International Law and Israel

I was asked a few weeks ago why International Law matters when working on Israel issues.  I confess to being very taken aback by the question.  Why wouldn’t International Law matter?  Why should Israel be exempted from the norms that are supposed to guide, inform, and yes restrict, the actions of all states?  The more I thought about the question the more it dawned on me that there were three underlying issues: 1) Why does law of any kind matter? 2) What exactly is international law? and 3) Are the UN and all international human rights bodies inherently and blatantly anti-Israel?

I’m not sure how to answer number one.  I’m not an anarchist.  I think that the vast majority of the time it is important to have a legal system.  To be sure, that system should be as fair, just, and unbiased as possible, and often people have to struggle against unjust laws and legal system.  But I think laws matter, and if that is really the core issue then there is not much more I can say to assuage the fears that underline the original question about Israel.

Number two is much more complex.  Yes, I took five international law classes in grad school, and perhaps therein lays my problem.  I know just enough about international law to understand how little I really know, and yet I know a great deal more than most.  The challenge of how to distill five classes of knowledge down into a short and simple answer is a great one indeed, but I will try.  International Law has many constituent pieces including: customary law, conventions and protocols (multi-lateral treaties), and treaties (bi-lateral agreements, usually between two states).  Some of these laws are trade agreements like NAFTA, others attempt to regulate the way that wars are fought and civilians are treated during armed conflict like The Hague and Geneva Conventions, while still others like Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and United Nations Convention Against Torture (CAT) seek to protect individuals from specific human rights violations.

Traditionally, International Law referred to the set of laws that govern the conduct of states in their relationships with one another, where state actors were considered to be the only actors on the international stage.  This makes traditional International Law different from what one generally thinks of a legal system as being; a set of laws that is primarily concerned about the relationship between a state and its citizens.  However, as international relations have evolved so too has International Law.  International Law is now beginning to cover state relations with international institutions and other non-state actors.  Additionally, in some instances individual people, under the emerging principle of universal jurisdiction, are now being held directly accountable to international criminal laws.  But the laws that seeks to protect human rights is most often what people think about when they hear term International Law.

The shift in International Law to protect the rights of people beyond the battlefield began in 1948 with the Universal Declaration of Human Rights and theConvention on the Prevention and Punishment of the Crime of Genocide, in response to World War II and the Holocaust.  While The Hague and Geneva Conventions address rights directly relating to wars and combat situations, subsequent human rights conventions have sought to cover the full range of human rights.  International human rights law is just one part of International Law but is nevertheless derived from a verity of sources, both international and national.  One of the most important sources of human rights law is the UN Charter itself.

Including the UN Charter, to which Israel’s own Declaration of Independence says that Israel will be faithful; there are a large number of conventions and treaties that are relevant to discussions of International Law in relation to Israel.  Though Israel was not established until 1948, International Laws such as The Hague and Geneva Conventions (the first three of which were ratified proir to 1949) are applicable to Israel.  Isreal is bound by them because they are now a part of Customary International Law and are binding on all states.   In addition to binding Customary International Law, Israel is also a signatory party to the eight major human rights conventions.

This brings me to number three.  My short answer is no, the UN and other international human rights bodies are not all inherently and blatantly anti-Israel.  Within the UN structure there are numerous bodies that are charged with monitoring and adjudicating human rights issues; the Human Rights Commission being just one of seven bodies that were established under human rights conventions, in addition to the two permanent courts and several ad hoc courts and tribunals that have also been established. International Law, the UN, and International human rights law are much more than just the Human Rights Commission.  It is important to state that because many casual followers of human rights and the UN frequently point out the bias of the Human Rights Commission, as if that one body were the totality of the UN’s efforts on human rights and representative of a monolithic position on Israel.  It is not and does not.

I would love to elucidate the human rights implications of Israeli policy on a number of specific cases or issues.  I could write entire graduate level papers about why the ICJ ruling on the Separation Barrier was legally sound and not biased against Israel.  I have written a paper on why many of Israel’s interrogation methods violate the CAT.  One issue that I can give a brief answer is that of the Settlements.  Quite simply, the Settlements are a violation of the Fourth Geneva Convention, Section III, Article 49: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”  The law itself is clear, and in the case of Israel means that a state policy that supports Israeli citizens moving into occupied territory constitutes a violation of this law.

In addition to the straight forward meaning of Article 49, the Geneva Conventions as a whole lay out the obligations that an occupying power has to the population being occupied.  That’s right; according to the law by becoming an occupying power Israel becomes responsible for upholding the rights of the people under its control.   Let me put it another way, under international law Israel is responsible for the safety, security, and protecting the rights of the Palestinians living under occupation.

In my mind the core issues are not if International Law matters, if it should be applied to Israel, or if applying International Law to Israel somehow makes one anti-Israel.  International Law matters.  It should be applied to Israel.  And while one UN body is clearly biased in its dealings with Israel that does not negate the rest of the UN, or International Law, and Israel’s responsibilities under those laws.  The real issue is that Israeli policies like the Settlements and the Separation Barrier clearly violate International Law and many Jews and Israelis are afraid to own up to those violations and their ramifications.  It is important to be honest about how and where Israel falls short of the ideals it laid out for itself and that many of us hold it to.  As painful as it is that Israel violates international law, it cannot be ignored that it does, and those of us who care about Israel have a responsibility to help it do and be better.