Saturday, 16 August 2014

"Illegal" Settlements - Guest Post

There was a furore in the media earlier this year when Scarlett Johanssen chose to continue to lend her name to Sodastream, a successful company which manufactures its products in the Israeli conurbation of Ma’aleh Adumim, on the West Bank. (They are, incidentally, an equal opportunities employer and are the means of support and sustenance of hundreds of Arab families there as well as Israeli ones.)

A phrase which kept coming up in connection with Ma’aleh Adumim was “illegal settlement” but nobody who used it gave any indication that he knew what it meant.

“Illegal” here means “contrary to International Law”. It is obviously not the same as “criminal”, though some acts contrary to International Law are criminal on any view, for example war crimes such as the massacres at Oradour, Lidice or the Ardeatine Caves, or the murders at Srebrenica. It is not a “crime” for Israelis to go and live on the West Bank, indeed it would be thought offensive to suggest that anywhere in the Holy Land should be judenrein.

The International Law we are concerned with is not like normal established law within a country that has a government, courts and a police force. It is work-in-progress – a system of law still trying to be born. In the aftermath of the Second World War, together with the establishment of the United Nations and its attempts to maintain the security of the world (hence the Security Council), a series of international Conventions was drafted at Geneva and signed by most of the states of the world. When you think about it, law is like that – a system of conventions. We consent – however grudgingly – to having laws made by our legislature, policed by our policemen and enforced by our judges.

If the laws were forced on us without our consent, it would be a tyranny. If there were no laws at all and one could do what one wanted, the strong would eternally oppress the weak and we would be in a Hobbesian state of nature: life would be nasty, brutish and short.

All in all, it is preferable to live under the rule of law.

There are no true policemen for International Law – it is still a matter of who is strong enough to enforce the laws they want to enforce – nor any universally effective international criminal court, despite the setting up of a tribunal which bears that name. Many states refuse to acknowledge its authority.

But there is this set of Geneva Conventions, and they are spoken of at state level as embodying International Law. The fourth one is entitled Geneva Convention relative to the Protection of Civilian Persons in Time of War. It has been in force since 1950 and the State of Israel has signed up to it – in other words, Israel is bound to observe the terms of the Fourth Geneva Convention. To that extent, Israel must not break
International Law and has become equivalent to the “High Contracting Parties” who originally signed the Convention.

But what distinguishes the rule of law from the rule of arbitrary power is that laws have to be construed: interpreted to get at their legal meaning. If an act falls outside the scope of a law on its true construction, it is not an act contrary to that law.

That is what upsets people when someone is charged with an offence but his lawyer is able to show to the court that what he did was not covered by the law under which he was charged. They may object that “he is getting away with it” but that is how law works. Nobody wants tyranny or anarchy.

The Fourth Geneva Convention applies to a state of declared war or other armed conflict between contracting parties (even if the state of war is not recognised by one of them), and it applies to “all cases of partial or total occupation of the territory of a High Contracting Party, even if the occupation meets with no armed resistance”.

Note the words I have underlined.

Articles 47 to 78 deal with “Occupied Territories”. Art 49, in general terms, forbids mass deportations and adds:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

It is that provision which those who call Ma’aleh Adumim an “illegal” settlement say has been disobeyed.

But the problem with this interpretation is history.

Until 1948, the whole of Palestine was just a piece of the old Ottoman Empire which Britain was administering under a mandate of the old League of Nations, pending a more permanent outcome. The United Nations resolved that it should be split between its Jewish and Arab communities and, when the Jewish side proclaimed that they had formed the State of Israel, it was overwhelmingly voted into the United Nations as a new state.

There was no equivalent from the Arabs of Palestine. Instead (with varying degrees of enthusiasm), the armies of all the surrounding Arab states entered Palestine and attempted to destroy the Jewish presence. The eventual ceasefire left Israel in existence, albeit with only armistice lines instead of established borders, but with Gaza under the control of Egypt and the West Bank and Old City of Jerusalem under that of Transjordan.

