, forget about all law and return to an animal power mentality? This is what it all boils down to. And yes, this question is asked of Palestinian supporters, Iranian supporters, US supporters, Israel supporters, Chinese supporters...everyone. Do we believe in inalienable human rights and law applying to everyone, not just when we feel like applying what we want, or are we total hypocrites who decry our ability to reason and human intelligence in the name of power and self interest? I choose law and the belief that it applies to all...and that all have the obligation to obey it no matter what. You choose as you wish...

CP
www.wicper.org

Marc "Adam Moshe" Bacharach - 7/22/2004

1) "If the Palestinians do not get East Jerusalem, there will be no peace. As always, the ball is in Israel's court on that one."

You are mistaken. Barak offered Arafat E. Jerusalem in 2000 as part of the comprehensive peace deal. Arafat walked out of the meetings. Thus, the ball is as it was, in the Palestinian court. Using E. Jerusalem can no longer be an excuse for the terrorism, as it has already been offered- and rejected.

2) "I agree that they will not get all of the West Bank. They will get most of it, and they will be well compensated for the land Israel has stolen."

Again, see the 2000 deal. Israel offered the Palestinians 100% of Gaza, 97% of the West Bank, and financial compensation for the remainder.

3) "My point about Israel being founded by terrorists (a fact I'm glad to see you do not challenge) only went to your claim that terrorism is, in all cases, indefensible. Was it indefensible in the case of Zionist terror?"

Yes, it was, as it always is. Whether it is Nat Turner, the Irgun, or Hamas, murdering innocent men, women, and children as the sole target of an attack is never defensible. This changes nothing on the ground today.

4) "However, violence against the Israeli military and settlers, who, by positioning themselves as combatants in a war zone, can no longer be considered civilians."

I disagree with you but even if you are correct, much of the terrorism has been directed towards Israeli civilians living in Israel proper, that is, pre-1967 Israel.

5) "No, I don't think that all of Israel's history is undifferentiated, but I know that no real progress will be made until Israel and its supporters come to terms with the fact that a major crime was committed against the Palestinians in 1948, the effects of which are still being felt to this day."

Perhaps one day, Israel will confront that issue, but so long as the murder of Israeli men, women, and children remains a strategy by the Palestinians, and so long as the total annihilation of Israel remains the political goal of Hamas and others, there can be no talk of such reflective considerations. It would be like Britain considering the merits and demerits of Versailles in 1941, while their very existence as a sovereign entity was under attack. There will be time for such considerations, but not while Israel is under continuos attack.

Marc "Adam Moshe" Bacharach - 7/22/2004

In point of fact, no Israeli leader has ever called for, or attempted the genocide of Palestinians and if they had, the Iasraeli military would have been more than capable of carrying it out. It is neither on the platform of the two major political parties, nor has it ever been advocated by a major political leader.

The most popular Palestinian organization, Hamas, on the other hand, does indeed advocate the destruction of Israel, and has targeted innocent men, women, and children for execution simply for being born in Israel. Although I do not believe they have ever formally called for the extermination of the Jewish people, their charter calling for the destruction of Israel combined with their outspoken hatred for all Jews leaves little doubt what their intention is.

Marc "Adam Moshe" Bacharach - 7/22/2004

Chris,
You make the argument that the UN is not bias against Israel. There is more than enough evidence to refute this in my humble opinion. Please allow me the opportunity to present just a small example:

&#61608; Israel is the only country in the world that is not eligible to sit on the Security Council, the principal policy making body of the U.N. This situation violates the principle of the "sovereign equality of all member states" of the U.N. under Article 2 of the U.N. Charter.
&#61608; Israel is the object of more investigative committees, special representatives and rapporteurs than any other state in the U.N. system. For example, a special representative of the Director-General of UNESCO visited Israel 51 times during 27 years of activity. The Director-General of the International Labor Organization has sent a "Special Mission" to Israel and the territories every year for the past 17 years.
&#61608; The U.N. has repeatedly held "Emergency Special Sessions" focusing solely on Israel. Originally conceived in 1950 for emergencies like the Korean War, Emergency Special Sessions over the past 15 years have only focused on Israel. No Emergency Special Sessions were convened to examine the genocide in Rwanda, ethnic cleansing in the former Yugoslavia or other major world conflicts.
&#61608; The U.N. has never initiated any inquiry into Yasir Arafat and the Palestinian Authority's role in aiding and abetting terrorists, or passed one resolution condemning any terrorist organization operating against Israel.
&#61608; Some quotes on the official UN record that have never been retratced (or asked to be):
&#61608; “Is it not the Jews who are exploiting the American people and trying to debase them?”— Libyan UN Representative Ali Treiki.
&#61608; “The Talmud says that if a Jew does not drink every year the blood of a non-Jewish man, he will be damned for eternity.” —Saudi Arabian delegate Marouf al-Dawalibi before the 1984 UN Human Rights Commission conference on religious tolerance. A similar remark was made by the Syrian Ambassador at a 1991 meeting, who insisted Jews killed Christian children to use their blood to make matzos.8
&#61608; On March 11, 1997, the Palestinian representative to the UN Human Rights Commission claimed the Israeli government had injected 300 Palestinian children with the HIV virus. Despite the efforts of Israel, the United States and others, this remains on the UN record.


“The UN has the image of a world organization based on universal principles of justice and equality. In reality, when the chips are down, it is nothing other than the executive committee of the Third World dictatorships.”
— former UN Ambassador Jeane Kirkpatrick

Marc "Adam Moshe" Bacharach - 7/22/2004

The following is a statement by Dan Gillerman, Israel's representative to the UN:

Mr. President,
For years, if not decades, this Assembly has entertained the Palestinian representative's attempts to manufacture a virtual reality. An alternate world in which there is but one victim and one villain, in which there are Palestinian rights but no Palestinian responsibilities, in which there are Israeli responsibilities but no Israeli rights.

This persistent campaign has contributed little to the credibility of the United Nations, and nothing to the cause of peace. It has pushed the parties further apart. With each successive partisan initiative we are left to wonder how can the United Nations contribute to the welfare of both peoples, if it sees the suffering of only one?

Last December, despite the reservations of many States, including the members of the Quartet, the International Court of Justice was dragged into that virtual reality. To add the ICJ to the list of United Nations organs harnessed to this one-sided agenda, a grotesquely distorted question was devised that placed the response to terrorism on trial, but ignored the terrorism itself. The hope was to create so perverted a process that the Court would be compelled to ignore the suffering of innocent Israelis from terrorism, and the obligations of the Palestinian side to prevent it. Last Friday, sadly, that hope was realized.

The Israeli and Palestinian peoples do not live in that reality. While states are engaged in studying the Advisory Opinion, Israel is burdened with the heavy responsibility of saving the lives of its citizens from the most brutal of terrorist campaigns. We live in the reality in which, just two days after the opinion was issued, terrorists belonging to Yasser Arafat's Fatah faction attacked a commuter bus in Tel Aviv, killing one woman and injuring 34 others. In a reality where after such a horrific attack, Arafat can make the sickening accusation that Israel orchestrated the murder of its own citizens, and have it pass without comment. This is the reality in which we are seeking out partners in peace, and trying - despite all the difficulties - to create conditions in which both sides can live up to their responsibilities and realize their rights. The path to peace does not lie in The Hague or in New York, it lies in Ramallah and Gaza, from where the terrorism is directed.

We can all agree that our goal must be a situation in which no fences between Israelis and Palestinians are necessary. But delegates are deceived if they think, even for a second, that that goal can be attained by considering the obligations of only one side.

Mr. President,
As you will recall, Israel together with a large number of States did not support the request for this advisory opinion. Like the members of the Quartet and countries such as the United Kingdom, Cameroon, Italy, Canada, Australia, Germany, the Netherlands, and others, we submitted a detailed document to the Court noting that the request was inappropriate, a misuse of the advisory opinion procedure and damaging to the Road Map. For its part, Israel could not grant legitimacy to this tainted procedure, or be a fully engaged party in what we knew to be a counterproductive and harmful initiative. We continue to believe that it was wrong for the General Assembly to put the Court in this position.

Simply put, the Assembly put the wrong question before the wrong body, and in so doing made it more difficult for the Court, even with the best will in the world, to reach a fair, balanced and helpful response. As noted by Judge Kooijmans of the Netherlands, by politicizing the Court, the Assembly turned this judicial organ into an actor on the political stage. By being drawn into a partisan procedure, the Court has become the latest victim of the Palestinian political campaign, and it is the worse for it.
All those States that expressed concern about this misuse of the advisory process should now be wary of allowing this process to dictate the international agenda. There are already worrying indications that the request last December was a test case, a precedent for further abuse of the Court. It would be a grave mistake to allow this essentially political maneuver to undermine the prospects for progress on the ground. And it would be equally dangerous for the Assembly's actions to be viewed as rewarding such a misguided and politically motivated recourse to the Court.

Key States also warned that isolating one issue out of a complex conflict reserved for political negotiations could only lead to a distorted result. They warned of the lack of legitimacy inherent in a process that placed the victims of terrorism on trial, but spared the murderers of any judicial scrutiny. And they warned that any opinion reached as a result of such a skewed process could only lead to politicization and the misrepresentation and misuse of the law with ramifications well beyond the confines of our conflict. These warnings were all too real, but they were not heeded.

Israel has respect for the institution of the International Court of Justice and we believe in its ideals. We represent a people that knows all too well the cost of living in a society in which individuals are not protected by the balanced application of the rule of law. That is perhaps why we are especially disappointed by the exploitation of the Court in this case. We will not be the first State, and certainly not the last, to have differences with the positions expressed in an opinion of the Court, its historical and factual analysis or central aspects of its reasoning. We note that other States too, as well as several judges on the Court, have serious disagreements with key portions of this opinion. This is not the time or the place to explain those differences in detail. But we are compelled to address a number of aspects of this process that bear directly on the deliberations of the Assembly.

Israel is dismayed that in the 60 plus pages of the opinion, it was deemed inappropriate to seriously address the brutal terrorism that innocent Israeli civilians are facing, or the ongoing refusal of the Palestinian leadership to bring that terrorism to an end. Those crimes are the very reason that the fence is being erected, and the Court's silence in this regard is deafening. While realizing the constraints placed on the Court by the distorted question and the partial dossier placed before it, we find this glaring omission legally inexplicable and morally inexcusable.

We note the deep concerns expressed by Judge Higgins of the United Kingdom, Judge Owada of Japan and others, about the failure to declare in the clearest terms that Palestinian terrorism directed at Israeli civilians is a violation of the basic tenets of international humanitarian and human rights law. We agree that this failure fundamentally undermines the balance and credibility of the opinion.

We also share the concerns of some of the Judges on the Court regarding the selective reliance on facts and secondary materials, and a historical presentation which, to quote Judge Higgins of the United Kingdom, was "neither balanced nor satisfactory". A presentation that addresses the League of Nations Mandate but ignores the Mandate's express recognition of the Jewish peoples right to self-determination in their ancient homeland. A presentation that addresses the wars between Israel and its neighbors as if they materialized out of thin air, rather than as a result of deliberate acts of aggression designed to wipe Israel off the map.

We share too the deep reservations about a narrow statement in the opinion that could read as though it questions the right of States to self-defense against terrorism, despite all the evidence in law, Security Council resolutions and State practice to the contrary. There is no justice and no law in such an interpretation. It is not a rule that States can live by. Israel is occasionally urged to put more faith in international institutions and actors, to trust in their objectivity and their fairness. We are told to have faith that the political manipulation of their noble goals will not be tolerated. What will we tell our citizens now?

Mr. President,
Israel recognizes that, like every measure that tries to prevent acts of terrorism emanating from civilian areas, the security fence raises complex legal and humanitarian issues. Accordingly, the fence and its route are under a process of constant review and change. This process includes giving every affected individual, Palestinian or Israeli, the right to petition Israel's Supreme Court, and numerous such petitions are pending. Indeed, Israel's Supreme Court is one of the few courts in the world, and certainly the only one in the region, that vigorously applies international law to examine the domestic actions of its own government.

It is a fiercely independent judicial institution that has earned the respect of jurists and lay people around the world. And it is probably the only Court in the entire Middle East in which any Arab can challenge his own government's actions and be assured of justice, rather than jail.

On June 30th, in response to one such petition, Israel's Supreme Court issued a landmark ruling on the security fence. Relying on specific provisions of international humanitarian law, the Israeli Supreme Court recognized Israel's authority to erect a fence as a defensive measure against terrorist attacks. It affirmed also that had the fence been built along the so-called Green line - an arbitrary line that has never served as an international border - that itself would have been evidence that the route was being determined by inappropriate political considerations rather than justifiable security ones.

At the same time, the Israeli Supreme Court stressed that the fence must be carefully balanced against the rights of those affected by it. The court, in a thorough and rigorous judgment, laid out a detailed proportionality test by which such a balance could be reached. It went on to find, by reference to that test, that sections of the fence required rerouting.

There are, of course, important differences between the ruling of the Israeli Supreme Court and the ICJ's Advisory Opinion. The Supreme Court was petitioned by Palestinians and Israelis who wanted practical solutions on the ground; the ICJ was asked a question as part of a political and manipulative campaign. The Israeli Supreme Court sought to find a balance between competing rights; the ICJ was asked only about the rights of one side. Perhaps most important, the Israeli Supreme Court had before it detailed and specific evidence, including witness testimony, on all aspects of routing, its security rationale and associated humanitarian effects; the ICJ was supplied only with partial, outdated and often misleading information. Finally, of course, while the opinion of the International Court is advisory only, the Supreme Court ruling is binding upon Israel.

As always, Israel as a country that respects the rule of law, will fully comply with decisions of its Courts. Following the judgment of the Israeli Supreme Court, the Government announced that it would not only re-route those parts of the fence that were the subject of the petition, but re-examine the entire routing of the fence so as to ensure that it complies with all the requirements of international law. That re-examination has already led to decisions to reroute large portions of the fence. As Israel's Court declared, and as the Government of Israel fully accepts: "Only a Separation Fence built on a base of law will grant security to the State and its citizens. Only a separation route built on the path of law will lead the state to the security so yearned for".

And yet, in the virtual reality created by the General Assembly's request none of these facts were taken into account. Despite Israel's official objections, there was extensive reliance on a dossier that not only contained inaccuracies and critical omissions but misrepresented Israel's legal position. The Palestinians and certain other parties appearing before the Court grossly distorted the nature of the fence, its purpose and its actual route.

No account was taken of the terrorist threat, no account was taken of the significant changes that continue to be made to the route of the fence; no account was taken of the binding decisions of Israel's Supreme Court, no account was taken of the fact that humanitarian arrangements have been vastly enhanced and continue to be improved.

The views expressed by the ICJ do not relate to the legal authority to erect the fence in principle, but to a "specific course" which the Court has presumed to exist by relying primarily on the selective and one-sided information with which it was supplied. The Court has reached its opinion on this specific question "on the material before it" - but the material before it refers, in large measure, to a fence that does not exist. Indeed, even if the information before the Court had been accurate when presented, it does not reflect the actual route of the fence that is under consideration today.

Examining the legality of the route demands a detailed proportionality assessment. It requires specific knowledge of topographical, security, environmental and humanitarian considerations at each section of the fence. It requires a thorough appreciation of the precise scope of terrorist attacks that Israelis face and the manner in which the specific route chosen has proven an effective means for thwarting those attacks. Such analysis cannot be based solely on reports about the alleged humanitarian impact of the fence - which are themselves outdated and alarmingly inaccurate. As Judge Buergenthal notes, in the absence of such a detailed and serious examination, it is simply impossible to reach definitive legal conclusions.

