Doc's Talk: Cotler and Goldstone: Jurists butt heads on int'l law, but agree on rules of war

Wednesday, October 28, 2009

Cotler and Goldstone: Jurists butt heads on int'l law, but agree on rules of war

Amir Mizroch , THE JERUSALEM POST

Call it the new game in town. Israeli officials, including Prime Minister Binyamin Netanyahu, have begun openly talking about amending international laws of war - written when uniformed armies were still facing each other on open battlefields - to make them fit better with the current reality of asymmetric warfare. Those days are long gone, the proponents of such a change argue, pointing out that modern warfare bears little or no resemblance to when clearly-marked columns of mechanized armor formations maneuvered and fought each other away from civilian population centers.

In these days of counter-insurgency, counter-terrorism and low-intensity conflict, modern armies battle enemies that strike from within, and then hide behind, civilian population centers.

The campaign to change the laws of war comes amid withering criticism of Operation Cast Lead, with the UN's Goldstone Report inflicting an intense legal and diplomatic assault on Israel.

However, legal experts, including international jurists and IDF officials, are not convinced that changing the laws of war is necessary, let alone possible in the short-to-medium term. IDF legal officials, for instance, are instead calling for an increased appreciation throughout the government of the complexities of fighting and winning asymmetric wars within the boundaries of international humanitarian law. There is an understanding within the General Staff that victory in modern warfare is measured by the perception of your cause's legitimacy.

"The definition of asymmetrical warfare is where one side operates according to international humanitarian law and the other side does not. That is the true asymmetry and the real challenge. So because our enemies operate [behind] human shields and target our civilians without prejudice, we have to respond within the boundaries of international humanitarian law. We have to win the war within these boundaries," a senior military official involved in planning Cast Lead recently told The Jerusalem Post.

Similarly, former Canadian justice minister Irwin Cotler believes that the current laws of war are sufficient, but what really needs to be changed is their selective application to Israel alone. Instead of trying to change the laws of war, Israel and its friends should work to change the principles and procedures of the UN itself, which displays a constant country-specific indictment of Israel, Cotler told the Post last week at the Israeli Presidential Conference in Jerusalem.

"You can't have a situation where you have special sessions targeting Israel and the rest of the world has immunity. You can't have a situation where Israel alone is excluded from the regional deliberative groups and therefore cannot participate in the drafting of resolutions. Within the UN system, there is a basis now to alter what is the source of the problem: the singling out of one member state for differential and discriminatory treatment under the existing legal framework," Cotler said.

South African judge Richard Goldstone, whose withering report has accused both Israel and Hamas of war crimes, agrees that Israel is disproportionately singled out by the UN Human Rights Council. Speaking on ABC's PM news show in Australia last Thursday, Goldstone said Israel had "good cause" to complain.

"I think it has been dealt with over some years exceptionally by the United Nations and the UNHRC. They've given over-emphasis to Israel in the Middle East and given too little consideration to other countries, the most recent being Sri Lanka," Goldstone said.

Nonetheless, the Israeli consensus is that Goldstone's report itself places disproportionate blame on Israel for the events of the Gaza war, and that the UNHRC exclusively blames Israel for war crimes during Cast Lead, ignoring any Hamas violations of international law.

The two respected Jewish jurists, Goldstone and Cotler - the latter being involved in helping Israel extricate itself from the ramifications of the Goldstone Report - believe the existing laws of war are not the problem, and they both stress the need for Israel to perform an independent probe of the IDF's actions in Cast Lead. An internal, serious probe would take the heat off the international efforts to haul Israel before the International Criminal Court, both men argue.

"I think the interpretation of the rules may change from decade to decade, but the fundamental principles remain the same, and that's to protect civilians from victimization during war," Goldstone told ABC's Mark Colvin.

But while Goldstone focused predominantly on Israel's January response to Hamas's eight years of rocket attacks on Sderot and other southern communities, Cotler has taken a wider view.

