Lawyers, mainly among those who specialize in international law, have also been at the forefront of anti-Israeli incitement.1, 2 The United Nations is one place where this has happened frequently. As already mentioned, Israeli international lawyer Meir Rosenne said, “There are two types of international law. One is applied to Israel, the other to all other states. This comes to the fore when one looks at the way Israel is treated in international institutions . . .”

Yehuda Blum, a law professor and former Israeli ambassador to the United Nations, remarks that some fields of international law have greatly assisted society at large. He mentions as examples the law of diplomatic relations, the Law of the Sea, and the Law of Treaties.

Blum adds:

One field where international law has failed in recent years, especially since World War II, is where it relates to the use of force. Its main weakness concerns the law of peace, belligerent occupation, and so forth. Since these are usually acute problems, such instances highlight contemporary international law’s weakness.

Another major failure of international law concerns recent international terrorism. International law is premised on the existence of states, which are bound by its norms. In this particular case, we are confronted with a different phenomenon: armed groups perpetrating many crimes without any state taking responsibility for their actions.

There is no ability to hold any particular state accountable for these actions. Al-Qaeda is like an octopus, which has spread its tentacles all over the world. It was headquartered in Afghanistan where it has been disposed of. International law has been unable to develop the necessary adjustments to this novel situation.3

In view of these extremely weak elements of international law, the discipline itself has become a dubious one and easily lends itself to corruption in many areas. Harvard law professor Alan Dershowitz was quoted as saying that international law is “a construct in the mind of a bunch of left wing academics.” He said this in a lecture at the Institute for National Strategic Studies in Tel Aviv in 2013. He added, “There is no basis for international law in any reality. It’s not based on legislation. Much of it is not based on treaty. It is the ultimate exercise in elitist non-democracy.”4

Lawfare

 Dubious and false interpretations, as well as the use of international law against Israel, have become major tools in the anti-Israeli struggle. The term lawfare is now commonly employed for the aggressive aspects of this endeavor.5

Anne Herzberg, legal adviser of NGO Monitor, explains how lawfare is used against Israel:

Lawfare cases cover areas of international law including international human rights law, laws of armed confl t, laws of statehood, borders, sovereignty, and treaty law. Lawfare against Israel takes many forms. First, it involves the distortion of international law and use of legal rhetoric, accusing Israel of “war crimes,” “ethnic cleansing,” “crimes against humanity,” “collective punishment,” “apartheid” and so on.

Second, lawfare refers to co-opting and abuse of the United Nations and other international frameworks like the U.N. Human Rights Council and the human rights treaty bodies to issue sui generis condemnations against Israel. It also involves pressing for quasi-judicial investigations and international “fact- finding” missions like the Goldstone one.

Third, lawfare involves exploiting international courts such as the International Court of Justice and the International Criminal Court as well as taking advantage of universal jurisdiction statutes in foreign—mostly European— courts to bring civil and criminal “war crimes” cases against Israeli officials, or those doing business with Israel.6

She recalls:

An important part of the lawfare strategy was developed at the World Conference Against Racism in 2000 in Durban South Africa. This “Durban Strategy” operates as follows: Palestinians launch mass terror attacks on Israeli civilians such as waves of suicide bombings in March 2002, or rocket attacks from Gaza. As the attacks escalate and Israel employs increasingly intense counter-terror measures to prevent those attacks, NGO’s begin a public relations blitz by issuing countless press releases and reports under a façade of research, condemning Israel for alleged “war crimes” and other violations of international law.

These claims are then picked up in the media without any independent verification. In conjunction with the Arab League, these NGO’s then lobby various

U.N. bodies to issue condemnations, to establish “fact-finding” investigations and to hold “war crimes” trials. These groups also lobby the European Union and other governments, primarily European ones, to impose sanctions on Israel. They also file lawsuits seeking to have Israeli officials arrested abroad, or to have high criminal and financial penalties imposed on corporations for aiding Israel’s military.7

Baseless Legal Arguments

International law expert Jacques Gauthier, a Canadian, has spent twenty years investigating the legal aspects of the status of sovereignty concerning Jerusalem. He states:

Declarations relating to the status of Jerusalem should clearly distinguish between the legal aspects of the issue and political claims. U.N. Secretary General Ban Ki-moon and other political leaders frequently employ baseless legal arguments when they make statements concerning Israel’s sovereignty over Jerusalem and the West Bank.