We do not believe so complex an issue can be addressed with so little opportunity for forensic examination. We do not believe that definitive conclusions can be reached on so obviously inadequate an evidentiary record. The opinion of the Court does not rule out the authority to erect a fence in the West Bank. Indeed, it recognizes that military exigencies and security imperatives could justify the erection of such a fence. But it fails to properly examine those exigencies. And its opinion relates only to a phantom route that bears little resemblance to the route actually under review. It should be considered accordingly.

Mr. President,
We are not impressed by lectures from Palestinian spokesmen about respect for the rule of law. We have all witnessed first hand the extent of the Palestinian leadership's respect for law in its support for a brutal campaign of terrorism that violates every basic legal norm. We have learned of their concern for human rights and humanitarian law, when rejoicing over the murder of innocent citizens in terrorist attacks, not only in Israel but around the world, or when plundering international donor money intended to benefit their own people.

We have heard similar self-righteous rhetoric from some other regimes in our region. Those enraged when Israel seeks to protect itself under extremely difficult conditions, but unable to muster a word of condemnation for the systematic and shocking ethnic cleansing underway in the Sudan, or the violations of basic rights and freedoms in their own countries. This rage and concern, this spirited defense of the rule of law, would carry a little more conviction if it were a little less self-serving. For too many regimes in the region this declared adherence to the rule of law is advanced only when politically expedient. The cause of peace and the lives of people in the region would be far better served if these States actually held themselves to the standard to which they demand Israel alone to adhere.

For all those that speak so hypocritically of "compliance", "the rule of law" and "outlaw states", let me say this. Are there laws for Israel, and different laws for everybody else? We await to see a supreme court in any of these regimes call on its authorities to alter their security plans, let alone see the authorities abide by such a ruling. We await an advisory opinion or even a single UN resolution that addresses the legal obligations of these regimes to end terrorism, stop hate-filled incitement, and respect the human rights of their own citizens, let alone those of other States.

These regimes have the gall to speak of sanctions for a measure that saves lives, we await sanctions for the terrorism they sponsor that takes lives. If these regimes, or the Palestinian Authority - where only this morning armed militants kidnapped the head of their own police force - are entitled to lecture anyone about the rule of law or accuse others of being outlaws we have reached a point where the inmates are running the asylum.

Israel recognizes that it has responsibilities. But it is not alone. The Palestinian side calls on Israel to comply with a non-binding opinion. We call on them to comply with their binding legal obligations. There is after all, one straightforward measure that would lead to the removal of the fence - and it is not more resolutions adopted in UN halls. It is, simply put, for the Palestinian side to abandon terror as a strategic choice and comply once and for all with its obligations to fight terrorism and incitement. As controversial as the fence may be, one issue is beyond controversy: the terrorism that made the fence necessary is not only a grave violation of international law, it is the enemy of the Israeli and Palestinian peoples, and its eradication is an indispensable step to lasting peace.

Mr. President,
Throughout this process, there have been excited attempts to present the advisory opinion as something that it is not - a binding verdict that must be complied with and that necessarily dictates the action of the political organs of the United Nations. This assertion is simply inconsistent with the actual legal status of such opinions as non-binding under international law and runs counter to the history of their subsequent treatment by UN organs. The record of United Nations bodies is replete with examples of States, from every continent and regional group, that have taken serious issue with aspects of an advisory opinion.

Many states have voted against resolutions that, like the draft resolution before us today, take the advisory opinion out of their political context. In some cases, the Assembly has chosen merely to take note of, rather than expressly endorse, the opinion. And in most cases, the UN membership has recognized that its political organs are compelled to take broader political and strategic considerations into account, and should not be limited in their consideration to the narrow treatment of isolated legal issues.

Given the controversy surrounding the request for this advisory opinion, every one of these considerations apply in this case. If the number of States objecting to this abuse is not enough, if the serious criticism of the opinion by numerous Judges on the Court and by a growing number of legal experts around the world is not enough, if the obviously self-serving nature of the present draft resolution is not enough - then surely the imperative of advancing the Road Map should itself allow for no other conclusion.

Mr. President,
In the months since the opinion was requested one thing has become abundantly clear: the fence works. In those places where the fence has been erected it has succeeded in making it far more difficult for terrorists to take innocent life and sabotage the peace process. Scores of suicide attacks have been thwarted the latest just two days ago. Hundreds of lives have been saved. There has been a dramatic reduction of over 90% in successful terrorist attacks, a 70% reduction in citizens killed, and an 85% reduction in the number of wounded - all of which can be attributed directly to the security fence.

Listen to Tawfiq Karaman, City Manager in Umm el Fahm who said "God be blessed, the fence ended the parade of terrorists through this city".

Listen to Sami Masrawa, an Israeli Arab injured in Sunday's bus bombing: "A month ago I went to protest the fence, now I believe it can only strengthen us". And as Israel is able to protect its citizens by more passive means, it has also been possible to remove road blocks and withdraw troops from Palestinian areas, improving security, humanitarian and economic conditions for thousands of Palestinian residents.

By closing the avenues to terror, we can open the path to peace. As the Quartet and many other States have recognized, there is now a genuine chance to restart the Road Map peace process as a result of the disengagement plan. That opportunity has been created by the security benefits of the fence. It must not be squandered.

The fence, and its actual rather than imagined route poses no threat to the emergence of a viable and democratic Palestinian State as part of the Road Map process. Indeed, by helping take terrorism out of the equation, a negotiated two-State solution becomes possible. As Israel has repeatedly declared, the fence does not affect the legal status of the territory, and as has been done in the past it can be moved or removed to accord with any political settlement. As Prime Minister Sharon has pledged, "the fence is a security rather than political barrier, temporary rather than permanent, and therefore will not prejudice any final status issues including final borders". Above all, the fence is reversible. Lives taken by terrorism are not.

Rather than accepting every facile allegation as fact, we would urge delegates to see not just the response to terrorism but the terrorism itself. The Assembly has already expressed itself on the issue of the security fence, but it has yet to address the terrorism that necessitated it. It is time for the Assembly to ask some different questions. And it is time to ask yourselves - seriously - what steps can now be taken to bring the parties closer together, not push them even further apart.

The General Assembly has a choice today - to correct the error made last December or to compound it. The Palestinian side hopes that you will preserve the comic strip narrative of victim and villain that they have labored so intensively to create. That is why they were so angered 4 days ago when the Special Representative of the Secretary General had the audacity to suggest that both sides had to live up to their obligations. But that comic strip story can produce only paper, it cannot produce progress and it cannot produce peace. By ignoring Palestinian obligations, the Assembly only sets back the Palestinian cause. By reinforcing a sense of privilege without a sense of responsibility, the Assembly adopts a patronizing agenda that undermines the creation of a democratic Palestinian State at peace with its neighbors in the context of permanent settlement.

Only the political process laid out in the Road Map - that sets out mutual rights and mutual obligations - can achieve real results. And this Assembly must decide whether it lives in the virtual world created by Palestinian draft resolutions, or in the real world. It cannot live in both.

The advisory opinion of the ICJ took place in a virtual reality but it did not take place in a vacuum. On the ground, the launching of a bold and serious initiative of disengagement from Gaza and parts of the West Bank carries the potential to re-energize the peace process. That is where our attention must be focused. We are currently engaged in consultations with States in the region and with Quartet members in order to create conditions in which the disengagement plan can help facilitate genuine progress and the realization of a viable two-state solution in the context of the Road Map.

Surely we can agree that this is the goal: an end to violence, terrorism and incitement, as required by the very first clauses of the Road Map. An end to suffering on both sides. A commitment to peace, dignity, and prosperity for both peoples based on mutual recognition and mutual compromise. All this can come only by a fulfillment of the obligations agreed to by both sides, so that temporary fences of security can quickly be replaced by permanent bridges of peace.

If the General Assembly wishes to make a relevant and constructive contribution to this noble endeavor we must keep our eye on this prize. We must avoid adopting one-sided, diversionary and divisive resolutions, inspired by the partisan interests of one party to the conflict and thus, of necessity, deficient in their impact and their claim to legitimacy.

The barrier between Israelis and Palestinians is not the security fence, but the terrorism that made it necessary. Were it not for that terrorism, a viable two State solution would have emerged long ago. Palestinian terrorism seeks not the end of occupation but the end of Israel. The events of recent years and the hate-filled rhetoric of the terrorist ring-leaders tells us as much. As long as the Assembly averts its gaze from that stark reality, it does the cause of peace a great disservice. The people in the region deserve, and in fact, demand better. We urge you to heed their call.

Marc "Adam Moshe" Bacharach - 7/22/2004

I have returned to this site only to find so many interesting and intelligent points, I cannot possibly respond to all as I would like. However, I thought I would try to add some additional thoughts of mine on this issue.

The question of the article is "Does the World Court's Condemnation of Israel Matter"? My answer is no it does not, and here is why.

If a law is passed that applied equally to all people, but only one group of people were ever prosecuted for it, is the law just? Of course, we had laws like that in the US for a long time now and a government that has the coercive power to enforce it, but the UN has no such coercive powers, other than the agreement of other states to assume that burden.

There has been a lot of discussion about what international law says about Israel, but that argument has little traction to me. When international law is used as a political tool consistently against one party and consistently in ignorance of everyone else, such law is void in its credibility.

I have read on this post that Israel violates almost all international law! A country that allows a potentially hostile minority full voting rights, seats on the Knesset, free press to advocate terrorism, and a supreme court that orders the military to redirect a barrier for humanitarian concerns of its enemy is guilty of violating almost all international law. In the meantime, the genocide in Sudan, in Congo, and a very striking contrast to occupation in Chechnya, to say nothing of Palestinian human rights, goes either ignored, or justified. While some might claim in all honestly and objectivity that they condemn those places too, the fact remains that international law does not, at least in any way that can seriously challenge Israel.

My point here is that international law should be treated like domestic law. When it is valid and fair, and equally applied, all must obey it. However, as Dr. King made clear, when a law is void of any equal treatment, when the law is simply used as a means of targeting a certain group of people, it cannot, and should not be followed.

There are reasons why Israel is building the barrier where it is, and those reasons can be debated on their merits. Perhaps Israel really is doing it as some insidious plot to steal more land, or perhaps the green line route simply cannot protect Israel from being shelled by higher peaks. This is the real issue worth discussing.

chris l pettit - 7/22/2004

Maybe this will get us off on another issue, since as of the last 24 hours I have seen little discussion of the legality of the issue discussed, and little offered other than ideological rhetoric and propaganda from both sides of the conflict (who I should repeat are both in the wrong). This link has to do with the paucity of actual knowledge about the Israel/Palestine conflict on major university campuses.

http://www.cbsnews.com/stories/2004/07/18/opinion/fenton/main630386.shtml

Bias of academics?

By the way...to clear up any misperceptions...my comment about the class I am lecturing was in acknowlegement of the fine scholars on this sight and the views that they could bring to the table. I lecture my classes as if they were conversations between myself and the students...as equals. I refuse to be caught up in the god syndrome that is way too pervasive in todays academics. It was not meant to be condescending in any manner, actually quite the opposite. Any misperceptions stem from the readers assumptions and my inability to be clear on the issue.

DC, the reason I bring Hitler and Stalin into the discussion is because the legal philosophy behind the Nazi Empire as well as Stalin's Soviet Union was the absolute positivism and disregard for the international community you are stressing. They proceeded under their own moral systems, without regard for their own moral faults. This is also important to Mr. Simon's argument that he supports Israel on moral grounds. TO be frank, his vies are his own and totally allowable, but he has no right to impose them on the rest of the international community when that community is overwhelmingly in opposition to those views (for various reasons). Again I must stress that law was established to provid the most objective way to overcome biases and prejudices that arise from individual moral, cultural, political, and historical biases. This is why I am frustrated at the lack of recognition that the legal opinion is valid and correct, and at the willingness to adopt the absolute positivism and "we will do what we think is right because we have the power to do so" attitude that is an absolute affront to inalienable human rights and the international law that supports them.

I will follow this up shortly with an article regarding US and Israeli actions when held up t the standards articulated by our own US judges in the Nuremberg tribunals that are mentioned in the above threads. I again expect much the same reactions from ideological bases, but the legality under international law standards cannot be disputed.

Mr. Simon, I appreciate the civil discourse and respect your viewpoints. You make compelling arguments that, although I may disagree and see as contradictory, I recognize as being simply a method of attacking the problem from a different starting point.

By the way...DC and Mr. Simon...just to clarify...GA Resolutions can be binding IF there is a Security Council issue that is being held up by a veto...but ONLY in the case of a Security Council issue. Strangely, the current judgment deals with this, if you care to (re)read the decision. The Clinton administration attempted to overcome this issue during the Balkans conflict, and was unsuccessful. It is a legal procedure matter, but to be clear...there are situations (not often occurring) in which a GA resolution can be binding.

CP
www.wicper.org

Jonathan Dresner - 7/22/2004

No, I'm talking about institutions, not attitudes, though making institutions work does require some, shall we say, faith in the system. I don't have a concrete set of guidelines for a truly functional World Court/Police, but I suspect that we will have one, someday.

There are examples of large-scale multi-state integration, some of them on a near-world scale. The EU is a pretty good example of a vigorous attempt to federalize previously independently sovereign states. China, for all its flaws (and they are myriad) includes several "autonomous zones" including Hong Kong, dozens of minority populations and dialects, and covers about 1/5 of the world's population under one (decreasingly ideological) government. NAFTA, and the rising tide of FTAA, suggest that economic and social integration can precede political integration. India, another 1/6 of the world's people, is an increasingly competent and integrated and democratic government.

These are not Pax Americana models I'm talking about here, nor UN "reforms", which makes it harder to imagine, perhaps. But there are things in our present and past which suggest to me that we will figure it out eventually.

E. Simon - 7/22/2004

Apparently you have enough red herrings and hasty conclusions available to keep me drawn on an intractable tangent for quite some time, but I've gotten bored. I will leave with you an offer to ponder why you think Arafat's strengthening of Hamas during the Oslo years as if he were an innocent bystander didn't help lead to the situation that it's currently in. Other Arab heads of state have had much to say about this as well as his unfathomable behavior at Camp David. Further, his popularity, to whatever extent it can be gauged, seems to increase exponentially when he's under attack by the IDF, only to plummet to oblivion when his self-perpetuated crisis cools off and the Palestinians realize that with his symbol of victimhood/martyrdom gone, he's just as useless as he was before.

We will not agree on your insistence that a democracy change to accomodate the despotic whims of tyrants. Sharon will go once the Israeli public no longer need someone obstinant enough to stand up to Arafat and his "machinations," as Colin Powell refers to it.

