“Israel”: Colonial State-Making

International law has utterly failed to halt or even slow Israel’s brutal colonial project. The institutions of law can be tools in our political movement, but they cannot liberate Palestine on their own.

A new pathological breed is born before our eyes.

“If you do something for long enough, the world will accept it. . . . International law progresses through violations.”

Review of Justice for Some: Law and the Question of Palestine (Stanford University Press, 2019).

Colonial State-Making

Secretary of State Mike Pompeo announced earlier this week that the Trump administration would no longer recognize Israeli settlements in the West Bank. Pompeo’s comments signal a technical departure from his predecessor’s. In 2016, John Kerry declared Israel’s settlements to be “inconsistent with international law.” Similarly, during Israel’s sniper attacks on the Great March of Return in Gaza last year, five House Democrats implored Israeli soldiers to “exercise utmost restraint in the use of deadly force and to fully comply with international law.”

Excerpt
At the heart of Israel’s legal work lies its persistent claim that the unique circumstances of Israel and Palestine constitute a state of exception, or a sui generis situation (literally “of its own kind”).

By claiming that no existing legal framework fully applies to its relations with Palestinians, Israel has gradually established its own legal models: as a sovereign state with legal powers to declare such an exception, Israel can claim that it’s acting within the bounds of law.

“A sui generis framework maintains the veneer of legality while producing a violence that ‘shed[s] every relation to law,’” Erakat writes. Indeed, it was this very exception that Mike Pompeo invoked in his announcement this week.

Trump’s reversal of Obama’s position on the legality of settlements was “based on the unique facts, history, and circumstances presented by the establishment of civilian settlements in the West Bank,” he said.

This legal window dressing has proven essential for cultivating Israel’s (misleading) image as “the only democracy in the Middle East.”

Israel’s governing state of exception emerges from the British government’s creation of a “special regime” in post-World War I Palestine, when it sought to govern an area where native Arabs constituted 90 percent of the population.

The Balfour Declaration of 1917, which called for a “national home for the Jewish people” in Palestine, worked to deny Arab Palestinians the status of a recognized political community.

Zionists justified this political erasure on the grounds that Palestine was, in the words of Lord Balfour, “absolutely exceptional.”

By incorporating the declaration verbatim into the Mandate for Palestine in 1922 — making Britain the mandatory power in Palestine — the League of Nations “institutionalized the framework of exception” by “transforming British colonial prerogative into international law and policy,” Erakat writes.

Palestinians’ claims to legal redress were thus rendered nonjusticiable.

This predicament was only further entrenched with the establishment of Israel in 1948.

“The state’s establishment retroactively legitimated Israel’s founding violence because, not only was the violence used in the service of a public interest defined by the nascent settler sovereign, it also embodied a claim of new lawmaking authority,” Erakat argues.

“Therefore, once diplomatic recognition was extended to Israel, its actions in pursuance of its statehood become beyond legal and diplomatic challenge.”

New Legal Frontiers

Israel’s occupation of the West Bank and Gaza in the aftermath of the June 1967 war created an opportunity for the state to make novel claims about international law that served to consolidate its land theft and ethnic cleansing.

The occupation forced Israel’s lawyers to confront a major question of international law: did Israel’s presence in the West Bank and Gaza constitute an “occupation”?

If so, international law would require that Israel work toward a political solution to restore a displaced sovereign’s authority — meaning Israel would have to give up control over these territories.

On the other hand, if the territories were not occupied as a matter of law, international law would require that Israel grant citizenship to the territories’ Palestinian inhabitants, thus nullifying Israel’s goal of a Jewish demographic majority.

Yehuda Zvi Blum, Hebrew University law professor and Israeli ambassador to the United Nations, resolved Israel’s dilemma in a 1968 scholarly article.

Consistent with the 1922 mandate’s political erasure of Palestinians, normalized later by Israel’s creation, Blum “exceptionalized” the West Bank and Gaza Strip by claiming that they had no sovereign power prior to the war, thus rendering void the law’s requirement that an occupying power maintain the sovereignty rights of a nation under occupation.

Rather than completely eschewing occupation law, however, Blum insisted that Israel should abide by its humanitarian provisions for the sake of assuming quasi-legal control over the territories, and creating the appearance of abiding by occupation law.

Under this sui generis legal regime, Erakat writes, Israel “could exercise its authority . . . without either preserving the sovereign rights of its inhabitants or absorbing them under its civil jurisdiction,” thereby suspending Palestinians in a “legal vacuum with only attenuated legal claims to humanitarian relief.”

After decades of effective legal work by Israel, Palestinians’ already nearly nonexistent capacity for pursuing legal recourse was extinguished even further.