Gauthier remarks:

The Balfour Declaration was a statement by the British government. In November 1917, Great Britain however, did not have military control or the legal authority to give rights over Palestine to others.

To understand the legality of Israel’s sovereignty in Palestine, we have to begin with the Paris Peace Conference in 1919 which took place at the French Foreign Office on the Quai d’Orsay. Both Arabs and the Zionist Organization presented their cases concerning the future of Palestine there. The Zionist Organization asked for the recognition of “the historic title of the Jewish people in Palestine and the right of Jews to reconstitute their national home.” It demanded that the borders of Palestine—for which a map was presented—broadly follow the biblical territory on both sides of the Jordan River. It proposed that “the sovereignty of Palestine shall be vested in the League of Nations and the government will be entrusted to Great Britain acting as Mandatory of the League.”

The Paris Conference led to various treaties with nations defeated in the First World War. They transferred title of many territories they had lost in the war to the five Principal Allied and Associated Powers, the United States, the British Empire, France, Italy and Japan.

Gauthier adds:

The Paris Conference was followed by the San Remo Conference, which took place in April 1920 at the Villa Devachan. There, the Supreme Council of the Principal Allied Powers adopted a resolution on 25 April concerning Palestine. It stated that its administration would be entrusted to a Mandatory which they would select. It also said: “The Mandatory will be responsible for putting into effect the declaration originally made on the 8th [2nd] November 1917 by the British government and adopted by the other Allied Powers, in favor of the establishment in Palestine of a national home for the Jewish People. It being clearly understood, that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed [by] the Jews in any other country.”

This resolution is the legal foundation of the rights under the Law of Nations granted to the Jewish people in respect to Palestine.

In San Remo, the Principal Allied Powers approved British mandates over Palestine including Trans-Jordan (East-Palestine) and Iraq, as well as the French Mandate over Syria and Lebanon. The Arabs acquired huge territories as a result of the San Remo Conference. However, there were crucial differences in the texts of the Mandate treaties for Syria and Lebanon, as well as the one for the Mesopotamia (Iraq) Mandate on one hand and the Mandate for Palestine on the other. In the former, it said that the organic law will be “formed in agreement with the native authorities and shall take into account the rights, interests and wishes of all the population inhabiting the mandated territory.” In the Mandate for Palestine, there is no such formula. It stated that the Mandatory will be responsible for creating the conditions to “secure the establishment of the Jewish National Home.” It also said that recognition was given “to the historical connection of the Jewish People within Palestine and to the grounds for reconstituting their national home in that country.”

The Council of [the] League of Nations approved the British and French Mandates in July 1922. In the 1923 Treaty of Lausanne, Turkey renounced all rights and title on the aforementioned territories. In international law, once the title to Palestine was given to the Jewish people, this cannot be nullified retroactively as a result of the introduction of new principles of international law several decades later. In fact, the rights granted to the Jewish people are protected under Article 80 of the UN Charter. This preserves intact all the rights granted to Jews under the Mandate for Palestine, even after the Mandate’s expiry in May 1948.8

The EU Directive on Settlements

In reaction to the EU directive regarding settlements promulgated in July 2013, more than a thousand attorneys from many countries signed a detailed letter to Catherine Ashton.9 Its initiator was retired Israeli ambassador Alan Baker, an international law expert. The letter asked the European Union to revoke the directive as it was based on “legally flawed and incorrect assumptions regarding both the legality of Israel’s settlements and the status of the pre-1967 Armistice Lines as Israel’s border.” Although the letter did not explicitly call the EU directive “lawfare,” it accused the EU of “misreading the law” which can be considered a euphemism for that term.

The letter furthermore said:

The long-held view of the EU as to the illegality of Israel’s settlements is a misreading of the relevant provisions of international law, and specifically Article 49 of the Fourth Geneva Convention, which is neither relevant to the unique circumstances of Israel’s status in the area, nor was it ever applicable, or intended to apply to Israel’s circumstances in Judea and Samaria.

The EU together with other international bodies has consistently ignored authoritative sources, including the 1958 official commentary by International Committee of the Red Cross, as well as the published opinions of prominent international jurists, all of which explain the provenance of Article 49 in the need to address deportations, forced migration, evacuation, displacement, and expulsion of over 40 million people by the Nazis during the Second World War.

