Daled Amos and JudeoPundit did a fine job of expanding on a little discussed topic.
Working off a post in InstaPundit, about a Caroline Glick column describing the effect Israel’s out of control legal establishment affected the war against Hezbollah in 2006,
Mandelblit and Mazuz testified that legal advisers were present at all levels of command in all the relevant service arms and in the security cabinet. At each level the lawyers were asked to judge the legality of all the proposed targets and planned operations before they were carried out. And as the two explained, in their decisions, these lawyers were informed not by the goal of winning the war, but by their interpretation of international law.
Daled Amos writes
Based on the subsequent outcry by the international community, it is obvious that the lawyers failed on both counts.
Judeopundit adds
And every non-lawyer who prattles about “disproportionate response” has adopted this kind of thinking/madness.
WizBang.Jay Tea goes into somewhat more detail
But I recall no one discussing how nearly every single aspect of Hezbollah — both their conduct and their very existence — constituted a violation of nearly every single precept of legal war.Did the Hezbollah fighters wear distinctive uniforms? No. They dressed as civilians, virtually indistinguishable from ordinary Lebanese — until they started fighting.
Did Hezbollah avoid civilians, to keep them from being harmed? No. They set up their weapons and fighting positions in and among towns and villages, schools and hospitals and places of worship.
Did Hezbollah take pains to avoid injuring civilians? No. They fired off unguided missiles and rockets by the thousands, in the general direction of cities and towns and villages and farms, in the hopes of killing civilians.
Did Hezbollah respect the rights of prisoners? No. Their policy has been for years that Israeli prisoners are to be kept incommunicado, only rarely even offering proof that they are still alive, in hopes of exchanging them for Israeli prisoners. Even still, they are often tortured and executed in the cruelest fashion.
Did Hezbollah abide by the terms of the UN Resolution that ended the conflict? No. They have reasserted their control over southern Lebanon, keeping out the Lebanese government and army and re-arming with even more missiles and rockets than they had before the fighting.
While Jay Tea is in search of a larger point, this observation is still apt.
Practically, how else has the Israeli justice system made it harder for Israel to defend itself? In June 2004 a panel of 3 judges from the Israeli High Court of Justice (including then-Court President Aharon Barak) issued guidelines for the construction of Israel’s security fence.
The court, in its decision, dictated that the economic consequences to the Palestinians must be considered when deciding on the route of the fence and that those consequences must be proportional to the threat. Here’s how the New York Times described the decision.
The unanimous decision by the three-judge panel asserted that Israel has a genuine security reason for building the barrier and can expropriate land in the West Bank for it. But it said the army ”has a legal duty to balance properly between security considerations and humanitarian ones.”The barrier’s planned path along a 20.5-mile section, the court ruled, could not be justified because of the suffering it would cause.
A court summary of the ruling said, in part: ”The fence’s current path would separate landowners from tens of thousands of dunams [quarter-acres] of land, and the planned regime of authorizations to access that land would not substantially reduce the harm. The fence’s current path would generally burden the entire way of life in petitioners’ villages.”
It added that while the ruling might reduce security for Israelis, ”this reduction in security must be endured for the sake of humanitarian considerations.”
It’s important to realize that the court reached its decision even after accepting the premise that only the government’s security apparatus could properly assess the security risks in changing the route. Still the court allowed a nebulous concept of “proportionality” to trump the concrete concerns of Israel’s security establishment.
The New York Times excerpted a section of the ruling that proudly proclaims:
There is no security without law.
That’s not legal reasoning, it’s simply a slogan. I could just as easily argue “There is no law without security” and it would have the same legal force. (Well no, it wouldn’t have the same legal force, I’m not the member of any court with jurisdiction over anything. I simply meant that even the declaration of the Israeli court is devoid of any legal meaning.)
And if Israel’s High Court of Justice thought that applying uncertain standards of international law would shield Israel from international condemnation, it was wrong. A few days later it was reported Major Portion of Israeli Fence is Ruled Illegal:
The International Court of Justice ruled Friday that the major portion of the barrier Israel is building violated international law because it was rising on Palestinian land on the West Bank.In a nonbinding decision, it called on Israeli officials to tear down the sections it ruled to be illegal and to compensate Palestinians whose land it cuts across or whose interests have otherwise been harmed..
The opinion, endorsed by all 15 justices with the exception of the sole American, Thomas Buergenthal, found that the barrier ”constitutes breaches by Israel of its obligations under the applicable humanitarian law” and that it ”cannot be justified by military exigencies or by the requirements of national security or public order.”
Palestinian officials immediately hailed the advisory opinion as a major legal victory. ”This is an excellent decision,” the Palestinian leader, Yasir Arafat, told reporters at his compound in the West Bank city of Ramallah. ”This is a victory for the Palestinian people and for all the free peoples of the world.”
The sole dissenter, the American judge observed:
Judge Buergenthal, the American, said in his dissent that the court should have declined to hear the case because it lacked sufficient information and evidence ”for its sweeping findings.”Leaving open the possibility that some or even all sections of the barrier in the West Bank violate international law and acknowledging that ”the wall is causing deplorable suffering to many Palestinians,” the judge said the court should not have ruled until it had considered ”all relevant facts bearing directly on issues of Israel’s legitimate right of self-defense”
He said the impact of ”repeated deadly terror attacks” was something ”never really seriously examined by the court.”
All of which demonstrates that “international law” is less a rigorous discipline applied impartially than a political construct with which to achieve specific ends.
Jeane Kirkpatrick described a particularly egregious example of how this worked (“How the PLO was Legitimized“, Commentary, July 1989)
In these ways the General Assembly explicitly affirmed that the permission which had been granted national-liberation movements to use “all necessary means” included terrorism and hostage taking. And in case anyone doubted that the permission was serious, the support offered to Abu Z. Ein in 1982 showed vividly that the General Assembly majority meant precisely what it implied: throwing grenades into a crowded Israeli supermarket – killing and maiming shoppers – was an act of “political dissent” and “self-defense” and was not punishable by law. For when, after two-and-a-half years of legal battles, the U.S. courts finally agreed to honor Israel’s request for extradition of Abu Ein (who had been represented by a former U.S. Attorney General, Ramsey Clark), the General Assebly condemned the United States and Israel. Abu Ein, it said, was a “freedom fighter” and Israel had no right to put him on trial.
The problem with Israel’s High Court of Justice applying standards of international law to Israel is that, at best, international law embodies noble sounding but ultimately empty slogans, at worst, it is actively hostile to Israel’s existence.
When Israel’s High Court co-opts these standards it is not elevating itself, but rather co-opting the views of Israel’s enemies. It is, in fact, forcing to abide by standards that are meant to be inimical to Israel’s interests. There is nothing enlightened by such an approach.
Other thoughts on the overreaching of Israel’s High Court of Justice are here and here.
Crossposted on Soccer Dad.