Derek Charles Catsam - 7/22/2004

No, Mandela's (right) actions in 1961-1962 does not make him right now about the Middle East any more than James Meredith's (right) actions at ole Miss in 1962 made him right when he joined Jesse Helms' staff. You have such an ahistorical grasp of things here that i am afraid this is getting hopeless. there is no parallel between what mandela did and what he says about barghouti. What I was talking about specifically is actually engaging in terrorism. And has Mandela advocated actions against civilians in the Middle east? If so, cite please.
Israel has stolen land from no one. They took land as a protective buffer in a war declared upon it. How it was "stolen" is beyond me.
If Palestinians don't get East Jerusalem there will be no peace? On this one, you are probably right, and on this one I say, buckle in, because it is unlikely to happen. I am not saying that is right, but I am saying that is the reality, at least in the foreseeable future.
Your argument about violence against the Israeli military is probably acceptable. But not about settlers. They are unarmed civilians who are living in lands that the israeli state controls in most cases with the permission and encouragement of the israeli state. Murdering them is just that -- murder. I am sure you find the murder of the pregnant mother a few months back a glorious example of revolutionary activity. It was not. it was murder in cold blood. And in any case, the Palestinians are not simply attacking military targets, as there are none of those in the cafes of Tel Aviv and the bus stops of Jerusalem. This is where the Intifada has largely been waged. if it were just against the IDF, believe me, they can more than take care of themselves.
Wait a second -- what was the "crime" in 1948? Are you arguing that Israel does not have the right to exist as a state? In which case, everything else you have said here is invalid, inasmuch as the whole argument was about the validity of the UN and the ICJ, the former of which of course established Israel. Of course that was when the UN was a legitimate body. No more. Yet another example of change over time. But I do want to hear more about this 1948 cime. I also am curious against whom the israelis committed this crime, since the lands now in dispute were not Palestinian but were rather controlled by Egypt (Gaza) and Jordan (West Bank). So what was this crime in 1948? establishing a state with the UN's support/ in the wake of what happened during WWII? This should be rich.
dc

Derek Charles Catsam - 7/22/2004

Um, wrong. it is more than a fraction of Palestinians -- it has been the PLO's official stance for most of its existence, and as behaviors have shown in recent years, the lipservice declared otherwise is nonsense on the ground. It has been the stance of most of the Arab states. Most importantly -- it was the policy of those states and nonstate actors in 1967, when israel took control of the lands. They should be preparing for a two state solution. But not until they have an honest partner for peace who will make sure the killing of civilians stops. Period. That partner does not exist now. The rest of this moral relativism simply falls apart in the face of actual historical evidence. "We will drive the Jews into the sea." I'd say the Jews had heard quite enough of this sort of talk and had seen the attempt to enact it to take such talk as mere idle prattle. Especially as the troops amassed on their border.
dc

Derek Charles Catsam - 7/22/2004

Well, Thank God we have Mr. Clarke to come in and clear things up for us. Oh wait. He's wrong on most of what he says. Never mind. Let's see, where to start.
The US needs someone else's say so to declare that we are a full member of the international community? This might win the award for dumbest thing said on HNN all, well, unfortunately only all day. I think that on the whole the United States' status in the world community was probably pretty well established in the wake of the century's two world wars. But that is just me. It also might help to point out that the very international community we are allegedly not in very good standing in seems to rely on us a great deal for economic and military support. We are not perfect. But in the ranks of nation states, if we are not "part of the international community" there is no international community of which it is worth being a part.
And I love the parenthetical acknowledgment that, oh yeah, the palestinians have a few problems too, as if it were not that mere parenthetical aside that is at the heart of all of this. It is dumbfounding to me how far people will go to paint Israel as the bad guys in an intifada that has been declared against it, and how they will take the side of the Syrians, Hamas, and others before Israel.
Now given that I have been one of the supporters of Israel here, I am going to have to challenge Mr. Clarke a little bit. For you see, those of us who have been making rigorous but strong arguments for israel's side -- Mr. Simon and Mr. Moshe spring most quickly to mind -- deserve a little more than to be condescended to by Mr. Clarke. I think our side has done rather well in this little fight. Indeed I'd say we are winning, despite Clarke's noble attempt to come in late and deliver the knockout blow. And all three of us, if not here than elsewhere, have also been critical of Israel where necessary, while still realizing that in the cauldron of hatred and fascistic tyranny that is the Middle East, Israel is the only liberal democracy. The only one. So perhaps before you simplistically and rather cravenly label us as "kneejerk American supporters of Israel-right-or-wrong" you ought to bother to read what we right and to take our arguments seriously. I mean, we realize that you have been sitting back and waiting to come in from on high to pronounce virtue and dispense wisdom, but for several of us you can go right back to where you came from if this is the enlightened nonsense you are going to bring to the table.
And why, precisely, must israel recognize the 1948 borders in light of 1967, after which even the UN declarations never established that Israel had to return to the pre-67 borders, but rather had to eventually withdraw from territories -- not "the territories," and not "all territories." This is not simply semantics -- the US made sure that the language read as it did knowing full well that the onslaught against Israel and the pronouncements of israel's neighbors in 1967 changed things on the gorund.
And why, thus far, is no one recognizing the Israeli courts? Why is no one acknowleging that Israel has responded to that judgment (brought as the result of a Palestinian bringing the case -- I'd love to see that in, say, Syria) and has changed much of the course of the Wall? Why is no one acknowledging that since the building of the extant parts of the wall, terrorism is down by some 90% I have a few guesses -- acknowledging israel responding to the courts is to acknowledge the diifference between israel and those who would destroy it. Acknowledging Israel being safer acknowledges the ongoing efforts to murder women at cafes, children at bus stops, and the elderly out shopping.
And gee, I wonder why the East Germans were circumscribed in their efforts. I'm sure stupider analogies have been drawn than this one comparing Germany during the Cold War in which, you know, the Americans might well have had something to say about the course of a wall in West Berlin, and modern day Israel against which an intifada has been ongoing since september 2000. I just have yet to see that analogy.
Oh, and here's a hint -- Given that the Jews of Israel have to live amidst the Arabs in the Arab world, perhaps we can get off of this "Palestinians as jews of the Arab world" nonsense. (Pop quiz - in which state in the Middle East can Arabs vote for their parliamentary representatives and serve in parliament? Yup -- Israel. Hmmmm.) At the same time we might remind folks that in 1967, the West Bank and Gaza were not lands controlled by the Palestinians. They were in fact controlled by the poor, hapless victims Jordan and Egypt respectively. Nations that went to war with Israel and lost. And yet no one is focusing on Egypt and Jordan (and Syria and Lebanon) here because clearly, Israel must be the bad guys. Again -- israel has not taken palestinian lands. It has taken Jordanian and Egyptian lands. that ought to change the calculus at least a little. Ought, but of course won't.
But that's just my kneejerk American supporter of Israel right or wrong argument.
dc

Matt Duss - 7/22/2004

Excuse me, but what does cash on hand have to do with infrastructure, to say nothing of the possibility of declaring a Palestinian state? I agree that there is broad support among Palestinians for reform, but the chaos that has resulted from the constant Israeli incursions has made such reform extremely difficult, to say nothing of the support it continues to create for Hamas.

For instance, the IDF have consistently made it a point to destroy records and computer hard drives while "hunting for terrorists" in the occupied territories. I'm talking about the destruction of school records, driving records, employment records, voter registration, etc., all with the goal of making Palestinian civil society impossible, which has, of course, been Sharon's stated goal for most of his career.

E. Simon - 7/22/2004

It's good to see you back here. Your cutting knack for word economy is especially appreciated at this point.

E. Simon - 7/22/2004

With the billions that Arafat's embezzled from funds earmarked for humanitarian aid, along with controlling local manufacturing monopolies, he's got more than enough to exercise basic functions of government, or more to the point, pseudo-government. There is a groundswell of support among the Palestinian population and their legislature (despite, like Arafat himself, having only been once-elected) for political reforms, which encompasses proper oversight of financing. Thanks to the American initiative and foresight in demanding reform, progress has already been made in the promotion to power of arguably the first reformer who actually seems to prioritize according to true Palestinian interests, and has been getting results for his persistent and tough stance - Finance minister Salam Fayed. It will be that much harder to reward cronies with Mercedes and luxurious houses, and yet Arafat still seems to have enough cash on hand and clout to shut up those not brave enough to quibble with him outright and risk assassination.

E. Simon - 7/21/2004

Yep. Someday somebody will get the bright idea to take their training wheels off and then we'll watch them do some real damage.

Matt Duss - 7/21/2004

Where did I mention anything about GDP? I'm talking about the basic infrastructure necessary for exercising political authority, which the P.A. does not have at this point. Off topic, indeed.

I won't try and defend Arafat here, but it should be pointed out that Sharon's attempt to delegitimize him has only strengthened Arafat's more radical Islamist opposition, and one has to suspect that this was, in fact, Sharon's goal, as it allows him to unilaterally draw the boundaries of Israel while claiming to have "no partner" for peace.

E. Simon - 7/21/2004

"Almost," eh, but not quite! That's right, Sharon has something called a "political opposition." It allows for a fuller consideration of diplomatic and foreign (and domestic) policy options, and the pressure to consider them more seriously. Unlike Arafat, Sharon hasn't killed off his opposition. No wonder he looks worse in your eyes.

Your second single-sentence paragraph has no foundation. If a specific GDP or per capita GDP threshold were some kind of requirement for statehood then we would have to revoke the membership status of about 1/3 the U.N. The infrastructure of which you speak was built almost entirely through the gains of Oslo. The responsibility for its destruction lies with those who initiated the conflict in 2000.

I believe that the State of Israel is a different political entity than the Yishuv, but feel free to continue conflating. I make no promise to listen. Your fishing trip has brought us way off topic, as is usual when repeating attempts at reviving deflated arguments. They've been discussed over and over in recent years. There are more interesting things I have to do.

Matt Duss - 7/21/2004

If the Palestinians do not get East Jerusalem, there will be no peace. As always, the ball is in Israel's court on that one. I agree that they will not get all of the West Bank. They will get most of it, and they will be well compensated for the land Israel has stolen.

My point about Israel being founded by terrorists (a fact I'm glad to see you do not challenge) only went to your claim that terrorism is, in all cases, indefensible. Was it indefensible in the case of Zionist terror?

I agree that violence against civilians is wrong. (Unfortunately it is also effective, as I believe we simply would not be discussing the possibility of a Palestinian state right now were it not for Palestinian terrorism.) However, violence against the Israeli military and settlers, who, by positioning themselves as combatants in a war zone, can no longer be considered civilians.

Your reference to Mandela and Mkhonto we Sizwe is a non-starter, given that Mandela himself said of Marwan Barghouti: "What is happening to Barghouti is exactly the same as what happened to me. The government tried to de-legitimise the African National Congress and its armed struggle by putting me on trial."

No, I don't think that all of Israel's history is undifferentiated, but I know that no real progress will be made until Israel and its supporters come to terms with the fact that a major crime was committed against the Palestinians in 1948, the effects of which are still being felt to this day.

Matt Duss - 7/21/2004

Your rape analogy, tidy as it may be, falls apart when one recognizes, as one must, that the child in this case is also the rapist.

It's simply silly for you to assert that Arafat could proclaim a Palestinian state tomorrow, given the state of Palestinian infrastructure, which has been destroyed in accordance with Sharon's long-time goal of making such a state impossible.

BTW, I have no love for Arafat, he's almost as much of an obstacle to peace as Sharon.

Matt Duss - 7/21/2004

No, I do not acknkowledge that. I acknowledge that there is a faction on the Palestinian side which has called for the eradication of Israel, just as there is a faction on the Israeli side which calls for the eradication of the Palestinians. The difference is that it is a matter of Israeli policy, i.e. the settlements, to bring this about.

Derek Charles Catsam - 7/21/2004

Let's assume that neither side is committing genocide. Let's, however, acknlowledge that one side in this equation has explicitly called for the eradication of the Jews and Israel. Moral confusion indeed.
dc

Derek Charles Catsam - 7/21/2004

Matt --
That I think the israelis eventually will have to negotiate with the PLO does not mean that they need to do so as currently configured. Arafat is not an honest or legitimate broker -- he has proven as much time after time.
I agree, I ought not to have used occupation in quotations, except inasmuch as when this is all resolved, the Palestinians are simply not going to get the entire West bank and they will not get Jerusalem, and I will not accept arguments that that is an "occupation."
Glad to see I don't approve of terrorism? I believe that my articles and other writings on the issue of terror are plain and clear with regard to the Middle East, South Africa, and elsewhere. That you are coming late to the game probably does not give you much right to use a tone like "glad to see you don't approve of terrorism" any more than I should assert that you are a Jew hater or anti-Semite, right? Or are we going to devolve this quickly?
See Ephraim about the utter logical fallacy of averring that Israel's foundation has much of anything to do with its defense against terrorism now. Let's not be so intellectually sloppy as to pretend that history has not happened and that the period from 1948 to 2004 has not happened. This is the History News Network, after all. let's at least pretend to think about change as well as continuity over time.
You talk about resistance. Resist how? Resisting by murdering civilians is not resisting. It is terror. Mandela knew this in South Africa after 1961 and Mkhonto we Sizwe responded and acted accordingly. Of course that you think all of Israel's history from 1948 on is undifferentiated, and that israel is in the wrong here (vis a vis Syria? lebanon? Jordan? Egypt? Hamas? Hezbollah? Al Aqsa Martyrs Brigade? ) perhaps you are not the person to whom one should be making these arguments.
dc

E. Simon - 7/21/2004

An unbiased mind wouldn't unquestioningly assume that all those other resolutions and historical interpretations are based on true assumptions or valid logic.

E. Simon - 7/21/2004

Bringing up the role of Jewish terrorists pre-Israel is like saying that you can't justify the birth of a child if it resulted from a rape. Inserting a moral relationship between the two events is not justifiable. You have also erroneously presumed that neither the State of Israel or a Palestinian state could (or could have) come into existence without terrorism. I'm not entirely convinced that Israel would not have been accepted as a state absent acts of terrorism committed by its founders, and in any event you've not presented that case convincingly - or at all, I should say.

You have also presumed, without evidence, that Israel is somehow preventing Arafat from declaring a state. He could do it tomorrow (or should have done it three years ago). The fact that there are many possible reasons for which he would choose not to is not something that I'm sure you have the patience or reason to discuss. I'm willing to be proven wrong on that score, but won't hold out any hope for it.

Matt Duss - 7/21/2004

Why put occupation in quotes? It is, in fact, an occupation, something even Sharon has recognized.

Glad to see you don't approve of terrorism. How do you reconcile this with the fact that Israel was founded by terrorists?

Until Israel recognizes the crime that it committed against the Palestinian people from 1948 forward, and is still committing in the occupied territories, the Palestinians have not only the right but the responsibility to resist.

Derek Charles Catsam - 7/21/2004

I do hope no one is going to try to say that General Assembly resolutions are binding.

E. Simon - 7/21/2004

...your response, earlier, that is. I re-read the post and didn't want to accidently come across as nudging you into another response. ;-)

Derek Charles Catsam - 7/21/2004

Um, actually no it is not. Until the terrorism stops, Israel will not withdraw from territory that it gaoned in a war of aggression waged against it. And let's not confuse occupying territory with targeting children and other innocents sitting in cafes. Whatever you feel about the Israeli "occupation" nothing ever justifies, incites, terrorism. Once the terrorism stops and does not resume, then I hope both sides can work toward a two state solution. Until it stops, Israel has not only the right but the responsibilty to protect its people.
dc

E. Simon - 7/21/2004

Sorry Chris, I just read your post from this morning - which clarifies your position and dialogue w/me concerning the purposes of the "nation-state." Although what I wrote here (in the 2nd paragraph) precedes my having read that post, I don't think it weakens my point regarding the overall heart of the matter over which we disagree generally.

E. Simon - 7/21/2004

Professor Dresner,

With all due respect, I don't think that a mechanism for law enforcement that "transcends" state boundaries and interests has ever been worked. What you're describing sounds more like a religion, and I don't believe religions have performed admirably in constraining egregious interpersonal behavior without simultaneously demanding and maintaining a coercive system to control one's very thoughts, if nothing else, or their misgivings about that system, at the very least.

I don't think any mechanism has achieved the balance between freedom and law enforcement better than the state -- yes, I know - make that _some_ states. But if the experiment you would propose is to be accepted at all, let alone by the world at large, I would posit that it would have to thought out and presented in much greater detail, and hopefully accompanied by smaller and more successful "test cases" to prove the point.

I appreciate your response.

Matt Duss - 7/21/2004

It takes a special kind of moral confusion to look at the Israeli-Palestinian situation and then accuse the Palestinians of waging genocide.

Matt Duss - 7/21/2004

It's obviously preposterous to insist that Palestinians curb terrorism while maintaining the occupation which incites that terrorism.

E. Simon - 7/21/2004

Chris, your positions are contradictory to each other. Democracy is only part of the equation - it offers people a forum through which to effectuate change reflective of legitimate aspirations. But a democracy can be wrong. A freedom-favoring set of guidelines (i.e. a civil framework) must also be established through which that democracy can work. This tempers the potential for capricious or insidious whims that can threaten the framework. It prevents what is known as "tyranny by the majority."