Israel’s rule-of-law framework enabled it to enjoy “both the powers of an occupant and a sovereign in the [West Bank and Gaza], while Palestinians enjoy neither the rights of an occupied people nor the rights of citizenship,” as other scholars have written.

“An Armed Conflict Short of War”

The next major inflection point in Israel’s legal work occurred as Israel began to use exceptional military force — most notably public assassinations — during the Palestinian uprising of the early 2000s known as the Second Intifada.

By claiming the right to use a greater amount of force than usually available to an occupying power under conventional interpretations of international law, Israel crushed the intifada with the legitimating force of a liberal rule-of-law framework.

Consistent with this sui generis tradition of applying its own legal framework, Israel strategically avoided classifying its military operations as either of the two types of war recognized under international law: neither an international armed conflict (IAC) nor a non-international armed conflict (NIAC).

Instead, Israel claimed that it was engaged in an “armed conflict short of war.” To classify the conflict as a war against a liberation movement (IAC) would recognize Palestinians’ right to use force in pursuit of their self-determination, enshrined in international law in the 1970s.

Similarly, calling it a civil war (NIAC) would “unravel the false partition separating Israel from the Occupied Territories,” Erakat writes, and “acknowledge Israel’s maintenance of a singular, discriminatory government.”

By claiming that these existing legal frameworks did not sufficiently apply to its self-proclaimed ­sui generis conflict with Palestinians, Israel asserted the sovereign right to create its own framework for regulating war.

As Erakat puts it, “Israel deliberately exceptionalized its in fact non-exceptional confrontations with Palestinians in order to expand its right to use force and delegitimize any responsive force.”

This set the tone for its massive military assaults on Gaza in the decade to come. In short, Erakat asserts, “Israel literally created new law for colonial dominance.”

Violations Become the Norm

Erakat’s goal isn’t to provide a book-length rebuttal to all of Israel’s novel and dubious legal arguments, but rather to show how Israel’s strategic deployment of international law at critical junctures over the past century — importantly, with the backing of the United States — has functioned to consolidate its political and military victories.

Although Israel’s legal claims may lack merit, to denounce Israel’s actions as violations of the law is, by itself, a fruitless endeavor.

In a geopolitical context that strongly favors Israel, international law, for Erakat, is not a particularly helpful resource for winning Palestinian liberation.

For one, it lacks a hierarchal enforcement model. Unlike US domestic law, international law has no supreme court to issue rulings that would be binding on all nation states.

Rather, it is fragmented among various institutions and mechanisms that correspond with specialized areas of law.

Moreover, international law sources much of its substance from custom — how states, especially powerful ones, behave and what they believe is legal. I

n this context, the enforcement of international law “reflects the measure of political will and the prevailing balance of geopolitical power,” Erakat writes.

“In cases where there is no political will to compel a state to comply with the law, violations become the norm rather than the exception.”

The United States’ drastic policy shift on Israel’s assassination program during the Second Intifada neatly illustrates the malleability of international law.

Although several top US officials initially criticized Israel’s assassination program, Al-Qaeda’s attacks on September 11 changed the calculus.

As Washington adopted its own assassination program on a global scale, “US opposition transformed into explicit collaboration with Israel,” tempering international criticism of Israel’s practices and bringing the “once unacceptable within the realm of possibility.” The ramifications of this shift, Erakat argues, were huge.

Had the United States maintained its opposition to targeted killings and to the framework of “armed conflict short of war,” Israel’s actions might have remained somewhere between a controversial proposition and a violation of international law.

However, because of diminishing US protest . . . Israel’s violations steadily escaped the zone of brazen violations and moved into the scope of legitimacy.

As though to prove the point, Daniel Reisner, former head of the Israeli military’s International Law Division, boasted, “If you do something for long enough, the world will accept it. . . . International law progresses through violations.

“We invented the targeted killing thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal molds. Eight years later, it is in the center of the bounds of legitimacy.”

Law’s Emancipatory Potential

That international law is not an effective starting point for achieving justice in Palestine is a vital insight for leftists developing a progressive foreign policy.

Justice for Some makes clear that winning Palestinian freedom will require confronting the geopolitical power structure that gives international law its meaning.

Insurgent Democrats like Bernie Sanders and Alexandria Ocasio-Cortez are on the right track when they propose using US aid as leverage against Israel’s discriminatory practices.

Because Washington’s diplomatic, political, economic, and military support for its client state in Israel has been a “necessary and sufficient condition” for Israeli colonialism, the United States has the power to uniquely influence Israeli policy.

Although Erakat provides a deeply compelling account of how international law has adeptly serviced Israel’s needs, she does not believe that law has no role to play in the road to liberation. To explain law’s operative value, she offers a metaphor for law as the sail of a boat: “The sail, or the law, guarantees motion but not direction.