"During Cast Lead and before it, Hamas committed several war crimes and crimes against humanity. You don't need to create a whole new law of war to be able to hold Hamas responsible. Goldstone did not address most of the existing laws of war with respect to Hamas, like the Genocide Convention, probably the most important of the treaties, which expressly prohibits, under article 3, incitement to genocide. Hamas's charter serves as an example of incitement to genocide and a standing violation of the Genocide Convention. Did Goldstone deal with that? No. Did he mention the charter? No. Does he talk about the violation? No," Cotler said.

Cotler believes that even if Israel managed to amend the laws of war, very little would change if selective prosecution and selective singling out of Israel continued.

"The military people talk a lot about asymmetric warfare, but it's all there in terms of the laws of war. The laws of war are very expansive and comprehensive. The basic thing is [that] what you need is equality before the law. Israel, like any other state, is responsible for any violation of humanitarian law, but that's the point: like any other state. It's not the issue that Israel shouldn't be held responsible; it's that other states aren't being held accountable. It's not that standards shouldn't be applied to Israel. They should be applied to Israel, but they're not being applied to anybody else. It's not that there aren't any rules for international monitoring - there are, but they're only applied to Israel," Cotler said.

"In international law, Israel has emerged as a Jew amongst the nations. It's treated in the international arena [the same way] anti-Jewishness would stereotype the Jews as a minority in any Diaspora country," Cotler says.

For more of Amir's articles and posts, visit his personal blog Forecast Highs
This article can also be read at http://www.jpost.com /servlet/Satellite?cid=1256557977200&pagename=JPArticle%2FShowFull

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The IDF’s Minorities in Numbers and Pictures

In honor of IDF Diversity Week, we present diversity through numbers and pictures. Each year, more and more Muslims, Christians, Druze, Bedouin and immigrants from around the world take on the responsibility of defending Israel.

MUSLIMS:

Muslim Arab Israelis are not required to draft in the IDF, but there are many who volunteer. In 2013, there were over 200 Muslims serving in the IDF and over 300 in the reserves.

Bedouins:

Bedouins are nomadic Muslims who were in Israel when modern borders were set in place and are now considered Israeli citizens. They are not required to draft but a growing number choose to enlist. In 2012, there were over 1,400 Bedouin Muslim soldiers doing regular IDF service and almost 1,500 in the reserves.

Read more:http://www.idfblog.com/2014/02/27/truth-idf-numbers-pictures/#more-34027

Are you aware that in 2013, Middle class taxes go up-significantly?

In January of next year, the federal income tax rate for middle-class taxpayers is scheduled to rise from 25 percent to 28 percent, and the payroll tax is scheduled to rise from 13.3 percent to 15.3 percent… This drives the marginal tax rate based on the aforementioned three taxes to 48.12 percent. Add in state and local property, corporate, excise, and other state and local taxes, and the percentage of each additional dollar that is taxed hovers around 50 percent… When half of each additional dollar earned is taxed away, taxpayers experience a disincentive to start businesses or expand existing ones. This leads to fewer jobs being created.

Why is HAMAS Inside Tampa Schools?

Clare Lopez

Kelly Miliziano, who teaches history classes at Steinbrenner High School in the Tampa, Florida area apparently thinks it’s perfectly OK to invite a senior official of a HAMAS-affiliated organization into her classroom to discuss Islam with her students. According to local media reports, not only has this been going on for years, but in spite of the civil and criminal proceedings that could result from such reckless negligence, the Hillsborough County school superintendent, Mary Ellen Elia, and the chairman of the school board, Candy Olson, also expressed approval for students under their responsibility to be exposed repeatedly to guest speaker, Hassan Shibly, who is the Executive Director for the Council on American-Islamic Relations (CAIR) in the Tampa area.
More...