Chris, I appreciate your addressing the role of multiculturalism in gaining a broader appreciation for historical inquiry. I agree and think multiculturalism is valuable in itself. But to refine my post, which you were not able to successfully refute vis-a-vis the role of despotism in conditioning conflict - and that is the larger picture. I think your stateless world has the potential to be less respectful of multiculturalism on a global scale. Why take away the right to self-determination? Cannot smaller units government, that are closer to the people that comprise a given community, that probably speak the same language, share the same sense of history, function in a way that is most appropriate and works best for them, in a way that they understand best? How do polities that represent smaller populations preclude opportunities to advance what I see as freedom and you see as human rights? Why is an internationalized forum necessarily better at this? I don't see how you've assumed that conclusion.

Chris, take a simple and well-known example of how a large number of people can be wrong: The earth was largely believed to have been flat during the time of Columbus, even though there was sufficient evidence that this belief was not correct. Let's not get distracted by the indecent (and perhaps ignorant? -- your point is well taken) actions by Europeans in the Americas subsequent to this, the point is of knowledge generally. I also brought up the case of Dred Scott -- do you remember him? It illustrates that even a judicial decision (and judicious -- it was, I'm sure, legally "proper") can be dead wrong. And perhaps someone who knows more about the era can go even further to illustrate the point and shed light on whether the decision was widely condemned. (My guess is that it was more likely to have been supported -- had the equivalent of a modern opinion poll been carried out -- than opposed, due to the widespread interest in maintaining Union, and the preconceived notions of what political concessions in the way of Northern sensibilities this would entail). My belief vis a vis international opinion is that perhaps the spread of vehicles of mass communication have made more general knowledge accessible in this day and age, but have not necessarily done the same for wisdom.

I appreciate your accomodating my points by laying out our mutual dislike for the U.N., even if for differing reasons. I disagree with the ICJ decision on strict moral grounds. I cannot place a greater value on land and how one is able to use it than the intrinsic value of life itself, which makes productive use of land possible in the first place. The Dred Scott decision valued property over liberty. The ICJ decision, in not considering the value of the countless lives that would be saved by the barrier - (as well as the simultaneous opportunity to scale back the occupation and all the evils that go with it), has done the same.

This is a sad day in world history.

mark safranski - 7/21/2004

Arnold wrote:

"But, I know you would willfully (not logically) argue
that it was a defensive war, i.e. the war to prevent
the potential offense... "

Actually you don't know me well because if I wanted to make a technical legal argument I would begin by referring to the original Gulf War cease-fire agreement. Having been broken repeatedly, by both sides that left a state of armed conflict in existence.

Having failed to meet the UNSC resolution requirements for peace from the original Gulf War or subsequent UNSC resolutions or to contract a bilateral peace treaty to end hostilities with the United States, Iraq was legally vulnerable to a renewal of active hostilities at any moment.

Bush did not follow this course for political and diplomatic reasons as well as constitutional ones related to war powers. In terms of IL he was in the clear.

Arnold Shcherban - 7/21/2004

Mark,

Whatever "legality" of the Iraq war you are talking about, it is obviuosly not the legality under the international law, since by the UN charter definition
the last Iraq's war was a war of 'agression'.
But, I know you would willfully (not logically) argue
that it was a defensive war, i.e. the war to prevent
the potential offense...

Arnold Shcherban - 7/21/2004

Chris,

First and foremost - my sincere thanks and appreciation
to you for delivering outstanding, in all applicable aspects(logical, historical, legal, etc.) arguments
and opinions.

It is a real and major tragedy of the world, as you unmistakenly concluded, that humankind doesn't seem
draw much wisdom from the past, in the sense discussed.

Derek Charles Catsam - 7/21/2004

Chris --
Ahhh, yes. Hitler and Stalin. Of course. And there, ladies and gentlemen, is the quality of my opponent. Never mind of course that my stance is the one that precisely takes into account not a blind support of international law, but rather the specific issues involved, in which Israel is right.
The "paucity of my knowledge"? On Israel? On what I started this out with, which is that your apartheid analogy was vacuous? That the UN has no enforcement mechanism? There you go. Argument by authority again. Do you know the ephemera of international law better than the rest of us? yes, Chris. You do. But you are wrong in the implications. You are wrong in arguing that the decision was right. You are wrong that it has any effect in the real world. You are wrong on the morals, on the ethics, on the historical reality of israel, South Africa, and the US. I am sure there is more that you are wrong on. But yes, on the tangled legalese, which you present in appropriately obtuse lawyer's writing, I suppose you may know more than the rest of us. Huzzah. Because the rest of your argument is a mess.
No, Chris. Sorry. Not a paucity of knowledge on my part. Yes, a paucity of respect on yours. Stalin? Hitler? And I'm wasting my time arguing with this guy.
dc

Arnold Shcherban - 7/21/2004

Ephraim,

Apparently, in your opinion, the only fair hearing would be one that delivered pro-Israel, i.e. anti-Palestinian decision.

No one of the apologets of bias against Israel at the UN,
never explained why the overwhelming majority of non-Arab
countries in the world, on many occasions - the 14 members of the Security Council out of 15 (except USA)
have been voting against Israel.
Oh, I'm sure that some of you will be able to come up
with some good or far-fetched reason(s) for any country I refered to here to hate Israel, but try to analyze
the entire history of the Israeli-Arab conflict and the respective UN resolutions with unbiased mind, discarding any preconceived ideas and conclusions.
I just don't know whether that is your prefered modus operandum.

Arnold Shcherban - 7/21/2004

Mister,

To make it short I'll comment just on the quotes from
your last message.

<...your incoherence to address your hamhanded points...>

You are the only one (on this board and beyond) who blamed my alleged incoherency for preventing your
supercoherent response, but since I'm not a native
English speaker, you could be partially right about it.
However, what I'm sure about is that the occasional incoherency you blame me for is not even close to the extent to make my writing respoinsible for your inability to address the arguments I forwarded, or for
the arrogancy and insult you expressed that incoherency with.

<First: What, opinions, precisely, do I ascribe to you? Name one, please.>

There are many, but at your request I'll name just one:

"This time you say that allegedly I insisted on you using the terms that you reject the validity of. One doesn't have to take ESL classes to see that I didn't say or write or mean such a thing."

By the term I obviously (to any non-taker of ESL, but apparently not to a first-class historian you are) meant
"apartheid". What I said about this term was that you picked on the validity of its usage, while "forgetting" to comment on the essense of the paragraph the term was used in, never that one can't use it in the sense in question or in any other sense, as you ascribed (and continue doing that in you last response) to me.

On this reason, though I cannot not blame you for incoherency, I have sound ground to blame you for violation of elementary logic or major distortion of the content and meaning of my argument(s).

"Pseudo", to end your elaborated search for its meaning,
is somebody pretending to be something that he's not.
By the way, this definition matches the Oxford American dictionary definition.
And that's exactly the sense I applied it to your status
of objective historian (pay attention to the last adjective): you pretend to be the one, but in realituy you are not, since your "story" is based not on concrete truths (reality, as they appear to us) and their objective interpretation, but on the axioms of a type US-US-uber-alles shared by you with the mainstream of American "intellectual" thought. This is what undoubtedly follows from all your comments on this board I've seen so far and from a couple of your articles I've read.
I hope I'm pretty coherent here for you, though I begin
to question your willingness to understand what you
don't want to understand.

<All people who actually have opinions are biased. Being biased does not mean that one is not right.>

You see, again: what is "obvious" to such an incoherent
creature as I am, is not immediately obvious to such
an accomplished history scholar as yourself.

Again, you must be kidding me, don't you?
You and others on this board, when commenting on the original article, introduced the term and used it all over the place, so say, and you asked me what I meant about bias or being biased?

You actually insult my intelligence "reminding" me that
being biased does not mean one is not right.
Whom do you think you communicate with, with a Martian,
or moron?

For you is obvious that the UN is biased against Israel,
for me is no less obvious that you are biased against
the UN.
There is only one major difference between your bias
and the UN one: yours is drawn from the the axioms and
correlated by the US national interests, the UN one is drawn from the widely recognized international laws and principles, respective historical developments and the real situation in the region in question.
This difference makes the UN bias logically and historically legitimate, but yours - not.

And I'm sorry for insulting you; in the future, I'll try
to hold my emotions to myself.

Steve Brody - 7/21/2004

“…to claim that this universally supported resolution is biased is ridiculous. When the score is 150-6, even if bias exists in a few nations, take them out and it is still at least 100-6. “

Chris, the argument implicit in your statement is that because the resolution passed overwhelmingly, it could not possibly be biased. This is a preposterous assertion. Is it your position that no GA resolution could be biased if it passes overwhelmingly?

“I think it might be better if you took leave of the topic as you are starting to look like someone who would support Hitler or Stalin if you agreed with their positions.”

And of course, Chris, no string is ever complete until you’ve made your obligatory reference to Hitler.

chris l pettit - 7/21/2004

I thought a mathematical count of the votes would be in order.

By the way DC...just more and more of this is what I think is right so international law and human rights be damned. How Machiavellian of you. I think it might be better if you took leave of the topic as you are starting to look like someone who would support Hitler or Stalin if you agreed with their positions. Might makes right and the US has the power to prevent stuff that they do not agree with...how "democratic" of you to acknowledge the majority of the rest of the world and their inalienable rights.

And I am not being condescending in any way other than in your perception of what I say...I respect you as a scholar, but the paucity of your knowledge on this issue and your resorts to ideology and the stances taken above that blatantly go against universally established legal standards that are part of US law require me to correct your missteps and indicate where you miss points or simply take power stances that have no moral, ethical or legal support.

CP
www.wicper.org

chris l pettit - 7/21/2004

Mr. Brody..

The one that advocated "serious consequences" and was legally contingent upon another SC resolution for any military action? Or how about sanctions against the Iraqi regime?

I fail to see how any of this is inconsistent.

CP
www.wicper.org

Steve Brody - 7/21/2004

Chris,
Ah, so now the existence of bias can be determined by a simple mathematical test. If more people support a particular action, it must be an unbiased decision, ipso facto.

This seems like a variation on the “might make right” theme that you so despise

Derek Charles Catsam - 7/21/2004

Chris --
I do not know how more clear I can be when it comes to your tendency to patronize me: I damned well know that i am aware of the histopry of the UN, its establishment, and the world situation after the Second World War. Things have changed since 1948, you might be stunned to know.
Further, it is more than a little disquieting to know that you are lecturing on the history of Israel and Palestine, and is more than a little obnoxious to think that I ought to be sitting in on your lectures.
My patience for these little moments of unearned condescension from someone who has not earned the right to do so is realy beginning to piss me off, Chris. Knock it off, or I'll just disengage and pass you off as a pompous antisemite. But if you do knock it off, I'll at least try to take you seriously and will give you the benefit of the doubt despite the fact that always, every single time, you take the case against the Jews of Israel who are the targets of Palestinian terrorism.
dc

Derek Charles Catsam - 7/21/2004

Chris --
While it would be nice if presented your argument with complete sentences, I'll give you the response I'd have given you even if you would have bothered with predicates: Many countries may well have gone along for an array of reasons. The anti-semites does cut away a lot. Misguided nations that want to validate the UN may be another. Simply being wrong may be yet another. But again, in the simplest terms, I do not care what france or Dibouti or Syria or Burundi or Malaysia think about Israel's wall. The decision was wrong. And it cannot be enforced. And it will not be enforced. The 6 countries in support were right. In the end, fewer Israelis will die, yet Israel will respond to a court that it accepts and respects and follows -- its own.
dc

Derek Charles Catsam - 7/21/2004

We can cite countervailing arguments until the cows come home. Does not change the fact that a US human rights lawyer does not get to decide what is safe enough for Israel. palestinians stopping suicide bombings will mean that israel will change the course of the wall. Beyond that, I do not care what some international lawyer has to say. And while I think it is charitable that the ICJ acknowledges israel's right to defend itself, I am less impressed that the ICJ then thinks they can decide what is the proper means of that defense. Let the ICJ enforce their decree. Until they do, Israel will defend ityself from those who would murder its people. Might may not make right. But in this case, an inability to use might will prevent a grave wrong. That is all I care about here.
dc

Ken Melvin - 7/21/2004

Mirror, mirror, what was the UN GA vote on Iraq again? The whole world is screwed up ceptin usins.

Derek Charles Catsam - 7/21/2004

Um, actually, no, Chris, you are not righht. Despotic actions does not make one a despotic country. Sometimes we look at the4se things in toto. Furthermore, we look at the current age -- the united states is a liberal democracy. Flawed/ Sure. Made mistakes? Sure. That you would parallel the US or the UK with the sorts of despotism i am talking about -- that in Syria, or Afghanistan, or the Soviet Union -- shows both a galling lack of perspective and an incredible loathing for your country. reductio ad absurdum does not work here, chris. My solution is simply for a world body with democratic states rather than a world body in which dictatorial states have a say on how democratic states lead their lives.
dc
dc

chris l pettit - 7/21/2004

http://www.commondreams.org/views04/0720-01.htm

These are the views of Prof. Richard Falk...an widely respected international lawyer and American for those who want US criticism of the wall. He notes a couple of things I did not cover, such as the Higgins factor, and the fact that the ICJ did address and confirm the right for Israel to protect its security as long as it was within the sphere of international humanitarian and human rights law, and within the established legal boundaries of the Green Line.

CP
www.wicper.org

chris l pettit - 7/21/2004

Does not outdate the ICJ...

If anything it is the other way around. The ICJ continued the work of the Permanent Court of International Justice established by the League of Nations...which had no security council and which the US never joined. The ICJ as it is today and the SC were both created by the UN Charter...which would be at the same time...although the Articles on the ICJ are very similar to those of the PCIJ.

CP
www.wicper.org

chris l pettit - 7/21/2004

Does not outdate the ICJ...

If anything it is the other way around. The ICJ continued the work of the Permanent Court of International Justice established by the League of Nations...which had no security council and which the US never joined. The ICJ as it is today and the SC were both created by the UN Charter...which would be at the same time...although the Articles on the ICJ are very similar to those of the PCIJ.

CP
www.wicper.org

chris l pettit - 7/21/2004

While I agree that the despotic states should not be able to hijack the UN, neither should democracies or simply those people you support.

How about the despotic actions of the US throughout the history of the UN...they should be ruled out. israeli oppression...out as well. how about Russian action in Chechnya....Russia is out. China I guess would not be a democracy so they are out. How about the French and Belgians throughout Africa and particularly in the Uganda, Rwanda, DRC region...out and out. Basically what DC's selection leaves us with is the UK (maybe if we overlook the Argentina issues), the Netherlands, Norway, Sweden, Finland...except those are socialist democrat states...do we leave them out as well? DC...your suggestion gets down to you choosing what you think is democratic and who should be in...gee goes right along with your might makes right and we decide what is international law to be followed thinking. How about Singapore? Not democratic by any sense of the word, yet a well functioning, highly respected society that is widely acknowleged to be pretty fair and well established by most observers. Do they get left out because they fail your "democracy" test? What about Sri Lanka where democracy is tearing the country apart due to the paucity of the government (sounds like the US)? Your system is simply a facade, methinks...

CP
www.wicper.org

chris l pettit - 7/21/2004

Mr. SImon...

I think you may put too much emphasis on my acceptence of the UN. I am not a fan...as Adam and I have agreed upon many times. The problem arises when we consider the solutions and causes of the problems. That is where the major difference lies. In all your claims about despotic states and rogue nations...none of which I deny or support in any of their transgressions, you do not list the US and Israel, both of whom are at least as guilty of the same transgressions. I would place more emphasis on the US since it is the worlds superpower and should be leading by example.