Legal work together with political mobilization, by individuals, organizations, and states, is the wind that determines direction.” The wind, in her view, is what can make law work for Palestinians.

To capitalize on law’s emancipatory potential, Erakat argues that “the law must be wielded in the sophisticated service of a political movement.”

While a purely legal strategy may attract proceduralist liberals who fetishize law as the savior of the oppressed, it lacks the chops to challenge the power structure that has “placed Palestinians outside the law.”

Only a radical political project can do that. For Erakat, the revolt of the Third World in the 1960s and ’70s, before it was ultimately crushed by imperial restructuring toward global neoliberalism, set a good example: it began to create a geopolitical context that made claims for legal redress by dispossessed people more justiciable.

Despite ubiquitous pleas from liberal Zionists, making sure that Israel complies fully with international law does not guarantee justice for Palestinians. International law isn’t designed for such a task.

“Raise the sail,” or the law, “when useful, drop it when harmful, and stitch together a new one when possible,” Erakat recommends.

As is the case in liberation struggles elsewhere, winning freedom in Palestine requires a mass political movement in which law functions as a tool rather than a substitute for politics.

Only within such a movement can international law be deployed in service of justice, rather than against it.

Let’s Be Clear: Israel Settlement in Palestine Policy Constitutes a War Crime. STILL.

Israeli colonial settlements in the occupied Palestinian territories are not only illegal under international law, they are war crimes…This constitutes a major threat to international peace.

A toxic mix of white supremacy and Christian Zionism

Secretary of State Mike Pompeo’s declaration Monday that the United States doesn’t view Jewish settlements as inconsistent with international law – i.e. illegal – has delighted the settlers and their supporters. It gave Benjamin Netanyahu a much-needed shot in the arm at a crucial political juncture. It could help Donald Trump solidify evangelical support in advance of his critical year of an impeachment process and an election campaign. It could very well serve Pompeo himself, who is eyeing a Senate run in Kansas, where evangelicals comprise a third of the population.

Israeli colonial settlements in the occupied Palestinian territories…are not only illegal under international law, they are war crimes…This constitutes a major threat to international peace

 ALL Israeli settlements in the Occupied Palestinian Territories (OPT) are illegal.

  • Israel’s long-running policy of settling civilians in occupied territory amounts to a war crime.[1]

This needs to be clearly said now, without ambiguity. The United States government, as sponsor of the current ‘peace talks’ between Israel and Palestinians, must uphold rule of law and human rights. Despite the fact that the U.S. has historically taken the same position as the international community that Israeli settlements within the OPT are illegal, they have chosen to prevaricate in recent years, using words like ‘unhelpful’ or ‘illegitimate’ to describe settlement building by Israel.

This does favors for no one. Not the United States, not Palestinians, and not Israel.

[pullquote text=”Israel’s long-running policy of settling civilians in occupied territory is considered a war crime under the statute of the International Criminal Court (ICC).”]This equivocation does, however, help sustain the cycle of violence and perpetuate further violations of international humanitarian and human rights law.

The West Bank, including East Jerusalem, and the Gaza Strip all remain under effective control of the Israeli government. The legal obligations for any occupying power are outlined in international humanitarian law (IHL), particularly the Fourth Geneva Convention. Palestinians living in the OPT are considered protected persons under the convention, which Israel has ratified.

Israel argues that a Jewish presence has existed on the West Bank for thousands of years and was recognized by the League of Nations in 1922. But these Palestinian Jews are not the irregular Jews of Europe who came to conquer non-Jews.

IHL stipulates states are not to transfer their own civilians into territory they occupy, or to forcibly transfer protected persons from or within an occupied territory. States are also forbidden from destroying individual or collective property in an occupied territory, except when this is rendered absolutely necessary by military operations.

Under Israeli law, settlements ‘authorized’ by the government are legal while smaller, ‘unofficial’ outposts are illegal. Sometimes the Israeli government retroactively ‘legalizes’ previously unauthorized outposts. International law does not make any such distinctions; all Israeli settlements in the OPT violate the Fourth Geneva Convention.

The international community has consistently recognized that settlements contravene international law and create a situation which perpetuates a range of violations of Palestinian human rights including, but not limited to, discriminatory policies based on nationality, ethnicity and religion.

The United Nations Fact Finding Mission (FFM) on Israeli Settlements found “a multitude of the human rights of the Palestinians are violated in various forms and ways due to the existence of the settlements” and “Israel is committing serious breaches of its obligations under the right to self-determination and under humanitarian law.”

The chair of the FFM, Ms. Christine Chanet said, “In compliance with Article 49 of the Fourth Geneva Convention Israel must cease all settlement activities without preconditions.”