Did You Know... Ignoring the Call to Islam will Bring Jihad

‘Conquest through Da’wa [proselytizing] that is what we hope for. We will conquer Europe, we will conquer America! Not through sword but through Da’wa.’
-- Yousef al-Qaradawi , Muslim Brotherhood spiritual leader The Arabic word ‘Da’wa’ means the “call to Islam.” But do not think that Da’wa is the same thing as an invitation to an optional holiday event. The classical Islamic doctrine of jihad mandates that enemies must be given the opportunity to convert to Islam or pay the jizya tax before it is permissible to attack them.
Clare M. Lopez

Who is being discriminated-facts tell the truth

Religious bias

Hate crimes motivated by religious bias accounted for 1,409 offenses reported by law enforcement. A breakdown of the bias motivation of religious-bias offenses showed:

65.4 percent were anti-Jewish.
13.2 percent were anti-Islamic.
9.5 percent were anti-other religion, i.e., those not specified.
4.3 percent were anti-Catholic.
3.8 percent were anti-multiple religions, group.
3.3 percent were anti-Protestant.
0.5 percent were anti-Atheism/Agnosticism/etc.

http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2010/narratives/hate-crime-2010-incidents-and-offenses.

On March 31, 1977, the Dutch newspaper Trouw published an interview

with PLO executive committee member Zahir Muhsein. Here's what he said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism.

For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

In March 1977, Zahir Muhsein, a PLO executive, said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct Palestinian people to oppose Zionism."

"For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

The Arab Apartheid

Ben-Dror Yemini
In 1948, the Arab countries refused to accept the UN partition proposal and they launched a war of annihilation against the State of Israel which had barely been established. All precedents in this matter showed that the party that starts the war - and with a declaration of annihilation, yet - pays a price for it. Between 550,000 and 710,000 Arabs fled because of the war and a larger number of 850,000 Jews were expelled or fled from Arab countries (the "Jewish nakba").
Population exchanges and expulsions were the norm at that time, occurring in dozens of other conflict points and affecting about 52 million people. In all the population exchange precedents that occurred during or at the end of an armed conflict, there was no return of refugees to the previous region, which had turned into a new national state.
Only the Arab states acted completely differently from the rest of the world. Instead of assimilating the refugees, they crushed them despite the fact that they were their coreligionists and members of the Arab nation - instituting a regime of apartheid. So the "nakba" was not caused by the actual dispossession, which had also been experienced by tens of millions of others. The "nakba" is the story of the apartheid, oppression, abuse and denial of rights suffered by the Arab refugees at the hands of the Arab countries. (Maariv)

International Law and Military Operations in Practice - Col. Richard Kemp

"Islamist fighting groups study the international laws of armed conflict carefully and they understand it well. They know that a British or Israeli commander and his men are bound by international law and the rules of engagement that flow from it. They then do their utmost to exploit what they view as one of their enemy's main weaknesses. Their very modus operandi is built on the correct assumption that Western armies will normally abide by the rules, while these insurgents employ a deliberate policy of operating consistently outside international law. "

Lost Historical Moments

What Rabin’s last Knesset speech really said:repudiation of a Palestinian state

Rabin ruled out a fully sovereign Palestinian state :

“We view the permanent solution in the framework of State of Israel which will include most of the area of the Land of Israel as it was under the rule of the British Mandate, and alongside it a Palestinian entity which will be a home to most of the Palestinian residents living in the Gaza Strip and the West Bank. We would like this to be an entity which is less than a state, and which will independently run the lives of the Palestinians under its authority.”

Rabin ruled out a total withdrawal from Judea and Samaria and thus a return to the pre-June 1967 borders :

“The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the 4 June 1967 lines.”

Rabin ruled out withdrawing form the Jordan Valley:

“The security border of the State of Israel will be located in the Jordan Valley, in the broadest meaning of that term.”

Rabin ruled out uprooting settlement blocs, like the Gush Katif bloc in Gaza (which was subsequently uprooted by former Prime Minister Ariel Sharon):

“The establishment of blocs of settlements in Judea and Samaria, like the one in Gush Katif.

AND

Rabin ruled out removing any settlement before coming to a full peace agreement with the Palestinians:

“I want to remind you: we committed ourselves, that is, we came to an agreement, and committed ourselves before the Knesset, not to uproot a single settlement in the framework of the interim agreement, and not to hinder building for natural growth.”