By the way...the organisation I am a part of is not stating that a lack of cultural understanding is the cause of all the problems in the world...it is stating that multi-culturalism is a major part of the process in correcting the misunderstandings and ignorance that pervades so much of our current discourse...especially in the US, concerning the world and its current situation. I want to point out that you make the mistake of many historians in choosing your own point in history and treating it as the starting point of a conflict instead of acknowleging that it is your academic bias that causes you to choose that point when in reality history is a continuing flow of causes and effects that cannot be viewed as individual points. Yes, Japan and Germany had despotic regimes during WWII, but the Treaty of Versailles was a major cause of the conditions that allowed a psycho like Hitler to get to power...and the Treaty came out of the self interest of the victorious powers of WWI wanting to punish Germany and split of the spoils amongst themselves instead of working toward and international community on the form of the League of Nations...in other words almost a continuation of colonialism that led to WWI in the first place. Japan was put into a position by US hostility and blockade of letting her people starve and allowing the US to run rampant throughout China (talk about a violation of sovereignty...by both the US and Japan), or launching an attack on the US. Do you remember the statement that if japan did not win the war in 6 months there would be no chance of winning? The Japanese knew what they were getting into yet felt they had no choice due to the oppressive actions of the US. Then that traces back to the US being offended with the raping of China by the japanese, which learned the technique from US policies in teh Phillippines (hypocrisy anyone?) and from the "open door policy" raping of China by the British, US and Russians. See...it all is connected and contiguous. Anyone who would tell you otherwise is naive, foolish, or can't see the forest through the trees due to their own ignorance.

I share your dislike for the UN, but also can't stand a failed self interested nation state system because I believe in the inalienable rights of all peoples that International Human Rights law attempts to provide and convince states into obeying. That is why I chose my profession and will continue to denounce US atrocities as well as those of nations that both of us would term despotic. Hopefully we can someday reach a point when human rights are truly respected and individuals can live together in respect for each others similarities and differences. We must learn from history and continue to progress...not get stuck in history and continue to repeat our mistakes.

One of my fears and reasons that I raised the point about the three wars was not to give historical points per se, it was to show that the greatest advancements in international law and surrendering of sovereignty have only come after incredibly horrific wars and loss of innocent life. I do not want this to have to happen again for the international community to be able to take its next step. As I said in the article...given the paucity of intelligent discourse (not meaning here...in the press) and the evident want to hang on to positivism, state sovereignty in international law and "might makes right" power realpolitik (evident on this board)...I fear it may be a long while and incredible loss of innocent life before we actually get to that point.

CP
www.wicper.org

Stephen Rifkin - 7/21/2004

One could say a priori and without question the UN Charter defends the rights of the individual and the case here as well as most other cases before the ICJ are not really rulings on justice per se so much as measures of compliance to the UN Charter that particular country had signed. Therefore a lack of compliance or in the ICJ's parlance "illegality" is therefore an abrogation of the rights of the individual.

I'm not sure that's entirely relevant as a tool for the rule of law though. What is important is that we now have precident such as it is for any group sufficiently motivated to do two things:

-Wage Genocide.
-Use international Law to protect their right to do that.

I absolutely look forward to the day that nascent minorities in Europe and the middle east use those tools to their own advantage.

chris l pettit - 7/21/2004

There

Here is the link to the page of the decision. While the expert testimony is not included (at least I could not find it), the information that I have received (and I apologise that I have to keep the source confidential in this instance out of respect for their wishes...I hope one would not doubt my integrity on this issue...lets just say it was an employee of the court that is close with a current mentor and employer) is that several former IDF members, including commanding officers, gave statements and advisory testimony regarding the security matters involved. Security experts that are internationally known were also asked to give their opinions on the viability of the barrier. In the end, while these factors played a role, the fact remains that the legally recognized borders are those of the Green Line. israel is already in violation of the Geneva Conventions regarding the governing of occupied territory by encouraging settlements within that territory and offereing economic incentives. THis has consistently been universally supported (even by the US) until Bush made his statements earlier this year. This fundamentally calls into question the viability of the wall regardless of its (non) effectiveness.

CP
www.wicper.org
http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm

chris l pettit - 7/21/2004

Does not seem like it...

The ICJ is required by the UN Charter to decide the merits of the case before it. The case involved the legality of the wall under international law. What you speak of are political and ideological matters. If you want a judgment on terrorism..go to the ICJ. The Bronze Age is where the detractors of this judgment seem to stand in terms of legal scholarship of any kind.

I see you are a big fan of self-determination as well...which happens to be #1 on the list of human rights. Good to see that human rights wins out again.

CP
www.wicper.org

chris l pettit - 7/21/2004

150-6 GA resolution supporting the ICJ opinion and have Israel tear down the wall

to claim that this universally supported resolution is biased is ridiculous. When the score is 150-6, even if bias exists in a few nations, take them out and it is still at least 100-6. Paranoia is the word to describe the mindset of those who want to argue bias. It just belies common sense to wonder why some would (and I am sure will try to) do so

Will it happen? I doubt as the US will veto the binding resolution in the SC Council, proving once again that my arguments as to why the UN is a failure are spot on and that the US still works on the ppwer and "might makes right" philosophy with no real commitment to the rule of law or the human rights of anyone in the world.

CP
www.wicper.org

Stephen Rifkin - 7/21/2004

On its face, a 50 page decision that ignores terrorism and even circumscribes the conditions under which a country may defend itself from internal uprisings, civil wars, rebel movements and the like goes awfully far to putting a carbomb at the disposal of any group of malcontents bent on fomenting anarchy for whatever reason will fly in the press and on the world's stage.

Is that necessarily a bad thing if countries in the middle east, north africa as well as some European states like Belgium or Kosovo begin the slow process of "Lebanization" - that is, the inexorable disintegration of the nation state under fire from terrorists? It would seem that if that is the plan they have for Israel it would work as well elsewhere. Some cities in France for example are 40% muslim. Why should they not take up arms and carbomb their way to independence. What is so precious about lines on a map and civil order in their own countries the apologists for terror disregard for Israel?

I see this a new day in the effort to push the world back into the Bronze Age where the UN seems to prefer it sit.

chris l pettit - 7/21/2004

The enforcement mechanisms are there...it is jsut up to the US to follow them.

Read the opinion...as I note in the article, the ICJ contines to make points that you simply can't counter. Need I remind you once AGAIN that the Geneva Conventions are not just part of international law, but US law as well? So your positions on "enforcement" once again fall flat when one realizes that by failing to live up to our commitments under the Geneva Conventions, we violate US as well as international law. Do you now want to withdraw from the Geneva Conventions and other treaties as well? As Dr. Dresner notes, that takes us back to a historical point before the Congress of Vienna. This is why your position is either incorrect or entails withdrawing from any international treaty that this country has ratified, making it part of the "supreme law of the land." Or amending the Constitution to state that just because the US submits to a treaty, it does not have to obey its provisions when it is not in its self interest...gee machiavelli again. have you caught on the the paucity of your argument yet?

DC, your "we are staying comment" belies your position "might makes right"...period...welcome to despotism and Nazi Germany. I have warned you against legal positivism and making claims that the US is the sovereign...and there you go again. Your weakness is that you necessarily become a hypocrite that is unable to support your argument legally, morally and ethically and has to rely on a pure power argument...which you just did. Machiavellianism is alive and well.

CP
www.wicper.org

chris l pettit - 7/21/2004

I wish you guys were in the class that I am lecturing because we are handling the legal history of the Israel and Palestine situation as we speak...

Adam...the UN was a weak structure in 1948 and you are right to say that the ICJ was a fledgling institution at the time. however, we are currently in 2004 and the institutions that we are speaking of are fully developed and very viable. Your historical point is well taken. Actually, in class we are currently struggling over the agreement of partition and whether is was legally viable (it was not). The class seems to be coming to the conclusion that the British ended their mandate over Palestine because of the fact that WWII had just ended, rebuilding needed to be done, and the problems of Zionism and violence between Zionists and Palestinian Arabs had not been solved (owing heavily to the inaction of the British and failure to fulfill their mandate). The Palestinian Committe did not fully recommend partition although it was discussed. What cannot be debated is that the Arab States violated Article 2(3) of the UN Charter by actions of aggression against the new Israeli state. The Partition Plan could have been challenged through existing legal structures, and the Arab states were in violation and should have been sanctioned, etc. for their aggression. Was the ICJ up to the task in 1948? Who knows...no one ever tried it, but the institution did exist, and the vote for establishing Israel in the UN was approved 33-13, so it seems that the bias claims do not apply in this instance. In 1967, the ICJ was definitely established, and the bias claims have absolutely no validity as the entirety of the UN was against the (again) illegal aggression of the Arab States as well as Israeli transgressions. The ICJ would have been the institution to use at that point. Your claim that Israel would somehow have been disallowed if the case was brought against the Arab states for their illegal aggressions is really ludicrous, as that would have been well outside the parameters of the cases brought (legal procedure again). Where you may be right is if the Arab states would have been intelligent enough to challenge the legality of the Partition plan under the existing British Mandate and trusteeship system of the UN that had carried over from the League of Nations. We will never know, since aggression was chosen over legal measures. Apparently the Arab states felt as the Israel supporters do today...how ironic.

Adam, this is not directed at you, but at DC and Mr. Simon as well. It seems as though your political grasp of the history of the situation is ver good, but seems to be lacking when it comes to the UN, WWII, and legal history aspects of the process. The legal history and UN Charter, as well of the League of Nations covenant are very prominent when it comes to the existence of Israel. It is a very complex history with some abstract legal concepts and steps taken. The viability of the Israeli state as it was created under the auspices of the UN is very much in doubt in terms of that period (not today) and much of the silliness that we see in the region can be attributed to the Arab states insistence on aggression over legality (due to fears of UN bias) as well as procedural missteps of the UN that were taken when it was still a fledgling organisation feeling its way through its first few years. That being said...the claims of bias and fear for the safety of the Israeli state if a case were brought before the ICJ at either point are 98% unfounded in terms of 1948 and totally unfounded in terms of 1967, by which time Israel was an established state under both international treaty and customary law.

CP
www.wicper.org

chris l pettit - 7/21/2004

Adam...you cite THE CASE from US law that explicitly demonstrates the principle of judicial review. If Marshall had decided any differently from the way that he did, the Supreme Court risked becoming irrelevant. As it was, the system of judicial review of the legislation coming out of Congress as well as Executive decisions was established and continues to this day. This decision was what gave the Supreme Court the power and place in the checks and balances system that it occupies today. I actually can't think of a better decision to cite to support the authority of the ICJ to take this case. By the way...I would encourage anyone to (re)read the decision...brilliant legal reasoning from one of the foremost legal minds of his or any other era. both sides thought they had Marshall backed into a corner and he made both sides look absolutely silly while forcing them to respect both his judgment and the rule of judicial review. One of my favorite cases in which the judiciary made both parties look extremely foolish (particularly jefferson, which is kind of sad given I admire a lot of Jeffersonian thought, but this was one of his more human moments).

CP
www.wicper.org

chris l pettit - 7/21/2004

Dr. Dresner...great points on the Napoleonic Wars and the consequences arising out of them. The reason that I choose the Thirty Years War as the third (not that there have to be only three) is because of the prestige of Grotius and his treatise to international law scholars, especially in the West. My only problem with your example is something you touch upon...the oligarchy and aristocratic classes continued to rule at the expense of the individuals of the world. The benefit of the outcome was the beginning of the surrendering of sovereignty (by some states) in order to acknowledge that there was a set of rules governing the international community that could not be breached by nation-states.

Mark...several points on your sovereignty claims. Oh...first...I knew writing the article that I would be coming under fire, as US bias towards Israel and antipathy towards international law and anything resembling the surrendering of the slightest hint of US Machiavellianism and sovereignty is rife, even within the academic community. I don't mind being the pinata...it isn't too tough knowing that the majority of the individuals of the world outside of the US and Israel take the same positions as I state above. So pile on at will...I have noticed that there still has been no response to the fact that the legal structure is as it exists and that there were legal steps that could have been taken if the jurisdiction of the Court was to be seriously challenged. As I note above, and is acknowleged by Dr. Dresner, there has been a steady trend throughout most of the world regarding the surrendering of sovereignty and affirmation of the fact that there are unalienable human rights that cannot be violated by states. In the Nuremberg Judgment following WWII, the Tribunal first acknowleged the existence of rights of individuals, later fully articulated in the Geneva Conventions, Universal Declaration of Human Rights, and countless other UN treaties since that date. It was the first time that the international community (in this case the US - I will not deny that Nuremberg was victor's justice...but the legal standards are sound...they just were not applied to Allied atrocities as well...my only problem with the tribunal) acknowleged that nation-states were only artificial invisible structures that were ultimately run by individuals that needed to be held responsible for their actions. This further undermines the whole nation-state sovereignty argument. When you look at the huge number of regional bodies that all require a significant surrendering of sovereignty, and the historical fact that nothing can truly be called a "sovereign" act anymore (that is one that occurs strictly within a nation's borders) due to globalization, the internet, ease of travel, etc, the fact is that the nation-state system of global goverence is non-sensical and has passed us by. As Dr. Dresner notes, and I fully concur with, it served its purpose in history by acting as the next logical step after monarchial and church rule. Since then, throughout history, we have seen how in most of the world, sovereignty has been eroded by economics, globalization, advancements in technology, improvement in free movement, and many other factors. It is time to admit that the system has become obsolete and needs to be changed. By the way...I would call your attention to several judgments, starting with the Nuremberg Judgment and extending to the current ICTY and ICTR tribunals, as well as the ICC, that have well established in international law, that there is no such right anymore that allows a state to govern its peoples as it sees fit. Indeed, the mandate of the Nuremberg Charter allowed the Tribunal to investigate circumstances and crimes within Germany inflicted upon the German people from the beginning of the Nazi rise in power circa 1920. So the principle that a nation's government has absolute reign to govern its people as it sees fit has been dead in terms of inalienable human rights since at least 1947, and has been enshrined in the treaties articulated above. Your point about the failure of the UN to address the problems is absolutely correct, although I have a different explanation that for me makes a lot more sense given that the structures and laws are in place to make it possible. It also goes to one of the basic disagreements on this article...the failure of the UN. I see the problem in the structure of the UN and it being based on nation state sovereignty with the veotes of the Security COuncil and the P5 allowing the US (most often) as well as China and Russia to blackmail and hijack the UN for their own selfish purposes. The veto system should be done away with...as well as permanent members of the SC. For all the complaints about smaller third world non-democracies I see that US and Israeli atrocities are mysteriously overlooked. It would seem that the world's superpower would have more effect on international events than a third world despot, so I suspect that bias plays a large role in the denial of an international community. I hope this clears up a bit why I think that your perception of why the UN allows genocide to occur is a mistaken one. It can definitely be shown that US nation-state self interest prevented any good response to the Rwanda tragedy and exacerbated the Balkans conflict (once again resulting in tragedy and victor's justice while ignoring other atrocities). A further surrendering of sovereignty and the giving of respect and authority to the international community would allow for NGO's historians, and international law scholars to play a greater role in helping individuals instead of self interested states. By the way, if you are interested on the illegality of the Iraq War (this post is long enough already) I will be emailing you articles I have written on both the US and UK legal positions within the next couple days. They are solid legal positions supported by most of the prominent international law authorities, so I hope you might give them some heed. Again I think it will come down to ideology and politics versus actual legal argument, but we might as well give it a shot if you are up to it.

