Responding to Prof N. Berman

To address the response of Prof. Berman to my previous post on international law and Israel’s legality to administer Judea, Samaria and Gaza or, at the very least, to facilitate and encourage Jewish residency therein, requires more than a comment box so I’ll devote this post to the subject.


I will simply break up his response and deal with it, section by section. I do so because Prof. Berman deserves the attention and because it seems he is trying to defend an approach which I find abhorrent.
To the matter at hand:
Yisrael, Yisrael - oy! In the spirit of this bein-ha''metzarim period, and since we''re all in mourning over the horror in Burgas, I''m not going to respond in detail to your post here (especially not to the personal invective).
I don’t really grasp the need to insert the Burgas horror except perhaps to highlight that Arab terror is not dependent on what we Jews do in the Land of Israel but what we represent. And, if it isn’t clear, Arab/Islamic opposition to Zionism does not depend on how much land we “occupy” or “colonize” but the very ethos of Jewish nationalist expression is the problem. We, as Jews, are an existential threat to Islamic ideology, very clearly expressed in the Hamas Charter (“…the land of Palestine is an Islamic Waqf consecrated for future Moslem generations until Judgement [sic] Day. It, or any part of it, should not be squandered: it, or any part of it, should not be given up...Palestine is an Islamic Waqf land consecrated for Moslem generations until Judgement [sic] Day” – Art. 11) and less so in the Fatah approach which is defined as the “post-1917” model (“the beginning of the Zionist invasion” – Art. 6).
And I deny employing any personal invective.
Rather - I encourage people to read my full article at Times of Israel. But for those who don''t have the time, I want to correct one serious mis-impression conveyed by the title of your post: There''s nothing ''post-modern'' about the approach to international law taken in my piece. On the contrary, its legal analysis is thoroughly mainstream and shared by the overwhelming majority of international lawyers - particularly in its attempt to give credit to international law for having evolved beyond a past in which it was thoroughly entangled with colonialism. Indeed, it is a hallmark of critics of international law (sometime stigmatized as "post-modernist") to argue that international law remains mired in its colonial past and has not moved much beyond it.
This claim of “entangled in colonialism” and “mired in its colonial past” is indeed a post-modern tact. I repeat my main criticism of Berman’s paradigm: Zionism received recognition of its just claims for a national home through the proper avenues of international law. Those just claims pre-dated colonialism and existed in their own right for many centuries. Were all fifty-one member countries of the entire League of Nations who unanimously approved the Mandate colonizers? Was America who attached itself to the Mandate through the Anglo-American Convention? By the way, if Berman is so upset of the link then what does he say to the existence of Iraq and Syria and Lebanon? If that is his standard, Jordan surely has no right of existence. These countries were a product of international law exactly as Zionism, well, almost as there was a difference in the Mandate category (“The Mandate [for Palestine] is of a different type from the Mandate for Syria and the Lebanon and the draft Mandate for Iraq…” - Palestine Royal Report, July 1937, Chapter II, p. 38 and “…Palestine was different from the other ex-Turkish provinces. It was, indeed, unique both as the Holy Land of three world-religions and as the old historic national home of the Jews. The Arabs had lived in it for centuries, but they had long ceased to rule it, and in view of its peculiar character they could not now claim to possess it in the same way as they could claim possession of Syria or Iraq.” - Ibid. p. 40. See here). Do the Arabs reject their own legitimacy as stemming from that same source?
After all, this was tried by the Arabs early on but the Arab Revolt a la Lawrence was as much “mired” as Zionism was. Why ignore that? Why does Berman not go out and fight the legitimacy of Arab nationalism? 
In this one way, in fact, it is the Levy Commission''s analysis that has much in common with left-wing critics of international law due to its placing colonial-era documents at the center of its analysis and refusing to note almost a century of legal evolution beyond that era. Finally, the conclusion of my piece, which you do not cite, is a plea to Zionists to reject the notion that the legitimacy of Zionism depends on citing such documents. I do not believe that the legitimacy of Zionism depends on alliances with the unsavory maneuverings of imperial powers in the waning days of European colonialism. I also believe that right-wing harping on such alliances has contributed mightily to discrediting Zionism. During this period of the nine days, I think it is in keeping with Yirmiyahu''s message in Eichah and elsewhere to reject those kinds of associations. And, instead, to heed the words of Tehilim: "al tivtechu be-nedivim" - "do not put your faith in princes" - especially not in the princes of European colonialism who gathered in San Remo and elsewhere to divide up colonial spoils. Gut Shabbes!
I appreciate his passion for Zion, but Berman could best assist Israel by joining me and many others and denounce this cultural narrative of a law, a law the evolutes, that is manipulated to discount the very correct view that (1) there is a Jewish people that is a nation; (2) that nation possesses rights that are inalienable and that includes the right to reconstitute its national home, immigrate to it and settle it; (3) those rights are not dependent on what the nations say or decide but are independent - however, of course, it is advantageous that we should have world opinion and support on our side. But to achieve that, it does no good to renounce our rights and worse, to ascribe to them a “colonialist” construct.
What Israel does politically is one thing. Prof. Berman and I could disagree on extending sovereignty to Judea and Samaria or recognizing a state of “Palestine” in the territory that was to become a Jewish National Home (partitioned or cantonized this way or that – all rejected by the Arabs in any case).
What we should be arguing is whether “the legitimacy of Zionism depends on alliances with the unsavory maneuverings of imperial powers in the waning days of European colonialism”. Zionism’s legitimacy is found in a 3,000-year old history, increasingly .confirmed by archaeological finds (not a “narrative” myth), of a Jewish national presence in Eretz-Yisrael. It is found in every religious ritual and cultural practice from birth to grave of every Jew. It is found in the writings and testimonies of non-Jews.
It exists and existed before Balfour and Versailles and San Remo and Geneva. All the documents and agreements and decisions of these locations simply verified and recognized the truth. The end of the First Exile – for which we read the Eicha Berman suggests I recall – was facilitated by Cyrus’ Proclamation as noted: “Scholars have linked one particular passage from the Cylinder to the Old Testament account: ‘ From [?] to Aššur and [from] Susa...[to] the sacred centers on the other side of the Tigris, whose sanctuaries had been abandoned for a long time, I returned the images of the gods, who had resided there [i.e., in Babylon], to their places and I let them dwell in eternal abodes. I gathered all their inhabitants and returned to them their dwellings.’ This passage has often been interpreted as a reference to the benign policy instituted by Cyrus of allowing exiled peoples, such as the Jews, to return to their original homelands”. 
The return for the Second Exile was assisted by what Berman denounces as happened a century ago.  Odd.
In any case, I wish Prof. Berman a Shavua Tov/Gutte Voche.