Michael Berkowitz
Michael Berkowitz

Things I Haven’t Heard about Israel – Part 2

“Settlements are illegal.”

So that’s something I have heard, of course.  We all have.  What I haven’t heard is a discussion of how this is a stand-in for “Settlements are wrong.”  Which it clearly is.  Why would people demonstrate – not to mention riot, not to mention condone murder – over a legal issue, especially one as abstruse as whether a certain section of the Fourth Geneva Convention applies to Judea and Samaria, a case whose facts are, from what I understand, sui generis.

(And doesn’t the mention of violating the Geneva Convention conjure up WWII movies with POWs and civilians being tortured and summarily executed?  The conventions at issue here have nothing to with any of that, but I suspect that the people ratcheting their outrage up for a good shout at The Settlers make the association in their hearts.)

So here’s the thing:  I’m in no position to make a case for the legality of the settlements.  I can point you to a talk given by Professor Eugene Kontorovich that I find persuasive, as well as a talk by his colleague Prof. Jeremy Rabkin on the general overreach of “human-rights law” (which is fun, in addition to informative), but so what?  One can surely find many more talks and essays making the opposite case.

And if we were the International Court of Justice deciding an actual case we might want to give much more weight to the preponderance of professional/scholarly opinion.  I have in fact been told, by another professor of international law who was generous enough to answer my layman’s questions, that the minority opinion is simply nullified.  Then again, part of his reasoning was that international law is not meant to be a repository of “timeless truth”, nor is it a “moral theory” and the claim against settlements is not a moral claim.

I find it impossible to credit Shalom Achshav, Students for Justice in Palestine and the editors of Haaretz with referencing the law in this way.  They are clearly saying that settlements are wrong and that we know that they’re wrong in part because they’re illegal.  It’s precisely to circumvent a detailed discussion of settlements’ morality that they appeal to the authority of International Law.

I also find the professor’s contentions about international law unpersuasive because I don’t think that we citizens of the world would be satisfied with a legal system with no moral valence.  Yes, when we’re talking about the agreements that allow mail to be delivered between countries and airplanes to land everywhere, but not when it comes to things like war, control over territory and the treatment of civilians (and in fact Rabkin makes exactly this distinction between types of international law).  People intuit that the latter are meant to have moral valence, in which case it becomes relevant to ask questions like “Why in the world shouldn’t the law about acquiring territory distinguish between offensive and defensive actions?  Would the world be better off if a state could attack, lose and get a do-over?”

Let the people who oppose Israel make their best case, but if they’re going to lean on the Law as moral authority they may find it a weak reed – in any case it’s in no way a conversation-stopper.

As to the conversation itself?  Well, as I said, Kontorovich makes sense to me, though I’m willing to hear opposing arguments.  In the large I think it makes sense for Judea and Samaria to be part of Israel and for Jews to live there.  (And no, I’m not one of those people who believe in the talismanic properties of names, but “Judea and Samaria” are certainly no worse than “The West Bank” and considerably better than “The Occupied Territories”, so why not?)  The only issue for me is the status of the Arabs living there, but that’s for another post.

On the meta-conversation, though, which is what this post is really about, I’ll point a few things out:

I like the idea of a court-of-last-resort for international disputes as much as the next fellow, but I can’t imagine Israel getting a fair shake there.  I’m sure that some international institutions are more serious than, say, the UN Human Rights Council (which I just heard Irwin Cotler point out is itself in clear violation of the UN Charter), but that’s a long way from inspiring actual confidence.

Similarly, when we talk about the “preponderance” of practitioners having a certain opinion on Israel, I’m unimpressed.  What are the stakes for them, other than social standing, and is a pro-Israel or anti-Israel stance most likely to enhance that?  And if you doubt that such considerations can shape the opinion of a whole professional community, behold the Wuhan Lab Theory debacle.

Giving moral weight to the legal opinion against Israel is a choice.  If you’re doing it because its rationale makes sense to you, that choice is unexceptional; otherwise you’re projecting a predisposition against Israel onto the legal question, so claiming that Israel is wrong because it’s breaking the law is circular.

I try to avoid ad hominem remarks, but given that this whole conversation is occasioned by groups of people swooping in like Justice with Her Shining Sword to wag their fingers at Zionists it makes some sense to wonder about the source of their outrage, and its selectivity.  I understand why Israel is held to the standards of a Western democracy, but that somebody enclosing his porch in Efrat generates more protests and calls for boycott than events in China, Burma, Ethiopia and Ukraine begs some explanation.  So does the unique demand that hundreds-of-thousands of Jews living in Judea and Samaria be evicted from their homes.  So does the idea that among the myriad serious violations of international law occurring at any given time, this purported violation alone cries out for enforcement.

About the Author
Michael and family moved from NYC to Alon Shvut in 1986. He works in Software; blogs sporadically on education, public policy and whatever else comes to mind; chairs the boards of two educational institutions and practices philosophy in the ancient tradition of corrupting the minds of youth.
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