This has no relevance to Israel’s settlements in Judea and Samaria.10

The letter added that the issue of settlements was agreed in the 1995 Israeli- Palestinian Interim Agreement to be an issue for negotiation between the parties. The EU is a signatory to that agreement as a witness, and its “determinations . . . undermine the negotiating process and run against the EU’s status as signatory.” The letter also pointed out that the legality of Israel’s presence in the area “stems from the historic, indigenous and legal rights of the Jewish people to settle in the area, as granted in valid and binding international legal instruments recognized and accepted by the international community.” It further notes that the EU is predetermining the outcome of the negotiations concerning Israel’s borders by calling the Armistice Lines borders, even though they were never considered to be such. This is the more so as the EU in its 1980 Venice Declaration called for “secure and recognized boundaries” that would replace the Armistice Lines.11

The EU and Anti-Semitism

 This EU directive can be considered an example of anti-Semitism according to the FRA definition. American international law expert Eugene Kontorovich has exposed the EU’s double standards concerning Israel and Turkey. The EU funds Turkish-occupied Northern Cyprus. Yet “Turkey’s invasion and occupation of Cyprus in 1974 was condemned by the UN Security Council and the EU’s official policy is that the Turkish occupation is illegitimate and Turkey must completely withdraw. The EU does not recognize the Turkish government in Northern Cyprus.”

Kontorovich remarks that the EU maintains an entire separate program to direct funds to Northern Cyprus. This program accounts for about 0.8% of Northern Cyprus’s GDP. Projects include study abroad scholarships for students at the numerous Northern Cyprus universities . . .; developing and diversifying the private sector through grants to small and medium-sized businesses; various kinds of infrastructure improvements (telecom upgrades, traffic safety, waste disposal); community development grants, funding to up-grade “cultural heritage” sites, and so forth. They even put on a concert. The program basically gives grants to the Turkish business and private entities, and builds the infrastructure of the occupying government. The EU is doing exactly what it claims, in the settlement guidelines, international law prohibits. The relevant EU resolutions and reports make no mention of any international legal question about such funding.12

Lessons from the Ukrainian Conflict

In the 2014 Ukrainian conflict, further elements of the West’s selective application of international-law concepts came to the fore. Western powers accused Russia of violating international law by annexing Crimea. This implies that the United States and the European Union uphold international law.

This argument was greatly weakened by Gerhard Schröder, former German Socialist chancellor and a friend of Putin. He stated that he himself was one of many Western leaders who violated international law with regard to Kosovo. Schröder compared the referendum conducted by the government of Crimea with Kosovo’s declaration of independence from Serbia.13

The EU has consistently claimed that Israel’s settlement policy in the territories—which previously did not legally belong to any sovereign state—contravenes international law. This argument has been contested by many prominent legal scholars. Schröder’s remarks undermine the EU position even further. If the EU behaved much worse than what it falsely condemns Israel for, this is yet one more example of the double standards that are part of the FRA definition of anti-Semitic acts.

Notes

1. Abraham Bell, “International Law and Gaza: The Assault on Israel’s Right to no Tes| 453
   Self-Defense,” Jerusalem Issue Briefs, 9:29, January 28, 2008.
2. Dore Gold, “Did Israel Use ‘Disproportionate Force’ in Gaza?,” Jerusalem Issue Briefs, 8:16, December 28, 2008.
3. Yehuda Blum, personal communication.
4. Gil Ronen, “Dershowitz: Ignore International Law,” Israel National News, December 16, 2013.
5. Manfred Gerstenfeld, interview with Anne Herzberg, “Lawfare: The Abuse of the Law to Harm Israel,” Israel National News, July 21,
6. Ibid.
7. Ibid.
8. Manfred Gerstenfeld, interview with Jacques Gauthier, “Israel’s Legal Sovereignty in Palestine,” Israel National News, December 23, 2013.
9. http://brandeiscom/blog/iajlj-seeks-lawyer-signatures-for-european- union-petition/#more-.
10. Ibid.
11. Ibid.
12. Eugene Kontorovich, “How the EU directly funds settlements in occupied territory,” The Jerusalem Post, September 28, 2013.
13. Ludwig Greven, “Putin verstehen mit Gerhard Schröder,” Zeit Online, March 9, 2014 (German).