In order for the United States government to respect the rule of law during these ‘peace talks’ and truly facilitate a just and sustainable peace in the region, they must insist Israel immediately halt all construction of settlements and related infrastructure as a first step towards removing all settlers from the OPT.

[1] Israel’s long-running policy of settling civilians in occupied territory is considered a war crime under the statute of the International Criminal Court (ICC).  Article 8(2) of the Rome Statute defines “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory” as a war crime when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

Why Are We Above International Law?

Solve Israel's Problems » Please Share Our Articles » Famous Jewish Magicians
US/Israel are selling lies and illusion. Don’t give them power by believing that the US can move capitals! US moved it’s embassy and that’s the lot of it. The US actually has no jurisdiction outside its own borders and embassies. In 1980, Israel passed the “Jerusalem Law”, stating that “Jerusalem, complete and united, is the capital of Israel”, thereby formalising its annexation of East Jerusalem.

In response, the UN Security Council passed Resolution 478 in 1980, declaring the law “null and void”. The illegal Israeli annexation of East Jerusalem violates several principles under international law, which outlines that an occupying power  does not  have sovereignty in the territory it occupies. The move sparked global condemnation from world leaders. Likewise, the US is the only country in the world so far to recognize Israel’s annexation of Syria’s Golan Heights. Trump’s proclamation of gifting the Golan Heights to Israel isn’t worth the paper it is written on.

Security Council resolution 497:
“Decides that the Israeli decision to impose its laws, jurisdiction and administration in the occupied Syrian Golan Heights is null and void and without international legal effect;
Determines that all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the recent “basic law” on Jerusalem, are null and void and must be rescinded forthwith”

“Jerusalem is the capital of Israel. The Golan Heights belongs to Israel. The Palestinians don’t exist, and if you see one, kill him, he’s a terrorist.”

In what The Guardian called an “excoriating attack” on the International Criminal Court, or ICC, Bolton said, “The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.”

In calling it “this illegitimate court,” Bolton was referring to the only international venue now in existence for trying alleged war criminals whose countries cannot or will not prosecute them. By “our allies,” Bolton appeared to mean Israel, a supposition Pompeo confirmed last week when he told reporters, “These visa restrictions may also be used to deter ICC efforts to pursue allied personnel, including Israelis.”

And when it came to threats, Bolton didn’t stop there. He also suggestedthat the United States might even arrest ICC officials:

“We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”*

International court judge resigns, citing ‘shocking’ interference from ‘above the law’ US

A senior judge has resigned from the UN International Criminal Court (ICC) in The Hague, after the United States threatened judges investigating alleged US war crimes in Afghanistan.

The judge, Christoph Flügge, has worked with the International Criminal Court (ICC) and the International Criminal Tribunal for the Former Yugoslavia (ICTY) since 2008. More recently, he got involved with a preliminary investigations into claims that US military service members and CIA operatives tortured prisoners in Afghanistan.

Flügge told German newspaper Zeit that he handed in his resignation after open threats from US officials, including a speech by hawkish national security adviser John Bolton last September, where Bolton “wished death” on the Court.

US Ambassador to the United Nations Nikki Haley warns the US will be “taking names” of the countries that vote in favor of a resolution that condemns the Trump administration’s decision to recognize Jerusalem as the capital of Israel.

“If these judges ever interfere in the domestic concerns of the US or investigate an American citizen, he said the American government would do all it could to ensure that these judges would no longer be allowed to travel to the United States – and that they would perhaps even be criminally prosecuted,” Flügge told Zeit, in an interview translated by The Guardian.

“The American security adviser held his speech at a time when The Hague was planning preliminary investigations into American soldiers who had been accused of torturing people in Afghanistan,” Flügge explained. “The American threats against international judges clearly show the new political climate. It is shocking. I had never heard such a threat.”

Bolton’s speech was delivered in September to the conservative Federalist Society in Washington, DC. It came a year after the ICC began investigating claims that at least 61 detained persons in Afghanistan had been tortured by American troops and another 27 by the CIA at secret prisons in Afghanistan and abroad, according to prosecutor Fatou Bensouda.

Bolton called the investigation “utterly unfounded” and “unjustifiable,” and promised to “protect our citizens and those of our allies from unjust prosecution by this illegitimate court.”

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The senior US official also vowed to defend Israeli citizens from the court. US “friend and ally” Israel was at the time accused of perpetrating war crimes against Palestinian civilians. He warned that the US would disregard arrest warrants, ban judges and prosecutors from entering the country, and even try them in American courts.

Flügge said his colleagues were “stunned” that “the US would roll out such heavy artillery,” but added “it is consistent with the new American line: ‘We are No 1 and we stand above the law’.”