The King of Transjordan then annexed the land he controlled and changed his country’s name to Jordan. This annexation was not recognised by the vast majority of the other states of the world. Only Pakistan and the United Kingdom recognised it (the head of Jordan’s Arab Legion being the British Sir John Glubb).

The result was that, when in the Six-Day War of 1967 Israel found itself in possession of Gaza and the West Bank, it had no other state – no High Contracting Party – to whom it could be answerable under the Fourth Geneva Convention. The West Bank was never the territory of another party to the Convention.

To this day, Israel has maintained the position that Art 49 of the Fourth Geneva Convention simply cannot apply to the West Bank.

Now, admittedly, the International Committee of the Red Cross, the bodies of the UN and the International Court of Justice have taken the opposite view. It is perfectly reasonable for anyone to argue that Art 49 does apply and that it is therefore contrary to International Law for Israel to build a town at Ma’aleh Adumim and put Israeli citizens there.

But that is not the only view. It is the majority view.

In today’s world, there is no way that the majority view of International Law can be enforced. That is just as well, given the number of times I have seen apparently intelligent people of all nations shouting that Israel is a “pariah state” or an “outlaw” or even (in the words of the current Prime Minister, and next President, of Turkey) “more barbaric than Hitler”, for Israel cannot expect justice or a fair hearing at their hands.

Those who appreciate irony will have noted that the United Kingdom, which had recognised the West Bank’s annexation by Jordan, is one of a minority of two states which can claim to be consistent when they say that Israeli settlements there are “illegal”.

Note: This was written by my father, Jeffrey Littman. He is a barrister (a kind of lawyer, for those of who aren;t sure) and annoyingly argumentative as they all are, but he's good at it, and when he talks about law, whatever the kind, he is usually right. 

Monday, 4 August 2014

Waiting For The Other Shoe To Drop On Erev Tisha B'Av

As we stutter through the final few hours before tisha b'av, I feel like all of Israel, and all Jews everywhere, are holding their breath. I am nervous that the other shoe has not yet dropped.

There have been unprecedented levels of ahavat yisrael visible during the last few weeks. The whole country, when not in their bomb shelters, has been baking cookies, buying toiletries, ordering pizza, and doing any of a myriad other activities to support our soldiers, their families, and the residents of the south who have been displaced and traumatized by rocket fire and the fear of terror tunnel infiltrations. This followed 3 weeks of never-seen-before levels of prayer, tears, good deeds, pleading and hoping for the lives and well-being of Gil-ad, Naftali & Eyal. Many people have pointed out that our tears and prayers for our three boys were not wasted even though we later discovered that they had been killed soon after they were kidnapped. Miracles have happened again and again during Operation Tzok Eitan; the terror tunnels were discovered before they could be used for their diabolical purpose; a mysterious fog shrouded a group of soldiers during a mission, saving their lives; a missile headed for heavily populated Tel Aviv that could not be shot down suddenly and inexplicably turned aside and landed in an open area.

I see the hand of G-d in so many ways. I see it in the very beginning of this war. We now know about the miles of terror tunnels, and that Hamas had a chilling plan to use them in a coordinated attack on Rosh Hashanah that would have taken us entirely by surprise, during which they would kill or capture hundreds of men, women and children. And yet, despite knowing that this wonderful opportunity to destroy us was in their pocket, and that all they had to do was to wait, they chose to pull us into a ground invasion which we tried so hard to avoid, and through which we foiled their plot. How much this should remind us of Haman, who looked forward with glee to the seemingly inevitable destruction of every single Jew in all 127 lands of Achashverosh in just 11 months time, and yet who lost everything, everything, because he couldn't bear to wait that long to get just one Jew out of his way?

