The ‘Alice in Wonderland’ world of international law


Last year, the United Nations Human Rights Council commissioned and then endorsed a report condemning Israel for alleged violations of international law during its successful Gaza campaign. The author, Judge Richard Goldstone, is an expert in International Law and Human Rights, having “cut his teeth” both in Yugoslavia and in the Post-Apartheid years of South Africa. The UN’s determination to condemn Israel while saying little about Hamas should come as no surprise. It’s anti-Israel bias is legendary. But that’s not the end of the story. Logic tells us there must be another side.

Judge Goldstone is proudly Jewish and “pro-Israel.” He sits on the Board of Hebrew University. He must have a rationale for his anti-Israel conclusions. And what of the many other human rights organizations — their accusations of violation of international law can’t all simply be blamed on anti-Semitism, can they? And why is it that the same terms come up all the time — “collective punishment,” “disproportionality,” etc. What do these terms mean and why are they used so often? At the UN hearing on the Goldstone report, Col. Richard Kemp, the former Commander of British Forces in Afghanistan testified, saying “During Operation Cast Lead, the Israeli Defense Forces did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.”

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How can this be the same army that is routinely condemned for Human Rights violations?

Welcome to the topsy-turvy world of International Law.

To understand the UN and international law, the starting point must be Article 51 of the UN charter. It forbids all use of force except for “self-defense if an armed attack occurs.” Under this article, Israel’s famous and praised raid on Entebbe was found to be illegal. Similarly, the 1967 war in which Israel saw its enemies preparing to attack it and acted preemptively, was also a violation of Article 51.

The U.S. has a problem too.

It was also a violation of international law for the U.S. to attack the Taliban in Afghanistan. Although they aided and abetted Al Qaida in the murder of 3,000 people and were prepared to do so again, they were not actively engaged in an attack against the U.S. and so our leaders could be considered war criminals, too (and they have been threatened with arrest in England and elsewhere).

Under Article 51, because no action is justified until after an attack, a nation is helpless to help itself even as it watches its attackers prepare for the attack, or knows of the accessories who have aided and abetted the attack.

In our society, we can call the police before the burglar gets into our house. But there is no international police force for nations.

Article 51 says the burglar has to come in before we take action. And that’s not all. Let’s say the burglar is in the house but he stops and leaves for a while, taking a break from stealing. International Law says he has to have a chance to rest. You see, if an aggressor attacks but then stops to rest before aggressing again, he cannot be harmed because no “armed attack” is occurring at that moment.

What about proportionality?

Article 49, which is contained in the Geneva Convention, says a state is legally allowed to unilaterally defend itself and right a wrong, provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante. That’s why in Lebanon, Israel was not condemned for trying to get its captured soldiers back. It was condemned for doing more than was deemed “necessary.” Similarly, in Gaza, proportionality means that if a rocket is fired from a school and the shooters wait there for the return attack, they can be fired upon. Even then though, the counter-attack must be pinpointed against them. Any broader attack would be viewed as disproportionate and targeting civilians. And if the shooters immediately run away, the nation fired upon simply cannot return fire, and must wait for the next attack.

In short, when Israel and the IDF are accused of international law violations, not every accusation is based on anti-Semitism or even anti-Zionism. There are those out there who are rigorously and accurately applying International Law and finding that Israel comes up short.

But the problem is not Israel. It is the state of International Law — hopelessly na ïve and ill-equipped to deal with the threats to world peace posed by our current enemies – international terrorism. Of course, first of all, terrorists don’t care about international law, other than to take advantage of it to use against the West. Second though, the current state of the law turns logic on its head. It bestows rights on the aggressor, while denying rights to the victim. It assumes that nations will ultimately be able to defend themselves and their citizens without the need for aggression. In today’s world of global terror, this is obviously and quite simply, a false premise, perhaps born of utopian dreams and innocence at the end of WWII, but wrong nonetheless.

In order to protect the values we cherish the most, we in the U.S. and the West, must understand that these condemnations against Israel are not simply “more of the same” anti-Israel rhetoric. First, they certainly are often attempts to delegitimize the State of Israel and the IDF and when that is the case they must be identified and addressed as such. But more insidiously and more dangerously, many of these international condemnations, often brought by leftist “human rights” organizations and NGO’s are also a threat to our current and future ability to combat world terror, whether it is in Iraq or Afghanistan, Somalia, England, Spain, or New York. These organizations must be marginalized as being misguided, and most importantly the people and governments capable of seeing the absurdity of the current state of the law, must rise to change it. The bad guys are cynically using the topsy turvy International Laws against us, laughing all the way to the UN. We, the truly good guys, can no longer afford to indulge them.

David A. Rubin is a local attorney and the Chair of the local Anti-Defamation League’s Israel Advocacy and Education Committee.