Mr. Simon...you extend my argument way too far and are putting words in my mouth in an attempt to make me look bad...I hope I can explain this to you. I do not advocate the absolute abolishment of the nation-state, i simply advocate the abolishment of the nation-state system in terms of the international community and matters of human rights and established international law. I do not deny that nation-state bodies have quality uses, such as the maintaining of basic law and order, taxation for national or regional administration and the like. You see the same federalism system and struggle in the US. States can only do as they like in some issues, but there are those rights that individuals hold as well as those governed exclusively by the federal government. Maybe you assumed that I take an extremist position, which could not be further from the truth. The international legal structure and mechanisms are there for usage, it is hypocrisy and blatant self interest that prevents them from being utilized. The US would still provide its own law enforcement for its citizens...still provide administrative services, and still have freedom to have cultural habits be supported. There may be universal and inalienable human rights, but one must keep a sense of cultural relativism as well. What I support is that those basic human rights of individuals the world over be upheld. Your position, as usual, advocates US dominance, might makes right, and a different standard for the US and those we support over the rest of the international community. I can't say that I am surprised at your responses. by the way...bin Laden and his terrorists are a criminal matter to be dealt with by the international community, not a rogue state with its own agenda. There is a wide variety of international criminal law to deal with the crimes against humanity he has committed and the majority of the world's population would love to see him caught and tried under an international legal system (one should note the same goes for Saddam Hussein currently at the mercy of the kangaroo court in Iraq). The problem has been nation-states and their refusal to actually join as an international community. For a further example, why do you think that International Financial Crime and Human Trafficking still flourish as they do? Because nation-states (meaning the aristocrats that govern them) are so self interested and nationalistic that they are only worried about raising revenue for their pockets and their nationalities that they will not join as a democratic world community that acknowleges all cultures and systems of governance as long as they respect basic inalienable human rights. Demographically, one can see that as soon as one nation closes a loophole or loose law, the criminals simply move to another area that is still lax...international standards are needed. Hence the reason that the great majority of international financial crime throughout the world in terms of money laundering passes through the US at some point in time (GAO, Canadian and British figures, not mine).

Adam...I will repeat...14-1...this is not bias of any sort. These are international law scholars who, except for the US and Chinese judges are not political lackeys and are widely respected. The bias on the ICJ you speak of simply does not exist. We can go back and forth about the UN, but your claims regarding the ICJ are simply untrue. Legally, I cannot be on any steadier ground here. I wonder what it would take for you to think that there was no bias. I already stated that Israel could have had an ad hoc judge in the matter. Indeed, the Israeli position was considered even though they were not participating in the case, which is more than the ICJ had to do. How can one argue that an Israeli Court or US Court would have been unbiased knowing how justices are politically appointed in these countries? I am just not sure what I have to do to demonstrate that there was no better forum for this case to be made. If you like, please check out the ICJ website for the bios of the justices and their backgrounds. Look at their writings. These are scholars of the highest integrity and caliber (again caveats for the US and Chinese judges).

In terms of other bias...as noted, the EU nations argued that the law was illegal even if they questioned whether the ICJ should accept the case (remember the legal procedures). The US and Israel were really the only nations who attempted to support the wall.

Israel could bring a case before the ICJ and I would speculate that the case would be accepted. Why this has not been done is beyond me. I do not understand where the lack of faith in the justices comes from when you can somehow accept the decisions of a much more tainted US or Israeli Court. Explain this to me. on the one hand we have the top international legal scholars who are universally accepted (except the US and Chinese judges)...on the other we have politically appointed lackeys who have been shown to be clearly partisan in both nations on several occasions (the Israeli Court opinion, even if followed, still puts Israel in violation of international law). Where do you want this case heard? Law exists to overcome political, cultural and social bias. There is no way given the animosity of the parties and paucity of commitment from all players to human rights and humanitarian law that this issue would have been solved in any way other than "might makes right" meaning Israel and the US would get to do whatever they wished...how is this in any way respectful of the rule of law and inalienable human rights shared by all?

Sorry this is so long...more to follow after I digest the rest of the posts.

CP
www.wicper.org

Jonathan Dresner - 7/21/2004

Actually, I would argue that the Congress of Vienna was a necessary precedent to the development of internationalism. Otherwise, every time a government changed, its international agreements would need to be renegotiated.

The system was intended as a buffer against the masses, revolution and democracy being deeply feared by the Great Powers after the US and French examples, but it was, in effect, a strengthening of aristocratic rule at the expense of the weakening of sovereignty. By creating truly binding agreements, the Great Powers surrendered their right to be capricious in international affairs.

The success of the Vienna system -- over a half-century of relative peace in Europe, and no successful revolutions -- was, I think, a significant inspiration to Wilson's League, essentially a permanent Congress of Vienna expanded to encompass new powers and lesser states, to solve problems before they became crises and stabilize the international system.

I agree with you that the dominance of non-democratic states in the UN (as well as the one-state/one-vote system) makes a strictly democratic system there difficult to call entirely legitimate; neither is the security council, a modern day Great Power Congress, a particularly legitimate way of doing business, though it is the slightest bit more effective.

However, I am entirely with Chris when it comes to the desireability of international law and justice that transcends state boundaries and state interests. I'm just less sure of how to get there, except that following the rules we agree to is the first step toward making the world make sense.

E. Simon - 7/20/2004

His vision of international law explicitly relies on the whithering away of the state. Your statement that the Napoleonic Wars led to a more durable system of enforceable law _because_ it was concluded between states reinforces the idea of the state as a rational actor. This is in direct contradiction to what Chris believes. Chris has stated that self-interest is harmful/shameful, which I wonder, implies that it cannot be rationally pursued or directed toward rational ends that are by no means unjust.

"Arbitrary dictatorial whim..." this concept needs to be explored more fully. Why it cannot be directed at an organization seething with dictators who arrange their power into blocs which set the tone, debate and goals of the international agenda is beyond me.

E. Simon - 7/20/2004

Are you serious Chris?! I mean, it is important to understand that this ultimately _is_ your bias/agenda. How would one administer functions of government across a population of 6 billion!??!!! Registering a car in Pennsylvania takes me weeks, which is bad enough. In your world, it would take centuries! How about other functions, Chris, such as simple law enforcement? Where would you direct calls to the local police department? "Sorry, sir... the police are on another continent right now." Oh, that's right... enforcement has never been your concern.

Functional (or should I say "non-dysfunctional") examples of supra-national states, have, if anything, found that _greater_ emphasis in governance should be given to even smaller regions. The E.U. is interested in providing _more_ autonomy and emphasis to the role that can be played by sub-state units, for instance. Merely a functional concern, though, right? No relationship to making life easier or better for individuals?

A perfect mechanism you've provided for defending against the likes of bin Laden, Chris! He too, interestingly enough, has no use for the nation-state. His tyranny would also emphasize and exercise significant legal/judicial personality. What safeguards exist to prevent your vision from becoming as tyrannical (or arbitrary) as a 7th-century caliphate? You do state that Grotius was inspired(!) by sharia.... hmmm.... looks like _there's_ a system of law that's REALLY GOING places.

Jonathan Dresner - 7/20/2004

Most practical commentators are pretty sure that US opinion matters, too. And US opinion is sometimes slightly influenced by general world opinion. So there's a little more to it.

Ken Melvin - 7/20/2004

Not in the least. The only two opinions that matter are those of Israel and God.

mark safranski - 7/20/2004

Hi Chris,

Ah, no wish to poke fun but you are in serious jeopardy of becoming HNN's pinata of the month. Look on the bright side, it's far better than being ignored.

Now on to the important matters. You wrote:

"Since, in the illegal Iraq War and occupation we have seen the U.S. and U.K. governments’ utter disdain for international and their own constitutional law, the question becomes the damage that is being done to the international system that is so necessary in this age of globalization where it is pointless to try and argue that anything is “sovereign” anymore and that we can do things that do not have global effects."

Setting aside the fact that you are wrong on a number of grounds regarding the legality of the war in Iraq, I must point out that nation-states still retain their sovereign rights, in fact as well as in law.

So powerful in fact, is this doctrine of sovereignty, that the UN generally refuses to sanction international military intervention even to stop obvious cases of genocide and ethnic cleansing. Sovereignty also undergirds the principle of equality of states - IMHO a polite fiction that IL could do much good by jettisoning but a current cornerstone of the international system nonetheless. Even in the instances where states have truly ceded *some* sovereign powers to a supranational authority as in the case of the EU the states ultimately retain the right of refusal - case in point France and Germany hypocritically defying Brussels on EU budgetary constraints.

Thirdly, many actions have ripple effects when taken by individuals or nation-states but the " stakeholder " world-view is not a legal requirement for world governance by international jurists.

http://zenpundit.blogspot.com

Derek Charles Catsam - 7/20/2004

Mr. Shchchchchrblahblahblah (See, we both can mock the last names. Given that you referred to Adam not once, but rather twice, and derisively at that, by his first name, I thought we were all on a first name basis. Maybe we are not) --
OK, I'll wallow through your incoherence to address your hamhanded points, though the fact is I have engaged those points with Chris, because frankly it's easier to follow his logic.

First: What, opinions, precisely, do I ascribe to you? Name one, please.

You write: "Meanwhile, any response to the essence of my comments is given." What on earth does this even mean?

You say "when arguments are scarce to come up with, the pseudos like you always resort to some minute distractions and by your own definition 'ad hominem screeds'" Once again, you make little sense here. I may be lots of things, including wrong, but "pseudo' whatever you are trying to say is not one of them. pseudo, maning false, does not hold. My credentials here are clear. My work, my scholarship and other writing, speaks pretty well. People here may disagree with me, but they damned well know the caliber of my work. I've seen nothing from you here or elsewhere to lead me to believe that you have earned the right to label me a "pseudo" anything. But ok, let's bite. The "pseudo" must be modifying or describing something. What, Mr Shcherban, would that be? Once again your writing skills fail you. You try to come up to the plate with the big boys, but you falter.

You insist that I must take people's terms as they present them. Sorry, but as a scholar of South Africa who has reasonable credentials on Israel no, I do not simply have to accept the profligate use of a term such as apartheid when used in relation with israel. i do not simply have to accept that nation states have no right to defend themselves when they are told they will be wiped off the face of the planet. I do not simply have to accept that a politically driven international court with members who sit on it whose own countries do not respect basic civil or human rights, do not acknowledge due process, can then tell Israel what to do when it comes to defending its citizens. I do not have to accept that the feckless and ineffectual UN.

Further, what do you mean by "obviously biased" when you ask Adam how he can agree with me? All people who actually have opinions are biased. Being biased does not mean that one is not right. My book on the Freedom Rides is biased against white supremacists. White supremacists might be biased against my take. Which side would you say is "100%" right? I am biased against apartheid South Africa. Does that then mean that I am not 100% right? No. Apartheid South Africa was wrong. 100% wrong. Any other interpretation might make the relativists smile, but as a moral stance, it is simply wrong, and unacceptable. Holocaust deniers? 100% wrong. And so when Adam defends me and says he is 100% in agreement, there is no reason to believe that bias has anything to do with it. Maybe I am biased, but also right.
So this is a start. When I start commenting on your articles or blogs, I might consider your ad hominem assertion that I am "pseudo." Until that comes to pass, I'd be more likely to remind you that it is a dangerous thing to be calling derisive names like that to folks you don't know. We might bump into one another at a conference one day. I don't mind getting down and dirty. I'm all about it. But I'd as soon there be a foundation to the insults people toss out.

dc

E. Simon - 7/20/2004

Try twenty-one to one-sided. This is why Israel can't receive a fair hearing in anything having to do with the U.N.

E. Simon - 7/20/2004

Chris, I'll overlook your appeals to authority (this is called a "logical fallacy," BTW, argumentum ad verecundiam), both legal and academic, since I think there are points that you did not address in your piece but would be willing to entertain.

I'm wondering what kind of expert military testimony was heard in considering that military exigencies or requirements of national security/public order were not balanced against human rights concerns. I realize that the best testimony of this nature could have been provided by representatives of the IDF -- and it's already been addressed that Israel prefers not to deal with the court, in this matter or in others. Is it any wonder? If you were Dred Scott how would you have felt about being called to appear in court?

I hope this piece draws sufficient attention to the failures of deontologically-driven ethical systems. The Nazis, too, had a sense of duty. They too, felt that obeying rules was more important than considering the logical conclusions of them. Like the jurists, they even had a rationale. The point is that the values of the power structure do matter. Chris has properly pointed out that courts lack mechanisms of enforcement. We must therefore consider claims to legitimacy by a power structure as if they were necessarily coupled with the capacity to advance human-rights norms in the societies they govern. In this case, that power structure is the U.N, which like the antebellum South, allows membership by slave-trading and slave-owning nations, and even worse. With Dred Scott, it was the U.S. Federal government before the Civil War. Doing away with the confusing inconsistencies in the power structure of the latter required the backdrop of brutal confrontation. Hopefully the U.N. will wither away as others simply realize that advancing liberal democracy and capitalism is what advances the human condition, and not the U.N - (at least, not really). Our choice to legitimize the forum is what allows it to get in the way of goals that are far more noble than simply obeying orders.

I think Chris looks kindly at a U.N.-inspired model of international law because the forum values multiculturalism over an ethically valid system of governance. I disagree with the credo on the website he links at the bottom of his posts. Conflict is NOT the result of cultural misunderstandings, it is the result of not respecting the legitimate rights of others. We did NOT go to war with Germany and Japan because we weren't sensitive enough to some "cultural need" on their part to dominate and exterminate inferiors. We did NOT go to war with Iraq because we were not sensitive enough to Saddam's "cultural" needs to abuse his own people. Can anyone come up with a case in the modern world where conflict was initiated between free peoples? (Two individuals in a bar don't count, ;-) -- I mean entire societies).

Arnold Shcherban - 7/20/2004

Adam,

Let me make my position on the discussed issue and many others clear: I'm for the wall, provided it doesn't encroach onto Palestinian territory, since I
believe(though am not positive about) that the wall
will help to some extent to the main goal - final and peaceful resolution of the conflict.

Furthermore, I've never taken one-sided position
in Israeli-Palestinian or Israeli-Arab conflict, in
general, i.e. I never exonerated one party in the conflict at the expense of another.
It is factually and historically undeniable that Arabs have to share the blame with Jews for the conflict continuing for about half a century by now.
I'm a Russian Jew myself and know too well, and definitely much better than the one you agree 100% on the issue, about the bias against Jews (and consequently against their state) existing all over the world, including this country, and nowadays - especially in Muslim world.
But if you asked of one factor that historically influenced the majority of the world bias against Israel as a state the most, the answer is clear - occupied
Arab territories.
This is true that the most of those have been returned
to the legal "owners" by now. But, the return process
had taken decades, despite of desperate attempts of multi-national efforts, and we know that Arab countries are far from the only ones to blame for the failure of those attempts and the restoration of international order/law. Furthermore, some pieces of illegally (according even to the closest Israel's ally -the US) occupied territories are yet to be returned by Israel.
Adding insult to the insury Israel built hundreds of kubitzes on the occuppied territories(again, considered illegal by this country along with the others), the action causing the major Arab-Palestinian outrage and,
consequently, what you call anti-Israeli "bias".
I'm not mentioning here the other two crucial for Palestinians issues: Jerusalem and Palestinian refugees.
All the listed and some not listed problems are obviously not the consequences of the bias you and Derek limited your brief critique of the article to, and therefore, any decisions of the international forum on the issue related to them cannot be viewed as lacking
legality and stemmed just from the alleged or real bias by the objective commentator.

You will insult my intelligence saying that I don't recognize and sympathize with crucial problems facing Israel in the conflict: first and the formost - its security.

Thus to judge any socio-political event in Israeli-Palestinian conflict or decision of any international body in the regard of this conflict just on the basis
of that bias, ignoring the other may be not less, may be more significant factors or considerations or supported by the great majority of nations international law(s), and principle(s) involved in the respective decision(s) has never been an objective and productive analytical approach.
To judge it this way is to deny the well-known and
widely accepted fact that the Israelis are biased against Arabs too. Why and how the latter bias originated and developed is a different matter, but
it does exist.
Should we therefore come to the conclusion that a decision of ICJ in favor of Israel has to be judged
exclusively on the premise of the Jewish and relayed to the Western states bias against Arabs?