Rabin insisted on Israel retaining full security control of the borders with Egypt and Jordan, contrary to Israel’s relinquishment of the Philadelphia Corridor on the border with Egypt:

“The responsibility for external security along the borders with Egypt and Jordan, as well as control over the airspace above all of the territories and Gaza Strip maritime zone, remains in our hands.”

Correcting Oslo Myths-Part 2

3) Kuttab laments that the post-1993 Oslo process resulted in a Palestinian Authority "whose ministers and legislators are not guaranteed passage between Gaza and the West Bank ...."

Before free passage or other perquisites, PA leaders were obligated, among other things, to eliminate the terrorist infrastructure in the West Bank and Gaza Strip, end anti-Israeli, antisemitic incitement in schools, mosques, and communications media, and resolve all outstanding issues through peaceful negotiations. They met none of these commitments, sometimes bolstering terrorism and greatly increasing incitement.

4) Kuttab complains that under Oslo the PA got "lightly armed police ---- but no real sovereignty over the land or contiguity between our communities in Gaza and the West Bank."

Oslo agreements repeatedly were revised, regardless of Palestinian non-compliance, until the authorized number of police grew from 8,000 to 40,000. Though they were to be the only armed forces in the territories, Israeli estimates early in the second intifada put the number of gunmen - police, "security services," terrorists, and armed gangs - at 85,000. Their armament reportedly included not only heavy machine guns and rocket-propelled grenades, but also anti-tank and anti-aircraft missiles.

Sovereignty was to be negotiated in the envisioned 1998 "final status" talks - after a five-year period of confidence-building. Palestinian leadership chronically undermined the process. Palestinian terrorism made the 1993 - 1998 Oslo period more deadly for Israelis than the 15 years preceding it.

The United States doesn't have contiguity between the lower 48 states and Alaska and Hawaii; territorial contiguity between the West Bank and Gaza Strip - that is, through the 20 miles of Israeli territory between them - was never promised and would destroy Israeli contiguity.

5) "Palestinians have been made to endure hundreds of checkpoints in the West Bank, an eight-foot wall deep in our territories, and tight Israeli control over borders."

The security barrier is not "deep in Palestinian territories," but rather encompasses less than 8 percent of Judea and Samaria, and is mostly a fence, rarely a wall; the land in question is not "our [Palestinian] territories" but disputed territory to which, according to the authors of U.N. Security Council Resolution 242, Jews as well as Arabs have claims; and there are no international borders, only the 1949 armistice lines with Jordan. Under 242, borders remain to be negotiated. As for checkpoints - like the security barrier and "tight Israeli control" - Palestinian Arabs precipitated these measures themselves. No terrorism and there would be no fence or tight Israeli control and few checkpoints - like before the first intifada.

Correcting Some Oslo Myths

1) In Oslo "Israeli, Palestinian and other world leaders promised that ... Palestinian sovereignty would be solidified."

No, they didn't. The 1993 Declaration of Principles and subsequent Oslo agreements outlined a process by which final status negotiations about the West Bank and Gaza Strip would be reached. The process required an end to anti-Israel terrorism and incitement and a commitment to peaceful negotiations. The PA, Fatah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine, and other terrorist groups, sabotaged the process from the start.

2) "The reality is that, in defiance of U.N. Security Council Resolution 242, which states that it is inadmissible to occupy land by force, Palestinian territories are still under foreign military occupation."
Wrong again. Resolution 242 (1967) does note "the inadmissibility of the acquisition of territory by war." It also affirms the right of every state in the area "to live in peace with secure and recognized boundaries free from threats or acts of force." There were no "Palestinian territories." Jordan occupied the West Bank, Egypt controlled Gaza. Israel did not have "secure and recognized boundaries," so retention of some of those territories was possible under 242. Israel is not a "foreign" military occupier in the West Bank but, pending final negotiations, the lawful military administrator as a result of a successful war of self-defense.

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