I have heard people who have lived in Israel for decades exclaiming that the morale and level of unity that is palpable here has not been experienced since the Six-Day War in 1967. At that time, there was a general feeling that Moshiach was on his way, that we were experiencing the ischalta d'geula, the birth pangs of Moshiach. And yet here we are, 47 years later, and he still isn't here. Now, again, I hear and see so many people pointing to the unity, the prayer, the Torah, the good deeds being done, and holding them up as a surety that Moshiach is nearly here. Surely, with new waves of anti-semitism sweeping the world, with the world media by and large swallowing falsehoods whole and refusing the sniff at the truth, Moshiach must be nearly here. I read this article, explaining in great detail why what was reported as a cruel Israeli strike on innocent civilians in a crowded market was really a Hamas-inflicted massacre, and was most chilled by this paragraph:

As I was looking for new corroboration that the market was closed, articles were changing between the moment I clicked the link and the page opened. It was like the Michael Douglas movie Disclosure, where he’s inside the virtual computer, and the files are disappearing before his eyes. The Telegraph’scached articles have been removed, so somebody thought it was really important to conceal the fact that the market was closed.

To me, this was scary. That news can be falsified today, in the era of mass information, that our enemies really do control the media - to the extent that they change previous news articles, so that only their version of events is reported and not the truth. It certainly seems to me that we live in a time of real sheker (falsehood).

And yet - Moshiach is not here.

And this is why I am nervous. Because clearly, we have not done enough. There is so much unity, so much kindness, so much prayer and so much Torah - but it's not enough. So much emunah that only G-d will save us, even from previously non-religious Israelis, who have seen miracles happen and recognize now that it is not 'our valour and the strength of our hands which have wrought this' but G-d alone.

It's all so good! But it's not good enough. 

What more can we do? What more mehafechah, what bigger upheaval do we need to experience to bring us to the point of Moshiach's arrival?

It is my wont to turn to Tanach for guidance. I look for pattern and correlation between our days and the days of the prophets, and take comfort from seeing that there is reason and control over what we are experiencing. I look to Yeshayah (Isaiah) and Yirmiyah (Jeremiah), (sections of whom we read on the three Shabbatot preceding Tisha B'av, called the sheloshah d'poranuta, the three weeks of rebuke) and I think, perhaps herein lies our clue. Both these prophets follow a theme of social justice. In both books, you can read rebukes of the people who fasted on the fast days, brought their offerings to the Temple, ate the correct food and respected the holiness of holy things - but who oppressed the poor, the orphans and the widows. Both prophets warned the people that G-d does not want their sacrifices or their fasts, He wants their justice. And the Jewish people of the time just couldn't, couldn't understand this.

We, too, are not there yet. We fast, we pray, we say tehillim, we learn Torah, we bake cookies for soldiers and buy equipment to support them. But in Austria, there is a woman who is denied access to her neglected children by a man who is still supported by the rabbis of his town. In Israel, in America, in Europe, there are children who are sexually abused by teachers, rabbis, and family members, while the Torah establishment ignores their suffering and protects their tormentors. In America, when the IRS decides who to investigate for potential tax fraud, they use 'Torah' as one of their flag words, since people who claim their primary income from Torah sources are more likely to be evading taxes. In countries across the world, there is fraud, there is theft, there is injustice great and small committed by Jews, by 'frum' Jews and by irreligious ones, and we - the representatives of Torah - ignore it, avoid it, try to pretend it is not there.

Rabbi Menachem Leibtag, Tanach educator, teaches that the Beit Hamikdash had to be destroyed because the Jewish people had come to believe that it was something akin to a magic potion. That whatever we do, however badly we behave, if we fast and bring korbanot, G-d will save us. And so, eventually, G-d had to destroy it, even though we brought so many offerings and cried so hard, because we weren't behaving in a way which followed in His Image. We were not emulating G-d; instead, we were creating a chillul Hashem, and the 'frummer' we were while ignoring social justice, the bigger the desecration of G-d's Name.

Perhaps we, too, haven't yet learned the lesson of the destruction of the Temple. We have tried crying, and fasting, and praying, and learning, and even yes, doing good deeds. But more people have come out to protest the injustice of the media's treatment of Israel than came out to protest the injustice of child abuse, or mothers deprived of their children, or fraud. I'm nervous, this tisha b'av, because we still haven't learned this lesson. I believe that, just like in 1967, we stand beneath a window of opportunity, but that that window is closing. What more suffering do we need to experience to bring us to the place we need to be? I don't want to have to find out.