The UN resolutions against Iraq, for example, were definitely in favor of Israel, though indirectly so, but one can't honestly and factually suggest anything about them along the lines of anti-Arab rationale.

As an unbiased commentator, historian I cannot help objecting such a superficial approach to the serious political and legal issues.
It is even more true when practically all anti-Israel
UN and International Court decisions or resolutions, blocked one way or another by the US are regarded as unjust, and biased; that is apparently the point of view
of the esteemed Mr. Catsam that immediately follows from
his initial comments on the article.

May be I'm wrong, but it seems to me that historians and
politicains have to maintain HISTORICAL approach to the analysis of serious socio-political and legal issues, provided they want to find not absolute (that doesn't exist), but concrete truth.

That's why in my opinion the roots and causes of the recent "wall" decision have to be searched not within
the domain of the agreed-on bias against Israel, or,
at the least, not entirely within the latter, but
as the final result of many other contributing and pertaining to the conflict historical and legal factors.

Since Derek limited his critique of the article only
by the application of the one-dimensional approach
rejected here, I disagreed and objected some of his arguments, along with the intellectually dishonest discussion tactics he employs to beat his opponents.
As you agreed with his arguments, based practically exclusively on the respective approach mentioned, and "100% so", I naturally disagree with you.
The resume: I find the ICJ "wall" decision well
within the existing international and national law(s) and principle(s) of peaceful coexistence of nations, historically well-balanced and accurately accounting for the reality of the situation at place: you can build whatever you want to, but just on own territory.
It is a shame that the decision cannot be, on the well-known reasons, enforced.

Saying that, I think some of your responses to my objections are well argumented (in sharp contrast with Derek's ones), which probably mean I have to sharpen and exact my argumentation in that regard.

It seems to me I made my position on the discussed issue
pretty clear, and this the only reason I don't want to respond to a couple of points I still find your responses unsatisfactory on.

Jonathan Dresner - 7/20/2004

Chris,

The Seven Years' War is more about power restructuring than law: it was a wild guess.

The Napoleonic Wars, though, conclude with the Congress of Vienna, at which is established the principle of treaties between states, rather than between rulers, making treaty obligations binding across regimes. I see that as the first step towards a system of enforceable law, law which is not at the mercy of abitrary dictatorial whim.

Derek Charles Catsam - 7/20/2004

Chris --
Wrong, wrong, and wrong. Whre is the enforcement mechanism. We are talking here about whether a decision is binding or not as if this comes independent of enforcing the decision.
Again, you are saying that Israel should have gone before the courts instead of defending themselves ("driven to the sea") in 1967. Un. Be. Lievable.
And then I love the salty tough talk -- "if you don't like blah blah blah get out." But here's the thing. The US supports Israel. So for all the "if you don't like it . . ." talk, I'll tell you what -- the facts on the ground are this: We don't like it. And we're staying. If you don't like it, well, pass an advisory opinion.
What personal attacks Chris? You were the patronizing one, you continue to be, and then you accuse others of attacking you. No dice Chris. If you are going to whine, whine about things that actually exist and happened, as opposed to things that don't. It makes it easier for the rest of us to pay attention and pretend to take you seriously still.
And short of a law degree, is it not possible for someone to have any sort of scholarly legal training? Be careful here, Christopher. Because I know one Bill Leuchtenburg who does not have a degree in law, yet he has a pretty decent modicum of authority on matters legal-historical, which is what we are talking about here. Similarly, I'd be careful when you try in your maladroit way to hint that I am not qualified to talk on the issue. I think you might be in for a bigger catfight than you think on the credentials issue. I also think that resorting to argument by authority is a pretty clear sign that Adam and I are winning this debate, no matter what you and the ICJ thinks of Israel. And I like the "US-based" part of your own little ad hominem, as if you are not well aware of my experience on the ground in an array of places Africa and Israel, among others. And since we're at it -- if you want a pissing contest about our ability to speak with some authority on apartheid history and its ties to the history of Israel, you bring your superior self on over, because I'll gladly play some ball on that court. Where patronizing does not work, duplicitous innuendo apparently does. In any case, the whole "US based" thing is an odd argument for someone suckling at the teat of an institute based in Gainesville, which last time I was there was still in the US, irrespective of where you find yourself now. Now who's engaging in personal attacks? Difference is, yours aren't nearly as clever. Or as biting.
Hey -- let's have a little fun. How many of the judges on the ICJ who made this decision come from countries that themselves allow due process? And yet they are judging a country that does recognize that process. Curious and curiouser.
I'll take Israel's adherence to its own decisions over a feckless court with no enforcement mechanism. I don't care what the world's finest legal scholar and authority on who has the right to speak to the issue and who does not thinks. (Hint: Chris -- unless every single legal scholar in the world agrees with your viewpoint, your argument is pretty moot. Even if, gasp, the NYT published a piece that agrees with you. The other day they published one that agrees with me. There you have it.)
dc

Marc "Adam Moshe" Bacharach - 7/20/2004

I am reminded of a line from the B-movie, Judge Dred. A character's apartment building has been seized by criminals, who shoot down on Judge Dred while the hapless character is forced to find shelter in a trashcan. When he is arrested, he assures the Judge that if he had challenged the criminals or jumped out of the window to leave, it would have been suicide. "Perhaps," Judge Dred answered, "but it would have been legal."

An amusing story, and one that highlights the problem Israel faces. When Arab regimes violate the law, they face no punishment, no sanction, no condemnation from the UN. Had Israel relied on the UN to save it in 1948, or to prevent an invasion in 1967, both the Arab states, and the UN I suspect, would have had their dreams come true and Israel would be no more. Alas, they did not and rightly so. If America was somehow prohibited from responding to 9/11, can there be any doubt that any such law would have been ignored and rightly so? The law relies on 2 things: the coercion to enforce it by the lawmakers, and the respect to obey it by the law-recipients. The ICJ, as well as the UN, has neither, and I pray that they never do.

As for the Court taking the case, Marshall faced the same problems in Marbury v. Madison. His decision to legally abstain is often considered to have saved the court from either being a puppet of the president or irrelevant. In the eyes of many Israelis and Americans (including this one), the ICJ has chosen to be a puppet to the GA.

Marc "Adam Moshe" Bacharach - 7/20/2004

Chris,
If you are correct about the right of an Israeli judge to sit on the court (and I have no reason to doubt you) than I humbly recant that particular criticism.

Certainly, I challenge some of the claims in the article for being controversial and contestable, not that there is anything wrong with that, but my primary complaint lies more with the ICJ and the ongoing anti-Israel bias within the grater UN (although I am comforted that many of the major democracies urged the ICJ NOT to take the case).

I have little doubt that you would equally support a resolution condemning the wanton murder of innocent men, women, and children by Palestinians, or an ICJ case declaring such, but I can assure you, you will never get the chance. To date, while Israel has received more GA resolutions than any other nation on earth, the Palestinians have been explicitly condemned not once. Israel tried introducing a benign resolution condemning the murder just of children by Palestinian terrorists, but it was withdrawn having been amended to death.

IF Israel has violated international law (a claim that I believe is contestable depending on which provisions of which law are being claimed) then I would argue so too would any nation on earth under similar conditions, and certainly examples abound of how many of them have done exactly that and worse.

We part ways in significant respects on this issue Chris, but I value your insight and information. Please keep them coming!

Arnold Shcherban - 7/20/2004

Mr. Cat and Sam,

First - Mr. Shcherban - to you.

Second, I have to acknowledge your strict adherence to the pattern of distorting the opponents writing or ascribing them something they did not do, as I already mentioned, in my previous comments. This time you say
that allegedly I insisted on you using the terms that
you reject the validity of. One doesn't have to take ESL classes to see that I didn't say or write or mean such
a thing. But apparently one has to be a deliberate falsificator to fail to see it.

Meanwhile, any response to the essence of my comments
is given.

When arguments are scarce to come up with, the pseudos like you always resort to some minute distractions and
by your own definition "ad hominem screeds".

chris l pettit - 7/20/2004

None intended...

You have confused US law with international law interms of advisory opinions. In terms of US law, when a court is asked for an advisory opinion, that opinion is a non-binding interpretation of existing law used asked for so that the legislature of a state (or the nation) does not enact unconstitutional laws.

In international law, specifically pertaining to the ICJ, an advisory opinion is one that is asked for by the GA to clarify an ambiguous point in international law, or to rule on how a particular situation is situated in terms of international law (such as the legality of the use of nuclear weapons case). The opinion is binding, as the documents interpreted are existing treaties and conventions, with the decision of the Court dictating the interpretation of the law. It is the same as if two states were to bring their dispute to the Court. if you want a visual, think of it as a class action resolution passed to clarify an existing legal precedent...that is if you want to try and make it fit into a US interpretation.

And, yes, I am saying that Israel is wrong not to obey international law and follow the proper legal channels that were set up to govern the international community. As I said before...you don't like the UN Charter and the obligations that it entails as part of the international community...get out. Somehow I don't see the US or Israel doing that. You can disagree on ideology, but not on legality. And Israel would have an ad hoc judge on the panel if you like. 14-1 DC, 14-1 !!! Are you kidding me that you are going to argue that this is not a slam dunk decision? How naive can a scholar get? These justices are from around the globe! I note in the article that all are widely respected legal scholars...not political lackeys like the US and Chinese judges (even the French judge is widely respected at this juncture). There is no Israeli bias on the ICJ...just proper interpretation of the law.

There was an interesting editorial in the NYT yesterday (the 19th) about the case and how, if the Court would have refused jurisdiction and not ruled the way it did, its credibility would have been destroyed in the eyes of all but the US and Israel. While I would not go that far, the image of the Court would have been severely tarnished.

My credibility on legal issues, as well as my experience and scholarship, is well enough established to withstand the personal attacks of a non-legally trained US based history academic. You are a brilliant scholar DC, but I would encourage you to try and back off the personal attacks and stick to the issues, especially when you don't have the legal scholarship to back them up. I respect your right to a different ideology...but this is about the law and jurisdiction, not nation state sovereignty and might makes right versus international communalism and humanity.

CP
www.wicper.org

chris l pettit - 7/20/2004

Hey guys...

As I know where each of you is coming from...

Adam, the Israeli government was entitled to have an ad hoc judge sit on the bench of the tribunal, as was the PA. That they chose not to was a political decision. They had the option. You can view the procedures at the ICJ website www.icj-cij.org (I hope that link is right...if not a google search will suffice). There are also specific legal procedures that can be taken to withdraw from the jurisdiction of the ICJ that could have been undertaken. A procedural point, but still, if one acknowledges the validity of international law, one must follow all the proper procedural elements as well as substantive ones.

DC, to address a point you made a while back...the EU states, while making statements that the wall was illegal, then argued that the Court should not accept jurisdiction, a point addressed in the article. THis strengthens the point I made then that it was all a political statement and manuevering that had very little bearing on the legality of the case...I still find this to be true as they had legal steps they could have taken to deny the ICJ jurisdiction. By the way...that is democratic. you act as though there are no other solutions. I am surprised that as positivists (at least Mr. Simon), you guys are happy about the rule of law with the entire international community as sovereign...could it be that we want the US to be the sovereign?

Adam...I hope you know by now that I condemn all illegalities in the conflict. You acknowledged as much a while back. As an international human rights lawyer, I am hurt by the accusation (not that you made any) of any sort of bias. The reason that the article may seem to have a slant is because it deals with Israeli actions that violate international law. If you would like a hypothetical that articulates a court case condemning Palestinian actions I would be happy to write one. unfortunately, Israel has not brought the case and instead resorts to violations of international law to combat other violations...something expressly forbidden by the Geneva Conventions.

Please continue the discussion...more info on the specific conventions and their application to follow.

Good to see the responses and the hopefully continued cordial discourse (DC you seem to be getting a bit excited).

CP
www.wicper.org

Derek Charles Catsam - 7/20/2004

Chris --
Why not ask Israel to go before a court that consists of countries that hate it, who are amassed on their borders in 1967, rather than protect themselves? Are you that far off the deep edge, Chris? You are actually saying that Israel is wrong not to have gone before the ICJ in June 1967? As of right now, the only place where "Chris" and "Credibility" are anywhere nearby would be in an alphabetiocal listing. And even then "cockeyed," and "conniving" would come in between.
I am not certain that it is firmly established that the Thirty years War does what you say it does any more than the ones Jonathan mentioned. I buy WWI and WWII, sure. Hell, I would say that Korea is more directly related to the credibility of the UN than an invocation of the Thirty Years War.
We await, with baited breath I am sure, your clarifying our "confusion." I hope one of these days you will learn that you have not earned the right to patronize the rest of us. I fear that day is never going to come.
dc

Derek Charles Catsam - 7/20/2004

Ephraim --
I do have to wonder if an, um, United League of Democratic Nations might not have a solid foundation in NATO, the mission of which is increasingly unclear and/or obsolete, yet the configuration of which seems clearly geared toward liberal democracy. The UN can continue to hang around for limited humanitarian affairs and to remind us that antisemitism exists in the world. This way, perhaps no more lectures from the gentleman from Syria or China or Sudan on human rights, justice, or any other vitriol they might spew.
dc

chris l pettit - 7/20/2004

Avoiding DC's blind application of the facts to condemn only one side (yes, DC, that was a war crime and illegal...why don't you ask the Israeli government to take it before the ICJ and actually obey the rule of law?)...

The first of the three wars generally acknowledged as the events that led to the founding and legitimizing of international law, at least in the West, was the Thirty Years War. It was after seeing the horrors of that war that Hugo Grotius was motivated to write what is currently acknowledged to be the founding text of international law attempting to articulate rules and norms that would govern the international community. Unfortunately, this idea would be considered a utopian dream until the horrors of WWI and II caused the system to be legitimized (to certain parties). Since then the cynical use of the system by the SC, particularly the US and USSR when the latter was still in existence, has caused much of its problems. The Thirty Years War is also significant because it marks the period of transition from the power of the church and monarchs of divine rule to a more secualr nation-state system. now what is needed in this era of globalization is the next progressive step away from what is now a failed nation state policy into that of a truly global community of individuals instead of that based on states and invisible lines that hardly apply anymore.

Hope this clears things up Dr. Dresner. Your suggestion of the Seven Years War and Napoleanic Wars are interesting and worth discussing if you would articulate why you made those guesses. We could also discuss the Hague Conventions (or Declarations depending upon your preferred wording) of 1899 and 1907...one of the few positive things done by Tsar Nicholas II. These conventions were the first true attempts to regulate battlefield activities (banning of dum dum bullets, attacks on civilians, etc.). These two conventions were rapidly violated by all parties, first with the use of mustard gas and biological weaponry in WWI, then by attacks on civilians and the atomic bomb in WWII.

I will respond to the above confusion regarding the application of US legal standards and terms to international law and some other points soon.

Cheers!!

CP
www.wicper.org

Derek Charles Catsam - 7/20/2004

Hey, what about the war in which Egypt's president proclaimed that it was going to drive the Jews into the sea? The one where the armies of Syria, lebanon, jordan and Egypt were amassed against israel's borders. Could that count?
dc

Derek Charles Catsam - 7/20/2004

Mr. Shcherbian --
Let's make a deal. When you start writing a bit more coherently, I'll address your ad hominem screeds. You insist that I have to "use the terms" within the article, but I reject the validity of those terms. Coherence, Arnold, coherence. Wouldn't hurt you a bit. Might even help. Keep up with the ESL classes. They are not, as yet, taking hold.
dc

Marc "Adam Moshe" Bacharach - 7/20/2004

Ephraim,
You are right, of course. There is a great deal of good that UN does, including humanitarian aid, coordinating efforts to combat various diseases, and at time, gives legitimacy to a cause that is actually just and right.

