The ‘lawfare’ crowd’s odd silence

Lawfare turns out to be a new garment for the oldest hatred.

By ERIC ROZENMAN
January 13, 2015 22:35
3 minute read.
ICC

ICC. (photo credit: REUTERS)

 
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‘Lawfare,” the abuse of international law as one element in the combined psychological-material war against Israel, depends on double standards coming and going.

On one hand, sweeping but false charges of Israeli violations of international law have been reiterated to the point of hardening into conventional wisdom. On the other, one noteworthy potential violation of international law by the Jewish state has been permitted to pass in silence. The contrast illustrates the bankruptcy, legal and moral, at the heart of the effort to delegitimize Israel.

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Key lawfare allegations include charges that a) Israel’s occupation of the West Bank is illegal, b) Jewish settlements in the territory are illegitimate, and c) Israel repeatedly has committed war crimes against Palestinian Arabs, most recently during last summer’s Operation Protective Edge in the Gaza Strip.

In fact, Israeli military occupation of the West Bank is not only legal but also obligatory, a result of its conquest in a war of self-defense in 1967 and retention in a similar struggle in 1973. Until determination of the sovereign status of this disputed territory in negotiations called for by UN Security Council resolutions 242 (1967) and 338 (1973), Israel must stay put. Though diluted somewhat by creation of the non-sovereign Palestinian Authority, legitimate occupation in the West Bank, including for security matters, continues in the absence of PA willingness to negotiate a conclusion.

Meanwhile, post-’67 Jewish communities in the territories reflect the League of Nations (later United Nations) Palestine Mandate recognition of the Jewish people’s right to live anywhere west of the Jordan River. Article 6 calls for “close Jewish settlement on the land.” Perpetuating Article 6 is Chapter XII, Article 80 of the UN Charter, sometimes known as “the Palestine article.”

And charges of “war crimes” during Operation Protective Edge last summer wilt before those who know better. Gen. Martin Dempsey, chairman of the US Joint Chiefs of Staff, has remarked regarding the IDF’s performance in Gaza, “Israel went to extraordinary lengths to limit collateral damage and civilian casualties.” The UN has estimated 3:1 and 4:1 non-combatant to combatant fatality ratios for US and coalition forces in Afghanistan and Iraq, respectively. Israeli sources have found a 1:1 ratio for Gaza deaths last summer.

But when it comes to what appears to have been one particular, large-scale Israeli violation of international law, “the world community” remains conspicuously mute. That apparent transgression was Israel’s 2005 withdrawal from the Gaza Strip.



Its unilateral nature seems to have contradicted resolutions 242’s and 338’s call for direct talks. The withdrawal also appears contrary to the spirit of the 1993 letter from Palestinian leader Yasser Arafat to prime minister Yitzhak Rabin, in which Arafat committed the Palestinian side to meeting the Israeli expectation of solving all outstanding disputes by negotiations.

“Peace process” milestones including the 1995 Israeli-Palestinian interim accords and 2003 diplomatic “road map” sponsored by the United States, Russia, UN and European Union referred to 242 and 338 and presumed a negotiated outcome.

Whether the Gaza withdrawal was good or bad diplomatically or militarily is not the question here – though the necessity and international unpopularity of Protective Edge and Operations Pillar of Defense and Cast Lead before it certainly raise some. For lawfare proponents, the question ought to have been – but never was – did withdrawal meet international requirements, the same requirements Israel rightly demands Palestinian Arabs meet? The CIA World Fact Book shows dotted lines between Israel and the West Bank, and Israel and the Gaza Strip. Legends on the maps note these are armistice lines (from 1949 with Jordan, 1950 with Egypt), and “permanent status [of the territories is] to be determined through further negotiation.”

Through negotiations. Not by Palestinian Authority “statehood” end-runs at the UN or persecution of Israel by prosecution before the International Criminal Court. Not as result of self-declared Israeli withdrawal.

Why didn’t “the world community” condemn Israel’s retreat from Gaza while unjustly excoriating it over occupation, settlements and self-defense? Why doesn’t it now uphold international law, bar the ICC to the PA and order the PA back to the negotiating table? Perhaps because, having accommodated Palestinian intransigence, it requires abdication of Israeli rights. Such double standards are, with demonization and delegitimization, part of Natan Sharansky’s “3-D” test for anti-Semitism. Lawfare turns out to be a new garment for the oldest hatred.

The writer is Washington, DC, director of CAMERA, the 65,000-member, Boston-based Committee for Accuracy in Middle East Reporting in America. Any opinions expressed above are solely his own.

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