However, if reform is possible (and it may not be with suspicion of the US at its peak in the world) it should be attempted.

Marc "Adam Moshe" Bacharach - 7/20/2004

Adam, Adam

1) "Never expected the absolutism in comdemning one party to the conflict and absolving another to come from such always been balanced observer, like yourself."

If you are implying that I condemn the Palestinians only while absolving Israel completely, I make so such condemnation or absolution. My point is simply that the United Nations as well as the International Criminal Court has an unfair bias against Israel that permeates many of its decisions.

2) "How can you say that you agree 100% percent with the obviously prejudiced commentator against another possibly also prejudiced one?"

Because quite simply I believe that Derek is correct in the points that he makes in his post.

3) "You even tried to transform the world-wide recognized(including the great majority of democratic states) as a blatant violation of international laws Israelis occupation of Arabs' territory to the step towards resolution of the Mid-East conflict?!"

Not in the article, and neither in any post have I seen quotes stipulating the so-called "world-recognized" fact that the occupation is a violation of all (or most) international law. Indeed, like domestic laws, international law can be argued based on interpretation of language and semantics. Some law scholars agree with you and some do not. The fact that the UN recognizes this (and places it above all other problem in the world) means little to me since I have little credibility in the organization when it comes to this matter.

4) "You talk about bias against Israel in the institution that awarded Jewish state with the right to form and exist as a sovereign state?!"

That is correct, just as I can charge the United States of racism even after it freed the slaves. Governments change, cultures evolve, opinions are moved. Are you suggesting that the UN's role in creating Israel (despite taking no steps to prevent its immediate destruction) somehow immunizes them from bias?

5) "You talk about bias against Israel in the institution that by one reason or another was never even discussed a resolution to implement its numerous resolutions against it by the threat of force in the course of 40 years(!), as it has done against some other countries that the UN had much less volume of the resolutions against."

The simple answer: the US would veto it. The fact remains that Israel has received more resolutions than any other country in UN history, more conferences, more condemnations, and more attention, despite the fact that even if its worst critics are correct, the death count and tragedy would not compare in number or scope to, say, Congo or Sudan.

6) "How about justice for South African negroes... How about justice for thousands of murdered by the clients of this country Nicaraguans that the UN was once trying to get, but was blocked again by this most humane and lawful(towards itself) country in the world?"

Justice for those groups would be nice, but I see no bearing of it on our current discussion. Indeed, the remainder of your post has little to do with Israel, but I will say that much of what you say is directly related to the UN's inability to recognize any international problem over Israel. AIDS, genocide, drugs, slavery in some parts of the world, all are given only modest attention compared to Israel.

Just listen to the rhetoric of Israel's critics and you will observe a pathological hatred in which any negative term will be used against it: apartheid, racism, Nazism, ethnic cleansing, genocide, and I have even heard slavery used before! This is not a reasonable disagreement, it is a fundamental difference in how a nation should be treated in comparison to other nations.

Jonathan Dresner - 7/20/2004

No, the Cold War does very little for international law, outside of military alliance and disarmament protocols.

The Napoleonic wars end with the Concert of Vienna, a huge step forward towards modern diplomatic standards, so I'm guessing that's it. But the Thirty Years' war also involved some interesting concluding treaties, and the Seven Years' war set the tone for global affairs for a century. So I'm still hoping Chris Pettit will step in and clarify.

Arnold Shcherban - 7/19/2004

He perhaps meant the summary of Cold War period...
Any takers?

Arnold Shcherban - 7/19/2004

Adam, Adam

Never expected the absolutism in comdemning one party to the conflict and absolving another to come from such always been balanced observer, like yourself.

How can you say that you agree 100% percent with the obviously prejudiced commentator against another possibly also prejudiced one?

Can't you see that the quality of your arguments suffered considerably from your methodological shift.

You even tried to transform the world-wide recognized(including the great majority of democratic states) as a blatant violation of international laws Israelis occupation of Arabs' territory to the step towards
resolution of the Mid-East conflict?!
Shame on you!

You talk about bias against Israel in the institution
that awarded Jewish state with the right to form and exist as a sovereign state?!

You talk about bias against Israel in the institution
that by one reason or another was never even discussed
a resolution to implement its numerous resolutions against it by the threat of force in the course of 40 years(!), as it has done against some other countries that the UN had much less volume of the resolutions against.
You want justice, Adam?
How about justice for South African negroes that not the UN, but this country (that I feel a strange love to, as one poet said) was blocking for many years, before it
though, just tentavily, came about.
How about justice for thousands of murdered by the clients of this country Nicaraguans that the UN was once trying to get, but was blocked again by this most humane and lawful(towards itself) country in the world?

How come that this country does recognize International
Court authority to charge and prosecute Milosevich, Pol
Pot, Jeng Sari and other its perceived enemies, but
refuse it the authority to even charge its own criminals
accused of war crimes and crimes against humanity and and the criminals from its client states (Greece, Brasil, Argentina, Chili, Haiti, Nicaragua, San-Salvador, Guatemala, Indonesia, and a dozen others).
How come that the unelected Iraqi's goverment(read: the US goverment) has a right to prosecute Saddam Hussein,
but Serbian elected goverment doesn't?
Why no one of you so observable and knowledgable commentators never even entertain such questions in
the most democratic country in the world, where no prosecution for open-mindness threatens you?

Arnold Shcherban - 7/19/2004

Derek,

Not only you are not good at math (this time seriously),
but your logic and common sense apparently leave much to
be desired.

You asked: <the ICJ itself refers to its decision as an "advisory opinion." How, precisely, is an 'advisory opinion" binding?>

You must have been kidding us, right?

To any common sense person the following paragraph taken from the article is the explanation:
"There have been several “experts” and news sources that have mistakenly claimed that the ICJ’s decision is non-binding. This is absolutely false and owes its existence to the failure of the UN and its member nations to fulfill their obligations under international law to help uphold the decisions of the ICJ. The opinions of the ICJ in advisory opinions are no different than the decisions of the Court in standard State v. State cases. The only difference is that the advisory opinions are requested by the General Assembly. One can play semantics and state that all decisions of the ICJ, or any court in the world for that matter, are non-binding unless individuals or governments are willing to abide by them. As with all courts, the ICJ has no enforcement mechanism and relies on the authority of the “rule of law” and morality to compel states and the UN into supporting its judgments and enacting the necessary sanctions and solutions."

The explanation given might not satisfy you personally,
but to use the well-known trick asking the question the answer to which has already been given in the article you write your comments on is not what one would expect
from the unbiased and honest commentator.

Further, like a belligerent teenager who wants to
fight, you pick on non-essential characteristics used, instead of commenting on the essence of the arguments/facts the terms have been used within.

The author's use of a term "apartheid" refering to the wall invoked your angry tirade, leaving unaddressed the the essence of the statements(s) the term was used(whether legitimately or not) in, i.e.:

Further, the author has never "actually" said the right of veto in Security Council violates international law.
You created this preambula for picking one more fight,
and to appear as a true supporter of the UN, in the
strict adherence to the hypocritic double standards of
the ones you obviously for with your both hands: US
right-wingers and imperialists. For them the UN was always good when it protected the US interests and the interests of its client states and close allies, and always bad (anti-American, anti-Israelian organization) when it does something that deviates, in one form or another, from the above; the power of veto coming
to the rescue in the latter situation.
It is not coincidental at all (and I'm sure even less shameful to you as to the shameless observer you are) that this country has used the veto power more than the rest of the Security Council members taken together!
This fact and the reasons behind it are by itself is
the topic for a very revealing book, though some of pertaining written material is available today.


A bit on questioned by you and the ideologues like you
the UN and International Court moral authority.

In your "right" opinion the membership of such countries as Syria, Zimbabve, and Libya abolish the UN and/or International Court moral authority.

So why this country and all your friends around imperialistic world never say anything about the moral authority of those bodies in regard of many other decisions made by them?
If only one their decision was right for your friends and/or you, then you moral argument is not only contradiction in terms, logically, but also clearly
makes you a clown of history.

E. Simon - 7/19/2004

A forum where censure might actually mean something:

http://www.ccd21.org/about.htm

However, Derek, does this or other proto-organizations that you know of actually have the wherewithall to provide a viable alternative to the United Nothings? I am sure you were being rhetorical with the suggestion, since, as of this moment, there's no way the US or Israel or any other nation would _leave_ the UN - there's more to lose than gain by losing one's say at the forum, no matter how inconsequential nor how fatuous things get there. But since these systems and organizations evolve and gain legitimacy (rightly or wrongly) out of a sense of momentum, must we truly start from scratch? I'm in agreement with you on the importance of freedom and democracy - aspects that Chris consistently forsakes in his legal calculus. We know where we need to start. The question is... does an organization which can supply those humble beginnings already exist? Is CCD it? Or will a continuation of the Clinton and Bush administrations' attempts to negotiate with other countries a reorganization of voting blocs in the U.N. along the lines of democratic and non-democratic countries get the job done?

Jonathan Dresner - 7/19/2004

"The international system that we know today has taken over 400 years and three major wars to become somewhat of a reality."

OK, WWI and WWII are pretty obvious landmarks for international law.... but I'm blanking on what the other one is: Napoleonic Wars? Seven Years' War? Thirty Years' War?

Marc "Adam Moshe" Bacharach - 7/19/2004

hahaha, you will get no complaint from me. Better to have 3 intelligent and cogent points and say that there are two, than to say you have any but have none (as I think we both have observed on this site too often).

Derek Charles Catsam - 7/19/2004

Adam --
And I agree with you. This is the problem with the UN -- it pretends that all states ought to be accorded a 1-1 status. So look at israel in the Middle East -- every state in the region has at one time or other called for its eradication, and i do not trust a single one of them now actually believes israel should exist. So these undemocratic nations, as you say, use the very democracy they deny their own citizens to condemn israel, which grants its citizens democracy even as its courts force the government to make concessions. And yet Israel is the unreasonable one here. Insane.
I am soon to propose a plan to get rid of the UN and start from scratch, using only democracies. Why the hell should the US, Israel, the UK be beholden to the petit tyrannies across the globe, not least of which are gathered in the Middle East? Why should I view a court as legitimate if it consists of judges from countries whose own citizens do not ahve due process? Why
are these countries given representation in a global body? How can they have anything to say on the matters of human rights, due process, will of the people, and the like? No, the US will veto. And the rest of the world will fulminate. And yet somehow I doubt that our checks will come back unendorsed as a result of fulminations, they will not reject US troops when their dictatorships are overthrown by other, worse dictatorships, and their citizens will not continue to clamor to have their shadows darken our soil. So forgive me if I do not lose sleep that a body over which Libya is the Human Rights Chair cannot manage to have its lead tribunal be anything more than a Kangaroo Court. Bah.
dc

Derek Charles Catsam - 7/19/2004

Obviously I said I was only going to make two points in my previous post. I look at it now and made three, with each point having sub-points. The lesson? Historians = not good at the math.
dc

Marc "Adam Moshe" Bacharach - 7/19/2004

I agree with Derek's post 100% (he simply beat me to the punch), and would like to add my own initial impression of this article.

A logic professor once told me never to defend a controversial conclusion with premises and assumptions that are equally controversial. In this case, the author is rendering a blanket guilty verdict on the State of Israel for virtually everything, or at least " almost all human rights and humanitarian law that exists" without providing quotes of the law or how exactly they are in violation. This, and many other politically charged statements (such using the term "apartheid wall") lead me to question the validity of the authors conclusions.

The problem with the court decision was that no citizen of Israel is permitted to sit on the bench, no real weight was given to Israeli security concerns, and that the verdict was predetermined. Although the plight of Palestinians was mentioned in vivid detail, no mention was made of the reasons for why the barrier was erected. The fact that the United States was the sole dissenter in the case demonstrated the political polarization of this issue.

Once, I supported the UN and UN institutions. However, it has become evident to me when dealing with Israel, that the UN and its institutions are nothing more than authoritarian regimes using their use of the international system to dictate terms to democracies. The barrier that Israel is erecting may be right or it may be wrong, legal or illegal, moral or immoral. However, as far as I am concerned, the ICJ has no moral authority to make such a decision, nor does the UN GA.

Indeed, I am at a loss at what Israel is expected to do. They tried negotiation, and they were blamed for its failure, they tried occupation and that was universally condemned, they tried targeted justice to avoid civilian casualties and again, international condemnation. Now they are trying separation, and once again, the international community has chosen to place it at the center of all attention.

Indeed, I have little doubt that could the UN pass a resolution hauling all Jews in the region into the sea, it would pass almost unanimously (with a US veto, of course), followed by a resolution condemning the Jewish bodies for clogging up the waterways.

The bias against Israel is undeniable and blatant, and because of it, I have very little tolerance for the entire institution.

Derek Charles Catsam - 7/19/2004

Two points.
Chris, as you know I disagree with you fundamntally on most of the issues here. I'll only pick at a couple here.
the ICJ itself refers to its decision as an "advisory opinion." How, precisely, is an 'advisory opinion" binding?
Second, Israel has its own court which has ruled on this issue, and importantly the Sharon government is responding to that. Why no mention? Oh, because it does not sustain the caricature (lord knows the anti-Israel crowd love their caricatures) of an unfeeling, intransigent Israel. But Israel is in fact responding to that court's decisions. A court that is legitimate, that did not make its decisions on historical antipathies, and that was actually responding to the complaints of a Palestinian. Not to let facts muddle things . . .
Third, will you knock it off with the "apartheid wall"? seriously. Let's keep in mind who brought the court case before Israel's highest court. You throw that term, apartheid, around all the time, and yet it simply does not hold. It does not work descriptively, it does not work historically. How many Africans were represented in South Africa's parliament? Yet Arabs are represented in the Knesset -- indeed, were it not for the Arab vote in Israel's parliamentary body, Oslo II would never have been able to pass, yet pass it did, despite the Jewish majority's opposition. Would that UN-Member Syria (Or Iran. Or yemen. Or -- the list could go on.) have so much concern for their minority populations. meanwhile Israel is protecting itself from attacks on its civilian population -- This too is a huge difference, as the ANC and Umkhonto we Sizwe intentionally avoided civilian targets (though not flawlessly) during the anti-apartheid struggle, and even that struggle only occurred after many, many years of attempted nonviolent struggle that was shot down at Sharpeville. At least have the historical integrity to pretend that you recognize the myriad differences between Apartheid South Africa and democratic Israel. Or acknowledge that you do not. But don't continue to cast cruel and illegitimate historical analogical aspersions into the idiot wind and think that they will go unnoticed.
And wait, did you actually say that exercising it veto power would somehow be in violation of international law? Are you serious? The Security Council does, in fact, predate the ICJ, does it not? And in any case, some laws are so noxious that they must be ignored, some court decisions so wrong, so political and fallacious, that the true crime would be to adhere to their malign dictates in the face of fatuous arguments about an international law the nature of which is highly decided.
Your conflation of truly evil regimes with Israel, the only state in the Middle East where Arab people can actually vote in a way that matters, where their rights are respected by courts, is staggering. But then again, the anti-Israel crowd is in and of itself staggering, as they priviledge terrorism over democracy, murder over justice, tyranny over liberalism. No amount of verbiage will overcome this noxiousness. You honestly believe that a body that includes among its membership Syria, Zimbabwe, and Libya has moral authority.
The ICJ slam dunking on an eight foot rim with an assist from countries that have in the recent past stated their goal as the destruction of the state of Israel does not impress me. Israel's courts at least understand the concept of a regulation-height rim. As recent actions have shown, the state of israel agrees, which is why they are making adjustments to the wall even as the craven handwringers in the UN sit back while Africans are slaughtered in the Sudan yet wave a disapproving finger at Israel. I can think of a much more appropriate finger that one might wave at the ICJ.
dc
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